WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

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

where the court is of the opinion that publication of the report 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.

45.(8) Prohibition: 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.

45.(9) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

Court Information

Court File No.: Halton C441/09

Date: 2012-11-30

Ontario Court of Justice

Between:

The Children's Aid Society, Region of Halton

Applicant

— And —

T.A.G. (mother), A.D. (father of M.), J.P.P. (father of F.)

Respondents

Before: Justice Sheilagh O'Connell

Heard on: February 12, 22, April 10, 11, 12, June 25, 26, 27, 28, 29, August 13, 14 and September 19, 2012

Reasons for Judgment released on: November 30, 2012

Counsel:

• Diane Skrow for the applicant society
• Respondent Mother on her own behalf
• Respondent Father on his own behalf

O'CONNELL, J.:

1. INTRODUCTION

[1] The Children's Aid Society, Region of Halton ("the society") has brought a status review application seeking an order that the child, M. ("M." or "the child"), born […], 2008, be made a ward of the Crown, without access, for the purpose of adoption.

[2] The respondent parents, T.A.G. ("the mother") and A.D. ("the father") oppose the society's claim for a crown wardship order for M. They seek an order that M. be returned to their joint care, subject to supervision by the society for a period of six months.

[3] The Society commenced this status review application on February 22, 2011. The final order being reviewed under this application is the Order of the Honourable Justice R. Zisman, dated October 28, 2010. At that time, Justice Zisman found the child M. to be a child in need of protection pursuant to section 37(2)(g) Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the CFSA or "Act") and that M. be made a ward of the society with access to the parents in the society's discretion until March 18, 2011.

[4] The respondent J.P.P. did not participate in this status review hearing, except as a witness at the trial. He is the biological father of F., born […], 2002 ("F."), the half-sister of M., the child who is the subject of the status review. On August 15, 2011, following a summary judgment motion brought by the society, Justice Zisman made a final order placing F. in the care and custody of J.P.P. and his partner, subject to the supervision of the society for a period of twelve months. J.P.P. supports the society's claim for a crown wardship order for M.

[5] The parents chose to represent themselves at trial. Although represented by counsel during the child protection proceedings, they did not want counsel at trial. According to the father, they were not satisfied with the legal representation they had to date, and they were confident that they could put forth their position and evidence on their own behalf. Prior to the commencement of the trial, the parents were provided with a detailed trial guide for self-represented litigants in family law proceedings, prepared by the Ontario Court of Justice.

[6] At the time the final order of Justice Zisman was made, the child M. had been in the society's care for a period of thirteen months, following his apprehension from the respondent parents' care on September 18, 2009. At the time of the trial of this status review application, M. had been in the care of the society for a period of 38 months. He is now 4 years old.

2. THE ISSUES

[7] The main issues for me to decide are the following:

1. Does M. continue to be a child in need of protection?
2. What disposition order is in M.'s best interests?
3. If M. is made a Crown ward, what order for access, if any, should be made?

3. THE BACKGROUND AND PROCEDURAL HISTORY

[8] The mother and father of M. met on August 10, 2007. They married on August 28, 2007, eighteen days after they met. At the time of the marriage, the mother had a child of a previous relationship, namely F., who is her child with the respondent J.P.P. The father of M. is therefore F.'s step-father. The mother and the father began cohabiting immediately after their marriage. M. was born on […], 2008, approximately one year after the mother and father met. M. and F. are half-siblings. The mother and father, and both children, M. and F., all resided together after the parents married.

[9] On September 17, 2009, the mother, father, and maternal grandfather were residing together with the children, M. and F., at their home in Burlington, Ontario. The police were called by neighbours to respond to what appeared to be a violent family situation involving the children in the home. When the police arrived, they observed numerous injuries on F. She was taken to the hospital where she was examined by doctors who documented the following injuries:

(a) Bruising and swelling on the forehead;

(b) Bruising, swelling and discolouration on the crown;

(c) Bruising inside the ear, possible bleeding from the ear;

(d) Substantial bruising and swelling over the left eye;

(e) Bruising, swelling and laceration on left cheek;

(f) Extensive bruising on the shoulders;

(g) Older bruising on the spine and back;

(h) Bruising and marks on the upper arms;

(i) Bruising on inner arms and back of hands; and

(j) Laceration and cut on her thumb.

[10] Photographs of F.'s injuries were also taken at the hospital that night and entered as evidence in this trial. It is not disputed that the doctors who treated F. that night were of the opinion that the injuries were intentionally inflicted. F.'s injuries were characterized as both chronic and acute. The photographs taken that night of F.'s injuries depict serious injuries and are very disturbing to view. It is also not disputed that M. was present in the home when the police arrived that night.

[11] As a result, both children were apprehended from the care of the mother and father on September 18, 2009 and initially placed in foster care. At that time, F. was seven years old and M. was one year old.

[12] The mother and the father were criminally charged with the offences of assault causing bodily harm, assault with a weapon, and uttering a death threat. The charges against the father were ultimately withdrawn. The mother's terms of release originally included terms prohibiting her from having any contact directly or indirectly with both children, but these terms were varied so that she could have contact and visitation with M. only, (not F.) as arranged for and supervised by the society.

[13] On June 13, 2011, after a criminal trial before the Honourable Justice R. LeDressay, the mother was convicted of assault causing bodily harm and uttering a death threat against F. On September 13, 2011, the mother was sentenced to ten months in jail, followed by a period of probation for two years, with terms, including a term that she have no contact with F. indirectly or directly, except in accordance with a family court order. The mother appealed her conviction and sentence and was granted bail pending her appeal. Pending her sentencing on September 13, 2011, the mother was still bound by the terms of her recognizance of bail which prohibited her from having any contact, communication, directly or indirectly with F. F. has had no contact with her mother and step-father since she was apprehended in September of 2009.

[14] On July 4, 2012, the mother's appeal of the criminal conviction and sentence was dismissed by the Honourable Justice Herold of the Ontario Superior Court of Justice. The mother subsequently appealed to the Ontario Court of Appeal. However, before the completion of this child protection trial on September 19, 2012, the mother abandoned her further appeal of the criminal conviction and is prepared to serve the rest of her jail sentence. According to the mother and father, the mother expects to be released from incarceration on or about late November, early December, 2012.

[15] On April 1, 2010, after a contested temporary care and custody motion, both F. and M. continued to remain in the temporary care and custody of the society in the same foster home. The society was not prepared to consider any family or extended family caregivers for the children until both children were assessed by the Child Advocacy and Assessment Program ("CAAP") at McMaster University.

[16] On or about October 11, 2010, following the completion of the CAAP report, M. was moved to the kinship foster home of his paternal great aunt and great uncle, R.D. and F.D. F. remained in foster care. R.D. and F.D. are the father's aunt and uncle.

[17] On October 28, 2010, there was a child protection finding that F. was a child in need of protection pursuant to section 37(2)(a)(i) and 37(2)(f) of the Act in that F. suffered physical harm and emotional harm inflicted by the persons having charge of her or caused by those persons' failure to care for, provide for, supervise or protect her adequately. There was also a finding that M. was a child in need of protection pursuant to section 37(2)(g) of the Act, in that there is a risk that M. is likely to suffer emotional harm inflicted by the persons having charge of him or caused by those persons' failure to care for, provide for, supervise or protect him adequately.

[18] The protection findings were made with the consent of the society and F.'s biological father, J.P.P. The mother and father did not consent to the protection findings with respect to F. and M., but they did not oppose them or provide any evidence in opposition. As a result, the protection findings were made pursuant to the final order of Justice Zisman on October 28, 2010 on a summary judgment basis.

[19] In accordance with the recommendations of the CAAP report, the society undertook a parenting capacity assessment of F.'s biological father, J.P.P. The parenting capacity assessment was completed by Dr. Robert Seim on March 8, 2011. He recommended that F. be immediately placed in the care and custody of her biological father, J.P.P. and his partner, B.R., subject to the supervision of the society.

[20] On May 17, 2011, after a contested motion opposed by the mother and father, Justice Zisman placed F. in the temporary care and custody of her biological father J.P.P. and his partner.

[21] On August 15, 2011, following a summary judgment motion that was opposed by the mother and father, Justice Zisman made a final order placing F. in the care and custody of J.P.P., her biological father, and his partner, subject to the supervision of the society for twelve months. F. continues to live with her biological father and his partner. She has regular access with M. which is facilitated by her biological father, step-mother, and M.'s great aunt and great uncle.

[22] M. continues to live with his paternal great aunt and great uncle, F.D. and R.D. He has regular supervised access to his mother and father. Given that he has been residing with his great aunt and great uncle since mid-October 2010 in a kinship in care placement, their status is similar to foster parents. The society seeks an order that M. be made a crown ward so that he can be adopted by his paternal great aunt and great uncle, F.D. and R.D.

5. THE SOCIETY'S POSITION

[23] It is the society's position that there is a need for ongoing protection of M. and that no supervision order could adequately protect M. from his parents. The society submits that the parents physically and emotionally abused M.'s sister F. and that the very serious physical injuries sustained by her were intentionally inflicted by the mother and father. The society further submits that the parents caused serious emotional harm to M., as he witnessed his sister's chronic abuse.

[24] In the alternative, the society submits that even if the parents did not cause the injuries to F., they failed in their duty as parents to protect F. from significant physical and emotional harm and in their duty to protect M. from emotional harm.

[25] The society submits that given the parents' past parenting, their inability to acknowledge that M. experienced emotional harm while in their care, and to take responsibility for any harm caused to their children, M. would continue to suffer emotional harm in the care of the mother and father. The society also submits that there is evidence that M. would likely suffer physical harm while in the care of his parents as they physically and emotional abused F. or allowed someone else to abuse F. while she was under their care.

[26] The society submits that there is no less disruptive or intrusive measure available for M. that is capable of protecting him and is consistent with his best interests short of an order for crown wardship without access so that he can be adopted by his great aunt and great uncle, with whom he has lived since he was two years old.

6. THE PARENT'S POSITION

[27] The parents deny causing any of the injuries sustained by F. Initially, they submitted that F.'s injuries were self-inflicted as she had severe behavioural problems caused by witnessing domestic violence when the mother was living with F.'s biological father, J.P.P. They further submitted that some of the older injuries on her spine and back were caused by a car accident that had occurred in the summer of 2009. However, at trial, the parents changed their position and submitted that F.'s injuries at the time of the apprehension were caused by the mother's father, T.G., who was living with them and who was in a care-giving role for F on some occasions. In October of 2010, during these proceedings, T.G. died of cancer.

[28] The parents submit that T.G.'s health was declining, and that he was suffering from epileptic seizures and black-outs. They submit that he was the only person who was alone with F. for an extended period of time at the time of the apprehension and that he inflicted the injuries on F.

[29] The parents further submit that M. is no longer a child in need of protection because they will always ensure that he is cared for by them or by only appropriate caregivers. They submit that is in M.'s best interests to return to their care, where he will thrive and grow.

7. THE EVIDENCE AT TRIAL

[30] The court heard twelve days of evidence from twenty witnesses, including the parents. In addition, the court saw the videotaped police interviews of the parents that were conducted on September 17th and 18th, 2009. These videotaped interviews were played in their entirety and entered as evidence at trial.

7.1 The mother's background and parenting history

[31] The mother is 27 years old. She was born and raised in Ontario. The mother described her childhood as "fairly typical except for a few factors". Her parents separated when she was approximately four years old and she stayed with her mother. Her mother became involved with her step-father shortly afterwards, with whom she is very close. The mother did not see a lot of her biological father growing up because of his epilepsy and seizures. According to the mother, when she did see her father on rare occasions, he would have black-outs and her mother and step-father would retrieve her from his home because she was at risk of being injured.

[32] The mother testified that on one occasion, she witnessed her father grab her brother and pin him up against the wall and choke him during an epileptic seizure. The mother also recalled that on a number of occasions when she was a child she would wait outside for up to six hours when her father was supposed to pick her up for a visit and he would never show up.

[33] The mother testified that she has one brother who is seven years older than her but she was not close to him because "he used to hurt [her] a lot." The mother and maternal grandmother described her being abused and injured by her brother. On one occasion, the mother woke up in the morning to find her stuffed animal sitting on the kitchen table with a steak knife through it. According to the maternal grandmother, she moved the brother to his father's home when he was approximately nine or ten years old because of his abusive behaviour, although he would still visit. There has been no contact between the mother and her brother since he was an adolescent and she has not seen him for many years, except briefly at her father's funeral in October of 2010. He has a daughter whom she has never met.

[34] When the mother was 11 years old, she described being very ill and hospitalized for a significant period of time. The mother was unable to describe the illness except to say that "all of her organs shut down" and she almost died.

[35] The mother met and became involved with F.'s father when she was 14 years old. He was six years older than her. The mother dropped out of high school after she became involved with J.P.P. and she became pregnant with F. when she was 16 years old. The mother and J.P.P. were in a relationship for eight years. They separated in June of 2007, when F. was five years old.

[36] The mother described a very violent and abusive relationship with J.P.P. and a great deal of evidence in this trial from both parents concerned the violence of J.P.P. towards the mother. The society did not object and I permitted this evidence because the parents said it was relevant to F.'s behavioural problems, the reason for the society's involvement with them initially, and their position that the society is not acting in F.'s best interests by supporting her placement with a violent and abusive man. The parents argued that this undermined the reliability of the society's position in this trial that it is in M.'s best interests to be removed from their care. The society was also of the view that this evidence was relevant to the mother's parenting in this trial.

[37] The mother described first being assaulted by J.P.P. when she was 14 years old, prior to F.'s birth. On this occasion, she was staying with J.P.P. at his home and she called her mother for help. Her mother and step-father both gave evidence in this trial that they arrived and J.P.P.'s home and tried to intervene. They witnessed J.P.P. brandishing a knife and assaulting the mother. J.P.P. was convicted of assaulting the mother and uttering threats. Despite being convicted of assaulting and threatening her in 2000, the mother reconciled with J.P.P. after this incident and remained with him until 2007. Throughout this period, the mother was a full-time homemaker and F.'s primary caregiver.

[38] After reconciling with J.P.P., the mother described in detail a very abusive relationship with J.P.P. She described being assaulted by him on numerous occasions, at least two times each week, and that he also threatened to kill her and to kill F. The mother testified that many of these assaults occurred in F.'s presence. On one occasion in August of 2005, the mother's elbow was broken as a result of an assault by J.P.P. The mother testified that she did not report any of these incidents to the police because J.P.P. had threatened to kill her and F. if she did.

[39] When the mother was 17 years old, and F. was approximately four weeks old, F. was apprehended from her care by the Hamilton Children's Aid Society. The mother testified that the children's aid society became involved because of an incident involving the police at J.P.P.'s father's home, where they were living. The mother testified that J.P.P. assaulted his sister and the police questioned her about it. The mother returned to live with her mother in Hamilton as a result of that incident. F. was apprehended the next morning because, according to the mother, they were feeding her apple juice, Tylenol and gravol.

[40] According to the evidence of Anna Maria Lancia, a child protection worker, the mother and J.P.P. had ongoing involvement with the Hamilton society even prior to F.'s birth due to concerns regarding the parents' limited parenting skills, domestic violence and the mother's mood swings and depression. On August 27, 2002, F. was apprehended from her parents' care as a result of these concerns. On November 1, 2002, three months later, F. was returned to the mother's care, who at that time was living with her mother, F.'s grandmother, subject to a six month supervision order.

[41] The mother testified that she resumed cohabitation with J.P.P. after F. was returned to her. She testified that J.P.P. moved into her mother's home without their consent. The mother eventually moved to a small, remote community outside of Hamilton with J.P.P., where she, J.P.P., and F. all lived in a trailer. J.P.P. worked during the day and the mother was the primary caregiver of F.

[42] The mother went on to describe many more incidents of abuse and violence by J.P.P., witnessed by F., until the mother finally separated from him at the end of June, early July 2007. The mother testified that she did not leave J.P.P. for so many years or go to the police because he told her that she would be dead if she tried to leave. The mother testified that she finally left because "she always made sure [F.] was protected." She testified that if she got killed for leaving, at least F. would know that it was because she "stood up to an abuser".

[43] After the mother left J.P.P., she and F. returned to live with her mother in Hamilton for a short period of time. On or about July 31, 2007, according to the evidence of Anna Maria Lancia, the Hamilton Children's Aid Society received a report about a domestic dispute between the mother and the maternal grandmother and that there were some concerns about the mother's mental health. Upon investigation, these concerns were not verified. However, shortly afterwards, the mother and F. went to live with her father, with whom she had now become close, although the accommodations was too small. The mother then placed F. in the care of J.P.P.'s mother, F.'s paternal grandmother, until the mother was able to find appropriate accommodation.

[44] It was during that period that the mother and father met for the first time, on August 10, 2007, at a pool hall, through the mother's step-father. They married on August 28, 2007, eighteen days after they met, and less than two months after the mother had separated from J.P.P. After their marriage, the parents and F. lived for approximately two weeks with the father's mother until October 1, 2007, when they were able to secure a three bedroom apartment with the maternal grandfather in Burlington Ontario.

[45] In September of 2007, J.P.P. brought an application for custody of F. After being served with the custody application, the mother, with the assistance of the father, reported J.P.P.'s abusive behaviour to the police, resulting in J.P.P. being charged with 12 criminal offences for incidents that occurred between October 2004 to March of 2007. J.P.P. pled guilty and was convicted of assault bodily harm and uttering threats to cause death or bodily harm, for the incident in August of 2005 which resulted in the mother's fractured elbow. All other charges were withdrawn. The custody application was resolved in accordance with the recommendations of the Office of the Children's Lawyer, which recommended sole custody of F. to the mother and supervised access to J.P.P.

[46] J.P.P. was a witness in this trial. He was summoned by the parents. Although the respondent father conducted almost all of the questioning of the witnesses in this trial, the mother conducted the examination of J.P.P. I granted some leeway in this questioning and permitted the mother to ask leading questions. J.P.P. gave evidence regarding the events that took place while he and the mother were together and parenting F. as a young child. J.P.P. admitted to his assaultive conduct in 2000 and to pushing the mother to the ground in August of 2005, resulting in her broken elbow, and which led to him pleading guilty to assault causing bodily harm. However, he also testified that the conflict and violence between he and the mother was a 'two way street" and that the mother would become violent with him as well, including assaulting him on occasion. He further testified that the mother abused prescription medication (Percocet) and smoked marijuana on a daily basis when caring for F. He also admitted to smoking marijuana while caring for F. He testified that the mother would have "mood swings" all the time and that she would get very angry and "fly off the handle" repeatedly.

[47] The mother testified that she has not taken any trauma therapy or counselling for the violence that she experienced during her relationship with J.P.P., or for the difficult events of her childhood and adolescence. She testified that she started going to 'Urban Core', a community health centre in Hamilton, Ontario but then stopped after two sessions because she had to "re-live everything" and she could not sleep.

7.2 The father's background and parenting history

[48] The father is 29 years old. M. is his only biological child. After he left high school, the father joined the army and according to his testimony, he became a detachment commander at the age of 21. In 2004, he was tasked to do communication security for the prime minister in Istanbul. The father then got into trouble with the law and was relieved from the military. After leaving the military, he worked at an oil refinery until 2006, when he was injured while working. The father then entered into a job retraining program through WSIB and after upgrading, he is currently studying architectural technology.

[49] The father described growing up in an intact family and that he had everything he needed. He recalled the children's aid society being involved with his family on only one occasion when as an adolescent, he was involved in a fight with his sister. The police also became involved and the father entered into a peace bond.

[50] The father has had other involvement with the criminal justice system before these proceedings. In 2004, he was charged with criminal harassment, forcible entry, making explosive substances, mischief to an automobile and arson. The father pleaded guilty to forcible entry, criminal harassment and mischief and was sentenced to 93 days of presentence custody and one year probation. These were the convictions that led to his discharge from the military.

[51] The father testified that his former girlfriend had broken up with him but was giving him "mixed signals". On or about August 2004, he entered her apartment and hid in her closet and when she returned home at approximately 2:45 a.m., he stepped out of the closet with a knife in his hand and insisted that she talk to him about their relationship. He was then locked out of the apartment, only to return to cut the chain-lock off the door so that he could re-enter. He also engaged in a campaign of harassment over a two month period, including damaging the ex-girlfriend's car by spray painting the word "whore" on it, as well as images of male genitalia. When he was eventually arrested by the police, he was found to be in possession of a homemade incendiary device which he admitted to manufacturing.

[52] The father underwent anger management as a term of his probation for the above offences. The father testified that he learned a lot from the anger management counselling and that it really "opened [his] eyes" because at the time, it did not seem to him that he was doing anything wrong. He testified that that taking the anger management course made him a different person.

[53] The father testified that when the parents met in August of 2007, the mother told him that F. was "her world." They were "madly in love" and married on the "spur of the moment" eighteen days after they met. F. was not at the wedding, although the father testified that they called her ten minutes after they were married. The father testified that when they all started living together as a family, approximately one month later, F. almost immediately started to call him "Daddy." The father testified that he had no parenting experience other than babysitting his nieces and nephews.

[54] Both parents testified that they did everything for F. and prior to the birth of M., they were a very happy family. The mother testified that F. "got very spoiled before M. came along, very spoiled." Both parents testified that after M.'s birth the following year on […], 2008, F. had some difficulty adjusting and she would engage in self-harming behaviour such as head banging. Both parents testified that they would "include F." as much as possible and the mother testified that they "tried to make her feel very much a part" of the family.

[55] Both parents testified that they all continued to be very happy and denied any domestic violence between them. The mother testified that in the summer of 2009, the maternal grandfather's health started to decline and that he would experience epileptic seizures and black-outs. Both parents describe an incident in July of 2009 when the grandfather suffered a black-out in the apartment and grabbed F., thinking she was someone else. The mother got him to let go of F. and the police and paramedics were called.

7.3 Events leading up to the apprehension

[56] Once the family moved to Burlington, the file was transferred to the Halton Children's Aid Society and Ms Anna Maria Lancia was assigned to work with the family on a voluntary basis between October 2007 and the summer of 2009. According to her evidence, the child protection issues identified were the previous domestic violence between the mother and J.P.P. and the mother's limited care giving skills. Ms Lancia gave evidence that the parents appeared cooperative with her during that time and no new child protection concerns were reported to the Society until April of 2009.

[57] On April 4, 2009, the society's after hours department received a report from the Halton Regional Police Service about possible child abuse in the home, as reported to the police by the maternal grandmother, D.K. According to the maternal grandmother:

a. the maternal grandfather had brought F. to her residence because he did not like how F. was treated at the parents' residence;

b. the maternal grandfather stated that the previous night F. was not allowed to leave the table and go to bed until she ate her supper. He first saw F. at 10:30 p.m. sitting at the table, then again at 12:30 a.m., when he noticed vomit on the plate. He took the plate and threw it away and took F. to her bed; and

c. the whole family had gone shopping in Burlington and she (maternal grandmother) had noticed a "goose egg" on M. When she asked the mother what happened, T. said that M. had banged his chin with head. She did not believe the mother.

[58] According to the evidence of Ms Lancia, the police did not observe any sign of injury on F. and there was some suggestion that F. was being coached by the grandmother when F. disclosed that she had been punched by the father. During the police involvement, the father had arrived to pick up F. from the maternal grandmother's home because the mother had called the police to report a child abduction.

[59] An after-hours society worker met the parents at their home in Burlington to investigate the allegation of physical abuse. The allegation was not verified, as the explanation provided by F. with respect to being "punched" was not further elaborated by her. The parents denied that they used physical discipline and that F. was forced to eat her own vomit. The maternal grandfather noted that the child had thrown up on the place mat and had continued to eat her food. The maternal grandfather stated to the worker that F. had been sitting at the dinner table for three hours. F. also confirmed that she ate her own vomit.

[60] The parents said that they had ongoing issues with getting F. to eat, that her weight was an issue, and that they told her that she could not leave the table until she finished her food. The parents said that F. made herself sick. The society worker strongly cautioned them against the use of physical discipline and having the child sit at the table for such long periods of time and eating her own vomit. The worker also advised the family that there was concern about the mark on M.'s forehead, as the explanation provided did not seem plausible.

[61] On April 6, 2009, Ms Lancia contacted the father to follow up with the investigation. The father advised Ms Lancia that M.'s bump was a "flare up/rash." The father advised her that he or the mother would be attending the doctor's office with M. Ms Lancia scheduled a follow up meeting with the family on April 9, 2009.

[62] On April 9, 2009, Ms Lancia met with T., T.G. and the maternal grandfather, at which time they advised Ms Lancia the following:

a. They initially believed that M.'s bump was caused by him bumping his head against the mother's chin, however, the bump was blistering;

b. M. was seen by the family doctor on April 7, 2009 and he diagnosed it as an infection and prescribed medication. The father provided a note from the doctor.

c. On the weekend there was a mix up with F.'s visit with the maternal grandmother. According to the mother, she and the maternal grandmother had a fight and, as a result, the mother cancelled the visit. The mother then told the maternal grandfather to bring F. anyway, and he did;

d. The father called the maternal grandmother and asked that F. come home, at which time the maternal grandmother "freaked out" and called the police;

e. The mother believed that the maternal grandmother influenced F., and F. believed that if, "I say what Nana says, I can stay with her";

f. The parents denied that F. was forced to eat her own vomit;

g. They had problems with F. eating, and F. has vomited at time; and

h. The maternal grandfather verified the version of events as explained by the parents.

[63] Ms. Lancia subsequently met with F. at her school, at which time she denied eating her own vomit, and stated that she was unsure how long she sat at the table at dinner time. F. did not report any concerns of physical abuse to her.

[64] On May 26, 2009, the Society received a further report of child protection concerns from F.'s teacher and school principal, who reported that F. wrote a story with the title, "Save my Mommy". F. then wrote, "I save mommy when my daddy's fighting with my mommy and my mommy's arm was cut." When the teacher questioned when this occurred, F. stated that it occurred about a month ago. The teacher was also concerned with F.'s behaviours over the past month, and indicated that the parents give a lot of attention to M.

[65] Ms Lancia attempted to investigate the reported child protection concerns and attended F.'s school on May 29, 2009 and June 2, 2009 to meet with and interview her. She was advised by the school secretary that F. was away from school as she had pink eye.

[66] On June 2, 2009, Ms Lancia attended at the family's apartment unannounced to meet with the mother and to interview F. The mother answered the door and advised her that F. was not there and that she was staying with the maternal grandmother in Hamilton due to being ill with pink eye so that M. did not catch pink eye.

[67] Ms Lancia advised the mother of the concerns that were reported by the school staff. According to Ms Lancia, the mother appeared relieved and stated that she had been trying for a long time to speak to F. about the domestic violence that she had witnessed between her and F.'s father, J.P.P., but F. had been unresponsive. The mother testified that she was happy that F. was finally disclosing the abuse and recalls advising Ms Lancia that F. witnessed numerous incidents of physical and emotional abuse by J.P.P. Ms Lancia advised the mother that F.'s teacher had seen a difference in her behaviour at school, which may also be a symptom of witnessing violence.

[68] It is Ms Lancia's evidence that she provided referrals to Burlington Counselling and Family Service and/or the ROCK's (Reach Out Centre for Kids) trauma program for F. to address the violence that she had witnessed between her mother and J.P.P. The parents deny receiving the referrals to both agencies and testify that they received the referral to ROCK only. The father testified that the mother attempted to follow up with ROCK but that when she called, there was recorded message that stated that ROCK was not doing intake.

[69] On June 3, 2009, the father delivered a letter from the family doctor to Ms Lancia, which stated that F. had been seen on June 2, 2009 and was unable to attend school from May 28, 2009 until June 2, 2009, due to pink eye.

[70] On August 13, 2009, Ms Lancia and the father spoke in the telephone. The father advised her that F. had been hit by a car a couple of weeks before. She was taken to the hospital by ambulance but released as the injuries were minor. F. was doing well, but as a result of the car accident, F. did not attend camp. Ms Lancia arranged a further home visit with the father for August 20, 2009.

[71] On August 19, 2009, Ms Lancia received a telephone call from the father who requested that the following day's home visit be re-scheduled. He advised Ms Lancia that F. was at the maternal grandmother's house until the end of the month. As a result, the home visit was re-scheduled for September 1, 2009, at 11:00 a.m.

[72] On September 1, 2009, Ms Lancia attended at the family residence. She met with the father and F. as the father advised that the mother had the flu and M. was sleeping. She spoke briefly to the father and to F. in the father's presence. She did not identify any child protection concerns at that time and requested that the mother call to reschedule.

[73] On September 3, 2009, the maternal grandmother contacted Ms Lancia to report further child protection concerns. She advised Ms Lancia the following:

a. The maternal grandfather told her that the night before he had arrived at the apartment at 12:30 a.m., and found F. out on the apartment balcony, and that F. was there as a form of discipline. The maternal grandfather reportedly got mad and took F. off the balcony.

b. F. is scared of her step-father;

c. The parents withheld access between her and F. to punish F.;

d. She had not seen F. in three weeks, missed her terribly, and wanted F. to live with her;

e. F. had had unexplained bruising in the past, which she believed was caused by the step-father, but she had not been able to see F. in three weeks;

f. T.G. would tear up F.'s bed and make her re-do it;

g. The mother had pinched F. as a form of discipline, which may have caused a mark, but she was unsure;

h. F. has had to scoop up dog poop, as a form of discipline;

i. F. is terrified to speak to anyone;

j. F. wants to live with her;

k. The mother is controlled by the father, and he is abusive;

l. The father was on a rampage (made a mess and threatened everyone) about one month prior. The mother, the maternal grandfather, and the children went to the neighbour's house for safety. They then come to her home and told her what had happened. The mother then went back to the father; and

m. The maternal grandfather has not contacted the Society with concerns, as he is scared of the father.

[74] On September 9, 2009, Ms Lancia met with F. privately at school regarding the concerns raised by the grandmother. F. denied being physically disciplined by the parents but confirmed that her parents yelled at her and had sent her to the balcony as a form of discipline. Ms Lancia observed F.'s face and arms. She observed a small round scar (smaller than a dime) on the inner part of her lower right arm. She further observed a red/pink scratch on her right side of her face (by her eye and cheek). F. explained that she had hurt herself on the equipment at the park and that her brother had recently scratched her. F. denied being scared at home.

[75] On September 9, 2009, the society received a subsequent referral from Halton Regional Police Service, who reported that the maternal grandmother had contacted them again regarding the child protection concerns raised above. On September 16, 2009, the society received a further report from F.'s teacher, who advised the intake worker that F. had red marks on her neck and that the maternal grandfather told the school that the parents "were mean" to F., although he would not provide details.

[76] On September 16, 2009, society worker Cyndy McMillan met with F. in private at school. When questioned about the red marks, F. responded that they had been caused by her baby brother pulling her hair and scratching her with his nails. F. did not report any incidents of physical discipline and did not report being fearful of anyone in the home.

[77] Ms Lancia testified that during her voluntary involvement with the parents, they appeared to be cooperative, F. did not disclose any abuse, and she did not appear unhappy. The behavioural problems that the school observed were explained by the mother to be a result of the domestic violence in her previous relationship which F. had witnessed.

7.4 The Apprehension

[78] On September 17, 2009, the society's after hours emergency department received a further call from Halton Region Police Services. As a result of an incident that occurred in the parents' home that evening, F. was taken to the hospital with serious injuries. The mother was subsequently charged with assault, assault causing bodily harm and assault with a weapon. On September 18, 2009, society workers attended the parents' home at approximately 3:00 A.M. and apprehended both children.

[79] The parents testified at trial that on the day of the apprehension, the mother and M. slept in late because M. had been up most of the night teething and the mother had a broken hand from F. closing the car door on it. The father got up to get F. ready for school and found her sobbing in her bedroom with her glasses broken on the floor. According to the father, F. said that she had fallen asleep with her glasses on and then had fallen out of bed. The father decided to keep F. home from school that day. He then went to the school to speak to F.'s teacher about her homework. He returned home with 'timbits' for F. The father testified that at this time, he noticed that F.'s face was swelling. He then left again to go to the pharmacy to pick up some witch hazel and medication for F.'s swelling. When he returned home, he noticed that the grandfather was slurring his words and had not taken his medication, however, he did not tell the mother this information.

[80] The father testified that he then took F. for a drive to try to speak to her about what happened to her face and to try to get her to open up to him. The father testified that he did not believe what F. said about falling out of bed. He believed that F. was harming herself.

[81] The father then returned home and F. went to her room where she appeared to be sleeping. The father testified that he then went to his college between 1:00 to 1:30 p.m. and did not return home that evening until approximately 6:30 p.m. with Kentucky Fried Chicken for dinner.

[82] The mother confirmed this sequence of events in her testimony. She testified that after the father returned home with F., F. went to her room and appeared to be sleeping. The mother testified that she had to take M. to a doctor's appointment so she left with M. shortly before 2:00 p.m. and did not return home until approximately 6:00 to 6:30 p.m. The mother testified that she left F. in the care of the grandfather during that period of time.

[83] Both parents testified that the mother, father, and M. ate dinner in the living room that evening. F. ate her dinner in the kitchen at her request. The grandfather stayed in his room. After dinner, the father went to rest in the bedroom as he was not feeling well. The mother remained in the living room with M. The mother testified that she then heard a plate crash in the kitchen so she picked up M. from his high chair and ran into the kitchen. The mother called out to the father for assistance. Both testified that they saw the broken plate in the kitchen and at this point, for the first time, they noticed the injuries on F.'s face and asked her 'what the hell happened'.

[84] The mother testified that she was trying to remove the broken glass from F.'s hand and that F. was screaming "No Mommy, it hurts." The father then attempted to put both vinegar and peroxide on the wound and then took F. to the bathroom and placed her in the bath tub with the water running. The parents testified that at this point, the grandfather came out of his bedroom to find out what had happened and started yelling and swearing at the dog. The father testified that he then left the grandfather to watch F. in the bath tub while he returned to the kitchen to clean up the blood and broken glass. It was at that point that the police arrived. F. was then driven to the hospital by the father, with the police following. The mother was arrested and charged later that night and both children were apprehended.

[85] Both parents emphatically denied causing any of the injuries to F. during their testimony. The mother testified that she was not capable of causing the injuries to F. because of her broken hand. She testified that she was not wearing her (removable) cast earlier that evening because she had taken it off when she was resting. She further testified the father assisted her in putting the cast back on after her hand and arm started to hurt again and shortly before the police arrived.

[86] The father also testified that he was not capable of causing the injuries to F. because of an old work related injury to his arm. Both parents testified that it had to have been the paternal grandfather as he was left alone with F. for the entire afternoon while the father was at school and the mother took M. to the doctor.

[87] The mother testified that she believed her father had battered F. because he was the only one that showed violent tendencies and had black outs as result of his epilepsy. She testified that although she did not like to say it, she believed her father caused all of the injuries to F. during a black-out and that he did not know what he was doing at the time.

[88] Although both parents initially believed that F. was harming herself, which is what they told the police at the time of the apprehension, they now accept the conclusions of the medical experts that it was impossible for the injuries to be self-inflicted, which is why they now believe the perpetrator was the maternal grandfather.

[89] In cross-examination, the parents were asked about their initial statements to the police on the night of the apprehension, which were videotaped by the police. The father acknowledged in his evidence that when he was first interviewed by the police, he was very clear that F. had caused the injuries to herself and asked the police to "get [F.] help". The mother did not acknowledge in cross-examination that she blamed the father during her statement to the police.

[90] Ms Lancia had observed both of the videotaped interviews and had taken notes of the parents' statements. Both parents challenged Ms Lancia's interpretation and recording of the parents statements to the police. The mother testified that she did not recall making many of the statements Ms Lancia recorded or that the statements did not make any sense. The father also questioned the accuracy of Ms Lancia's notes. As such, the society introduced the videotaped statements in reply and they were played in their entirety during the trial.

[91] In the mother's videotaped statement she states that she "did not do it" and asks "why are you picking on me?" She also states, "If it was anyone, it was my husband. I've seen him grab her, heard crying and screaming...it had to be him because it wasn't me." The mother later states, "I hate saying this. It hurts to say this, but I hope it wasn't [my husband]. I would feel real bad that I brought him in and he hurt my daughter." The mother went on to say that things had been "different" between the father and her ever since M. born. The mother further told the police that her father could not have hurt F. because he was "frail" and had a broken collar bone. Neither parent mentioned anything about the grandfather suffering from seizures or black outs in their statements to the police or that he was the perpetrator. In the father's videotaped statement, he repeatedly asked the police to "get [F.] help" for her self-harming behaviour.

[92] Both parents also made the following statements to the police immediately after the apprehension:

1. The father told the police that he had skipped school that day and instead took F. for a 3.5 hour car ride in the afternoon;

2. The mother told the police that F. was with the father all day while she and her father (the grandfather) took M. to the doctor. The mother described in detail the various things that she, her father and M. did that day while they were out together all afternoon;

3. The mother told police that F. was already out of the apartment in the hallway with the father when she and M. got out of bed that morning so she never saw F. in the morning or during the day.

7.5 The Evidence of the Maternal Grandmother

[93] The maternal grandmother was called by the parents as a witness at trial. It is not disputed that the grandmother played an active care-giving role in F.'s life when F. was younger, as the mother, J.P.P. and F. had lived with the grandmother for periods of time before August of 2007. The grandmother corroborated the mother's description of the domestic violence that she experienced during her relationship with J.P.P. She further corroborated that F. witnessed a significant amount of domestic violence while the mother was cohabiting with J.P.P.

[94] The grandmother also confirmed that in 2009, she had contacted both the police and the society on a number of occasions to report child protection concerns regarding F. prior to the apprehension. She recalled the reports to the police and the society that she made in April and September 2009. She recalled the grandfather reporting concerns to her about what was happening to F. in the parents' home. She further testified that she recalls asking F. directly about these concerns, when she would come to stay with her for a weekend visit.

[95] However, in her evidence at trial, the grandmother stated that at the time she made these reports she was on a lot of different medication, including pain medication for a broken back and a deteriorated disc. She testified that she was very confused, drowsy, and incoherent during this period so she had difficulty understanding what was really going on and whether she should believe the grandfather or not. She testified at trial that the grandfather had a tendency to over-exaggerate. She stated that she now did not believe that the parents inflicted any harm on F.

[96] The grandmother also attempted to corroborate the parents' testimony that the grandfather was suffering from black outs and epileptic seizures during this period and he too was confused about what was happening and what he was telling her. The grandmother attempted to suggest in her direct examination that it was very likely the grandfather who caused these injuries to F.

[97] When asked in direct examination if she had even seen the grandfather hurt F., she responded that she had never seen the grandfather harm F. When pressed by the parents, the grandmother testified that the grandfather "would never deliberately hurt anybody. He was a good man. As long as he took his medication and ate properly, he was a good man." When pressed again, the grandmother did however then go on to describe the incident in July of 2009, when the grandfather had a black-out or seizure and had apparently grabbed F., causing them to call the paramedics and the police. Her description of this incident accords with the parents' description, although the grandmother was not present and did not see this happen.

[98] In cross-examination, the grandmother agreed that the grandfather loved F. "with all of his heart" and that F. loved him "so much". She testified that F. was "his life". The grandmother was also asked about two further conversations that she had with Ms Lancia after the children were apprehended. These conversations took place on September 21, 2009, and September 25, 2009, according to the evidence of Ms Lancia and her case notes of these conversations, which were filed as exhibits at trial.

[99] The grandmother testified that she did not recall the details of these conversations in which she relayed her belief to Ms Lancia that F. had been abused by her daughter and her son-in-law. She further did not recall relaying her concerns that F. may have been sexually abused by her son-in-law, based on some of the statements that F. made to her during a weekend visit and her observations of F., while giving her a bath. The grandmother further reiterated that during that time she was on a lot of medication and very confused.

[100] The grandmother was also questioned about an affidavit that she swore on May 4, 2011 in these proceedings. In the affidavit she deposes that during the period her daughter and son-in-law lived with the grandfather, they physically abused F. and that she was told by the grandfather on a number of occasions that when he attempted to intervene, he would be abused as well. She further deposed that on occasion, F. would spend extended time periods with her and that she would refuse to allow F. to go home. Again, the grandmother testified that she was withdrawing from her medication during that time, was confused, did not understand what she was signing, and that the grandfather "did everything in his power to convince me that everything he was telling me was true."

[101] The grandmother also testified in cross-examination that she has never believed that F. harmed herself. She admitted that she could not say with certainty who did harm her. When asked why she told Dr. Seim, the parenting capacity assessor for F.'s biological father, that she had anger and remorse against the parents and in particular, why she "was most explicit in her condemnation of [the respondent mother and father] in a parenting role", the grandmother admitted that at the time she was angry and upset because, "a parent is supposed to protect their child" and in her eyes, they did not.

7.8 The Evidence of Other Family Members

[102] The parents also called the mother's step-father, the father's mother, grandmother, and two aunts. All of these witnesses consistently testified that the parents' relationship with the children was good and that the children were well cared for in the parents' care. They did not have any concerns for the children while in the parents' care or regarding the parent's relationship with each other.

[103] The father's two aunts testified that they saw the respondents and the children on special occasions only, approximately five or six times each year, and usually at another family member's home for a limited period of time. The grandmother testified that she too saw the family on special occasions, although when the parents first met, they lived with her for two weeks before they moved into the apartment with the maternal, grandmother, prior to M.'s birth. She then testified that she saw them approximately once every two weeks when they visited her.

[104] The father's mother testified that she saw the children approximately once every two weeks, sometimes once a week, usually for dinner at her home with other family members. The father's mother testified that on these occasions, F. was always by her mother's side and that M. would cry for his mother if she left the room. She did not have any concerns about their parenting and she testified that M. should never have been taken away from her son, although she admitted that she had not visited them at their apartment during the summer before the children were apprehended. All of these witnesses testified about the importance of children being with their biological parents.

7.9 The Criminal Proceedings

[105] The transcript of the Reasons for Judgment of the Honourable Justice R.J. LeDressay dated June 13, 2011 with respect to the mother's convictions for assault causing bodily harm and uttering a death threat was entered as an exhibit in these proceedings.

[106] The criminal trial was heard over a four day period in February and May of 2011. The child F. did not testify as the Crown tendered expert evidence that compelling the child to testify would cause her significant emotional harm. As I understand, the charges against the father were withdrawn because F. could not testify. Neither parent testified at the criminal trial, nor did the paternal grandfather, who had passed away in October of 2010.

[107] The Crown called seven witnesses. There were two civilian witnesses who lived in the same apartment building in an apartment next to the respondent parents and the children. The three police officers who responded the night of September 17, 2009 were all called as witnesses, as well as the patrol sergeant who attended the hospital that night and arranged for photos to be taken of F.'s injuries. Finally, the Crown called Dr. Mack, a specialist in acute care paediatrics, who examined F. that night and testified regarding the nature and extent of her injuries. The mother called no evidence at the criminal trial.

[108] The two civilian witnesses for the Crown testified that on the evening of September 17, 2009, they could hear a lot of yelling in the apartment next door, and in particular, a loud angry female voice yelling at a child about dishes and making a mess. Both witnesses testified that the yelling was from a female voice. Both witnesses testified that they could hear a little girl's voice say, "No mommy, no, please, mommy, please."

[109] One of the civilian witnesses testified the following:

"[... they were yelling – the mother was yelling about, little girl had dropped her plate of food and broken the plate, I imagine. She was yelling about how she had broken the plate of food and she had cut herself on the glass. She was yelling at her about bleeding, screaming at her "You're bleeding, get over here. Hold your hand over the bowl." I guess there was a bowl that she was bleeding into, I'm not sure. I could hear them hitting, her hitting her. I could hear the little girl was saying "Ouch, please mommy no." At a certain point I remember her saying that, that she would stab her. She was going to stab her in her sleep. Things that her husband said, you know, "What's the problem, you know, you're already involved with CAS." She said, "I don't care. You don't know what point I'm at. I'm going to save the world from her", and it just continued. Things like that, I could hear hitting, I heard – it wasn't just hitting with the hand, it was almost like a, like a toy bat, like a children's – something hollow and just continuing hearing the little girl saying , "Please mommy, no." She said she was going to call the police to come and take her and the little girl said, "No, please mommy, no" and just went on like that until John arrived with the police."

[110] This witness testified that the little girl sounded terrified and that the adult female voice said "I'm calling the police to come and get you" and that the little girl said "No, mommy no." She further testified that the adult female voice told the little girl that she was going to "slice her throat" and she was going to "choke on her own tongue" and that she also heard the female say, "I hate you [F.], I've never hated someone so much in my life."

[111] Justice LeDressay found the civilian witnesses to be independent witnesses who had no stake whatsoever in the outcome of the criminal case and that there was no evidence that the witnesses had any motive to tailor or embellish their evidence in any manner. As Justice LeDressay stated in his Reasons for Judgment, "the evidence clearly establishes that these witnesses only became involved because of the confluence of circumstances and their perceived necessity to follow their conscience."

[112] The police witnesses who attended also heard an adult female voice yelling as they approached the door of the apartment and they observed numerous injuries on F. when they entered the apartment. The child M. was also present in the apartment. Dr. Mack examined F. at the hospital and testified that F.'s injuries were extensive, both chronic and acute, and not accidental, but in fact intentional injuries.

[113] After carefully reviewing all of the evidence Justice LeDressay found on the totality of the evidence that the mother assaulted F. that evening and that the acute injuries amount to bodily harm. He further found that the evidence regarding the threatening was "clear, cogent, and uncontradicted" and found the mother guilty of that offence as well.

7.10 The CAAP Assessment

[114] Two team members from the Child Advocacy and Assessment Program of McMaster Children's Hospital (CAAP) gave evidence and their reports were tendered as exhibits at trial. Dr. Elizabeth Canisius is a consulting paediatrician with the CAAP team and she conducted a complete physical examination and assessment of both F. and M. shortly after the apprehension. Ms Anna Marie Pietrantonio is a Clinical Specialist with the CAAP team, which completed an Impact of Maltreatment Assessment following the medical examination and assessment of Dr. Canisius.

(a) Dr. Elizabeth Canisius and the Medical Assessment of the Children

[115] Dr. Canisius has been a consulting paediatrician with the CAAP team since 2008. She completed her residency in paediatrics at McMaster University from 2004 to 2008. She has conducted over one hundred examinations of children where there is suspected child abuse and has been qualified as an expert witness regarding child maltreatment. Following a voir dire on the issue of her experience and expertise, Dr. Canisius was qualified as an expert in paediatrics with a specialty in child maltreatment.

[116] Dr. Canisius conducted a complete physical examination of both F. and M. on October 8, 2009. She also examined the photographs of F.'s injuries taken by the police on September 17, 2009. F. also underwent a number of blood tests to rule out any bleeding disorders. Dr. Canisius interviewed F.'s foster parent and two child protection workers, Ms Skrobot, and Ms Lancia. Dr. Canisius's report of her assessment and findings, dated January 4, 2010, was entered as an expert report in this trial.

[117] Dr. Canisius testified that in her opinion, F. was a victim of physical abuse. She testified that F.'s case was one of the worst cases of physical abuse that she has been involved in and that F.'s presentation was that of a "battered child" who had suffered a number of injuries that were intentionally inflicted and that there was evidence of likely chronic and ongoing exposure to violence in her home prior to her apprehension.

[118] Dr. Canisius further testified that it was not possible that F. caused the injuries to herself and that it was her opinion that significant force would have had to have been used to cause the injuries on F.

[119] Dr. Canisius further testified that the injuries to F.'s left shoulder and arm had a pattern on them which would have been caused by an object similar to a cast or tensor bandage although she could not confirm this with certainty. She further testified that it was not possible that the injuries to F.'s eye and cheek were caused by her falling out of bed with eye glasses on. She testified that the injuries to F. were caused by F. being struck hard by an object or a person's fist. Dr. Canisius also testified that the mark on F.'s right arm was a burn caused by a cigarette, given the rolled edges and shrinking size.

[120] Dr. Canisius also examined M. She testified that M. was healthy and the results of his physical examination were normal. There was no evidence of physical abuse.

(b) Ms Anna Marie Pietrantonio and the CAAP Impact of Maltreatment Assessment of the Children

[121] As a result of Dr. Canisius's findings, the CAAP team conducted an Impact of Maltreatment Assessment of both children at the request of the society in order to better understand the children's needs.

[122] CAAP is a multi-disciplinary team of physicians, psychologists, social workers and nurses that assesses children by interviewing parents, children and collaterals and by evaluating collateral information and documents obtained from referral sources as well as other informants. Caregivers and children are interviewed by team members with other team members observing behind a two-way mirror with consent of the participants. CAAP reviews the relevant documentation and interviews collaterals with the consent of the parents. Upon the completion of their assessment, CAAP makes recommendations which focus on the children's best interests.

[123] Ms Pietrantonio was a member of the team that conducted the assessment regarding both children. She holds a Masters in Social Work and has been a social worker with the CAAP program at McMaster's University since 1996. In 2002, she received her designation as a clinical specialist in the CAAP program, reflecting her expertise in the area of child maltreatment assessments. She testified that she was the first social worker to be given this designation. She has published numerous articles on child maltreatment and she is also an assistant professor in the Department of Psychiatry and Behavioural Neurosciences at McMasters. She has been qualified as an expert witness in the area of child maltreatment for the past fourteen years and she has conducted approximately 480 maltreatment assessments.

[124] After conducting a voir dire on the issue of Ms Pietrantonio's experience and expertise, she was qualified as an expert in the area of child maltreatment assessments. The Impact of Maltreatment Assessment Report with respect to both children, dated July 21, 2010, was entered as an exhibit at trial.

[125] The CAAP assessment was conducted over a four month period from March to July 2010. Team members met with and interviewed F. on four separate occasions and M. on one occasion. They interviewed the parents, both grandparents, F.'s biological father, as well as the foster mother, F.'s teacher, the maternal grandmother's partner (the mother's step-father), Ms Lancia, Ms Skrobot, the child protection workers, and reviewed a significant number of documents, including medical records, hospital records, society records, and the parents' and witnesses' affidavits in the child protection proceedings.

[126] Based on the totality of the evidence, it was the CAAP team's assessment that F. had been exposed to physical, sexual, and emotional abuse in the home of her mother and step-father. It was also their opinion that M. was exposed to emotional harm as he was likely present in the home when F. was being physically and emotionally abused. During the assessment, F. identified witnessing violence in the relationship between her mother and biological father as well as her mother and step-father. It was also CAAP's view that F. was likely "scapegoated" and rejected by her mother and step-father and that F. and M. experienced differential treatment from their parents.

[127] Ms Pietrantonio testified that the team used the term "battered child" to describe F. in their report because that is exactly what she looked like when she came into care. Ms Pietrantonio testified that upon reviewing the medical evidence, almost all of F.'s body had indications of injuries. Ms Pietrantonio testified that F.'s injuries were bordering on the extreme end of the spectrum of physical abuse.

[128] Ms Pietrantonio testified that in her opinion, as well as the entire team, that F. did not inflict these injuries on herself, based on the nature and the location of the injuries. Further, during a screen by CAAP for sexual abuse, F. disclosed experiencing sexual harm perpetrated by her step-father. It was CAAP's opinion that the disclosure of sexual abuse was credible.

[129] Ms Pietrantonio testified that throughout the assessment, F. consistently identified her mother and step-father as responsible for the abuse. According to Ms Pietrantonio, during the assessment, F. consistently expressed positive feelings about her maternal grandfather and grandmother, as well as her biological father. F. consistently expressed negative feelings and that she was scared of her mother and step-father. She consistently expressed that she did not want her mother and step-father to be a part of her life and that she did not want a relationship with them.

[130] Ms Pietrantonio testified that during the interviews with F., she never once suggested that the maternal grandfather had hurt her in any way. Further, in their interview with the maternal grandfather, the CAAP team observed that he was physically very frail and emotionally very upset. The CAAP team specifically explored the grandfather's health issues with him. They found no evidence that the grandfather's epilepsy was not controlled by medication.

[131] Ms Pietrantonio testified that based on their findings, the CAAP team diagnosed F. with post traumatic stress disorder (PTSD) and, among other things, recommended pharmacological treatment. She testified that it was very unusual for the team to diagnose a child with PTSD, and to recommend pharmacological intervention, but in F.'s case, the team had serious concerns about the impact of F.'s maltreatment on her cognitive, physical, academic, emotional and social development.

[132] According to Ms Pietrantonio's evidence and the CAAP report, during the respective feedback sessions with the parents (conducted separately), both parents suggested that F. was lying and that her disclosures were influenced by the society or her foster mother. Further, the parents suggested that F. engaged in self-harming behaviour and thus, her injuries were self-inflicted. The father reported to CAAP that F. engaged in self-harm, including hitting herself with a skipping rope. According to the CAAP report, F. was observed by the foster mother to engage in head-banging behaviour early in her placement, however, this behaviour did not cause significant injury to F., nor does it explain the injuries observed on her body at the time of the apprehension.

[133] Ms Pietrantonio also testified that, based on her experience, it is not unusual for children to disclose information about abuse incrementally over time as their sense of safety and security increases. She testified that F. disclosed experiences of abuse by her mother and step-father shortly after she was placed in foster care.

[134] According to the CAAP report, M. appeared to be doing well in all areas of development. There was no evidence that he was physically or sexually harmed, however, there was information to support that he was emotionally harmed in his parents' care. In particular, he was likely present when F. experienced physical and emotional abuse. Further, the report expressed concern that he was exposed to domestic violence in his parents' relationship.

[135] Ms Pietrantonio testified that even pre-verbal children are impacted by exposure to any kind of violence in their home as it can affect their brain functioning and how their brain develops. She testified that if M. was exposed to the violence in the home, then he would be experiencing some of the same feelings that F. experienced, even if he was not the target of the abuse. She testified that this could undermine his capacity to trust his attachment relationships. According to Ms Pietrantonio, the literature and research in the field is starting to support the idea that exposure to family violence can have some of the worst outcomes for children in terms of their functioning and development.

[136] Regarding M., CAAP recommended that M. requires a parenting environment that "acknowledges and understands M.'s vulnerabilities, accepts and acknowledges that F. experienced maltreatment and is able to provide a safe, secure and consistent parenting environment." Although CAAP did not specifically assess M.'s paternal great aunt and uncle, it would not support M.'s placement in their home if they were not able to consider the possibility that F.'s injuries were inflicted by the mother and father. According to the CAAP report, this would place M. at an increased risk of emotional harm.

7.11 The Voir Dire regarding F.'s Statements to Society Worker

[137] At the commencement of trial, a voir dire took place regarding the admissibility of hearsay statements made by F. to society workers. The society sought to introduce into evidence statements made by F. directly to the children's services worker, Lottie Skrobot over an eighteen month period from September of 2009 to March of 2011. I heard evidence from Ms Pietrantonio (CAAP) and from Ms Lottie Skrobot, the society's children's service worker for both F. and M.

[138] After hearing the expert evidence of Ms Pietrantonio on the issue of necessity, the parents conceded this issue and accepted that should F. be compelled to testify in this trial, she would experience very serious emotional harm that potentially will have a detrimental impact on her emotional and psychological state. However, Ms Skrobot was cross-examined extensively by the parents on the issue of the reliability of F.'s statements to her and whether these statements should be admitted for the truth of their contents.

[139] The statements made by F. to Ms Skrobot over the eighteen month period while she was in foster care consistently identify both her mother and step-father as the people who abused her. She does not identify any other individual as abusing her while in her parents' care. When speaking of her grandfather (whom she calls "Poppa"), she was consistently positive and suggested that he tried to protect her. In determining the issue of threshold reliability, I considered the following:

a. The statements are first-hand hearsay, and the recipient of the statement was presented for cross-examination;

b. F. made the statements over a lengthy period of time in what appeared to be a spontaneous fashion, without prompting, on a number of different occasions and did not appear to be elicited by leading questions;

c. The social worker/recipient of the statements had a duty to record the statements as accurately and objectively as possible at the time they were made or shortly thereafter;

d. The social worker did not have an apparent personal interest in the outcome of the litigation, or any motive to misrepresent the statements, or to cast the parents in a negative light.

[140] Ms Skrobot testified that she made written or typed notes of the statements shortly after they were made. She did not amend her notes. Ms Skrobot did paraphrase some of the statements but I was satisfied that her record of F.'s comments were accurate. Ms Skrobot testified that she did not use leading questions.

[141] The parents challenged the circumstances in which some of the statements were made and argued that this made them inherently unreliable. For example, in their cross-examination of Ms Skrobot, the parents attempted to demonstrate that some of F.'s disclosures were made after she was told by Ms Skrobot that her parents would not permit her to go to Florida for her holiday with her foster family, or get her ears pierced. They argue that F. was upset and angry about this, hence, she lied about her parents abusing her. The parents further point out that F. also lied about her foster mother hitting her after she was reprimanded for serious misbehaviour in the foster home. The parents further challenged F.'s statements about being abused in a cemetery by the father and produced a library book that they testified F. had read shortly before she was apprehended which is titled "Midnight in the Cemetery."

[142] Ms Pietrantonio testified that children who experience abuse generally start to share information incrementally once they are placed in an environment where they feel safe. She further testified that it is not unusual for abused children to lie to avoid getting into trouble because they feel threatened so they engage their "fight or flight" response.

[143] Although I was concerned about some of the statements that F. made to Ms Skrobot, in particular the timing of some, as well as the circumstances, on the threshold test of reliability it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strengths in others. See Children's Aid Society of Ottawa-Carleton v. L.L., [2001] O.J. No. 4587 (S.C.J.) at par. 22. I also did not find that F.'s statements regarding her foster mother undermined the threshold reliability of her statements regarding her parents. I determined that the statements met the test with respect to threshold reliability and were therefore admissible. I held that the ultimate reliability and the weight to be accorded F.'s individual statements would be determined at the conclusion of trial after a review of all of the evidence.

7.12 Evidence Regarding M.'s Current Placement and the Plans of Care for M.

(a) Lottie Skrobot, Children's Service Worker

[144] M. has been residing with his paternal great aunt and uncle since October of 2010. According to the evidence of Ms Skrobot, M. is thriving in this placement and is meeting all of his developmental milestones. Ms Skrobot testified that M. has regular visits with F. that are arranged between the great aunt and great uncle and F.'s biological father and his partner. M. and F. enjoy these visits with each other and have included F. sleeping over at M.'s home.

(b) Mr. Stephen Cross, Adoption Worker

[145] Mr. Cross is a registered social worker and adoption worker and he has been employed by the society since 1998. He was assigned to assess M. suitability for adoption and the suitability of the great aunt and uncle as suitable adoptive parents.

[146] Mr. Cross testified that the great aunt and uncle very clearly desire to be adoptive parents for M. He testified that M. is a child who is happy and content, who has adjusted well in this home and he is thriving. According to Mr. Cross, M. has been able to form a secure attachment to his paternal great aunt and uncle, given their continuous care of him since October of 2010. M. is very affectionate with both of them and calls them "Mummy" and "Daddy".

[147] Mr. Cross testified that the great aunt and uncle have successfully undergone PRIDE and SAFE training and assessment and a home study as kin foster parents. The home study will need to be updated if they intend to become adoptive parents. Based on his evaluation, it was Mr. Cross's conclusion that M. is adoptable and it would be in his best interests to be adopted by his great aunt and uncle, whom he assessed as suitable for adoption. Mr. Cross's evidence is that M. has an "overwhelming need to be in a parenting relationship where his needs for acceptance, stimulation, consistency, security and permanence are present." It is his belief that "all of these needs could be met through adoption."

[148] Mr. Cross testified that it is very important for M. to maintain a relationship with his sister F. He testified that M. and F. have a very strong connection which the great aunt and uncle support. He testified that they are very willing to support post-adoption access between M. and his sister. Mr. Cross also canvassed their willingness to have post-adoption contact with the parents. Mr. Cross testified that the great aunt and uncle support openness with the parents after adoption, which they envisage as taking place on an informal basis on special occasions and family events. Mr. Cross testified that the society also supports an openness agreement such as this with the biological parents post-adoption.

[149] In cross-examination, Mr. Cross was asked about the aunt and uncle's ages (64 and 66 years old respectively) and the impact on M.'s stability if either of them developed health concerns as they age. Mr. Cross testified that the society has canvassed this with their adult daughter D. if this did become an issue. D. has also successfully undergone the PRIDE and SAFE training and she has expressed her willingness and commitment to M. and his adoption.

(c) Dr. Simon Williams

[150] Dr. Simon Williams conducted a bonding assessment regarding M. and his great aunt and uncle, following a request from the society. Dr. Williams is a registered psychologist, having obtained his doctorate in child clinical psychology in 2002 and his post-doctoral fellowship in 2004. He currently conducts psychological assessments of children and adolescents. He is also currently employed part-time as a psychologist for CAAP, although he did not participate in the CAAP child maltreatment assessment of M. and F., nor did he have any involvement in this assessment. Dr. Williams has been qualified as an expert on numerous occasions and he was qualified to give opinion evidence regarding his bonding assessment report, which was filed as an exhibit in these proceedings.

[151] Dr. Williams completed his report on January 20, 2012. He conducted interviews with the great aunt and uncle, their adult daughter, M.'s day-care teacher, and Ms Grewal, the current family service worker. He also conducted psychometric questionnaires on the caregivers and attended for two in-home observations with M., his great aunt, great uncle, and older cousin.

[152] As part of his assessment, Dr. Williams canvassed the CAAP team's recommendation that M.'s placement with his paternal great aunt and uncle was predicated on whether they were willing to acknowledge the parents direct responsibility for the injuries sustained by F. while she was in the parents' care. According to the report, it is clear that the great aunt and uncle do not dispute that the parents were responsible for F.'s injuries.

[153] Based on his assessment, Dr. Williams concluded that M. has undoubtedly developed strong affectionate bonds with his great aunt and uncle. Psychologically, he has internalised these caregivers as his mother and father and refers to them as "Mum" and "Dad". According to Dr. Williams, there appears to be no difference between the quality of M.'s bond with his great aunt and uncle than is typically the case between children of his age and their biological parents. Likewise, the great aunt and uncle seem "equally bonded, and undoubtedly committed to M. It is a reciprocally loving and affectionate relationship."

[154] M.'s relationship with his cousin D. (the 27 year old adult daughter who resides with the family) is also characterized by a great deal of love and affection which is reciprocated by D. and reflected a degree of familiarity commonly shared by close siblings. According to Dr. Williams, M. identifies himself as a member of this family. He appears "secure and settled and he undoubtedly feels loved."

[155] Based on Dr. Williams' observations, M. is showing no signs of distress at home or on his daycare setting. His behavioural functioning, including social and peer interaction, is normal. According to Dr. Williams, removing M. from his current home would place him at significant emotional and psychological risk which will have an impact on his development. As Dr. Williams puts it, "M. is a well functioning, well adjusted, securely attached, and well loved child who is thriving in his current home, and whose current caregivers appear committed to caring for him on a long-term basis. Removing M. from his home would only serve others' interests-for all intents and purposes, it would be of no benefit to M."

[156] In response to questions about the paternal great aunt and uncle's ages (they are 64 and 66 years old), Dr. Williams testified that he did not observe any issue with their age during his two in-house observations. They both responded to M. continuously and took turns responding to him. In Dr. Williams' opinion, although they are older parents, they are physically not that old. The uncle is retired and the aunt works part-time. Further, Dr. Williams testified that the adult daughter is "integral" to M.'s life and also plays a care-giving role. Dr. Williams testified that M. looks to D. as his older sister.

[157] In response to questions by the parents during cross-examination, Dr. Williams acknowledged that once M. gets older, and understands that he is living with his great aunt and uncle and visiting his parents, he would experience trauma regarding his relationship with his parents, but not regarding his relationship with his great aunt and uncle. Dr. Williams further testified that even if M. was gradually transitioned into his parents' home, he would suffer a huge loss, and that any move would be detrimental to him at this point.

(d) Ms Inderjit Grewal

[158] Ms Grewal is the current family service worker for the family. She confirmed that M. is doing very well in the great aunt and uncle's home and sees it as home. She also described the home as a stable and secure environment and supports the plan for the great aunt and uncle to adopt M.

[159] Ms Grewal also testified that access visits between M. and his sister F. are going very well and that both children really look forward to the visits, which include overnight visits. Ms Grewal testified that the children have a very strong bond even though they are not living in the same household.

[160] In describing her working relationship with the parents, Ms Grewal described it as "cordial", however it is not a good working relationship because the parents have never approached her with any real or meaningful dialogue to determine how to be better parents. She testified that they have never expressed remorse and there has never been any discussion about what they can do to become better parents. She is not aware of any services that the parents have utilised, with the exception of the counselling group that the mother was briefly involved with at Urban Core. With the mother's consent, she attempted to contact the agency to discuss the mother's counselling. She testified that she left numerous messages with the agency but they never called back.

[161] In response to questions regarding the parent's plan of care for M., Ms Grewal testified that the parents' plan does not address the society's child protection concerns. She testified that to this day, the parents have not taken any responsibility for the harm caused to their children while in their care. She questioned how any change could occur when the parents have not taken any responsibility for their actions. She testified that she would not assess their home as a place of safety because the parents do not acknowledge responsibility for the harm done to their children, or even said they were sorry.

[162] Ms Grewal also testified, in response to questions by the parents about transitioning M. to their care while he continued to have contact with his great aunt and uncle and his sister, that another major concern with that plan is the impact it would have on M.'s and F.'s relationship. Given that F. wants absolutely no contact with her parents at all, Ms Grewal expressed concern about facilitating access between M. and F. should he be returned to their care. She testified that this would be traumatic for M. and F. Further, the mother's current conditions of probation prohibit all contact between her and F., both directly and indirectly.

(e) Dr. Robert Seim

[163] Dr. Seim was called as a witness by the court at the parents' request to give evidence about his parenting capacity assessment of J.P.P., which recommended that F. be placed in his care. The parents had serious concerns about this assessment and the society's support of Dr. Seim's recommendations, given that he did not interview the mother (or father) about the extent of the domestic violence in her relationship with J.P.P. and appeared to take J.P.P.'s statements about the history of violence at face value without independent corroboration, including failing to review the police records and the Children's Lawyer's report. A great deal of time was spent on this in the parents' cross-examination of Dr. Seim, to support their critique of the society's decisions regarding placement of the children.

[164] Dr. Seim is a registered psychologist and specialises in child development and attachment. He has been qualified as an expert witness in parenting capacity, attachment and child development for many years, dating back to 1985. Although Dr. Seim did not conduct a parenting capacity or attachment assessment of M., although he did meet with him and F. When asked how to best transition him into their home, he testified that the removal if a child from his caregivers is a "serious loss" and that there would be a substantial amount of risk involved, even if the new parents were able to offer M. security, nurturance and affection, which are the conditions necessary for a positive attachment.

[165] Dr. Seim also testified that this transition would be particularly complicated because of M.'s relationship with F., who expressed to Dr. Seim that she did not want any contact with her mother or step-father. According to Dr. Seim, M. and F. are "family" and her reaction is key to a successful transition. If F. is upset by M.'s placement with his parents, then this will impact poorly on M., and create a real problem for the success of the placement.

(f) Access Visits between M. and the Respondent Parents

[166] Ms Grewal, Ms Skrobot, and Ms Theresa Civillo, all society workers, testified about the access visits between M. and his parents. Currently, M. has supervised access with his father ninety minutes every week and an additional sixty minutes every second week. M. has supervised access with his mother on a bi-weekly basis for one hour with the father.

[167] The visits between M. and his parents are described consistently by all three witnesses as positive. M. appears to enjoy the visits with both parents, whom he addresses as "Daddy T." ("T." is the biological father's first name) and "Mummy T." (T. is also the biological mother's first name). The parents bring books, toys and treats for M. The parents' interactions with M. are appropriate. In cross-examination, Ms Civillo noted that when M. speaks directly to the parents, he will say "Mummy" or "Daddy", but when he speaks about them, he refers to them as "Mummy T." and "Daddy T."

8. THE LAW AND ANALYSIS

[168] The paramount purpose of the Child and Family Services Act (CFSA) is to promote the best interests, protection and well being of children. The additional purposes of the Act, so long as they are consistent with the best interests, protection and well being of children, are the following:

1. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

2. To recognize that children's services should be provided in a manner that,

a. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

b. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

c. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

d. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate. [CFSA, sections 1, 2, and 3]

[169] Sections 64 and 65 of the Act govern status review applications. The relevant subsections provide as follows:

Status review

64. (1) This section applies where a child is the subject of an order under subsection 57(1) for society supervision or society wardship. 2006, c. 5, s. 22.

Society to seek status review

(2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child's status;

(b) shall apply to the court for a review of the child's status before the order expires, unless the expiry is by reason of subsection 71(1); and

(c) shall apply to the court for a review of the child's status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision. 2006, c. 5, s. 22.

65. (1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1. R.S.O. 1990, c. C.11, s. 65(1); 2006, c. 5, s. 23(1).

(2) Repealed: 2006, c. 5, s. 23(2).

(3) Repealed: 1999, c. 2, s. 19.

8.1 Does M. continue to be a child in need of protection?

[170] When determining a status review application, the original order being reviewed, including the original finding of protection, is presumed to be correct: Children's Aid Society of the Regional Municipality of Waterloo v. T.F., [1994] O.J. No. 208 (O.C.J.). In this case, M. was found to be in need of protection by Justice Zisman on October 28, 2010 and was made a society ward pending the outcome of this status review hearing.

[171] The court must then engage in a two-fold examination. The first stage requires a determination of whether the child continues to be in need of protection. In determining what order is required to meet the child's best interests, the court must consider the degree to which the risk concerns that existed at the time of the initial protection application still exist. This must be examined from the child's perspective: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.). See also Children's Aid Society of Waterloo Region v. C.(R.); Children's Aid Society of Haldimand-Norfolk v. C.(D.); Children's Aid Society of the Niagara Region v. D.P.; Children's Aid Society of Toronto v. C.(M.A.), 2007 ONCJ 220.

[172] The evidence is overwhelming that F. was abused by both of her parents and not her grandfather, whom the parents now conveniently point the finger at after claiming for months that F. caused the injuries to herself. When the medical experts established conclusively that, based on the extent of the injuries, the force required to cause them, and the location of the injuries, F. could not have inflicted them on herself, the parents chose to blame someone who could not defend himself rather than take responsibility for their actions in seriously harming a child in their care.

[173] Even if accept the parents' evidence that the grandfather caused the chronic and acute abuse to F., which I categorically do not, then the parents failed on all fronts to protect their children. It is simply not credible that the parents did not notice the injuries on F. or take her to the hospital prior to the night the police arrived at their home, unless they were grossly negligent. On the contrary, I find that the parents saw the injuries that they caused, which is why they chose to keep F. out of school on the day of the apprehension, as the school had already called previously that month, and as recently as September 16, 2012 regarding concerning marks on F.

[174] I specifically reject the parents' evidence of denial for the following reasons:

1. the criminal conviction and the criminal trial judge's finding on a standard of proof beyond a reasonable doubt that the mother assaulted F. and caused bodily harm and uttered threats of death and bodily harm to her, following a trial;

2. the parents' own evidence and the obvious inconsistency and contradiction between their evidence at trial and their statements to the police at the time of the children's apprehension;

3. the expert evidence that the degree of force required to harm F. was significant making it implausible that the paternal grandfather caused the child's injuries, given the number of witnesses who described him as "frail" and "not well";

4. the expert findings, in particular the CAAP findings that F. was abused by both of her parents, and very likely also sexually abused by her step-father;

5. F.'s consistent disclosures soon after she was apprehended that her mother and step-father abused her and no one else, and her consistent expressions of fear regarding her mother and step-father as well as her consistent refusal, to this day, to have any contact with them. This was in sharp contrast with her wish to continue to have contact with her paternal grandfather, of whom she expressed no fear, but rather love and affection.

[175] Under Canadian law, a criminal conviction is admissible in a civil proceeding and generally constitutes prima facie proof, not conclusive proof, of the underlying facts or guilt, although it can be rebutted with evidence that was not available at the criminal trial. See W.H. v. H.C.A.. In determining whether a criminal conviction is conclusive proof of the underlying facts, the Supreme Court of Canada has held that the doctrine of abuse of process must be considered in the particular circumstances of each case. The court held that an abuse of process will be made out where the litigation before the court is found to be in essence an attempt to re-litigate the claim which a court has already determined. See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.).

[176] The doctrine of abuse of process concerns itself with integrity of the judicial system and not the motive or status of the parties. Re-litigation of an issue in another court will prove to be a waste of judicial resources if the result is the same, or of the result is different, undermine the credibility of the judicial decision making process. See W.H. v. H.C.A., supra.

[177] However, re-litigation of underlying facts does not always result in an abuse of process. As the Ontario Court of Appeal stated in W.H. v. H.C.A., supra, "the doctrine of abuse of process ought to generally be a flexible doctrine whose aim is to protect litigants from abusive, vexatious, or frivolous proceedings or otherwise prevent a miscarriage of justice. Its application will depend on the circumstances, facts and context of a given case." [par. 31]. Some examples where re-litigation will not amount to an abuse of process include adducing new evidence not available at the criminal trial, or demonstrating that the issues to be determined are different. [par. 32].

[178] In this case, I permitted, the mother and father to lead evidence on the issue of who caused F. injuries notwithstanding the mother's criminal conviction for these injuries because I wanted to hear from the parents directly regarding what responsibility, if any, they accepted for either causing the injuries or failing to protect their child. The society did not object to this evidence being called, presumably for the same reason. Unlike the issues before the criminal trial judge, I must determine whether M. continues to be a child in need of protection, whether he should be returned to the joint care of his parents or be removed permanently from their care. In my view, it was important to hear their evidence. Further, neither parent testified at the criminal trial and the father's culpability was never determined by a criminal court, as the charges against him were withdrawn.

[179] The parents spent an enormous amount of time and energy adamantly denying that they were in any way responsible for F.'s injuries. At trial, they recounted a completely different version of the events leading to the children's apprehension than what they told the police in their separate video-taped interviews on September 17th and 18th, 2009. The mother's claim during this trial that her memory is better now, more than three years later, rather than almost immediately after the events in question, is improbable.

[180] In particular, the father told the police that he had skipped school on the day of the apprehension and instead had taken F. for a 3.5 hour car ride in the afternoon. The mother told the police that she, the grandfather, and M. were out together all afternoon and that F. was with the father for most of the day. The mother also told the police that if anyone had hurt F. it was her husband because her father was too frail and had a broken collar bone. Neither parent mentioned anything to the police about the grandfather's seizures or suggested that the grandfather had anything to do with F.'s injuries. In their statements to the police, the father blamed F. claiming that she was "disturbed" and harmed herself, and the mother repeatedly accused the father of hurting F.

[181] The parents' statements to the police demonstrate that the grandfather was not alone with F. on September 17, 2009 and that the only person alone with F. for significant period of time was the father. This completely contradicts the parents' evidence at trial and significantly undermines their credibility. The parents called Brian Matthews, the father's former drafting instructor from Mohawk College, to give evidence that the father was present at his drafting class on September 17th from 3:00 pm to 6:00 pm. However, Mr. Matthews did not recall or know what year he was referring to and had no recollection of attendance three years earlier. Further, he testified that there are approximately twenty to thirty students in his drafting class and he does not take attendance until fifteen minutes before the class ends at 5:45 p.m. In his evidence in chief, the father testified that he was late for school on that day.

[182] During closing arguments, after all of the evidence at trial had been completed, the parents attempted to change their evidence. They submitted that they had, in fact, lied to the police to protect the grandfather. I do not accept this, given that the parents' evidence at trial was that Ms Lancia had not accurately recorded their statements to the police and that they did not recall making many of these statements. Once their video-taped police statements were played in court, it was very clear that Ms Lancia had accurately recorded everything that the parents told the police immediately after the apprehension.

[183] The grandmother was also not a credible or reliable witness, despite the parents' attempts to use her to bolster their theory. Prior to and immediately after the children's apprehension, the grandmother made statements to Anna Maria Lancia disclosing serious child protection concerns about the parents' treatment of F. She swore an affidavit early on in these proceedings identifying the parents as F.'s abusers, and she told Dr. Seim during the assessment that she believed that F. was being abused by her son-in-law and her daughter. Her testimony at trial that she was "confused" by her medication during the time period when all of her earlier statements were made was not credible and appeared rehearsed.

[184] Despite being pressed by the parents on a number of occasions during her direct examination, the grandmother did not say conclusively that the grandfather caused F.'s injuries. What appeared to be a well rehearsed script began to unravel relatively quickly. Her testimony contained a number of inconsistencies. At first describing the maternal grandfather as very abusive and prone to violent outbursts during the first thirteen years of their marriage, the grandmother then testified that the first thirteen years of marriage were "fantastic". She also testified that the grandfather loved F. "with all of his heart" and that F. loved him "so much". In cross-examination, the grandmother broke down and became emotionally very distraught. She admitted that she could not say for certain who caused F.'s injuries.

[185] It was painfully obvious that the grandmother was placed in an intolerable situation by the parents at trial. They wanted her to point the finger at the grandfather and exonerate them. The grandmother was trying to protect and help her only daughter as best she could, but she could not bring herself to categorically accuse the grandfather of causing the injuries to F. It is also clear that the grandmother clearly loves F. very much and misses her greatly. (Her access to F. has been restricted since F.'s placement with her biological father.) I find without a doubt that the grandmother tried to protect F. from her parents prior to the apprehension by calling the police and the society on a number of occasions.

[186] Dr. Canisius's evidence that significant force was needed to cause F.'s injuries also makes the parents' theory that the grandfather abused F. unbelievable. The grandfather was described by four witnesses, including the mother, as a "frail" person. The maternal grandmother testified that the grandfather was "a frail man with epilepsy" in 2005. The mother's step-father described the grandfather as a "nice man" who was physically "not well". He testified that he had visited the grandfather in the hospital shortly after the children were apprehended. It is not disputed that the grandfather was diagnosed with lung cancer and had spent six weeks in the hospital during the fall of 2009 and winter of 2010 with pneumonia, prior to passing away in October of 2010. When Ms Pietrantonio interviewed the grandfather during the CAAP assessment, she described him as "physically pretty frail" and emotionally distraught.

[187] After hearing all of the evidence at trial, I conclude that F.'s consistent disclosures to Ms Skrobot that both parents had abused and hurt her, and not anyone else, are ultimately reliable. These statements were corroborated by several pieces of evidence at trial, including the following: the evidence of F.'s physical injuries, the expert evidence regarding the significant force required to inflict those injuries, the expert evidence that F. was a victim of abuse and that she could not possibly have harmed herself, the evidence that the grandfather was not capable of inflicting those injuries given his frail physical state, the evidence of the parents, which was not credible or reliable, and the mother's criminal conviction and sentence for assault causing bodily harm.

[188] On the whole of the evidence, it is overwhelmingly clear on a balance of probabilities that both parents intentionally inflicted harm on F. It is also admitted by the parents that M. was present in the home during the events that occurred on September 17, 2009. Neither parent accepts any responsibility for this. In the face of overwhelming evidence, they continue to deny causing F.'s injuries or exposing M. to emotional harm.

[189] Both parents presented as intelligent and articulate. They were very respectful of the court process and they were very well prepared and organised throughout the trial. Despite the very difficult circumstances, the parents presented their case extremely well and had clearly worked hard on their trial preparation and during the trial.

[190] It is unfortunate that the energy and time spent by the parents in denying their culpability and preparing their case for trial was not put into accepting responsibility for their actions, facing the consequences, and then taking the rehabilitative steps necessary to become better parents. In listening to their evidence at trial, it was clear to me that the parents have a complete lack of self-insight regarding the harm that they have caused their children. There appears to be no capacity to change or accept responsibility.

[191] Throughout her evidence, the mother did not take personal responsibility for anything that happened to her children throughout her parenting history. She blamed the biological father for F.'s apprehension from her care when F. was only one month old. She blamed the biological father again for F.'s exposure to domestic violence and refused to take any responsibility for failing to protect her during the eight years she stayed with J.P.P. Further, even if I accepted that the grandfather caused F.'s injuries, which I do not, the mother accepts no responsibility for allegedly leaving her child with someone that she claims was prone to black-outs and violent outbursts.

[192] Although the father testified that he would never leave M. in anyone else's care again and he blamed himself for not telling his wife that the grandfather had not taken his medication that day, I reject this fabricated story completely. The father was one of the perpetrators of the abuse and in my observation, the only guilt or remorse he expressed at trial was for his wife, who was convicted and sentenced, even though they were both equally responsible.

[193] When discussing F.'s injuries, I observed that the parents showed no emotion or any appearance of distress about the suffering F. must have experienced. The father's examination of the photographs of his step-daughter's injuries, which any reasonable person would view as horrific, was clinical and detached. When hearing the expert evidence concerning F.'s horrendous injuries, the parents did not react. Neither parent conveyed any regret or remorse about the physical pain that F. suffered. This was in stark contrast to the grandmother who became very emotional and distraught when recalling how her granddaughter must have suffered and in expressing remorse about what, if anything, she could have done to protect her. In making these observations, I am mindful that different people react in different ways to stressful and traumatic situations.

[194] I was further struck by the consistent theme throughout the parents' testimony, the mother in particular, that they were the victims who had somehow been unfairly persecuted by the system. The mother described being denied contact with M. and her husband initially and not being permitted to attend her father's funeral as a result of her bail conditions. She spent an enormous amount of time detailing the physical and emotional abuse that she had suffered in her relationship with J.P.P. I accept that these are all traumatic events, however, the continual focus by both parents on portraying themselves as victims demonstrated a level of self absorption that was concerning. I also observed that during the mother's examination of J.P.P., she did not appear afraid or intimidated at all, but instead quite assertive and animated during her questioning of him.

[195] When asked at the conclusion of her testimony why she felt that the parent's plan of care is protective of M., the mother responded by saying, "what my husband and me have been through these last three years, we will take every single precaution to make sure that he is well protected." When the father was asked the same question, he responded by saying, "After three years of hell, I don't think I'd trust anyone with my child besides my wife."

[196] These were disturbing examples of how the parents were more concerned with what they had been through these last three years, completely failing to recognise or acknowledge what F. had been through as a direct result of their abuse and neglect. As parents, to not recognise their child's suffering, which was caused by them, and to focus only on their own as they blame others, is deeply concerning.

[197] M. continues to be a child in need of protection because his parents refuse to take any responsibility for the very serious injuries sustained by F. and witnessed by M. The parents vigorously deny having anything to do with the chronic and acute injuries caused to F., who has been described as "a battered child" by two of the experts in this trial and by one expert as one of the worst cases of child abuse that she has seen. The parents have chosen not to seek professional help to address some very serious issues that affect their parenting. M. would likely suffer emotional harm in his parents' care and given what happened to F., there is a risk that he would likely suffer physical harm as well.

8.2 What disposition order is in M.'s best interests?

[198] Once it has been determined that the child is still in need of protection, the court must consider the least restrictive order consistent with the child's best interests. The same dispositional orders are available to the court as on the original protection application (s. 65(1)(c) & (d) of the CFSA, as noted earlier). The court may vary or terminate the original order, including a condition of supervision or an order for access. However, the court should, at this point, be very mindful of the timelines where the child is in the society's care and is not a crown ward.

[199] Both the society and the parents are requesting that the court make a further order or orders under section 57 of the Act. Section 57(1) sets out the types of orders available to the court after a child is found to be in need of protection:

57.(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

Supervision order

a) That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.

Society wardship

b) That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

c) That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71(1), and be placed in the care of the society.

d) Consecutive orders of society wardship and supervision

That the child be made a ward of the society under paragraph 2 or a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[200] Section 57(1) is limited by section 70 of the CFSA which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the Act.

[201] The process in determining a disposition hearing following a finding that the child is in need of protection or continues to be in need of protection has been set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:

1. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or crown wardship. (Section 57)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for crown wardship.

3. If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)

[202] Subsection 57(2) of the Act requires that the court ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act.

[203] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless these alternatives would be inadequate to protect the child.

[204] Subsection 57(4) of the Act requires the court look at community placements, including family members, before deciding to place a child in care.

[205] In applying these provisions, the court must decide what is in the child's best interests. Section 37(3) of the Act sets out the criteria that a court must consider when determining a child's best interests:

Best interests of child

37. (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

a) The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

b) The child's physical, mental and emotional level of development.

c) The child's cultural background.

d) The religious faith, if any, in which the child is being raised.

e) The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

f) The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

g) The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

h) The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

i) The child's views and wishes, if they can be reasonably ascertained.

j) The effects on the child of delay in the disposition of the case.

k) The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

l) The degree of risk, if any, that justified the finding that the child is in need of protection.

m) Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37(3); 2006, c. 5, s. 6(3).

[206] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.). There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.)

[207] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J), (1997) 23 R.F.L. (4th) 79 (SCJ).

[208] M. has been in the care of the society for 38 months. He is 4 years old. He is well beyond the statutory time limits permitted for him to remain in foster care with no permanent placement. It is not in M.'s best interests to delay his permanent placement any longer. He is entitled to certainty and finality. A further order for society wardship is not available for him. The only options now are to return M. to his parents under society supervision or make him a crown ward, thereby removing him permanently from his parents' care.

[209] The society's plan is to make M. a crown ward so that he can be adopted by his current caregivers, his great aunt and uncle, with whom he has lived since he was two years old. The parents' plan is to return M. to their joint care under society supervision.

The Parents' Plan of Care

[210] In the parents' plan, M. would have the opportunity to be raised by his biological parents and be exposed to his cultural heritage and ancestry from both sides of his family. Both parents are young and extremely motivated to have M. returned to their care. The father has researched day-cares and schools in the area where they reside and the parents would ensure that M. is registered in junior kindergarten and day-care. They have also researched and found a number of extra-curricular activities for M. and supportive services for them in their community. The mother has almost completed her criminal sentence and the father states that he would care for M. with family support until the mother is released. To their credit, the parents also proposed a gradual re-integration of M. into their care instead of insisting that he be immediately removed from his current caregivers. They sought suggestions from both Dr. Williams and Dr. Seim during their cross-examination as how to best achieve this. They also stated that they would ensure that M. continues to have regular and extended contact with his kinship parents.

[211] Despite these factors, in weighing all of the factors under section 37(3) of the Act, it is not in M.'s best interests to be returned to his parents' care. Having found that the parents caused F.'s severe injuries and exposed M. to emotional harm, and that they have failed to take any responsibility for the harm that they caused both of their children while in their care, M. cannot be returned to their care. Neither parent has sought counselling or therapy or shown any insight into their actions. They continue to be in complete denial. Despite the very sad and dysfunctional childhood and adolescence of the mother, she has never sought treatment or counselling, except for two counselling sessions at Urban Core in 2010, which she stopped because she did not want to "re-live" these issues. The father testified that he talked to his priest and college counsellor and that he has done a lot of research on parenting. He testified that he could not afford the anger management counselling that he found and that he did not ask the society for assistance or information about counselling because of the way he was treated by the society, which he viewed as very poorly.

[212] The degree of risk that justified that the child is in need of protection has not changed. Returning M. to his parent's care, even with a supervision order, would not be adequate to protect him. Notwithstanding the parents' testimony at trial that they will cooperate with the society and do whatever is asked of them, they have not cooperated in the past and there is no evidence to support that they will cooperate in the future. The parents have not told the truth to this court about what happened to F. while in their care. During the course of Ms Lancia's involvement with the parents prior to the children's apprehension, they did not tell her the truth. Both parents have accused Ms Grewal, the current family service worker of assaulting and blackmailing the father, although no charges were laid regarding these allegations. The father has also, apparently on the advice of one of his former lawyers, recorded all of his conversations and access visits with society workers, despite being repeatedly advised by the society workers that they do not consent to being recorded. The parents are not suitable candidates for a supervision order, which requires honesty, trust, cooperation and a willingness to work with the society.

[213] I have considered the fact that the assistance provided by the society prior to and after intervention has been limited. However, I do not fault the society for not providing the parents with more support and services. The parents refused to take responsibility for their actions and denied all culpability so it is difficult to determine what services the society could offer them. Rehabilitative services and treatment for the parents are very difficult, if not impossible, in these circumstances. Prior to the apprehension, Ms Lancia testified that she provided the mother with referrals to Burlington Counselling and Family Service and/or the ROCK's (Reach Out Centre for Kids) trauma program for F. given her behavioural issues as described by the parents to Ms Lancia. The parents deny receiving the referrals to both agencies and testify that they received the referral to ROCK only. The father testified that the mother attempted to follow up with ROCK but that when she called, there was recorded message that stated that ROCK was not doing intake. Neither parent has taken any steps to contact ROCK since that telephone call in 2009.

The Society's Plan of Care

[214] M. is thriving in his current home and he views his great aunt and uncle as his psychological parents, to whom he is deeply attached and bonded. They love him very much and wish to provide him a permanent home and family. M. is in a home with extended family and blood relatives who will respect and nurture his culture, language and religion, all factors that I must consider under sections 37(3) and 57(4) of the Act. His physical, emotional and mental needs are all being met by his current caregivers and by all accounts, he is a happy, healthy, and inquisitive little boy who is meeting all of his developmental milestones.

[215] M.'s great aunt and uncle, as well as his cousin, whom he views as his sister, will offer him the security and stability of a permanent home. This plan has the strongest likelihood of offering M. stable, consistent and nurturing care. He will also be able to continue a close relationship with his sister F., with whom he is deeply attached. This continuing connection would be very unlikely if M. was returned to his parents, given F.'s refusal to have any contact with them, and the deep acrimony between her current caregivers and the mother and father, as well as existing criminal non-association orders. The evidence was clear that M.'s great aunt and uncle and F.'s biological father and step-mother get along very well and have easily facilitated access between M. and F. and will continue to do so post-adoption.

[216] All three experts, Dr. Williams, Ms Pietrantonio, and Dr. Seim, testified that M. would suffer a significant loss if he is moved from his current home to his parents' home. A disruption in M.'s current placement, where he has developed strong bonds with his primary caregivers and where he is doing extremely well, would seriously undermine M.'s development and functioning. Dr. Williams testified that of M. was removed from his current home, he would feel great loss, confusion and sadness and that his new parents would need considerable skill to deal with M.'s behaviours. Dr. Williams described M. as a well functioning, well adjusted, securely attached and well loved little boy. As he put it, removing him from his current home would only serve others' interests and be of no benefit to M.

[217] Finally, M. will have the opportunity to maintain some form of contact with his biological parents under the society's plan of care for him. M.'s prospective adoptive parents, who are members of his extended family, have made it clear that they support an "openness agreement" between M. and his parents after adoption. This would take place on an informal basis on special occasions or family events.

[218] In looking at the two plans of care before the court, the evidence is overwhelming that the least disruptive alternative consistent with M.'s best interests is to make him a crown ward.

8.3 If M. is made a crown ward, what order for access, if any, should be made?

[219] The two part test for access to crown wards is set out in s. 59(2.1) of the CFSA:

2. Access: Crown ward

(2.1.) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[220] There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children's Aid Society of Niagara Region v. C. (J.), paragraph 22.

[221] Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children's Aid Society of Ottawa v. R.L., para. 57; Children's Aid Society of Niagara Region v. C. (J.), para. 22.

[222] The burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is a difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165 (S.C.C.), p. 50; Children's Aid Society of Toronto v. D.P..

[223] The process for a decision regarding access, following a decision that the children should be made crown wards, was also set out recently by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., supra, 2010 (Ont. Sup. Ct.), para. 25, as follows:

(a) If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59(2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

(b) Determine whether the access would impair the child's future opportunities for adoption. (Section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step.

(c) Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

Part 1: Is the relationship between M. and his parents beneficial and meaningful to M.?

[224] The meaning of the phrase "beneficial and meaningful" was considered by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J.:

"What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made." (paragraphs 45 to 47). [Emphasis added].

[225] In Children's Aid Society of Toronto v. M.A., the court found that even though the access visits were generally enjoyable for the child, it was open to the trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family.

[226] It is not disputed that M. enjoys his access visits with his parents. The parents have attended the supervised access visits consistently and their interactions with M. have been appropriate. However, there was no evidence of a strong attachment or bond between M. and his parents. This is not surprising given that he has not been in their primary care since he was twelve months old. M. has a good time with his parents and there is no doubt that they love him very much, but his real home and attachment are with his great aunt and uncle, cousin and sister F. There was no evidence that M. misses his parents when he is away from them or that he is unhappy to leave at the end of an access visit. On the contrary, although he enjoys the visits, he is happy to return to his primary caregivers.

[227] In the circumstances of this case, I do not find that the relationship between the parents and the child to be "significantly advantageous" to him, which is the meaning of "beneficial and meaningful" that I must apply, in accordance with the law. Positive and enjoyable aspects of the relationship between M. and his parents are not enough to satisfy the test.

Part 2: Would an order for access impair the child's future opportunities for adoption?

[228] Even if I did find that the relationship between M. and his parents to have some benefit and meaning for M., this does not outweigh M.'s need to be adopted and to have a secure and permanent place as a member of a stable family as soon as possible.

[229] Until the recent amendments to the CFSA in 2011, a society could not place a child who is a crown ward for adoption if there was an outstanding access order. This made it virtually impossible for a parent to argue that an access order for an adoptable child did not impair the child's future opportunities for adoption. No crown ward who was subject to an access order could be placed for adoption until the access order was terminated by the court.

[230] Section 141.1 of the Act has been amended to permit societies to place crown wards with access orders for adoption as follows:

"Adoption planning

141.1.1 (1) Nothing in this Act prohibits a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect under Part III (Child Protection). 2011, c. 12, s. 3.

Openness

(2) Where a society begins planning for the adoption of a child who is a Crown ward, the society shall consider the benefits of an openness order or openness agreement in respect of the child. 2011, c. 12, s. 3."

[231] Sections 145.1.1 and 145.1.2 set out the procedures that the society must follow if it intends to place a crown ward who is subject to an access order for adoption. Notice must be given to the person who has been granted the access order and to the person to whom an access order has been granted and either of those persons may apply for an "openness" order, which would permit some form of contact after an adoption.

[232] However, the amendments to the Act do not change the fact that an access order must terminate once a child is placed for adoption. Even though the new amendments no longer prohibit a society from placing a crown ward for adoption, section 143(1) provides the following:

"143 (1) Access orders terminate

When a child is placed for adoption by a society or licensee, every order respecting access to the child is terminated, including an access order made under Part III (Child Protection) in respect of a Crown Ward.

143(2) No interference, etc., with child in placement

Where a child has been placed for adoption by a society or licensee and no adoption order has been made, no person shall,

(a) interfere with the child; or

(b) for the purpose of interfering with the child, visit or communicate with the child or with the person with whom the child has been placed."

[233] Further, there is a significant legal difference between an "access" order and an "openness" order. Although "openness" is not defined in the legislation, its purpose is quite different from access, which is why the legislature crafted terms separate and distinct from the Act's provisions for access. Openness does not necessarily mean direct and exclusive contact between the person who enjoyed access and the child. It may be indirect contact by means of pictures or letters, or occasional direct contact on special occasions. See Justice E.B. Murray's decision in Catholic Children's Aid Society v. M.M., [2012] O.J. No. 3240 (par. 198).

[234] As Justice Pazaratz points out in Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, although no longer impossible for a parent to rebut the presumption against access, the new section 141.1 "opens the door slightly. But is does not change or even reduce either element of the conjunctive test in s. 59(2). The court must still be satisfied that "access will not impair the child's future opportunities for adoption." (par. 421).

[235] In the circumstances of this case, M. has a prospective adoptive family who wish to adopt him immediately and are supportive of openness between M. and his biological parents after adoption. Access must be terminated for this to occur. M. deserves to have permanency and finality now and it is not in his best interests to further delay this. The parents did not seek an openness order and they have not met the onus to rebut the presumption against access to a crown ward as outlined under section 59(2) of the Act. There shall be an order terminating access so that M. can be immediately adopted by his current caregivers.

9. CONCLUSION AND FINAL ORDER

[236] There will be a final order as follows:

1. The child, M. shall be made a Crown ward without access for the purpose of adoption.

[237] I understand that this order will be difficult for the parents. I would like to thank the society and the parents for their thorough presentation of this case.

Released: November 30, 2012

Signed: "Justice Sheilagh O'Connell"

[1] Throughout this judgment, reference to "father" refers to the father of M. and the step-father of F.

[2] F. did not testify in the criminal trial for the same reason, based on a report prepared by CAAP.