WARNING

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

This is a case under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and is subject to subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

45(8) Prohibition on publication of identifying information

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) 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) Offence and penalty

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

Court Information

Court File No.: C70931/14

Date: 2015-11-12

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. 11

And in the Matter of:

A.L., born […], and D.L., born […]

Between:

Children's Aid Society of Toronto — Applicant

- and -

I.L. (mother) and V.L. (father) — Respondents

Before the Court

Justice: Robert J. Spence

Trial Heard: 27-30 July, 28-30 September and 1, 5-8 October 2015

Reasons Released: 12 November 2015

Counsel

Ms. Justine Sherman — for the applicant society

Mr. Alexei Goudimenko — for the respondent mother

Mr. David Miller — for the respondent father

Nature of the Case

[1] The Children's Aid Society of Toronto ("society") has brought an amended protection application seeking a finding that the two children, D.L. and A.L. are in need of protection, and an order that both children be made Crown wards, for the purpose of adoption. D.L. is 3 years old and A.L. is almost 2 years old. They have both been in care since May 23, 2014.

[2] Both parents oppose the society's request for a finding in need of protection. They seek a dismissal of the society's amended protection application, and the immediate return of the children to their care.

[3] In the alternative, the parents seek a return of the children to their joint care pursuant to a society supervision order.

[4] In the further alternative, the parents seek a return of the children to the care of the mother alone, pursuant to a supervision order and, if the court deems necessary, an order that the father live separate and apart from the mother and the two children.

Background

[5] The mother is 40 years old; the father is 34 years old. Both were born in Russia, and both subsequently moved to the Ukraine – the mother when she was 22 years old, the father when he was 10 years old.

[6] The mother has a 17 year-old son from a prior relationship.

[7] The father emigrated to Canada in the year 2000, when he took up residence in Toronto.

[8] The parties first met each other while they were on vacation in Crimea in May 2010. The father subsequently returned to Canada at the end of his vacation, and the parties did not see each other again until May 2011, in the Ukraine.

[9] The father travelled back to the Ukraine in September 2011, where the parties were married the following month, in October 2011. By this date, the mother was pregnant with D.L.

[10] There were subsequent trips by the father back and forth from Canada to the Ukraine until the father's sponsorship of the mother finally materialized, enabling the mother to come to Canada in May 2013. She emigrated to Canada with the parties' first child, D.L., who had been born […], 2012 in the Ukraine.

[11] The mother's decision to emigrate to Canada resulted from the father's insistence that she and the family would have a better life in Canada, as compared to living in the Ukraine.

[12] The mother's evidence was clear, that uprooting herself in this way was not her preference. In the Ukraine she lived in a 2-bedroom apartment; she had a job as a hair stylist; and she had doctors who "I trusted". She testified that she had lived in Russia/Ukraine her whole life and she had formed her own traditions, and friendships; she had close family, as well as the usual kinds of connections that a person develops when she lives in a country for as long as mother had done.

[13] She told her husband that she did not wish to emigrate, but he insisted that the entire family would have a better future in Canada. So with considerable reluctance, mother followed the urgings of her husband and proceeded to emigrate. Mother's teenage son remained behind in the Ukraine to finish his high school education.

[14] Following the mother and D.L.'s arrival in Canada in May 2013, the family took up residence in a basement apartment in Toronto, which mother described as very small and very cold.

[15] The mother's adjustment to life in Canada was difficult. She had no facility with the English language and the Canadian culture was entirely alien to her. Father said that mother's discomfort level living in Canada was causing her to be "not happy".

[16] The mother was almost completely reliant on the father for all aspects of her life, except for the day-to-day instrumental care of the child D.L.

[17] The father has been employed in Toronto for a number of years as a window installer. He would routinely leave for work each morning while mother would remain at home caring for D.L. Mother had primary responsibility for D.L., including the bathing, feeding and changing of D.L., while father was at his employment each day. Father said he spent time with D.L. when he had a day off or on the weekend.

[18] The second child, A.L., was born […], 2013. His birth was three months premature, and he was born with significant developmental deficits.

The Children's Health Challenges

[19] At this point, I move on to the health challenges of both children so that the chronology of events can be better understood in context.

[20] Turning first to A.L.'s deficits, I will extract from a number of medical reports which were made exhibits during the trial.

[21] According to the report dated June 24, 2014 from the Hospital for Sick Children ("HSC"):

A.L. had multiple complications of prematurity. His major problem was related to his brain. Head ultrasound done on November 27th revealed significant subependymal and intraventricular hemorrhage with dilated lateral and third ventricles. . . . There was intraventricular blood in the lateral third and fourth ventricles, including blood clots in the lateral ventricles.

[22] At the HSC, he underwent a Ventricular-Peritoneal Shunt (brain surgery).

[23] I extract from the ErinoakKids Centre for Treatment and Development ("ErinoakKids") report dated October 17, 2014:

He has strabismus on his left eye and will require patching of the right eye . . . foster mother reported that she has been having difficulty feeding A.L. solids as he does not want to eat it. . . . A.L. tends to vomit frequently through the day. . . . [he] presents with increased muscle tone in his bilateral upper extremities, which will likely impact his ability to participate in fine motor tasks efficiently. . . [and] was observed to have difficulty extending his elbows when placed in a prone position.

[24] The ErinoakKids report dated May 12, 2015 stated in part:

His hearing capabilities are indeterminate. He is being referred to an ENT specialist. . . plus he has been having a lot of "noisy breathing" over the past few months. . . . He is eating soft pureed foods. . . . He seems to be able to chew and swallow well but does still have problems with regurgitation and reflux. . . . he has orthotics pending. . . . He had a tendency to sit in extreme kyphosis. He was able to hold his head up but he did fatigue. When positioned in prone he could lift his head off of the examining plinth but his arms then went into extreme flexion and fisting. . . . He had noisy breathing [in the] largely upper airway.

[25] From the HSC report dated April 2, 2015:

A.L. is known for post-hemorrhagic hydrocephalus with a right-sided VP shunt (placed in February 2014). He is also known for global developmental delay. He has had many complications of prematurity . . . . He still cannot sit, even with support. He had rolled over only a few times but could not reproduce this again. . . . He still has problems with feeding – he will gag and keep food in his mouth. . . . He is making progress but sustained significant global developmental delay, especially in the motor area. . . . given his significant delay, A.L. will always have difficulty reaching his milestones [and] he may never acquire some of the skills. In fact, he is evolving into cerebral palsy, although this diagnosis is typically not made until 2 years of age. . . . Rehabilitation is of utmost importance. I strongly recommend that he continue physiotherapy, occupational therapy and speech therapy. I told the foster mother to pay attention to his spasticity and let his therapists and pediatrician know about any concerns. . . . [although there are a number of medicines generally available for spasticity] A.L. is an unfortunate combination of axial hypotonia and peripheral spasticity which preclude the use of such medicines . . . . I told the foster mother that any child with past medical history of brain injury and a VP shunt are at risk for having seizures.

[26] The testimony of the foster mother provides further insight into the challenges of both children.

[27] The foster mother has been caring for both children since the date of the apprehension in May 2014. The foster mother has been a foster parent for about 10 years. She is trained in first aid, CPR, crisis intervention and she has taken courses in fetal alcohol syndrome. Hers is a therapeutic foster home.

[28] The foster mother describes A.L. as a child with many needs. She says everything must be done for him, including holding his bottle when he feeds. He has cerebral palsy, and he aspirates when fed liquids, so that the liquids need to be thickened to minimize this danger. He feeds from special bottles.

[29] He has a special insert in his high chair which enables him to sit in an appropriate way for feeding. He is also being seen at a "seating" clinic where he has been measured for a wheel chair. Foster mother said that he would obtain this device following receipt of the necessary financial approval.

[30] He is currently involved in a feeding clinic through ErinoakKids, and has been referred to Holland Bloorview Rehabilitation Hospital ("Bloorview") for a feeding study.

[31] He is also attending the gastro-intestinal clinic at HSC.

[32] The foster mother does physiotherapy with A.L., utilizing a form of play therapy. She describes caring for A.L. as "intense" and "hard" because he requires "constant monitoring".

[33] I turn next to foster mother's evidence about the child D.L.

[34] Foster mother described D.L. as "high energy", and a child who thrives on structure. When the children first came into her home, D.L. was very shy, wary of everyone and a child who would hide under the table. He had no speech and was not toilet trained.

[35] D.L. has improved to the point where he rarely hides and he has become more social. However, he takes allergy medication and ventilin for severe asthma which was diagnosed in January 2015.

[36] D.L. has a behavioural consultant who he sees about once a month through ErinoakKids. He has also been receiving speech therapy for a few months.

[37] He has severe respiratory issues, something which appeared to develop about a month after the apprehension when he began showing signs of asthma. His asthma necessitates hospital appointments at least once each month. Additionally, he uses puffers to treat the symptoms of his asthma.

[38] D.L.'s asthma has led to bouts of pneumonia, in turn, resulting in frequent trips to the hospital. The foster mother said that the puffer doesn't always work for D.L., again, necessitating hospital admissions. In total, she said that D.L. has been admitted to hospital about 8 times as a result of those asthma attacks, after which he is administered steroids in order to strengthen his lungs.

[39] D.L. also has engaged in self-harm in times of stress or anxiety. He has on occasion picked at scabs on his forehead, causing those scabs to open and to bleed. The parents have seen the results of this during access visits, something which has caused them understandable consternation.

Events Leading to the Apprehension of Both Children

[40] I turn next to the events leading to the apprehension of the children on May 23, 2014. The society's initial involvement with the family occurred on April 1, 2014 when Toronto Police Services made a referral to the society's night duty worker.

[41] The police had become involved as a result of a 911 call which directed the police to the parents' apartment. Mother disclosed to the police that she had been assaulted by the father. She told the police that she and the father had an argument and that the father began calling her names such as "prostitute", and she returned the name-calling. She said that he then pushed her and started hitting her with his fists "all over the body".

[42] Mother described her injuries to the police, including pain in her shoulder, left hand fingers and her right knee. She refused an ambulance.

[43] Mother told the police that this was not the first time she had been assaulted by the father but on the other occasions she had not reported the incidents to the police.

[44] As the testimony unfolded at trial from the two police officers who were involved in the investigation of this incident, it was the father himself who had called 911, complaining that his wife was "emotionally disturbed". In fact, the father stated that the mother had assaulted him, hitting and biting him, and that this kind of behaviour had been going on for a while because mother was not happy living in Canada, and she was blaming the father for her unhappiness.

[45] Following the police investigation at the parties' apartment, they concluded that it was the father who had attacked the mother, and they arrested the father, charging him with assault.

[46] The father was released on bail and was required to move out of the family home and remain 100 metres from the mother, with no direct or indirect contact, except with mother's written revocable consent. Father's contact with the children was restricted to contact facilitated through a third party.

[47] Because there were children in the apartment at the time of the assault, the police contacted the society.

[48] The society then managed to arrange an initial home visit on April 4, 2014. The society worker attended at the home, together with a Russian-speaking interpreter.

[49] During this first home visit, the mother provided the worker with some family background, including the medical issues pertaining to the children. She also told the worker that she was unhappy with Canada's medical system, and that her landlady had told her to vacate their apartment. She expressed concern to the worker that she did not know where she would be living in a month's time.

[50] In discussing the April 1st assault incident with the society worker, the mother told the worker that she was reluctant to go outside the home as she had bruising on her legs, inflicted by the father in the assault, which she did not want others to see.

[51] The society worker arranged with the mother for an emergency safety plan, specifically, either by calling Toronto Police Services or the society's emergency after-hours number.

[52] The society's second visit with the mother was on April 7, 2014. During this second visit the worker obtained additional information from the mother about mother's finances, her background and the events leading to her arrival in Canada.

[53] Referring to the April 1st assault, mother related that father had told her that she could not go outside. An argument ensued and thereafter he hit her on the back causing her to fall in the hallway of the apartment, resulting in the bruising she sustained.

[54] During this incident, mother said D.L. was playing inside the kitchen, while A.L. was asleep in his bassinet.

[55] Mother also told the worker that father has hit her on three different occasions, and she herself has hit him back.

[56] The following day, April 8th, the society worker reached out to contact the father. The father said that he did not have time to speak with the worker and that he had no plans to leave the mother.

[57] The worker expressed concerns to the mother about her remaining in the home, given the history of domestic conflict. She encouraged the mother to go to a shelter.

[58] The mother advised the worker that she was totally dependent on the father to look after the children's medical appointments, as well as performing other functions for the family, including shopping, because of his facility with English and his much greater familiarity with Toronto and with the local culture.

[59] The society worker made a referral for a Family Home Visitor for mother, but she learned afterwards that mother refused the program.

[60] The society worker eventually succeeded in obtaining the father's agreement to meet with her, and that first meeting took place on April 16, 2014. When the worker expressed concerns about his assault of the mother, and the mother's lack of supports in the community, the father replied "this is not a big deal . . . there is no problem. . . [and] I have nothing to be worried about".

[61] He told the worker that while he and the mother have had arguments, he denied hitting her on April 1st. He told the worker that he had decided to call the police on that day because he believed mother was having a breakdown due to the stress related to living in Canada, the premature birth of A.L. and her lack of confidence in the Canadian medical system.

[62] The worker discussed the children's medical appointments with father and emphasized the need to keep those appointments. This was of considerable importance because of mother's inability to speak English and her inability to drive the children to their appointments. The worker offered to arrange for mother to attend these appointments if father was unable to organize something himself. The father rejected that offer.

[63] The society continued to emphasize to both the father and the mother the necessity of keeping the children's medical appointments. However, the father kept telling the worker not to worry about these appointments, that they were not mandatory and not "life threatening". At one point, he even told the worker that the appointments were a waste of time as there was no cure for his son A.L.

[64] The mother's landlady told the mother that she was going to evict her because of the presence of the police and the society at her building. However the landlady was prepared to allow mother to remain for a short period of time until she could find alternate accommodation.

[65] The society subsequently ascertained that the children's scheduled medical appointments were in fact being missed. The worker continued to reinforce to the mother the importance of keeping those appointments. But the mother downplayed the importance of these appointments, again continuing to complain about the Canadian medical system.

[66] The mother complained to the worker about the difficulty of having two children with her in tow, each time she had to take A.L. for an appointment. In response, the worker offered to go with the mother and to help watch over D.L., thereby enabling mother to keep the medical appointments for A.L. However, the mother again minimized the importance of these appointments, asserting that A.L. was fine.

[67] At some point later in April mother disclosed to the worker that father had been having contact with her and the children, contrary to the bail order. However she was reluctant to contact the police about this.

[68] The society worker continued to actively intervene to facilitate mother's attendance at A.L.'s medical appointments. And while mother continued to criticize the Canadian health care system, she did express some gratitude for the society's assistance.

[69] Given mother's own stated history of domestic violence at the hands of the father, the society worker continued to make efforts to place the mother in a shelter. The society made arrangements for such a placement but it had to be cancelled because of lack of space in the particular shelter. The society acknowledged mother's disappointment in that cancellation, after having successfully managed to persuade the mother to leave the family home and go to a shelter.

[70] On May 16, 2014, the mother told the worker that she was losing her mind and that she wanted the society to take A.L. The society worker attended at the mother's apartment with the police and informed the mother that the children were about to be apprehended. The mother's Russian-speaking friend translated until the arrival of the Russian-speaking police officer at the mother's apartment.

[71] However, the mother refused to hand over the children. Eventually, after the worker spoke with her supervisor, the society decided to allow the children to remain with the mother if she would go to a shelter with her children. The society found another shelter placement for the family at Interval House, and the society arranged for mother and children to be transported there.

[72] A few days later, the mother had to be transferred to a different shelter when the society ascertained that the father had been attempting to track down the mother and had apparently discovered the location of the shelter where mother and the children were residing.

[73] At this second shelter it appeared that mother was very overwhelmed and – according to the shelter worker who testified – mother did not want to remain there because of mother's perception that there was insufficient food, utensils and baby formula. At one point the shelter worker observed mother to put her hands on her neck, squeeze her neck and state that she wanted to kill herself.

[74] The shelter alerted the society that it had concerns mother might be suicidal. The society in turn contacted the police and arranged for the police to attend at the shelter with a Russian-speaking interpreter. The society worker advised mother that the decision had been made to apprehend the children because of concerns over the mother's mental health, as well as the other surrounding circumstances.

[75] The society apprehended both children on May 23, 2014.

The Parents' Credibility on the Issue of Domestic Violence

a. Mother

[76] There was evidence from multiple sources that the father had inflicted repeated assaults on the mother.

[77] As I noted earlier, during the society worker's home visit with the mother on April 7th, mother told the worker that on April 1st the father had assaulted her, hitting her on the back and causing her to fall in the corridor of the apartment, which resulted in bruising.

[78] Mother's friend, Ms. Chorna, testified that the mother called her to come to the apartment after the April 1st assault had occurred. While at the mother's apartment, Ms. Chorna testified that mother showed Ms. Chorna injuries on her back, which she said resulted from the assault by the father.

[79] Ms. Chorna testified that, earlier, in February or early March 2014 "I saw bruises on [mother's] head".

[80] Ms. Chorna also testified that mother had called her on at least one prior occasion to complain that her husband had assaulted her. In or about March 2014, mother telephoned Ms. Chorna and, while crying on the telephone, told Ms. Chorna that she didn't want to stay at home because (according to Ms. Chorna) "my husband hit me".

[81] As I noted earlier, the police officers who investigated the April 1st incident were clear, both in their notes as well as in their testimony at trial, that not only did the mother complain about the father assaulting her on April 1st, but she also complained that this was not the first time he had assaulted her.

[82] Mother's version of the of the April 1st incident was markedly different in her trial testimony. At trial, she characterized the incident as a "verbal exchange with my husband". Later in her testimony she acknowledged that this was a "physical altercation".

[83] Mother was asked about her statement to the police that there had been prior physical altercations with the father, to which she replied "I believe it was a misunderstanding". She said that "sometimes he offended me psychologically" but never physically.

[84] Mother's testimony about the issue of domestic conflict changed again when she was cross-examined by father's counsel. In response to a number of questions from father's counsel, mother stated:

We had a verbal exchange, I was carrying laundry to wash, my husband pushed me, I grabbed him by the shirt and we had a physical fight, he knocked me down to the ground, I fell, he hit my arm. I remember that, then I couldn't get rid of him until I put my fingers in his mouth. He let me go, he was bleeding.

[85] She went on to say that she hit him as well. But then she said, that he was not the aggressor but rather

it was me . . . I offended him verbally and I believe as a man he didn't like the words and it triggered him and we had a fight

[86] This statement is very revealing. It tells the court that somehow the mother believes that her words to the father justified the father physically assaulting her. In other words, she is prepared to take the blame for being victimized by the father's assaults.

[87] There is clearly a power imbalance in the relationship to the extent that mother is unable to understand that in these physical assaults by the father, she is the victim and the father is the aggressor.

[88] This attitude is consistent with mother's testimony that the father pressured her to marry him. She stated (in response to the question about whether he forced her into marriage), "practically, yes, he forced me psychologically".

[89] She had asked him to stay with her in the Ukraine but he called her "stupid", telling her that she would have a better future in Canada. So mother married him because "I was thinking it [being "stupid"] might be true". Mother blames herself for coming to Canada.

[90] One of the society workers testified that mother told her:

If a pregnant woman is constantly battered and suffocated, I was on the brink of being crazy . . . I was abused by my husband, it began when I came here, it was verbal first then it boiled down to what it boiled down to . . .

[91] When mother was asked about having made this statement she stated "I didn't say that".

[92] There are several persons who testified that mother told them of multiple assaults by the father – Ms. Chorna, the police and more than one society worker.

[93] In addition, mother's psychiatrist, Dr. Yaroshevsky, who she called to testify at trial, had met with mother alone on June 10, 2014 and June 19, 2015, and with the parents together on July 7, 2015. Dr. Yaroshevsky testified

I know they did have domestic problems . . . [and] it was bordering on violence".

[94] Mother's denial of these assaults at trial does not stand up in the face of the overwhelming evidence to the contrary.

b. Father

[95] The father's contention throughout the trial was that he and the mother had arguments, and "sometimes" voices were raised, but at no time did he become physical with her.

[96] His version of the events of April 1, 2014 which led to the assault charge is essentially as follows. After returning from an appointment, the father and the mother became embroiled in an argument. The mother became upset with the father over medical issues pertaining to A.L.

[97] The father says that she escalated and

I had to stop her from . . . hitting me or pushing me. . . she tried to hit me, but I didn't want to let this happen . . . what I had to do was stop her from hitting me . . . I had to hold her hands . . . to push her against something . . . I believe there was a door, and this is where she possibly got those bruises . . . and that's it.

[98] When father was asked whether he hit the mother, he responded:

I had to stop her from hitting me, and that was it . . . there was no point at any time when I would be hitting my wife on April 1st.

[99] He was asked whether he himself suffered any injuries, to which he responded "just a couple of bruises . . . on the arm".

[100] He said that about 5 or 10 minutes after this incident he called the police. His reason for calling the police was:

I tried to save the family . . . . it wasn't the plan to get my wife arrested [but the incident] was significant enough to make me think that things needed to change.

[101] He was asked how he believed that police involvement would "save the family". He responded that he expected the police to do "exactly nothing" other than to "shake her up", because he didn't feel that his own words were effective enough anymore.

[102] In cross-examination, the father made some revealing statements. First, he stated that the incident of April 1st was a "minor conflict". The father stated that he did not agree with the mother's description of the incident to the investigating police. He said there was

pushing and possibly both of us falling on the floor, but the jumping, hitting with a fist . . . this is something that was added by the officer . . . I have serious doubts my wife would be giving this statement as this never took place.

[103] The father was asked whether, if this sort of conflict occurred again in the future, would he contact the police. The father responded:

Of course not . . . the conflict had nothing to do with the two of us.

[104] As was the case with the mother's testimony, the father's attempt to downplay and minimize his role in the domestic conflict does not stand up under scrutiny and analysis from the court.

[105] I find as a fact that not only did the father assault the mother on April 1, 2014, but the father had also assaulted the mother on a number of prior occasions.

[106] What is the motivation for the parents to deny the domestic conflict? Simply put, both parents have taken the position that there was no need for the society to become involved, to commence court proceedings and to apprehend the children.

[107] And to the extent that they can now minimize or deny the domestic violence, it supports their position that the amended protection application should be dismissed by the court.

[108] Furthermore, the parents have made it clear that their intention is to continue to live together. And because of this, a dismissal of the society's application would remove any existing barriers to this living arrangement.

[109] It appears that the assault charge stemming from the April 1st incident was eventually resolved by the father entering into a peace bond. He returned to live with the mother in December 2014.

[110] In response to her own lawyer's question about who currently lives with mother, she stated, that her older son has since moved to Canada is now living with her, as well as the father. Mother's own counsel asked whether mother intended to live with the father in future, to which the mother replied "yes".

[111] Not only does the mother intend to live with the father in the future, but both she and the father admitted to participating in the father's intentional breach of a court order.

[112] On October 15, 2014, Justice Sherr ordered expanded access in the community between the mother and D.L., provided that the father's access to D.L. was to be supervised at all times. The parents openly breached this order by allowing the father to have contact with D.L., not supervised by the society.

[113] When, on December 10, 2014, the society brought this to the attention of the court, Justice Sherr rescinded the mother's unsupervised access, returning it to fully supervised.

[114] It took only a few weeks following Justice Sherr's order for expanded access to the mother for the parents to engage in a breach of that order.

[115] What all of this tells the court is that the mother's life is inextricably entwined with the father, that she is dependent on him, emotionally, financially and possibly in other respects as well. She cannot reasonably imagine herself living apart from the father for an extended period of time.

The Children's Medical Issues – Evidence from Dr. Susan Cohen

[116] As I noted earlier, the children – A.L. in particular – have very serious medical challenges. Dr. Susan Cohen, a pediatrician called to testify by the society first met the children in June 2014. Since then, she has seen D.L. 16 times and A.L. 13 times. She is well acquainted with their respective needs.

[117] Dr. Cohen advised the court that A.L. is being followed and treated by a number of physicians, including Dr. Drake, the neurologist from HSC who performed the shunt surgery on A.L.'s brain.

[118] HSC reports ongoing difficulties with feeding, including gagging and keeping food in his mouth. He was being seen at the gastro-intestinal clinic at HSC.

[119] He was referred to Bloorview for a feeding specialist.

[120] A.L. was also referred to a team at ErinoakKids to address issues pertaining to A.L.'s sitting and orthotics, and his general global delays. ErinoakKids is attempting to promote A.L.'s use of his hands for fine motor, play and self-care tasks, as well as promoting gross motor development and monitoring his orthopaedic and orthotic needs.

[121] In addition, Dr. Church is the neonatologist who runs the clinic for premature children at Sunnybrook Hospital. His team has seen A.L. at regular intervals to determine what interventions are required from time to time.

[122] A.L.'s vision problems are currently being treated by daily eye patching. The patching helps to strengthen the unpatched eye.

[123] D.L. also has extensive medical challenges and needs. His asthma developed shortly following his apprehension. As I noted earlier, he has engaged in self-harming behaviours.

[124] Doctor Peltz, concluded that D.L. is suffering from severe language delays.

[125] Now that D.L. is in full-time daycare he is beginning to speak in 3-word sentences. Dr. Cohen reports that he is also making eye contact and smiling. She said D.L. has come a long way since she first saw him in June 2014.

[126] Not surprisingly, Dr. Cohen said that keeping medical appointments for the children is very important.

Parents' Attitude Regarding Medical Care

[127] The parents – particularly the father – have demonstrated a dismissive attitude about the medical care that the children have been receiving and their care generally since the apprehension.

[128] Despite the children's significant medical needs, the parents missed a number of medical appointments prior to the apprehension. In his report dated July 30, 2014, Dr. Drake, the HSC neurologist, noted that the "family missed all of their follow-up appointments" after he performed brain surgery on A.L.

[129] The father acknowledges not attending at least 6 scheduled medical appointments, 3 with the ophthalmology clinic and 3 with the neurology or neonatal clinic. However, his view is that none of these missed appointments placed the children, or either of them, at risk of harm.

[130] Despite these missed appointments, both parents refused to characterize them as "missed" appointments, preferring instead to refer to them as "rescheduled" appointments. This, despite the fact that one neurological appointment for A.L. following his brain surgery, scheduled for March 2014, was rescheduled by the father to June 24, 2014, a delay of about three months.

[131] Mother reported that D.L. was developing in a healthy manner while they were living in the Ukraine.

[132] After her arrival in Canada, mother began experiencing problems with her pregnancy with A.L. She experienced pain and bleeding which necessitated a number of trips to the doctor. Mother says the doctor did not provide the kinds of treatments she felt were necessary to address these problems and, in fact, she blames the doctor for the premature birth of A.L.

[133] Mother was critical of the medical advice she was receiving from the various health care professionals, asserting that "I didn't get responses on the numerous occasions I asked".

[134] She was asked whether she met with any of the children's therapists following the apprehension in May 2014. Her response was that she had not, because "no one offered".

[135] Ultimately, and when pressed on this at trial, the mother did say that she was prepared to become more proactive in looking after the children's medical appointments.

[136] The father's attitude about the children's medical care is even more problematic.

[137] His testimony at trial reveals much about his attitude. He had "significant concerns" with the medical care the mother received during her pregnancy. The mother's prenatal doctor made recommendations to address mother's difficulties and, the father says, those recommendations were followed. However the father believes the doctor could have done more. He stated his belief that the doctor did not have enough experience to adequately address the mother's prenatal needs.

[138] While A.L. was at the HSC following birth, the doctors prescribed antibiotics. The father asserted that the antibiotics were destroying A.L.'s immune system. This was an assertion which the father was to repeat time and again throughout his testimony.

[139] At one point I asked father's counsel whether he intended to call evidence to substantiate father's assertion about the effect of antibiotics on his child, to which counsel replied, no.

[140] At that point the father interjected by stating that his assertion about the effect of antibiotics is something that everyone knows to be true, something which is so obvious, that there is no need to call expert evidence to prove the accuracy of his assertion.

[141] Father asserted "I do believe the professionals at Sick Kids knew that".

[142] The father expressed his concern about how the children were treated while in foster care. He stated that D.L. was not sleeping well, not eating properly and was still wearing a diaper. Also he could barely speak. He asserted that all of this was due to a lack of proper training of those in charge of the children.

[143] He testified to his belief of the "obvious abuse of D.L.", namely, being forced to do things which makes him become aggressive. He stated "I'm suspecting there were serious problems with care".

[144] He was specifically asked whether he had concerns about physical abuse of D.L., to which he replied "I think so".

[145] He asserted his belief that D.L. was wearing the same clothes repeatedly, that his socks were wet, that D.L. was sick – coughing and sneezing. He saw bruising on D.L. about which father stated "they [the society] were conveniently providing an explanation that the child was hitting something on his own"

[146] He again referred to the antibiotics D.L. was prescribed for his asthma, which he again proclaimed were "destroying his immune system".

[147] According to father, D.L. was "perfectly healthy before he was put in the care of the society, with normal development". This assertion runs entirely counter to the foster mother's testimony, someone who was specifically trained as a therapeutic foster parent.

[148] Father complained that D.L. was not being given the necessary stimulation, as it took too long to have him placed in daycare. He stated that D.L.'s deficits arose from "the actions of the society".

[149] Turning to A.L., father stated that "our recommendations were never followed, it was simply ignored".

[150] He believes that because A.L. was not diagnosed with cerebral palsy until after the apprehension, somehow the society was to blame for the onset of that cerebral palsy. He stated:

It was convenient for them [the society] that the child was handicapped . . . convenient for the foster mother to just keep the child in the crib because it's easier just to feed the child and not to have to play with him.

[151] He accused the foster mother of negligence in respect of the child's diaper rash which he says was "conveniently presented as a regular rash".

[152] He said that nail scissors were used negligently so that the child's "flesh" was cut.

[153] He accused the foster mother of not giving baths regularly.

[154] He asserted his belief that A.L. was still being fed from the same bottle after more than a year in care. He also said:

I highly doubt the bottles are being boiled to kill bacteria.

[155] He testified:

As for the feeding . . . it's never been introduced to us that the family where the children are residing are well trained . . . or that A.L. was getting sufficient vitamins . . . at his age the formula is not sufficient for growth . . there is no proof that anything like that was done.

[156] Despite making repeated complaints to the society, the father was never satisfied with the society's attempts to respond in a rational manner. As a result, the father made a formal complaint to the Child and Family Services Review Board ("Board"). This complaint resulted in a full day hearing before the Board. The Board issued a decision wherein it held:

The board finds that the society did exercise its responsibility to give the applicants an opportunity to be heard on their various areas of complaint . . . and dismisses the application.

[157] In describing the manner in which the children were transported to the access visits at the society's offices, he testified:

The way they were delivered to the visits . . . there is a way to protect children from direct sunlight while they are driving . . . the children were being delivered like a bag of potatoes. . . The children were driving both exhausted because they were driving with direct exposure to sunlight.

[158] He was critical of the medical prescription for D.L. to take steroids for his asthma, stating that hormones are both physically and mentally dangerous for children, and that there is a "high risk" for "developing asthma". This assertion was contradicted by Dr. Cohen in her testimony, with no other evidence to support father's stated beliefs.

[159] He met repeatedly with the society, including the Branch Director on several occasions to express his concerns about the medical treatment being given to his children. The society told the father that they were addressing the children's medical needs in accordance with the doctors' recommendations.

[160] Rather than simply sloughing off the father's concerns, the society addressed all of them in a 5-page letter, something which the father acknowledges. However, the father disagreed with the society's responses, including the doctors' recommendations which the father disputed. In this regard, father stated:

My concerns had no power because I couldn't override the medical practitioners . . . . . [the doctors are] incompetent [and] the doctors with such practices would not last long in my country.

[161] I have emphasized these remarks because in my view they reveal very clearly the father's attitude toward the medical system in Canada and his belief that regardless of what the doctors tell him, his own preconceived notions of proper medical care for his children will always be inclined to prevail where those preconceived notions run counter to what medical practitioners are recommending.

[162] In the course of cross-examination, the father revealed even more about his attitudes toward the medical profession and the numerous health care professionals who were treating his children.

[163] He criticised the doctor following A.L.'s surgery for not ensuring that the surgical scar was straight (according to father). He said that the scar looked "like a drunk person did it".

[164] At one point a registered nurse at the HSC offered to set up an appointment with father to discuss medical issues with the staff neonatologist and staff neurosurgeon. The nurse's note states that the father refused this offer, commenting that "the social worker can't help them, that they don't need a psychiatrist". When father was asked at trial if he recalled saying this, he responded "this is possibly something you [the society] add yourself".

[165] According to the notes of another nurse, on January 12, 2014, father came

bursting into the room, presenting as threatening and demanding to know why mom could not hold the baby skin to skin.

[166] When father left the room he said "you need to get someone who knows what they are doing". This incident was witnessed by 7 nurses.

[167] The father was asked about the accuracy of this event as recorded in the notes which were exhibits at this trial. He stated:

Most of the nurses were about 25 years old . . . and this is the reason they were not comprehending the seriousness . . . there was no interest in the staff to help us.

[168] There is considerably more evidence that father interacted with nurses and doctors in a dismissive, hostile and aggressive way. However, I do not find it necessary in these reasons to give more than the few examples which I have set out as, in my view, those examples provide an accurate flavour of father's behaviour, including his hostility and his ongoing rejection of the medical advice he received regarding the treatment of his children.

[169] In cross-examination the father was asked if he has been unhappy with the medical care his children have been receiving while in care. He said:

You could say unhappy but it's more complicated than that.

[170] He said he was searching for alternatives but he was "refused by the society". Although he asserted that the society "refused" alternatives, he acknowledges that he never provided the names of alternate doctors to the society. He simply states "we were denied the option itself of finding a doctor".

[171] He had no response to the question why, if he believed so strongly that alternate opinions were necessary, he failed to even research doctors who could provide alternate opinions. He did make clear that if D.L. were returned to his care he would take him to a "different specialist".

[172] At bottom, father believes that much of the medical problems suffered by both children would either not exist, or would be "significantly less" if the children had been allowed to remain with the parents.

Are the Children in Need of Protection?

[173] As I noted at the outset, both parents seek a dismissal of the society's amended protection application, denying that the children were in need of protection.

[174] The parents argue that the society apprehended the children because the mother was reported to have been suicidal at the second shelter. However, the parents argue that this report was not reliable. They concede that mother was indeed stressed, depressed and overwhelmed, but they argue these considerations alone do not necessarily lead to a finding in need of protection under the Child and Family Services Act ("Act").

[175] I agree that it takes more than a parent feeling stressed and overwhelmed before the court can make a finding that a child is in need of protection.

[176] However, in this case, there was much more. The mother had told the worker that the society could take A.L. away from her because he was too much for her to handle on her own.

[177] The mother had been the victim of a number of assaults at the hands of the father. The father was the mother's main support – financially and emotionally - but the criminal court bail order prohibited him from having contact with her. She had few other supports in the community and because of her language and cultural challenges she was, to a large extent isolated and helpless in terms of her ability to care for her two children – particularly A.L. who was the more challenging of the two children.

[178] A.L. had been missing his medical appointments, appointments which because of his very serious health issues, were of critical importance.

[179] The father was minimizing the seriousness of all of this, and even denying that he had ever assaulted the mother.

[180] Both parents were dismissive of the Canadian health system, thereby placing the children – and A.L. in particular, at even greater risk of harm.

[181] The children themselves had been exposed to the domestic violence between the parents. And even if they did not directly witness any physical assaults, they were present when the violence occurred, including the verbal conflicts which occurred on an almost daily basis.

[182] Mother and father both acknowledged the impact of their domestic conflict on the children. Mother specifically acknowledged that D.L. stopped using words in Russian following his exposure to the parents' conflict.

[183] Section 37(2)(b) of the Act states:

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

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

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

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

[184] In my view, there is considerable evidence to support the finding that the children were in need of protection pursuant to 37(2)(b) for the following reasons:

1. The children – A.L. in particular – were missing important medical appointments. A.L.'s medical challenges were – and remain – very serious. And missing any mandated appointments with his health care providers constitutes a pattern of neglect by placing him at risk of harm, if not actual harm itself.

2. Mother's apparent inability to extricate herself from the domestic conflict with the father, demonstrated her inability to properly protect her children who, inevitably became the recipients of the fallout from their exposure to that domestic conflict. Even if there was no strong evidence of actual harm to the children from such exposure, the immediate risk of harm was certainly extant at the time of the apprehension.

3. Mother's inability to protect her children stems not only from exposing the children to domestic conflict, but her inability to report to the police when she knowingly permitted the father to breach his criminal court bail terms by engaging in contact with her and the children.

4. After the children's apprehension, mother's access was varied to permit her to have extended daytime access with D.L., provided she did not permit the father to have unsupervised access with D.L. And yet despite this, the mother knowingly permitted unsupervised access to occur between the father and D.L. This not only exposed D.L. to a risk of harm, but led directly to the court-ordered return of the more restrictive, supervised access to mother.

5. Mother's constant and consistent complaints about her perceived inadequacy of the Canadian health system, and her apparent entrenched belief that the system was at fault for A.L.'s deficits, made it less likely that she would proactively and willingly engage with the children's health care providers to address the children's health care challenges.

6. As oppositional as mother was about the Canadian medical system, father was even more oppositional, so that he too was exposing his children to risk of harm by making it less likely he would seek out and engage medical practitioners to address his children's serious health care challenges.

7. Father's dismissiveness about the seriousness of his conflicts with the mother – even though acknowledging that conflicts occurred – made it more likely that the children would continue to be exposed to ongoing conflict and, thus, more likely that the children would not be protected from the deleterious impact of such conflict.

[185] There is an abundance of evidence to find that the children were in need of protection pursuant to section 37(2)(b) of the Act, and I so find.

Disposition

[186] Section 57(1) of the Act provides:

Order where child in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

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

Society wardship

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

Crown wardship

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

[187] Section 57(4) provides:

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[188] In other words, if there is a less disruptive, community-based option available to the child, in the best interests of the child, the court shall not make an order for Crown wardship.

[189] The children have both exceeded their statutory time in care as provided for in section 70(1) of the Act, specifically, a maximum of 12 months in care for children under the age of six years.

[190] It is undisputed that no evidence of such community-based options was placed before the society or before the court during the course of this trial.

[191] Accordingly, the court must decide which of the two remaining options – a supervision order, or an order for Crown wardship – is in the best interests of the two children.

[192] In deciding which of these two options is in the best interests of the children, I must have regard to section 37(3) of the Act, which provides:

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[193] In considering these various factors, the court must strive to ascertain whether the children's best interests can be met by re-uniting them with their biological family. Clearly, this would be the least disruptive order, and the one that should always be preferred, if such an order otherwise meets the best interests of the children.

[194] In deciding whether a supervision order would meet the children's best interests I must have regard to all the circumstances, including the strengths of the parents, as well as their weaknesses as potential caregivers for these children.

The Parents' Strengths

[195] In my view, the parents have a number of strengths, as revealed by the evidence at trial.

1. Both parents undoubtedly love their children.

2. Both parents appear to be concerned about their children's medical welfare. They want (at least what they believe – however misguided their beliefs) to be the best possible medical care for their children.

3. There was considerable evidence that the parents came to access visits well prepared, with food and activities. On many occasions their interaction with the children at these visits was entirely appropriate.

4. The parents often demonstrated affection toward the children during their access visits, particularly toward D.L.

5. In addition to affection, the parents often demonstrated an appropriate level of patience with D.L.

6. During the several-week period in which the mother's access to D.L. was expanded, there is no evidence that she provided anything other than appropriate parenting.

The Primary Plan – Return the Children to Both Parents

[196] The parents assert that a supervision order with both parents living together can adequately address the risk of harm issues.

[197] I disagree with this submission.

[198] The children have very specific and demanding needs which necessitate the intervention of many doctors and other health care professionals. The father has made it abundantly clear that he has never agreed with the majority of the recommendations made by the medical professionals involved with his children.

[199] He is very rigid in his attitude and in his preconceived ideas about what constitutes best practices in terms of the medical care of his two children. His rigidity was brought home repeatedly in his testimony when he spoke about the inappropriateness of antibiotics and steroids as prescribed treatment options.

[200] Without calling any evidence – expert or otherwise – the father repeatedly expressed his outright rejection of the various treatments that were prescribed for his children. He made it clear that if the children were returned to his care, he would seek out a medical specialist whose opinions accorded with his own preconceived notions about what constitutes good medical care.

[201] If the children were returned to the father's care, there is a real risk that the father would not follow medical recommendations for his children, that he might even remove his children entirely from the care provided by the current medical community within which the children are being treated.

[202] While this likely oppositional behaviour might be more difficult to accomplish during the term of a supervision order, even a supervision order cannot provide absolute assurance of full compliance. And anything less than full compliance for these children, who have such demanding needs, would place them at serious risk of harm.

[203] And following the termination of the supervision order, there would be little to stand in the way of the father proceeding according to his own agenda.

[204] The father demonstrated no insight into the possibility that perhaps during the now almost 18 months that his children have been in care, he has learned to understand and sincerely accept the recommendations of the medical professionals.

[205] Dr. Cohen talked about the slow but definite progress that she has observed, particularly with D.L., since she first met with him in June 2014. It is difficult to imagine how a court could put even that small bit of progress at risk by returning D.L. to a parent who quite adamantly disagrees with the majority of the medical recommendations which have been implemented throughout the time the children have been in care – and even before their apprehension.

[206] The father's disdain for the medical profession is made even more obvious, not only by disagreeing with the medical opinions, but by doing so with rudeness and hostility. Nurses and doctors have been exposed to the father's aggressiveness. There is no reason to believe this aggression would somehow disappear if the children were back in father's care.

[207] And the continued aggressive behaviour by father could well lead to the risk that some or all of the medical professionals would decline to continue to offer treatment or therapy.

[208] Furthermore, the essence of a supervision order is cooperation with the society. There is no meaningful evidence that father would be even minimally cooperative with the society under the terms of a supervision order.

[209] The father has a demonstrated history of ungovernability in respect of court orders. In 2005 he was convicted of theft and fail to attend court. In July 2014 he was convicted of breaching his bail arising from the charge of assaulting the mother. And despite Justice Sherr's order that he not have unsupervised contact with D.L., the father willfully disobeyed that court order, providing at trial his own rationale and justification for doing so.

[210] Having been convicted twice of breaching criminal court orders and having disregarded an order of the court in this child protection proceeding, how can the court have any confidence that the father would comply with a supervision order?

[211] Moreover, there is an abundance of evidence demonstrating his disdain for the society workers, for their recommendations and for their attempts to help the parents.

[212] The society even attempted to initiate therapeutic access for the parents, but they (in particular the father) made it clear that therapeutic access was not necessary. Therapeutic access would have added a number of hours each week to the parents' access, but the parents did not believe they could learn anything from access which carried a therapeutic component. Accordingly, the society eventually removed that option from the table.

[213] The father has always taken the position that the parents' conflict with one another arose from a combination of the stress emanating from the children's medical problems, and the mother's unhappiness with her life in Canada. He said:

The conflict [between the mother and himself] had nothing to do with the two of us.

[214] As to mother's unhappiness with her life in Canada, it is impossible for the court to predict whether that will ever disappear, or ameliorate to a significant degree.

[215] As to the children's serious medical problems, I have no doubt that those medical problems contributed significantly to the parents' stress. However, given the extent of the children's medical difficulties, those problems will likely always exist – certainly to a substantial degree. And how the parents react to stress is of considerable importance to this court.

[216] If the father believes that his aggressive, hostile and uncooperative behaviour is somehow justified by the children's very serious medical needs, if he has so little insight, there is absolutely no reason to believe that his attitude and his behaviour will ever change.

[217] Moreover, the father had opportunities during the course of this trial to demonstrate insight into his physically abusive conduct toward the mother. However, despite those repeated opportunities, he consistently denied that his conflicts with the mother were of any real significance.

[218] He essentially denied ever physically assaulting the mother. Or if there was physical contact he would characterize it as a push, or an accidental falling down. He tended to characterize himself as the victim, rather than the aggressor in his interactions with the mother.

[219] In short, the father demonstrated no insight into his own inappropriate behaviour.

[220] And it is trite to state that without insight there is almost no possibility of remediation.

[221] In my observations of the father, and in my assessment of all the evidence regarding his behaviour, I would best describe the father's attitude as supercilious. His unbending belief in his own righteousness, and his consistent attempts to blame everyone else – the society workers, the society supervisors, the foster mother, the doctors, the nurses, and the other health care providers for the children – were front and centre in what the father was about during the course of this trial.

[222] In summary, this court cannot conclude that a supervision order with the parents together would be in the best interests of the children. Such an order would continue to expose the children to risk of harm – both emotional as well as physical.

The Alternate Plan – Return to Mother Alone Under a Supervision Order

[223] The parents both ultimately mouthed the correct words, namely, if it were the only way to get the children out of care, the parents would be prepared to live apart; although clearly this is not what either parent wants.

[224] In part, the argument in support of this plan is that mother was, and is, more cooperative and compliant than the father, both before and following the apprehension of the children.

[225] To some extent, this is indeed true.

[226] Prior to the apprehension, the mother was suffering from a high level of stress and anxiety. Even with this stress and anxiety, mother still cooperated with the society by eventually agreeing to go to a shelter.

[227] She followed through with a number of home visits with the society worker. During those home visits, mother did demonstrate a degree of cooperation with the society.

[228] As I noted earlier, during the period of time following Justice Sherr's expansion of access between mother and D.L., there is no evidence that mother was doing anything other than providing good parenting. It was the father's breach of the Justice Sherr's order which led to the mother's subsequent decrease in access.

[229] To the extent that mother disagreed with the medical care given to her children, she did not engage in the kind of hostile and aggressive behaviour which father demonstrated, as discussed earlier, at least not to the same extent.

[230] Furthermore, mother brought with her to the trial a number of supports who testified as to varying degrees of assistance they would be able to offer mother in the event the children were placed in her care under a supervision order.

[231] Her 17 year-old son now lives with her and, not surprisingly, he indicated his willingness to help his mother however he could. Despite this young man's undoubted sincerity, I can give only limited weight to his offers of what can best be described as extreme assistance, including his stated willingness "to spend time with his brothers, to go to the hospitals with them, to feed them, to go for a walk with them" and if necessary to help on a "24-hour basis". This kind of support is unrealistic to expect of a teenager and, in my view, it was somewhat unfair to even put this young man in a position where he was required to provide such answers.

[232] Nevertheless, mother's son did strike me as genuine and sincere, albeit somewhat naive.

[233] Mother's friend, Ms. Chorna, was an impressive witness. She has known mother for about two years, having met her in the park prior to the apprehension. Ms. Chorna was present on a number of occasions with mother, and she offered assistance to mother following the assault on April 1st and on subsequent occasions as well.

[234] She described mother as a concerned parent, who never complained about the father, but who did complain about the "whole system" of medical care for her sick child, A.L.

[235] In terms of future support, Ms. Chorna did say that she would be willing to act as a translator for mother, but little else because "at the moment I have my own life", which includes a small child, and the possibility that she herself may be returning to school in the near future. In short, Ms. Chorna fairly stated, "I will help if I'm not busy".

[236] Mother called a friend, Mr. Dembin. Mr. Dembin was also a sincere witness. However, his contact with mother has not been extensive. Mother did take him to one access visit several months ago, asking him to observe how the children were being treated, to substantiate her own belief that the children were not being treated properly in the society's care.

[237] If the children were to be returned to mother, he said he would help her as necessary, for example, to go to the doctor or to the grocery store: "I can always give her a hand, it's no problem".

[238] Mother's final support witness was Ms. Nikolova. She said she has known mother since October 2014. She said she celebrated New Year's Eve with mother and the children, on December 31, 2014. When she was prompted by counsel that the children have been in care since May 2014, she replied that the New Year's celebration with the mother and the children occurred in both 2013 and 2014.

[239] Her assistance would consist of possibly going to the hospital and teaching the children Russian.

[240] She was unable to describe in any detail the medical challenges faced by the children. Nor could she recall their names.

[241] Undoubtedly, some of the foregoing is favourable to the mother, and would be otherwise of assistance to her in the event the court were to make a supervision order with mother alone.

[242] Unfortunately, however, the negatives in mother's plan far outweigh the positives.

[243] Despite mother's somewhat less harsh attitude toward the medical care provided to the children, she was still very much critical of that care.

[244] She agreed with many of the father's comments about the Canadian health care system and hear near-inflexible belief about the deficiencies of that system insofar as it impacted on the care of her children. I have previously discussed some of these comments and I see no need to repeat them again.

[245] She is equally critical of the society.

[246] She acknowledged calling one of the society workers an offensive name, but said she later apologized and excused her behaviour as stemming from her emotions.

[247] Mother was critical of the society during her testimony, at one point stating:

I am in shock about that team of professionals who work there.

[248] This attitude would not bode well for cooperation between mother and the society.

[249] Notwithstanding the overwhelming evidence of stress that mother was experiencing prior to the apprehension, she attempted to downplay that at trial. She was shown an affidavit that she had sworn early on in this proceeding in which she had acknowledged the existence of this stress. However, instead of admitting this at trial, instead of demonstrating insight by connecting that stress to some of her actions leading to the apprehension, she concocted an unbelievable story.

[250] She testified that she signed blank papers that had been put before her by her own lawyer, the same lawyer who represented her at trial. She attempted to convince the court that her lawyer had simply placed blank sheets of paper in front of her, and created an affidavit afterwards, without the mother having read, understood and properly deposed to that affidavit. This story is not only unbelievable but, in my view, it significantly undermines mother's sincerity and her ability to demonstrate insight into what led to the apprehension.

[251] Again, she denied that medical appointments were missed, characterizing them as "rescheduled". Her attempt to play with semantics underscored her main objective in this trial, namely, to deny, rather than to acknowledge and demonstrate insight into her prior behaviour.

[252] She was shown an earlier affidavit where she referred to the

stresses of being a newly arrived immigrant, with two infant children and not much English [all of which] may have affected my emotional and psychological composure.

[253] These are entirely understandable feelings, and they make complete sense in the circumstances which I have discussed in these reasons.

[254] And yet in her testimony she unwisely – but revealingly – retracted these statements, saying "no, I will not agree, this is a mistake".

[255] She refused to acknowledge that the constant arguing with the father stemmed from her various stresses, instead saying that it was because she was not getting the "responses" from the medical professionals on the "numerous occasions I asked".

[256] She swore an affidavit on February 4, 2015, wherein she stated:

I intend to hire a professional physiotherapist. It is impractical at this time for me to try to learn how to do physiotherapeutic treatments by myself as I think it would be better if a professional could assist with this and secondly, as A.L. is not with me at this time there is not enough time for me to learn and practice physiotherapy as daily practice is required.

[257] When this statement was put to her during trial, including the impracticality of hiring professionals, the mother attributed her statement to "I do not know the language . . . this one I do not understand".

[258] She later said about her February 4th affidavit: "I do not understand a single word in this affidavit".

[259] She testified that she was never told why Justice Sherr rescinded his expanded access order following the father's breach of that order, stating on that day "I did not attend the court, I found out only today, thank you". This, despite the fact that the court record reveals that she did in fact attend court before Justice Sherr, when he made that order, and she was represented by her Russian-speaking lawyer.

[260] Although mother was represented in court that day by the same lawyer who represented her at this trial, she stated that nothing was explained to her and she had no idea why Justice Sherr varied the access order: "nothing was explained, do you have proof?"

[261] These are just a few of the many examples of mother refusing to acknowledge past admissions and mistakes. Had she done so, and then been able to demonstrate genuine insight into that prior behaviour, and revealed to the court how things had improved for her, she would have made a far better impression on the court. Again, without insight the prospects for remediation are dim.

[262] Mother has never acknowledged that she was the victim of domestic violence at the hands of the father. When she was asked if she thought she might benefit from domestic abuse counselling, she said no.

[263] In April 2015 the society tried to encourage the parents to engage in counselling, specifically offering the services of CultureLink. Mother declined this offer.

[264] In June 2015, just one month before this trial began, the society again offered counselling through Violence Against Women. Mother refused to meet with the staff person offered by the society.

[265] At the tail end of this trial mother testified for the first time to some counselling that she said she had begun on September 9, 2015. And yet she never told the society about this.

[266] In fact, the first time the society even became aware of this alleged counselling was when mother gave her trial testimony. She did not sign consents to permit the society to meet with her alleged counsellor(s), and she failed to call her counsellor(s) to testify at this trial. In response to the question, why did she fail to tell the society about this late-hour attempt at counselling, mother stated:

If they told me I had to inform them I would inform them.

[267] She was asked whether she understood that the society was very much concerned about her relationship with the father and, because of that concern, would want to know what steps she was taking to engage in counselling to address that relationship. She responded:

No, you were just looking for spots you could press, not aiming to rejoin the family together, but to separate the family . . . I was waiting for a doctor from you, but you did not provide a doctor . . . would you inform someone if you were treated like that?

[268] These various responses speak volumes about the mother's attitude toward the society, particularly her lack of candour, and her almost complete unwillingness to engage in a cooperative relationship with the society.

[269] I referred earlier in these reasons to mother's witness, Dr. Yaroshevsky. Dr. Yaroshevsky testified that both parents would have benefited from counselling, something that his office would have been prepared to provide. He stated that counselling would have been advisable given the "ordeal" which the parents had gone through.

[270] However, he testified that he did not see the parents other than the three occasions which I originally referred to, for the mental status examination and to obtain some of the background. He said that he is not aware that either of the parents ever contacted him or any of his associates to schedule counselling sessions.

[271] Did mother engage in any last-minute counselling? The court has no way of knowing. If she did engage in counselling, what were the specific objectives of that counselling? The court has no way of knowing this either. And if she did engage in any useful counselling, what if anything did she learn in terms of the potential to change her attitude and behaviour? Again, the court has no way of knowing the answer to this question.

[272] In addition to all of the foregoing, mother's responses also inform the court that she and the father are clearly intending to remain together.

[273] While on the one hand she would make reference to assaults by the father, she would, at the same time, attempt to justify his behaviour as coming from his own stresses and responsibilities for working and looking after his family.

[274] Recall that she talked about the father forcing her to marry him, against her better judgment.

[275] The society worker testified that the mother had told her that the father kept her in the apartment and that he would control every aspect of her life, even the food she ate. Notwithstanding this evidence, the mother effectively accused the worker of having lied about this conversation.

[276] When the father called her "stupid" for not wanting to come to Canada, she began to think that it might be true, because he said so.

[277] On one occasion she (properly, in my view) criticized the father for the way he was holding A.L., because it was putting too much pressure on A.L.'s spine. Father's reaction was to become angry with her. Mother's response to this anger?

I believe I didn't [handle it well], I just have to keep silent and let him keep doing what he is doing, he is very smart. I don't want scandals.

[278] Mother then sought to minimize her effectiveness as a parent by stating: "but I am not an ideal mother myself, maybe he [father] is right". Mother repeats that she just wants to avoid "scandal with him".

[279] Much of this reveals a clear power imbalance between the mother and the father. And this power imbalance would in my view prevent the mother from protecting the children from the father. Why?

[280] In the relationship between the two of them, he is clearly the highly dominant personality and she is clearly the submissive one.

[281] If she were to separate from the father in order to secure the return of her children, she might succeed in keeping the father away for a short period of time. But eventually, the father would likely power his way back into her life and into the lives of the children.

[282] The best evidence of what the mother wants, and what she intends to do came in her direct response to a question from her own lawyer, when he asked who she was living with, and she responded, her teenaged son and the father. And in that response she made it clear that it was her intention to continue to live with the father. Her response in this regard was unqualified.

[283] There was no ambiguity about the mother's intention to remain with the father. Even when her lawyer tried to help her by remarking that there are certain concerns about the mother's plan to remain with the father, the mother stated:

I understand, but I believe it was a good lesson for him as well . . . now he knows how the system works. . . . I believe that if there are problems you have to go to a psychologist or psychiatrist and I believe it is not appropriate for children to see fights and quarrels.

[284] And then when her counsel asked what measures she would implement to prevent future conflict with the father, she stated:

I believe it will not happen anymore, it was a good lesson for our family.

[285] In response to the question why she wishes the children to live with the father, the mother said:

[father] is a caring and loving father and he takes part in the children's lives, D.L. loves him and is very attached to him and he has always been very happy when they spend time together . . . it is always good if a son has a father.

[286] Despite her assertion that she could remain away from him, the evidence strongly suggests otherwise. She has never recognized and accepted that she is a victim of domestic violence. She has categorically refused counselling for this. And without that necessary insight, she has no reason to believe that she needs to be protected from him.

[287] The mother's lack of candour in this trial – denying that she swore certain affidavits, accusing the society workers of lying, calling into question their professionalism, all suggest that – quite apart from the nature of her relationship with the father – she is a poor candidate to be a custodial caregiver pursuant to a supervision order.

[288] When that poor prognosis for cooperation is added into the mix with the power imbalance between herself and the father, the court can have little confidence that a supervision order with the mother alone would adequately protect these children from the future risk of harm.

[289] And given the precariousness of the children's medical conditions, and the need for consistent and committed medical care, the risk of harm is far too great for this court to simply "take a chance" with the mother.

[290] It was submitted by counsel for each parent that the court should not judge the parents by their past breaches of court orders. Counsel submitted that the parents have learned the hard way what the consequences are for breaches of court orders.

[291] However, in order to accept that submission, the court would have to engage in the kind of speculation which is not warranted by the evidence. The father certainly didn't learn when he was convicted the first time of the breach of a criminal court order; nor did he learn the second time; nor is there evidence that he learned when he breached Justice's Sherr's order.

[292] Furthermore, in my view, the best way to judge how a person will behave in the future, is to look at how that person behaved in the past, and then ask, what evidence is there that the person's past behaviour has truly changed. Mere words at a trial such as "I have learned my lesson" or "I promise to follow court orders" or "I will follow all the doctors' recommendations" are simply that - words. They are not evidence of change.

[293] And the evidence in this trial ultimately leads the court to conclude that the father's overwhelming personality dominance of the mother makes it unlikely that the mother has the capacity to learn from her mistakes – at least not without a lot of time, and a lot of mis-steps along the way. This is particularly so, given her demonstrated lack of insight into what has led her to this trial.

[294] Neither parent in this trial demonstrated any real insight into their behaviours, and how those behaviours placed their children at risk of harm.

[295] And unfortunately, time has run out for these children, and for the parents to demonstrate a sea-change in their insight and their behaviour. The children have been embroiled in this litigation for well beyond the statutory time limit permitted by the Act. They deserve permanency and an opportunity to move on with their lives.

[296] This is particularly so, given both parents' revealing lack of insight into what led to this amended protection application, and to this trial.

Conclusion

[297] The foregoing compels me to conclude that no supervision order, either with the parents together or the mother alone, is in the best interests of the children. A supervision order would expose the children to a significant risk of harm from the fallout of domestic violence, something which was a feature of their pre-apprehension lives.

[298] A supervision order would lead to a real risk that the children's extensive medical needs would not be met.

[299] A supervision order would not work due to the high probability that neither parent would cooperate with the society to the extent necessary to ensure the protection, wellbeing and best interests of the children. In other words, the parents – neither of them, either the parents together or the mother alone – would likely be governable.

[300] That leaves the court with only one option under section 57(1) of the Act, namely an order for Crown wardship.

[301] Neither parent led evidence supporting the request for an access order under section 59(2.1) of the Act. The adoption worker from the society testified that he does not know of any adoptive parents "who would maintain openness" with the mother and the father because for such openness to be successful there needs to be cooperation between the adoptive parents and the birth parents. Having regard to these birth parents, he characterized such a prospect as "challenging".

[302] Before I leave these reasons I wish to add the following. It is always a difficult and unpleasant task when this court is required to make a Crown wardship order following a trial. This was a particularly difficult case because of the heightened emotions which I witnessed throughout the trial, particularly by the mother. I know it will be of little solace to her that she now has her 17 year-old son resident in Canada and living with her; for, by this judgment, she has now lost her two small children. The court's slight hope is that perhaps one day she will better understand what has occurred in this process and will take some degree of comfort knowing that her two children are loved and well cared-for in another home.

[303] In the result I make the following order in respect of both children:

1. The statutory findings as set out in the amended protection application;

2. A finding in need of protection pursuant to section 37(2)(b) of the Act; and

3. Crown wardship, with no access to the parents.

4. The society has the discretion whether to allow the parents a final goodbye visit with the children.

Justice Robert J. Spence

November 12, 2015