WARNING

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

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

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

The court may make an order:

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

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

DATE: 2015-05-08

COURT FILE NO.: Halton 300/13

BETWEEN:

THE CHILDREN'S AID SOCIETY, REGION OF HALTON

Applicant,

— AND —

T. D. L. D. S. L. (Mother)

S. F. (Father)

Respondents

Before: Justice Sheilagh Marie O'Connell

Heard on: August 11-15, September 26, October 7, 27, December 8-15, 2014

Reasons for Judgment released on: May 8, 2015

Counsel:

• Jeffrey Hart — counsel for the applicant society
• Gabriella Deokaran and Samir Patel — counsel for the respondent T. D. L. D. S. L.
• Thomas Arnold — counsel for the respondent S. F.
• Cathryn Paul — counsel for children, on behalf of the Office of the Children's Lawyer

O'CONNELL J.:

Part One — Introduction

[1] The Children's Aid Society, Region of Halton ("the society") has brought an amended child protection application seeking an order that the three children in this case be placed in the custody of the Respondent S.F. ("the father"), pursuant to section 57.1 of the Child and Family Services Act, (the "CFSA") and that access between the children and the Respondent T.D.L.D.S.L., ("the mother") be supervised at the discretion of the father.

[2] The three children are D. L-F., born [..], 2000, K. L.-F., born [..], 2004, and R. L-F., born [..], 2006. They are now 14, 10 and 8 years of age. The mother is the biological mother of all three children. The father is the biological father of the two younger children and the step-father of the oldest child, whose biological father has not been involved since birth. The father has acted as a parent to the oldest child since he was approximately eighteen months old.

[3] On August 27, 2013 the children were apprehended from the mother's care and placed in the father's care under a temporary care and custody order. The children have remained in the temporary care and custody of their father, subject to the supervision of the society since that time. The mother's access with the children is supervised by the society on a bi-weekly basis.

[4] On January 22, 2014, on consent of all parties, the children were found to be in need of protection, pursuant to section 37 (2) (g) of the CFSA. This section provides that a child is in need of protection where there is a risk that the child is likely to suffer emotional harm resulting from the actions, failure to act or pattern of neglect on the part of the child's parent prior to the intervention of the society.

[5] The court heard thirteen days of evidence from several witnesses. At the outset of the trial, a voir dire took place regarding the admissibility of hearsay statements made by the children to a society worker.

Part Two — The Issues

[6] As a child protection finding has already been made in this case, the issue in this trial is therefore disposition. In this case, there are two plans of care for the children being advanced by the parties. The court must decide the following:

1. What disposition (an order for the children's placement) is in the best interests of the children?
2. Once an order for disposition is determined, what order for access is in the children's best interests?

[7] In determining what disposition and access order is required to meet the children's best interests, the court must consider the degree to which the protection concerns that existed at the time of the apprehension of the children from their mother's care still exist.

Part 3 — The Position of the Parties

[8] The society does not believe that it is in the children's best interests to be returned to their mother's care or to have unsupervised access with their mother.

[9] The society claims that the mother was using crack cocaine and other drugs while caring for the children, causing the children to be seriously neglected, to miss an excessive amount of school, and to be exposed to domestic violence. The society also alleges that the mother used inappropriate physical discipline on a number of occasions.

[10] The society continues to have serious protection concerns about the mother's mental health and substance abuse, based on the mother's statements and conducts since the apprehension, and in particular, during supervised access visits. It submits that it is in the children's best interests to remain with their father.

[11] The father supports the society's application and raises the same protection concerns regarding the mother. He further does not support unsupervised access between the mother and the children. The father submits that the mother's access to the children should be supervised by the society or a supervised access centre.

[12] Counsel on behalf of the three children from the Office of the Children's Lawyer also supports the society's position that the children be placed in the father's final custody. However she does not support the society's or the father's position regarding access. It is her position that access between the mother and the children should be unsupervised, in an alternating weekend and holiday schedule.

[13] The mother opposes the society's application and requests an order that the children be returned to her care and custody immediately, subject to the supervision of the society, and that the father be granted alternating weekend access. She denies any mental health or addiction issues and submits that the children have always thrived in her care. She states that she was experiencing a difficult time in her life prior to apprehension, which she has now addressed, and the society did not help her.

[14] The mother further submits that the children are very unhappy and seriously neglected in the care of their father and that they want to return to her care.

Part Four — The Background Facts

[15] The mother is 38 years old. The father is 42 years old. They began their relationship and started living together in 2002 and separated in 2009. D., the oldest child, was approximately 18 months old when the parents started living together. The two other children, K. and R. were born during the parties' cohabitation.

[16] The mother is currently residing in Brampton, Ontario with her fiancé, Mr. A.A. ("A.A."). They reside in a four bedroom home which is leased to A.A. The mother states that she is employed as a disability consultant. A.A. is a machinist and foreman for a company owned by his uncle.

[17] The father and the children currently reside in Baden, Ontario with the father's common law spouse Ms T.Q. The father is employed as a diesel technician for a large masonry company. At the time of trial, he had been employed with this company for approximately two years, although he has worked as a diesel technician for most of his working life. T.Q. is currently at home with the children and also hopes to become a personal support worker.

[18] After the parties separated, the three children continued to live with the mother, with access to the father through an informal arrangement between the parties. The parties dispute how much time the father spent with the children post-separation. The father testified that he tried to see the children as often as possible but it was often at the mother's discretion and control. The mother testified that the father's contact with the children was irregular and sporadic.

[19] At the time of the society's initial involvement, the mother was living in Georgetown with the three children and the father was living in Baden with T.Q.

Part Five — Historical Involvement with the Society

[20] Child protection agencies have been involved with this family in 2003, 2009, 2011 and 2012.

[21] In April of 2003, the Children's Aid Society of Toronto received a report from an anonymous caller regarding concerns about the mother. An investigation was conducted and the allegations were not verified. In September of 2009, the society received a report from a third party regarding protection concerns. The file was closed after a safety assessment. In December of 2009, society received a referral from Halton Regional Police regarding a domestic incident between the mother and the father. The mother was provided with community links and the file was closed at intake.

[22] In 2011, the children's school called the society on three separate occasions during that year to report concerns about the mother's caregiving skills, unstable housing for the children, and other issues. In February, the school called the society to report concerns about the mother's parenting. The concerns were investigated and not verified by the society. In April, the school called the society regarding concerns that the mother and the children had no place to live. At that time the society determined that there were protection concerns and the file remained open for ongoing service. In October, the school again called the society and reported several concerns that were impacting upon the children. These concerns were verified as a result of the society's investigation and the file was transferred for ongoing service for the mother and children.

[23] On August 17, 2012, the father called the society to report his concern that the mother and her boyfriend were using drugs when he went to pick up the children for his access. He also reported that the mother's boyfriend had assaulted him when he arrived to pick up the children and that the mother had assaulted his girlfriend. The police charged the boyfriend with assault. The society conducted an investigation and verified that the children were at risk of emotional and physical harm as they were present during the altercation between the father, his girlfriend at the time, the mother and her boyfriend.

[24] Both parties gave considerable evidence at trial regarding this incident. The father described in detail a violent confrontation instigated by the boyfriend and the mother. He testified that the children witnessed the incident and that they were very upset and crying. He described the mother to be visibly impaired by drugs or alcohol and incoherent. The boyfriend fled while the father was calling the police but was later arrested.

[25] The mother denied that the children were present during the assault and the altercation. She testified that the children were inside the home and that they had not seen or heard anything, as the altercation occurred outside of the home. She further denied that her boyfriend had assaulted the father and stated that it was the father who assaulted her boyfriend.

[26] On August 19, 2012, Halton Regional Police reported a domestic dispute between the mother and her boyfriend to the society. In November of 2012, the Society received an anonymous telephone call regarding concerns about the mother and the boyfriend. The father later admitted in this trial that he was the anonymous called in November of 2012 as he was very concerned that the mother was using drugs such as cocaine and heroin while in a caregiving role, based on her statements to him.

Part Six — Summary of the Relevant Evidence

6.1 The Voir Dire regarding the Children's Statements

[27] The society, the father and the counsel for the children asked the court to admit the children's hearsay statements made to the child protection worker as an exception to the rule against hearsay evidence, using the principled approach of establishing necessity and reliability as set out in R. v. Khan, [1990] 2 S.C.R. 531.

[28] The mother opposed the admission of the children's hearsay statements and requested that the children be called as witnesses in this trial.

[29] R. v. Khan, supra established that the hearsay statements of a child may be received as evidence at trial if the two requirements of 'necessity' and 'reliability' have been met. Speaking for the majority, Justice Beverley McLachlan described these dual criteria as follows at pages 104 to 105:

"The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence must be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances that could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial."

[30] In determining the issue of necessity, I considered the undisputed evidence that the children love both parents and that it would be very difficult and emotionally harmful for the children to testify in these proceedings, given their ages and the matters in dispute. Ms Wells testified that all three children were in counseling and were acutely aware of these court proceedings. I considered the position of the children's counsel, who indicated that if the children were forced to testify in these proceedings, it would be harmful for them.

[31] I considered that a protection finding had already been made in this matter. Once a protection finding has been made, the test of necessity is more relaxed and what is only reasonably necessary in the circumstances is considered. See Justice David Aston's decision in Children's Aid Society of London and Middlesex v. B.B. and J., [2000] O.J. No. 235, (2000), 4 R.F.L. (5th) 183, (Ont. Fam. Ct.), at paragraph 16:

"The court's role on the adjudication of child protection proceedings has a dual character. In determining whether or not a child is in need of protection, the court's role is to determine disputed facts between litigants, and there is no rationale for its relaxing the rules of evidence. However once a determination has been made that a child is in need of protection, the rights of the parents are subjugated to the best interests of the child, and the court assumes a role much more closely aligned with the historical parens patriae jurisdiction exercised in England and described in Winnipeg Child and Family Services v. L.(L.), [1994] M.J. No. 251."

[32] In determining the issue of reliability, the legal test for the court to apply at a voir dire involving children's statements is whether the circumstances surrounding the statements achieve threshold reliability -- not whether the statements are ultimately reliable. The question for threshold reliability is whether a particular statement is sufficiently reliable to be admitted. See: R. v. Khelawon 2006 SCC 57, [2006] S.C.J. No. 57.

[33] In Khan, supra, Madam Justice McLachlan indicates that many considerations may be relevant to reliability. She includes such considerations as: timing, demeanor, the personality of the child, the intelligence and understanding of the child, the absence of any reason to expect fabrication, corroboration, and the child having knowledge of matters that he or she would not otherwise have.

[34] The court must employ a functional approach by first identifying the particular dangers posed by the proffered hearsay and then considering whether those dangers may be adequately overcome so that the hearsay may be considered sufficiently reliable to be admitted for consideration by the trier of fact.

[35] Ms. Catherine Wells is the child protection worker who recorded the children's statements and testified at the voir dire. She has been a child protection worker for fifteen years. She testified that she has received significant training regarding the interviewing of children, both from the society and from the police. She has interviewed children in hundreds of cases over the past fifteen years. It is not disputed that she interviewed the children in this case privately and separately on more than thirty occasions during her investigation in this case over an eighteen month period. The initial interviews took place at the children's schools. She also interviewed the children at the mother's home and the father's home.

[36] In determining the issue of threshold reliability, I considered the following:

a. The statements that the children made to Ms. Wells are first-hand hearsay and Ms. Wells, the recipient of the statements, was present for cross-examination and extensively cross-examined;

b. The children made the statements to Ms. Wells over a lengthy period of time (approximately eighteen months) privately and individually, in what appeared largely to be a spontaneous fashion, without prompting, on a number of different occasions and were largely in response to non-leading questions. Ms Wells testified that she often just lets a child speak at length after asking an open-ended question.

c. Ms. Wells, a social worker, had a professional duty to record the statements as accurately and objectively as possible at the time they were made or shortly thereafter. Ms Wells testified that this is what she did. Her case notes were disclosed, presented in court, and subject to cross-examination;

d. Ms. Wells testified that she made written or typed notes of the statements shortly after they were made. She did not amend her notes and, although she did paraphrase some of the statements made by the children, she attempted to quote the children verbatim in most instances;

e. Ms. Wells did not appear to have an apparent personal interest in the outcome of this litigation or any motive to misrepresent the statements. She testified that it is her job to conduct investigations and that she had no motive or personal bias against the mother or in the outcome of the investigation. She went into the interviews with the children with no assumptions about the investigation.

[37] I was concerned that Ms. Wells had not described in her notes the demeanor of the individual child during her interviews with them, however, she did have an independent recollection of the children's demeanor and disposition during her interviews with them, particularly regarding significant events that impacted the children and she testified about this.

[38] Ms Wells also testified in her examination in-chief that she "never" asks a leading question as the child's credibility would be severely hampered and it is not how she conducts what she described as "forensic interviews". However, in cross-examination Ms Wells did concede that she had asked some leading questions, when presented with her interview and case notes, and some of the answers recorded, which were clearly in response to leading questions.

[39] There were also occasions when it would have been important and helpful if Ms. Wells explored in greater detail the context and source of some of the statements that the children made to her. For example, how did they know some of the information that they disclosed to her about their mother's drug use after they had been placed in their father's care. In some instances, the children disclosed that the information was based on their direct personal experience and observation, but in other instances it was not clear whether they were reporting what had been told to them by others.

[40] Nevertheless, on the threshold test of reliability, it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strengths in others. (See Children's Aid Society of Ottawa-Carleton v. L.L., [2001] O.J. No. 4587 (S.C.J.) at para. 22).

[41] After hearing evidence and submissions on the voir dire, I delivered reasons in an oral ruling, while reserving my right to deliver more fulsome reasons in this judgment. I determined that requirement of necessity had been met and that the children's statements to Ms Wells had met the test of threshold reliability. I reserved on the issue of the ultimate reliability and weight to be accorded to the children's statements at the conclusion of the trial after a review of all of the evidence.

6.2 Events leading to the Society's Current Intervention

[42] On February 11, 2013, the mother contacted the Halton Regional Police Service to report abuse by Mr. A.J.S., ("A.J."), her boyfriend at the time. This is the same man who was criminally charged with assaulting the father in August of 2012 at the mother's home. The mother reported to the police that A.J. had physically assaulted her in October, November and December of 2012, and that he had threatened to kill her with a kitchen knife, and he had choked her with both hands on two separate occasions. She also reported that A.J. had sexually assaulted her on two separate occasions, and that he abused drugs. She further reported that A.J. kicked and broke a space heater in the home, resulting in one of the children stepping on the damaged pieces and cutting his toe.

[43] As a result of the mother's report, the Halton Regional Police Service charged the mother's boyfriend with four counts of assault, utter threats with a weapon, mischief, and two counts of sexual assault. The Halton Regional Police Service reported that during their interview with the mother's boyfriend, he admitted that he was a heroin user and that he and the mother did drugs together, including cocaine and heroin. The Halton Regional Police Service reported this information to the society as the children were in the mother's care and custody during this time.

[44] On February 21, 2013, society workers attended at the mother's home with Ms. Kim Bullock, a "forensic collector" from SMAART, an alcohol and drug testing company. The mother denied using drugs. She submitted to a urine test which was negative. During her meeting with the society workers, the mother described the abusive behavior of her former boyfriend, however she stated that the children were never present in the home or that they were asleep during the violence and did not witness anything.

6.3 The Children's Statements Prior to Apprehension

[45] On February 22, 2013, Ms. Catherine Wells interviewed the three children separately and privately at their schools. The oldest child, although reserved in answering the society's questions, disclosed that his mother and her former boyfriend had verbal fights in the home. He stated that he did not like the boyfriend and he did not want the boyfriend in the home. He did not report any physical altercations between his mother and the boyfriend.

[46] Ms. Wells interviewed the middle child, K. on the same day, privately, however K. did not respond to any non-leading questions or she stated that she did not know the answers to any of the questions asked by Ms Wells. Based on her experience, it was Ms Wells' impression that K. was very reluctant to speak to her and that she had been "well-versed" in what to say to children's aid workers.

[47] Ms. Wells interviewed R., the youngest child, privately at his school on the same date and R. reported the following, according to Ms Wells:

a) His mother was sleeping in the home and her boyfriend was in the home, and her boyfriend tried to choke his mother;

b) He heard and saw his mother being choked by the boyfriend;

c) R. made a gurgling sound to describe the sound he heard and demonstrated what he saw by grasping his throat with his hands and sticking his tongue out of his mouth as he squeezed his own neck;

d) He reported that his mother and her boyfriend fought a lot at night and that they said bad words;

e) He saw his mother's boyfriend punch his father and his father was bleeding;

f) He saw his mother fight with his father's girlfriend and he saw blood and hair being pulled out;

g) His mother has slapped his older brother on his cheek, mouth and sometimes his forehead. According to R., D. says bad words and he "mouths off" to his mother and that his mother slaps him across the cheek.

h) His mother has slapped him across the face and it hurt a lot.

[48] Ms Wells had a follow-up meeting with the mother at her home after her interviews with the children. The mother denied physically disciplining her children and she denied using drugs. She confirmed that her former boyfriend had used drugs, and that she had allowed the boyfriend back into the home because she thought that he would change and the violence would stop.

[49] On March 5, 2013, the mother refused to submit to a hair follicle drug test. At the same meeting, the mother described to Ms Wells explicit details of the physical violence and the violent incidents that occurred between her and the boyfriend in her home. However, the mother denied that the children had witnessed any of this.

[50] On March 25, 2013 Ms. Wells conducted further private interviews with the children at school. K. reported that she did not see her mother's boyfriend anymore and that gave her a "good feeling". K. stated that she did not like fighting. She did not like "telling on" people and that she would not talk about her home life because she "does not like to tell". R. reported that his mother's boyfriend did not come to the house anymore. He stated that his mother's friends came to visit, but there had been lots more people visiting before, including boys and girls. D. reported that he knew his mother's former boyfriend did drugs. He further confirmed he had disclosed to a close friend about violence, drugs and a lot of people coming and going in his home. He further stated that his mother said bad things about his father.

[51] On April 2, 2013, the children's schools reported a significant number of absences. Since September 2012, R. had missed 26 full days of school, 2 half-days and had 8 late days. K. had missed 27 full days of school, 2 half-days and in almost every instance, they were the same days that R. had missed. Further, the oldest child, D. had been absent 18 full days between September and May, most of which were the same days that the other children had missed. D. had been absent several half days and there were many days that he arrived late.

[52] The school also reported to Ms Wells that R. functioned at a very early junior kindergarten level, and that he could barely read, despite being in grade two. D. was one grade below in reading and struggles at school. He was not the type of student who should be missing school.

[53] On April 4, 2013, Ms Wells met with the mother again in her home. The children were home on that day and had missed two prior days of school. The mother reported that the children had pink eye. Ms Wells testified that she did not observe any indication of pink eye.

[54] During that meeting, the mother again refused to do a hair follicle test. However on this occasion, she told Ms Wells that she would likely test positive. The mother explained that she may have drugs in her system because her former boyfriend had forced her to do drugs, blew the drugs into her face when she was sleeping and had threatened to inject the drugs into her against her will.

[55] The society continued to receive reports of a number of school absences for all three children and reports of other concerns from the school. On May 28, 2013 the society learned that the mother attempted to remove the two younger children from their school after an incident at the school involving the mother and a teacher.

[56] On May 10, 2013 Ms. Wells testified that she had a private interview with R. at his school. R. reported that he missed his father and that he wished he was at his father's house right now. R. stated that he and his sister were always away from school on the same days because his mother did not want his sister going to school when he was sick. R. stated that his sister cooked food for them on the stove and made dinners. R. further stated that, "My mom doesn't really like you or the other Children's Aid people."

[57] On May 10, 2013 Ms. Wells had a private meeting with D. at his school. D. told Ms. Wells that he had not been to see a doctor for a long time. Ms. Wells testified that this statement was inconsistent with his school attendance records which showed that he had missed school because he was being taken to doctors' appointments.

[58] On May 28, 2013 Ms. Wells returned to K. and R.'s school and interviewed them separately and privately. R. told Ms. Wells that he hated the whole school and that his mother tried to sign him into a new school, but she could not. He stated that his mother gave him only an Ensure for lunch but he was still hungry. He stated that he had no breakfast at home that morning.

[59] R. also stated to Ms. Wells that his mother "smacks" K. and that it really hurts K. He stated that his mother also smacks D. This was the second time that he had reported that his mother smacked the children. According to R., D. gets in the most trouble with the mother at home. R. also stated whenever she comes to the home, they are good because they do not want to be taken away." Near the end of that meeting, R. stated, "My tummy hurts because I am hungry."

[60] Ms. Wells also met with K. privately on May 28, 2013. She confirmed that her mother tried to remove them from that school. K. stated that her mother was angry at the school on that day. She stated, "I did not have a lunch to eat at first break. My teacher went to another teacher and he got a hamburger for me" because K. was doing the "EQOA" test that day and needed lunch. K. further stated that R. was very hungry. He only had an Ensure to eat. R. drank the Ensure and then came to K. saying he was hungry while crying and holding his stomach. K. shared her hamburger with R. According to K., the teacher was angry that R. came into the portable and ate K.'s lunch. The mother came to school and was angry at the teacher and tried to take them out is school. K. said that the thought of leaving her school and going to another school was very upsetting to her.

[61] In her testimony, the mother admitted that she was upset with the school staff on that day. She was late in bringing the children's lunches to school on that day but the school had given her the wrong time for the lunch period. The mother also admitted that she tried to remove the children from school on that day and register them in a different school. However, she was advised that it was too late in the school year to change schools.

6.4 Society's Efforts to Work with the Mother

[62] During late May and early June of 2013, Ms Wells had great difficulty contacting the mother. She recorded several unsuccessful attempts to contact the mother and to arrange meeting with her to discuss her protection concerns. Ms Wells testified that she left numerous letters for the mother at her home, and attempted to telephone her repeatedly.

[63] Ms Wells testified that she started to become very concerned that something had happened to the children. In one letter left at the home, Ms Wells informed that mother that she would be contacting the police to conduct "wellness check". The father also testified that he had made several attempts to contact and locate the mother and the children in May and June of that year.

[64] On June 6, 2013, Ms Wells learned that the mother had removed the children from their schools and had sent them to reside with her parents near Orillia, Ontario. Ms Wells was unable to meet with the children or the mother after June 6, 2013.

[65] Although the mother denied that she had refused to maintain communication or cooperate with the society, she did acknowledge that there were times when she was not able to meet with Ms Wells in May and June of 2013 because she was busy working, attending various appointments, and looking for new housing for the children. She denied not returning the society's phone calls.

6.5 The Court Proceedings and Events Leading to the Apprehension

[66] On July 9, 2013, the society commenced its protection application and sought an order to supervise the children under their mother's care, based on its concerns that the mother was refusing to cooperate with their investigation of the child protection concerns and refusing to meet with the society worker. The society sought the following conditions of supervision, among others:

a) The mother shall meet regularly with the society worker on a scheduled and unscheduled basis,

b) The mother shall participate in a parenting program as approved by the society;

c) The mother shall refrain from the consumption of illegal drugs including but not limited to heroin, crack, cocaine, and marijuana in the presence of the children, and not permit the children to be exposed to drugs or anyone to appears to be under the influence of drugs;

[67] The first court date was scheduled for Thursday, August 15, 2013. At that court attendance, the mother consented to urine drug testing however she would not consent to the hair follicle drug test. Justice Roselyn Zisman ordered that the mother submit to random urine drug tests and a six month segmented hair follicle drug test. Both the urine and the hair samples were collected by a forensic collector retained by the society in court on that day. The urine test was negative.

[68] Ms Wells testified that on the day after court, the mother called the society approximately seven times and left long rambling messages for a number of employees in the society's offices, including the society's executive director. Ms. Wells spoke to the mother in a telephone conversation that was approximately one hour long.

[69] Based on the mother's, "delusional type statements", Ms Wells became very concerned about the mother's mental health or possible impairment. Ms. Wells advised the mother of her concerns and that she would be attending at her home later that day to submit to a urine drug screen. The mother then became very agitated and hung up the telephone.

[70] Later that day, Ms. Wells attended the mother's home in Georgetown along with another society worker and SMAART urine collector. The mother exited the home with the two younger children alongside her. Ms Wells testified that the mother was very upset and was screaming at the society workers. Both children were also screaming to leave them alone. The child R. then disappeared into the home for several seconds.

[71] It is not disputed that R. came back out of the home with a steak knife and attempted to exit the home and run towards Ms. Wells with the knife. The mother caught R. before he was able to reach Ms. Wells. The mother continued to scream. Ms. Wells called the police. The police arrived and the mother did submit to a urine test. The urine test was negative.

[72] On August 26, 2013, the society received the results of the mother's segmented hair follicle drug test, conducted on the hair sample obtained in court. The test results indicated that the mother had been using cocaine or crack cocaine for the previous six months, although the frequency or amount used had changed over time, with the highest frequency and usage occurring in July and August of 2013.

[73] After receiving the results of the hair follicle test, the society apprehended the children placed in the father's care. On August 29, 2013, the court made a temporary without prejudice order, placing the children in the care and custody of the father subject to society supervision. Access to the mother was to be at the discretion of the society; however telephone access was to begin immediately.

[74] On November 6, 2013, a contested temporary care and custody hearing took place before Justice Zisman, once the mother had retained counsel and filed responding materials. The mother sought an order that the children be returned to her care immediately.

[75] At the temporary care hearing, for oral reasons, Justice Zisman ordered that the children remain in the temporary care and custody of the father, with terms of supervision for both parents. Justice Zisman further ordered that the mother have weekly access to the children, as arranged and supervised by the society.

[76] The matter returned to court on January 22, 2014. At that time, on consent of all of the parties, the children were found to be in need of protection pursuant to section 37(2) (g) of the Child and Family Services Act and all the other statutory findings were made at that time. Regrettably, for reasons unknown to the court, the parties did not enter into a Statement of Agreed Facts regarding the protection finding.

6.6 The Children

D., the Oldest Child

[77] Ms. Wells testified that the first time she met the oldest child, D., he looked "just terrified". This was on February 21, 2013 when she first met the mother at her home in Georgetown. She then met D. the next day at his school. Ms. Wells described D. as very reserved, very quiet, very polite, very soft spoken and exhibiting a great deal of emotional discomfort during that interview. It was a very short interview. Ms. Wells testified that she then saw D. about every 30 days, if not more than that, particularly after significant incidents. She testified that he started to open up a little bit more to her over the course of time.

[78] Ms. Wells testified that once D. went to live with his father, he was like "a different child." Ms. Wells described him as very forthcoming and very eager to tell her about school, about football and about the activities in which he was now involved. She testified that D. is flourishing in his father's care.

[79] Ms. Wells describes D. as a very mature young man who has hopes and dreams about his future and is very excited about the high school that he has registered in for the fall of 2015. He wants to do well in high school and he wants to become a police officer. Ms. Wells testified that D. consistently expressed to her that he would like to stay with his father at least for the next five years and go to school in his father's community and that he does not want to miss any school. D. has made a number of friends in his father's community and he is very involved in extra-curricular activities.

[80] Ms. Wells described D.'s relationship with his father as a very close, caring, and loving relationship. D. considers him his real father, not his stepfather. Ms. Wells described no behavioral concerns with D. and that he has a good and protective relationship with his two younger siblings.

K., the Middle Child

[81] K. had been very reserved and reticent to answer questions during her first interviews with Ms Wells while she was still in her mother's care. Ms Wells described K. now as a completely different child since coming into her father's care. Now, K. is very eager to talk to her about school, about how she is doing and what she would like. K. speaks her own mind and she is quite articulate. She is happy in her father's care.

[82] Ms Wells testified that K. has struggled with anger issues, particularly towards her mother. K. is in weekly counseling and is learning ways to manage or control her anger. Ms Wells testified that this has been a very positive experience, and overall, K. is a happy child.

R., the Youngest Child

[83] Ms. Wells described R. as an adorable little boy. He is a very talkative, active, and happy. According to Ms. Wells, R did not seem unhappy before the apprehension either. The only time that she did not recognize him was when he was in a rage and came after her with a steak knife.

[84] R. has some special needs that need to be addressed. He is academically delayed and has speech difficulties. His schools (while in his mother's care and while in his father's care) have both recommended an Individualized Education Plan and a speech pathologist. R. is also experiencing some behavioral problems at school. He has been referred to a pediatrician and a psychologist for an assessment regarding potential learning disabilities or mental health issues.

6.7 The Children's Statements after Apprehension

[85] Throughout the more than thirty interviews with the children over a period of approximately one year since the children had been apprehended from their mother, the two older children have consistently expressed that they wish to remain in their father's care, although they love their mother and want to continue to see her. R. the youngest, was more conflicted, according to Ms. Wells' evidence. R. stated that he would like to live with his father for two days and then live with his mother for two days, although his views were somewhat contradicted by some of the statements he made with respect to his mother.

[86] Counsel on behalf of the children from the Office of the Children's Lawyer also confirmed that the two older children's consistently expressed to her that they wish to live with their father and that the youngest child wishes to spend equal time with both parents, although he is somewhat inconsistent.

[87] On September 13, 2013, Ms. Wells visited the children at the father's home and interviewed each of them privately. K. stated that she liked living with her father because he gives her lots of food and lots for lunch. R. stated that he liked his father, he liked his school and he liked living with his father, but he liked living with his mother more because she did not give him trouble and that his father would make him sit on the stairs. D. stated that he liked living with his father and knew that his mother needed to get better.

[88] On October 9, 2013 Ms. Wells again visited the children and conducted private meetings with them at their father's home. All three children disclosed that their mother used drugs while they were in her care. The children described in detail the drugs that they saw and smelled in their mother's home. K. stated that her mother took drugs because "she was always mad". The drugs "smelled gross and the smell was in her room." K. stated that on R.'s birthday her mother slept all day and R. did not get a birthday cake. Her mother paid a lot of attention to her boyfriend, who was always in the room with her and slept in the bed with her.

[89] Ms. Wells interviewed D. privately on the same day and he reported that his mother made "poor choices" like "drugs and A.J." He further disclosed to Ms. Wells that his mother used "crack cocaine, heroin and possibly marijuana." He described finding a deformed water bottle in his mother's bedroom which he thought was being used for drugs and he described how the drugs he saw came in different forms. He stated that he would not mind being with his father for "the next five years".

6.8 The Father's Evidence

[90] The father acknowledged that he worked long hours during the parties relationship, however he tried to be remain actively involved with the children when he was home. The father acknowledged that after the separation the children resided with the mother. The father testified that he tried to exercise regular access to the children however this was frequently restricted by the mother.

[91] The father denied the mother's allegations that he was violent and aggressive towards her and the children during the parties' relationship. The father testified that he and the mother had numerous verbal fights during their relationship, but he was never physically assaultive or aggressive. The father testified that the parties separated when he learned that the mother was involved with another man and that this was a very hard decision for him.

[92] The father testified that in 2012, he became increasingly concerned about the mother's drug use. He described the incident in August of 2012 when he went to pick up the children for a pre-arranged camping trip at the mother's home in Georgetown. When he and his girlfriend at the time (not his current partner) arrived to pick up the children, the mother stumbled out of the home and appeared to be extremely impaired and incoherent. Her speech was slurred and she did not remember that he was picking up the children that day for a camping trip. The mother told him to leave and to return later so that she could get the children ready. When the father returned, the children were not ready and the mother and the girlfriend began arguing and the mother started attacking her.

[93] The father called 911. While the father was on the phone to 911, the boyfriend "clocked him" causing him to fall to the ground. The father testified that the children were present and witnessed this assault and were extremely upset and crying. The boyfriend fled the scene while the father continued to call the police. The father was injured and bleeding.

[94] The father acknowledged that he reported this incident to the society. He made a further anonymous report in November of 2012. At that time, according to the father, the mother admitted to him that she was using cocaine and heroin with A.J. The father stated that he was "absolutely shocked" when the mother told him this and he became very concerned.

[95] The father denied using drugs. He admitted to smoking marijuana during his relationship with the mother, but he had never used hard drugs and has not smoked marijuana for a number of years. The society never asked the father to do a drug test. The father explained that he is subjected to random drug testing at work, given that he is operating heavy machinery. The father refused to take a drug test at the mother's request. He was only prepared to submit to drug testing if requested to do so by the society, which was never requested.

[96] The father testified that he was relieved that the society became involved. He had hoped that with cooperation and time, the mother would get better and address her issues. He testified that he did not want the mother to deteriorate more. However, the father testified that he was disappointed as the mother told him that they need to "get rid of" Ms. Wells and that there was "no way" that she was doing a hair follicle test. She was not going to cooperate with the society and she tried to convince the father to do the same.

[97] The father described the events in early June in which he could not locate the children and the mother. He described attending at the mother's home to locate the children on a number of occasions. There did not appear to be anyone living there. The father testified that he had no idea where the children were but eventually received a text from the mother informing him that the children were in Orillia with the grandparents.

[98] The father contacted the Halton regional police. They confirmed with the Orillia police that the children were not in the mother's care but in the care of the maternal grandparents. By that point, the father was exchanging a number of text messages with the mother which greatly concerned him. The mother warned the father that if he attempted to take the children from the grandparents, she would call the police.

[99] The father testified that he did not want the children to be exposed to a confrontation between him and the grandparents. Instead, he consulted a lawyer in early June 2013 and attended at the courthouse to begin preparation for an application for custody or at bare minimum, access to the children. However, before he filed his application, the society had commenced its protection application.

[100] The father testified that on the night of the apprehension he received a telephone call from Ms. Wells, who asked him to come to Georgetown and to remain out of sight in his car to retrieve the children after they had been apprehended. The father described in detail the events of that evening, which were no doubt very traumatic for the children and both parents. Once the father received the children, he spent some time calming them down, and then drove them to his home in Baden.

The Father's Evidence regarding the Children in his Care

[101] The father, his partner and the three children are living in a four bedroom farmhouse in Baden, Ontario. This is a small rural community of approximately 4400 people, of which almost half of the population is children. The father described a close knit community. Within weeks of the children's residence with him, the children began to make friends in the community and at school.

[102] The father testified that all three children have flourished in school and the community since coming into his care. According to the father, they have transformed into very happy, confident and loving children since they have been in his care.

[103] The father immediately registered the children in school after they came into his care. The children's schools are only five hundred feet apart. The father described in detail a typical school day for the children and the family which was very structured and full.

[104] The father testified that he and his partner have become very active in all three children schools. The father attends all parent teacher meetings, school barbecues and fund-raisers, and has been very active in the children's extra-curricular activities.

[105] The father described being extremely proud of what D has accomplished over the past year. D. has not missed one day of school since coming to live with father. He has brought home school evaluations that are "unbelievable", according to the father. D. is involved in numerous extracurricular activities, including football, music, in which he is learning to play a musical instrument, school field trips, and other school events. The father testified that D.'s demeanor and self-confidence has "shot through the roof". Every time the father comes home after work, D. has laid out his homework and reports and marks on the table for the father to see.

[106] The father stated that D. is very proud that he is going to high school next September and that he will be able to take advanced English science and math courses. D. has a choice of four different high schools and has chosen a high school close by where a number of his friends are going, and close to his sister and brother's school. The father testified that he wants D.'s school experience to be a "yes" to everything, so that he can continue to flourish.

[107] The father also described K.'s past school year since being in the father's care as very successful. Prior to starting school, according to the father, K. had a "tremendous amount of head lice" (denied by the mother), and her hair was matted and unkempt. He testified that K. now looks dramatically different. Her hair is now clean and shiny, she is well-dressed and excited to go to school. K. is very active in the school choir and in a community choir. She has already performed in concerts. K. is also learning a musical instrument. She has volunteered to be a school monitor and a lunchroom monitor. K. has already made many friends at school and has a best friend in her class.

[108] The father described K as being very happy and proud of her school involvement. She fits in well at the school, and has not been bullied, something that she experienced while in her mother's care. K has only missed five days of school this year as a result of chickenpox and she is doing very well academically.

[109] Father described R.'s past school year as challenging, but he has made significant progress. When R. was first registered in school, he was placed in grade two, which was appropriate for his age. However, it was apparent that R. could not read or write, nor did he have basic math skills. He was at a junior kindergarten level.

[110] The father testified that he has worked with the teachers to develop an Individual Education Program (IEP) for R. and worked with him on basic reading and writing skills. The father testified that by the end of the first year, R. had already progressed to the grade one level. The father described practicing with R. every night at home. R. is very proud that he can now read and according to the father, he will open up a children's book and read through it and recognize words.

[111] The father testified that he also noticed that R. was making a number of "weird" or "squeaking" noises or using gestures instead of communicating with words. The father confirmed that he has been working closely with the school on these issues and R. has been referred to a pediatrician and a psychologist to assess whether or not he has a learning disability or some mental health issues.

[112] R. has had some behavioral problems in school. The father described that R. has also had some behavioral issues at school, including a few "pushing matches" with other students. The father testified that R has not been suspended from school, although he did receive a detention.

[113] The father arranged for complete physical checkups for all three children once they were in his care. The children have a regular family doctor who conducted the examinations. The father has also arranged for dental care for the children. The father described being "absolutely shocked" at the extremely poor state of the children's teeth. The children have required a tremendous amount of dental work.

[114] In the first year of living with their father, the children have been to the dentist approximately twenty times for a number of serious dental issues. K. has had eleven dental appointments. R. has had six dental appointments and requires two more appointments to address all of his cavities. At this point the children now have regular cleanings and check-ups and their teeth are being maintained.

[115] The father has also enrolled children in counseling. During the school year the children attend counseling privately and individually every Wednesday after school. The father described both of the younger children as opening up tremendously and that the counseling has been very good for them. K. in particular has had some anger management issues and she is learning ways to cope with her anger through her counselor, according to the father. The children took a break over the summer from counseling but it was agreed that they would start backup during the school year.

[116] The father and his partner have also, upon the request of the society, attended parenting courses. The father testified that he was a little apprehensive at first, but he found it to be a great experience. The father described experience as very interactive and has provided him with a number of new strategies and understanding about behavioral issues for children at different ages and stages of development.

[117] Since the children have been in the father's care they have gone on a number of family trips together. Over the summer of 2014, the family has gone camping on three separate occasions, they have attended Niagara Falls, Victoria Park, splash parks, and a number of other activities which the father described during his testimony.

Response to Mother's Allegations of Violence

[118] In cross-examination, the father denied all of the allegations of violence by the mother. The father denied kicking the mother in the face with his steel toed boots during an altercation with the mother and grandmother. He recalled the incident and acknowledged that the mother has found adult magazines in his work truck and confronted him. He testified that he was in the kitchen with the maternal grandmother when the mother entered the room. The mother threw the magazines at him and began hitting him in the face. The father said he attempted to leave for work at that point and the mother continued to try to hit him. The father grabbed the mother's arm to restrain her and asked her to stop hitting her. At that point, the maternal grandmother jumped on his back which cause all three of them to fall over. The grandmother's toe was injured as a result. The grandfather was not present but arrived later and took the grandmother to the hospital to treat her injured toe.

6.9 The Mother's Evidence

[119] The mother testified that she has always been the children's primary caregiver and that the children had thrived in her care. She ensured that all of their physical, emotional, and material needs were met. She testified that during their relationship, the father worked long hours and was hardly present.

[120] The mother very strongly believes that the children desperately want to return to her care and that they are unhappy and neglected in the father's care. The mother was very concerned about the children's health and safety in the care of the father and his partner. She listed a number of concerns regarding the children's hygiene, lack of supervision, and neglect. According to the mother, children are not being properly fed, bathed or clothed, based on her observations of the children during the supervised visits and what the children tell her. She testified that the children are left unsupervised in the father's care and that the youngest child had been suspended from school for biting and hurting other children. She also very concerned that the children are exposed to both the father and his partner's cigarette smoking.

[121] The mother testified that the father was very violent and abusive towards her throughout their relationship. She stated that she fears for her children's safety with father. The mother related two specific instance of abuse (denied by the father) which she claims occurred before the parties separated. On one occasion, the mother testified that the father kicked her in the face with his steel toe boots. On another occasion, the mother claimed that she discovered adult magazines in the father's work truck and when she confronted with this with him, he snapped and pushed her onto the ground, then picked her up and threw her against the wall. He then punched her in the face and kicked her in the head again with his steel toed boot. He also kicked her mother with his boot, injuring her foot, and twisted his mother's her mother's arm.

[122] The mother testified that she did not call the police because she was in a state of shock. (She later testified that she did call the police, or neighbors called the police, but they went to the wrong address.) However, she immediately took approximately 59 photos of her injuries. The mother attempted to introduce these photos as proof of the father's assault against her. The photos were not date stamped and it was unclear when they were taken or who took the photos. Counsel for the society and the father objected to the introduction of the photos as they argued that these were photos of injuries caused by A.J.

[123] The mother testified that she tried to ensure that the father remained involved with the children after the separation, but he rarely exercised access and chose not to be a part of the children's lives. She testified that occasionally the father would be involved and would assist with groceries, money and helping with some household issues. She testified that the father was good at paying child support until they moved to Georgetown.

[124] After the mother moved to Georgetown, she became involved with her boyfriend A.J. The mother described A.J. as very violent and abusive and a heavy drug user. The mother testified that this was a difficult time in her life. She was in a very abusive relationship and they were living in poor housing that was affecting their health. The mother described at length how her housing unit had a number of issues, including a significant mould problem, and illicit drug use by other neighbours. The mother and the children had been living in this unit for approximately two and one-half years at the time of the society's involvement.

[125] The mother claimed that she attempted to reach out many times to numerous services to change her housing and to leave her abusive relationship with A.J. She testified that A.J. had threatened that if the mother called the police about his abuse, then "a certain Ms Wells" would be informed and that her children would be taken away from her. According to the mother, A.J. was a "police informant" and he had some prior dealing with Ms Wells.

[126] The mother testified that "the biggest mistake" that she made was calling the police for help. In her words, "I almost feel responsible for the predicament that my children are in because I reached out to the police to be safe and this is what they did to me."

[127] The mother described feeling constantly harassed and very stressed by Ms Wells' involvement. She stated that she had worked with the society in the past voluntarily and had good relationships with previous workers, but she described Ms Wells as hostile, aggressive and difficult. The mother did not trust Ms Wells and believed that she was conspiring with the father to take the children away from her. The mother testified that the children were "terrified" of Ms Wells for this reason.

The Children's Exposure to Domestic Violence

[128] The mother denied ever exposing the children to domestic violence. The mother testified that the children were asleep in their rooms when A.J. assaulted her on numerous occasions. When asked how her youngest child was able to describe in chilling detail his mother being choked by A.J. including making the gurgling sounds that he heard, the mother testified that he must have overheard her statements to the police about this incident.

[129] The mother further denied the children were exposed to the violent confrontation between A.J. and the father when the father arrived for his pre-arranged camping trip with the children. Contrary to the father's evidence, the mother testified that the children were inside her home and had not seen anything, although they may have heard something.

The Mother's Drug Use

[130] The mother adamantly denied having a drug addiction or any mental health issues. The mother testified that she has not attended for drug treatment for this reason. However, she admitted that she had ingested and used crack cocaine during the previous seven months prior to the apprehension of the children. However, she testified that she did not use the drug voluntarily except for "one mistake" when the children were not in her care during the summer of 2013.

[131] The mother gave the following explanations during her testimony for using cocaine and crack cocaine:

1. After she became involved with A.J, he forced her to use cocaine and crack cocaine by blowing the drugs into her mouth and up her nose, and putting the drugs into her food against her will. She testified that "he often put drugs into her food" during their relationship, against her will. She described this period as in the fall of 2012 until February 2013, although this time period changed during her testimony;

2. The building where she and the children were living was filled with drugs and the drug smoke was coming into her apartment. The children and she breathed in crack cocaine every day which is why the cocaine and cocaine metabolites were detected in her hair;

3. Ms Wells advised her to use drugs. The mother testified that Ms Wells explained to her that she needed to have "an issue" and that "you need to show a positive result to get resources". As she explained, "I was forced to do drugs to get access to resources;"

4. One of the mother's neighbours named "Barb" also insisted that the mother do crack to help her get resources from children's aid society. The mother smoked crack cocaine with this neighbour on approximately three occasions because she was misled by the neighbour that it would help her access resources.

5. The above neighbour also slipped drugs into her drink without her knowledge. This occurred sometime between February and May of 2013 and also during the summer of 2013. The mother acknowledges that she has been charged with assaulting this same neighbour in August of 2013, although she states that the neighbour actually assaulted her. The results of the criminal proceedings regarding those charges are unknown.

6. During the months of June and July, the children were not in care, but in the care of her parents in Orillia. The mother used drugs during that period because she was desperate, she missed the children, due to being stressed and overwhelmed, although it was only "a one-time mistake;"

[132] When asked why she refused to have a hair follicle test conducted by the society if Ms Wells told her to do drugs, the mother testified that she had called Ms Wells after she ingested the drugs (sometime in the summer of 2013) and that Ms Wells told her that "it was not enough and that [the mother] had to have more in her system in order to access the society resources".

[133] When asked why she thought it was a good idea to smoke crack to get access to society resources, the mother responded that her children were not in her care during that time, as they were in Orillia with her parents.

[134] Throughout her testimony, the mother denied that the children were in her care while she was using drugs. When asked to explain how this was possible, given that she testified she was forced to use drugs by A.J. during their relationship, or drugs had been slipped into her food without her knowledge, the mother explained that the children were sleeping at these times.

[135] The mother also testified that she only did crack cocaine approximately "three or four times" in June and July of 2013. This was contradicted by the psychiatric report by Dr. Golas, tendered by the mother in support of her case and entered into evidence on consent of the parties. According to the report, the mother told Dr. Golas that she smoked crack approximately thirty times in June and July of 2013. When asked about this, the mother testified that this was a mistake in the report.

[136] The mother further acknowledged that she did not get the children tested for drugs despite her testimony that they had all been exposed to drug smoke seeping into the apartment for over two years. A review of the family medical records filed at trial also show that she never discussed this concern with the children's family doctor.

The Mother's Drug Use since the Apprehension

[137] Significantly, to the mother's credit, since the children were apprehended, she has submitted to a number of hair follicle, segmented hair strand tests over the past year, both voluntarily and at the society's request. All of the evidence demonstrates, not disputed by the society, that since on or about November of 2013, the mother has been completely drug free.

The Mother's Explanation for the Children's Absences from School While in Her Care

[138] The mother acknowledged that since 2008, while the children were in her care and custody, they missed a significant amount of school. Copies of all of the children's school report cards and school attendance records from 2009 to 2013 were filed as exhibits at trial, on consent of the parties. It is not disputed that the children for the 2012-2013 school year, the two younger children each missed 37.5 days of school and were late over 40 times. The oldest child missed 20 days of school and was late approximately 30 times. From 2009 to 2012, all three children missed a very significant amount of school and were regularly late.

[139] The mother had the following explanations for why the children had missed so much school in her care:

1. The children were ill frequently because of the exposure to large amounts of mould in the apartment. The children were also exposed to animal feces and second hand smoke from drugs in their building as well;

2. The father had sabotaged her vehicle so she could not drive the children to school and it was too far to walk, particularly in the winter;

3. They could not walk to school because they had to walk past A.J.'s house, and they were afraid to do this;

4. The children were afraid to go to school because Ms Wells was harassing them;

5. The children were afraid to go to school because they were afraid that their father would kidnap them;

6. The mother had to take them out of school in June of 2013 and send them to Orillia because of the mould in their apartment, Ms Wells' harassment, and the fear that their father would kidnap them.

[140] When asked what steps the mother took to address the mould in the apartment during the time that she lived there, the mother started that she repeatedly contacted the region, her landlord, and the other agencies for assistance. The mother stated that she "reached out to everyone" and even went to the housing tribunal to take action.

[141] The evidence that the mother produced to support this claim was a letter from the Public Health Inspector for the Region dated July 4, 2014. According to the letter, the Inspector received the mother's complaint about mould in August of 2013 and met with the mother on August 19, 2013 to examine the apartment. The inspector observed "small amounts of mould in the bathroom" and provided the mother with information on how to clean and prevent further mould. The mother explained that the amount of mould was small because she had bleached and painted over it before the inspector arrived.

[142] The mother also testified that she has numerous discussions with Dr. Ying, the family doctor, about the mould. The family doctor's records were produced at trial. The children's first appointment with Dr. Ying is February of 2013. There is no reference to any discussions or reports to the doctor regarding the mould issue or its potential impact on the children's health. The mother disagreed with the records and recalled many conversations, even if they were not recorded.

[143] The mother was shown a map demonstrating that the distance between the younger children's school and her home to be only 900 metres. The mother first responded that this was still a long distance for children to walk, bundled up with snow suits and knap-sacks. She then stated that they had to walk the long way to avoid walking by A.J.s house. When asked to point this out on the map, it appeared to increase the walking time to approximately 12 minutes. She reiterated that the children were afraid to go to school.

[144] In cross-examination, the mother acknowledged that the children had changed schools a number of times while in her care and custody. She admitted that the oldest child had been to seven different schools while in her care. She denied changing the children's schools due to reports by the schools to the society about her care. She admitted that she changed the children's school in 2011 after three separate reports to the society. However she testified that the only reason she pulled the children out of that school was because the father had sabotaged her car. She could no longer get the children to school so she transferred the children to a closer public school (which is the school in which the children missed 37.5 days in 2012-2013).

[145] The mother acknowledged receiving a letter from the school principal dated 11 April 2013 in which the principal expressed concerns about how many days of school the children had already missed. According to the letter, the children had missed 23 full days of school as of April 11, 2013. The mother testified that she had a discussion with the school principal after receiving that letter. They discussed ways of helping her to get the children to school. The mother acknowledged that after receiving that letter the children missed another 14.5 days of school, however the mother felt that the principal did not understand her concerns.

[146] The mother admitted that in May of 2013 she again attempted to change the two younger children's school, following a dispute that she had with one of the teachers over the incident involving the children's lunches. The mother testified that she was upset with how the school handled the situation and tried to remove the children, but she was advised that she could not do so, given that the school year was almost over.

[147] The mother admitted to pulling all three children completely out of school at the beginning of June of 2013, three weeks before the end of the school year. However, the mother insisted throughout her testimony that this was the right decision because the children were terrified to attend school as a result of the ongoing harassment by the society worker and the fear that they would be kidnapped by their father. The mother also testified that she sent the children to live with her parents while she looked for better housing and to remove them from an unhealthy environment.

The Children's Educational, Medical and Dental Needs

[148] The mother did not believe that the children's academic development had been negatively impacted by their significant absences from school while in her care. The mother testified that she "home-schooled" the children when they were not in school. It was unclear how this occurred during the month of June of 2013, as she testified that she remained in Georgetown to look for housing while the children were in Orillia.

[149] The mother did not agree that R. could not read and write beyond a junior kindergarten level, although she did admit that he was "struggling". She testified that she was in the process of setting up an Individualized Education Plan (IEP) with the school for R., but that this had to be cancelled because of the apprehension. When presented to her, the mother acknowledged receiving the IEP report from the school as early as May of 2012, including the recommendations for a speech pathologist for R. The mother testified that she did not follow through with these recommendations because that was the school's responsibility.

[150] The mother acknowledged that the two younger children had needed glasses to correct their vision. She testified that she had set up regular eye examinations for them before they were apprehended. According to a letter filed on consent at trial, all three children had been for eye examinations in February and April of 2013. The mother testified that she was in the process of getting eye glasses for them, but then the children were apprehended.

[151] The mother further acknowledged that the children needed dental care. The mother admitted that she had not taken the children to the dentist while they were in her care. The mother testified that it was the father's responsibility to take the children to the dentist during his access visits.

[152] The mother further acknowledged that her Ontario Works provided dental benefits for the children, but she testified that the father told her not to use these benefits. According to the mother, the father told her that he would book the children's dentist appointments through his health plan and she "respected his wishes". The mother was testified that she waited a very long time for the father to do this. She started to take action to book dental appointments for the children, but then they were apprehended.

The Mother's Psychiatric Reports

[153] The mother obtained three psychiatric reports to respond to concerns raised by the society about her mental health, substance abuse and crack cocaine use. All three reports were filed, on consent, as exhibits at trial. None of the psychiatrists were called to give evidence at trial.

[154] The mother met with Dr. Angela Golas from the Centre for Mental Health Addiction on November 22 2013 for a two hour assessment. According to the report, the mother told Dr. Golas that she was presenting for the psychiatric consultation "due to a miscommunication" with the children's aid society. She was sent to CAMH by the society and she will "do anything to get her kids back".

[155] Dr. Golas reported the following clinical impression in her report, prior to concluding that there was insufficient information for diagnosis:

"This 36-year-old, Portuguese female was referred for a consultation and assessment for anxiety and depression history, as well as a history of trauma. This is at odds with the patient's stated intent for the interview, which she states is the product of her direction by the CAS to receive a psychiatric evaluation in order to secure custody of her children. She has been guarded throughout the interview and overtly states that she was reluctant to be forthcoming in order to avoid compromising the outcome of her wish for securing custody of her children... There are no acute safety concerns evident throughout this interview.… It was reinforced to [the mother] that the purpose of this consultation was not for clarification by the children's aid society; she remained adamant that there was no further need for psychiatric assessment."

[156] Regarding the mother substance use history, Dr. Golas reported the following:

"The mother states that she has used crack approximately 30 times in June and July 2013, secondary to harassment by a neighbor. She states this occurred several days per week and is uncertain about the quantity. She states her last use was beginning of August. She denied subsequent use. She denied cravings for crack and she made it clear that she is reticent to disclose further information given her concerns about how the CAS may use this report."

[157] The second report was completed by Dr. Greben, also of CAMH, on April 21, 2014, following a referral from her family doctor. Dr. Greben met with the mother for one hour on April 1, 2014 and reviewed the report completed by Dr. Golas.

[158] Dr. Greben opined that based on the information available to him, the mother did not appear to satisfy criteria for any major mood, psychotic, anxiety, or eating disorder. Based on the mother's report to him, in the absence of external collateral, there is a history of intermittent cocaine use, presently in remission, but not sufficient to diagnose a substance use disorder. According to the report, "the mother reported cocaine use of only three to five times, following the advice from her child protection worker and a neighbour."

[159] Dr. Greben noted that the mother's preoccupation with the issue of the return of her children meant that related aspects of her personal history took precedence, leaving less time to explore other aspects of her personal history in greater depth.

[160] The third report was completed by Dr. A. Sanchez, a psychiatrist, on May 5, 2014, referred by the mother's family doctor. Dr. Sanchez met with the mother for one hour on March 12, 2014. He did not meet the children nor review any of the society records. His report 1.5 pages in length. He concluded that the mother was not demonstrating delusional, hallucinatory or suicidal behaviour and that her judgment was normal. He further concluded that the mother was suffering from an "adjustment disorder associated with anxiety and depressed mood, due to environmental distress". According to Dr. Sanchez, the mother was in no need of medication, and "she is ready to take care of her children, the sooner the better, to avoid possible deterioration in her condition."

6.10 The Access Visits

[161] From October of 2013 to May of 2014, the mother exercised weekly semi-supervised access visits with the children. During this time period, the majority of the visits were supervised by the Kitchener Waterloo Children's Aid Society in the Kitchener area, which is closer to the children's home with the father. These visits took place in a large gymnasium with other families, and it was apparent from the evidence that these visits were not closely supervised.

[162] It is not disputed that the mother attended all of the access visits consistently and generally on time and on a number of occasions accompanied by the paternal grandparents. The case notes filed as exhibits in these proceedings show that the mother brought food, including home-cooked meals, and activities to the visits. Generally, the children were happy to see their mother. The mother would also bring gifts and allowances for the children and plan activities for them. The mother cleaned up at the end of the visits and encouraged the children to do so. The notes reflect that the mother and children would often share hugs and kisses at the beginning and end of the access visits.

[163] However, some of the visits did not go well. Ms Wells testified that the children reported being upset by a number of the mother's statements and her conduct during the visits. For example:

a. The children reported that the mother was repeatedly whispering in their ear and pressuring them to tell their lawyer and Ms Wells that they want to return to her home, including saying this to them in Portuguese.

b. The children also reported that their mother was saying many bad things about the father and the father's partner which made the children upset.

c. All three children expressed being upset about their mother recording them during their access visits;

d. On November 8, 2013, the mother told R. that his father and his partner were giving him bad things and giving D sleeping drugs. R. reported feeling sad about being told this information and that the father's partner was a good person and would not do this;

e. During the same visit, the mother told K. that the father or his partner may have broken her car window.

f. On February 14, 2014, K reported that the mother was telling all three children that the father's partner was poisoning the children and putting "rat poison" in their food. D reported that everyone was in the group during the access visit and the mother told them that they were being poisoned by the father and his partner. K. reported that R. is now scared to eat meat "because Mom says that Dad is poisoning us with rat poison"; All three children reported that their mother told them this a number of times;

g. R. reported feeling "really really sad because his mother told him that his father was putting rat poison in his food. R. reported that his mother told him this "five or six or seven" times. R. stated that he stopped eating food and got hungry. R. stated, "I was crying because my mom said that now I couldn't eat my dad's food."

h. In May of 2014, K. reported that her mother spoke to her in the gym and also in the washroom at the access visit. While in the washroom, her mother told her that she needed to tell Ms. Wells that she wanted to come home. While in the gym, her mother told her that she had done drugs but it was because Ms. Wells who told her to use drugs. Her mother also told her that the last drug test was clear and that both her father and her father's partner are using drugs but only her mother is getting in trouble. K. stated that her mother made her promise not to tell anybody about their conversation because CAS would cancel the visits. K stated "at first she was scared but then she really did not care because she was going to tell her dad anyway".

i. K reported that during a telephone call with her mother after that visit K told her mother that she wasn't going to the visit because she was because of what she had said. K reported that her mother was very angry at her for telling her father what she had said

j. D. reported that the mother was very angry at him and "ridiculed" and "ignored" him at the next visit for not telling her the truth about K., who had refused to come to this visit after what happened at the previous visit. D. was upset after this visit. D reported that his mother once again recorded the access visit and he did not like being report recorded

k. On a further access visit, the mother told all three children about "a wish box" that she had at her home and that she told the children that she wanted them to write down a wish. K. described the mother as forcibly taking R.'s hand to get him to write 'I want to go home to my mommy'. R. described his mother taking his hand and forcing him to write those words.

l. All three children reported that their mother records the visits, and tries to hide it, but they can see the recorder. The children did not like being recorded and wanted their mother to stop.

[164] In her evidence, the mother admitted that all of these conversations occurred, but that they were inaccurately recorded or taken out of context. She acknowledged that the conversation about rat poison took place, however the children misunderstood her comments. She was expressing concern about the father leaving food out on the counter. The mother also acknowledged that she did tell the children about "a wish box" in her home for the children, but she denied forcing the children and particular the youngest child to write that they wished to go home for the wish box. She acknowledged being concerned that the children, especially D. were being drugged by the father and his partner, but the children misunderstood her comments about this concern.

[165] The mother also admitted that she and K. had a conversation in the gymnasium and the washroom during a visit about drugs but she denied saying these things to K. The mother testified that K was very inquisitive and repeatedly asked her a lot of questions about whether or not she did drugs because her father told her this, so the mother finally told her that she was not doing drugs.

[166] The mother also acknowledged that she recorded many of the access visits, although she did not think that this upset the children. She acknowledged telling D. that she was recording the children to protect them. The mother testified that she was surprised that the children did not like her recording the visits.

[167] The mother denied being angry at D. during the May 22nd access visit, ridiculing or ignoring him because he did not tell her the truth about his sister. The mother wished to enter an audio recording that she had made of that visit to prove her version of events and that Ms Wells was mistaken. Over the objection of counsel, I allowed the audio recording to be played.

[168] In the audio recording the mother can be heard asking, "Is K. in the car?" D. responds, "She's at home." The mother then discovers that K. is in the car and asks D., "Why did you lie to me?" or "Why didn't you tell me the truth?" For a part of the recording the mother speaks to D. in Portuguese so it is not possible to understand what she is saying. During the rest of the visit the mother only speaks to R., except to say to D., "Would you like me to call T. so you can go, nobody is forcing you to be here."

[169] Counsel for the children sent a letter to the mother warning her to stop recording of the visits, however, the mother continued to do so. K. reported seeing a recorder hiding in her mother's sleeve.

[170] On April 21, 2014, all three children reported that their mother pulled up beside them at a gas station while the children were in the vehicle and the father's partner was getting gas. The children reported their mother blowing kisses at them. K. reported being upset because she was afraid her mother was going to get into trouble for doing this. The mother testified that this incident was blown out of proportion. She did see the children at a gas station in Baden, however she was there quite by accident. She happened to see the children alone and unattended in the car and she was very concerned for their safety so she went to see how they were doing and blew them kisses.

[171] The mother and her counsel attended a meeting at the society's offices on May 21, 2014. The mother was warned about her conduct as it was upsetting and harmful to the children. The mother was also asked to stop recording the children during the visits.

[172] Ms. Wells testified that after this meeting, the mother continued to make inappropriate statements to the children and to record them during visits. It became apparent that the semi-supervised nature of the visits in the large gymnasium with other families was not working. The society suspended the visits in Kitchener.

[173] The mother brought a motion to reinstate and expand access to unsupervised access in the community, which the society opposed. This motion was heard before Justice Zisman.

[174] After a contested motion, Justice Zisman denied the relief sought by the mother and ordered the mother's access be fully supervised at the society's offices once every two weeks for two hours. She set out the following reasons in her endorsement:

"There have continual concerns regarding the mother's inappropriate behaviour and comments to the children. The mother despite some very positive steps including parenting classes, counselling and stopping illegal drug use continues her inappropriate comments and continues to badger the children about telling the children's aid society that they want to come home, alleging drug use and inappropriate parenting by the father and his partner.

Despite being warned that access would have to be supervised in a more closely monitored supervised access arrangement be implemented, she has been unable or unwilling to curtail her behaviour. She is causing not just emotional harm to the children but a visible physical harm to R. She persists in recording access visits despite being requested to stop by the Office of the Children's Lawyer.

A much more supervised setting is required to ensure the children are not further harmed.

Pending the trial, I find that the mother had not met the onus of proving that a variation of the temporary care and custody order is met. The motion is dismissed."

[175] Justice Zisman made an order prohibiting the mother or any third party at her direction from video or audio taping the visits or telephone calls, as there was evidence that this was occurring, and an order the access between the mother and the children be fully supervised at the society's offices once every two weeks for two hours.

[176] Since the visits were moved to the society's offices, Ms Wells has supervised the visits through a two way mirror. Ms Wells has testified that the visits were generally "quite positive" and that the mother and children engaged and interacted well, were affectionate and loving with each other. She reported one conversation between the children and their mother about the retrieval of property from storage by the father which the mother believed belonged to her. However, on the whole the visits were positive and enjoyable for the children. The mother attended consistently and brought food and activities and was very attentive to the children.

6.11 The Mother's Residential Plan for the Children

[177] The mother is now living in a large four bedroom home in Brampton with her fiancé. Photos of the home were entered as exhibits at trial. They have been living in this home since August of 2014. The mother's fiancé pays the rent and fixed housing expenses. The lease is in his name. The home is spacious and well maintained and the mother has set up bedrooms for each of the children. The home is in what appears to be a quiet residential neighborhood close to parks, community centres and schools.

[178] The mother plans to register the children in schools and extra-curricular activities in the community. She stated that her work as a disability consultant provides her with flexible hours and allows her to work from home.

[179] When asked why she would not respect the children's wishes to remain living with their father, the mother responded, "These are not the children's wishes. This is what they have been forced to say by the father and Ms. Wells." The mother conceded that none of the recordings that she has made, edited and introduced to this court contain statements from the children expressing that they want to live with her.

6.12 The Mother's Witnesses

The Grandparents

[181] The grandparents testified with the assistance of a Portuguese interpreter. They have been married for 40 years. They love their grandchildren very much and miss them greatly. Both grandparents were very emotional during their testimony.

[182] The grandparents testified that their daughter was always a devoted and caring mother, and other than the "one mistake" in the summer of 2013, they were unaware of any child protection concerns. The grandparents were very critical of the father and his care of the children. They described the father as an evil and violent man. The grandmother described a violent assault by the father against her daughter while the parties were together. Both grandparents were also upset that the children were not being raised in the Catholic faith by the father.

[183] The grandparents were also very critical of Ms Wells and her investigation. They did not understand why she did not place the children with them and not the father.

[184] Both grandparents acknowledged that they had been invited to visit the children at the father's house after the apprehension but testified repeatedly that they would not visit the children or have contact with them at the father's home. They both acknowledged being invited by the father to K.'s birthday party and refusing to attend. The grandmother admitted to telling K. that she would not attend.

Mr. David Muir

[185] Mr. David Muir has been a close friend of Ms L. for approximately seven years. Mr. Muir owns a company called Disability Dreams Group, which assists people with disabilities to prepare their taxes. Mr. Muir testified that he has seen the mother with her children on many occasions and that she is a very good mother.

[186] Mr. Muir testified that the mother started working for him on a part-time basis in early 2013, but that she took a leave of absence in June of 2013 for stress and personal reasons and she did not return to work until January of 2014. Mr. Muir described the mother as bright and hard-working and very personable.

The Mother's Fiancé

[187] Mr. A. is a machinist by trade and co-owns the machine shop in Brampton with his uncle. He is a shop foreman has worked for approximately 18 years as a machinist. He earns approximately $75,000 per annum. He comes from a large traditional family with many aunts, uncles and cousins. The family routinely celebrates anniversaries birthdays and other special events together.

[188] Mr. A.A. testified that he and the mother started dating in April of 2013, although they had known each other before that. They became intimately involved in June 2013.

[189] Mr. A. described the mother as very nurturing, very compassionate, selfless, and an excellent mother. He stated that she is a wonderful person with the biggest heart. Mr. A testified that he observed the mother to be an excellent parent. He always saw plenty of food in the home and he observed her bringing nutritious lunches for the children to school.

[190] Mr. A. was not aware of the children's aid society's involvement in the mother's life until June 2013. He testified that the mother told him about the society's involvement at that time because the children were afraid to go to school. He testified that the mother explained to her that there was a CAS worker who was very aggressive and she felt that the worker had "malicious intentions" towards her.

[191] Mr. A. testified that he became aware of the issue of drugs after the first court date when the mother tested positive. The mother told him of her involvement with her ex-boyfriend and that he had forced her to take drugs. Mr. A. testified that he was astonished when the mother told her that Ms. Wells was also forcing her to take the drugs so that she could have an "issue" and get assistance from the society.

[192] Mr. A. testified that the mother admitted to him that she used drugs but not to the extent that the society said that she was using. Mr. A testified that he arranged and paid for the mother's own drug tests because she did not agree with the accuracy of the society's drug tests.

[193] Mr. A. has voluntarily obtained parenting courses and has undergone drug tests to support the mother and be part of the mother's plan of care. He also helped the mother find better housing in Brampton. He has signed the lease and pays all of the expenses.

[194] Mr. A. was surprised and upset that Ms. Wells did not meet with him or request any background or criminal record check as part of her investigation. He testified that Ms. Wells also refused to allow him to attend access visits despite his close relationship with the children. He was at the mother's home frequently before the children went to Orillia for the summer and he and the mother would spend time with the children on the weekends at the grandparents' trailer.

[195] Mr. A. described the first access visit that he attended with Ms. the mother. The youngest child came to the door ran over and gave him a hug. Ms. Wells then told Mr. A. that he had to leave and he was not allowed to visit the children. Mr. A. testified that he was very hurt and offended by Ms. Wells' behavior towards him and does not understand why he is not allowed to visit the children.

[196] Mr. A. and the mother got engaged in August 25, 2013 at the grandparents' trailer with the children. He and the mother have found a large four-bedroom home in the Brampton. He testified that the children saw the home prior to their apprehension and they are very excited about their bedrooms. Mr. A. stated that the fixed housing expenses are approximately $2000 per month. He is confident that he can support the children on his income. He testified that in the event that the parents separate he would transfer the lease to the mother's name so that she could continue to live there with the children.

[197] Mr. A. testified that he and the mother have an open and loving relationship and that they plan to marry once this litigation is over. He thinks that it is imperative that the children come home as the mother is heartbroken. The children are "everything for her" and it is extremely hard on her.

6.13 The Father's Witnesses

[198] T.Q., the father's partner testified. Ms Q. testified that she and the father became involved in February 2013.

[199] Ms Q. described her relationship with the father as an open and loving relationship. She did not start living with him until June 2013. At the time her middle daughter (18 years old) lived with them also. Her middle daughter was pregnant and after the birth of her child, she moved out into her own housing with her infant son in April of 2014.

[200] Ms. Q is currently studying to be a personal support worker and hopes to obtain a job placement in that field. Ms Q. described a large extended family to which she is very close. She has a wide range of nieces and nephews and her parents are actively involved with their children and grandchildren.

[201] Ms Q. has three children of her own, who are now 20, 18 and 15 years of age. Ms. Q admitted that there was children's aid society involvement in her life when the children were much younger. Ms. Q described her struggles with alcohol as a young, single parent. She testified that she voluntarily placed her children in the care of the society and addressed her alcohol abuse. She sought out addiction counseling and underwent a parenting capacity assessment, according to Ms. Q. Ms. Q testified that she disclosed all of her previous history with the children's aid society to the father.

[202] Ms. Q testified that she has been sober now for 17 years. She does not use illicit drugs and she has not been involved with the children's aid society for well over 10 years.

[203] Ms. Q described a close relationship with the three children. She described the children's schedule and routine. Ms. Q testified that she and the father were asked to take parenting courses by the society, to which they agreed. She found these courses helpful in developing a number of different kinds of strategies when parenting the children. Ms. Q stated that she and the father are very careful not to discuss the mother or the court proceedings in front of the children.

6.14 The Drug Testing

[204] The mother challenged the accuracy of the drug tests conducted on behalf of the society. The mother sought to have two "Hair Shaft Drug Screen Reports" conducted by Accu-Metrics Laboratory. The mother obtained these reports with the assistance of her fiancé after the children were apprehended. The mother submitted that these reports are more accurate than the reports obtained and relied upon by the society. The reports were admitted on consent as exhibits at trial.

[205] The first report relied upon by the mother states the mother's hair sample was collected on September 6, 2013. According to this report, the mother's hair drug test results indicated a positive result for cocaine/metabolites-benzoylecgonine of 2413 pg/mg and positive results of cocaine/metobolites of 4177 pg/mg for the approximate 90 day period prior to the collection of the hair sample.

[206] The mother did not call a witness from Accu-Metrics to explain the results or methodology used in the reports. The reports contain a chart which is designed to help the reader determine whether the donor is a low, medium or high user by comparing the quantity found in the hair with the quantities in the chart. According to the chart, the mother's usage of cocaine or crack cocaine was in the "medium use", described as "daily/weekends" during the three month period prior to September 6, 2013.

[207] The society's drug tests were conducted by Gamma Dynacare Laboratory in London, Ontario and interpreted by Julia Klein of Drug Testing Consultants. Ms Klein testified at trial. Ms Klein is the founder of Drug Testing Consultants and provides opinion and analysis for drug testing in hair samples but also in urine and other biological samples. The hair sample is collected by a "forensic collector", (in this case, Ms Kim Bullock) and then sent to the Gamma Dynacare Laboratory in London, Ontario. The results from the lab are then sent to Ms Klein for interpretation. Ms Klein provided a written report to the parties.

[208] A voir dire was conducted in which Ms Klein was examined and cross-examined extensively on her credentials and expertise, to determine whether she was qualified to give expert opinion evidence on the drug tests at trial. Her curriculum vitae was entered as an exhibit at trial.

[209] After the voir dire, on consent of the parties, Ms Klein was qualified to give opinion evidence regarding the results of the drug testing on the mother's hair conducted at the request of the society and the results of the hair drug testing obtained by the mother for her case.

[210] The results obtained in the society's drug tests were higher than the results obtained by the mother, and indicated greater frequency or higher rate of use of cocaine or crack cocaine over a period of several months prior to apprehension. Ms Klein was cross-examined extensively about the calibration methods, error rates, proficiency testing, testing for darker or black hair, exposure to second-hand smoke, and the chain of custody used by the lab.

Part Seven — The Law and Governing Legal Principles

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

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

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

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

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

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

   d. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

[212] As previously noted, this is the disposition stage of the protection application. The children were found to be in need of protection before trial on consent of all parties, and a protection finding was made under section 37(2) (g) of the CFSA. Once a child or children are found to be in need of protection, then the court must make a disposition order that is in the children's best interests.

[213] Under section 57.1 of the CFSA, the first requirement is to determine whether continued intervention through a court order is needed to protect the children. Subsection 57(9) provides that where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under the legislation.

[214] Where a child is found in need of protection and the court is satisfied that intervention through a court order is necessary to protect the child in the future, then the next step is to determine which one of the following orders under subsection 57(1) or 57.1 of the legislation should be made in the child's best interests:

1. An order 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;

2. An order 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;

3. An order that the child be made a ward of the Crown;

4. An order 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 not exceeding an total of twelve months; or

5. Under s. 57.1(1), an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[215] Sub-section 57.1 (1) of the CFSA provides that if a court finds that a custody order under this section would be in a child's best interests (a "section 57.1 custody order") instead of an order under subsection 57 (1), then the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of that person or persons. A section 57.1 custody order made shall be deemed to be a custody order under the Children's Law Reform Act and the court may make any custody and access order and order any of the incidents of custody and access that it would make under sections 28 and 34 of the Children's Law Reform Act.

[216] Section 37(3) of the CFSA sets out the factors that a court must consider when determining a child's best interests:

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

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

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

c) The child's cultural background.

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

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

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

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

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

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

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

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

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

m) Any other relevant circumstance.

[217] When considering disposition, I must consider the evidence that led to the protection finding. This is because when determining the best interests of the children, I must also assess the degree to which the risk or protection concerns that existed at the time of the apprehension still exist today. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.). The mother's plan requires very careful consideration as the children were apprehended from the mother. I must determine if it is in the children's best interests to be returned to their mother's care, with or without supervision.

[218] The significance of the child-centered approach at the disposition stage of a child protection proceeding is that "good intentions are not enough". The test is not whether the parent has seen the light and intends to change, but whether they have in fact changed and are now able to give the children the care that is in their best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man.C.A.). There has to be some demonstrated basis for a determination that a parent or parents are able to parent the child without endangering his or her safety. Children's Aid Society of Brockville, Leeds and Grenville v. C. [2001] 2001CarswellOnt 1504.

[219] In determining disposition, I must also consider subsection 57(2) and 57(3) of the CFSA. Subsection 57(2) requires that the court must ask the parties what efforts the society or another agency or person made to assist the children before they were apprehended.

[220] Subsection 57(3) requires that a court shall not make an order removing the children from the care of the person who had charge of them immediately before apprehension unless the court is satisfied that alternatives that are less disruptive to the child would be inadequate to protect the children.

[221] However, at the disposition stage of a child protection proceeding, in balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent's parenting ability (Catholic Children's Aid Society v. Metropolitan Toronto and the Official Guardian v. M.(C)., [1994] 2 S.C.R. 165).

Part Eight — Analysis

8.1 Credibility and Findings

The Society Witness

[222] Ms Wells was a credible witness. She testified in a clear and straightforward manner. On occasion, she was somewhat defensive during cross-examination. Contrary to the mother's position, Ms. Wells notes contained both positive and negative observations about the mother's parenting and her interactions with the children. Her case notes were, for the most part, balanced and detailed.

[223] Ms. Wells denied that she advised the mother to use illegal drugs so that she could get access to society resources. Ms Wells testified that she had heard this allegation for the first time from K., who reported to her that her mother explained this to her during an access visit. The court accepted Ms Wells' evidence entirely on this issue.

[224] Although I did not find that Ms Wells was motivated by bias or personal animosity toward the mother, a more balanced investigation of both plans of care before the court could have been conducted. It may have been helpful for Ms. Wells to have requested drug testing for both the father and his partner. As well, the court was concerned that Ms. Wells had not fully investigated the father's partner's child protection history. Ms. Wells admitted that she did not speak to the Ms Q.'s former child protection worker or review any parenting assessments, as referred to by Ms Q. in her testimony. Ms. Wells refused to disclose information about the father's partner to the mother or her counsel (for privacy reasons) until directed to do so by this court during the trial. Given that Ms Q. is an integral part of the father's plan of care, the mother was entitled to this information.

[225] The court also did not understand why Ms. Wells did not meet the mother's partner as part of her investigation of the mother's plan of care, or allow him to attend access visits. He was an integral part of the mother's plan of care. This regrettably may have led to a further apprehension by the mother that Ms Wells investigation was not balanced and motivated by a bias towards the mother.

[226] However, on the whole, I found Ms Wells' evidence to be fair and reliable. She was not motivated by "malicious intentions" as the mother described it. Ms Wells testified very sincerely that it was her "greatest regret" that she was never able to build a relationship of trust with the mother. I find that during the early part of her investigation, Ms Wells made repeated and concerted efforts to meet and work with the mother, which the mother actively refused or evaded.

The Father and His Witness

[227] The father was a very credible witness. He was quiet, soft-spoken and even in tone. He did not overstate his evidence and he described events in detail and very consistently. He was not shaken in cross-examination. He was overcome with emotion when describing how proud he was of his children and how well they were doing since coming into his care. His evidence regarding each child clearly demonstrated a deep understanding of their individual personalities and differences. The court was impressed with the father.

[228] The court's only concern with the father is his apparent refusal to communicate with the mother at all at this time. As he states, he is "done negotiating" with the mother. However, there will be times when he will need to communicate with the mother for the children's sake. The court was also surprised and concerned at the father's comments that he would not take a drug test if the mother asked him to do so, (he would only do so if the society requested this), because he "enjoyed making her squirm". The father explained that after all that had happened, he was not prepared to comply with the mother's requests, only the society's requests.

[229] The father's partner was also a credible witness. She presented as somewhat nervous and soft-spoken, but sincere. She was also composed and consistent under cross-examination. She was very open about her early history and struggle with alcohol abuse. She was candid about her involvement with the children's aid society as a young mother and the fact that her children were in care for a period of time while she addressed her issues. She fully disclosed this information to the society and the father. The court was satisfied that Ms Q. has been sober for more than seventeen years and that she is a competent, responsible and loving spouse to the father and a loving and good caregiver for the children.

The Mother and her Witnesses

[230] The mother was at times very personable and engaging. It is clear that she has many positive attributes. She clearly misses her children deeply and desperately wants them returned to her care. She understandably became overwhelmed with emotion a number of times during this trial.

[231] Unfortunately, the mother was not a credible witness. Her answers to questions in both direct and cross-examination were non-responsive, evasive, vague, confusing, and on many occasions, completely contradictory. The mother gave long convoluted answers to many of the questions posed to her. She could not answer a question directly. On a number of occasions, her answers simply did not make sense. The mother also exaggerated and overstated her evidence.

[232] On her first day of her testimony, the court was concerned about the mother, as she appeared confused, dazed and somewhat disoriented. Her voice would trail off and she had difficulty focusing or answering the question. Some of her answers were incoherent. However, the next day, the mother presented as coherent and alert. Regrettably, her evidence was still replete with contradictions and inconsistencies. At times it appeared that the mother was simply making things up as she went along, as her evidence was constantly changing.

The Mother's Drug Use

[233] I find that that the mother voluntarily ingested crack cocaine on numerous occasions while the children were in her care. I find that the mother's drug use occurred over a period of several months. The mother had several different explanations for why she ingested crack cocaine. With the exception of her "one mistake" that she testified occurred in the summer of 2013, all of her explanations blamed others around her. She did not take any personal responsibility for using crack cocaine over a period of several months, nor would she accept that her drug use had an impact on her ability to care for her children.

[234] The mother's testimony that she used crack cocaine because she was advised to do so by Ms Wells, a child protection worker, and by her neighbour in order to get access to society resources, was completely incredible. Her testimony that she was somehow tricked by Ms Wells, who was maliciously planning to take her children from her, was also unbelievable. I further did not believe the mother's evidence that her former boyfriend would slip drugs into her food or hold her down and blow drugs into her mouth against her will, nor did I believe that the drugs entered her system from other units in her building.

[235] The father's description of the mother's appearance and behaviour when he went to her home to pick up the children in August of 2012 was very credible, and consistent with the children's statements about their mother's drug use while in her care.

[236] Further, the mother's testimony about how much drugs she ingested was contradicted by the first psychiatric assessment, which the court found to be the most comprehensive, albeit still limited by the mother's guarded reporting. According to Dr. Golas, the mother told her that she used crack cocaine approximately thirty times in June and July of 2013, at a rate of several times each week.

[237] In making the above finding about the mother's drug use, I am not relying upon the drug testing conducted on behalf of the society or the mother to determine the rate and frequency of the mother's use. The court is aware of the recent concerns about the reliability of hair strand drug-testing in child protection proceedings and has therefore not given this evidence any weight pending the completion of the independent government review. However, in this case, it is not necessary, based on the mother's own admissions and my findings above.

The Mother's Allegations of Violence by the Father

[238] The mother's evidence about the violent assault by the father against her during their relationship was not credible. This story changed several times and was full of inconsistencies. The court did not believe the mother or the grandparents regarding this incident. Despite what was described as a violent and vicious assault against his daughter and his wife, the grandfather did not call the police. No one called the police. The grandfather testified that he never discussed the incident with the father. When he came home, and saw the injuries on his wife's toe, he took her to the hospital. He did not ask the father what had happened or confront him about allegedly assaulting both his wife and his daughter. He testified that they did not discuss it at all. The court accepted the father's explanation for what had occurred on that day.

The Mother's Witnesses

[239] The mother's witnesses were unfortunately not helpful to the court. The grandparents were understandably confused and very distraught by the removal of their grandchildren from the mother's care but they had little insight or understanding about the reasons the children were apprehended.

[240] Although the grandparents clearly love their daughter and their grandchildren very much, it was clear that they knew very little of what had happened pre-apprehension. They were very protective of their daughter when testifying. They admitted to signing affidavits in support of their daughter without reading them or knowing what was written. Not surprisingly, it was evident to the court that the grandparents will do or say anything to help their daughter.

[241] Neither grandparent had ever heard of A.J., the mother's former boyfriend, and did not know that he had been involved in the mother and children's lives for more than one year, if not longer. They knew nothing about his drug use, the criminal charges against him for assaulting their daughter, or the serious domestic violence in the home. Neither grandparent appeared to be aware of the extent of the mother's drug use. The grandmother flatly denied that the mother abused drugs. Neither grandparent was aware of the number of days that the children had missed school while in the mother's care. Neither was aware of the significant neglect of children's medical and dental needs or the youngest child's serious academic delays.

[242] Their evidence regarding the father was not credible. Their extreme hostility towards the father, including calling him "evil" and describing him as raising the children "like rats" was very concerning (although the grandfather later apologized for this statement). The grandfather, after being asked repeatedly, made it clear that he would not visit his grandchildren at the father's home. Both grandparents refused to attend their granddaughter's birthday party because it was at the father's home, despite being invited by father.

The Mother's Fiancé

[243] The court was impressed by the mother's fiancé. A.A. appeared to be very loving and protective of the mother. While A.A. appears to be a good, stable and supportive influence in the mother's life now, he appeared to very much in the dark about what had occurred in the mother's life. This is understandable given that his involvement with the mother began shortly before the children were apprehended and the mother acknowledged in her testimony that she did not tell him about the society's investigation of the children in her care until June of 2013.

8.2 The Children's Statements and Determination of Reliability

[244] After hearing all of the evidence in this trial, the court finds that the children's statements to Ms Wells during the eighteen month period that she met with them are ultimately reliable and should be admitted for truth of their contents.

[245] As indicated, I have found that the mother's version of events to be inaccurate or not credible. Nevertheless, she admitted to many of the events and statements described by the children. She testified that the children had either misunderstood or Ms Wells had misrepresented what the children stated. The children's statements, as reported by Ms. Wells, were more consistent with the evidence that I heard at trial and indeed corroborated by the evidence.

[246] For example, the audio-recording of the May 22 nd access visit that the mother introduced to prove Ms Wells' bias and untruthfulness in reporting the children's statements actually had the opposite effect. The mother denied that she was angry at D. or that she had ridiculed him or ignored him for not telling her the truth about K. However, D.'s experience of feeling ignored or "ridiculed" by his mother during that visit was corroborated by the audio recording.

[247] It is apparent when listening to the recording that the mother was indeed angry at D. She speaks to him angrily in Portuguese at the outset of the visit after she found out that he did not tell her the truth. She asks him at least twice why he lied to her. The tone of her voice is very angry. For the rest of the recording, the mother clearly focuses her attention on R. She praises R. for being "a good boy" for "not lying to her". The mother ignores D. and does not engage with D., except to say that if he wants to go back to the father's home, "no one is stopping him". She does not understand that D. was placed in a very difficult position and was only trying to protect K. (and his mother from not being hurt) after K. refused to attend this visit.

[248] Further, the mother sought to introduce numerous recordings that she made of the children during access visits. The court, over the objection of counsel, decided to listen to the recordings. These recordings did not bolster the mother's case, even though they were selected and edited by the mother for this trial. A number of the recordings show the mother attempting to manipulate and pressure the children, and to question and interrogate them about their father or to say negative things about their father during the access visits. Significantly, despite the mother's evidence that the children have repeatedly told her that they want to go home, there are no recordings demonstrating of the children stating this.

8.3 The Mother's Parenting Ability

[249] Regardless of the rate and frequency of the mother's drug use, the children experienced emotional and physical harm while in the mother's care. If the mother's ability to care for her children was not being impaired by drug abuse or addiction, then the court is concerned about the mother's ability to parent. I find that the evidence is overwhelming that:

1. The children were exposed to serious domestic violence in the mother's home, and witnessed violent physical and verbal altercations between her and A.J. All three children have described being exposed to fighting and violence between the mother and her boyfriend while in the mother's care. R.'s chilling description of his mother being choked by her former boyfriend during his first private meeting at school with Ms Wells contained details that he could not have known without being present;

2. The children all consistently described being exposed to their mother's drug use and her former boyfriend's drug use while in her care;

3. The children missed very significant amounts of school when they were in their mother's care. The independent evidence, not disputed by the parties, is that the younger children each missed 37.5 days (6.5 weeks of school) in the school year prior to the apprehension and the older child missed 20 days (4 weeks). It is also not disputed that when R. came into the father's care after the apprehension, he could not read or write, even though he should have been at a grade 2 level. He was reading at a junior kindergarten level;

4. The children changed schools frequently while in their mother's care, approximately seven times over the course of approximately two years, as admitted by the mother in this trial. The mother attempted to change the two younger children's school in May or 2014, shortly before the apprehension, and then took the all three children out of school in early June, three weeks before the completion of the school year;

5. The children reported being frequently hungry at lunch and missed lunch at school, affecting their school performance. In this trial, there were at least two incidents in which the mother admitted to arriving after the lunch period to bring the children lunch, and that they were hungry. Despite the evidence of plenty of food in the mother's home, the children reported that they frequently missed breakfasts and lunches, and the middle child often prepared meals when the mother was not able to do so;

6. The children's dental and medical needs were grossly neglected in the mother's care, as evidenced by the very significant dental work that all of the children needed after coming into their father's care. The children had poor vision and needed glasses which were obtained after coming into their father's care;

7. The two oldest children have consistently expressed on numerous occasions since they were apprehended that although they love their mother, but they wish to remain living with their father. D. wants to be able to graduate from high school and he expressed concern that he would miss too much school if he was returned to his mother's care.

8.4 The Mother's Plan of Care

[250] Mr. Patel, on behalf of the mother, submits that none of the protection concerns that existed at the time of the apprehension exist today. The mother now has stable housing. She is in a stable relationship. Irrespective of how the drugs entered into the mother system, she is no longer using drugs. She will no longer expose the children to domestic violence, or abusive relationships.

[251] The court recognizes that the mother has made some significant and positive changes in her life since the children have been apprehended. I considered the following factors that were in favor of the mother's plan of care:

a. It is not disputed that she has been drug-free since November 2013. There is no evidence that the mother abuses alcohol.

b. The mother has completed and number of parenting courses and sought out counseling. She testified that she has incorporated what she learned from the parenting courses.

c. The mother appears to have obtained steady employment.

d. The mother has had stable housing now for more than one year. The housing is very suitable and appropriate in a nice community, close to community resources and schools.

e. The mother appears to be in a stable relationship with her fiancé. By all accounts, it appears to be a respectful and loving relationship. The mother's fiancé presented to the court as responsible and reliable, and a stabilizing person in the mother's life. I consider this to be positive step for the mother.

f. The mother has the support of her extended family. The children would have greater contact with the mother's extended family, including their maternal grandparents in their mother's care. The children would also have greater exposure to their Portuguese heritage and culture.

g. The mother regularly attended all of the access visits. She was on time and she came prepared with meals and activities. The mother plans activities and is organized. The last few supervised visits between the mother and the children have been very positive, according to the evidence of Ms Wells.

h. The children love their mother very much and the mother loves the children very much.

[252] However, the court's greatest concern with the mother's plan of care is the mother's complete lack of insight regarding the protection concerns demonstrated by the independent evidence. The mother has never once accepted responsibility for any of the harm that the children experienced in her care. She blamed everyone else: the father, her former boyfriend, the children's school principal and teachers, the children's aid society, her neighbours, the region of Halton for her housing, and her previous counsel.

[253] The mother also did not understand that she had caused the children harm by her actions and failure to act while they were in her care. In fact, throughout her testimony, the mother repeatedly insisted that the children were thriving in her care prior to apprehension, despite the undisputed independent evidence to the contrary.

[254] The mother has refused to acknowledge that she has any substance abuse or mental health issues. The mother's refusal to take any responsibility for her repeated abuse of crack cocaine during the period prior to apprehension is very concerning to the court. The mother's testimony that she was forced or pressured to take crack cocaine by "a malicious child protection worker" and her neighbor is either deliberately untruthful or delusional.

[255] As well, the mother continues to demonstrate poor judgment. The mother did not seem to understand that her behavior during some of the access visits was causing the children emotional harm. The mother's repeated pressuring of the children to say that they want to return to her care, including whispering in their ear, forcing the youngest child to write that he wants to come home for her "wish box", telling the middle child that she only took drugs because the worker told her to take drugs, telling all of the children that the father and his partner were putting rat poison in their food and that they were giving the oldest child sleeping drugs.

[256] The mother did not understand that persistently recording the children during access visits was upsetting to them and causing them harm. She continued to justify recording the children during access visits, despite being asked to stop. She continued to justify her actions in this trial.

[257] The court finds that the protection concerns regarding the mother's care of the children continue to exist today. There is a real risk that these concerns will re-surface if the mother does not adequately address her addictions and mental and emotional health.

[258] The psychiatric assessments relied upon by the mother were not helpful. All three psychiatrists had only one consultation with the mother and there reports were based almost entirely on the self-reporting of the mother. It is clear from reading the reports that the mother's reporting was inaccurate and a number of times, false. All three reports note that the mother was entirely preoccupied with ensuring that her children were returned to her care and that she denied any mental health or substance abuse issues. Dr. Golas from the mother "guarded" and not forthcoming and Dr. Greben also qualified his findings in his report.

8.5 The Father's Plan of Care

[259] The children have been in the care of their father since August of 2013, approximately eighteen months. The evidence establishes that there are no risk concerns regarding the father's care of the children requiring a supervision order. All of the evidence demonstrates that the children are flourishing in their father's care.

[260] I consider the following positive aspects of the father's plan of care, which I find as fact, after considering all of the evidence:

a. The children are thriving and happy in their father's care. They have excelled in school and they are very involved in extra-curricular activities,

b. The children's educational, emotional, physical, and material needs are all being met in their father's care. Since coming into their father's care, the children have not missed any days of school, other than chicken pox;

c. All of the children's medical and dental needs are being met in the father's care.

d. The youngest child's special needs are being met by the father and he is actively following up with appropriate treatment;

e. The father has stable housing and a stable partner. They live in a large farm house in rural community in which they are actively involved. The children have already made many friends in this community and at their school;

f. The father has a stable income and employment, having been employed as a diesel engineer for most of his working life.

g. The two older children have repeatedly stated that they do not want to leave their father's care, their schools, or their community. They want to remain in their father's care and have regular contact with their mother. The youngest child is very attached to his siblings and it is in the children's best interests to remain together.

h. I am satisfied, based on the evidence that the father has worked cooperatively with the society throughout. There has been no need to intervene in the father's care. There is no history of alcohol or drug abuse by the father. The court is further satisfied, in listening to the father's partner, that she does not abuse alcohol or drugs. The society's involvement with her children occurred over 16 years ago and she has been sober since that time. The court was impressed with the father's partner.

i. The children's schooling, education, home, friends, and extra-curricular activities will be very significantly disrupted if they are removed from their father's care. This will be harmful to them. They are flourishing and it is not in their best interests to be disrupted.

j. The children love their father very much and are very attached to him. The father loves the children very much;

Part Nine — Conclusion

[261] Having regard to all of the factors that I must consider under section 37(3) of the CFSA when making a disposition order, I find that a section 57.1 (1) order, granting the father final custody of the children is in the children's best interests.

[262] It is in the children's best interests for this litigation to come to an end, which will not happen if a supervision order is made, given that the society is required under the legislation to bring a status review application before the supervision order expires. In my view, a section 57.1(1) custody order will bring these proceedings to an end and bring the children some finality, certainty, and security in their father's care.

[263] Although the society will not be a party to any future change motions regarding custody or access under a section 57.1(1) custody order should one be initiated, I will ensure that the society be notified of any future motions to change in my final order. The father is aware that the society is not legally obligated to remain involved with the family in the future, but they are willing to work voluntarily with him should he require support.

Part Ten — Access

[264] There are many positive aspects of the children's visits with their mother. The mother is often affectionate and loving with the children and the children will reciprocate. The mother brings food and activities and she plans each visit well. The mother consistently attends visits. Since the visits have moved to the society's office, Ms Wells testified that the visits have been quite positive.

[265] Despite some of the earlier difficulties with access visits, the children have expressed to their lawyer and to Ms Wells that they want to spend more time with their mother. The two older children have expressed that they would like to have unsupervised visits on alternating weekends with their mother. The youngest child would like to spend equal time with both parents, although his views have been inconsistent.

[266] The court is very concerned that if access is unsupervised, then the mother will engage unfettered in emotionally harmful conduct and in particular, she will attempt to actively undermine the children's relationship with their father. However, as Ms Paul submitted in her closing arguments, if the mother tries to sabotage the children's relationship with their father, she does so "at her own peril".

[267] The children are extremely close to their father. All of the evidence demonstrates that the children have now developed a very close and loving attachment to the father and that they are very happy in his care.

[268] The children also love their mother and want to spend more time with her outside of a supervised access visit. However, they want to live with their father and they want to be free from their mother's pressure and manipulation. If the mother continues this course of conduct during unsupervised visits, then the children will choose not to attend the visits.

Part Eleven — Order

[269] For the above reasons, I make the following final order:

1. The children are placed in the final custody of the father pursuant to section 57.1(1) of the Act. This Court Order shall be deemed to be a final order under section 28 of the Children's Law Reform Act.

2. The father shall inform the mother of all major decisions affecting the children, including educational, medical, and health decisions. The parties shall communicate by email, unless otherwise agreed. The father shall sign the appropriate consents to releases of information to permit the mother to speak to the children's teachers, doctors or other health professionals.

3. The parents shall communicate by email and shall respond to all time-sensitive emails concerning the children as soon as possible and no later than 12 hours.

4. The father shall inform the mother immediately of any emergencies regarding the children, including medical emergencies.

5. Access between the children and their mother shall be as follows:

   a. Commencing on Saturday May 16, 2015, on Saturdays from 10:00 a.m. to 6 p.m., and on alternating Saturdays thereafter;

   b. Commencing on Saturday, July 11, 2015, on Saturdays at 10:00 a.m. to Sundays at 6:00 p.m., and every second weekend thereafter;

   c. Commencing in 2016, unless otherwise agreed to by the parties, one week in July (five days) and one week in August (five days) each year for summer vacation. The mother shall notify the father of her proposed weeks by June 1 st of each year;

   d. Mother's Day from 10:00 a.m. to 6:00 p.m. each year;

   e. Christmas access from Christmas Day (December 25 th ) at 2:00 p.m. to December 30 th at 4:00 p.m. each year.

   f. Commencing in 2016, on even-numbered years, March break from Saturday at 10:00 a.m. to Friday at 6:00 p.m.

   g. Commencing in 2016, on even-numbered years, alternating Thanksgiving weekend from Saturday at 10:00 a.m. to Monday at 12 noon. On odd-numbered years the children will have Thanksgiving weekend with their father and the regular access schedule will be suspended if Thanksgiving should fall on the mother's weekend;

   h. Any other access that the parties may agree upon.

6. All access exchanges shall occur at a neutral third party location within a reasonable distance from the father's home, unless the parties agree otherwise.

7. The mother shall not consume any illegal drugs while the children are in her care. The mother shall inform the father immediately of any emergencies while the children are in her care during access, including medical emergencies.

8. The mother shall inform the father immediately of any change of address or telephone number.

9. Neither party or extended family members, nor spouses shall discuss this litigation with the children or speak to the children or in front of the children in a negative or disparaging way about the other parent.

10. If either parent seeks to change this final order under the Children's Law Reform Act, then the Children's Aid Society, Region of Halton shall be notified and served with any motion to change proceedings and responding materials.

[270] Finally, I wish to thank counsel for their professionalism throughout this trial and their thorough and well-organized preparation and representation of all the parties.

Released: May 8, 2015

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] R.S.O. 1990, c. C-11, as amended.

[2] While the father was giving his evidence on this point, I recalled that I had presided over the criminal assault trial of the mother's boyfriend. However, I did not make any credibility findings or any findings of facts as the criminal trial resolved after the mother's boyfriend agreed to enter into a section 810 criminal peace bond and the charge of assault was withdrawn. All parties and counsel agreed that my limited involvement in the criminal proceedings did not preclude me from continuing to preside over this child protection trial.

[3] The court is aware of recent concerns about the reliability of hair strand drug testing. The court therefore treated this evidence with considerable caution and put little weight on any of this evidence. See page 41, paragraph 237 of this decision.

[4] Ms Klein testified that the presence of cocaine in the hair can be approximately 15 percent higher in dark hair compared to fair or blonde hair because the drug is usually attached to the melanine in the hair, of which dark hair has significantly more of than blonde hair. She testified that the colour of the hair is factored or adjusted into the calibration on which the calculation is based.

[5] Subsection 57.1 (2) of the CFSA, R.S.O. 1990, c. C.11, as amended 2006, c. 5, s. 14. See Windsor-Essex Children's Aid Society v. E.W., 2014 ONCJ 562.

[6] The home that the mother has prepared for the children is leased solely in her fiancé's name. He is paying the rent and utilities, which are well over $2,000.00 monthly. Although the mother's fiancé advised that he would transfer the lease to the mother should they separate, it is clear that the mother cannot afford this home by herself. If they were to separate, the mother's housing situation would again be disrupted.