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 File and Parties

Court File Nos.: FO-09-000141-0001; FO-09-000141-00A2

Date: 2014-10-14

Ontario Court of Justice

Between:

FO-09-000141-0001

Windsor-Essex Children's Aid Society, Applicant

— AND —

E.W., N.G., N.M.K., S.W. and J.W., Respondents

AND BETWEEN

FO-09-000141-00A2

Windsor-Essex Children's Aid Society, Applicant

— AND —

E.W. and N.M.K., Respondents

Before: Justice Barry M. Tobin

Heard on: August 11, 12, 13, 14 and 28, 2014

Reasons for Judgment released on: October 14, 2014

Counsel:

• David Ziriada — for the applicant society
• Janice Wood — for the respondent, E.W.
• N.G. — in person
• Courtney Rubin — for the respondent, N.M.K.
• Hanieh Azimi — for the respondents S.W. and J.W.
• Christopher Knowles — for the Office of the Children's Lawyer, legal representative for the children

TOBIN J.: REASONS FOR JUDGMENT

1: THE PARTIES

[1] The Windsor-Essex Children's Aid Society ("Society") brought two status review applications. The first concerns the children K.J.M.W. ("K.W."), born 2003 and S.E.M.K. ("S.K.") born 2008. The second concerns the child N.M.G.K. ("N.K. Jr.") born 2010.

[2] The respondent, E.W. (sometimes referred to as "mother") is the mother of the three children.

[3] The respondent, N.G. (sometimes referred to as "K.W.'s father") is the father of K.W. He was found by Justice S. Bondy not to be a parent, within the meaning of the Child and Family Services Act (the "Act"), of S.K.

[4] The respondent, N.M.K. (sometimes referred to as "S.K. and N.K. Jr.'s father") is the father of S.K. and N.K. Jr.

[5] The respondents, S.W. and J.W. are the maternal grandparents of the three children (sometimes referred to collectively as "grandparents"). They are not parties to the case concerning N.K. Jr., though the Society does seek placement of him with them.

[6] The Children's Lawyer was directed to provide legal representation for all three children. Mr. Knowles was their counsel at trial.

2: THE ISSUES

[7] The central issues in this case are:

(a) with whom should the children reside;

(b) on what basis should they be placed; and

(c) what access arrangements should be in place for all the respondents and the three children?

3: THE POSITION OF THE PARTIES

[8] The Society requests an order that the grandparents be granted custody of K.W. and S.K. pursuant to s. 57.1 of the Act. It also requests that N.K. Jr. be placed in their care subject to Society supervision for a term of six months on terms. It also requests an order that E.W., N.M.K. and N.G. have defined access.

[9] E.W. supports the Society position and requests the same relief it does. The reason she requests N.K. Jr. be placed with the grandparents under a supervision order is that it is her plan to eventually seek placement of him with her.

[10] The grandparents want the three children placed in their custody pursuant to s. 57.1 of the Act. They support each parent having access in a manner that is in the best interests of each child.

[11] Counsel for all three children requests that an order be made in terms of that sought by the Society. Mr. Knowles also requests a detailed access schedule be ordered.

[12] N.M.K. asks for an order placing N.K. Jr. in his care subject to Society supervision for a period of six months and access to S.K.

[13] N.G. did not attend the hearing until the day submissions were made at the end of the hearing, despite having filed an Answer and Plan of Care in the status review application concerning K.W. and S.K. In his pleadings, he asked for an order placing both K.W. and S.K. in his care subject to Society supervision. He attended at court to make this request. His alternate request was to have access with both children.

4: FINDING THE CHILDREN IN NEED OF PROTECTION

[14] In order to give context to the placement and access orders sought in this case, it is necessary to consider the basis upon which the children were found to be in need of protection.

[15] The children K.W. and S.K. were found to remain in need of protection by Justice S. Bondy on June 7, 2013 under subclause 37(2)(b)(i) of the Act. The reasons for the continued finding were:

(i) continued conflict between the grandparents, mother and N.M.K.;

(ii) long standing substance abuse issues of mother and N.M.K.; and

(iii) "[the] long term stability [of the children] cannot be assured at this time. They could be exposed to risk of physical harm and/or neglect with [mother's] and [N.M.K.'s] drug use and lifestyle instability."

[16] N.K. Jr. was also found to remain in need of protection by Justice Bondy on June 7, 2013 under subclause 37(2)(b)(i) of the Act. The endorsement of the court provides as follows:

"The statement of agreed facts (Ex. 1) filed reveals that the original protection finding for [N.K. Jr.] has not been resolved. Conflict between the parties continues and both mother and father [N.M.K.] continue to suffer from substance abuse issues impacting on their ability to resume [N.K. Jr.'s] care..."

[17] These continued protection findings were made by the court based upon an Agreed Statement of Facts for continued protection signed by the respondents in each case.

5: CONDUCT OF THE HEARING

[18] At the request of N.M.K., the two status review applications were directed to be heard consecutively, with the case concerning K.W. and S.K. proceeding first. At the trial management conference, I directed that the evidence presented in the first case would apply to the second case concerning N.K. Jr.

[19] At the conclusion of the first case, no party called additional evidence with respect to the case concerning N.K. Jr. The evidence received in the case concerning K.W. and S.K. applies to the case concerning N.K. Jr.

[20] These reasons pertain to both cases.

6: FACTS

6.1: Regarding the Grandparents' care of K.W. and S.K.

[21] E.W. voluntarily placed K.W. in the care of her parents, the grandparents, in October 2006 because she tested positive for the use of marihuana, cocaine and opiates. K.W. has remained in the care of the grandparents ever since; a period of almost eight years.

[22] S.K. has resided with the grandparents since she was three months old. She is now six years of age.

[23] K.W. and S.K. have resided together in the care of the grandparents for the past six years. I find that the grandparents have allowed the girls to become part of their family, and they are their psychological parents.

[24] These sisters are closely attached to each other. The social worker assigned to provide kinship services for the grandparents and the sisters has observed they spend much of their free time together and enjoy each other's company. They stick up and look out for one another. They fight sometimes. They share toys. She has seen them curl up in their grandparents' bed after school to watch television.

[25] The girls are also attached to their grandparents. The kinship worker described their relationship as loving. There are spontaneous signs of physical affection between them. Both children go freely to either grandparent for affection. The kinship worker described their relationship as one of "...regular kids with their two primary parents...These are the people the girls turn to for security and comfort."

[26] Both children have their own room in the grandparents' home. When the grandparents are at work each morning delivering newspapers, child care is provided by a 19 year old woman.

[27] I accept that the grandparents, who have been together for 36 years, are physically and psychologically willing and able to care for the children for the long term.

[28] Both children are healthy and appear to be happy in the care of the grandparents. The kinship services worker for K.W. and S.K. has observed that the grandparents adequately attend to their physical and medical needs. Previously, there had been resistance by the grandparents for Society help in addressing management of the girls' behaviours with respect to homework, defiance and sibling fighting. More recently, the grandparents are following through with services recommended by the Society.

[29] The grandparents have, from time to time, expressed frustration with the ongoing Society involvement and the length of time it has been involved with them.

[30] K.W. has special educational needs. Because of observed concerns regarding her academic performance and social functioning, a psycho-educational assessment was completed by Dr. Erin Picard, a psychologist with the Windsor-Essex Catholic District School Board. Her report was filed as an exhibit and no party required her attendance at the hearing for cross-examination. Dr. Picard's report of March 20, 2014 states that K.W.'s "...presentation...supports a diagnosis of Attention Deficit Hyperactivity Disorder – Combined Type...also a learning disability diagnosis was warranted." Many recommendations were made within the report to help K.W. The grandmother, whose evidence I accept, has and will work with school officials and K.W.'s doctor to implement the recommendations to the extent possible.

[31] The grandmother consistently brought K.W. to the Regional Children's Centre for scheduled counselling appointments.

[32] S.K. goes to the same school as K.W. and will be entering Grade One this fall.

[33] The kinship worker has observed that the grandparents provide structure and consistency for the children in a safe environment. Their parenting style was described by her as "laid back...they are not perfect parents but do the best with what they have."

6.2: Regarding N.K. Jr.

[34] N.K. Jr. is in foster care. He has been in the care of the Society since May 12, 2011. He was then almost five months old. He is now 44 months old. He was apprehended following an incident where E.W. and N.M.K. were physically fighting for control of the child in public. Both had been drinking alcohol.

[35] N.K. Jr. was not placed with the grandparents at that time because in addition to K.W. and S.K. they were caring for the grandfather's grandmother who also resided with them. The Society was of the view that it would have been overwhelming for the grandparents to have the care of N.K. Jr. as well.

[36] N.K. Jr. has been described as an active child. He and his sisters are also described as having a positive relationship.

6.3: Regarding N.M.K.'s request to care for S.K. and N.K. Jr.

[37] N.M.K. now wants:

(a) access with S.K., and

(b) N.K. Jr. placed in his care.

[38] He resides alone in a home that he owns and which can accommodate both children.

[39] Currently, he is in receipt of Ontario Disability Support Program benefits due to a work related shoulder injury. He expects the receipt of benefits to be short term and he plans to start a renovation business in about six to ten months. This is when he expects he will no long need or receive Ontario Disability Support Program benefits. The exact timing will depend upon the opinion of his doctor.

[40] He has "generally exercised consistent access with these children."

[41] He describes his interactions with S.K. and N.K. Jr. to be positive and child focused. He asserts he is able to manage their behaviours.

[42] N.M.K. testified that he has the support of his adult children and mother to assist in caring for the children when needed. The specifics of this help were not provided by N.M.K. or his mother when she testified. It is not clear from her evidence the extent that she is able to provide assistance. I find that her ability to help will be minimal.

6.4: The Access Schedule

[43] The current access schedule for the children is as follows:

1. N.G. currently exercises access to both S.K. and K.W. on alternating weeks, Wednesday 4:00 p.m. to 7:00 p.m. and Friday 4:00 p.m. to Sunday at 7:00 p.m. His access is unsupervised.

2. N.M.K. exercises access to S.K. on alternating weeks from Monday at 12:00 noon to Tuesday at 7:00 p.m. and alternating Tuesdays from 10:00 a.m. to 7:00 p.m. This access is monitored by case aide pop-ins.

3. N.M.K. exercises access to N.K. Jr. each Thursday from 12:15 p.m. to 3:15 p.m., each Friday from 12:15 p.m. to 3:15 p.m., alternating Monday from 12:00 noon to the following Tuesday at 10:30 a.m. and alternating Tuesdays from 2:15 p.m. to 5:15 p.m. This access is monitored by case aide pop-ins.

4. E.W. exercises access to all three children alternating Thursdays from 4:00 p.m. to 7:00 p.m. and alternating Fridays from 4:00 p.m. to 8:00 p.m. This access takes place at her home and supervised by the Society.

5. E.W. has additional access to N.K. Jr. each Tuesday from 11:00 a.m. to 2:00 p.m. and each Thursday from 4:00 p.m. to 7:00 p.m. S.K. and K.W. are present for this access on alternating weeks. This access takes place at the mother's home and is supervised by the Society.

[44] Beginning in June 2014, N.K. Jr. started having access with the grandparents at their home. Access started with a view to possibly transitioning N.K. Jr. to the care of the grandparents.

7: LEGAL CONSIDERATIONS

[45] The Act provides a statutory pathway that is to be followed in a child protection or status review application: see L.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] O.J. 119.

[46] As Bondy J. made findings that the children remain in need of protection, determining where and with whom the children are to be placed, starts with a consideration of s. 57 of the Act. This section provides that once a child is found to be in need of protection – which they were – the first requirement is to determine whether intervention through a court order is needed to protect them.

[47] I am satisfied that a court order is required to protect the children. The conflict between the respondents continues as does the mother's substance abuse, both with drugs and alcohol. As well, N.M.K. has not provided corroborating evidence that he is free of risk for use of non-prescription drugs.

[48] The next step is to consider which one of the orders under ss. 57(1) or s. 57.1 of the Act should be made in the best interests of the children.

[49] Section 57(1) prescribes the different orders that are available to the court. The orders that may be made in this case are:

a) a supervision order on terms under ss. 57(1) ¶1, and

b) a custody order under s. 57.1.

[50] The disposition order to be made in this case must be in the best interests of the children: See ss. 57(1). A determination based on best interests requires a consideration of ss. 37(3) which provides as follows:

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

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.

[51] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. They must be examined from the child's perspective. Children's Aid Society of Toronto v. C.M., [1994] 2 S.C.R. 165.

Past Efforts to Assist

[52] In determining which disposition order to make, a court also is required to consider what efforts the Society or the respondents have made to assist the children.

[53] The evidence discloses that the following services have been provided by the Society:

1. The mother has been referred to a drug addiction treatment. She attended Brentwood Recovery Home in 2011 but without long term success.

2. A family services worker was provided to the family.

3. N.M.K. was referred to a domestic violence program.

4. The children have been provided with a kinship service worker.

5. The Society workers have supervised the children's access with their mother.

6. A referral to Windsor Regional Children's Centre was made for K.W.

[54] N.M.K. attends Brentwood for ongoing support to deal with his gambling addiction.

[55] E.W. has attended, from time to time, residential treatment for her substance abuse problems.

8: ASSESSMENT

[56] Dr. Rubin L. Schnayer, a psychologist, conducted a psychological custody assessment dated June 30, 2011. The purpose of the assessment was to identify the needs of K.W. and S.K. and to assess the ability and willingness of the respondents to meet those needs. The assessment was updated by Dr. Schnayer who prepared a further report dated February 27, 2013.

[57] I find that the methodology employed by Dr. Schnayer in both assessments was appropriate and consistent with accepted practice. Cross-examination did not demonstrate any deviation from what is expected from a psychologist conducting the assessments undertaken.

[58] Dr. Schnayer was of the opinion, which I accept, that the most important need for the children is a consistent, stable and stress free environment. The psychologist observed that although this is a universal need for children of all ages, given these children's life experiences – that is, significant difficulties between the various adults in their lives including the involvement of Society staff and police – the necessity of a stress free environment needs to be highlighted.

[59] The June 30, 2011 assessment report concluded as follows:

"Overall, it is this assessor's opinion that it would be in the children's best interests for the current residential placement to continue. It is apparent that the maternal grandparents' home is the most stable environment for these (sic). They have become accustomed to this arrangement as it has been their home for many years. Although [N.G.] and [E.W.] continue to attempt to improve their respective life situations, the continuity and stability necessary for these children is best achieved through continuing their current placement with their maternal grandparents."

[60] In the February 27, 2013 report, Dr. Schnayer's opinion was summarized as follows:

"Overall, it is this psychologist's opinion that it would be in the children's best interests for the current residential placement to continue. It is apparent that the maternal grandparents' home is the most stable environment for these girls. They have become accustomed to this arrangement as it has been their home for many years. Although [N.G.], [N.M.K.] and [E.W.] continue to attempt to improve their respective life situations, the continuity and stability for these children is best achieved through continuing their current placement with their maternal grandparents. Further, it allows the girls to remain to live together."

[61] In his oral evidence, Dr. Schnayer's opinion remained that the girls should not be separated. This evidence was given because N.M.K.'s position during the hearing was that S.K. should be placed with him. The risk associated with separating them is that they will doubt if they can ever trust anyone. He further testified that it is not standard to separate children because siblings are their only constant and that N.M.K.'s plan to separate the girls cannot be ameliorated by an access plan.

[62] Dr. Schnayer, who did not conduct a formal assessment with respect to N.K. Jr., was asked and stated that this child should be kept together with his sisters. From his knowledge of the maternal grandparents, he was of the view that they could care for the three children because they are committed to doing so.

[63] Dr. Schnayer described the grandparents' home as the girls' psychological home. It is the home where they expect love, affection, stability and predictability all of which are present there. He described the grandparents as the psychological parents of S.K. and K.W. They are the persons who meet the needs of these children. They are the persons the girls turn to for their needs to be met. He observed that K.W. and S.K.'s relationship is stronger with their grandmother than their grandfather, though he still is a psychological parent.

[64] Dr. Schnayer did not agree when questioned by the children's counsel that it would be appropriate for N.K. Jr. to be separated from his sisters. It was his opinion that placing N.K. Jr. with his sisters presented the lowest risk plan. The best plan, he opined, would be to keep the children together.

[65] When pressed about the children's emotional health, Dr. Schnayer stated, "...what these children need are for all the parents and grandparents to get along. That is the biggest issue. To mitigate any other problems, they need to get along and don't fight in front of the children."

9: ANALYSIS

9.1: Placement of K.W. and S.K.

[66] I find it is in the best interests of K.W. and S.K. that they be placed in the custody of the grandparents, pursuant to s. 57.1 of the Act.

[67] Both children have been living with the grandparents for a considerable length of time. The grandparents' home has provided these children with a stable, safe and loving environment.

[68] The grandparents provide for the children's needs. The home is acceptably clean and safe. It is observed to be appropriately stocked with food. This home meets their physical needs. Since the death of their great-great grandmother, who also resided with them, both girls now have their own bedrooms.

[69] In the care of the grandparents, the girls have been physically healthy and observed to be happy in that home.

[70] I am satisfied the grandparents are committed to the care of the girls for the long term. While both have diabetes, it is under control and they are otherwise healthy.

[71] The grandparents have demonstrated their commitment to caring for these girls over a number of years and through the challenges of dealing with the parents and the Society. These children view the grandparents as their psychological parents. They look to them to meet their physical, mental and emotional needs, which they do.

[72] There have been periods of time the grandparents resisted Society involvement and not followed recommendations made. This was not denied by them but explained as arising from their frustration with the length of time it has taken for a permanency plan to be requested by the Society as is finally the case now. More recently, the grandparents have taken up services recommendations of the Society with counselling being sought for K.W. Also, they work with the school to address her educational needs. S.K., who is entering Grade One, may have similar educational needs as K.W. She had difficulty with circle time in Kindergarten. The grandparents are aware of this concern although it is too early for testing.

[73] Their son, J., resides with them because of domestic problems he faces with his family. The Society worker described his presentation as one of anger. The grandparents testified, and I accept that, he is moving from their home.

[74] N.M.K.'s original request to have S.K. placed in his care would result in the sisters, K.W. and S.K., being separated. This would not be in either child's best interests. They are close with one another and have what appears to be a typical sibling relationship. Dr. Schnayer's evidence, which I accept, is that given the experiences these two young children have had, separating them will risk them doubting if they can ever trust anyone. Keeping siblings together is important as they are their only constant.

[75] During this court process, the grandparents filed Form 35.1 Affidavits, sworn October 3, 2012. The only involvement both have had with Children's Aid Societies concerns these three children. Neither has been found guilty of a criminal offence nor do they face any outstanding charges. There is no evidence with respect to violence or abuse involving them with another person or child. Appended to the Form 35.1 Affidavits are Police Vulnerable Sector Check Forms confirming no criminal records for either.

9.2: Placement of N.K. Jr.

[76] With whom and on what basis should N.K. Jr. be placed?

[77] The issue is whether it is in N.K. Jr.'s best interests to be placed with N.M.K. under terms of supervision, his grandparents under terms of supervision or in the custody of the grandparents.

[78] N.K. Jr. was brought into care when he was four months old. The circumstances were that E.W. and N.M.K. were fighting – literally – over who would have care of the child. The police were involved. The scene was described as a tug-of-war.

[79] N.K. Jr. has remained in foster care since that time. He was found to be and subsequently to remain in need of protection because of E.W. and N.M.K.'s substance abuse and domestic conflict.

[80] While in foster care, N.K. Jr. has had access with both E.W. and N.M.K. Some of the access visits were observed by James Renaud, the Society's Family Protection Worker responsible for this family since October 2013.

[81] The worker observed several visits between N.M.K. and N.K. Jr. N.M.K. was described as attentive towards N.K. Jr. and that they interact with affection and appropriately. N.K. Jr. is demonstrably happy about visiting with his father. Though access has been positive, N.M.K. has not been consistent in exercising his access. For much of November and December 2012, N.M.K. did not attend access and provided no prior reasons for his absence. On his return, he reported he had gone to Toronto for training or schooling. On a number of occasions, he did not follow through with the Society protocol requiring him to contact the Society and confirm his intention to exercise access. He cancels visits claiming medical reasons, family emergencies or due to work.

[82] The Society's level of monitoring N.M.K.'s access changed because of an incident that happened in July 2014.

[83] On an access visit in July 2014, which was scheduled to end at 3:45 p.m., N.M.K. did not go to his door, when a case aide arrived to observe the visit nor did he do so when the volunteer driver came to pick N.K. Jr. up to take him to a scheduled visit with E.W. N.M.K.'s explanation was that he was out with N.K. Jr. in the community when the case aide came by and was asleep when the driver arrived. He woke up at approximately 5:15 p.m. and kept N.K. Jr. until early that evening. His explanation for overholding N.K. Jr. that day is not credible. The evidence does disclose this was an atypical incident.

[84] No evidence was presented that N.K. Jr. has special needs.

[85] There are a number of positive aspects about N.M.K.'s plan of care for N.K. Jr.:

1. N.M.K. loves N.K. Jr. a great deal.

2. He has the ability and willingness to spend time with him and care for him.

3. His home has the amenities needed to provide for the child. The home is well maintained.

4. He has exercised much access with the child.

5. The child appears to enjoy spending time in his care.

[86] The plan proposed by N.M.K. faces several challenges.

[87] His plan would see N.K. Jr. remain separated from his sisters. The evidence of Dr. Schnayer was that it was in the three children's best interests to grow up together in the same home. Based on his assessments, he saw no reason why the grandparents would not be able to successfully parent the three children together. They have the desire and the ability to do so. This evidence must be considered in the context of Dr. Schnayer not having assessed N.K. Jr. I also note that on this point the evidence of Dr. Schnayer was not contradicted by the evidence of any other expert witness, nor was he moved from this opinion during cross-examination.

[88] The sisters have been observed to have a close relationship with their brother and wish him to live with them.

[89] I find that there continues to be conflict between E.W. and N.M.K. This has been observed by the worker and Dr. Schnayer. Neither parent gave evidence that they pursued counselling or any other program that has successfully assisted them with more constructive communication.

[90] N.M.K. was cavalier when describing his plans for the future. He intends to start a business sometime in the short term. He did not provide significantly more details than that. He also was very reluctant to provide any details of his financial circumstances while at the same time asserting that he would be able to support the children. He received settlement funds from an accident but refused to disclose particulars other than to say he did not have financial problems. Yet there was a recent drug test he undertook that his doctor would release upon payment. N.M.K. did not want to make that payment. On this evidence I am not satisfied N.M.K.'s finances are as secure and abundant as he suggested.

[91] It is not clear that N.M.K. can provide a stress free and structured environment for N.K. Jr. His ongoing conflict with E.W. and the grandparents presents the potential for N.K. Jr. to be caught in the middle of these troubled relationships. Recently, his home was the subject of a home invasion. Why it occurred and by whom remains unknown.

[92] He did not provide details of how N.K. Jr. would be cared for as he worked on starting or enlarging his business.

[93] With the children being in different homes, the ongoing number of access exchanges will continue and they are having a destabilizing effect. The girls are being precluded from participating in extra-curricular activities because of all of the access exchanges and access that occurs. It would continue to a greater extent if N.K. Jr. was in the care of N.M.K. than if in the care of the grandparents.

[94] N.M.K. has not been able to demonstrate an ability to care for the child on a full time basis. The strength of and the growth in his relationship with N.K. Jr. have been within a regime of access.

[95] No evidence that corroborates N.M.K.'s claims that he is free of substances was provided. Given his history of drug use during the course of Society involvement, better evidence that he has overcome this problem was expected. He testified that he continue to attend at Brentwood, a treatment and counselling facility for addictions, but provided no helpful evidence from this organization.

[96] For these reasons, I find it is not in N.K. Jr.'s best interests to be placed in the care of N.M.K. subject to Society supervision.

[97] The only other plan before the court, with respect to N.K. Jr., is the Society's that he be placed with the grandparents. I am satisfied the least disruptive placement for N.K. Jr. that is in his best interests, is that he be placed in the care of the grandparents subject to Society supervision.

[98] It is not in the child's best interests to be placed in their care under a custody order at this time.

[99] Mr. Renaud, the Society worker responsible for case management was asked the reason for placing him in the grandparents' care subject to Society supervision rather than under a custody order. The reason arises because of the challenges the grandparents will face raising three young children. I agree with this assessment based upon the evidence provided.

[100] Ms. Cindy Lucas is the worker who has observed the grandparents acting as parents since she took carriage of the matter as a kinship service worker in April 2009. She has not met N.K. Jr. nor spoken with the foster parents. However based on her understanding that N.K. Jr. is a "busy guy", the grandparents will need to work very hard to provide structure to make sure the placement is a successful one. This means, providing more routine for N.K. Jr. and being cognizant that his needs are different at his age than are the girls' needs at this time. It is also her observation that the grandmother's parenting style is somewhat passive and that with a younger child she will need to be more active in caring for him. Ms. Lucas was reluctant in her evidence to say unequivocally that the grandparents could handle all three children. If N.K. Jr. is placed with grandparents with terms of supervision, she will remain involved and provide assistance and support for them. This help can be beneficial as grandparents have demonstrated an ability to co-operate with the Society for the sake of the children.

[101] I find that placing N.K. Jr. with the grandparents under terms of supervision will allow the Society to remain involved to provide direction and services. With the grandparents taking on the challenge of a third and younger child monitoring by the Society is needed to ensure the placement is successful. Placing him in their care under a custody order would deprive N.K. Jr. and them of the supportive services that can be provided by the Society during this transition from foster care to placement with family members.

[102] A supervision order will not provide the permanency plan that a custody order does as this matter will need to be revisited on a status review. But for the reasons described above, continued Society involvement is necessary and in the child's best interests to ensure the placement is stable and secure.

10: ACCESS

10.1: Legal Consideration

[103] The Act sets out the basis upon which an access order should be made and the terms that may be imposed.

[104] Access provisions must be made in the best interests of the children. This, of necessity, again engages ss. 37(3) of the Act. To ensure access is in the child's best interests, ss. 58(1) of the Act provides that a court may impose such terms and conditions that are considered appropriate.

[105] When access is ordered to children who have been made the subject of a custody order under ss. 57.1(1), additional statutory provisions found in the Children's Law Reform Act (the "C.L.R.A.") may be considered. In particular, those terms and conditions the court may consider are those set forth in sections 28 and 34 of the C.L.R.A. which sections are formulated as follows:

28(1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limited the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child's residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court.

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child's passport, the child's health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

(2) If an application is made under section 21 with respect to a child who is the subject of an order made under section 57.1 of the Child and Family Services Act, the court shall treat the application as if it were an application to vary an order made under this section.

(3) If an order for access to a child was made under Part III of the Child and Family Services Act at the same time as an order for custody of the child was made under section 57.1 of that Act, the court shall treat an application under section 21 relating to access to the child as if it were an application to vary an order made under this section.

34(1) Where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person, a children's aid society or other body.

(2) A court shall not direct a person, a children's aid society or other body to supervise custody or access as mentioned in subsection (1) unless the person, society or body has consented to act as supervisor.

10.2: Access to K.W. and S.K.

[106] K.W. and S.K. have had access with E.W. and N.G. for many years. N.M.K., too, has had access with S.K.

By E.W.

[107] E.W.'s access with the girls takes place at her home on alternate Thursday and Friday evenings. This access is supervised at her home. This home is well maintained, clean and has three bedrooms. It has appropriate amenities to meet the children's needs. No one else resides with E.W. in her home.

[108] The worker describes E.W.'s interactions with N.K. Jr. as positive and caring and that she is a competent mother. N.K. Jr. reacts positively with his mother and readily demonstrates his affection for her.

[109] Case aides who supervise her visits with the children describe that she acts appropriately towards her daughters. Affection is given and reciprocated by all.

[110] E.W. exercises supervised access three times per week with N.K. Jr. She cancels access when she is using drugs.

[111] E.W. is the parent of another child who is not subject to Society intervention. She has regular unsupervised, including overnight, access with him which primarily takes place on weekends.

[112] Dr. Schnayer's evidence, which I accept, is that the girls "demonstrate relatively positive attachment/emotional feelings toward [E.W.] and value their relationship with her."

[113] Ongoing and regular access by E.W. with K.W. and S.K. is in their best interests. This access need not be supervised – though periodic monitoring will be – for the following reasons:

1. A term requiring E.W. not to consume alcohol or non-prescription drugs 12 hours before or during access will address this risk to the children.

2. In the past, E.W. has consistently suspended her access when she has had a relapse.

3. The grandparents will be able to withhold access if they observe her to be under the influence.

4. E.W. has unsupervised and primarily overnight access, at her premises, of her fourth child without any Society involvement.

By N.G.

[114] N.G. has access with K.W. and S.K. one weekday evening and weekend access in alternate weeks. This access takes place at the home of his parents, monitored by case aides through periodic visits referred to by the Society worker as "pop-in visits."

[115] The Society's ability to monitor this access has been hampered by N.G.'s lack of cooperation. He has refused to provide the Society worker with information regarding his living arrangements. He will not let the worker attend his home.

[116] N.G. did not give evidence at the hearing of this matter.

[117] Another circumstance to consider in determining what access would be in the girls' best interests is that there has been long-standing conflict between N.G. and the grandparents. N.G. has made many complaints about the grandparents' supervision of S.K. and K.W.

[118] Dr. Schnayer had the opportunity to assess N.G.'s relationship with the girls. His opinion, which I accept, is that:

a) N.G. presents as a concerned and caring parent;

b) the girls demonstrate "positive attachment/feelings towards [him] and value their relationship with him"; and

c) he clearly loves these children.

By N.M.K.

[119] N.M.K. has overnight access with S.K. once every other week and daytime access every other week. This access is monitored by case aide pop-in visits. N.M.K. has no access with K.W.

[120] Society access records disclose that access between S.K. and N.M.K. is positive. There is obvious affection between the two. They interact well and N.M.K. demonstrates an ability to meet S.K.'s needs while she is with him.

[121] Until final submissions were made, N.M.K.'s position was that he wanted S.K. placed in his care. In the context of that request, Dr. Schnayer observed that N.M.K. presented as a caring and concerned parent, S.K. demonstrated positive attachment/emotional bonds towards him, and that he clearly loves her.

10.3: Access to N.K. Jr.

By E.W.

[122] N.K. Jr.'s access with his mother takes place at the same time as her access with K.W. and S.K.. In addition, N.K. Jr. is in the care of his mother for a few hours every Tuesday and Thursday. This access takes place in her home and is supervised by the Society.

[123] In determining what access with his mother would be in N.K. Jr.'s best interests, I take into account the same evidence as considered with respect to K.W. and S.K.

[124] Mr. Renaud's evidence is, which I accept, he has observed access visits between N.K. Jr. and E.W. He describes E.W. as acting "as a positive, caring and competent mother who interacts positively with [N.K. Jr.], with appropriate demonstrations of affection. ...[N.K. Jr.] reacts positively with his mother and demonstrates readily his affection for [her]."

By N.M.K.

[125] N.M.K. exercises access with N.K. Jr. every Thursday and Friday. In addition, he exercises access alternating Mondays overnight to Tuesdays and on the next week for a few hours on Tuesday afternoon. As is the case with S.K., this access is monitored by the Society. Based on several opportunities to observe N.M.K.'s access with N.K. Jr., the Society worker James Renaud's evidence, which I accept, is that N.M.K. is very attentive toward his son, they interact appropriately with each other and they demonstrate affection for each other. The worker observes that N.K. Jr. appears to love to go to his father's home and on the several occasions he transported N.K. Jr. to N.M.K.'s home he observed the child being excited about seeing his father. The two engage in numerous activities together that N.K. Jr. enjoys and looks forward to.

10.4: Issues of Continuity and Disruption

[126] All three children will now reside in the care of the grandparents. Any access schedule must take into account the importance to the children of having a predictable and manageable schedule. It must provide the least disruption possible to the care they are receiving from their grandparents.

[127] The girls are in school and after school need time to do their homework, engage with their friends and participate in extra-curricular activities. This will soon be the case for N.K. Jr.

[128] With access to three parents at different times, access for each child involves, according to Dr. Schnayer, too many transitions. I agree with this assessment. School officials reported to Dr. Schnayer that K.W. and S.K. appear to be unhappy and K.W. experiences concentration difficulties. According to Dr. Schnayer, the children have expressed this concern to other adult figures including him. It is his conclusion that:

"...[I]t would be prudent to modify the current contact schedule to reduce the frequency of transitions these children have to experience. Although this may result in a decrease in the amount of time spent with the respective parents, the paramount concern needs to be the welfare of the children and not satisfying each parent's time request."

[129] Dr. Schnayer's opinion is that access be arranged on a five week schedule. This would allow for alternate week access with each parent and a fifth weekend where there would be no access so the children could spend uninterrupted time with the grandparents. I find that in their best interests this is a reasonable way to balance the needs of the children to maintain a relationship with each parent, reduce transitions and allow for stability and continuity for the children in the home of the grandparents. It will also allow time for the children to engage in any extra-curricular activity if they choose to do so.

[130] The time S.K. spends with N.G. will also be further reduced. In coming to this conclusion, I have taken into account the following circumstances:

(i) S.K. is not N.G.'s biological child but she does see him in a positive manner.

(ii) N.G. did not participate in this hearing. The court has not had the benefit of his evidence as to his current circumstances, plans for the children, or explaining his lack of cooperation with the Society in allowing it to monitor access.

(iii) There is no firsthand evidence as to what is taking place during access, where it takes place, who else is present and how it has proceeded, except as described in Dr. Schnayer's report.

[131] A reduction in N.G.'s access is recommended by Dr. Schnayer. Counsel for the children submitted this as being in S.K.'s best interests. I agree with them.

10.5: Supervision or Monitoring of Access

[132] Access to the children by the parents continues to require monitoring but not full time supervision.

[133] This monitoring may be ordered with respect to N.K. Jr. under s. 58 of the Act as being an appropriate term of access.

[134] The access provisions for K.W. and S.K. are deemed to be made under s. 28 of the C.L.R.A. The court, in making a deemed access (or custody) order under s. 28 may also make any order allowed under ss. 28(1) and give directions that it may give under s. 34. Subsection 34(1) allows the court to give directions considered appropriate for the supervision of access by a person or a children's aid society. The Society, however, cannot be directed to provide supervision unless it has consented to do so: See C.L.R.A. ss. 34(2).

[135] Has the Society consented to supervise the access of K.W. and S.K. under the deemed access order?

[136] I find that it has.

[137] Monitored access on a periodic basis through case aides is a type of access supervision contemplated by s. 34 of the C.L.R.A. The difference between supervision and monitoring is one of degree only. Monitoring as a type of supervision allows a third party to observe and protect against risks identified by the evidence. The degree of supervision must be proportionate to the degree of risk identified. In this case, monitoring is the proportionate degree of supervision required.

[138] In his written closing submissions, the Society's counsel seeks an order placing K.W. and S.K. in the custody of the grandparents. This will be under a deemed custody order under s. 28 of the C.L.R.A. It also asks that E.W.'s access to the girls be "supervised at the discretion of the Society." It also asks that N.G.'s access to K.W. be subject to Society pop-ins. Based on this request, I am satisfied the Society is consenting to act as a supervisor of E.W.'s and N.G.'s access to K.W. and S.K. pursuant to ss. 34(2) of the C.L.R.A.

11: ORDER TO ISSUE

11.1: K.W. and S.K.

[139] For these reasons, an order under s.57.1 will issue in the case concerning K.W. and S.K. as follows:

1) S.W. and J.W. are granted custody of the children K.W., born 2003, and S.K., born 2008.

2) The children, K.W., born 2003, and S.K., born 2008, shall have access with the respondents, E.W., N.G. and N.M.K. on a five week schedule as follows:

Week One:

(i) On Tuesdays, N.G. shall have access with K.W. from 4:00 p.m. until 7:00 p.m.; and N.M.K. shall have access with S.K. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., E.W. shall have access with K.W. and S.K.

Week Two:

(i) On Tuesdays, E.W. shall have access with K.W. and S.K. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., N.G. shall have access with K.W.; and N.M.K. shall have access with S.K.

Week Three:

(i) On Tuesdays, N.G. shall have access with K.W. from 4:00 p.m. until 7:00 p.m.; and N.M.K. shall have access with S.K. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., E.W. shall have access with K.W. and S.K.

Week Four:

(i) On Tuesdays, E.W. shall have access with K.W. and S.K. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., N.G. shall have access with K.W.; and N.M.K. shall have access with S.K.

Week Five:

(i) On Tuesdays, N.G. shall have access with K.W. and S.K. from 4:00 p.m. until 7:00 p.m.

[140] Custody of and access to the children are subject to the following terms and conditions:

1. No party to this order shall speak negatively about any other party to this order to or in front of the children nor allow any third parties to do so.

2. The respondents, E.W., N.G. and N.M.K., may attend at any extra-curricular activities for the children provided that there is no conflict between them or the grandparents.

3. None of the respondents entitled to access shall consume alcohol or non-prescription medications 12 hours before or during any access visits.

4. Notwithstanding anything in this order, the children shall be in the care of S.W. and J.W. on December 24 and December 25 in each year.

5. Any legal proceedings brought to change the terms of this order shall be served upon the Windsor-Essex Children's Aid Society, though they are not to be named as a party, unless subsequently ordered to do so by a court.

6. The respondents entitled to access shall also be entitled to information respecting the health, education and welfare of the children through the grandparents.

7. E.W.'s access with K.W. and S.K. shall be monitored at the discretion of and by the Society through case aides or child protection workers. The purpose of the monitoring is to ensure that E.W. has not had a relapse with alcohol or non-prescribed drugs.

8. N.G.'s access with K.W. and S.K. shall be subject to monitoring by the Society through case aides or child protection workers at its discretion. Before access is started under this order, and while it is monitored N.G. shall provide the Society with and keep it informed of his address and telephone number and where he intends to exercise access. He shall permit the Society to attend for scheduled and unscheduled visits to monitor his access.

[141] The Society shall prepare a separate order giving effect to this s. 57.1 order as follows:

(i) The order shall be titled as being: "In the Matter of an Order for Custody and Access deemed to be made under s. 28 of the Children's Law Reform Act pursuant to s. 57.1 of the Child and Family Services Act".

(ii) The Applicants shall be S.W. and J.W.

(iii) The Respondents shall be E.W., N.G. and N.M.K.

11.2: N.K. Jr.

[142] An order under ss.57(1) shall issue in respect of the case concerning N.K. Jr., born 2010 as follows:

1) The child N.K. Jr., born 2010, shall be placed in the care of S.W. and J.W. subject to the supervision of the Windsor-Essex Children's Aid Society for a term of nine months upon the following terms of supervision:

a) S.W. and J.W. shall permit the Society to have scheduled and unscheduled access to their home and to speak privately with N.K. Jr.;

b) S.W. and J.W. shall follow through with any services for N.K. Jr. that may be recommended by the Society;

c) S.W. and J.W. shall not permit E.W. or N.M.K. to have access to N.K. Jr. except in accordance with this court order; and

d) S.W. and J.W. shall sign any release of information forms requested by the Society.

e) No party to this order shall speak negatively about any other party to this order to or in front of the children nor allow any third parties to do so.

f) The respondents, E.W. and N.M.K., may attend at any extra-curricular activities for the child provided that there is no conflict between them or the grandparents.

g) None of the respondents entitled to access shall consume alcohol or non-prescription medications 12 hours before or during any access visits.

h) Notwithstanding anything in this order, the child shall be in the care of S.W. and J.W. on December 24 and December 25 in each year.

i) E.W.'s access with N.K. Jr. shall be monitored by the Society through case aides or child protection workers.

j) N.M.K.'s access with N.K. Jr. shall be monitored by the Society through case aides or child protection workers.

2) The child, N.K. Jr., born 2010, shall have access with the respondents, E.W. and N.M.K. on a five week schedule as follows:

Week One:

(i) On Tuesdays, N.M.K. shall have access with N.K. Jr. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., E.W. shall have access with N.K. Jr.

Week Two:

(i) On Tuesdays, E.W. shall have access with N.K. Jr. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., N.M.K. shall have access with N.K. Jr.

Week Three:

(i) On Tuesdays, N.M.K. shall have access with N.K. Jr. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., E.W. shall have access with N.K. Jr.

Week Four:

(i) On Tuesdays, E.W. shall have access with N.K. Jr. from 4:00 p.m. until 7:00 p.m.

(ii) From Fridays at 4:30 p.m. until Sundays at 6:30 p.m., N.M.K. shall have access with N.K. Jr.

Week Five:

(i) On Tuesdays, E.W. shall have access with N.K. Jr. from 4:00 p.m. until 7:00 p.m.

[143] Finally, I encourage the parties to remember and act upon the cautionary advice of Dr. Schnayer which I repeat:

"...what these children need are for all the parents and grandparents to get along. That is the biggest issue. To mitigate any other problems, they need to get along and don't fight in front of the children."

Released: October 14, 2014

"original signed and released"

Barry M. Tobin Justice