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: December 31, 2015

Court File No.: Brampton 20039/11

BETWEEN:

THE CHILDREN'S AID SOCIETY OF THE REGION OF PEEL,

Applicant,

— AND —

M. H.

Respondent,

S. H.

Respondent

Before: Justice J.W. Bovard

Heard on: April 28, 29, 30; May 1, 2, 5, 6, 7; July 15, August 11; September 2, 3; December 16, 2014; January 28; May 27, 2015

Reasons for Judgment released on: December 31, 2015

Counsel:

• Laura Shaw — counsel for the applicant Society
• Margaret Osadet — counsel for the respondents

BOVARD J.:

[1] Introduction

These are the court's reasons for judgment after a 12 day trial on the Peel Children's Aid Society's applications for Crown wardship of the respondents' two children, Az (2 years old) and Am (10 years old).

[2] Background

The respondents were charged with the manslaughter of their oldest child, M. The child died as a result of malnutrition on February 25, 2011. The Society apprehended their other child, Am, on April 13, 2011. As the case proceeded in court, the respondents had another child, Az, which the Society apprehended at the hospital. At first the Society tried to plan for the reunification of the respondents with their children, but according to the Society these efforts were frustrated by the respondents.

[3] Respondents' Position

The respondents blame this failure on the Society. They are extremely distrustful of the Society and feel that the Society is biased against them and that there is a conspiracy against them.

The respondents do not admit any wrongdoing, but maintain that they have changed their dietary habits sufficiently in accordance to what the Society asked that it should return their children to them under a supervision order.

[4] Society's Position

The Society maintains that the evidence shows that the respondents have not changed their dietary ideas sufficiently to ensure the safety of their children. Moreover, the Society argues that the respondents mistrust the Society so much that it is impossible to have a positive working relationship with them. Therefore, any type of supervision order is unrealistic.

[5] Criminal Conviction

The respondent parents were present for the trial, but did not testify. Shortly after the child protection trial ended, they were convicted in the Superior Court of Justice of the manslaughter of their daughter, M, who was Az and Am's biological sister.

On April 10, 2015, the mother was sentenced to two years in the penitentiary and the father was sentenced to two years less one day in a provincial institution. In addition, the court put him on probation for three years. The probation order will commence when he is released from jail.

[6] Alternate Caregivers

There is no evidence that there are acceptable other persons available to take care of the children.

Orders Requested

Society's Position

The Society requests the following orders:

1. The child Az be found in need of protection pursuant to s. 37 (2) (b) (i) (ii) of the Child and Family Services Act R.S.O. 1990, Chapter C. 11;

2. The children Am and Az be made wards of the Crown and be placed into the care of the Children's Aid Society of the Region of Peel.

Respondents' Position

The respondents seek the following orders:

1. A return to the respondents of their child, Am, subject to a six month supervision order;

2. An order dismissing the Society's application for a finding of need of protection for the respondents' child, Az, and a return of this child to the respondents without a supervision order.

Previous Court Orders

The court found the child Am to be in need of protection on April 17, 2013 pursuant to s. 37 (2) (b), (h) of the Child and Family Services Act.

The court made the statutory findings regarding Az on consent on August 11, 2014.

The statutory findings have not been made with regard to Am.

Issues

Evidentiary Issues

There are two evidentiary issues:

1. The admissibility of the transcript of a doctor's evidence given at the respondents' preliminary hearing on a charge of manslaughter of one of their children.

2. Whether the evidence of a pediatrician who testified should be considered as expert evidence.

Child Protection Issues

The child protection issues are the following:

1. Has the Society proved on a balance of probabilities that:

   • a. The child Az is in need of protection due to risk of physical harm?
   • b. That it is in the best interest of the children to be made wards of the Crown?

2. Access: If the court orders Crown wardship, have the respondents proved on a balance of probabilities that their relationship with the children is meaningful and beneficial and that an order for access would not impair the childrens' opportunities for adoption?

Has the Society Proved on a Balance of Probabilities that the Child Az is in Need of Protection?

The parties consented that the trial be conducted as a blended proceeding. The court did not consider evidence that went solely to the issue of disposition in determining if Az is a child in need of protection.

The Society asks that the child Az be found in need of protection pursuant to s. 37 (2) (b) (i) (ii) of the Child and Family Services Act. These subsections state that:

s. 37 (2)

(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.

Is the Child, Az, in Need of Protection Due to the Parents Being Currently in Jail?

In addition to these subsections, the court finds that since on April 10, 2015 both parents were sentenced to periods of incarceration (mother for two years and father for two years less one day), s. 37 (2) (i) is relevant. Section 37 (2) (i) states that:

"A child is in need of protection where,…the child's parent…is unavailable to exercise his or her custodial rights over the child and has not made adequate provisions for the child's care and custody…"

The court has discretion to make a finding under this subsection notwithstanding that it was not pleaded. There is no dispute that the parents were sentenced to these jail terms. Therefore, there is no issue of them not having prior disclosure of this fact or of being caught by surprise by it. Furthermore, there is no dispute with regard to the accuracy of this evidence. A copy of the indictment on which they were convicted in the Superior Court of Justice and a copy of the sentencing judge's endorsement are exhibits on consent in this trial.

The Evidence Regarding Az Being in Need of Protection Due to the Respondents Being in Jail

The parties agree that the mother is serving a two-year prison sentence and that the father is serving a jail sentence of two years less one day. Therefore, they are unavailable to care for the children. There is no evidence that they made alternate arrangements for the care of the children.

Disposition Regarding Being in Need of Protection Under s. 37 (2) (i)

Based on this evidence and the lack of any evidence of an alternate caregiver for the children, the court finds that Az is a child in need of protection pursuant to s. 37 (2) (i) of the Child and Family Services Act.

Is Az a Child in Need of Protection Pursuant to s. 37 (2) (b) (i) (ii) of the Child and Family Services Act?

In case the court is in error with regard to its finding that Az is a child in need of protection under s. 37 (2) (i) of the Child and Family Services Act, the court will consider whether Az is a child in need of protection under s. 37 (2) (b) (i) (ii) of the Act.

The Society's Case Regarding Az's Protection Under s. 37 (2) (b) (i) (ii)

It is undisputed that the respondents were incarcerated for the manslaughter of their daughter, M, who died of malnutrition on February 25, 2011.

The respondents' parenting of M, which resulted in her death, is the basis on which the Society claims that Az is in need of protection under s. 37 (2) (b) (i) (ii) of the Act. Since Az was apprehended at birth, the Society's case with regard to Az being in need of protection is based solely on evidence of past parenting.

Ms. Shaw, counsel for the Society, maintains that the respondents have not taken significant steps to correct their approach to their children's nutrition in order to ensure that they are properly nourished. Nor have they demonstrated a willingness to cooperate with the Society with regard to its directions concerning the care of their children.

The Respondents' Position

Ms. Osadet, counsel for the respondents, submits that the Society's focus on past parenting is "suffocating current parent conduct, circumstances, conduct and functioning". Further, the Society refuses to consider the respondent's commitment to ensuring that their children are properly nourished. In short, the respondents have changed their approach to nourishing their children, but the Society will not recognize it.

In addition, although at times the respondents have challenged the Societies directions, for which the Society has branded them as uncooperative, they have demonstrated over the last three years that they are prepared to cooperate with the Society.

The respondents submit that the Society does not trust them because they chose to exercise their right to silence regarding the death of their child, M.

Ms. Osadet stated that the respondents "have made comments to the CAS about what would amount to conspiracies and they have bluntly stated that some of the facts asserted by various CAS workers could amount to false testimony, or perhaps misinterpretation of what was said".

Ms. Osadet stated that the respondents "belong to the Nation of Islam and they have felt misunderstood because of that, and their views and practices and worldview, because of their staunch religious beliefs, has not been accepted by the CAS or its experts used to provide evidence in this case".

The Evidence

The evidence in the case was adduced through the following sources:

1. Eight affidavits contained in a joint affidavit brief. Seven of these witnesses were cross-examined on their affidavits;

2. Viva voce evidence of nine witnesses who did not provide an affidavit;

3. The trial record, which contains the pleadings, temporary orders, endorsements;

4. A portion of a transcript of the respondents' preliminary hearing on their charges of manslaughter with respect to the death of their child, M.

Undisputed Facts

The autopsy performed on the respondents' child, M, by Dr. Dirk Huyer, revealed the following reasons for M's death:

1. There were complications due to rickets and vitamin D deficiency.

2. M had multiple fractures and medically the causes could be related to weak bones, likely from the vitamin D deficiency.

3. The fractures could possibly be due to improper nutrition, or neglect by parent or there could be medical reasons for the fractures.

4. The child was not walking or crawling at the age of 28 months.

On February 25, 2011, Peel Regional Police contacted the Society after the respondent's child, M, died of complications due to Rickets and vitamin D deficiency. The Society assigned the case to Ms. Lidia Vieira, an advice and assessment worker for the Society.

At the time, the respondents had another child, Am. On March 1, 2011 Dr. Huyer told Ms. Vieira of the results of the autopsy. He said that Dr. Paul Kader from the Suspected Child Abuse and Neglect Unit (SCAN) unit at the Hospital for Sick Children agreed to perform a full medical assessment of Am. Dr. Huyer asked her to coordinate this with the hospital and the family. He said that he would call the respondents to tell them that the Society was involved and advise them of the need for the medical assessment.

Ms. Vieira spoke to the respondents on March 1, 2011. They discussed various issues regarding Ms. Vieira gathering medical information about the family and Am, genetic testing for the respondents and funeral arrangements. Mr. H told Ms. Vieira that he had been a Crown Ward for four years so he understood her role in this intervention.

On March 2, 2011, the following things occurred. Ms. Vieira told Dr. Huyer that Mr. H requested that Am be medically assessed by the SCAN unit. Dr. Huyer said that he would arrange it and call her back.

Ms. Vieira spoke to Dr. Kader who called to find out about her visit with the respondents. She told him that she had not yet had the opportunity to visit with them because she was waiting to find a nurse to attend the home with her. She told Dr. Kader that the family had not seen a family doctor in over one year.

Dr. Huyer told Ms. Vieira that he arranged for the medical SCAN assessment to be done by Dr. Schoudice on March 3, 2011 at 10 a.m. at the Hospital for Sick Children.

Ms. Vieira visited the respondents in their home. She observed that Am appeared fine. The respondents told Ms. Vieira that 95% of the food that they eat is organic. They eat very healthy food.

Regarding M, Ms. H said that she was breast-feeding her and "also giving milk to M". Ms. H said that M was born healthy, but she felt that the four days that M spent in the hospital after she was born during which time she was given medication may have contributed to her death. When the hospital discharged M they told Ms. H that she had low blood sugar.

When M was three months old, she lost her hair and developed severe eczema. The doctors prescribed cortisone cream. Ms. H thinks that cortisone cream is linked to asthma and that it caused wheezing in M's chest.

Ms. H disagreed with Dr. Huyer's finding that among the causes of death were complications due to rickets because she said they had a healthy lifestyle.

The following occurred on March 3, 2011. The respondents did not show up at the hospital for the medical SCAN assessment. Two hours after the time set for the appointment Mr. H called Ms. Vieira and told her that they decided the night before that they were not going to attend and that they were not going to have Am complete the medical assessment. They wanted to concentrate on the funeral arrangements for M. Mr. H complained that the Society was being insensitive.

In cross-examination, Ms. Vieira testified that she knows that in the Muslim faith burials are supposed to "be done as soon as possible". She agreed that Mr. H told her on March 2, 2011 that he wanted to make the funeral arrangements as quickly as possible. They wanted to wait until after the burial to take Am to the hospital for the SCAN assessment.

Ms. Vieira told Mr. H that she understood that the family wanted to grieve M; however, Dr. Huyer, who was the Regional Supervising Coroner, said that it was urgent that Am be medically assessed because of the cause of death of M.

Ms. Vieira spoke with Dr. Huyer and Dr. Cory who stressed that Am was at risk of dying if not medically examined by a doctor to ensure her health.

Ms. Vieira asked Dr. Cory to call the respondents and stressed the urgency of the appointment. Dr. Cory called Ms. Vieira later that day and told her that the respondents agreed to bring Am to the hospital for the assessment. They arrived at approximately 1:30 p.m. Dr. Cory explained that the reason for the assessment was to ensure that Am was healthy. The respondents consented to Ms. Vieira and her supervisor being present for the assessment.

At the assessment the following was learned:

1. The respondents said that they are trying to live a vegetarian way of life, but that they did consume eggs and dairy products.

2. The respondent's stopped eating fish as of June or July 2010.

3. Am eats whole grain pasta, broccoli, cream cheese, eggs, oats, cereal, various fruits, rice, cheese sandwiches, vegetarian pizza, soup, salad, cabbage, butter squash, and various legumes.

4. Am drinks milk (with vitamin D, but with no iron), pabulum tea with honey, water and fruit juice.

5. Am does not eat meat.

6. Neither M nor Am were immunized.

The respondents said that M was breast-fed and did not consume store-bought milk. This apparently contradicts what Ms. Vieira said that Ms. H told her about breast-feeding and also "giving milk to M". She also ate baby food from jars.

Dr. Cory and Dr. Savlov completed Am's medical assessment. Ms. Vieira said that Am "presented well upon initial assessment".

After the assessment, Dr. Cory completed blood work on Am. The respondents refused to sign a consent to allow the Society and the hospital to communicate with each other about the results of the assessment and the blood work.

Dr. Cory wrote a letter based on her interview with the respondents which described Am as "completely healthy and active. Active, strong, with good energy".

Dr. Zlotkin, who testified as an expert in pediatric nutrition and pediatric gastroenterology, said that he reviewed the medical records that contained the blood test results that indicated that as of March 3, 2011 Am's levels of vitamin D and B 12 were below normal. He testified that Am was not at risk of imminent death based on these results.

On March 7, 2011, Ms. Vieira spoke with Constable Naismith who told her that they closed their investigation with regard to the death of M because, "no foul play was suspected". He said that he did not interview Am in depth, but after a short conversation with her. He concluded that she did not seem to understand what was happening at the hospital, but she looked happy to be around her family.

On March 10, 2011 Dr. Cory told Ms. Vieira that if she (Dr. Cory) had any child protection concerns with regard to the results of Am's blood tests she would not need the respondents' consent to speak to the Society about the results.

The following occurred on March 17, 2011. Dr. Cory left a message for Ms. Vieira stating that abnormalities were found in Am's blood work. She was deficient in vitamins D and B 12. Dr. Cory told Ms. Vieira's supervisor that as a result of these additional results she (Dr. Cory) had a duty to report the results to the Society.

Ms. Vieira called the respondents and left a voice mail message for them to call her back.

On March 21, 2011 Ms. Vieira paid the respondents an unannounced visit at their residence. Mr. H spoke to her from behind two doors and told her that he did not accept unscheduled visits. All visits should be arranged over the telephone. However, he accepted some crayons and an activity book that Ms. Vieira had brought for Am.

After this, Ms. Vieira took time off work to get married. A colleague, Tamoy Thompson, was in contact with the respondents during her absence. On March 31, 2011, Tamoy Thompson visited the respondents and offered to buy vitamins for Am. The respondents said that they did not want any.

When Ms. Vieira returned on April 1, 2011 she had "meetings at work in regards to the next steps for this family". She stated in her affidavit that at this point "Due to the serious concerns about Am's health, as well as the resistance of the parents to work cooperatively with the Society," the Society commenced a protection application on April 13, 2011. They sought an order that Am be placed in the care and custody of the respondents, subject to the supervision of the Society and certain terms and conditions. The Society was hopeful that the respondents would comply with such an order.

The following occurred on April 13, 2011. The Society brought a motion to obtain this order before Justice Dunn. Ms. Vieira states in her affidavit that Justice Dunn dismissed the motion because he believed that if he granted the motion, it would place Am at risk of harm.

After the motion was heard, the respondents signed a consent form for the Hospital for Sick Children, Dr. Race (family doctor), and Dr. Abdul Alim. They also provided to the Society names of possible kin care providers. Of all the persons on the list Ms. H said that Ms. R.W. would best care for Am.

Ms. Vieira asked Mr. H if he would consent to Am completing blood work immediately. He refused to consent and stated that he would agree to have her see a nutritionist in May 2011 at the Hospital for Sick Children.

Ms. Vieira spoke with Ms. R.W. who agreed to care for Am and follow the directions of the Society to ensure that she took her vitamins as directed by the Hospital for Sick Children.

Ms. Vieira spoke with Dr. Cory to find out the required dosage of the vitamins that she had recommended four weeks prior for Am. Ms. Vieira told the doctor that she was unable to determine whether the respondents had been giving Am her vitamins according to her recommendations. Dr. Cory said that Am could "suffer seizures and/or cardiac issues" if she did not receive her vitamins. She said that only with blood work results could she determine the level of risk for Am. Ms. Vieira told her that the respondents did not consent to Am completing blood work. Mr. H wanted to wait for the appointment with the nutritionist in May 2011.

Ms. Vieira contacted Mr. H and asked him if Am "had been given any vitamins as directed by Dr. Emma Cory approximately four (4) weeks prior". Mr. H replied, "no". He said that Dr. Alim examined her on April 9 and 10th, 2011 and he was waiting for his recommendation.

Next, Ms. Vieira apprehended Am from her parents at the Society's office. The reasons that she apprehended her were:

1. the findings and direction of Justice Dunn regarding risk to Am;

2. Mr. H's admission that they had not followed Dr. Cory's advice regarding giving Am vitamins;

3. Mr. H admitted that they did not have any vitamins in their home;

4. the respondents were unwilling to consent to the necessary medical testing of Am;

5. the Society could not insure that Am's medical and nutritional requirements could be met in cases where the respondent's consent was required.

The respondents told Ms. Vieira that they had not administered any vitamins to Am for three to four weeks. That evening the Society placed Am in the temporary care of Ms. R.W.. Ms. Vieira went to Shopper's Drug Mart and purchased vitamin D drops for Am and gave them to Mr. and Ms. R.W.. She instructed them to give AM the dosage recommended by Dr. Cory (2000 IU). She told him that she would purchase B 12 vitamins the next day and bring them to their house. The next day she bought B12 at Walmart and gave it to the W. the next day. They took the vitamins and started giving them to Am in her food.

Ms. Vieira did not recall the W. telling her afterwards that they believed that the vitamins were causing a rash on Am.

The following occurred on April 14, 2011. Ms. Vieira went to the W.'s home. The respondents were there on an access visit. Ms. Vieira spoke with them and told them about the vitamin supplements that she had purchased for Am. The respondents asked that Am not be given any vitamins until Dr. Alim faxed to them his recommendation for treatment.

Ms. Vieira told Dr. Cory that Mr. H had not been giving any vitamins to Am. Dr. Cory told Ms. Vieira that Am would also need 500 mg twice a day of calcium supplements.

Ms. Vieira told them that administering the vitamins could not wait. She said when they received Dr. Alim's recommendation she would ensure the Dr. Cory saw it. The respondents said that they wanted the vitamins that Dr. Alim recommends. They wanted that the vitamins be purchased at a natural health food store. Ms. Vieira told them that the Society could do that if Dr. Cory agreed with Dr. Alim's recommendations.

However, Ms. Vieira testified that the Society never received Dr. Alim's recommendations. Further, even though the respondents knew that Dr. Cory had recommended the vitamins, they did not take the initiative to buy them for Am at a health food store.

She remembered that the respondents gave her a vitamin brand name. It was an American online company. She passed the name on to Dr. Cory who was going to research the brand and advise Ms. Vieira. However, Ms. Vieira does not think that she did this.

Ms. Vieira testified that the respondents never gave her specific information regarding vitamins and dosages that were recommended by a doctor. When she was cross-examined on this point her evidence was confusing. She stated:

I'm confused, because – I'm confused on two, like when you say what the parents, to my information is we never received any, like – like, where the parents said, you know, the doctor or this – you know, someone has referred me or said these are the vitamins, you know, my daughter should be taking. It's this vitamin, it's how much the dosage is, like they never provided that information.

The respondents were upset that Dr. Cory said that Am had a calcium deficiency. They said that they believed that it was the Society's goal to immunize Am. This is against their Muslim beliefs. Ms. Vieira gave them Dr. Cory's contact information, and encouraged them to call her as soon as possible. The respondents would not allow Ms. Vieira to give Dr. Cory Dr. Alim's telephone number. Nor would they allow Ms. Vieira to obtain a copy of Am's health card and birth certificate. They said that they were following legal advice.

Ms. Vieira explained to the respondents that the vitamin B12 and the calcium could be crushed in order to make it easier for Am to consume them. She told them that the vitamins were to be given to Am each day and explained the proper dosages.

On April 15, 2011. Ms. Vieira contacted Dr. Alim. He told her that he was not available to discuss Am, but confirmed that he saw the respondents and assessed Am on April 9, 2011. He told her to fax the respondent's consents to him and he would be available on April 18, 2011. She faxed the consents to him immediately. However, after April 15, 2011, she was not able to consult with Dr. Alim. He never called her back and she was not able to reach him.

On April 19, 2011. Ms. Vieira attended with Am and Ms. R.W. at the hospital for Am's SCAN examination, follow-up blood tests as well as other testing. They could not persuade Am to give a blood sample. Ms. Vieira asked Ms. R.W. to try again on another date.

On April 29, 2011, Ms. Vieira asked Ms. R.W. if she had taken Am for her blood work. Ms. R.W. said that she had not. Ms. Vieira stressed the importance of having this blood work done.

Ms. Vieira testified that on May 4, 2011 the Society transferred the case to Ms. Donna Ruddock, a child protection worker in the Parenting and Child Capacity Building department. Ms. Ruddock shares the same cultural background as the respondents and she is a vegetarian. She has two children that she and her husband home school. The respondents also home school. After the transfer Ms. Vieira performed a couple of tasks on the case on May 5 and 6, 2011.

Extensive Chronology of Society's Efforts

The following occurred on May 5, 2011. Ms. Vieira spoke to Mr. H about a fax that he sent stating that he did not want Am's blood test to be done at the Hospital for Sick Children because he had found out that Dr. Charles Smith had worked there. Ms. Vieira spoke to Dr. Cory about Mr. H's concerns.

Ms. Vieira spoke to Mr. H and told him that Dr. Cory said that another lab could send the blood work to the Hospital for Sick Children, but they may have to pay for that. They would not have to pay if they had just done at the Hospital for Sick Children.

Ms. Vieira spoke to Mr. P.W. and instructed him to take Am to the Hospital for Sick Children to have the blood work done.

On May 6, 2011, Ms. Vieira told Mr. H that a lab other than the Hospital for Sick Children could be used as long as all the required tests were completed. Otherwise, Am would have to be taken to the Hospital for Sick Children.

Ms. Ruddock stated in her affidavit that she wanted to work with the respondents to "ensure that in future, their child could safely be returned to their care". However, she said that she had "great difficulty engaging" with the respondents. She ascribes the difficulty to their belief in a conspiracy regarding the death of their child.

On May 10, 2011, Mr. P.W. told Ms. Ruddock that on May 6, 2011 they had taken Am to a Gamma clinic to complete her blood work. This concerned Ms. Ruddock because Dr. Cory had ordered that it be done at the Hospital for Sick Children. Dr. Cory was very concerned that it had taken such a long time to have this done.

The following occurred on May 12, 2011. Ms. Ruddock asked Mr. H for Am's OHIP card number, but he was evasive and refused to give it to her. He also refused to tell her who took Am for her blood work.

Ms. Ruddock paid the W. an unannounced home visit. The respondents were helping Am with school work at the dining room table. Ms. R.W. told Ms. Ruddock that she had not been providing the vitamin D to Am for about one week because they ran out. Ms. Ruddock reminded her that she had told her that should she run out of the vitamins she should buy them and ask for reimbursement or ask Ms. Ruddock to buy them. Ms. R.W. said that she understood this. Ms. Ruddock told her that she would go buy the vitamins and return shortly.

The following occurred on May 13, 2011. Ms. Ruddock removed Am from the W.'s home because Ms. R.W. told her that she had stopped giving Am her vitamins approximately nine days earlier because she had a rash on her back. The Society placed Am in S.W. and P.W.'s foster home.

Ms. Ruddock learned that the blood test requisition that was given to the W. was switched from Dr. Cory's requisition to another doctor's. She thinks that Mr. H did this because he did some research and found that Dr. Cory was connected to "disgraced pathologist Dr. Smith".

After Ms. Ruddock removed Am from the W. home, she noticed that they had not opened the bottle of vitamin D that she bought the previous day.

Am told her that after she went for her blood tests she went home with her father.

Mr. R.W.1., the foster father, testified that Am was about six years old when she came to his home on May 14, 2011. She was shy and not very physically active. She could not able to play, run or do physical activities without complaining about muscle pain. When she walked down the street she had to return home because her legs hurt. They taught her to ride a bike, but when she did her legs hurt a great deal.

She was not sociable. The kids on the street would not play with her and she called them evil.

Ms. S.W., the foster mother, stated that when Am came to their home she had difficulty running around or walking very far. She could not play with other children because she could not keep up with them. She cried and complained of pain in her legs. At their home, she had difficulty climbing the stairs.

They took her to a physiotherapist but she complained that it was too difficult to do the exercises.

Am stuttered. They got her a speech therapist.

After about six months she was able to run and play like an average child.

One day shortly after Am came to their home Ms. S.W. asked her to get a belt to war with her pants. Am got nervous. She said that her mother used to hit her with a belt.

Ms. S.W. confirmed what her husband said about Am calling people evil. Another of her foster children told her that she said that white people are evil. One of their neighbours told her that her child would no longer play with Am because she said this about white people.

When Am first came to their home she believed that there were cameras in the house recording what she did. She thought that the alarm and motion detectors were the cameras. She also thought that planes that flew overhead were taking pictures of them.

In the fall of 2011 Am got sick. The doctor prescribed antibiotics because there was a possibility that she had pneumonia. Ms. S.W. sent the medication with Am when she went to visit the respondents. When she returned the bottle was empty. Ms. S.W. asked her what happened. Am began to cry and told her that her parents threw the medication down the sink.

Ms. S.W. said that Am's current health is fine. Her doctor advised that her vitamin levels are normal and she is otherwise alright.

The respondents' other child, Az, was also placed with her. She is healthy, too.

On May 19, 2011 Ms. Ruddock and Mr. H spoke about access visits with Am. Mr. H apologized for the way they had been communicating. He wanted to speak to her after his visit with Am.

On May 20, 2011, Ms. Ruddock visited Am at her foster home. Am told her that she did not take any vitamins when she stayed with the W. She said that the food in the foster home tasted nice. When she was with her parents she ate salad. She did not eat meat because "only white people eat meat". She said that "white people are evil". She did not like them. She missed her parents.

On June 15, 2011, Ms. Ruddock did the post-placement interview with Am. She asked her about how her parents disciplined her at home. Am told her that her mother would hit her with a belt when she did not listen. This happened about once a week. Her father never hit her, but he was present sometimes when her mother hit her. She said that it hurt her and that she cried. Her mother hit her on the buttocks and sometimes on the back. Am was either six or seven years old the time.

Am said that she was okay with Ms. Ruddock speaking to her parents about how this was wrong. On July 13, 2011, Ms. Ruddock spoke to the respondents about this. They denied it.

Ms. Ruddock didn't recall that it was ever an issue that Am had marks on her body. She testified that the Society's investigation into this was inconclusive. Her supervisor, Ms. Bishop, reads the file as indicating that it was verified, but the Society deemed that Am was safe because she was in their care.

Prior to August 8, 2011, the respondents only had supervised visits with Am at the Society's offices. Then the court granted the respondents unsupervised access at their home on the weekends.

Ms. Bishop was the case supervisor when the visits began. At first the visits were from Saturday to Sunday. Later, they increased to Friday after school to Monday morning drop-off at school.

On August 19, 2011, Ms. Ruddock spoke to Mr. H regarding complaints that the foster parent received about Am's inappropriate racial comments in the neighbourhood. Mr. H said that he did not know where she picked that up, but he would speak to her about it.

Ms. Ruddock noticed that after Am started having unsupervised visits at home she stopped liking school. Ms. Ruddock reports that the respondents do not support public schooling.

On September 16, 2011, Am got pneumonia. But she went to her parents' home for a weekend visit on September 17 and 18, 2011. The foster mother reported that when she came back from the visit a large part of the antibiotics were missing from the prescription bottle that she took to her parents' home for the weekend. This raises the concern that the medication had either been discarded or not administered properly.

On September 23, 2011, Ms. Ruddock visited the respondents. They were upset about Am's illness. They were also upset because earlier that week Ms. Ruddock had been sick and did not answer their calls. Ms. Ruddock asked them how they felt about giving Am medication. Ms. H responded that "we are court ordered to provide any medication". Mr. H said that they did not have any problem complying with a doctor's directions. With regard to the missing antibiotics, Ms. H said that she accidentally spilled some.

Mr. H told another child protection worker, Mr. Vambe, that he had administered the medication. However, he did not specify how they administered it except that it was twice per day according to what the foster mother told them.

Ms. Ruddock told the respondents that due to the Society's concern that they were not administering the medication to Am, a worker would come by every day to make sure that Am received her medication. Ms. H said that it sounded like the Society did not trust them.

Ms. Ruddock said that they refused to answer simple questions and they would ask her questions that she had already answered.

Ms. H told Ms. Ruddock that she "had something against" her. She complained that she was "constantly working against [her] and attacking [her]".

Ms. H complained that there were times when she could not get a hold of Ms. Ruddock. Ms. Ruddock explained it when she is not on duty she does not return work-related phone calls or make any visits. However, there is always a co-worker that covers for her.

Ms. Ruddock told the respondents that they could have extra visits with Am at the Society's offices during the week. The visits would be Tuesdays and Thursdays from 4 p.m. to 5 p.m. They argued about whether or not Ms. Ruddock had told Ms. H that the visits could be at their home. Ms. Ruddock said that she never said that. Ms. H said that she did. Ms. H said that she would contact their lawyer and get back to Ms. Ruddock after that.

Mr. H stated that Am was taking her vitamins during her visits with them.

During this time the respondents were providing "food reports" with regard to the food that they were giving to Am. In one dated September 17, 2011, Ms. H wrote: "[ Am ] had the medication given to us by Sean (ph), foster mom, at approximately 10:00 p.m. we wanted to stay within the prescribed time of every 12-hours".

Ms. Ruddock testified that she received this report but she was still not sure whether the respondents gave Am the antibiotics. Counsel for the respondents asked her whether the respondents had ever told her that they had given Am her vitamins when they had not. She said that they had never done that.

On May 16, 2011, Ms. Ruddock and Mr. H had a difficult conversation during which Mr. H complained that she was not available enough to speak with them. She tried to tell him that she called him but he interrupted her saying that "I know what is going on. You people have an agenda".

Ms. Ruddock told him that they did not have an agenda. She told him that they moved Am because she had not been taking her vitamin D and because they switched the requisition for the blood work. He said that he should have been advised of this. Ms. Ruddock told him that she did not have a chance to do that because he hung up on her on May 16, 2011.

Mr. H was upset because he thought that the Society was traumatizing Am. He told Ms. Ruddock that she did not have a conscience. He complained that Am was not in a Muslim home. Ms. Ruddock told him to speak to legal counsel. He said that he would and hung up.

On May 20, 2011, Ms. Ruddock and Mr. H spoke during an access visit. He asked what time it was when the Society apprehended Am and why she was removed from the W.' residence. Ms. Ruddock told him that she did not know what time the apprehension took place and that she had already told him several times that Am was taken from the W.' home because they were not giving her vitamin D and the blood work requisition was switched. He told her that he did not have any other questions.

On June 17, 2011, Ms. Ruddock took Am to the Hospital for Sick Children for a cardiac appointment. They were going to meet her parents there. Am told her that she was doing well, but that she (Ms. Ruddock) had lied to her the other day and that she was white. Ms. Ruddock told her that she had not lied to her and that she was black as she could see. Am said that she did not want anyone to take blood from her because it was bad. She told Ms. Ruddock that it was none of her business who told her that.

When Ms. Ruddock tried to register Am for the examination the attendant told her that Am's health card was invalid because it had been reported lost. The respondents did not have the card with them. It was at their home. Ms. Ruddock asked Ms. H to bring it the next time that she goes to the Society's office. Ms. H said "I'll think about that".

Mr. H complained that the Society did not inform him sufficiently of the medical procedures that they required for Am. Ms. Ruddock told him that she was available to speak with him but every time that they saw each other was in Am's presence and that the Society had a protocol that they not discuss such things in front of the child. Mr. H said that he doubted that. She told him that it was important for them to meet without Am being present. He did not respond.

After the cardiac examination they met with Ms. Judith Wilson, a nurse in the cardiac clinic. During the discussion Am explained that she did not engage in any sports when she was at home with her parents. Ms. Ruddock said that she does these things when she is at the foster home.

Am revealed that she is unable to keep up with the other children and that she feels tired and out of breath.

Ms. Wilson asked if there was a history of heart problems in the family. Ms. H stated that they were at the hospital for Am and she did not want to answer questions about themselves. Then she said that she did not know of anyone in the family that had heart problems.

Ms. Wilson asked about M's health problems. Ms. H said that the only thing wrong with her was eczema and she was not sure about the accuracy of that diagnosis. When Ms. Ruddock stated that M could not walk and asked the respondents about it, Ms. H told her "it is in your affidavit, so you tell me". When she asked Mr. H, he replied, "you seem to know".

Mr. H asked why they were testing Am. Ms. Wilson explained that sometimes "heart muscles have problems that are caused by vitamin deficiencies", especially, vitamin D.

The test revealed that Am's heart was fine. Ms. Wilson told them that she should return every two years for a test since it was unclear whether M had had heart problems.

On June 21, 2011, Ms. Ruddock asked Mr. H why he had not contacted her the week before. He had told her that he would call her. He said that he was not able to contact his lawyer. He wanted to know why she wanted to speak to him and how long it would take. Ms. Ruddock told him that she had some questions about Am, his family history and other issues that had come up. She could not tell him how long the meeting would take. He said that he would get back to her, but he never did.

On June 22, 2011, Ms. Ruddock spoke to Mr. H during an access visit. She told him that Am would be having some medical appointments at the Hospital for Sick Children. However, he would be invited only to the case conferences that the hospital has. He replied that he knew what was going on and that there was a "media blackout". Ms. Ruddock told him that there was no media involved. He replied "I know what is going on here". She asked him what he meant and he just shook his head.

The following occurred on June 30, 2012. The respondents went to the Society's office for an access visit. During the visit Mr. H spoke to another client who was visiting his children. Mr. H asked them how they were doing and then stated "it's all about the injustice, you know".

Am told him that he was excited about going camping. He asked her "are you sure you are not scared, because camping can be a scary thing. There are bugs and creatures all over the place".

As he was leaving after the visit Mr. H said that the Society was on a power trip and that they were trying to divide people. He said that the Society was all about breaking down families but that "the truth cannot be stopped".

On July 6, 2011, at another visit at the Society's office Mr. H told Am "I know Donna [Ms. Ruddock] is looking at you doing stuff when I am not watching, so I am watching her. I got my eyes on her. I know what she is up to".

On July 8, 2011, at an access visit at the Society's office the respondents told Ms. Ruddock that they thought Am was losing weight. Ms. H told Mr. H in Am's presence that "they are deliberately doing this to make [ Am ] lose weight". Mr. H responded "yeah, and then they are laughing about it". Ms. H stated "they are doing this deliberately to get to us, but they are going to pay for this. They have children and they will see what will happen".

The following occurred on July 13, 2011. Ms. Ruddock and Society counsel met with the respondents and their lawyer at the courthouse in order to complete the current child profile and social history of the child and the family and child strengths and needs assessment both of which are mandated by the government.

Ms. Ruddock started with the child profile and social history of the child. She asked the respondents where they were born and established that Am did not have any significant extended family relationships.

Ms. Ruddock then turned to health and dietary matters. She identified who their family doctor was. She asked when the last time was that Am went to the dentist. Mr. H could not remember. Nor could he remember the dentist's name. In cross-examination, Ms. Ruddock said that the respondents told her that Am had been to the dentist. She said that she believed that her coworkers took her.

Ms. Ruddock confirmed with the respondents that the Society was going to immunize Am. Mr. H said that she does not have any allergies or any issues regarding speech, hearing or vision.

Ms. Ruddock asked whether Am ate dairy products and whether she had any eating difficulties or disliked any foods. Rather than answer directly Mr. H said that the answers to these questions were contained in his affidavit and he began to turn the pages. His lawyer advised him to simply answer the questions directly. Mr. H said that she eats dairy products. Ms. H said that Am is not a picky eater and will eat anything wholesome that is given to her. Mr. H said that she likes organic food.

Next, Ms. Ruddock turned to the family and child strengths and needs assessment. The respondents related the following information:

1. They promote and demonstrate a healthy understanding of alcohol, drugs and substance abuse.

2. Family relations are supportive.

3. They promote nonviolence in the home.

4. They have a strong support system.

5. Ms. H has strong parenting skills. Mr. H's parenting skills are adequate.

6. They have strong mental health and coping skills.

7. They promote positive values with regard to criminal behaviour, including child abuse and neglect.

8. Their resources are sufficient to meet basic needs. Strong cultural and community resources are available to them.

9. They have strong communication skills.

With regard to Am, the respondents said:

1. She is adequately adjusted emotionally.

2. She has a nurturing and supportive family relationship.

3. They practice preventative healthcare for her.

4. They practice advanced child development.

5. She has a strong cultural and community identity.

6. She does not have any alcohol, drug or substance abuse problems.

7. She displays outstanding academic achievement.

8. She has strong relationships with peers and adults.

9. She has never engaged in any unlawful behaviour.

Ms. Ruddock told the respondents that she did not agree with their assessment of Am's medical needs and that they practised preventative healthcare for her. She reminded them of their reluctance to allow her to take vitamins and how they declined to accept any assistance from the Society in this regard. Mr. H said that he did not have any proof that she was deficient in vitamins. Ms. Ruddock reminded him that the Society worker at the time told them that Dr. Corey stated that there was such a deficiency and that she had to take vitamins.

In addition, Ms. Ruddock pointed out to them that at the last court appearance they had a copy of the Gamma-Dynna Care Labs report that stated that she had low levels of vitamin D. Mr. H stated that they did not know this before and that their family doctor never told them that she had low levels of vitamins.

Ms. Ruddock raised the issue of Ms. H disciplining Am with a belt. She told her that her foster parent said that Am shook whenever she saw a belt. She told the respondents that Am told her that they hit her with a belt. Ms. H denies ever having done that. She disciplines her by taking things away or giving her a timeout. Mr. H also denied ever hitting Am with a belt or seen anyone else do so.

Ms. Ruddock raised the issue of the respondents having inappropriate conversations in Am's presence during access visits. She referred to the statements quoted above. The respondents denied that this had occurred. Mr. H also denied making the above-mentioned comments about camping being scary.

Mr. H requested more visits and phone calls. Ms. Ruddock told them that it would not be possible at that time because she believed that the visits were stressful for Am. She told them that during the visits they should focus on spending more direct time with Am rather than taking notes.

Ms. Ruddock asked the respondents if they had any particular requests. Ms. H stated that they did not want Am to wear jeans as she had started doing when she went to the foster home. The respondents said that she should mainly wear skirts and dresses. She should not wear nail polish or makeup and there should be no male sleeping in her room. Ms. Ruddock assured her that it was contrary to Society policy that males sleep in her room so this was not happening.

Ms. Ruddock testified that after the respondents complained about the kind of clothing that Am had started wearing since she started living at the foster home Am would dress more modestly sometimes. When the respondents brought clothing for her to the access visits Am would change into them. Sometimes she wore them back to the foster home and sometimes she changed close after the visit was over.

The foster parents did not adhere all the time to the dress code that the respondents wanted. Sometimes they let Am wear jeans and nail polish. However, Ms. Ruddock never saw Am wear makeup.

Ms. Ruddock testified that when Mr. H addressed these issues with Am he did it in an appropriate way.

Ms. Ruddock asked the respondents if there was a "religious location" that they would like the foster parent to take Am. The respondents said that they would like to take her, but Ms. Ruddock told them that it was not possible at that time. She asked them if they wanted her to have a Koran. Ms. H said that it was their holy book and they did not want just anyone reading it to her. Mr. H said that non-believers should not read it because they will not take it seriously.

Ms. Ruddock told the foster parents that Am was Muslim and provided information with regard to the Muslim lifestyle and the religion. Ms. Ruddock herself has never had any specific training in this regard. However, she said that she believed that "a lot of the principles are in line with my beliefs". She listed dietary habits and homeschooling as examples.

On one occasion approximately four months after Am started living in the foster home, Ms. Ruddock eavesdropped on a telephone conversation between her and her mother. She did this because the foster parents expressed concerns regarding "what was being relayed to [ Am ] because they had noticed some changes in her".

For example, during the first week of school Am "appeared excited, she would wake up early and rushed to school, and she was a wonderful, loving and respectful child". When she started going to the respondents' home for unsupervised visits her behaviour deteriorated. She would answer back and say that she did not have to listen. She threw her clothes on the floor after someone had just tidied up. When a foster parent told her to go have a shower she said that she did not have to listen.

Mr. H told Ms. Ruddock that he and his wife had been extremely cooperative with the Society. Ms. Ruddock disagreed. She said that she has had a hard time meeting with them because they refuse to meet with her or even speak to her at times. When she called the kin home Mr. H refused to speak with her and did not return her call when he said that he would. Mr. H denied this.

Ms. Ruddock told the respondents that the Society had concerns about Am because of the way M died. Mr. H said that the initial report said that she died of Paget's disease. Ms. H said that she died because they were coerced into giving her antibiotics at the hospital. It didn't have anything to do with what she was eating.

Mr. H said that they think that there is a conspiracy against them and they do not trust anyone. He stated the following in support of this idea:

1. Dr. Race said that she had not seen Am despite having seen her on a regular basis.

2. The police changed their story regarding the night M died.

3. The coroners changed their stories regarding the cause of death.

Mr. H stated that "if people have an issue regarding our religion, they should just say that is the problem. They should not take it out on our family and Am. Ms. Ruddock told them that they do not have a problem with their religion. They are concerned about M's vitamin levels having been so low that it puts Am in jeopardy.

Mr. H said that he hopes that they will be able to communicate better in the future. He knows that Ms. Ruddock does not make the decisions, but she is who he deals with so sometimes he takes his frustrations out on her.

Ms. Ruddock asked Ms. H for Am's health card. Ms. H asked why she needed it if she had the number. Ms. Ruddock said that this was a "prime example of the noncooperation that I felt at times". Ms. H said that she had not asked for the card before. Ms. Ruddock reminded her that she asked for when they are at the hospital together when Ms. H said that she did not have it. Ms. Ruddock requested at that time that the respondents bring the card with them the following week. Ms. H had said that she would think about it.

Ms. Ruddock explained that it was important for the Society to have this documentation. Ms. H told her that "if we give you that, then you will want to have her birth certificate, her passport and all of her things". Ms. H said that she would discuss it with her lawyer.

On July 15, 2011, the respondents attended the Society's office for an access visit with Am. Mr. H told her that after thinking about their meeting at the courthouse two days earlier he decided that he wanted to "start again and start fresh".

He said that although he had a lack of trust in everything and everyone he was going to start trusting again and make a change. He said that he is a very humble person and that he realizes that he does not know everything. He understood that even though he leads a healthy life he has more to learn. Now that he had seen all of the documents from the Hospital for Sick Children he knew that he had to make some changes in his diet and he would make changes in what Am eats.

Ms. Ruddock told the respondents that this was the best visit that she had observed "between him and his family". Ms. H came over to her and shook her hand. Ms. Ruddock told them that this was the first time that she had seen Ms. H smiling at her because she normally gives her dirty looks. The respondents laughed.

On August 5, 2011 the respondent attended the Society's offices for an access visit with Am. Ms. Ruddock told them that Am's vitamin D levels were still low. She was also concerned that the respondents have an understanding of nutrition and the impact that a lack of vitamins can have on a child.

Mr. H said that at first he was suspicious of what is being told about this because he did not have any evidence to support it. However, things changed drastically for him after their last court date when they were able to meet and have a frank discussion. He said that since then he had been learning about nutrition and its effects on one's body. He still thought that there may be some evil people working for the Society but he could not judge everyone. There were some nice people working there, too.

On January 26, 2012 after the respondents had been charged and released on bail for manslaughter for the death of M, Ms. Ruddock spoke to them at the Society's office. Mr. H said that he wanted to know what the Society's plan was. Ms. Ruddock told them that they would have an ongoing discussion regarding Am's placement. She told him that she wanted to discuss a possible kinship placement and that they should give her a name if they could think of someone.

She pointed out to them that pursuant to their bail conditions they had to be supervised whenever they were with Am.

Ms. Ruddock told the respondents that if they have any questions or concerns they should feel free to discuss them with her and she would do her best to address them.

On April 26, 2012, Mr. H told her that Am reported that a boy at school touched her inappropriately. Ms. Ruddock told him that she would contact the school to discuss the matter. She gave Mr. H the teacher's name and phone number so that he and Ms. H could arrange a meeting with the teacher.

Ms. Ruddock immediately contacted the school and left a message for the teacher to contact her regarding this alleged incident. Then she called Mr. H and informed him of what she had done. Mr. H thanked her for following up with him so quickly.

On April 30, 2012, Ms. Ruddock spoke to the teacher. The teacher told her that she was not aware of this allegation.

On May 1, 2012, the teacher left a message for Ms. Ruddock stating that she looked into the allegation. Am told her that it happened a long time ago and she did "not remember the situation when it happened". The teacher spoke with the boy who told her that he did not remember "the situation" at all.

The teacher said that she told Am that if anything ever happened again she should tell her right away.

In May 2012 Ms. Ruddock went on medical leave. The Society assigned the case to Mr. Peter Vambe, a child protection worker with the Society.

Mr. Vambe's Involvement

Mr. Vambe's evidence is as follows. He was familiar with the respondents before the file was transferred to him. He covered for Ms. Ruddock from September 2011 to January 2012.

Mr. Vambe said that when he filled in for Ms. Ruddock and he supervised the access visits between the respondents and Am he never noted any "Maladaptive practices that the [respondents] had with Am". They enjoyed each other's company.

His first extensive contact with the respondents was in September 2011 when Am had pneumonia.

Later, when Mr. H was in jail after being charged with manslaughter in M's death, he visited Mr. H. He updated Mr. H on Am's schooling and told him that she had an appointment at the neurology department at the Hospital for Sick Children. He told him that it was a way of monitoring her development due to the vitamin deficiency.

They discussed signing up Am for activities. They also discussed Am visiting with family members and friends while the respondents were in jail. Mr. H signed consents so that Mr. Vambe could contact some of their friends.

Mr. Vambe told Mr. H that he had been working well with the Society and he emphasized the need for continued collaboration.

Mr. Vambe met with Ms. H on November 14, 2011. They discussed similar topics. In addition, Ms. H told Mr. Vambe of the difficulties that she had with the hospital after M's birth. Among other things, M had an infection. The hospital held her for four days and told Ms. H that if she did not allow them to give M antibiotics they would call the Children's Aid Society.

Ms. H said that later M's development had been okay except that she was not walking. But she was talking and drawing.

Regarding diet, Ms. H told Mr. Vambe that they stopped eating fish because they were worried about high mercury levels. But they found a safe source of fish and that they might start eating it again. She told him that a weekend visit had gone well and that they had given Am the vitamin D prescribed by the doctor in Buffalo and ordered from the United States.

Mr. Vambe tried to start a referral for a parenting capacity assessment. The Society wanted to determine what types of supports they could put in place to mitigate the risk to Am. He said that even if the recommendations that flow from an assessment are not to return a child to a parent immediately, the assessment may indicate what steps are required in order to return the child later.

The Society was perplexed that the respondents appeared to care deeply for Am but were unable to provide her with adequate nutrients. The Society was also concerned that the respondents did not understand the child protection concerns.

The Society did not pursue the parenting capacity assessment because the respondents stated that they did not want to participate in an assessment. They felt that it would infringe their right to silence with regard to the manslaughter charge that they were facing. However, Mr. Vambe stated in his testimony that the respondents never used the expression "the right to remain silent".

Mr. Vambe concluded that the respondents were choosing to be cleared in the criminal matter rather than have their child returned to them because consenting to the parenting capacity assessment "was doing what would be needed in order for the child to be unified with them".

Ms. Ruddock came back from sick leave in January 2012 and resumed carriage of the case. But in May 2012 she was involved in a car accident and had to take time off work. Mr. Vambe took over the file again.

The Society wanted to have a family group conference, but the respondents were reluctant. The Society was making the following demands:

1. scheduled and unscheduled home visits;

2. two-way sharing of all information relating to Am;

3. apart from the parents, an adult person proposed by the family and approved by the Society to take primary responsibility for Am's physical health and well-being. This person would be responsible to the Society for ensuring that Am went to all of her medical appointments, took her medications and vitamins as prescribed and followed a medically approved diet;

4. If Am were to be homeschooled a parenting capacity assessment of the parent responsible for her academics would have to be done;

5. the respondents had to put a method in place that allows them to take responsibility to learn how best to take care of Am's physical care, for example, keeping a journal, calendar or detailed notes.

Mr. Vambe said that it took a "laborious explanation" to convince the respondents to consent to the family group conference. One of the sticking points was the medically approved diet. They also did not like the idea of a parenting capacity assessment. The Society agreed to forgo this demand. They would pursue it through in order under s. 54 of the Child and Family Services Act.

At this time the Society was trying to develop a plan whereby Am could return to the respondents care "jointly with other family members".

Mr. Vambe explained to Ms. H that the Society was concerned that Am had deficiencies of vitamin D and B 12 and that M had died while in the care of the respondents. He told her that when Am had pneumonia the Society suspected that they had poured out Am's antibiotics rather than giving them to her and that she (Ms. H) had sent a note to treat her with a hot bath, chamomile tea and honey.

On June 25, 2012 Mr. Vambe went to the respondents' home for an appointment but no one was home. Mr. Vambe was working with the respondents trying to explain to them why the Society had concerns about their ability to care for Am. But the respondents were mistrustful of the Society. Mr. H said that "we will not compromise our principles".

In August 2012, the respondents' preliminary hearing began with regard to their manslaughter charge in the death of M.

On August 21 or 22, 2011, the respondents met with Ms. Ruddock and a dietitian from the Community Care Access Centre and another person not named by Mr. Vambe. They told the respondent that at that time Am's diet was sufficient. All they needed to do was to reduce the amount of juice that she was drinking.

However, Mr. Vambe said that there were still questions in the Society's mind. He said that "if you have your child being tested and they found to be deficient in some nutrient and then you tell me that the – according to the Community Care Access Centre, we were told that what we were doing was adequate to meet the child's need, it means that something is not adding up somewhere".

On August 22, 2012, Mr. Vambe met the respondents at court. He had to complete some documentation regarding Am's early childhood and development and her life prior to coming into care. At first, the respondents refused to provide any information, saying that they had already done so. Mr. Vambe spoke with their lawyer and afterwards the respondents agreed to give him the information that he required.

They discussed the respondents' perception of their strengths and needs as parents. Mr. Vambe said that for the most part, the Society agrees with the respondents' strengths and believes that they are loving parents. He commended them on taking Am to a walk-in clinic to fill her prescription the previous weekend.

The family group conference took place on August 24, 2012. A plan was devised for the gradual reintegration of Am into the respondents' care. Overnight access visits would be from Saturday to Sunday at 8:30 p.m. The plan was to increase access if the visits went well. The plan was to return Am to the respondents' care and to have the paternal grandfather, Mr. D. H., and the paternal aunt, Ms. Y. H., assume the primary responsibility for Am's health and well-being.

The plan also called for enrolling Am in a home schooling program offered through the Peel District School Board after she returned to the respondents care.

Ms. Bishop, Mr. Vambe's supervisor, said that the respondents agreed reluctantly to this plan. Ms. H. objected to the home schooling program being supervised by the Peel Board. She also wanted the home schooling to begin before Am returned to their care.

In September 2012, Mr. Vambe was pushing for the respondents to have therapeutic access because "it was the only program that would result in me having a better or clear understanding of the release needs in terms of the assessment…-that are comprehensive. He said he suggested this when he took over file. He saw it as "a vehicle towards reunification".

On September 10, 11, 12 2012, Mr. H asked that the access be increased because he felt that the previous weekend visit had gone well.

On September 13, 2012, Mr. Vambe told Mr. H that the plan was that there be one overnight access visit for 2 to 3 weeks before going to two overnights. He explained to Mr. H that because of the circumstances it had to be a gradual, slow process. Mr. H did not seem to be able to listen to Mr. Vambe and he cut him off and changed the subject often.

The following occurred on September 21, 2012. Mr. Vambe told Mr. H that access could be extended to Monday morning. The respondents would be responsible for taking Am to school.

Mr. Vambe told Mr. H that he wanted to have contact on an ongoing basis with Ms. Hope Udofe, the dietitian that he (Mr. H) had selected. He also told him that he wanted more blood work done on Am to check for vitamin levels. Mr. H expressed a concern that they had already taken a lot of blood from her. Mr. Vambe told him that before the Society would agree to extend the time that Am spent at home he would have to speak to the dietitian to see how Am's vitamin levels were.

By the fall of 2012 after the family group conference, the respondents were meeting the Society's "bottom lines". On October 2, 2012 Mr. H agreed to sign consent forms so that Mr. Vambe could speak with Ms. Udofe.

The respondents consulted a physician named Dr. Chandra with regard to Am's diet. Mr. Vambe said that "the parents produce something that he had written and he mentioned that the diet seem to be okay. He just hinted to be supplemented with vitamin D". But Dr. Chandra's opinion was based on the diet that Am was eating in the foster home. The respondent provided a consent form so that Mr. Vambe could speak with Dr. Chandra.

Mr. Vambe said that starting in August 2011 the respondents were submitting meal reports to him after every weekend access visit. But he said that he did not consider this proof that they were following the recommended diet because "In a meal plan you can write anything".

He also noted that, for example, the meal report dated October 21, 2011 said that they administered vitamin D to Am, however, they did not include the dosage so the reports were not conclusive with regard to what Am was consuming when she was with her parents on the weekends.

Mr. Vambe supplemented the information that he received in the meal plans by asking Am whenever he could what she was eating when she was with her parents. When the respondents started dropping off Am at school on Monday mornings Mr. H asked him to give him an idea of the type of lunch he should prepare.

Mr. Vambe received reports from Am's foster mother that Am was having difficulties going to school on Mondays. Am said that she did not want to go to school because boys and girls should not be in school together. Her reluctance to go to school seemed to correspond with her spending more time with her parents who had said that they were opposed to her going to school. Previously, Am had been excited and happy to go to school.

On October 11, 2012, Mr. H left a voicemail message for Mr. Vambe. He stated "I have called three times and this is propaganda. I can see clearly what you are doing Peter Vambe". Mr. Vambe listened to this message on October 12, 2012. Mr. H was upset that Mr. Vambe had sent him an email rather than calling them.

Mr. Vambe called Am's aunt, Yolanda H. He told her that when he doesn't have sufficient time to call he sends a quick email instead. She told him that the respondents had taken Am for an eye examination. They both agreed that this was an indication that things were going well.

Mr. Vambe expressed the hope that she and Dennis H could act as mediators between the respondents in the Society because their relationship was not very good. He told her that the respondents believed that there was a conspiracy against them. This was affecting the pace of the reunification of Am with her parents.

On October 17, 2012, while at the courthouse the respondents finally signed a consent form so that Mr. Vambe could speak to Ms. Udofe, the dietitian. The respondents had delayed in providing this consent. It took repeated requests by Mr. Vambe to obtain it.

On the weekend prior to October 31, 2012, the respondents took Am to a walk-in clinic to have her ear checked. The physician who examined her diagnosed her with an ear infection and prescribed antibiotics. The respondents complied with the physician's recommendations and communicated what happened to Mr. Vambe and to the foster mother.

However, Mr. Vambe expressed that it was still difficult to work with the respondents "because they were uncompromising in most ways". He said that minor things such as signing consent forms took a great deal of time and many conversations. During this time the Society served the respondents with their motion to request a parenting capacity assessment. He said that the Society needed "further clarification of the strengths and needs of the parents by psychological assessment prior to taking further steps to return the child home".

By November 2012, Am was going to the respondents' home Friday after school and staying there until they dropped her off back at school on Monday morning. Additional access was granted for Nation of Islam holidays and for Halloween and Christmas in 2012.

On November 16, 2012 the respondents failed to attend a student/parent/teacher meeting at Am's school. One of the foster parents, S.W., had told him that the parents had scheduled the meeting. Afterwards, the respondents told him that they were not aware of the meeting.

Mr. Vambe said that he had many challenges working with Ms. H. He said that "She often would not be responsive to questions and would interrupt me but then call me 'disrespectful' when I continued to discuss the topics on hand". He gave an example that occurred on November 22, 2012 when he spoke to her on the telephone. Mr. Vambe told Ms. H that he was concerned because Am's teacher told him that she was not doing her homework. Ms. H said that she was doing her homework with her and told him to get onto the next topic that he wanted to discuss.

Mr. Vambe told Ms. H that they had to work with Am to improve how she was adjusting to being dropped off at school. Ms. H said that she would have to discuss it with Mr. H because she did not agree that Am was upset when they dropped her off at school.

Ms. H told Mr. Vambe that the "back-and-forth" conversation was not helping and she preferred face-to-face conversations. She said that she would not make any decisions without consulting with Mr. H and said that she had to go. Mr. Vambe told her that he would send her an email.

The following occurred on November 27, 2012. Mr. Vambe went to the respondents' home with a co-worker, Mr. Emmanuel Ansah. Am had been sick and had missed school on Monday and Tuesday.

After the meeting Mr. Vambe "became seriously concerned with the ability of the parents to work with the Society to ensure the safety and well-being of [ Am ]". He gave the following examples that occurred during the meeting, which informed his concern:

1. Ms. H complained that Am was sick because of the cereal that she was eating in the foster home. Mr. Vambe asked her if this is what the doctor believed. Instead of responding to the question Ms. H repeated that it could be due to the cereal that she was eating in the foster home. Mr. Vambe told her that if it was the cereal they had to find out why she had just become ill and whether she had just started eating that type of cereal.

2. Ms. H was reluctant to provide the Society with a medical document that they needed.

3. There were still problems with Am's transition from spending the weekend with the respondents and being dropped off school on Monday mornings. The school had put some strategies in place to help her with this. Mr. H said that they discussed this with her and everything seemed okay.

4. Ms. H said that Am should not be in public school and that he was disrespecting the parents in their home. In addition, she said that Mr. Vambe was disrespecting them because he always cut off Mr. H when he was speaking.

Mr. Vambe testified that this incident,

"marked the breaking point…it was an event of significance in terms of what we were trying to achieve and the stage of the graduated reunification program. At that time we were on Step 2 of the graduated reunification program. It was a time when we had to make a determination on whether we could go to Step 3 or not. So, in theory the parents that you can see that you can't have a viable supervision order to be implemented with them, and you have parents that you are talking about the child being in and they are saying the child is ill due to cereal and the like…and later we find out that the child…required antibiotics…"

On January 4, 2013, Mr. Vambe spoke with Mr. Dennis H who told him that the respondents had been communicating with him about Am's medical appointments and that "they had been appropriate".

Mr. Vambe told Mr. Dennis H that he was having difficulties with Ms. H because she was "generally belligerent" and "appeared to want to argue on every issue instead of working with me to help return her child to the parents' care". Mr. Dennis H told him that he had the same problem with her.

On January 8, 2013, Mr. Vambe attended a high risk case consultation child abuse panel to try to decide how the Society was going to deal with the issue of returning Am to the respondents in light of the problems that it was having in dealing with them. In addition, the court had dismissed the Society's motion for a parenting capacity assessment on the basis that it would infringe their right to silence with regard to the manslaughter charge that they were facing for the death of their child, M.

On January 11, 2013, Mr. Vambe spoke with Mr. H about his concerns with their ability, in particular, Ms. H's ability to work collaboratively with the Society to address Am's well-being and their reunification with her. Mr. Vambe brought up the issue of Am's transitions from weekend visits with them to being dropped off at school on Mondays. Mr. Vambe told him that he had been trying to resolve this since October 2012 but they were not cooperating with him or Am's foster parents. Ms. H continued to state that it was only "an allegation" that Am was upset on Monday mornings. She did not believe it.

Mr. Vambe states that the respondents "did not seem to be able to understand that the child could in fact be upset at school without them having prior knowledge or directly causing her to be thus". He said that he was not blaming the respondents for Am's upset, but he wanted to work together with them to deal with the issue.

In Mr. Vambe's opinion this was a simple issue. He stated that his opinion is supported by the fact that finally, after the Society and the respondents spoke with Am about the issue she got used to being dropped off at school and her teacher reported that she was not as upset as before.

The Society Changes Its Position

By January 16, 2013, the Society changed its position with regard to the reunification of Am with the respondents. Mr. Vambe testified that this changed started on November 27, 2012. In paragraph 65 of his affidavit, Mr. Vambe stated that there were ongoing concerns with the Society's ability to work with the family. The respondents "did not believe in the reasons behind the Society's requirements and thus every request, no matter how small, was a battle with them".

The Society felt that "even if the parents were able to follow a supervision order for a period of time, a supervision order cannot be extended indefinitely". The respondents did not understand the Society's concerns with regard to Am's nutrition. The Society could not be assured that the respondents would act in her best interest in this regard.

From the time that they had the family group conference the Society attempted to help the respondents gain the return of their child. However, after four months the society was not any closer at being assured that the respondents could properly address the risk to Am.

Mr. Vambe's supervisor, Ms. Bishop, told the respondents that "the Society had determined that it was abandoning the original plan of returning [ Am ] to [them] pursuant to the Society's supervision". Instead, they planned to place Am with kin caregivers. The Society was not "confident that the parents were able to meet the medical needs of the child, even with the support from the family members and a supervision order".

Ms. Bishop said that the Society decided to do this "because of the difficulties that the Society was having working with the parents, as well as the parents' great resistance to the Society's plan". The Society doubted that the respondents understood Am's needs and whether they had the ability to ensure her safety.

The Society was also concerned that the respondents would influence the prospective kin caregivers, which would result in them not being able to adequately protect Am.

Ms. Bishop said that by this point the Society had "exhausted all attempts to work with the parents on a cooperative basis to allow for a successful return of [ Am] to their care". The Society asked the respondents for the names of persons who might serve as kin caregivers.

Mr. Vambe testified that although Am's vitamin D and B12 levels were being corrected, vitamin D and B12 deficiencies were still protection concerns. The child protection concerns were "are the parents able to provide those necessities"?

Mr. Vambe testified that "the parents were constantly showing, or indicating, that they wouldn't really work in a manner that would be consistent with the meeting the child's needs". He gave the following examples as illustrative of their attitude:

1. When he told Ms. H at the Vanier correctional Institute that Am was deficient in vitamin B 12 and had to have neurological testing to see what affects this had had on her, Ms. H told him that they were trying to link M's death to Am.

2. The respondents' reluctance to tell him what dosage of vitamin D they were giving to Am.

Mr. Vambe stated that although Am's vitamin levels improved considerably since the Society stepped in "it was difficult to charge what improvement we were [seeing] on the side of the parents and on the parenting factors". He pointed out that Am was getting vitamin supplements regularly in the foster home. Therefore, even if the respondents weren't giving her the supplements on the weekend it would not reduce the levels of the vitamins in Am's blood because she would have sufficient stores of the vitamin already in her body.

Mr. Vambe states that in these circumstances, a supervision order was unrealistic. On January 16, 2013 the Society told the respondents and their lawyer as well as Dennis, Victoria and Yolanda H that they had changed their mind with regard to Am's reunification with the respondents. The respondents were upset and accused the Society of never having had the intention of returning Am to them.

The Child Abuse Registry

Mr. Vambe said that throughout the life of this case the Society consulted with the Child Abuse Panel. Ms. Vieira initiated the process at the entry level. Mr. Vambe said that "because of the standards of the CAS, if something as severe as involving the-the child death, the Children's Aid Society is actually-he had a meeting to consider registration. That meeting has to be contained. It has to be. It's a standard, it's a requirement".

He stated that:

if a serious allegation involving death of a child had been verified…you have to present your matter at the Child Abuse Panel…one of my reports also has to talk about he parent's (sic) response to that, if there were any changes that would indicate that it wasn't necessary for them to be registered. So, I had to talk about that. I wasn't seeing those changes. That it (sic) basically the premise of the registration.

The "changes" to which he referred were that the respondents would give Am proper nutrition so that she would not lack in vitamins B12 and D.

Mr. Vambe's supervisor, Ms. Bishop, confirmed that the Panel guidelines, which are an exhibit in the trial, state "The CFSA, like its predecessor, make it clear that all verified cases of child abuse are to be reported to the Register". Of particular note in the case at bar is the guidelines statement that "included within the notion of physical harm is malnutrition or non-organic failure to thrive when the condition of the child is caused by the neglect of a parent…"

Ms. Bishop said that she was present when Mr. Vambe made his presentation to the Panel on January 8, 2013. It was for "consultation purposes". She said that "a part of the reason to attend [the Panel] is if there are intention (sic) to return a child home, and that's been an ongoing conversation discussion regarding that piece, so we decided to attend to gather more information and present the case at Child Abuse".

The Panel recommended that the Society convene another family group conference to discuss a kinship placement for Am. The Panel recommended that the Society pursue this option with the respondents and search for persons who could provide care on a kinship basis.

Mr. Vambe prepared a Child Abuse Panel Worker Presentation, which he distributed to the members of the Child Abuse Panel. Based on this document he made submissions to the panel in January 2013. This was part of his duties as the worker who had carriage of the case.

He told the panel that the respondents refused to sign consent forms for the release of medical information. He agreed, however, that they consented verbally. He said that his submission was based on the previous worker Lidia Vieira's notes and on her affidavit. This was not his input.

He submitted to the panel that "It seems that the parents have focused more on exonerating themselves from the charges related to the demise of [ M ] and *,in my view, this has been to the detriment of Am's needs".

His submission included that the respondents were subjecting Am to "emotional maltreatment". He gave the example of Am's difficulties in adjusting to being dropped off at school by the respondents on Monday morning after spending the weekend with them. Am would cry when they dropped her off. Mr. Vambe had reports of this occurring from the school, Am, and the foster mother. When he told Ms. H that they had to deal with the problem, she responded that it was only an allegation. She did nothing to try and resolve the issue. Eventually, the respondents discussed the problem with Mr. Vambe, but they did not do this right away.

Another example of "emotional maltreatment" was that the respondents were "exposing [ Am ] to…what was happening in the criminal matter". When Mr. Vambe tried to address the issue with Mr. H his response was that "The child has to know the truth".

Mr. Vambe also related an instance that occurred when the respondents were incarcerated waiting for bail on the charge of manslaughter of M. Mr. Vambe told them that Am could probably use therapy to help her deal with the loss of her sister and with her parents being charged in the death and them being taken away to jail. Mr. Vambe gave them the name and telephone number of a therapist and told the respondents that he would help them if they had trouble contacting her.

The respondents declined therapy and said that Am's needs would be met by her being reunified with them. Mr. Vambe considered their response to the emotional needs of the child as neglect. He agreed, however, that the respondents spoke about engaging in religious counselling. But there is no evidence that they did.

Based on his submissions, the panel made a recommendation to the Ministry. Mr. Vambe was not sure what all of the factors were that caused the delay in the Society going to the panel, but one factor was that the Society received the coroner's report late. He said that "the registration was based on the death of [ M ]".

Kinship Plan

On February 13, 2013, Mr. Vambe and his student, Ms. Priscilla Lima, met with the respondents at their home. The respondents told them that they would not participate in another family group conference to try to find a kinship plan for Am.

Mr. Vambe said that "despite my constant work with the family, they seemed never assured or reassured of my goodwill and focus on the needs of [ Am ]. In paragraph 71 of his affidavit he stated:

I felt on this date that the parents conveyed to me their sincerely held beliefs that underlay why the Society could not safely return Am to their care. Despite all facts to the contrary, the parents continued to express their belief that the workers were all tainted and biased against them and stated that there were medical facts that existed on M's death and these would prove that the CAS had a biased view of the causes of the child's death.

They expressed their belief that there were "higher-ups" at the Society who did not want them to have Am in their care and that despite being attacked and misjudged, the parents would "not bow down to everything", they "speak the truth" and "sometimes speaking the truth gets you into trouble".

Despite the respondents' feelings about a kinship placement, Mr. Vambe and his supervisor, Ms. Sophia Bishop, spoke to Mr. Dennis H and to Ms. Victoria H, the paternal grandparents, and to the paternal aunt, Ms. Yolanda H, regarding a kinship plan. Mr. Vambe did not give the date when they spoke to them.

The family members said that they would have a meeting and present a plan to the Society. However, Mr. Vambe never heard from them until April 17, 2013 when Mr. Dennis H told him that he did not wish to fight against his own child.

On May 7, 2013, Mr. H told Mr. Vambe that he agreed that a kinship placement could be a backup plan. However, he did not suggest further names of potential kinship caregivers. He said he had already given names to Ms. Ruddock in February 2012 and he was upset that they had not been contacted.

On June 20, 2013, the Society told the court that they still wanted to assess a kinship plan. Mr. H said that he had already provided names of potential kin along with their contact information, but the Society had not contacted them.

Mr. Vambe met with Mr. H at court that day and Mr. H told him that he thought that the Society had kidnapped Am and that Mr. Vambe was telling lies to increase his paycheck. He said that if Am were adopted Mr. Vambe would make more money.

During the summer of 2013, Am and her parents expressed interest in more access.

On July 10, 2013, Ms. Bishop went to court for a court appearance on this case. Ms. H did not appear, but Mr. H was there. She asked him to provide names of potential kin caregivers. He told her that he had already given names to Ms. Ruddock. Ms. Bishop asked him for an updated list. He said that he would provide one but never did.

Ms. Bishop stated that during their discussion Mr. H. "simply glared at me". This continued in the court room.

Nevertheless, the Society pursued the possibility of Mr. Dennis H being a kin caregiver for Am, but after thinking about it, on July 31, 2013 he told the Society that he could not do it. He requested that the kinship assessment on him be terminated. The Society complied with his wishes. They closed the kinship file for Mr. Dennis H on August 20, 2013.

On September 11, 2013, Mr. Vambe left a voice message for Mr. Dennis H and sent an email to Ms. Yolanda H to ask them if they could recommend any prospective kinship caregivers. Neither one of them responded.

In order to keep all of the major kinship evidence together I went out of sequence chronologically. I will now return to February 2013, shortly after Mr. Vambe made his presentation to the Child Abuse Panel.

The following occurred on February 21, 2013. Mr. Vambe met the respondents at court. His relationship with the respondents was getting worse. Ms. H told him that she disagreed with the initial blood tests of March 2011, which indicated that Am was deficient in vitamins. She believed that the Society had planned the adoption of Am all along and that it was working to have their criminal charges upgraded to manslaughter.

Mr. Vambe asked Mr. H what dosage of vitamin D they were giving Am at their home. Mr. H did not really answer the question. Instead, he responded that Ms. Ruddock told him in 2011 to administer "between 8000 and 1000 IU (sic)".

Mr. Vambe tried again on February 22, 2013 to determine what the exact dosage was. He needed this information so that he could give it to the pediatrician in order for the pediatrician to tell him what the recommended dosage should be. Ms. H told him that Mr. H had already told him what the dosage was. He would have to send an email and she would speak to "him", presumably Mr. H.

On March 8, 2013 Mr. Vambe and Mr. H spoke about returning Am to the foster home early the following weekend. Mr. Vambe asked him about the dosage of vitamin D. He told them that it was 800 IU per day. Mr. H told Mr. Vambe that he had already informed him and Ms. Ruddock of this. He accused Mr. Vambe of playing games.

Mr. Vambe testified that by April 2013, Am's vitamin deficiency was under control, but the Society did not want to return her to the respondents because it did not want her to "regress in terms of her getting the adequate nutrients". The Society did not have confidence that the respondents would cooperate with it pursuant to a supervision order.

On May 7, 2013, Mr. Vambe had a meeting with Mr. H. He told Mr. H that Ms. H's belief that Am's stomach problems were due to the cereal that she was eating in the foster home, her upset behaviour and feeling "disrespected" made it "virtually impossible for the Society to consider reunification on a supervision order".

Mr. H said that Ms. H was at times emotional as a mother "who had given birth to the children that she no longer had".

Mr. H said that he thought the process was tainted because they were considered guilty and that this was an example that "association brings assimilation". He said that at their criminal trial it would be shown that M's death was as a result of "some procedures by the medical staff".

During the week of May 13, 2013, the respondents did not return Am to the foster home on Monday morning because she was sick and they took her to a walk-in clinic and decided to keep her at home. Mr. Vambe said that Mr. H did a commendable job of keeping the Society informed about the situation, including what the illness was, the prescribed treatment, and that Am was still at home with them. Mr. H also notified the school to tell them what had happened.

On July 28, 2013 Ms. S.W., the foster mother, told Mr. Vambe that Am told her that Ms. H was pregnant and that they were going to have the baby at home "because the doctors had killed her sister".

In August 2013, Am's foster parents told Mr. Vambe that Am disclosed that her mother hit her father with her hands. Am was quite distraught about the situation.

Mr. R.W.1., the foster father, testified that Am came back after a visit with the respondents and she looked very depressed and sad. She asked him if he and his wife fought. He told her that they have arguments, but that they do not fight. Am told him that her parents were fighting and her mother punched her father in the face a couple of times. She was very upset about it. Mr. R.W.1. suggested that she speak to his wife about it, which she did. He said that this was the only time Am complained of this.

Ms. S.W., the foster mother, confirmed this incident, but said that it occurred in July 2013. Her husband sent Am to talk to her because she was sad. She told her that her parents had a fight over the weekend. Her mother hit her father and threw something at him and hit him in the face. He had to sleep in another room. Am said that "mommy is always getting mad at daddy".

On August 13, 2013, Am told Mr. Vambe and his student, Ms. Salome Adjekwei, that the incident happened on July 20, 2013. She told him to stop fighting but they did not listen to her. She said that her parents were fighting often.

On August 14, 2013, Mr. Vambe started to try to arrange a meeting with the respondents to discuss this issue. He left a voicemail message for them on August 15, 2013 indicating that it was urgent that they meet prior to their weekend visit with Am on August 16, 2013. He did not tell them the reason that he wanted to see them, but he followed up with an email in which he believes he told them it was about access. They were not able to meet before the August 16, 2013 weekend visit so the Society cancelled the visit.

On August 19, 2013, the following occurred. Mr. Vambe told Mr. H that he wanted to meet with him and his wife. Mr. H questioned why he wanted to see Ms. H. Mr. Vambe told him that it was a "one time issue" and that he wanted to meet with them at their home. Mr. H said that he would meet him anywhere but his home. He did not give a reason for this. Mr. Vambe knew that Ms. H would be visibly pregnant by now, but the respondents had not yet told the Society.

They agreed to meet at Shopper's World Mall. Mr. Vambe asked about Ms. H's pregnancy. They both said that they would not disclose anything to him but that she was receiving prenatal care. He later verified with her mid-wife that Ms. H was eating properly and that there were no concerns.

Mr. Vambe told them that he was investigating the allegations about them fighting. Although Ms. H wanted to know who made the allegations, he did not tell them that it was Am. Both of them denied that any fighting had taken place. They were upset about the missed access visit. They requested a make-up visit, but Mr. Vambe testified that he "didn't manage to arrange one".

Mr. Vambe said that the Society suspends access when they suspect neglect towards a child by the parents. He said that:

you have to address it first…if I had managed to meet or discuss with the parents, we could have managed to try to put some measures in place and access could have occurred. But without addressing that now that we were aware of what was happening, or what was alleged, it would be difficult to… allow the child to have access... because it's like letting a child go to an environment where you don't know much about in the light of the new information that is coming up, which is the new allegations…the protocol is generally if it's considered to be serious, you have to cease access until you address…whatever it be happening.

The respondents denied any violence in their home. They said that they were not aware of the detrimental effects of "adult fighting on children". After Mr. Vambe discussed the issue with them, the Society resumed access. However, he said that this incident "was something that was new and also something that was significant with regard to my decision making".

He continued to ask Am about it. She told him that she had not witnessed any other fighting or arguing by her parents.

In spite of this, he denied the respondents' request for increased access for the Thanksgiving weekend. He told them that he based his decision on the allegation of inter-parental conflict. He testified that although Am's allegations were from July 22, 2013, the allegations, plus Joanne Manning's report that came up "after the August incident" caused him to deny the increased access. Ms. Manning's report indicated "that it was something that was ongoing and the child was even anticipating on what behaviour to do the following weekend, before even access had occurred". This refers to Am's assertion that she would try to stop her parents from fighting.

The Society considered this "inter-parental fighting" to be an additional protection concern. He monitored the situation by asking Am's teacher about it and her foster mother told Am before access visits that she was not to get involved if her parents fought with each other. The teacher said that Am was a good student and that she was not "expressing any distress, discomfort or anger".

On September 17, 2013, Ms. S.W., the foster mother, told Mr. Vambe that Am again appeared to be sad when returning to the foster home after a weekend visit with her parents. But he agreed that Am repeatedly told him that she liked going home to her parents. She liked seeing them daily.

On September 18, 2013, Mr. Vambe and Ms. Ruddock spoke with Am. They asked her what happened the previous weekend to make her unhappy. Am told them the following things:

1. She was angry with her parents about an issue with regard to her watching a movie. She went to her room upstairs and her parents stayed downstairs arguing. Her father came upstairs to her bedroom and her mother kept talking. She "talked throughout the night". She and her father slept the night in her bedroom.

2. She still wanted to go home on the weekends even though her parents were arguing. She said that she tells her father not to talk to her mother because it makes things worse.

3. Ms. H often yelled at Mr. H.

Ms. S.W. testified at the trial that now, Am is happy to go see her parents on the weekends. She agreed with counsel for the respondents that she is excited to go and she is "bouncing out the door". She "definitely" wants to be with her parents. And when she comes back after the weekend she is happy.

Mr. Vambe testified that by April 2013, Am's vitamin deficiency was under control, but the Society did not want to return her to the respondents because it did not want her to "regress in terms of her getting the adequate nutrients". The Society did not have confidence that the respondents would cooperate with it pursuant to a supervision order.

The respondents asked for access in October 2013 for a religious holiday, but Mr. Vambe refused to give it to them because by then the Society had decided to seek Crown wardship.

Ms. Bishop stated in her affidavit that:

During my interactions with [the respondents], as well as my observations of their presentations and demeanour, they have always appeared defiant and adversarial to the Society's recommendations and its efforts to work with them cooperatively in order to address [ Am's ] needs". [The respondents] did not appear to understand and appreciate the protection concerns regarding their child, [ Am ].

With Regard to the Child Az

On September 17, 2013, Mr. Vambe found out that Ms. H was 32 weeks pregnant and had decided to give birth at home.

On October 9, 2013, Mr. Vambe sent an email to the respondents asking them for a list of prospective kin caregivers. Mr. H said that he would not provide this information because he had already given it to Ms. Ruddock and it should be in the file.

On October 10, 2013, Mr. Vambe met with the respondents and told them that the Society was going to bring a motion to reduce their access to Am and to change the conditions of access to address the possibility of [ Am ] being at home when the baby was born. Mr. H told him that they did not agree with the orders that Society was seeking in the motion. They would call the Society when the baby was born.

The respondents did not want to disclose any further information with regard to the pending birth even though Mr. Vambe told them that this would affect how the Society dealt with actuation.

During October 2013, Mr. Vambe had a number of conversations with the respondents about the Society's reasons for bringing the motion to reduce access and change the conditions of access. He told them that the Society was concerned that they were exposing Am to violence in the home. The respondents denied that there was any violence in the home.

Despite the requests that Mr. Vambe made of Ms. H to give him a consent so that he could speak with her prenatal health care providers and attempt to work with them to plan for the child's birth she had not do so. He had to send out birth alerts to all area hospitals and midwives associations.

On October 21, 2013, Ms. Paula Rotchford, a social worker at the Brampton Civic Hospital, called Ms. Bishop to tell her that Ms. H. had given birth to a girl. This baby was named Az. The Society apprehended her the next day and placed her in the same foster home with Am. Ms. Bishop stated that the apprehension "was based on the risk of harm to [ Az] based on the past parenting of the children [ Am ] and [ M ] and the fact that the Society had been unable to work with the parents to adequately mitigate the risk to the children".

Mr. Vambe testified that the Society apprehended Az at birth because in spite of the death of the respondents' first child:

The Society didn't have information to suggest that the parents were now in a different position with regards to their capacity, or ability to meet the children's needs…there was no indication from the work that had been done by the Society, that they were now in a different position to do that.

He said that there was "limited progress in terms of the parenting aptitude, there was no justification placed (sic) another baby, or to leave another baby in their care…if a parent is charged with the death of a child, you really need some strong reasons to justify that they can resume care for another child". It was a combination of past parenting and current performance with Am.

Mr. Vambe had the coroner's report with regard to M's death, which indicated the result was malnutrition (vitamin D deficient Rickets) resulting from the respondents' neglect. Based on this, he considered that the respondents' neglect towards M had been verified. He acknowledged that after the death of M, the respondents took Am to the Hospital for Sick Children for an assessment before the Society apprehended her.

Az's newborn screening test results indicated that she could be prone to having maple syrup urine disease. This required further testing. Since she lived in the Greater Toronto Area this would take place at the Hospital for Sick Children. The respondents were informed of this and of the necessity for further testing to safeguard her health. Mr. Vambe stated the following:

Mr. and Mrs. [H] were informed of this and of the necessity of further testing being required right away to safeguard [ Az's ] health. Mr. and Mrs. [H]'s immediate concern was that they did not want [ Az ] treated at the Hospital for Sick Children…. Even after getting information that the disease required immediate treatment if it was prevalent, the parents still sent the Society a fax stating that they didn't want anything injected into [ Az ] without them being first notified. This was also in spite of that (sic) the parents and the CAS had been informed by the Hospital for Sick Kids that the disease could be life-threatening if not immediately treated.

The Hospital informed the parents in a letter that an IV treatment had to commence immediately if the child was not feeding well within three or four hours. The respondents requested that the child be taken somewhere else for independent testing and a second opinion if she tested positive for the disease but this was not a viable option. It would not give Az a chance to receive the medical care that she needed. Mr. Vambe states that the way that the respondents were dealing with the situation "presented some grave risks to the health and life of the child".

Fortunately, further testing showed that Az did not have maple syrup urine disease.

On November 8, 2013, the respondents failed to attend a parent/teacher meeting at the school although they had been invited.

On November 19, 2013 a 30 day planning conference for Az was held. The respondents said that they could not attend the meeting because they had to go to court on November 20, 2013. Mr. H said that they preferred that the meeting be held after their court appearance because before then they did not know if the court would order that Az be returned to them or kept in the Society's care.

On November 20, 2013 the Society transferred the case from Mr. Vambe to Ms. Lisa Mossop. Mr. Vambe introduced the respondents to her and told them that the case had been transferred to the Society's permanency planning department.

A Summary of Mr. Vambe's Involvement with the Respondents

Mr. Vambe characterized his relationship with the respondents as not very good. However, he said that what he liked about them was that "even if you were saying something unfavourable, and the like, they remained respectful".

He worked with the respondents for almost 2 years. They have a number of strengths as parents and they love and care for their children. They never missed an access visit. When he observed them with the children they appeared to be able to meet their needs in that they provided food, clothing, played with them, and effectively socialized them. He was convinced that Am was attached to her parents.

There were instances of the respondents complying with the Societies directions. For example, when they took Am to health related appointments they filled out and returned to the Society the forms that it required. In cases where they did not have the forms they provided Mr. Vambe with documentation from the doctor.

Mr. Vambe said that even though the respondents cannot believe it, he was trying to work with them so that Am could be returned to them. He thinks that the respondents were not able to admit that in the context of what happened to their child, M, the Society had a well-founded concern about Am being at risk.

He said that the respondents:

"continued to deny that past events occurred when the Society was not focusing on what happened in the past, but what could be done at that time and in the future. Their continued belief in a conspiracy involving myself leads me to question their ability to keep their children safe. This is because the parents' attribution has been only on what the professionals have done wrong and have refused to accept a different way of meeting the children's developmental needs than what they have been doing. This, to me, is based on the very fact that the parents have chosen to blame everyone of being involved wittingly or unwittingly in some form of conspiracy against them and their family.

Mr. Vambe said that the respondents lacked flexibility with regard to changing their child rearing in order to address existing and potential risks to their children. This inflexibility led to the breakdown of the reunification plan.

Mr. Vambe stated that when he spoke with Ms. H at the Vanier Centre for Women about M she "attributed the child's health challenges to the antibiotics, something else that the Hospital could have infused or transfused into M's body system and the asthma to the cortisone cream". She always blamed reasons other than her actions for the child's ill health and eventual death.

Ms. Mossop took over for Mr. Vambe. She is a child protection worker for the Society. She met the respondents on November 20, 2013. Since then she has spoken to the respondents during access visits for Az at the Society's office, on the telephone and in person on four occasions.

She tried to schedule a meeting with the respondents on December 10, 2013 to discuss the Society's plans for Am and Az. Mr. H told her that he did not think that a meeting was necessary because he knew that the Society had not changed its position. But he requested increased access.

Ms. Mossop told Mr. H that she wanted to revisit with them the possibility of a kin placement. Mr. H said that he was not interested in this. He thought that "the Society's plan at the highest levels…has been all along to adopt his children out from their family members" and that the Society would seek to curtail their access if the children were placed with family members.

Mr. H told her that there was no reason that the children should not be with them. The vitamin D deficiency was not a reason to keep the children away from them. He said that the Society wants them to admit to having done something wrong. This will never happen because they have not done anything wrong. If they had, all children who have a vitamin D deficiency should be apprehended.

Ms. H told her that the Society did not have all of the facts. Ms. Mossop asked Ms. H what facts they were missing. Ms. H said that they had not been in the home to see what was happening.

Mr. H asked her to consider a supervision order. Ms. Mossop told him that the Society would not agree to that because they did not agree with regard to the issues in the case and, therefore, they could not move forward.

On January 14, 2014, Ms. Mossop renewed her plea to the respondents to move toward an arrangement in which family members would care for the children. Mr. H resisted this, saying that the Society's purpose was to place the children for adoption regardless of the involvement of the family members. Ms. Mossop tried to contact the paternal aunt but has not been able to reach her or leave a message at the number that the Society has for her. She left several messages for the paternal grandfather. She contacted him by telephone on April 7, 2014 to ask him about family members who could care for the children. He told her to contact him after April 15, 2014. Ms. Mossop did not say if she contacted him.

Ms. Mossop had a conversation with the respondents on February 4, 2014, in which they told her that they had always cooperated with the Society, but Society workers lied to them. They were shocked at what they wrote in their affidavits. Mr. H said that the doctors were lying and that the Society took the children to professionals to be cared for. Ms. Mossop told him that the Society trusted what the professionals said. Mr. H said that Dr. Charles Smith was an example of where facts cannot be trusted.

Mr. H said that this was "God's battle" because children do not belong to the parents or to the Society. They belong to God. He said that no matter what the Society did they would not change their faith. The respondents told her that they thought that they were being persecuted because of their faith.

On February 13, 2014, Ms. Mossop discussed a problem that Am was having in school with reading. She was getting a "D". Ms. Mossop told them that she would set up a meeting with her teacher so that they could discuss this. They said that whether they would attend depended on when the meeting was set up. Ms. Mossop scheduled a meeting but the respondents said that they could not go on the date and time arranged.

On March 4, 2014, Ms. Mossop spoke to the respondents about Am becoming more and more stressed. Ms. H questioned whether it was the Society and/or the foster parents that were causing the stress. Am was never stressed when she was with the respondents. Mr. H said that the matter comes down to the issue of their faith. He reiterated that the Society had already made a decision to adopt out the children. The previous workers had all lied. It was the Society's plan all along to adopt out the children.

Ms. Mossop asked the respondents if they would go to a meeting at the school. Mr. H said that they did not have a reason to meet with the school. He felt that the Society would use this to move their plans forward. He felt that the school was part of the Society. He thought that the Society has offices in the school. He asked what the purpose of the meeting would be. Ms. Mossop told him that it would be to ask Am's teacher questions about her. He said that they [the respondents] could do this on their own.

Am told Ms. Mossop that she and her parents do not go out of the house when she is there on the weekends with them.

Ms. Mossop said that access to Az takes place at the Society's office twice a week for two hours. She has not seen any concerns. The respondents appear loving to Az and they are able to express their affection to her.

Ms. Sophia Bishop was Ms. Ruddock and Mr. Vambe's the team leader for May 2011 to November 2013. She met the respondents on June 6, 2011 at a permanency planning conference at the Society's offices.

The purpose of the meeting was to "engage in a planning process intended to maintain [ Am ] in a permanent and stable living arrangement". At that time the Society was "attempting to work cooperatively with the parents in an attempt to address the protection concerns, so that [ Am ] may safely return to their care".

They discussed the "the need to assess the parents' ability to ensure that [ Am's ] medical needs would be adequately met if she were returned to their care".

They had another meeting on August 11, 2011 to discuss the same topics.

On February 12, 2012, they had another meeting. The Society was trying to reunite Am with her parents by way of a kinship placement whereby the respondents would co-parent her. The Society asked the respondents for names of persons who might be able to care for Am in a kinship placement. The respondents did not want to do this.

Expert Evidence

Dr. Zlotkin

Dr. Zlotkin testified as an expert in pediatric nutrition and pediatric gastroenterology. He prepared a nutrition assessment of Am. His assessment was based on Am's health and medical records. He did not see her. The court made the assessment an exhibit on consent. It covers the period between March 3, 2011 and August 9, 2011.

Dr. Zlotkin's conclusion was that Am had vitamin B and vitamin B 12 deficiencies, likely of dietary origin. However, he said that other than the low vitamin D and B 12 he could not ascertain anything from the records that would make him particularly concerned "about her as having ill health".

Dr. Zlotkin also noted that according to the opinion of a dietitian contained in the health records who examined Am's diet "both the calcium, Vitamin D intake met and surpassed the dietary recommended intake for a child of her gender and age. That would also be true for Vitamin B 12".

However, he noted that the contents of Am's diet were taken from "the dietary history obtained from [ Am's ] foster mother on May 26, 2011". He noted that these foods were similar to the list that Ms. H provided. He agreed with Ms. Shaw's observation that there was "an inconsistency between [ Am's ] diet, as reported by her mother, and the blood values for vitamin D and B 12, both of which were abnormally low" because this type of diet would have kept, for example, Am's B 12 level within the normal range.

Vitamin D deficiencies are "fairly common". But rickets, one of the major consequences of vitamin D deficiency, is "relatively uncommon".

Vitamin D is important for the absorption of calcium from a person's diet. Calcium is important for bone growth and bone remodelling. The major consequences of vitamin D deficiency are the following:

1. in children under the age of six or seven years vitamin D deficiency rickets can occur;

2. bowing of the legs;

3. the forehead becomes a bit rounded and protruding;

4. abnormalities of the ribs;

5. problems walking;

6. if the vitamin D and calcium deficiencies continue for a long period of time they can cause various metabolic consequences in the body;

7. seizures.

With regard to vitamin B 12 deficiency, Dr. Zlotkin stated:

"A Vitamin B 12 deficiency, which occurs in children with inadequate Vitamin B intake is relatively uncommon. It has an important role in nerves of the brain and the nervous system and the - in the formation of red blood cells. It's one of the B Vitamins in the body and it really is important for every cell in the body, particularly, those affecting DNA synthesis and regulation, fatty acid synthesis and regulation and in energy production in the body. So, again, very important as what we call an essential nutrient".

Dr. Zlotkin said that of all the areas that he assessed with regard to Am, the only one that raised a concern were the blood tests that revealed the vitamin deficiencies. He noted that there were no tests done with regard to genetic predisposition to vitamin D levels, so he could not comment on whether a genetic factor led to Am's low levels of vitamin D.

Dr. Cory

Dr. Cory is a pediatrician qualified to practice in Ontario. She is currently the medical director of the team for physical abuse and neglect evaluations at the Hospital for Sick Children. One aspect of her practice deals with "failure to thrive". She runs a nutrition clinic for infants and toddlers. She has lectured a number of times on weight gain issues and nutrition in children. She's testified in court twice with regard to nutritional issues in children. She recalled being qualified as an expert in "failure to thrive/nutrition" but she couldn't remember the exact wording of the qualification.

Within her area of pediatrics she has a special interest in nutrition and weight gain and growth in children. She said that her level of expertise in nutrition would not be as high as a GI or a gastroenterologist who has nutritional expertise. She views her "area of knowledge in the area specific to nutritional issues is more than a typical pediatrician, because it's an area of my focus clinical work, but not as much as a GI nutritionist".

Nutrition is an area of focus for her in her clinical work and she lectures in this area. She runs a clinic at the Hospital for Sick Children. Pediatricians and other subspecialists within the hospital referred to her for evaluation of gross concerns in infants and toddlers. This includes the knowledge of how vitamins work in the body. Part of her work is testing children for nutritional deficiencies. She has run the "failure to thrive" clinic since 2005. Consequently, she has seen "hundreds and hundreds" of children with weight gain concerns. She has ordered blood work and interpreted the lab results on hundreds of children with some level of nutritional concern.

In addition, Dr. Cory has a certification in pediatrics from the Royal College of Physicians and Surgeons of Canada. She also possesses a certification in pediatrics from the American Board of Pediatrics. She has a subspecialty certification from the American Board in the area of child abuse pediatrics. Dr. Cory's CV is Exhibit 10.

Based on Dr. Cory's qualifications and experience the court qualifies her as an expert with regard to the nutrition of young children, including issues regarding vitamin deficiencies.

Dr. Cory assessed Am on March 3, 2011. When she assessed her she was not in her current position; she was one of the staff pediatricians on the team.

Before the respondents came to the hospital with Am she spoke to Mr. H and explained the importance of coming to the hospital with Am.

When they arrived Dr. Cory examined Am. She took her history, did a physical examination and ordered blood tests.

Dr. Cory testified that "her general physical examination was normal and didn't raise any specific concerns…"

Dr. Cory also did a screening neurological and musculoskeletal examination. Based on this initial assessment she did not see anything remarkable that she had to record.

The results from the blood tests that Dr. Cory ordered came back at various times. They covered areas such as calcium, magnesium, phosphate, albumin (which is an overall marker of a nutritional state), electrolytes, sodium, potassium and chloride. The test showed that all of these were present in normal quantities.

In addition, Dr. Cory stated that "her kidneys were normal, so that's specifically urea and creatinine; and that some screening liver enzymes were normal". Am's hemoglobin was normal also.

On March 14, 2011, after more test results had come back and Dr. Cory found out that Am's vitamin B 12 and vitamin D were low, she informed Mr. H of the results. He responded that no child has normal levels of everything. She told them that Am's levels were "seriously low". She discussed with Mr. H "the health consequences of Vitamin D as they relate to bone density and the health consequences of Vitamin B 12 as they relate to effects on the peripheral nerves, and I spoke to him about how important it was to re-check her levels to confirm that they had increased".

In cross-examination, Ms. Osadet asked Dr. Cory if she ever advised Mr. H or anyone else that Am's levels of vitamin D and B 12 "posed an imminent risk of death". At first Dr. Cory said "I can't specifically remember if Am's father and I talked about that on the March 14 th date…" The court asked her to clarify her answer and she replied "So no, I would not have said that". She said that she believed that at that time Mr. H had told her that he was starting vitamin supplements, which would reduce the risk.

Mr. H initially refused to sign a consent form so that Dr. Cory could inform the Society of the results. Later, he gave her consent to do so. Dr. Cory said that "Although, [ Am's ] blood test results, to me, would have raised some level of child protection concern, which would allow me to break confidentiality and report to Children's Aid without consent, [I] much prefer to have that discussion with [ Am's ] father". Dr. Cory informed the Society on March 17, 2011 of the blood test results.

Later, on April 19, 2011 Dr. Cory performed a further neurologic examination. She recommended that Am have x-rays of her wrists and knees to look for possible consequences on her bones of the vitamin D deficiency. A low level of vitamin D affects the health of the bones because vitamin D "is important in the uptake of calcium into the bones".

Dr. Cory consulted with Dr. Sochett, an endocrinologist whose special interest is calcium and bone health. She asked him whether he would recommend any other blood tests in order to do the most comprehensive assessment of Am's bone health possible. He recommended some additional tests and based on her conversation with him she prepared a requisition for blood tests that included the test that he recommended.

Dr. Cory intended that the blood tests be done at the Hospital for Sick Children, but the respondents took Am to another lab "that did not include this breadth of laboratory testing that was adequate to assess for clinical purposes". She said that it was not imperative that the additional tests be done, however, and that the blood tests that were eventually done were adequate.

Dr. Cory decided that monitoring would be necessary to ensure that Am took vitamin supplements so that her vitamin D and B 12 levels return to normal. There was no underlying medical cause of the vitamin deficiencies. Although she would not describe Am as failing to thrive and she was "well grown", that reflected her caloric intake. Dr. Cory said that "the fact that [ Am] had such low Vitamin B 12 levels lead me to have concerns about the Vitamin B 12 sources in her diet". She said that a child can have an adequate total caloric intake in order to be in the normal range for overall weight and height, but at the same time be deficient in these vitamins.

Dr. Marignani

Dr. Marignani testified as an expert in molecular biology, including the pathology associated with environmental and genetic variations and/or mutations. Dr. Marignani prepared a report, which is an exhibit in the trial.

Dr. Marignani underscored the importance of vitamin D saying that:

It helps with the absorption of calcium and phosphorus, [which are] essential for…thousands of events happening in our bodies simultaneous every day, and we also know that…calcium and…phosphorus are essential for mineralization of the bone. So, that's how the bones get our…it regulates how our fat tissues, all our adrenal glands, our ovaries, the brain, that is, the breast, everything, our pituitary glands – land, scan, test, liver, lungs, thyroid, everything requires vitamin D pretty much for normal equilibrium…

She said that in Canada as high as 30% of children are deficient in vitamin D because of lack of sunlight. Persons with dark skin have a harder time absorbing sunlight in order to produce vitamin D. However, diet is a good source of vitamin D.

Current Status of the Children

With regard to Am's situation now in her foster home, Mr. R.W.1., the foster father, said that she has been in his home for about four years. She is very happy and helpful. She is a lot more physical than when she first came to his home. She is an outgoing child now. His relationship with her is quite positive. She also gets along with his three children. Am has never given him any problems.

With regard to Az's situation now in her foster home, Mr. R.W.1. said that she is doing very well. She has been with them for about three years.

Mr. R.W.1. spoke on the telephone once with the respondents. Other than that he does not have a relationship with them.

Mr. R.W.1. and his wife are willing to continue to be their foster parents, but they cannot afford to adopt them.

Mr. P.W. and his wife, R.W., acted as a kinship placement for Am for several months starting in April 2011. He said that the Society placed her with them because she had vitamin deficiencies.

Ms. R.W. said that Am was taken from her parents due to serious vitamin deficiencies in M.

Mr. P.W. said that when she came to them she was very smart, observant and had a strong will. She was very active and had a good appetite. She played in the park. She ran and went for walks of about two kilometers without any problem. He taught her how to ride a bicycle.

Ms. R.W. described her as "very active, very talkative, happy….she enjoyed the company of the children she had…a good appetite, she ate better than my children, finished all her dinner and things like that". She liked going to the park. She was "an active, normal child in my eyes".

They were instructed to provide vitamin supplements to Am. His wife took care of administering them to her. He remembered that he took Am to a laboratory for blood tests. Mr. H was there but he was not sure if Ms. H. was. Mr. P.W. said that the Society wanted Am to go to another laboratory, but they took her to this one because the respondents wanted to "go to their own place". He discussed this with "someone from the [CAS]" and they agreed.

Mr. P.W. did not remember if he had the opportunity to provide the results to anyone. The Society took Am away before he could do so.

He said that they started to give Am vitamin supplements, but they stopped because she developed a rash and they thought that it might be due to the supplements. But after a doctor examined her rash "Someone from Sick Kids said it was okay to continue [giving her the supplements]". They resumed giving her the vitamins except for one bottle of vitamin D that had not yet been opened. She left before they had to open that bottle.

Ms. R.W. remembered one time when she took Am to the Hospital for Sick Kids for blood tests. The respondents were not there. Am resisted taking the tests so they did not do it. Her parents did not want her to go back to this hospital for blood tests. Ms. R.W. testified that she remembered that Ms. Vieira agreed that they could take her to another laboratory as long as they requested the same tests that the Hospital for Sick Kids wanted done.

The hospital gave Ms. R.W. a requisition form for specific blood tests to take to the other laboratory. She said that she did not take Am to another laboratory within the next few days because the respondents and the Society were discussing the issue. Later, Mr. P.W. took Am to another laboratory to have the tests done.

Am left their home in May 2011. Mr. P.W.. has not seen her since. He said that he would consider being her kinship caregiver again, but "it was a difficult…time to put my family through it. Ms. R.W. agreed with this opinion.

Ms. R.W. testified that when the Society took Am from their home it was a traumatic event for all of them. Ms. Ruddock and another worker came to her house to take her. They would not tell them why they were apprehending her. She has seen Am once or twice since the Society took her from her home in May 2011.

Adoption

Ms. Helgason, an adoption team leader employed by the Society, provided an affidavit and also testified. Since 1992 she has worked extensively with Children's Aid Societies. She participates in continuing education and training activities on a yearly basis. Since she started working in adoptions she has managed over 240 adoptions that have been successful. Forty of them have been "sibling adoptions", meaning that siblings were adopted together. It is their practice to place siblings together. They would only consider prospective adoptive families that would take both Am and Az. Her affidavit provides an "Adoptability Report" and a permanency plan for Am and Az.

After concluding her assessment of this case by reviewing file material, interviewing the foster mother and observing the children, all on April 14, 2014, she determined that if the court orders Crown wardship the best permanency plan for the children is adoption.

Ms. Helgason stated that the current foster parents would consider adopting the children. They must have changed their minds since they spoke to her because they testified that they would not adopt them.

The Society has 57 approved adoptive families, but none belong to the Nation of Islam. She has not been able to find such a family. She located five families who are black. Their search included contacting Adopt Ontario, and all of the Children's Aid Societies. Their search included a "targeted and black and bi-racial recruitment strategy".

She said that she would "begin a targeted recruitment strategy to seek out a family that was a racial and religious match" for the children. She said that finding a black family that is a member of the Nation of Islam would be a challenge. She was confident that they would be able to find a black family for them, however. They would impress the importance of learning about the children's religion and helping them to practice it. The Society would monitor this during the probationary period.

Ms. Helgason said that there is a rigorous adoption approval process. In addition, prospective adoptive parents receive extensive training.

After a child is placed with a family the Society supervises them during a probationary period. After this, if they perform satisfactorily the Society asks the Ministry of Community Family and Children's Services to consent to the adoption. The Society gives the adoptive parents a "Life Book" that has pictures and other information about the child's history.

In the case at bar, her agency tried to find family members who would be able to take the children, but they could not find any. They contacted some on Facebook, but they did not respond. They contacted the paternal grandfather, but he declined to get involved.

With regard to access after Crown wardship is ordered, she said that:

the legal responsibility as well as the emotional, psychological responsibility of parenting that child, would be shifted to another family…If the child is in the middle of that and has divided loyalties between those two families, we are placing the child in an emotional unstable situation we…would not do that. We have to have certainty that the child is confident that she knows who's parenting her…and that there's none of that back and forth and confusion for the child.

For there to be a successful Crown access order the biological parent has to realize that they are not co-parenting. They have no say over extra-curricular activities or day-to-day routines.

Behaviours or attitudes that would have a negative effect on a Crown wardship with access order are mistrust on the part of the parents towards the agency or the adoptive family.

Biological parents that obtain access after Crown wardship is ordered can apply for openness orders. Ms. Helgason said that sometimes this dissuades prospective adoptive families from adopting a child because they think that an openness order will disrupt their parenting of the child by re-introducing the biological parents into the child's life and schedule.

Dr. Luthra

Dr. Luthra, a licenced medical practitioner in Ontario since 2007, testified that Dr. Amacoria from the Hospital for Sick Children referred Am to him for ongoing pediatric care regarding vitamin D deficiency. He first saw her on November 28, 2011. He treated her and did blood tests over the next two years. On November 1, 2013, he determined that her vitamin D level was normal and he discontinued his treatment of her for vitamin D deficiency.

Regarding Am's asthma, he stated that he did not diagnose her with asthma. When she first saw him she was using two puffers, however. One for "immediate rescue relief" and one for "maintenance treatment". He determined that she only needed the former so he discontinued the other one.

He saw Az for the first time four days after her birth. Shortly afterwards, he treated her for an eye infection, but other than that he did not have much to do with her.

Dr. Luthra only saw the children while they were in foster care. His records show that on November 28, 2013 the respondents denied permission to have Az immunized. In addition, they did not want the doctor to put vaseline on her for the purpose of avoiding diaper rash.

Ms. Laura Duivesteyn

Ms. Laura Duivesteyn is a registered midwife at Midwifery Care of Peel and Halton Hills. She is in the Georgetown office. Ms. H was one of her clients. She delivered Az at the hospital. The court does not find that her evidence is helpful to the court in making the decisions that it has to make in this case.

Ms. Diana Marinelli

Ms. Diana Marinelli is a registered dietician. She works with "Saint Elizabeth Rehab". She provides in-home services to their clients. Her employer asked her to assess Am's nutritional intake and to provide recommendations and teaching to Am's foster parents. The request came from the Society. She did not say when this was. She was to deal with the issue of low levels of vitamin D and B12. Her task was to teach the foster parents about dietary sources of these vitamins.

On July 5, 2011, she met with the foster mother who gave her information for the nutrition assessment. The foster mother told her that Am was following a vegetarian diet based on Farrakhan principles as outlined by W. Fard Muhammad. These are dietary principles for members of the Nation of Islam.

The result of her assessment was:

while [ Am] was in the care of her foster mother, that her dietary intake, although initially it was identified that there were some risks, because of vitamin B12 and vitamin D, that the foster mother was already givng her – trying her best to give her meals, because she was well informed about the vegetarian diet. She tried to implement a vegetarian diet, but it looked like it [was] a lacto-ovo vegetarian diet.

Based on all of the information that she gathered Ms. Marinelli wrote a nutrition care plan that provided a "generalized vegetarian diet". This was "education to continue to reinforce with the foster mom, that she provide adequate dietary sources of vitamin D and B12 for [ Am ]".

Ms. Marinelli said that the foster mother wanted to:

make sure that [ Am ] eats sources of vitamin B12 food daily, so again, the animal products, so the eggs, fish, cheese, what – whatever is permissible. However, the mom also wanted to respect biological mom – parents, of their (sic) wanting the child to follow a vegetarian diet, so she was trying to compromise and tried to exclude maybe the meat, the- the fish or other – other food choices, but it was okay to give her an egg.

Her instructions were not to tell the respondents about this until the Society approved it. On her last visit to the foster home she contacted the respondents through Ms. Ruddick. On August 22, 2011, she went to the respondents' home with Ms. Ruddick. The respondents presented her with a meal plan for Am that they developed. They wanted to show her the changes that they had made in keeping with her instructions to the foster mother.

After reviewing the plan, Ms. Marinelli concluded that "they were making an effort to improve [ Am's ] dietary intake". They were trying to introduce milk and eggs into her diet. But there was room for improvement. She reviewed with them Canada's Food Guide and the Vegetarian Food Guide.

Ms. Marinelli spent about one hour with the respondents. She never saw them again.

Dr. Pollanen's Evidence

The Society asked to adduce the transcript of the evidence of Dr. Pollanen, given at the respondents' preliminary hearing for the manslaughter of M. Dr. Pollanen gave expert testimony as the chief forensic pathologist of the Ontario Forensic Pathology Service in Ontario. He performed the autopsy on M and made certain findings as to the cause of death. The transcript of his evidence is part of the Trial Record. It is in the transcript of his evidence given on August 1, 2012, page 15, from line 17, to page 49, line 24.

Respondents' Opposition

The respondents opposed this transcript being admitted into evidence. Ms. Osadet submits the following arguments:

1. The transcript is not necessary because Dr. Pollanen is available to testify.

2. The transcript evidence distracts from the issue of the respondents' parenting ability.

3. The transcript evidence is not needed because the evidence is provided in other places:

   • a. Justice Parent's summary judgment of April 17, 2013 in which she finds Am in need of protection reflects the transcript evidence.
   • b. Other evidence already admitted by the respondents covers what Dr. Pollanen says in the transcript.

4. The transcript's prejudicial effect outweighs its probative value.

The Law

Section 50 of the Child and Family Services Act states that:

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1999, c. 2, s. 12. (emphasis added)

In Children's Aid Society of the Niagara Region v. D.P., Justice Quinn dealt with this section in a similar circumstance to the case at bar. The Society brought a motion for an order allowing it to adduce transcripts from a previous child protection trial in a new child protection trial. The same parents were involved in both trials. Justice Quinn granted the Society's motion. He held that s. 50 allowed for the introduction of the transcripts.

In arriving at this ruling Justice Quinn considered s. 50 CFSA as well as a decision of Justice Aston of the same court that seemed to disagree with his ruling. In paragraph 22 he analyzed Justice Aston's decision as follows:

In Children's Aid Society of London and Middlesex v. B.B. and J.B., Justice David R. Aston, in an articulate judgment, held at paragraph [16] that the wording of subsection 50(1) "suggests that the section deals with the disposition of the case and not the threshold determination of whether the child is in need of protection." There, Justice Aston was faced with a predecessor to subsection 50(1), which began with these words (emphasis added):

50.--(1) Despite anything in the Evidence Act, before ordering that a child be placed in or returned to the care and custody of a person other than a society, the court may consider that person's past conduct toward any child...

It was the emphasized passage above that Justice Aston felt signalled the application of subsection 50(1) to the disposition phase of the case but not to the in-need-of-protection phase. Now, however, the wording of subsection 50(1) seems to eliminate the ability to make that distinction.

Quinn J. went on in paragraph 23 to hold that:

I find that subsection 50(1) is sufficient to justify the admission into evidence of the transcripts and affidavits as requested by the society. Such evidence depicts the "past conduct" of the respondents towards the six children in the first protection proceeding and, as the respondents are "caring for" the children who are the subject of the second and third proceedings, clause 50(1)(a) is satisfied. The evidence is in the form of transcripts and affidavits as required by clause 50(1)(b).

Justice Quinn went on to analyze whether the requirements of "necessity" and "reliability" applied. He found that they did not.

Are the transcripts and affidavits, sought to be placed in evidence by the society, hearsay evidence? Yes. Must the "necessity" and "reliability" requirements of The Queen v. Khan be met? No. In my view, subsection 50(1) trumps The Queen v. Khan. As long as the requirements of clauses 50(1)(a) and (b) are met, there is a discretion in the court to admit hearsay evidence without consideration of the criteria in The Queen v. Khan. The statement by Justice Aston in Children's Aid Society of London & Middlesex v. B.B. and J.B., supra, where he concluded:

[17] If the hearsay evidence sought to be admitted for its truth goes to the issue of whether the child is in need of protection, I would always decline to admit that evidence if it did not meet the test of necessity and reliability. Indeed, the discretion to admit it may not even exist.

should, in my respectful opinion, be taken as restricted to the old wording of subsection 50(1).

A check on Quicklaw of the judicial consideration of Justice Quinn's decision shows that it has not been overturned. Although the court is probably not bound by Justice Quinn's holding because he is not sitting as an appeal court, the court finds that it is quite persuasive authority from a very experienced Superior Court Judge. Therefore, the court will follow it.

Addressing the Respondents' Arguments

The transcript is not necessary because Dr. Pollanen is available to testify

Justice Quinn's decision lays this argument to rest in favour of the admission of the transcripts.

The transcript evidence distracts from the issue of the respondents' parenting ability.

The court finds that Dr. Pollanen's evidence regarding the details of the cause of death of the respondents' child, M. while she was in their care goes directly to their parenting ability.

The transcript evidence is not needed because the evidence is provided in other places.

The respondents submitted that the transcript evidence is provided in the following places:

1. Justice Parent's summary judgment of April 17, 2013 in which she finds Am in need of protection reflects the transcript evidence.

2. Other evidence already admitted by the respondents covers what Dr. Pollanen says in the transcript.

Regarding Justice Parent's judgment, the only thing that she says in this regard is that it is undisputed that M died while in the care of the respondents. And that the autopsy report "noted the causes as complications from malnutrition and asthma…"

Dr. Pollanen's testimony in the transcript is much more detailed and explanatory than Justice Parent's comment. This is not a criticism of Justice Parent's judgment; she did not have to go into more depth for the purpose of her ruling so she justifiably did not.

Regarding the transcript evidence being admitted in the respondents' materials, Ms. Osadet referred the court to the Society's application at tab 1 of the trial record, vol. 1 and to the respondents' plan of care for Az. However, these documents do not compare with the comprehensive nature of Dr. Pollanen's evidence contained in the transcripts.

The transcript's prejudicial effect outweighs its probative value.

The court finds that Dr. Pollanen's evidence is highly reliable and that considering that provides a scientific explanation of other evidence regarding the cause of M's death its probative value far exceeds any prejudicial effect that it might have.

Ruling on the Admissibility of the Transcript of Dr. Pollanen's Evidence

After considering all of the circumstances, the law and counsel's submissions, the court finds that the transcripts are admissible pursuant to s. 50 (1) (b) of the CFSA. Dr. Pollanen testified as an expert in forensic pathology. The court will consider his evidence as expert evidence in the case at bar.

The court finds that this result flows logically from the admissibility of a transcript of a prior judicial proceeding under s. 50 (1) (b) of the CFSA. In providing that a transcript is admissible, the section envisages that the evidence contained in the transcript is admissible as it was presented, not altered in some fashion, such as not considering it as expert testimony. If the evidence contained in the transcript was expert evidence and the transcript is admitted into evidence pursuant to s. 50 (1) (b), it should be admitted as expert evidence.

In any case, it can be safely assumed that the preliminary hearing court took all of the required precautions with regard to persons being allowed to testify as experts. In addition, the defence at the preliminary hearing had ample opportunity to question Dr. Pollanen's qualifications.

Dr. Pollanen stated that M's cause of death was "complications of asthma and malnutrition". In addition to this there was evidence of malnutrition related to inadequate levels of protein and vitamins. There was also evidence of nutritional anemia. It was the "superimposition of these factors that ultimately resulted in death". They all combined to produce shock. There was not enough oxygen in her blood. All of these factors led to "sudden fatal cardio respiratory collapse" and death.

Dr. Pollanen said that M suffered from the following conditions:

1. Malnutrition characterized by
   • a. weight loss
   • b. protein deficiency
   • c. vitamin D deficiency rickets (no vitamin D was detectable in the blood)
   • d. megaloblastic anemia (reduction in the number of blood cells due to either a deficiency of vitamin B12 or of folic acid, or both)
   • e. lack of evidence that the malnutrition was caused by diseases or by the body not processing the nutrients that it receives properly
   • f. Chronic asthma
   • g. Severe dermatitis or eczema extensively over her body (not a cause of death factor)
   • h. Acute shock (failure of the blood to circulate)
   • i. neuronal narcosis (changes in the brain brought about by shock) and
   • j. ischemia colitis (changes in the intestine brought about by shock)

Dr. Pollanen stated that he could not testify to the issue of how M's malnutrition occurred.

That was all of the evidence.

Respondents' Failure to Testify

The respondents did not testify. Nor did they submit any affidavits. If concern of the effect of their testimony in the case at bar on their manslaughter trial was the issue, s. 13 of the Charter would have protected them:

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Their decision not to testify leaves the court without any evidence from them personally on all of the relevant issues. And it leaves much of the Society's evidence on the issues unchallenged in any significant way.

Justice Schnall commented on this situation in Family & Children's Services of St. Thomas & Elgin v. F. (W.). She said that "It is incumbent on the parents to testify, if they wish the court to know their position and to provide evidence that only they, as parents, are uniquely qualified to give. Again, the yardstick must be the court's ability to have the relevant evidence before it, to make a decision in the best interests of the child".

Plans of Care

Section 53 (1) (b) of the CFSA requires the court to give "a statement of every plan for the child's care proposed to the court". The Society's plan of care is clear. They are asking for Crown wardship for the purpose of adoption.

The respondents' filed three plans of care. The first one is dated May 16, 2011, approximately three months after M's death. They want "the court to return Am …to our care. We feel that this would be in the best interest of [ Am ] since we fulfilled our commitment to re-test [Am] for the blood work and have records to prove the results".

The "plan" is more a defence rather than a plan of care for Am. They explain that they did not cooperate immediately with having Am examined when the Society asked them to take her to the Hospital for Sick Children because they had to attend to M's burial. They state that they never refused to have her examined and that although they were available earlier, the Society could not arrange the examination then.

They complain that they had not yet received the results from blood work to support Dr. Corey's findings.

They claim that they have been "receptive to each step of the way" and that they only ask for transparency "to ensure that we are all on the same page". Regarding consent forms that Ms. Vieira gave them, they said that she did this in a "very threatening way".

They relate that their own doctor "came at us stating that if we don't sign a patient release form which was not mandatory saying that she is our doctor and we are her patients she will release us including [ Am ]. In light of what was happening we questioned this to ourselves". The court does not know what this means.

The respondents deny that Am is at serious risk. They state that no one told them that died from a "vitamin deficiency". They refer to Dr. Martino's diagnosis of cardiac arrest as the cause of death. Then they note Dr. Huyer's finding that M had rickets, which is caused by a deficiency of vitamin D.

The respondents state that M met all of her growth milestones except that she could not walk. Aside from that, she was fine. She talked and sang and the week that she died she was jumping in the Jolly Jumper. They deny that they engaged in a pattern of neglect towards her. They argue that there is no proof of neglect.

They set out a plan under which they will home school Am, take her on field trips, to the library, to religious meetings, martial arts classes, and CPR classes. They state that they plan to attend bereavement groups to help them cope with M's death. They say that they have family and community support to help them with Am. They provide a list of eight persons who would support their plan. They argue that Am will feel better if she is with them and all of the familiar things in her life.

They want to be able to take Am to a doctor, with whom she feels more comfortable. This would "make her more susceptible to comply rather than being forced as Lydia Vieira told me would happen if [ Am ] did not comply at the Sick Children Hospital to give blood". This refers to the time that Am refused to have her blood taken at the Hospital for Sick Children.

The respondents state that they are "willing to sit down with the CAS to make sure [ Am ] is treated medically for the alleged deficiency she has". They state that the blood tests show "the facts of [Am] no being deficient. We are yet to receive any facts from the Sick Kids hospital".

It is clear from these statements that in spite of the test results that indicated that as of March 3, 2011, Am was suffering from a deficiency of vitamin D and B 12, they did not accept that there was anything wrong with Am. It is indicative of the respondents' attitude that in light of this finding they could still state in this plan of care that "the results of the blood work came back and there is not deficiency in any area or any cause for concern…"

The respondent pointed out that Am was being further traumatized by the Society placing her in a non-Muslim home and that was another reason that the court should order that she be returned to them.

They state that they are "prepared to do whatever it takes to ensure that courts are satisfied with the health of [ Am ]". The evidence in the trial shows that this has not been the case.

The next plan of care is dated July 8, 2011, approximately five months after M's death. The plan states that the respondents:

1. Live in an suitable three-bedroom home;

2. No one but them and Am lives with them;

3. Mr. H is a stay-at-home mother who home schools Am;

4. The respondents attend a bereavement group to help them with M's death. However, they do not list any support services that they intend to use to help Am to cope with her sister's death;

5. In terms of family and community support, J.R. and Mr. S. are listed as spiritual friends who will assist them. Dr. A. Muhammad is listed as their doctor. They do not state how they will help them and the other six support persons listed in their plan of care of May 16, 2011 are no longer mentioned;

The respondents state that they seek an order returning Am to their care without conditions, or in the alternative under a supervision order, or in the further alternative, granting them generous access.

The respondents make the following further points:

1. They can meet all of Am's needs (stability, accommodation, dietary, educational, spiritual, cultural, religious, extended family;

2. They are willing to go regularly to the doctor to have Am's vitamin levels and diet monitored;

The respondents state that "With the support of family members and their community, they have demonstrated that they can adequately and competently meet [ Am's ] daily needs consistently". However, there is no input from members of the community and family to support this statement.

The respondents' last plan of care is dated, November 19, 2013. It deals solely with Az, as she had just been apprehended at birth in October 2013. They request that the court order that Az be placed in their care and custody pursuant to s. 57.1 of the CFSA, or in the alternative, that she be placed in their temporary care and custody pursuant to a supervision order.

The plan of where they will live and home schooling are the same as in the other plans regarding Am. New items include that as a family they are planning to attend Dianetics. It is related to their religious faith. They are going to take a course called Life Repair Audit Course. It will help them with the loss of M. At the time of filing the plan of care they were not taking any counselling.

They reiterate that they are capable of providing for all of Az's needs. They have support from the community and from their family. Eight persons are listed as community and family members that they say will help them.

They state that the manner in which these support persons will assist them is by "checking in" with them and by calling then on a regular basis. There is nothing about help with nutrition, which is the issue in this case. The evidence in this case shows that the respondents need much more help than just friends and family calling them to see how they are doing. They need education, guidance and monitoring with regard to child nutrition. There is nothing in their plan of care about that.

All three plans state that Am will be better off with the respondents. The last plan includes Az. They talk about loving the children and nurturing them and all that that involves. However, there is nothing in any of the plans that indicates an acknowledgement that they need help with providing for the dietary needs of their children. There is no mention of taking classes in this regard, or of enlisting the help of professionals in this area to help them. There is nothing about how they plan to improve their knowledge about child nutrition and about how they are going to formulate a realistic plan to improve in this area. In fact, they do not provide any type of plan in this regard.

In a telling statement they say "We are also receptive to recommendation as long as it does not impede our criminal matter and does not conflict with our faith". This presaged their attitude and behaviour for the next two years. It is clear that they are willing to accept recommendations to assist in ensuring that Az is properly cared for as long as it does not get in the way of their defence of the manslaughter trial or of their faith. Az clearly does not come first for them. It is reasonable to infer that this statement also applies to Am.

The respondents state that "Prior to the apprehension We (sic)…raised two daughters independently. We provided them with best possible environment and an atmosphere where they were nurtured and loved. We will continue to make sure that her developmental milestones are met".

The fact that the respondents did not testify made it impossible for their broad, sweeping statements in their plans of care about how they are the best care givers for their children from being tested in cross-examination. By not testifying they shielded themselves from scrutiny.

However, the respondents' conviction for the manslaughter of their daughter, M, who died from malnutrition while in their care, clearly shows the complete unreality and erroneousness of their assessment of themselves as competent care givers for their children. It also fatally undermines their statements of how they are best able to care and nurture their children.

Rulings

Is Az a Child in Need of Protection Under s. 37 (2) (b) (i), (ii) CFSA?

The court is persuaded on a balance of probabilities by the evidence that Az is a child in need of protection under s. 37 (2) (b) (i), (ii) CFSA. The court finds that the evidence of the respondents' past parenting of M that resulted in her death from malnutrition, coupled with their unwillingness to change their dietary habits, and their reluctance to cooperate with the Society in this regard, proves that there is a risk that Az is likely to suffer physical harm inflicted by the respondents as set out in this subsection.

The court notes that a child may be at risk even if the caregivers' conduct was directed at another child.

Crown Wardship of Az and Am

Before making an order of Crown wardship or any other order under s. 57 CFSA, the court must consider s. 56 of the Act. The court has considered the relevant portions of s. 56. The court's findings regarding each criterion are below each subsection.

Section 56 Analysis:

56. The court shall, before making an order under section 57, 57.1, 65 or 65.2, obtain and consider a plan for the child's care prepared in writing by the society and including:

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

The court reviewed the Society's evidence regarding what it plans to do to remedy the situation which formed the basis on which both Am and Az were found to be in need of protection. The court finds that the Society's plans are in keeping with both children's best interests. The respondents did not successfully impugn this evidence.

(b) a statement of the criteria by which the society will determine when its wardship or supervision is no longer required;

N/A

(c) an estimate of the time required to achieve the purpose of the society's intervention;

The court considered the Society's evidence regarding adoption and finds that it is realistic and that it is in both children's best interest. The evidence is that the Society will find an adoptive home for Am and Az within a reasonable time.

(d) where the society proposes to remove or has removed the child from a person's care,

(i) an explanation of why the child cannot be adequately protected while in the person's care, and a description of any past efforts to do so,…

The court relies on the reasons stated for its finding of Crown wardship to find that the Society's evidence has established that the children cannot be adequately protected if returned to the respondents' care. The court relies on the same reasons to find that the Society made genuine, significant efforts to reunify the children with the respondents, but the respondents did not respond in such a way as to make this option one that would be in the childrens' best interests.

(ii) a statement of what efforts, if any, are planned to maintain the child's contact with the person;

This factor is moot because the court ordered Crown wardship with no access.

(e) where the society proposes to remove or has removed the child from a person's care permanently, a description of the arrangements made or being made for the child's long-term stable placement; and

The Society's evidence shows convincingly that it has made and is poised to make detailed arrangements for the childrens' long-term stable placement.

(f) a description of the arrangements made or being made to recognize the importance of the child's culture and to preserve the child's heritage, traditions and cultural identity.

The Society's evidence with regard to how it will search for an adoptive home that recognizes these factors is well thought out. In addition, the evidence shows that they have followed this process with success before with other children. The court is persuaded by their evidence that the Society has satisfied this criterion.

The court acknowledges that the evidence is that it will be a challenge to find a family that belongs to the Nation of Islam, but the court is persuaded that the Society is determined to make strong efforts to find such a family. If they cannot, they will find a family that very closely approximates Am and Az's religious background and that the Society will endeavour to teach and guide that family in this regard.

Section 57 (2) and (3) Analysis:

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

The evidence is clear that the Society made genuine efforts to place the children within the respondents' family circle and with friends that might be able to care for the children, but these efforts were unsuccessful.

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

After considering all of the evidence the court is satisfied that there is no other alternative that would be less disruptive to the children and in their best interests than Crown wardship.

Section 37 (3) Analysis:

The court has also considered the relevant portions of s. 37 (3) of the CFSA. 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.

The court finds that the evidence proves that Am and Az's physical needs are best taken care of by the Society's plan for Crown wardship and adoption. Although given plenty of opportunities, the respondents are unable and/or unwilling to provide the required nutritional care to the children.

As far as mental and emotional needs go, these would be jeopardized by the respondents should they have care of the children and subject them to an inadequate diet that would result in their physical harm. The evidence shows that the children are by and large happy in their current foster placements. Az has never lived with the respondents and Am has been away from them since 2011. In these circumstances, the court finds that the Society plan for Crown wardship and adoption addresses these particular needs of the children in an effective manner. It gives them permanency and a stable environment, in spite of it being away from the respondents.

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

The childrens' development in these areas is currently fine and the Society's plan adequately provides for this to continue since they would be placed in an appropriate adoptive home.

3. The child's cultural background.

The evidence given by Ms. Helgason shows clearly that the Society has vast experience in placing children for adoption while respecting their cultural and religious backgrounds. She explained in detail the process that the Society employs in achieving as close a match as possible. She conceded that in the case at bar, it will be a challenge to find an adoptive family that belongs to the Nation of Islam. However, she said that if they cannot, they will assist the prospective adopters to learn about the Nation of Islam and help them to raise the children accordingly.

The court is persuaded by the Society's evidence that both the childrens' cultural and religious backgrounds will be appropriately respected in the adoption process.

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

See #3

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.

While this is an important consideration with regard to the childrens' biological parents and family, the court finds that after weighing all of the evidence, and lack thereof, it is not in the best interests of Am or Az to remain with their parents in any capacity.

In contrast, since they are both thriving in the foster home, this shows that these needs are being adequately taken care of now with the help of foster parents. And all indications are that they will continue to be adequately taken care of in the future according to the Society's plan for Crown wardship and adoption.

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.

Undoubtedly, Am and Az have emotional ties to their parents. The evidence is meagre in this regard, however. Since the respondents did not provide any evidence concerning this, one is left to infer what one can from scant references to what the foster parents say about the childrens' moods when they go and return from weekend visits with their parents and from a few comments made by the children.

There is no evidence with regard to the childrens' relationships or emotional ties to their extended family.

In these circumstances, the court finds that there is no evidence on which to conclude that the childrens' relationship and emotional ties to their parents, other family members, or to any members of their community are so strong that it would not be in their best interests to discontinue them by way of Crown wardship and adoption.

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

Both children have benefitted from the continuity of care that the Society has provided for them during the recent past years. It would be best if the foster parents were in a position to adopt the children, but they are not. This relationship will be interrupted by a Crown wardship order and a subsequent adoption. But it would also be disrupted if the court ordered that the Society return the children to the respondents.

In the circumstances of this case, there is no way to ensure the continuity of the childrens' current care arrangement. However, the court is satisfied that the Society's plan best ensures that a new care arrangement that will be in the childrens' best interests can achieved as soon as possible.

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.

After considering all of the evidence, and for reasons stated below, the court finds that the merits of the Society's plan for adoption for the children is far superior to the children being returned to the respondents.

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

This is not applicable in the case at bar.

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

There is no direct evidence of this, but one can infer that living in limbo has a disquieting effect on the children. An order of Crown wardship and a subsequent adoption will serve to end this uncertainty.

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.

The court finds that the evidence shows that there is a likely risk that if Am and Az were returned to the respondents they would suffer harm due to lack of proper nutrition. In contrast, the court finds that the evidence shows that it is in their best interests that they be made Crown wards and adopted as soon as possible.

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

Considering the evidence of the respondents' refusal to admit that they did anything wrong in the death of M, and of their lack of cooperation with the Society to improve their dietary practices, the court finds that the degree of risk to Am and to Az remains high if they were to be in the care of the respondents.

13. Any other relevant circumstance.

The court cannot think of any other relevant circumstances. In paragraph 25 of her written submissions, Ms. Osadet argued several points in this regard, which the court will address.

i. The Society lacked trust in the respondents.

Ms. Osadet does not give any examples of this. The court finds that there is no evidence of an unreasonable lack of trust by the Society in the respondents. Any mistrust demonstrated by the Society was as a result of the respondents' lack of genuine cooperation with the Society's efforts to help them and their children.

ii. The Society's refusal to accept that the respondents have addressed the protection concerns.

Based on the evidence in the trial and for the reasons given below for ordering Crown wardship, the court finds that there is no merit to this submission.

iii. The Society claims that there is a "festering mistrust" between the respondents and the Society.

The Society blames the respondents for this. Based on the evidence in the trial, the court finds that there is a "festering mistrust" on the part of the respondents towards the Society, not the other way around. The court does not find that it is the Society's fault. It is born of the deep seated mistrust that the respondents have towards the Society.

Final Rulings on Crown Wardship

After considering the relevant factors under the CFSA, the jurisprudence, the evidence adduced in the trial, and counsels' submissions, the court finds that the Society proved on a balance of probabilities that Az and Am should be made Crown wards. Therefore, the court orders that they are made Crown wards. All existing access orders are terminated.

The reasons for this finding are first, the evidence shows that even after the death from malnutrition of their child, M, for which they were convicted of manslaughter, the respondents have not changed their ideas or behaviour sufficiently regarding how to feed their children. Second, the evidence demonstrates that the respondents profoundly mistrust the Society and all who work for and with it. This has resulted in a long standing lack of genuine cooperation by the respondents with the Society's efforts to try to help them to adopt better dietary habits.

Lack of Change of Behaviour

The respondents suspect that the medical personnel that dealt with M may have contributed to her death. This is a clear indication that they blame others for her death.

Ms. H blamed the cortisone cream that the doctors prescribed for M when she had eczema for causing the wheezing in her chest. She told Ms. Vieira, one of the Society workers, that she disagreed with Dr. Huyer's finding that among the causes of death were complications due to rickets. She said that they had a healthy lifestyle.

The respondents resisted many efforts on the part of the Society and the doctors that it worked with to run tests to check Am's health. For example, although the court acknowledges the importance for the respondents of attending to the burial of M as soon as possible, they decided to both concentrate on that rather than one of them taking their surviving child to the hospital for a SCAN assessment while the other one attended to the preparations for the burial.

Ms. Vieira told Mr. H that it was important for Am to be examined because of the cause of death of M. One would think that the respondents would understand the importance of ensuring Am's health and that examining her without delay was important. They finally agreed to take her to the hospital after Dr. Cory called them and stressed the urgency of the matter.

The respondents stalled getting Am's blood work done to the point that Dr. Cory was very concerned that it was taking such a long time. They finally took her to another doctor who did the blood work, but Mr. H initially refused to tell Ms. Ruddock who the doctor was.

Counsel for the respondents submitted that they believe that "[ Am ] was being provided with a toxic dosage of Vitamin D and that the symptoms that [ Am ] experienced, were possibly a result of the overdose on Vitamin D".

Counsel cited Dr. Marignani's evidence on pages 78, 79 of the May 5, 2014 transcript in support of these conjectures. Dr. Marignani testified that it is possible to overdose on vitamin D by taking too much in supplements. She said that the symptoms of this are diarrhea, nausea and lethargy.

However, there is no evidence that Am was provided a "toxic dosage" of vitamin D or that this explains any "symptoms" that she experienced. There is no evidence that she experienced these symptoms after she came under the care of the doctors at the Hospital for Sick Children and started to boost her vitamin levels with supplements. This is pure guesswork on the part of the respondents. It is also another indication of how they blame others for their childrens' health problems.

The respondents resisted getting Az tested as soon as possible for maple syrup urine disease despite having been told that the disease could be life threatening if not treated immediately.

The evidence is replete with examples of the respondents indicating that they think that the Society and others are out to get them. Ms. Ruddock testified that the respondents believe that there is a conspiracy regarding M's death. Regarding Am, Mr. H told Ms. Ruddock that he knew what was going on and that there was a "media blackout".

When Am got sick in the fall of 2011 and the doctor said that it might be pneumonia, the respondents refused to give her antibiotics. The evidence of this was that when Am returned from a weekend visit with the respondents the bottle was empty and she told her foster parents that the respondents threw the medication down the sink.

When Ms. Ruddock asked the respondents about this, and how they felt about giving Am medication, Mr. H responded that the court ordered them to give it to her. This makes the court think that absent the court's order, they would not give it to her. When Ms. Ruddock asked about the empty antibiotic bottle, Ms. H said that she accidentally spilled some. This is not a very convincing answer.

Lack of Cooperation with the Society

The court recognizes that s. 1 of the CFSA provides that "while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent". Unfortunately, the evidence shows that after years of strong, genuine efforts on the part of the Society the respondents and the Society have not been able to get along. The court finds that the Society has more than complied with its responsibility under s. 15 (3) (c) of the CFSA.

Therefore, a supervision order, as the respondents request, would not be feasible. In Catholic Children's Aid Society of Toronto v. D. (A.), Curtis J stated that, "A cornerstone of any effective supervision order is trust and clear and accurate communication between the parties".

The respondents' efforts to cooperate with the Society have been limited and grudgingly made. The court is persuaded that they were not genuine efforts. One can certainly not infer from the respondents' behaviour towards the Society that they ever trusted the Society and wanted to cooperate with them in the past or that they would in the future.

For years, the respondents have fought the Society's efforts to assess their abilities as parents and to help them change their dietary habits. The respondents are profoundly distrustful of the Society. They think that the Society is out to get them, that there is a conspiracy against them and that they are the subjects of prejudice and negative bias. This explains their lack of genuine cooperation with the Society's efforts to assist them to change so that their children would be protected if placed in their care.

The respondents refused at first to sign consents to allow the Society and the hospital to communicate with each other about the results of tests on Am.

It turned out that Am had similar health problems to those that led to the death of M. This indicates that the respondents were continuing to give their remaining child an insufficient diet. But they were not being cooperative with the Society or the doctors in trying to address the problem. It appears that they did not think that there was a problem.

The respondents turned down the Society's offer to buy vitamins for Am. They refused to consent to blood work for Am. They failed to give Am vitamins as prescribed by Dr. Cory. Mr. H said that they were waiting for another doctor's recommendations. They stubbornly caused a delay that placed Am's health in jeopardy.

The evidence shows that the respondents stalled the Society with regard to administering vitamins to Am. They were upset with the finding that Am suffered a calcium deficiency, which was also found in the death of M. They did not want to facilitate contact between the doctor to whom they had taken Am and Dr. Cory.

The respondents behaved in this manner despite the evidence that when the Society apprehended Am, she was so depleted that she could not run and play with other children. She cried and complained about pain in her legs. She was obviously in terrible health, but the respondents still resisted the Society's efforts to have her examined and treated. She stuttered, but the respondents had done nothing to address this issue. The foster parents took her to a speech therapist.

The evidence shows that this type of resistance by and large characterized the respondents' relationship with the Society from the beginning to the present. They have had numerous workers, but have not gotten along with any of them. There is even evidence that Am resisted cooperating with medical procedures and tests. It is hard not to believe that this was on the instructions of the respondents.

The evidence is clear that at the beginning and for a couple of years afterwards the Society was trying to work with the respondents to reunite them with Am. However, after two years of frustrated efforts, the Society decided to seek Crown wardship.

In addition, the respondents have resisted the Society's efforts to place the children with family members.

There have been various times when the respondents, principally Mr. H, has made overtures towards the Society that indicated that he and Ms. H were willing to cooperate, but these efforts have been short lived. They reluctantly participated in family group conferences. They always resisted the idea of a parenting capacity assessment. They felt that it would infringe their right to remain silent with regard to the manslaughter charge that they were facing.

The respondents have behaved the same way with every Society worker that has handled their case. Therefore, it is unlikely that the problem between the respondents and the Society is one of a personality clash with one or even two particular workers.

Through their lawyer, the respondents argue that they have changed but the Society will not recognize it. But the respondents did not testify or provide any sworn evidence from them personally. Therefore, the court does not have any evidence from them personally on which to rely in support of their contention that they have changed and that they are willing to cooperate with the Society.

The court finds that in light of the evidence in the case of how they have behaved, this is a hollow, disingenuous statement that lacks even the whiff of an air of reality. The court rejects it totally.

In fact, the court finds that overwhelmingly, the preponderance of the evidence leads to the opposite conclusion.

There is no evidence that the respondents admit that they did anything wrong in causing M's death, even after they were convicted of manslaughter because she died of malnutrition while in their care.

Mr H told Ms. Mossop that that the Society wants them to admit to having done something wrong. He said that this will never happen because they have not done anything wrong. If they had, all children who have a vitamin D deficiency should be apprehended.

This statement shows clearly the respondents' point of view of their role in M's death. In spite of her having died of malnutrition while in their care, they did nothing wrong. The statement also explains and lends credence to the evidence of the Society's witnesses who described the respondents' behaviour as ill-informed, stubborn, uncooperative and paranoid.

Finally, it can be inferred from Mr. H's statement that the respondents do not intend to listen to anyone that says that they were responsible for M's death, and that they have to change their dietary practices, be they Society workers, lawyers or doctors. Since this is the case, it is obvious that the respondents would continue to parent Am and Az as they did M. This would certainly not be in the childrens' best interest. And this is the reason that the court made the order for Crown warship for both children.

Access

The respondents did not ask for an order for access in the event that the court made an order for Crown wardship. Nor does the court have any evidence from them on this issue. However, out of an abundance of caution the court thinks that it should address the issue briefly.

In this respect the court is guided by sections 59 (2) and 59 (2.1) (a) of the CFSA:

(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated. 2006, c. 5, s. 17 (2).

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

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

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).

Once the court makes an order of Crown wardship it will order access to the children by the parents only in exceptional circumstances. Justice Katarynych held in Catholic Childrens Aid Society of Toronto v. B. (N.) that:

As a matter of law, access attached to a Crown wardship is the exception, not the rule. The principle of preserving family ties cannot come into play in a grant of access unless the parent brings herself within the requirements of the statute for such an order. See section 59 of the Act.

It is plain that the court is not permitted to attach access to a Crown wardship order if it is likely to impede this child's opportunities for adoption. There is reason for that. Parents have rights in order that they may fulfil their obligations towards their children. When they are relieved of all of their obligations, they lose the corresponding rights, including the right of access. After a permanent guardianship order is made, access is a right that belongs to the child and not to the parents.

The respondents did not adduce any evidence to support a claim for access in the event that the court made an order of Crown wardship. The court canvassed the evidence in the trial, but the court does not find any evidence from any source sufficient to satisfy the test set out in sections 59 (2) and 59 (2.1) (a) of the CFSA. The court finds that the respondents did not discharge the onus upon them to show that access to their children would be "beneficial and meaningful" to the children and that it "will not impair the [children's] future opportunities for adoption". Therefore, the court orders that the respondents shall not have access to Am and Az.

Summary of Rulings

First, the court will indicate what rulings and findings were made prior to this trial.

1. The court found Am to be in need of protection on April 17, 2013. This was pursuant to s. 37 (2) (b), (h) of the CFSA.

2. The court made the statutory findings with respect to Az on August 11, 2014. This was done on consent. The findings are:

   • a. Name of Child: [Az]
   • b. Date of birth: […], 2013
   • c. Gender: Female
   • d. Mother's name: [M. H.]
   • e. Father's name [S.H.]
   • f. Religion: Islam
   • g. Native Status: Not an Indian or Native person

The rulings made in this trial are the following.

1. Az is a child in need of protection pursuant to s. 37 (2) (i) of the Child and Family Services Act.

2. Az is a child in need of protection pursuant to s. 37 (2) (b) (i) (ii) of the Child and Family Services Act.

3. The court orders that Am and Az are made Crown wards.

4. The court orders that the respondents shall not have access to Am or to Az.

Released: December 31, 2015

Justice J.W. Bovard