WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

DATE: January 24, 2022 COURT FILE No.: C 21337/18

BETWEEN:

Catholic Children’s Aid Society of Toronto Applicant,

— AND —

K.A.V. (mother) L.O.-M. (father) Respondents

Before: Justice Roselyn Zisman

Heard on: January 10, 2022 Reasons for Judgment released on: January 24, 2022

Counsel: Fatima Husain................................................................. counsel for the applicant society Sharon Worthman and Courtney G. Hughes.... counsel for the respondent (mother) Jessica Cohen............................................................. counsel for the respondent (father)

Decision on temporary motion

Zisman, J.:

1. Introduction

[1] This is a motion within the context of a Status Review application to vary the existing final order dated November 23, 2020 that placed the 3 children before the court in the care of K.A.V. (“the mother”) subject to a 6 month supervision order. The society now seeks a temporary order placing the children in the temporary care and custody of the society with access to the parents in the discretion of the society.

[2] The parents have 2 sons. JO who is 9.5 years old and DO who is 3.5 years old and a daughter JA who is 5.5 years old.

[3] The society submits that there is a long history of concerns due to the mother’s lack of transparency and compliance with the terms of the outstanding supervision order, concerns that the mother places the children at risk due to their exposure to the domestic violence between the parents and the mother’s lack of follow through with respect to all of the children’s needs since 2017. It is the position of the society that it has put in place supports and services and done all it can to mitigate the risks to the children but due to the lack of significant improvement and the inability of the mother to effectively utilize services it is no longer able to mitigate the risks to the children with terms of a supervision order.

[4] The mother opposes the relief sought and submits that the children should only be removed from her care as a last resort. It is submitted that it is in the children’s best interests to remain in the care of their mother and that any risk can be mitigated by the court ordering stricter terms of supervision. It is further submitted that many of the society’s concerns regarding the mother not following through with services are a result of the current pandemic.

[5] L.O.-M. the Respondent father (“father”) supports the mother’s position.

2. Background and procedural history

[6] The parents are the biological parents of the 3 children who have always been in the primary care of the mother.

[7] The family has been before this court since 2018.

[8] On November 6, 2018 on consent there was a finding that the children were in need of protection pursuant to subsection 74 (2)(b)(i) of the Child, Youth and Family Services Act (“CYFSA”) and the children were placed in the care of the mother pursuant to a 6 month supervision order.

[9] The Statement of Agreed Facts that supported the finding of need of protection included the following facts:

a) The mother described being slapped by the father and confined by the paternal grandmother. The mother reported that the father had been physically abusive to the children and/or threatened the mother with physical abuse of the children. The mother reported that the violence had gone on for years and continued despite the father being criminally charged in December 2016 and completing a PARS program. The father continually denied any physical abuse.

b) There have been observed indications of neglect of the children when the parents reside together.

[10] The terms of supervision included provisions that the mother and the children reside apart from the father and not in the home of the paternal grandparents. The mother was required to engage in individual counselling to address her experience with domestic violence. The father was to participate in a parenting program and in a domestic violence program that addressed ending abusive relationships. There were the usual terms for the mother to sign consents and permit scheduled and unscheduled visits by the society workers.

[11] On June 27, 2019, December 18, 2019 and November 23, 2020 final orders were made, on consent, to extend the supervision orders in place for further periods of 6 months each with term of access and on the terms and conditions set out in the Statement of Agreed Facts filed with the court.

[12] The Statement of Agreed Facts supporting the order made on June 27, 2019 include the following facts:

a) The mother attended individual counselling through COSTI but there were concerns about her attending consistently. The mother connected to a Violence Against Women worker who was to assist her with applying for Ontario Works.

b) JA started junior kindergarten. There were concerns that she did not speak, was not fully toilet trained and she was frequently late or missing a great deal of school. She was behind her peers academically and was to be further assessed by the school.

c) DO was diagnosed with eczema and although the mother followed the family doctor’s recommendations the rash did not clear. The mother was referred to a dermatologist who changed the medication.

d) JO’s medical records were only received by the society in April 2019. The records revealed that he had been seen by Dr. Clarke a plastic surgeon with the Hospital for Sick Children in May 2017 but that contact was sparse despite numerous appointments being made and that the hospital was concerned about the parents’ compliance with treatment moving forward. An immediate referral was made to the pediatric neurology clinic.

e) JO was then seen by Dr. McGregor a neurologist. He was diagnosed with a brachial plexus injury at the time of birth that resulted in a weakness in his right arm. The parents were provided with exercises by an occupational therapist and a physiotherapist to be done at home but reported that these interventions were not helpful.

f) In a further report dated February 7, 2018, it was confirmed that JO was not a candidate for any type of nerve reconstruction given that these types of reconstruction needed to be done in the first year of age.

g) JO attended on April 11, 2019 at the Hospital for Sick Children with a neurologist for a follow up appointment. The mother was told that JO may be slow or behind on his speech or may have auditory developmental issues.

h) The family doctor, Dr. Mendez reported that the children were meeting their developmental milestones and he had no concerns about the mother’s parenting.

i) The mother participated in the Healthy Baby, Healthy Children program that helps parents develop a positive relationship with their children and connects the family to resources and programs in their community.

j) The mother also was on a waitlist for Nobody’s Perfect Program that is offered to parents with children between the ages of birth and 6 years old who are experiencing challenges.

k) The society was also arranging for a family home visitor to assist the mother.

l) The father completed the Being a Dad program offered by the society and was described as an active participant. The father reported that he found the program useful and learnt better ways to manage his emotions when he became angry.

[13] On December 18, 2019 the parties entered a further Statement of Agreed Facts for a further 6 month supervision order with the children remaining in the care of the mother.

[14] The Statement of Agreed Facts that supported this order included the following facts:

a) The family service worker had been attending the home bi-weekly as the file was classified as high risk but as of September 2019 was declassified so that the worker only attended on a monthly basis.

b) The mother was registered for the Nobody’s Perfect program but as the program was full she could not attend. The mother did participate in the Healthy Babies, Healthy Children program. The mother continued to attend for individual counselling and even though she did not attend consistently it was reported that she actively participated and the counsellor reported that she was able to do therapeutic work with the mother.

c) It was recommended that the father attend a Mindfulness Fathering program for fathers who have exposed their children to domestic violence. Despite the father attending PARS and Being A Dad program, he did not appear to have much insight into his part in the abusive behaviour.

d) The parents wished to reconcile and were to meet with the worker to present a plan that also involved finding suitable accommodations and the parents agreeing to attend couples counselling before they reunified.

e) JA continued to miss a great deal of school reportedly due to illness.

f) DO appeared to be meeting his developmental milestones.

g) JO continued to be followed at the Hospital for Sick Children and had been referred for a developmental assessment as his speech was still delayed.

[15] A further Status Review was before the court on July 27, 2020. At that time, the society was again seeking a further 6 month supervision order. The court endorsement notes thar issues with respect to the children’s medical needs and schooling needed to be followed up. Some services were being delayed due to Covid. The father during this period of supervision had minimal contact with the society. The mother was still reporting conflict with the father.

[16] A Statement of Agreed Facts was subsequently filed with the court on November 23, 2020 and a further 6 month supervision order was made. The Statement of Agreed Facts was signed by the mother and the family service worker. The father was noted in default.

[17] The Statement of Agreed Facts includes the following facts:

a) JA continued to have issues with school attendance at the beginning of the school year but her attendance improved after the family service worker spoke to the mother about the importance of JA attending daily and on time.

b) JA was struggling at school and behind academically. A school-based support meeting was to occur to review the child’s needs and what supports could be put in place for her. The meeting did not occur as the school could not get hold of the mother.

c) JO was to have an overall developmental assessment at the Hospital for Sick Children but this did not occur and his file was transferred to Humber River Hospital. An appointment had not been confirmed due to the pandemic.

d) The society health specialist began to work with the family. Shortly after she began to work with the family, a referral was made for all 3 children to have a child development assessment.

e) DO continued to have significant eczema on his face and hands. The mother confirmed that she was following the dermatologist’s recommendations.

f) Both DO and JO were still not verbal. The family service worker was not able to interview JA as she does not engage with the worker.

g) The services of the Healthy Babies, Healthy Children home visitor were discontinued due to the mother’s lack of response to participate in the program.

h) Since the order made on December 18, 2019 the family service worker only conducted 2 home visits and maintained some contact through phone and video calls.

i) The mother was to be attending individual counselling at Black Creek Community Health Centre on a bi-weekly basis. Between October 30, 2019 and May 22, 2020, the mother attended twice and when the telephone sessions commenced the mother did not answer the phone. The mother did not cancel sessions or call after to explain why she did not attend.

j) The father had minimal contact with the society during the period of the supervision order. The father did participate in the Mindfulness Fathering program. As the family service worker had not been able to contact the facilitator of the program no details were available.

k) The mother reported that she and the father continued to have a conflictual relationship and that the father had threatened to find a way to have her arrested and wanted the mother to tell the judge that everything was her fault.

[18] The terms of the November 23, 2020 supervision included the following terms:

a) The mother reside separately from the father and not in the home of the paternal grandparents.

b) The mother continue to attend counselling to address her experiences of domestic violence and the mother attend the Nobody’s Perfect program.

c) The mother ensure that JA attend school every day promptly and on time.

d) The mother to follow up on all of the medical needs of her children and in particular JO including services for speech and language as recommended.

e) The father to participate in the Mindfulness Fathering program for fathers who have exposed their children to domestic violence and participate in a parenting program to learn appropriate forms of discipline and the ages and stages of child development.

f) The parties not to reside together without the prior consent of the society and to participate in couples’ counselling before any reunification.

g) The parties shall make themselves available for scheduled and unscheduled home visits, follow through with recommendations made by the society and other services providers and the parents will sign all consents requested by the society.

[19] All of the Statement of Agreed Facts include concerns about the continuing domestic violence between the parents and the effect on the children of exposure to domestic violence, concerns about the children’s development, concerns about JA’s school attendance and concerns about the lack of the mother’s follow through meeting the children’s medical needs. At times it appeared that the mother and father were following through with the recommendations being made and following the terms of the supervision order although the underlying concerns remained.

[20] The various terms and conditions attempted to ensure the mother meet the needs of the children, engage in individual counselling and understand the impact of domestic violence and that the father engage in parenting programs and programs to deal with perpetrators of domestic violence.

[21] The present Status Review has been before the court since May 19, 2021. It requests an order that the children remain in the care and custody of the mother pursuant to terms of supervision. The Status Review raises similar concerns that were previously raised.

[22] At the first attendance of the Status Review on May 19th, 2021 the society requested an adjournment due to concerns relating to all 3 children and concerns that the mother was not meeting and not following through with the medical and educational needs of the children. A Family Centred Conference was planned to see if the issues of concern could be rectified.

[23] The matter returned to court on June 28, 2021 and the court was advised that the parents were living together. The outstanding order stated that the parents not reside together without the prior approval and consent of the society and without first attending couples’ counselling. Based on the court’s endorsement of that attendance the society did not provide any further information to the court.

[24] There was no evidence in the society worker’s affidavit as to whether the society consented to the parents living together. There is no evidence that they engaged in couples counselling as required by the terms of the supervision order.

[25] The court’s endorsement states that the situation appeared to be improving but that both parents needed to address services regarding domestic violence and the father needed to address issues of anger management and the mother required further services.

[26] The mother filed her Answer dated September 28, 2021 confirming that she and the father were residing together. There is no mention of any couple’s counselling. The mother seeks an order for a withdrawal of the Status Review Application.

[27] At the court attendance on October 14, 2021, the court was advised that the mother and children had left the paternal family home and was no longer living with the father. The children made disclosures regarding verbal altercations between the parents. The society’s plan was to amend the Statement of Agreed Facts that had been circulated to place the children with the mother alone and not with both parents and the society needed to determine what further supports could be put in place for the mother.

[28] When the matter returned to court on December 16th, the court was advised that the society had changed its position and had just served a motion, which is the motion prudently before the court, to remove the children from the care of the mother and place them in society care. An order was made that pending the return date, the father and any male friend of the mother was not to have any contact with the children at the mother’s home. Counsel were permitted to file affidavits that exceeded the page limits imposed by the court.

[29] The parents were granted an adjournment due to short notice of the motion.

[30] The court relied on the Notice of Motion and supporting affidavit of the family service worker, the affidavits of both parents and the reply affidavit of the family service worker.

[31] Counsel for the mother raised objections due to many hearsay statements in the family service worker’s affidavits.

[32] Subsection 94 (10) of the CYFSA provides that the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[33] I have considered statements in the family service worker’s affidavit as credible and trustworthy where they are based on her review of other society workers’ case notes, reports of doctors or other health professional involved in the care of the children and discussions or reports from the children’s school. I have also considered credible and trustworthy the information the family service worker repeated based on her discussions with the parents’ counsellors as none of the information conveyed by the family service worker from these counsellors was denied by either parent.

[34] I have also relied on the previous Statement of Agreed Facts filed as these are admissions by the parents and provide necessary background information. It would have been useful if many of these facts were outlined in the affidavit filed by the family service worker in view of the position of the society that relies on the involvement of the society for the last 4 years. Unfortunately, the affidavit filed by the family service worker was disjointed and disorganized and if it were not for the need to make a decision quickly in this case, I would have required the affidavit to be resubmitted.

3. Applicable legal principles

[35] It is important to understand the statutory test to be applied on this motion.

[36] Section 113 (8) of the CYFSA sets out the test for an interim motion brought while a Status Review Application is pending as follows:

113 (8) Interim care and custody

If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody

[37] In the decision of Children's Aid Society of Algoma v. S.S. and M.C. [1] Justice John Kukurin interpreted this provision as follows:

Subsection 64(8) [ now s. 113 (8) ] does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words "shall remain" implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo . In my view, the use of the word "require" in this provision is not accidental. "Require" is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account .

[38] This interpretation of section 113 (8) of the CYFSA gives priority to one of the best interests factors namely, the importance of continuity of care for a child that is, the importance of maintaining the status quo before a trial of the Status Review Application.

[39] The court must be mindful of the fact that it is being asked to vary a final order that was deemed to be in the child’s best interests pending trial and that it is being asked to do so on untested affidavit evidence.

[40] The moving party must demonstrate that there has been a change in circumstances that relates to the best interests of the child that make it necessary, in the child’s best interests, to change the existing order before trial. In addition to maintaining the status quo, the other factors in subsection 74 (3) of the CYFSA regarding the best interest criteria may be relevant.

[41] There have been two line of cases that interpret the test to be applied pursuant to section 113 (8) of the CYFSA when a change in placement is being requested. One line of cases mandates that there be a material change in the circumstances of the child such that a change in placement is required to meet the child’s best interests. The other line of cases finds that it is not necessary to import a material change of circumstances into section 113 (8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change in the placement. What is sufficient depends on the circumstances of the case.

[42] I adopt the second line of cases for the reasons well-articulated by Justice Sager in the case of Catholic Children’s Aid Society v. W.P.P. [2] In paragraph 42 of that decision Justice Sager concludes:

In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.

[43] Accordingly, the test that the court applies is what change in circumstances is required in this case to make a finding that the best interests of the 3 children require that their placement be changed.

[44] On this motion the society does not rely on any one triggering event that has caused the society to change its position but the society relies on the accumulation of issues and a pattern of concerns that from the society’s perspective have not been addressed and that continue to the detriment of the children.

[45] As the court is being asked to remove children from their primary caregiver into the care of the state, I find that there must be very significant evidence presented by the society to meet this test.

4. Discussion

4.1 Factors that favour the children remaining in the care of the mother:

[46] I have considered the following factors that support the children remaining in the care of the mother:

a) The mother has been the children’s primary caregiver since birth.

b) The children are happy in the care of the mother and closely bonded to her. The workers have all noted that the children are well groomed and have clean clothes when they are observed.

c) The children have remained in the care of the mother on consent after a finding of need of protection and on 3 subsequent supervision orders.

d) The concerns presented by the society are long standing and the mother has made attempts to comply and meet the complex educational and medical needs of the children.

e) The mother has had problems accessing services due to the pandemic.

f) The mother has recently registered for independent housing.

g) The evidence presented by the society has not been tested at trial.

h) The children’s doctor Dr. Mendez has advised the society that the mother is a good parent. He indicated that he has no concerns about her parenting abilities and that she follows up with recommendations regarding the medical needs of the children. Dr. Mendez confirmed that he referred all 3 children for an assessment with a paediatrician.

4.2 Factors that favour a change in placement into society care

4.2 (a) Lack of compliance with terms of outstanding supervision order

[47] It is the society’s position that the mother has not been transparent with respect to her relationship with the father. The terms of the outstanding supervision order dated November 23, 2020 required that the mother and father not reside together until their plan of reunification is approved by the society and that if they decide to reunite that they attend couples’ counselling.

[48] From October 2020 to April 2021, the mother consistently told the family service worker that she was not involved in a relationship with the father and that she was not exposing the children to any domestic violence.

[49] On a home visit on April 27, 2021 at the maternal grandparents’ home where the mother and children were purportedly living, the mother stated that the children were sleeping on an air mattress but struggled to produce the air mattress or to show the worker the children’s clothing and only showed her a duffel bag with enough clothes for an overnight visit claiming the clothes were all in the wash.

[50] The mother subsequently stated that she and the children began to live with the father sometime in June 2021. There is no evidence that as required by the supervision order that the society provided their approval of this or that the parents engaged in any couples’ counselling.

[51] The supervision order required that the mother sign consents as requested by the society. Although the mother signed consents, on May 25, 2021 the mother withdrew her consents for the family service worker to obtain the health records with the Hospital for Sick Children, various doctors and a program the mother stated she was attending through the Black Creek Community Health Centre.

[52] Counsel for the mother submitted that the mother wished to obtain legal advice before signing the consents. However, the mother in her affidavit confirms that she withdrew the consents she previously signed as she was upset with the family service worker. The mother admitted that she should not have done this and did rectify the situation by later signing the consents back. Although there are still some consents that have not yet been signed.

[53] The mother has not followed the recommendations of the society or other services providers especially regarding accessing services. For example, Spence, the order of June 27, 2019 required the mother to participate in the Nobody’s Perfect parenting program, however for various reasons she has still not participated in that program. In the mother’s affidavit dated December 30, 2021 states that she is on a waitlist due to program limitations due to Covid-19. But when the initial order was made and up to March 2020 COVID was not a factor.

[54] The mother deposes that she is enrolled in the “HIPPY for Young Mothers Project” which is a structured 30 week program she just commenced in October 2021. It is comprised of weekly one hour in home support. There is no information provided about how often the mother participated or what she has learnt.

[55] The mother also deposes that she is enrolled in “Girl Talk” a program that provides counselling for victims of domestic violence. A redacted email is provided that has no information except for dates of two video meetings for December 30, 2021 and January 5, 2022. As the mother denies there is a history of domestic violence, except for one incident in 2016, it is not clear why she is attending this program.

[56] There is a history of the mother agreeing to attend programs or following recommendations made by the society close to court dates and then not following through or even if she attends there is no there is no evidence that she has any insight into the society concerns and how they affect the children.

4.2 (b) Concerns regarding history of domestic violence

[57] In the Statement of Agreed Facts, dated November 6, 2018 supporting the finding of need for protection, the mother agreed that the father slapped her and that he had been physically abusive to her and the children or threatened physical abuse of the children.

[58] Subsequently the mother did not report any abusive behaviour by the father. In the mother’s affidavit she deposes that, “I have not reported any abuse by the respondent father because I was not abused by him recently.”

[59] However, in the family service worker’s reply affidavit she deposes that although the mother initially denied the father hitting her, she stated that the paternal family is disrespectful to her, damage her belongings and that she and the father often argue. The mother then described to the family service worker how the father pushed her to the floor and has put his hands around her neck when he is angry, although he does not try to choke her. The mother stated that as she does not like to see him angry she will do what he wants including having sexual relations with him. The mother denied seeing the father physically abuse the children. The mother also reported that the father was abusive and controlling and not supportive including financially.

[60] The mother also made statements about the abuse she suffered in other meetings with the family service worker and to the Violence Against Women worker.

[61] Although the mother has been engaged on an irregular basis in individual counselling through COST Immigrant Services but has not been transparent about her relationship with the father to her counsellor.

[62] The children who began in person schooling in September 2021 have disclosed physical abuse by the father against the mother and against themselves.

[63] The school reported to the family service worker on October 13, 2021 that JO told his teacher that, “Daddy eye Mommy” while throwing an air punch.

[64] The family service worker met with the children privately at the paternal family’s home where the family was living in the basement apartment. JO reported that his father hit his mother in the face and walked to the living room and showed the family service worker the couch where he saw his father hitting his mother and he said, “Mommy crying.”

[65] JA told the family service worker that she heard her parents arguing the previous night. She was sleeping and was awoken and because her parents were angry (presumably they were arguing) because her father did not believe his family, who lives on the main floor of the house, was stealing things from the mother. JA said that she had not seen her father hit her mother but believes he does this because after they fight, she hears her mother crying. JA reported that her father hits her in the head with his work boot when she misbehaves and that her father hit JO with his boot when he does not listen.

[66] On the same day, the family service worker met privately with the mother who confirmed that the father was verbally, physically, and sexually abusive to her. The mother stated that she did not wish to report this recent incident to the police as in her experience restraining orders do not work and only add stress to the family relationships. She advised that she had secured her own apartment in the same building where her parents live. The family service worker later found out that the mother’s housing application had been denied.

[67] The mother told the family service worker that she did not wish to reconcile with the father and had only gone back to him as she felt sorry for him and that he always promises to change.

[68] At some point during this visit, the paternal grandparents came into the basement apartment. The paternal grandfather stated that the mother has lied to the society for years when she told the society that she was separated from the father and living with her parents when in fact, she was living with the father and had never left the home. Both the mother and maternal grandmother appeared surprised that the paternal grandfather had made this disclosure.

[69] On October 13, 2021, the mother and children moved out of the paternal family home and moved into the maternal grandparents’ apartment.

[70] When the family service worker met with the mother in the maternal grandparents’ apartment she told the maternal grandparents what the paternal grandfather had said. The maternal grandfather replied that he had told the mother on multiple occasions that she should end her relationship with the father but she does not listen.

[71] The mother in her affidavit does not deny that the paternal grandfather made this disclosure. An affidavit from the paternal grandfather could have been produced if either parent disputed that he made these comments.

[72] The family service worker deposes that for years the society had encouraged the mother to obtain her own residence. The family service worker connected the mother with a Spanish speaking VAW worker but the mother refused to make a decision regarding her living situation.

[73] Further, the mother’s COSTI counsellor who had been her counsellor since September 2018, advised the family service worker that the mother had lied to her about living with the father and that she needed to have a discussion with the mother about the role of truth talking and its role in counselling.

[74] The mother told the family service worker that since her parents would be leaving for El Salvador in December 2021 and not returning until April 2022 she and the children could reside in their apartment and that she would consider getting her own apartment when they returned.

[75] The family service worker advised the mother that not having her own apartment or being able to make her own decisions made her vulnerable to reconciling with the father in the past.

[76] The mother stated that she would apply for Ontario Works (although the mother was connected to the VAW worker for this purpose in June 2019) to get support to move out of the parent’s apartment. The mother did subsequently provide proof that she applied on November 29, 2021 to YWCA Toronto market rent housing. However, the waitlist is 1 to 1.5 years.

[77] The mother is unable to break the cycle of abuse. Despite being in individual counselling for many years and being enrolled in various programs for victims of domestic violence she is unable or unwilling to admit to the abuse she has suffered and has either continued to live with the father for all of these years, if the paternal grandfather is to be believed, or at the very least has had an on and off relationship with the father. As a result, the mother continues to expose the children to domestic violence and is placing their safety and well-being in jeopardy.

[78] As both the mother and the father deny any alleged abusive relationship and dismiss the children’s statements as a misunderstanding, if the children remain in the mother’s care there is no reason to hope that there would be any changes. The children will continue to be exposed to the toxic relationship between their parents.

[79] Although both parents depose that they have no intention of reconciling they have made that statement before. Despite the father also participating in programs for fathers who have exposed the children to domestic violence, without any insight into the effects of exposing the children to domestic violence, the court cannot have any confidence that anything will change for these children if they remain in the care of the mother.

4.2 (c) Failure by mother to utilize services

[80] The mother has failed to utilize the services that have been recommended to assist her in meeting the needs of the children and her own needs.

[81] The society arranged for a home visitor with the Healthy Baby, Healthy Children program to attend at the mother’s home in November 2019. The home visitor was to meet with the mother again in January 2020 but when she arrived the mother was not home. Due to the mother’s lack of response to participation in the program the file was closed. On the one occasion that the home visitor attended, she reported positive parenting skills and positive engagement with the children.

[82] The mother was to attend for individual counselling at Black Creek Community Health Centre on a bi-weekly basis. The mother did not attend consistently and between October 2019 and February 2020 the mother only saw the counsellor two times and did not respond to telephone calls.

[83] The mother was connected to the Victim Assistance Worker/Housing workers through Yorktown Family Services. Despite regular meetings with her Spanish speaking VAW worker, the mother could not make a decision about obtaining independent housing or even obtaining Ontario Works.

[84] The mother was not truthful with her counsellor from COSTI and did not attend on a consistent basis.

[85] The society’s health specialist has been involved with the family since DO’s birth. The mother’s engagement with this service was also sporadic.

[86] In July 2020, after several cancelled appointments by the mother the worker was able to conduct a developmental screening and she recommended that DO attend kindergarten but the mother was not interested and the file was closed.

[87] In November 2020, the mother was not home when the society health specialist attended the home to conduct a developmental screening. The family service worker subsequently conducted the screening and the health specialist was able, based on this information, to make recommendations for the children to attend daycare and for a referral to the Centennial Infant Development Centre. The file was then closed in January 2021 as the mother was not permitting the worker to see the children.

[88] In March 2021, another referral was made due to JO’s arm weakness and DO’s weight. A Spanish speaking health specialist was arranged. No information was provided as to the mother’s cooperation with this service.

[89] The family service worker also attended several medical appointments with the mother in an attempt to help clarify the medical history and needs of the children as the mother could not advise what some appointments were for or did not convey accurate information.

[90] It is submitted by counsel for the mother that it has been difficult for the mother to access services due to COVID-19. However, the mother’s failure to utilize services on any long-term basis pre-dates the pandemic. The mother offers no explanation as to why she did not participate in these services.

[91] The society arranged a Family Centred Conference in April 2021 to discuss the society’s concerns about the children’s urgent needs. The mother and her parents did not acknowledge that there were any concerns and wanted the society to terminate their involvement.

[92] If the mother does not accept that there are concerns and that the children’s needs are not being met, then it is difficult to accept that she will now be willing to utilize services that are put in place to minimize the concerns and help the mother meet the many needs of the children. She has not done so for the last 3 years.

[93] It is submitted that the court should impose more specific terms of supervision and give the mother one more chance to address the needs of the children and address the concerns raised by the society.

[94] However, I find that the society has provided the mother with almost every conceivable service available through the society and outside agencies. The society has attempted to connect the mother with Spanish speaking workers and counsellors. It is not clear what further terms or services could be put in place.

[95] The mother was aware that the society was considering removing the children from her care in April and May 2021 and yet she made no changes. In fact, she did the opposite. She admitted that she and the children moved back to the father in June 2021. She did this again despite the concerns of exposing the children to the ongoing volatile relationship between the parents.

[96] Due to COVID-19 there was little oversight and very limited home visits by any society workers and the children were not visible in the community. However, within a month of the children returning to in-person schooling in September 2021, the children began to report incidents of domestic violence between their parents.

4.2 (d) Failure to meet the needs of the children

[97] JA is currently in Grade 2 and although improving in most areas she is still struggling with her speech and language skills.

[98] When JA was In Grade 1 her attendance was an issue. Her grades for that school year 2020 to 2021 showed she was reading at a junior kindergarten reading level. Her grades were mostly D’s. There was insufficient evidence of learning to assign a grade for mathematics, writing, media literacy and music as work was not being submitted as required.

[99] When JA was in Grade 1, the school wished to arrange a meeting with the mother to discuss what extra supports could be put in place for her. The mother did not attend the scheduled meeting so it did not occur.

[100] The society arranged a tutor for JA from July to October 2021 and there was some improvement but further tutoring was recommended. Although the service was free the mother did not follow up. The mother deposes that she has arranged for a different tutor. But no proof of this was provided and the mother did not explain why she did not just continue with the previous tutor.

[101] It was submitted by mother’s counsel that concerns about JA’s school attendance are related to COVID. However, the issue of JA being late for school and her non-attendance predate the onset of COVID.

[102] Even as of this September 2021 school year there are multiple non-Covid related absences such as missing two days to go winter clothes shopping. There are multiple absences due to dental appointments as the mother deposes that JA is afraid of the dentist and must be out for dental work. But no dental report was provided to justify the several days absence or the nature of the dental work.

[103] DO who is now 3.5 years old has significant speech and language delays, is not yet toilet trained and suffers from serious eczema.

[104] DO only has a few words and is not intelligible. He mostly grunts and points to communicate. Although recommended DO was never enrolled in daycare as the mother was not interested.

[105] DO was referred to the Macauley Child Developmental Centre for speech and language work. The speech and language pathologist advised the family service worker on May 28, 2021 that DO’s speech was very delayed and that during the initial assessment the mother told her that DO communicated using words but she observed that he only made grunting sounds to get the mother’s attention. She recommended a hearing test and an assessment by a developmental pediatrician.

[106] DO only attended 4 sessions in May and June 2021. It was recommended that he needed maximum support to work on his receptive and expressive language skills. In December 2021, DO was reassessed and the mother was told that he was eligible for speech and language and behavioural management services as DO expressed his frustration through anger as he was unable to use his words. There is no evidence that the mother followed up on this.

[107] The mother advised the family service worker that she had requested referrals for developmental assessments for all of the children as recommended.

[108] The mother advised the family service worker that DO was assessed by Dr. Ramchatesingh, a developmental pediatrician, and the only concern noted was his speech and language delay. However, the family service worker spoke to Dr. Ramchatesingh’s office assistant who confirmed that DO was never referred for a developmental assessment and therefore he was not assessed by the doctor.

[109] At present it is not clear what services are or will be on place for DO or if a further referral for a developmental assessment will be completed.

[110] The mother did contact Surrey Place regarding DO to request support to manage DO’ s behaviour as the family struggles to set boundaries for him due to his skin condition. He was placed on a waitlist in August 2021. A developmental consultant will assist DO to improve communication, toilet training and behavior amendments skills. His older brother JO is not eligible for these services due to his age. The mother provided no evidence as to when or if this service would commence.

[111] The family service worker described seeing DO in September 2021 at a home visit and observed that his body was covered with multiple skin-flare-ups. DO had red, dry, scaly patches of skin on his forehead, cheeks, chin, around his eyes, lips, neck, stomach arm, legs and his back. DO scratched his body to the point that he had accumulated blood and dry skin under his fingernails. The mother was observed to overindulge him and if he does not get what he wants he throws a temper tantrum and scratches his skin so that it bleeds.

[112] DO was diagnosed with Atopic Dermatitis [eczema] when he was 6 months old. He has been regularly seen by a pediatric dermatologist Dr. Lansang. The mother advised the family service worker that Dr. Lansang had recommended that DO be seen by Dr. Greewald, a pediatric allergist as he suspected that DO’s eczema could be related to allergies. However, Dr. Lansang advised the family service worker that he never made the referral and asked the mother to discontinue the medication that had been prescribed by Dr. Greewald as it was not helping. It appears that the family doctor may have made the referral.

[113] When the family service worker attended an appointment on November 3, 2021 with Dr. Lansang along with the mother and DO, Dr. Lansang advised that the mother was to attend his clinic every 2 to 3 weeks which she had not done. Dr. Lansang stated that follow up appointments and applying the medicine as prescribed was the key to a successful outcome in managing the child’s severe eczema. Dr. Lansang advised that DO’s eczema had the potential to interfere with his behaviour, his personality and sleep patterns. He recommended that DO have a developmental assessment before he enters school.

[114] Dr. Lansang provided the mother with detailed information as to how much and how often to apply the medication and stated that if the instructions were followed his skin infection should improve significantly by the next visit in 3 weeks. At the follow up appointment DO’s skin condition had shown a 50% improvement. Dr. Langsang provided the mother with a blood requisition form and if DO’s skin condition remained the same or got worse, he would consider prescribing pills for the condition.

[115] The mother does not deny any of this information or explain why she did not consistently attend appointments with Dr. Lansang or apply the medication as recommended. The mother only states that when she sees DO scratching, she removes his hands and puts on the medication.

[116] DO also was referred to a dietician and met with her virtually from April to July 2021 for weight management and appears to have made some improvements. The family service worker also participated on one of the calls and made inquires about a free weight management program at Scarborough Health Network. A referral from a family doctor is required and to date the mother has not obtained the referral.

[117] The court is left with the impression that if the mother had been more conscientious in meeting with Dr. Langsang, understood his instructions and followed them that DO would not have had to suffer this debilitating skin condition or developed an unhealthy weight gain. If DO’s speech and language delays had been dealt with earlier, he may not have developed his current behavioural issues that relate both to his frustration in not having the ability to express himself and may also be related to his eczema.

[118] JO has been diagnosed with speech and language delays and gross and fine motor skill delays. He suffers from a birth related injury that resulted in him having right arm weakness.

[119] JO was diagnosed with right-sided brachioplexus lesion which resulted in limited mobility on the upper right arm. Dr. Clarke a plastic surgeon at the Hospital for Sick Children saw him for the first time when he was almost 14 months. Dr. Clarke’s report noted the difficulty in scheduling appointment with the parents, having no information about the child’s mobility at an earlier age and that JO has global development delay. Dr. Clarke reported that all of these factors result in the inability to perform surgery for nerve reconstruction that is usually done when a child is under 1 years of age.

[120] JO was then seen at the neurology clinic by Dr. Alhadid at the Hospital for Sick Children. It was noted that despite given exercises by an occupational therapist and physiotherapist to be done at home, the parents reported no improvement.

[121] JO was seen again by Dr. Clarke in February 2018 who noted that the follow up was sparse due to multiple attempts to reach the parents. JO had last been seen in May 2017. The parents were again advised that JO was not a candidate for surgery. The parents were given a plan for stretching exercises and requested to ask the family doctor for a referral for developmental delay counselling and rehabilitative services with respect to his delays.

[122] No further reports were in the society’s files and the mother refused to execute a consent for the society to obtain further medical reports. The mother continued to state that JO’s limited functioning of his right arm will be corrected by surgery despite the family service worker explaining that based on the reports she has that is not the case. There is also no information that the mother followed through with the required daily exercises for JO.

[123] JO attended for a school readiness program through the Sick Kids Centre for Community Mental Health from April to June 2021. The program facilitator discussed concerns about JO’s gross and fine motor skills. The mother expressed no concerns about his skills. JO and DO were referred to one on one support services regarding their behaviour. The file closed shortly after as the mother expressed no further concerns regarding the children.

[124] The mother advised that she had met with the family doctor Dr. Mendez Tejeda [3] on March 1, 2021 who did not have any concerns about JO’s development and no referrals were made. The family service worker asked the mother to obtain a referral for physiotherapy services. The mother did arrange for private physiotherapy services through the father’s employment medical plan rather than ask Dr. Mendez Tejeda for a referral. The family service worker confirmed that JO was attending for 30 minute sessions since July 2021 and that the services were to improve the strength, range of motion and function of his right arm and that he had made good progress so far. No report was provided to confirm that this service was still continuing or if the physiotherapy was similar to the exercise recommended that the parents do at home in February 2017 and May 2018 that they reported did not help.

[125] The mother also told the family service worker that JO had an appointment at the neurology clinic at the Hospital for Sick Children although she could not explain why the appointment was necessary.

[126] The family service worker called the clinic and was able to determine that JO was being followed by neurologist Dr. Moharir, as a result of his expressive speech delay and motor delay. His annual appointment was scheduled to ensure that he was making gains. JO was also to be assessed by a developmental pediatrician in January 2020 but the appointment was cancelled. It was not clear who cancelled the appointment or why it was cancelled. JO was then referred by the hospital to Humber River Hospital. No evidence was provided that the mother had arranged for an appointment for him.

[127] JO was seen by Dr. Ramchatesingh, a developmental pediatrician, for a consultation on May 4, 2021. Dr. Ramchatesingh reported that the mother told her that JO had been attending online for junior kindergarten for the last year 2020/2021 and the teacher reported no concerns. In fact, he did not attend as the mother stated that junior kindergarten was optional. The mother also informed the doctor that JO was on a waitlist of surgery on his right arm and that he was supposed to have the surgery before he was 4 years old. This information is not accurate although repeated by the mother to several professionals.

[128] Although the mother reported that she asked her family doctor, Dr. Mendez Tejeda for a developmental assessment for all 3 children, Dr. Ramchatesingh reported that only JO had been referred due to concerns about his speech. She assessed that his expressive language was not clear and he was not receiving any therapy. She discussed Surrey Place services for JO and provided private resources for speech and language services.

[129] JO attended speech and language services at Speech Pathways from July to August 2021. JO’s senior kindergarten teacher confirmed that he was placed on a waitlist for speech and language services through the school and that a referral for occupational therapy will be considered.

[130] JO’s senior kindergarten report card indicated that he was experiencing difficulties with his fine motor skills and that he does not have strength in his right arm making it difficult for him to use his arm for everyday activities. His communication skills were not well developed and he is difficult to understand. He also missed quite a bit of school. Although some absences are related to him and his siblings feeling ill, taking him out of school because his sister had dental appointments or to buy winter clothes is not appropriate.

[131] It appears from the evidence presented that the mother does not understand JO’s needs as she persists on believing that he can still have surgery on his right arm. It is a serious concern that JO’s condition was not treated prior to him being 1 year old and that both parents have not followed through with early recommended exercises that could have assisted him.

5. Conclusion

[132] In many respects looking at this case in hindsight perhaps more intrusive measures should have ben taken several years ago as it is evident that the mother has been unable to meet the complex needs of the children.

[133] All these children have special needs that have not been addressed in a timely manner. Despite the assistance of the society and numerous health professionals their needs have not been properly addressed. If the children are left in the care of the mother, who appears to be overwhelmed with their care and the numerous services they require, their development will continue to lag behind their peers.

[134] The children all require thorough developmental, medical and psychoeducational assessments. Once their needs are clearly established, they need a plan for services to be overseen by a medical case manager. Normally this would be the family doctor. But in this case it may be preferable if a pediatrician or a new family doctor is arranged.

[135] Based on the delays observed by various medical specialists and the school, it is difficult to understand Dr. Mendez Tejeda’s position that the children’s needs are being met by the mother and that there are no concerns about their development. His opinion seems incongruent to the reports about the mother delaying in obtaining services, misunderstanding information, missing appointments and her lack of follow through with various services.

[136] The society will need to ensure that it obtains all relevant medical and other information instead of relying on information from the mother or based on consents that have restrictions. It is preferable for motions to be filed for third party records.

[137] I have considered that despite all the above noted historical concerns the society was still prepared until recently to leave the children in the care of the mother. It is understandable that the society would, in accordance with their statutory duty, attempt to assist the mother by providing services to her and leave the family unit intact.

[138] But on closer examination and based on further evidence it has become clear that the mother has still not resolved her own trauma and has no insight into her unhealthy relationship with the father. She has been unable to sever her relationship with him to the detriment of her children.

[139] As detailed previously, the mother has not met the many needs of her children despite the extensive services that have been provided to her. It is unclear if she lacks the cognitive ability to understand those needs or as a result of her own trauma, she is unable to also meet the needs of the children. this issue will need to be further explored.

[140] I have considered the best interests factors as set out in section 74(3) of the CYFSA. Although the children’s need for stability is an important factor, it cannot override the need for their physical, mental, emotional and educational needs being met. It cannot override the children’s right to live in an environment free from conflict and family violence.

[141] I find that it is in the best interests of the children that they be removed from the care of the mother. This will allow the mother an opportunity to receive and utilize the emotional and counselling support she needs and she may then be in a better position to meet the needs of her children. With some clear directions from the society regarding what services need to be in place for the children and what steps the mother needs to take, she may be able to better understand and meet the children’s needs in the future.

[142] The father supports the mother on this motion and did not advance an independent plan. Even if he had advanced such a plan it would not have been successful based on the evidence as to his lack of cooperation with the society and lack of any acknowledgement of his role in the present circumstances. He is currently receiving supervised access to the children and that should continue.

Order as follows:

1. The temporary motion of the Applicant Catholic Children’s Aid Society is granted.
2. The children JO born […], 2014, JA born […], 2016 and DO born […], 2018 will be placed in the temporary care and custody of the CCAS.
3. The Respondent mother and father shall have access in the discretion of the society. The mother will have access a minimum of twice a week with the location, duration and level of supervision, if any, to be in the discretion of the society.
4. The Applicant society shall immediately prepare this Order and submit it to the trial co-ordinator’s office to my attention.

Released: January 24, 2022

Justice Roselyn Zisman

[1] 2010 ONCJ 332; See also Children’s Aid Society of Toronto v. S.G. 2011 ONCJ 746 and Children's Aid Society of Toronto v. K.S. 2017 ONCJ 164

[2] 2020 ONCJ 388; also followed by Justice Sherr in Children's Aid Society v. C.B. 2021 ONCJ 49

[3] The family doctor is referred in various notes as either Dr. Mendez or Dr. Mendez Tejeda.