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 45(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.

(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.

(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.: C54917/11

Date: 2013-10-15

Ontario Court of Justice

Toronto North Family Court

In the Matter of an Amended Protection Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of R.D., born on […], 2009, and P.D., born on […], 2010.

Parties

Between:

Children's Aid Society of Toronto

Applicant

- and -

D.S. and C.B.

Respondents

- and -

M.D. and A.S.

Interested Parties

Counsel

Margarida M. Pacheco, for the Applicant

Daniel L. Etoh, for the Respondent, D.S.

Avi Baratz, for the Respondent, C.B.

Gesta J. Abols, for the Interested Parties, M.D. and A.S.

Hearing Dates

Heard: September 25-27, 30 and October 1-4, 2013

Justice: Stanley B. Sherr

Reasons for Judgment

Part One – Introduction

[1] The Children's Aid Society of Toronto (the society) has brought an amended protection application seeking a finding that R.D, born on […], 2009, and P.D., born on […], 2010 (the children), are children in need of protection pursuant to sub-clauses 37(2)(b)(i) and (ii) of the Child and Family Services Act (the Act). The society seeks a disposition order that the children be made crown wards, without access, for the purpose of adoption.

[2] The respondents D.S. (the mother) and C.B. (the father) are the children's parents (the parents).

[3] The mother did not attend at the trial. Her counsel had brought a motion seeking to be removed as her solicitor of record prior to the trial before Justice Geraldine Waldman, the case management judge. She adjourned the motion to the first day of trial. Out of an abundance of caution, I asked the mother's counsel to remain on the record for the first day of trial, in the event that the mother chose to attend at court late, or to attend on the second day of the trial. When the mother did not attend on the second day, her counsel was removed from the record. In her Answer/Plan of Care, the mother had asked that the amended protection application be dismissed and the children returned to her care, or in the alternative be placed in the care of her mother (the maternal grandmother).

[4] The father, in his Answer/Plan of Care, asked that the society's application be dismissed. He conceded during the trial that there was sufficient evidence to support a finding that the children were in need of protection. He focused at trial on the disposition of the case. He asks that the children be placed in his care, with or without terms of society supervision. In closing submissions, he made an alternative submission that if the children were not placed in his care, that they be placed in the care of the interested parties M.D. (the maternal grandmother) and A.S. (the maternal aunt), who are the mother's mother and sister respectively. In the event that the children are made crown wards, he seeks access.

[5] A joint plan (independent of the mother) to care for the children was put forward by the maternal grandmother and maternal aunt (the maternal plan). They are not parties to the case but, on consent, were granted rights of participation. They were permitted to give evidence about their plan as the court's witnesses and to make submissions. I permitted them to be present throughout the trial. The maternal grandmother and maternal aunt retained counsel during the trial. He assisted them in presenting their plan. Their counsel was permitted to attend the balance of the trial and make submissions. The maternal grandmother and maternal aunt both testified and called two other witnesses in support of their plan.

[6] The children (both girls) have been in the care of the society since July 23, 2011. The parents currently have supervised access to the children once each week for one and one-half hours at the society's office. The maternal grandmother is permitted to exercise access with the mother. The maternal aunt has also attended at some visits.

[7] The children have two siblings who were not the subject of this trial, but are still before the court (in case management). N.D., born on […], 2005, is the children's sister and lived with the parents (G.B. is her step-father) until she came into care with the children on July 23, 2011. She remained in society care until she was placed with her own father, on November 6, 2012. She continues to live with him in Sudbury, Ontario, pursuant to a temporary supervision order. G.B., born on […], 2013, is the children's brother. C.B. is not his father. G.B. was apprehended at birth and has remained in the temporary care of the society.

[8] The siblings all exercise access to one another.

[9] The primary issues for me to decide are:

a) Are the children in need of protection as pleaded by the society?

b) If so, what disposition order is in the children's best interests?

c) If the court places the children either with the father or in accordance with the maternal plan, what, if any, access order should be made?

d) If the court makes an order that the children should be crown wards, should an access order be made?

[10] The trial of these issues was heard over eight days. On consent of the parties, this trial was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in determining if the children were in need of protection.

Part Two – Factual Background

2.1 The Father

[11] The father is 30 years old. He is single and lives on his own in Toronto. He has no other children. The father started but did not complete grade 12. He has worked as a renovator, landscaper and handyman.

[12] The father has had many challenges in his life. He was in and out of the care of Children's Aid Societies from ages 3 to 8. He moved back and forth from his mother's (the paternal grandmother) home to his father's (the paternal grandfather) home. His parents were involved in lengthy family law litigation. The father and the paternal grandmother both testified that the father had significant behavioural issues and a severe anxiety disorder as a child. The paternal grandmother described how the father would bang his head on the floor when upset. They both testified how ambulances had to be called when the father had anxiety attacks. The father described how he had trouble breathing and had blackouts.

[13] The father testified about how he was physically and emotionally abused by the paternal grandfather. He said that when he was 14 years old, the paternal grandfather was charged with assaulting him and his two brothers. He described how the paternal grandfather picked him up and threw him against a tree. He testified that the paternal grandfather was an alcoholic.

[14] The paternal grandmother testified that the paternal grandfather had been in jail when they lived together. He was convicted of breaking and entering. She also said that after their separation, he was charged with sexually assaulting two of his children's babysitters. She didn't know what happened with these charges. The father testified that the paternal grandfather has had four more children with a woman the father used to date.

[15] The father has a criminal record. In 2002, he was convicted of sexual interference with his 11-year-old step-sister. He was 16 years old when this offence happened. He had initially been charged with a total of 18 offences but the remaining charges were withdrawn when he pled guilty. He was also convicted in 2002 of sexual interference with a girl, who he said was 13 or 14 years old at the time of the offence. He was 18 or 19 years old when this offence happened. The father was also convicted in 2002 of failure to comply with recognizance and uttering death threats.

[16] The father spent 14 months in jail for these offences. His application for early parole was denied. He was placed on both the Ontario Sex Offender Registry and the Ontario Child Abuse Registry.

[17] The father was convicted of failure to comply with a probation order in 2005 and received a $300 fine. He said that he was convicted of another failure to comply in 2007, for breach of curfew, but it wasn't shown on his criminal record.

[18] The father was convicted of mischief under $5,000 and "produce a Schedule 11 substance" (marijuana) in 2007. He received a 3-month conditional sentence on each charge.

[19] Lastly, the father was charged with two counts of uttering threats of bodily harm against the mother in April of 2012. This charge was withdrawn with the father entering into a $500 peace bond for 12 months.

2.2 The Mother

[20] The mother's present whereabouts are currently unknown. She has three sisters, including the maternal aunt.

[21] The mother has also had a troubled life. When she was a teenager, she had behavioural issues and began cutting herself. The evidence indicated she has serious problems with alcohol abuse. She has been involved in several volatile relationships. The witnesses uniformly described the mother as having an explosive temper when under the influence of alcohol. She presently is facing criminal charges related to allegations of assaulting her last partner (not the father).

2.3 The Relationship Between the Parents

[22] The parents met in 2007. They lived together on and off until they finally separated in April of 2012 (when the mother had the father charged with uttering death threats).

[23] The father testified that he took on a parenting role for N.D., who was 2 years old when the parents met.

[24] The parents have had a volatile relationship, which has often been physically violent. The evidence indicates that they would have frequent explosive arguments, screaming at each other with profanity. Much of this violence happened in the presence of the children. These fights were often physical. The police were called to respond to these fights on many occasions.

[25] The father and the paternal grandmother blamed the mother for the violence. They described her as unstable and violent when she was drinking. They both testified that the father was only defending himself during these incidents.

[26] I find that the father and paternal grandmother significantly minimized the father's role in these fights. N.D. reported to the society and to the foster mother how the parents would scream and swear at each other and get into physical fights. She told a society worker that her mother drinks Fax 10 (a high-alcohol beer) every day and that "she is always drunk, but please don't tell her". She advised the worker that she knows her mother is drunk because her mother is always "acting dumb" and getting into arguments with the father and "they swear at each other and they are on top of each other, kicking each other and punching each other and that explains why my mom got a black eye".

[27] I found the child's statements to be reliable. She was consistent in her statements to the society and to the foster mother, who had no motive to fabricate the evidence. N.D.'s evidence was also corroborated by other witnesses. For instance, a society worker deposed observing the mother with a black eye (the father stated this was a result of the mother falling off the bed and hitting a table during rough sex).

[28] The parents lived in the maternal grandmother's home (the maternal home) in the fall of 2010 and early winter of 2011. The maternal grandmother, her partner (G. Br.), and her two daughters (the maternal family) all testified about the violent arguments the parents had while living there – both screaming and using profanity. G. Br. testified that on three or four occasions he came in to see the father on top of the mother during a fight and had to separate them. The maternal aunt testified that after one fight, the mother could not get out of bed, saying her ribs were too sore. The other sister in the home (Ro. D.) testified about how the mother had a bleeding ear after one fight with the father. They all testified that the children would hear these fights.

[29] The children's foster mother testified that N.D. told her that the father used to beat her and yell at her. This statement was corroborated, in part, by Ro. D. She testified that she often observed the father parenting the children (and in particular, N.D.), in a harsh and verbally abusive manner. She observed that the father would curse and yell profanities at the children and often make N.D. cry. She said that she tried to speak to the father about this, but he refused to change his behaviour.

[30] I found the evidence of the maternal family to be straightforward and credible on these issues and preferred it to the evidence of the father, whose evidence the court found unreliable throughout this trial.

[31] The father testified over three days. The court observed that he is a very angry and bitter man. He was easily frustrated and quick to anger. He would quickly become flushed, loud and aggressive, spitting out his answers in anger, at times resorting to profanity. The court has little doubt that he was a significant contributor to the domestic conflict with the mother and that he was verbally (if not physically) abusive to N.D. and the children.

[32] In May of 2011, the mother and the children moved from the maternal home in Brampton to Toronto to live with the father (who had moved into this residence about one month earlier). The paternal grandmother lived upstairs at this residence. The evidence indicates that the frequent fighting between the parents continued during this period. The paternal grandmother testified that she called the police four times over a three month period due to the mother's behaviour being out of control. Another tenant called the police as well. The children were exposed to this behaviour.

[33] The evidence established that the mother had a serious alcohol problem. This is one point that all of the witnesses agreed upon. They all described how her behaviour became explosive when she drank. They also set out how she drank beer (Fax 10) from when she woke up in the morning until she went to bed at night.

[34] The father admitted that he facilitated the mother's alcohol abuse. He testified that he would buy beer for her or give her money for beer when she demanded it. He explained that she would become violent if he did not comply with her demands and that he wanted to keep the peace. The logic of this explanation was odd, as he also claimed that the mother was reasonable to deal with when sober, but out-of-control when she was drinking. He also tried to justify his actions by saying that he bought the mother beer in lesser quantities as a strategy to reduce her alcohol consumption.

[35] The mother was the primary caregiver of the children. She stayed at home with them. The father, despite his concerns about the mother's drinking and unstable behaviour, left the children in her care each day and went to work. He said that he counted on the paternal grandmother, or the other tenant, to check in on her. The father and the paternal grandmother conceded that the children were at risk in the mother's care.

[36] The maternal grandmother testified that she would visit and bring the mother food two to three times each week while she lived in this residence.

[37] None of the adults involved with the mother reported these protection concerns to a Children's Aid Society.

[38] The maternal grandmother testified that she was afraid that if she reported the mother to a Children's Aid Society, the mother would never forgive her and she would lose her relationship with her and the children.

[39] The father testified that he was afraid of the mother's unstable behaviour and was worried that she might physically harm him if he reported her to a Children's Aid Society. Both he and the paternal grandmother also testified about their deep historical distrust of Children's Aid Societies. It is likely that the father and the paternal grandmother also feared that the father's criminal history would limit their involvement with the children if a Children's Aid Society became involved.

2.4 Peel Children's Aid History

[40] The parents (primarily the mother) were involved at various times with the Children's Aid Society of Peel (Peel) from 2007 to 2010.

[41] The mother's first involvement with Peel was in July of 2007. She had just separated from N.D.'s father. She had cut both of her wrists and was hospitalized. She was intoxicated at the time. The society closed the file because they felt that N.D. could be adequately protected with the mother living in the maternal home.

[42] The mother was next involved with Peel in June of 2010. N.D.'s teacher had made a report that N.D. said her mother hit her with a belt and often gets angry at her. The school was also concerned because N.D. had missed 50 days of school. There was a joint investigation by Peel and the police. The Peel records indicate that the mother was observed as being angry and answered questions with attitude. She admitted hitting N.D. with her hand and throwing a baby toy at her. She denied using a belt, but admitted threatening her with it. R.D. was observed as healthy. The investigation concluded that the children were not at imminent risk of harm and warned the mother about the use of corporal discipline and the impact of N.D. missing school. Peel also interviewed the father (who was separated from the mother at the time). Their records indicate that they were aware of his record for sexual offences. The records set out that the father told them he had completed a sexual offender program in Sudbury and that the society had confirmed this with his probation worker.

[43] In their summary, Peel set out the following protection concerns:

a) Mother was reluctant to provide information and withholds information.

b) Mother has a history of harming herself.

c) Mother uses inappropriate methods of discipline.

d) Mother had a bad attitude.

e) Father has a criminal record and one of the charges includes a sexual offence to a minor.

f) N.D.'s poor school attendance.

g) Mother did not want support from the society.

[44] The records listed strengths of the mother as follows:

a) She provides for the immediate needs of her family (shelter, food, clothing, and medical).

b) She attends to the children's medical care.

c) She receives positive support from the maternal grandmother who lives nearby.

d) Father provides financial support when he is able to.

e) N.D. appears to be a happy child.

f) R.D. appeared healthy and well-cared for.

g) Mother has a set routine for the children.

[45] The mother's next opening with Peel was in […] of 2010 while the mother was in the hospital for P.D.'s birth. Her pediatrician had smelled alcohol on her breath and the mother was observed to be argumentative with staff. The hospital felt that she was overwhelmed by having three children. Peel investigated and found no imminent risk of harm to the children. They noted that the maternal family was available to provide the mother with support and she was moving in to live with them. They closed the file because the mother did not want to be involved with them. Their records recommended a more intrusive strategy if there were any future referrals.

2.5 Events Leading to the Children Coming Into Care

[46] On June 23, 2011, the police responded to a 911 call made by the father. The father reported that the mother had deliberately slashed her wrists with a kitchen knife and was bleeding. The mother was taken to the hospital by the police pursuant to the Mental Health Act. The police notified the society about this incident and also told them that the father was on the sexual offender registry. The mother returned to the home later that evening.

[47] On July 13, 2011, the society worker attended the family home and observed the mother's black eye discussed above. The worker spoke with the paternal grandmother who told her:

a) The mother often sleeps and leaves N.D. (then 6) alone to care for her sisters.

b) The mother drinks every day from first thing in the morning until the end of the night and the kids spend a lot of time in their room.

c) She has not seen the mother hit the kids but if she is in a drunken stupor, anything can happen.

d) The maternal side of the family is also "a boozehound" and it's not safe there.

e) Overall, this home is not safe for the children, both homes.

f) She felt caught in a bind because if she offers to help, then it frees up the mother to drink.

[48] The worker discussed with the mother an option of the children remaining with the father and the paternal grandmother. This was rejected by the mother, who raised concern about the father's history of sexual offences against minors. The worker, at this time, had been unaware of this history.

[49] The parents then agreed to place the children in society care pursuant to a temporary care agreement for six months.

[50] The children have remained in the care of the society since July 23, 2011.

[51] Shortly after the children (including N.D.) came into care, N.D.'s father put forward a plan to care for her. The maternal aunt also indicated at that time that she wished to plan for the children.

[52] Two days after the children came into care, the mother advised the society that she wanted the children returned to her.

[53] On August 16, 2011, the parents gave the society written notice terminating the temporary care agreement.

[54] On August 22, 2011, the police attended at the parent's home due to a dispute between them. They noted that the home was in disarray, several household items had been thrown around and alcohol was involved.

[55] The society commenced a protection application on August 22, 2011 seeking a disposition of six month's society wardship for the three children. The same day, a without prejudice order was made by Justice Waldman, placing the three children in the care of the society, with access to the parents in their discretion.

Part Three – Finding in Need of Protection

[56] The society seeks a finding that the children are in need of protection pursuant to sub-clauses 37(2)(b)(i) of the Act. These clauses read as follows:

Child in need of protection

37(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[57] By the end of the trial, only the mother, who didn't attend, opposed the court making a finding that the children are in need of protection.

[58] The evidence was overwhelming that the children were in need of protection for the following reasons:

a) The mother had mental health challenges and engaged in self-harming behaviour.

b) The mother was abusing alcohol while in a care-giving role for the children.

c) The mother acted erratically and violently when under the influence of alcohol.

d) The father was facilitating the mother's alcohol abuse (even when the mother was pregnant), placing the children at risk.

e) The father failed to protect the children by leaving them in the mother's care, while fully aware of her alcohol abuse and erratic behaviour.

f) The parents were engaging in frequent violent fights in front of the children.

g) The father's parenting of the children was harsh, and he was often abusive to them, in particular N.D.

h) The father was easily frustrated and angered. He was a man who struggled to control his emotions.

i) The father had a history of committing sexual offences against minor children.

j) The father had a history of criminal behaviour.

k) The needs of the children were neglected by the parents. In particular:

i) N.D. was taken out of school for several months in 2010 and 2011.

ii) R.D. was in need of speech therapy. All adults, except for the parents accepted this.

iii) N.D. was being left alone at times to care for her siblings.

iv) The children were spending too much time alone in their room. The mother told the worker that this was because she was feeling ill and couldn't take them out. She also said that N.D. was in her room all day by her own choice.

v) N.D. was displaying sexualized behaviour. The mother told the worker that N.D. would sometimes take off R.D.'s diaper when they were playing. At times, N.D. would take off all of her sibling's clothes. She said that she had found N.D. with her siblings under the covers naked. She also said that she witnessed N.D. moving up and down on top of her teddy bear, consistent with the movements of sexual intercourse. The mother told the worker that she was not concerned about this behaviour, believing that N.D. picked it up from watching television.

vi) R.D. and P.D. were observed by the foster mother as being delayed and withdrawn when they came into care. She said that N.D. couldn't read or write. She said that R.D. would only grunt and point. If she put her down, R.D. would not move. She described how the children were tolerant to pain. N.D. would pull on her hair and if R.D. fell down, she wouldn't cry.

vii) The children were observed to be underweight and quickly gained weight in care.

viii) N.D. was drawing disturbing pictures of her mother lying in a pool of blood when she came into care.

ix) The foster mother deposed that N.D. told her about one day when the mother wouldn't take her to school and took her instead to the beer store. N.D. told her that she was crying because she wanted to go to school and her mother was so mad at her that she beat her when she got home.

l) The mother had taken no steps to address her mental health and anger issues.

m) The father had taken no meaningful steps to address the risk concerns about him. He did not (and still does not) believe that there were (or are) any risk concerns about him. He demonstrated no insight at trial about these serious concerns. This exacerbated the risks to the children. In particular:

i) The father described most of the criminal charges against him as "bogus or bullshit". He either stated or implied that there were conspiracies involved in most of the convictions against him. Despite his guilty plea to sexual interference with his step-sister, he denied doing anything wrong and said he only pled guilty on the advice of his lawyer. With respect to the second sexual interference conviction, with a 13 or 14-year old girl, he implied that this charge was revenge for a dispute his fiancé had with the complainant's friend. He said that he only hugged and kissed this girl and he thought she was 16 years old.

ii) The father claimed that he never threatened death (the 2002 conviction), despite pleading guilty to this. He explained that his fiancé had made the threat and he made the plea to protect her. When convicted of mischief in 2007, he claimed this was "bogus", as it was his home that had been broken into. He did admit that he was in possession of marijuana and growing three small marijuana plants, but implied that his family (other family members were arrested that night) had been targeted by the police.

iii) The father does not believe that he ever was a sexual offender. He took a sexual offender relapse program while in prison, but did so unwillingly, stating that he was forced to take it and describing it as grotesque. He has not engaged in any other meaningful counseling to address this risk concern. He is offended by the notion that he should have to engage in any such counseling.

iv) The father said that he has taken nine anger management courses, but it was clear that he only did so to satisfy courts. He completed another course in 2012 and when asked what he learned from this program, he said that he learned that he was a victim of domestic abuse. He seemed to have some understanding that he has an issue with anger, but would generally use the word passionate to describe himself when discussing his behaviour. The father is not passionate. He is a very angry and troubled man.

v) The father claimed that he had a wonderful relationship with N.D. This appears to be a skewed view, as N.D. is adamant that she fears him and wants nothing to do with him. N.D. has been consistent in expressing this fear to workers and her foster mother. The father appeared to be unaware of the effect his anger and behaviour had on her.

vi) The father took absolutely no responsibility for the domestic conflict with the mother, instead taking on the role of victim, despite significant evidence that he was an active participant in the conflict.

vii) The father showed virtually no insight into the effect the parents' behaviour had on the children.

viii) The father rationalized leaving the children alone with the mother, at some points minimizing the risk she posed to the children. (At other times, however, he described significant risks). This was consistent with his approach he took at trial to deflect or minimize any responsibility for the children coming into care.

[59] There will be a finding that the children are in need of protection pursuant to sub-clauses 37(2)(b)(i) and (ii) of the Act.

Part Four – Disposition

4.1 Legal Considerations

[60] The court's disposition options in this case are set out in subsection 57(1) of the Act. This subsection reads as follows:

Order where child 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 or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. 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

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for 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. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).

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

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

[63] Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help children, provided that it is consistent with the best interests, protection and well-being of the children.

[64] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding to place children in care.

[65] In determining the appropriate disposition, I must decide what is in the children's best interests. I have considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

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:

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

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

3. The child's cultural background.

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

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

6. The child's relationships by blood or through an adoption order.

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

8. 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.

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

10. The effects on the child of delay in the disposition of the case.

11. 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.

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

13. Any other relevant circumstance.

[66] 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- Family Branch).

[67] In determining the best interests of the children I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the children's perspective. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

4.2 Review of Evidence After the Children Came Into Care

[68] The children were placed together in the same foster home after they came into care.

[69] Supervised visits with the children were set up for the mother at the society office. They were scheduled twice each week.

[70] The society was unable to arrange a meeting with the father until October of 2011. He was advised then that the society required more information about his criminal record before they would start his access. The father signed the necessary consents to obtain this information.

[71] Both parents filed Answers/Plans of Care. They were jointly planning for the children at that time.

[72] The mother's access was problematic. She would frequently miss visits. There was an incident at an October, 2011 access visit where she pushed a society worker.

[73] The society also had difficulties with the father. He was advised that he was not permitted at the society offices unless specifically asked by the society. There were occasions where he would attend at the offices and wouldn't leave when asked. The father also had incidents where he became verbally abusive to society staff, swearing at them and belittling them. Society witnesses noted that he would blow up, apologize, calm down and then start all over again. They observed that he couldn't regulate his emotions.

[74] The father acknowledged this behaviour and explained that he was becoming increasingly frustrated with not seeing the children. He felt that he had to "barge his way in to be seen and heard".

[75] The parents continued to live together until April 17, 2012 when the mother called the police and the father was charged with two counts of uttering death threats to the mother. His release conditions required that he not contact the mother. The mother advised the society that the father breached this order by coming to the home.

[76] The father deposed that the mother's alcohol abuse and her violent and erratic behaviour continued until they separated. He denied threatening the mother. He testified that the mother abused alcohol through all of her pregnancies.

[77] The father brought a motion for access. On May 8, 2012, Justice Waldman made a temporary order that the father could have bi-weekly supervised access at the society office. He had his first access visit with R.D. and P.D. on May 25, 2012. N.D. made it clear that she wanted no contact with the father and has had no access with him.

[78] The father has consistently attended all of his access visits since that time. His access has been expanded, on consent, to once each week, for one and one-half hours at the society office. The paternal grandmother attends with the father on every third visit.

[79] The mother's attendance at access has continued to be erratic. Her visits were reduced to the same length as the father's.

[80] In July of 2012, the Catholic Children's Aid Society of Toronto (CCAS) attended at the home of the father's brother, who was also his surety, due to a referral about the state of the home. The police became involved and advised CCAS that the father was on the sex offender registry. The father deposed that he was required to leave the home or else his brother was at risk of having his children apprehended. He deposed that he had an anxiety attack and was taken to the hospital. He said that he was prescribed Lorazepam, a drug that he has been prescribed before for his anxiety issues.

[81] The father deposed that he then moved into a shelter. When asked why he didn't move back in with the paternal grandmother, it appeared that this was due to the paternal grandmother's landlord not wanting either of the parents to live there.

[82] On November 2, 2012, the society amended their protection application to seek a disposition of crown wardship.

[83] On November 6, 2012, N.D. was placed with her biological father pursuant to a supervision order. She continues to live with him in Sudbury and is reportedly doing well.

[84] The children have continued to live with the same foster parent. They visit every three months with N.D. All witnesses testified that the sisters are very close and these visits are very important for them. R.D. will often cry when N.D. leaves.

[85] On November 21, 2012, the father filed an Amended Answer/Plan of Care to place the children in his care and in the alternative, with him and the paternal grandmother.

[86] On December 12, 2012, the mother filed an Amended Answer/Plan of Care seeking the placement of the children in her care, without further order. In the alternative, she sought an order placing the children in the care of the maternal grandmother, subject to a supervision order.

[87] On August 19, 2013, the mother gave birth to G.B. He was apprehended at birth by the society and has remained in their care.

[88] In June of 2013, the mother was criminally charged in relation to a domestic altercation with G.B.'s father.

4.3 The Maternal Grandmother's Efforts to See the Children

[89] The maternal grandmother asked the society for separate access soon after the children came into care. This request was denied as the society felt it was too difficult to arrange separate access for her and for the parents. The maternal grandmother was permitted to come with the mother for visits. Her ability to see the children was often frustrated when the mother didn't want her there or by the mother's erratic attendance. The court is satisfied that she has made her best efforts to visit with the children.

[90] The maternal aunt has also come on some of the visits.

[91] The maternal grandmother advised the society at an early stage in this case that she would like to put forward a plan to care for the children with her partner, G. Br.

[92] The society referred the maternal grandmother to their kinship department for an evaluation of her plan. The maternal grandmother cooperated with this process. She was not represented by counsel at the time.

[93] The society produced their kinship report of this plan, dated April 5, 2012, at trial. The plan was rejected because:

a) The society found that the maternal grandmother was aware of the protection concerns about the parents and did not protect the children. They determined that she has no control over the mother.

b) The family had involvement with Children's Aid Societies due to conflict in the home when the mother was a teenager. It appears that most of the conflict was between the mother and the maternal grandmother and the mother and her sisters.

c) The police had recently been called due to a dispute between the maternal aunt and her sister Ro. D. (this information was provided by the maternal grandmother at a meeting with the kinship worker on January 17, 2012).

d) The maternal grandmother works full-time and would have to rely too much on family help to raise the children.

[94] It appears that the maternal grandmother's plan was not given any serious consideration after this report was delivered.

4.4 Services Provided

[95] The following services have been provided for the family by the society:

a) The parents were provided with an Infant Nurse Specialist.

b) The mother was referred to programs for alcohol abuse and encouraged to obtain hair strand testing. The mother did not follow through with these referrals.

c) The mother was provided with bus tickets to attend access visits.

d) The father was referred to the "Being a Dad" program. This is a program for fathers involved in domestic violence. Unfortunately, this program did not get beyond the intake stage as the father was charged with assaulting the mother in 2012. A requirement of the program is that fathers cannot be facing active criminal charges.

e) The father was asked to complete a program dealing with sexually offending behaviour and violence. The father did not do this, as he did not believe himself to be a violent man or a sexual offender. He felt that attendance would be an admission that he was both these things.

f) R.D. is receiving speech therapy.

g) P.D. is on the wait-list for speech therapy.

h) The children will each have a Fetal Alcohol Assessment at St. Michael's Hospital in December of 2013. These are important assessments as the mother was drinking heavily throughout all of her pregnancies.

i) The children have been referred to the Blue Hills Treatment Centre for developmental assessments.

[96] Some society witnesses expressed concern with the father's parenting of the children at access visits, observing that he often engaged in parallel play, not directly engaging the children. They observed that he often had difficulties managing the children's behaviour and could, at times, be inflexible – if he had planned an activity he wanted to finish it, even if the children wanted to play something else. The father could have benefitted from the society's Therapeutic Access Program, where direct parenting assistance and guidance is provided.

[97] The maternal grandmother was not provided with any services or given any guidance about how to address the society's concerns about her plan.

4.5 The Children

[98] R.D. was described by witnesses as a beautiful, outgoing, active, cheerful and well-behaved child. She enjoys reading books, playing with her siblings and athletic activities. She has a bright smile, lots of energy and a fiery personality. She has started junior kindergarten and is doing well. She is described as well-liked, with many friends. She has made many gains in her development in foster care. She goes to speech therapy and her speech is much improved.

[99] P.D. was also described by witnesses as a beautiful child with a bright smile and lots of energy. She is a bit quieter than R.D.. She is lively and likes to dance. She is described as being very connected with R.D.. She is on the wait-list for speech and language services and will attend the Fetal Alcohol Assessment in December. No other developmental delays have yet been noted.

4.6 The Plans of Care

4.6.1 The Society Plan

[100] The society's plan is to have the children made crown wards and placed for adoption. The society is confident that the children are adoptable. This fact was not contested. The society's plan is to have the children placed together. Their plan is to look for an adoptive home that would facilitate the children's access with N.D. If G.B. is made a crown ward, the society's plan is to try and have him placed in the same adoptive home as his sisters.

[101] The foster mother testified that she loves the children and would like to adopt them, but can't manage this without financial assistance. At this point, it appears that, whatever order this court makes, the children will be moved from this home.

4.6.2 The Mother's Plan

[102] The mother did not present her plan at court. Her whereabouts are unknown. Given the facts set out herein, her plan is not viable and does not merit further analysis.

4.6.3 The Father's Plan

[103] The father's primary plan is for the children to live with him at his current residence. The father lives in the basement of a house and says it has adequate room for the children. The father said that the home has a fenced-in front and back yard and is attached to a park, where the children can play. There is one other tenant in the basement. The owners of the home live upstairs and will occasionally use the basement to do their laundry.

[104] The father says that he is looking for better accommodation near the paternal grandmother's home. He currently says that he cannot afford the more expensive rents in that area. Whether he moves or stays where he is, the father wants to enroll the children in the school near the paternal grandmother's home. He says that he had a positive experience with this school when N.D. attended there. He would have P.D. attend a daycare that is situated in the same school.

[105] The father plans to work full-time. The children would be dropped off with the paternal grandmother in the morning. She would then take them to school and pick them up from school at the end of the school day. The father would then pick up the children after he finishes at work and take them home. The father says that he would like to see the children spend two to three nights each week at the home of the paternal grandmother.

[106] The father testified that he is flexible about his housing situation. He said that if the court does not think that his current housing is adequate, the children could live with the paternal grandmother until he found acceptable housing.

[107] The paternal grandmother is 49 years old. She lives with a partner who is a driver for a moving company. The paternal grandmother is currently unemployed. She testified that she is ready, able and willing to assume the supportive role described by the father. She said that she wasn't able to put forward a plan to care for the children on a full-time basis, but would be prepared to care for them in the short-term, as proposed by the father. She said that she would put off looking for employment to support the father's plan.

[108] The father testified that his brother and sister-in-law, who both reside in Toronto, are also prepared to assist him.

[109] The father proposed that the mother have access supervised at the society office. He says that their relationship is over.

[110] The father and the paternal grandmother testified that they are both prepared to work cooperatively with the society and comply with any conditions of supervision required by the court.

4.6.4 The Joint Plan of the Maternal Grandmother and the Maternal Aunt (the Maternal Plan)

[111] The maternal plan involves G. Br. and Ro. D. assisting the maternal grandmother and maternal aunt in caring for the children.

[112] The maternal plan is that the children would live in the maternal home in Brampton. This is a 3 bedroom, 2 story, semi-detached home, with a finished basement. Living in the home are the maternal grandmother, the maternal aunt, her 14-year-old son, Ro. D. and G. Br. It was suggested to the court that Ro. D. might move out of the home to permit more space for the children.

[113] The maternal grandmother plans to apply for subsidized daycare for P.D. She would send R.D. to the local school. She said that this school is within walking distance of the maternal home. If she is not working, she would drop off and pick up the children at school. When she is working, the plan is for either the maternal aunt or G. Br., who is retired, to do this.

[114] The maternal plan is to involve the children in activities. There is a park close to the home and the children would attend the local library.

[115] The maternal grandmother and the maternal aunt are aware of the children's speech issues and stated that they would take them for speech therapy.

[116] The maternal plan is that the parents should not come to the maternal home for access. The maternal grandmother asked the court to make a restraining order against the mother, to assist her in keeping her away. The maternal grandmother and maternal aunt suggested that any access by the parents be supervised and that they each have one visit per month.

[117] The maternal grandmother stated that she will also be putting forward a plan to care for G.B. and said that she already has a crib for him.

[118] The maternal grandmother and the maternal aunt are prepared to care for the children on a long-term basis.

[119] The maternal grandmother is 57 years old. She deposed that she is in good health. She has raised four girls. She separated from her husband when the children were very young and raised them alone for several years. She was on social assistance for a short period, but went back to school, upgraded her reading skills, took a course and became a personal support worker. She has been steadily employed since 1996 as a personal support worker at a retirement home. She does not have a criminal record. She deposed that she rarely consumes alcohol and does not use drugs. She works from 7 a.m. until 3 p.m., five days a week. On alternate weeks, this includes working on the weekends.

[120] The maternal aunt is 31 years old. She has been living with her mother her entire life. She has been steadily employed for the past 7 years as a laboratory technician. She says that her hours can vary between 20 to 40 hours each week. There are some weeks where she is not needed at work. She separated from her son's father when her son was 3 years old and he has been out of their lives since her son was 8 years old. She testified that the maternal family will provide a great and loving home for the children. She said that she only drinks alcohol occasionally and has an excellent relationship with everyone in the household. She does not have a criminal record.

[121] The maternal aunt has twice been briefly involved with Peel. Both times this was due to being the victim of domestic violence. She has extricated herself from these relationships and it presently isn't a protection concern.

[122] The maternal aunt's son has been raised in the maternal home. He was described as a healthy, happy and nice boy. He is in high school and doing well.

[123] G. Br. has been living with the maternal grandmother since 1988. He is 76 years old and has diabetes. He indicated that he is physically strong and goes to the gym to lift weights. He used to work as a cook and is in receipt of pensions from Canada and Great Britain. He has seven children of his own. He testified that he remains in contact with all of them and has good relationships with them. G. Br. testified that he was involved in raising the maternal grandmother's children and that, with the exception of the mother, he has positive relationships with all of them. He does not have a criminal record. He testified that he is willing to do whatever is necessary to assist with the maternal plan.

[124] Ro. D. is 37 years old and has also always lived with her mother. She says that she does not use drugs and only occasionally drinks alcohol. She testified that she was the victim of domestic abuse by a former partner, but has extricated herself from that relationship. This is not presently a protection concern. She plans to move to Toronto to find work as a hairstylist, but is prepared to provide whatever support is required for the children.

[125] The maternal grandmother has one other daughter, who lives in Toronto, with her husband and their 8-year-old child. This daughter is a supervisor in a daycare facility. The maternal grandmother testified that she has a good relationship with this daughter.

[126] The maternal family members described how they work as a team ensuring that all chores are done and the bills are paid.

[127] The maternal family members testified that they are willing to fully cooperate with the society and comply with any conditions of supervision made by the court.

4.7 Analysis of the Father's Plan

4.7.1 Positive Considerations

[128] The following are the positive considerations in support of the father's plan:

a) He loves the children very much. When the father talked about the children at trial, his anger would recede.

b) The children would have the opportunity to live with a biological parent and maintain relationships with their paternal family.

c) The father has come on time and attended all of his access visits. This demonstrates commitment, responsibility and organization.

d) The evidence indicated that the father has demonstrated many parenting strengths at visits such as:

i) He comes organized for visits, thinking of activities to engage the children. He brings toys, paints and crayons.

ii) He engages the children in educational activities.

iii) He brings appropriate snacks and food for the children.

iv) He expressed that he wants the children to have fun at visits and he usually accomplishes this.

v) The father and children laugh and play together.

vi) The father was observed by many workers to be affectionate with the children. The children often rush to greet him.

vii) He is often able to utilize strategies to redirect the children's behaviour and to comfort them when they are upset.

viii) He is able to get the children to clean up at the end of visits.

Taking into consideration the society's observations of his parenting limitations set out in paragraph 96 above, I find that, overall, the father has positive access with the children.

e) The father's behaviour with society workers has improved in 2013.

f) The father appears to have ended his dysfunctional relationship with the mother.

g) The father wants to be a good parent for his children and be a big part of their lives.

h) The father appears to have a close relationship with the paternal grandmother. She is willing to provide him with significant parenting support.

4.7.2 Negative Considerations

[129] Despite these positive factors, it is not in the best interests of the children to be placed with the father. The risk to the children would be far too great. The following are the court's concerns with the father's plan:

a) He has not taken any meaningful steps to address the profound risk concerns set out in paragraph 58 above. He did take one anger management course, but the primary message he got from this program was that he was the victim of domestic abuse.

b) The father demonstrated no insight into the protection concerns about him and his role in the children coming into care. He minimized or deflected any concern. He takes little, if any, responsibility for his criminal history. He accused multiple persons of lying, exaggerating or manufacturing allegations against him. These persons included workers from the society, members of the maternal family, the foster mother and the police. He identifies as a victim and believes that the stated risk concerns are all unfair. This lack of insight and accountability mean that he is unlikely to be able make the necessary changes in his life to adequately address these risk factors.

c) The court observed that the father is quick to anger and is easily frustrated. When this happens, he becomes aggressive and can be profane. It was easy to see why N.D. is frightened of him.

d) The father continued to defend at trial what was described by some witnesses as a harsh disciplining style. At one point he declared, "This is how I was raised. This is the discipline I was taught. This is what I intend to do". It is sad that he feels this way as he was raised, in large part, by an abusive father. The court has no confidence that the father would be able to maintain his self-control with the children outside of a highly structured setting, such as supervised access. There is an unacceptable risk that he would resort to harsh parenting, if the children frustrate or defy him.

e) The father demonstrated little understanding of child development. He did not believe that R.D. had speech issues, despite strong evidence to the contrary. He did not take seriously N.D.'s sexualized behaviour, blaming it on her watching this behaviour on television.

f) Given the father's history of sexual offences and lack of meaningful treatment, this becomes a greater concern as the children become older. The father's evidence about these offences was not reliable. Children should not be left alone with him until a clinical assessment of this risk is undertaken.

g) The father exercised terrible judgment with the children prior to their coming into care. He facilitated the mother's alcohol abuse and left them in her care despite his awareness of the risks she posed to them. He was aware that she was drinking heavily throughout her pregnancies and stated that he was aware of Fetal Alcohol Syndrome. He testified that he attended on several medical appointments for the children (including when the mother was pregnant with G.B.) and never advised the doctors about the mother's drinking. I did not see or hear any evidence that would satisfy me that the father's judgment has changed since the children came into care.

h) The father's life has been marked by instability and criminal behaviour. He frequently changes residences and is often unemployed. His relationship with the mother was unstable and chaotic. He continues his dishonest behaviour, working for cash and collecting social assistance. The father is not able to provide the children with the stability and moral guidance that they need.

i) I accept the society's evidence that the father's current housing is not suitable accommodation for the children. The society investigated the home and found it damp and cluttered. There is another tenant living in the basement - little is known about him. The father's alternate plan is for the children to stay with the paternal grandmother until he finds another residence. It is uncertain when he would be able to afford this, as he indicated that rents are much more expensive in her area. The housing plan is too uncertain and not in the best interests of the children.

j) There are also concerns about the paternal grandmother, such as:

i) She had difficulties managing her own children who were in and out of foster care. She was unable to protect her children, who for whatever reason, lived much of their lives with an abusive and alcoholic father with a criminal record.

ii) She presented as very protective of the father and often tried to rationalize behaviour that shouldn't be rationalized. She did not believe that the father sexually interfered with his step-sister, despite his conviction, and believed the father's son's story that the sexual interference conviction with a 13-year-old girl was a misunderstanding. She also minimized his responsibility in the domestic violence with the mother.

iii) Despite her significant concerns about the mother and the risk she posed to the children, she never called the society to protect them. She attributed this to her historical distrust of Children's Aid Societies. The court has no confidence that she would call the society if a protection concern arose that would adversely affect the father.

iv) Her credibility was seriously damaged when she admitted that her allegations to the society workers that the maternal family was "a bunch of boozehounds" and the children would be unsafe in their home were exaggerated. She admitted she said this to prevent the children from going there.

v) The court does not have confidence that the paternal grandmother would comply with a supervision order or be honest with the society.

k) The father is also a very poor candidate for a supervision order. He has a deep animus towards the society. He has started an internet blog entitled, "Stop the Children's Aid Society from taking Children from Good Parents". He believes that the society is responsible for his current predicament. The father has a history of disregarding society conditions, such as not attending at the office, when instructed not to do so. In June of 2013, the society learned that he was posting pictures of the children on his Facebook page. The society explained to the father that it was the society's policy that pictures of children in care not be placed on public sites for security reasons, but the father could post the pictures on private settings for family and friends. The father was and continued at trial to be infuriated by this request and continued to post pictures of the children publicly. Lastly, the evidence is overwhelming that the father is often dishonest. Transparency and honesty are critical to a supervision order being effective. Supervision terms would not be adequate to protect the children in the father's care.

4.8 Analysis of the Maternal Plan

4.8.1 Concerns About the Maternal Plan

[130] The primary concern about the maternal plan is that during the time the parents lived in the maternal home (approximately September of 2010 to February of 2011), the maternal family did not take adequate steps to protect the children.

[131] The maternal family was aware that the mother was drinking daily and acting erratically while caring for the children. They were also aware that the children were being exposed to significant domestic violence between the parents.

[132] The maternal grandmother said that she didn't want the father in the maternal home, but the mother would not listen to her and would keep sneaking the father back in. She admitted that she couldn't control the mother.

[133] Nobody in the maternal family called a Children's Aid Society, despite the evident risks to the children.

[134] The maternal grandmother also failed to advise the society that the mother was pregnant with G.B. and drinking, putting him at risk. This raises a concern about her placing the mother's interests ahead of her grandchildren's.

[135] The maternal grandmother admitted that she thought of calling a Children's Aid Society but was convinced that if she did so, her daughter would never speak to her again. While the court understands the difficult situation she was in, she compromised the safety of the children with her inaction. It is a very real concern that when faced with this decision in the future, she might again compromise the safety of the children. The mother has a forceful personality. How will she handle the mother when she inevitably comes knocking at her door or constantly phones her to speak to the children?

[136] It is clear that the other members of the maternal family followed the maternal grandmother's lead in not reporting their concerns to a Children's Aid Society. The court is concerned whether they will report a protection concern about the children in the future.

[137] A secondary concern is that there has been some conflict in the maternal home between the maternal aunt and Ro. D. The police were called in late 2011 or early 2012 to intervene in one dispute. The maternal grandmother testified that on a few occasions the sisters fought, pushed each other and threw things at each other, requiring her to intervene. The children have already been exposed to too much domestic violence. They require a peaceful and stable home.

[138] The court also has some concerns with the details of the maternal plan. G. Br. will be playing a role in caring for the children and is 76 years old. At his age, there is an issue about how long he will be able to significantly contribute to the plan. It is unknown how long it might take the maternal grandmother to obtain subsidized daycare for P.D. The maternal grandmother and the maternal aunt both work full-time. While G. Br. will likely be able to assist with school exchanges, how will they coordinate the various medical appointments, speech therapy sessions and access visits for the children? These can't be compromised.

[139] It is a huge undertaking to take on the responsibility of caring for two young children and possibly a third, if the maternal plan for G.B. is eventually approved. The family sometimes struggles to pay their bills and there will be significant financial pressure with these family additions. The maternal family cannot count on financial support from the parents.

4.8.2 Positive Factors in the Maternal Plan

[140] I find that the positive factors in the maternal plan outweigh the concerns. They are as follows:

a) The members of the maternal family love the children and are very motivated to provide a good home for them.

b) The maternal family has demonstrated that they are able to provide a positive home for children. The maternal aunt's son has been raised in this home and the evidence indicates that he is thriving. If they can positively parent him, it stands to reason that they are capable of positively parenting the children.

c) The maternal family members impressed the court as being loving and supportive to one another. They have been a team in raising the maternal aunt's son. They all spoke about their admiration of the maternal grandmother. Her daughters also spoke fondly about G. Br., and about how he was a kind and loving father figure for them.

d) The society reported that the maternal grandmother interacts well with the children at visits and the visits are pleasant. She reads to the children and plays with them. The children enjoy their time with her. One society worker noted that the maternal grandmother would often give the mother positive direction at visits. Little concern was expressed in the society's evidence about the ability of the maternal grandmother and maternal aunt to manage the children on their visits.

e) The maternal grandmother is an impressive person. She raised four daughters as a single mother (until she was assisted by G. Br.). With the exception of the mother, her daughters are all doing well. She went back to school to upgrade her education and improve herself. She has been steadily employed and was able to save enough money to buy her home. She is a resourceful and determined woman. These are excellent qualities for the children to be exposed to.

f) The children will have the opportunity to be raised within their own family.

g) The children will be able to maintain their cultural heritage. The father is French-Canadian and the maternal grandmother was born in Jamaica.

h) The children will remain together. While the society would likely be able to find an adoptive home for them together, there is always a risk that this wouldn't happen.

i) The children will be able to maintain their important relationship with N.D. The maternal grandmother wants to encourage this. The society's plan is to look for an adoptive placement that will continue sibling contact, but there is less assurance of this actually happening with their plan.

j) The children will be able to maintain their relationships with their parents. This would not happen if the society's plan was ordered. The children enjoy their access with their father, and to a lesser extent, with their mother. It would likely be difficult for them to lose these relationships.

k) The maternal home has been described as clean, well-kept and well-organized. It is suitable accommodation for the children.

l) The court is confident that the maternal family will take care of the children's instrumental needs (proper feeding, clothing and hygiene).

m) The maternal family works co-operatively with one another. They take a team approach to the management of the home and the children in it. The court is confident that they will continue to do this and take the necessary steps to manage the children's schedules and attend to their needs.

n) While the children have some special needs, they are not so great that they can't be managed by the maternal family. The children have also been described as delightful and well-behaved, which will make them easier to manage.

o) The children will likely have to be moved and adjust to a new home, whatever order the court makes. They have more familiarity with the maternal family, which will ease this transition.

p) After hearing the maternal family members testify, I am satisfied that they are aware of the risks posed by the parents to the children, and the necessity to call the society if protection concerns arise. They all promised to contact the society if the mother comes to their home.

q) The maternal family members struck me as honest and lawful persons who would obey a court order. They all promised to comply with any supervision terms that this court orders. The court is satisfied that they will comply with such terms.

r) The maternal plan is the least disruptive alternative, consistent with the best interests of the children and meets the court's mandate under subsection 57(4) of the Act to consider placing children with family members before ordering that they be placed in society care.

[141] The court appreciates that there is a qualitative difference now from the situation the maternal family faced when the parents lived with them in 2010-2011. At that time, the maternal family did not have the authority of a custody order, or the support of a Children's Aid Society behind them. At the time, they were at risk of losing their relationship with the mother and the children, if they crossed her. They were afraid that if she left, the risk to the children would increase. Now, they are in charge. They will not lose the children if they call the society and protect them. They are no longer powerless. They will only risk losing the children if they breach the supervision terms that this court will make.

[142] The court recognizes that the society was operating with some false and incomplete information when evaluating the maternal grandmother's plan. The society had received information from the mother, the father and the paternal grandmother that there were severe alcohol issues in the maternal home. When combined with the police call about the maternal sister and Ro. D, the society understandably thought that a placement in this home would just be a continuation of the conflict and instability that the children had already endured. However, this foundational concern proved to be false and maliciously alleged in order to prevent placement of the children in this home.

[143] The society also operated under the assumption that the maternal family was aware of the father's history of sexual offences and did not protect the children. The evidence satisfied me that the maternal family was unaware of the father's past until the court case started. I believed the maternal grandmother when she stated that if she had known about the father's criminal history, she would have not permitted him in the home.

[144] The society's kinship worker also did not appear to have reviewed the Peel records, who had twice approved the maternal family as a protective influence for the children, as well as providing an appropriate home for them.

[145] It was interesting in reviewing the Peel records that they were aware of the father's history of sexual offences and did not appear to warn the maternal grandmother. Peel was aware of the mother's mental health issues, including her cutting, her alcohol abuse (likely including her usage while pregnant, as this was an issue at birth) and her argumentative behaviour, as well as the father's background. Yet they took no further steps. The maternal family's inaction should be considered within this context. There is plenty of blame to go around as to how the children were permitted to live so long with dysfunctional parents.

[146] The court finds that the maternal grandmother has been willing to plan for the children throughout this case. She has attended access whenever permitted to. Unfortunately, she did not retain counsel until the trial, and as father's counsel said, she is an unsophisticated litigant, and did not know how to present her plan once it was rejected. Due to incomplete and misleading information, the society gave no further serious consideration to the maternal plan after the kinship report and this plan was not fully examined until this trial.

[147] The court will not require Ro. D. to leave the maternal home as a term of supervision. The court accepts that the conflict between her and the maternal aunt has settled down and that both of them appreciate that it would be damaging to the children to expose them to domestic conflict. Ro. D. can be another useful pair of hands in raising the children.

4.9 Final Analysis of Plans

[148] Applying the best interest considerations set out in subsection 37(3) of the Act, the court finds, based on the evidence and analysis set out above, as follows:

a) The society and maternal plans both properly address the children's physical, mental and emotional needs and the appropriate care or treatment to meet those needs. The father's plan does not.

b) The society and maternal plans both properly address the children's physical, mental and emotional level of development. The father's plan does not.

c) The plans of the father and the mother both address the children's cultural background. It is unknown if the society would be able to find a home that would maintain these cultural roots.

d) The court received no evidence about the children's religious faith.

e) The society and maternal plans will both provide the children with positive relationships with caregivers and with being secure members of a family. The father's plan will not.

f) The maternal plan best meets the children's needs to maintain their present relationships and emotional ties to their parents, relatives, extended family, and most importantly to N.D.

g) The maternal and society plans both provide the children with continuity of care. The father's plan does not.

h) The merits of each plan have been examined above in detail. The court finds that the maternal plan is in the children's best interests.

i) The children are too young to express their views and preferences. However, the fact that R.D. cries when her visits with her father end and both children rush to greet him informs the court that they would not want to lose this relationship.

j) The society plan has the most long-term certainty for the children as it would eliminate the parents from the children's lives. There would be no further litigation (subject to any appeal). The father has a very forceful personality, a view that the children belong to him, and has stated that he will never rest until they are returned to him. This sets up the potential for destabilizing litigation between the father and the maternal family in the future. This is no fault of the maternal family, but it is a reality and a consideration.

k) The risks of harm have been reviewed above. The court finds that the risks inherent in the maternal plan can be adequately addressed with a supervision order. The risks of placing the children with the father are far too high. The risks of harm that resulted in the children being placed into care have not abated with respect to him.

[149] The court finds that it is in the best interests of the children to be placed jointly in the care of the maternal grandmother and the maternal aunt for a period of six months, subject to society supervision.

Part Five – Transition and Supervision Terms

[150] The court's stated concerns about the maternal plan dictate that there be strict and clear terms of supervision. Most of these conditions relate to access and will be discussed in the section below. The maternal grandmother and maternal aunt will be required to permit scheduled and unscheduled visits by society workers, allow them to meet privately with the children and to sign any consents required to permit society workers to speak to service providers for the children. They shall be required to take the children to all scheduled assessments and follow medical recommendations.

[151] Expectations of the society will also be set out during the term of the supervision order. They have an important role to play in ensuring that this plan works for the children.

[152] The children will undoubtedly have some distress transitioning to a new home. They have lived with the current foster mother for over two years. This transition should take place in a sensitive and child-focused manner. The maternal family will also need to make adjustments to their living arrangements and apply for subsidized daycare for P.D. They could use a short period of time to determine what clothing, supplies and toys they need for the children and to enroll R.D. in school.

[153] It is in the best interests of the children to transition into the maternal home over the next month. In the first two weeks, they are to have full-day visits on Saturdays and Sundays in the maternal home. In the following two weeks, the children are to spend the entire weekend in the maternal home. The children will then move into the maternal home permanently at the end of the fourth weekend.

[154] The court wants to provide the maternal grandmother, the maternal aunt and the society some flexibility with the transition plan as they will be best positioned to assess the adjustment of the children to the maternal home. If they all agree, they may modify the transition schedule, including, dates and times. They may also agree to extend the transition schedule up until the end of November of 2013. However, they are not to extend the return of the children to the maternal home beyond the end of November of 2013, without my prior approval.

[155] The court makes the following suggestions (not orders) to ease the transition from the foster mother's home to the maternal home:

a) The maternal grandmother should attempt to rearrange her work schedule to be home for the next five weekends. The children will likely adjust to their new home better if she is consistently present at the start of this process.

b) The society should meet with the maternal grandmother and the maternal aunt after each access weekend to discuss if any modifications to the transition schedule are warranted that would ease the children's adjustment into the maternal home. These meetings would also be an excellent opportunity to ensure that the necessary services are being arranged for the children.

c) The society should set up a meeting between the maternal family and the foster mother to exchange information about the children and coordinate their transfer. It might also help the children to arrange some contact with the foster mother after the transition to the maternal home takes place. It will be difficult for them to leave the person who has been their caregiver for over the past two years.

Section Six – Access

6.1 The Law

[156] The parents equally had charge of the children immediately before society intervention under Part III of the Act.

[157] The test for access when children are removed from the persons who had charge of them immediately before society intervention under Part III of the Act is set out in subsection 59(1) of the Act, which reads as follows:

Access: where child removed from person in charge

59(1) Where an order is made under paragraph 1 or 2 of subsection 57(1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with him or her would not be in the child's best interests.

[158] The court has considered the best interest considerations set out in subsection 37(3) of the Act in determining that continued contact with the parents is in the children's best interests.

6.2 Positions

[159] The society submitted that if the children are placed with the maternal grandmother and the maternal aunt, there should be an order of no access to the mother and an order for access to the father, supervised in their discretion.

[160] The father has asked for unsupervised weekend access. The mother also sought generous access in her Answer/Plan of Care.

[161] The maternal plan is that the parents have supervised access, each once per month.

6.3 Analysis

[162] I find that continued contact with the parents, on the terms and conditions that will follow, is in the children's best interests.

[163] The children have developed a positive relationship with the father at the supervised visits. They look forward to seeing him, and R.D., in particular, is sometimes upset about ending these visits. If the father is responsible in exercising his access, and does not undermine the children's placement, it will be beneficial to the children for his access to continue.

[164] It is not in the best interests of the children to make a "no access" order against the mother. The evidence indicates that the children enjoy their visits with her. Further, if the mother does not have an opportunity to see the children, this will only create more pressure on the maternal family, as it is likely that the mother would attempt to illicitly have contact with the children.

[165] The priority for the children at this time is to give the maternal plan the best possible chance of success. For that to happen, clear boundaries have to be set for the parents. Given the strong personalities of the parents, their history of confrontational behaviour and, in particular, the father's belief that the children are his and he is being unjustly kept from them, there is a real risk that the parents could undermine this placement. The children have already witnessed far too much conflict and this cannot be turned into a continuing battle over who will raise them.

[166] The court wishes to make it crystal clear to the parents that this is a final disposition of who will be raising the children. It is not intended as a 6-month holding order. The maternal grandmother and maternal aunt will be raising these children. The parents are not to interfere with this. All that will be reviewed when the case returns to court is whether the maternal grandmother, the maternal aunt and the parents have complied with the supervision terms and what further supports, if any, will be required. The issue of access can also be discussed, provided that the parents have complied with all of the conditions that will be set out in this order.

[167] Since the children will not be placed with either parent, frequent access to evaluate their parenting is no longer required.

[168] The court also has to consider the logistical challenges that the maternal family will be facing. They need to get the children to school and to daycare, take them to activities, to assessments that have been arranged, to speech therapy sessions and medical appointments. They need to coordinate this while working full-time. They have to come from Brampton to Toronto to facilitate access. This court needs to be cautious in adding additional stressors and obligations on this family. The parents will each be entitled to one two-hour visit each month.

[169] Due to the risk concerns set out above, it is imperative that the parent's access remain fully supervised by a Children's Aid Society. The Children's Aid Society supervising the visit is to ensure that neither parent says anything to the children during the visit which would have the effect of undermining their placement. If this happens, the visit is to be ended.

[170] The children cannot be adequately protected at this time if the paternal grandmother supervises the father's visits with the children. Given their history of false allegations against the maternal family, the court has no confidence that the father or the paternal grandmother will refrain from undermining this placement, with the hope of eventually having the children returned to the father. Further, the paternal grandmother is intensely loyal to the father and it is highly unlikely that she would report any protection concern.

[171] The court asks the society to contact Peel to see if they can supervise the visits to ease the transportation burden on the maternal family.

[172] The maternal grandmother and maternal aunt asked the court to make a restraining order against the mother pursuant to section 80 of the Act. I will not make this order at this time as the mother did not receive notice of this request, and procedural fairness dictates that she be notified before such an order is made, as there are serious consequences for a breach. However, the society is encouraged to bring an application for a restraining order if the mother breaches the terms of this order.

[173] The court does however, have the authority to place conditions on the access that the parents have requested. An order will be made restricting their contact with the children to only take place at a Children's Aid Society office. The parents are not to otherwise contact the children, the maternal grandmother or maternal aunt, without the prior permission of the society. They are not to go within 500 meters of the maternal home or the children's school or daycare. The society will have the discretion to suspend access to the offending parent, if any of these terms are breached.

[174] The maternal grandmother and maternal aunt will be required to immediately notify the society if either parent breaches these conditions. I wish to emphasize that they will not get in trouble for reporting these breaches, but the court will consider removing the children from their care if they fail to report the breach to the society.

[175] To address the mother's inconsistency in exercising access, she will be required to confirm her visit with the Children's Aid Society supervising the visit at least 2 hours before it starts. If she does not confirm the visit, the children should not be brought to the Children's Aid Society office.

Part Seven – Conclusion

[176] A final order will go on the following terms:

a) Statutory findings are made as set out on page 2 of the Amended Protection Application pursuant to subsection 47(2) of the Act.

b) The children are found to be in need of protection pursuant to sub-clauses 37(2)(b)(i) and (ii) of the Act.

c) The children shall be placed in the joint care and custody of the maternal grandmother and the maternal aunt, subject to terms of society supervision, for a period of six months.

d) The children shall transition into the home of the maternal grandmother and maternal aunt as follows:

i) They shall spend the full day in that home on October 19, 20, 26 and 27, 2013.

ii) They shall spend the weekends of Nov. 2-3 and November 9-10, 2013 in that home and remain there thereafter.

e) If the maternal grandmother, maternal aunt and the society all agree, they may modify the transition schedule above, including, dates and times. They may also agree to extend the transition of the children into the maternal home up until the end of November of 2013. However, they are not to extend the return of the children to the maternal home beyond the end of November of 2013, without my prior approval.

f) The society is to use its best efforts to have Peel supervise the parent's visits.

g) The parents shall each have supervised access to the children once each month, for two hours, at a Children's Aid Society office. The Children's Aid Society supervising the visit may stop any visit if a parent acts inappropriately or attempts to undermine the children's placement during a visit.

h) The society will have discretion to determine when the paternal grandmother attends access.

i) The mother will be required to confirm her access visit with the Children's Aid Society supervising the visit, at least two hours in advance of the start of the visit, failing which the visit will not take place.

j) The parents are to have no other contact with the children. This means they are not to contact them by telephone, text, email or through any social media.

k) The parents shall not come within 500 meters of the children's school, daycare, home or anywhere else that they may be reasonably expected to be (except to exercise scheduled access to the children at a Children's Aid Society office).

l) The parents are not to contact the maternal grandmother or maternal aunt without the prior approval of the society.

m) The society will have the discretion to suspend the access of any parent offending any of these non-contact terms.

n) The terms of society supervision will be as follows:

i) The maternal grandmother and maternal aunt shall permit announced and unannounced visits by society workers to the children, whether at their home, at school, at daycare or in the community.

ii) The maternal grandmother and maternal aunt shall permit any society worker to meet privately with the children.

iii) The maternal grandmother and maternal aunt shall sign any consents or authorizations required by the society to speak to the children's teachers, daycare personnel, doctors or any other service providers.

iv) The maternal grandmother and maternal aunt shall take the children to all scheduled speech therapy evaluations and treatment sessions.

v) The maternal grandmother and maternal aunt shall take the children to the Fetal Alcohol Assessments set for December of 2012 at St. Michael's Hospital and follow all treatment recommendations.

vi) The maternal grandmother and maternal aunt shall take the children for their developmental assessments at the Blue Hills Treatment Centre and follow any recommendations arising out of that assessment.

vii) The maternal grandmother and maternal aunt shall use their best efforts to enroll P.D. in daycare and notify the society once this has been done.

viii) The maternal grandmother and maternal aunt shall not permit either parent into their home.

ix) The maternal grandmother and maternal aunt shall not permit the parents or the paternal grandmother to have any contact with the children that is not authorized by this order.

x) The maternal grandmother and the maternal aunt shall immediately notify the society if either parent attempts to contact them, or the children, in contravention of this order.

xi) The maternal grandmother and the maternal aunt shall use their best efforts to facilitate access between the children and their siblings.

o) The society is to prepare and take out this order.

[177] The court has the following expectations of the society during the term of this order:

a) They will ask Peel to facilitate supervision of the parent's access.

b) They will assist in facilitating access between the siblings.

c) They will assist the maternal family in the transition of the children into their home and determine what clothes, supplies and toys can be brought with them from the foster home.

d) They will assist the maternal family in obtaining subsidized daycare for P.D.

e) They will assist the maternal family in accessing any funding sources to help them financially support the children.

f) They will assist the maternal family in finding local speech therapy for the children.

g) They will assist the maternal family with respect to the children's Fetal Alcohol Assessments and accessing any service that the children are referred to arising out of these assessments.

h) They will assist the maternal family with respect to the children's developmental assessments and accessing any service that the children are referred to arising out of these assessments.

[178] The status review date shall be on April 10, 2014 at 10:00 a.m.

[179] The court is appreciative of the role that counsel for the maternal grandmother and maternal aunt provided at trial, with very little opportunity to prepare. The court requests that he carefully review all of these terms of supervision with the maternal family.

[180] Lastly, the court wishes to thank all counsel for their professional presentation of this case.

Date: October 15, 2013

Justice Stanley B. Sherr