Court Information
Court File No.: C81641/15 Date: July 12, 2016 Ontario Court of Justice
Between:
Children's Aid Society of Toronto Applicant
— and —
L.C. (mother) P.S. (father) Respondents
Before: Justice Roselyn Zisman
Heard: June 6-10 and 13-16, 2016
Reasons for Judgment Released: July 12, 2016
Counsel
Katie Skinner — counsel for the applicant society
Nancy J. Thompson — counsel for the respondent L.C.
P.S. — not appearing, service dispensed
Marlo K. Shaw — counsel for Office of the Children's Lawyer, legal representative for the children
Judgment
Zisman J.
1. Introduction
[1] The Children's Aid Society of Toronto ("the society" or "CAS-Toronto") has brought an Early Status Review seeking an order that the children, C.C. born […], 2008 ("C."), T.C. born […], 2009 ("T.") and L.S. born […], 2013 ("L."), be made crown wards without access for the purpose of adoption. The society is agreeable to an order for sibling access.
[2] L.C. ("the mother") seeks an order that the children be returned to her care or that the youngest child L. be returned to her care and that the two older children C. and T.'s time in care be extended for a further 6 months and then be returned to her care. The mother is agreeable to terms of supervision. In the alternative, if the children are made crown wards she seeks an order of access. Counsel for the children supports the mother's position.
[3] The Respondent P.S. ("the father") is the biological father of all 3 children. Service on him was dispensed with. He is currently in jail.
[4] On April 7, 2014 there was a finding that the children were in need of protection pursuant to section 37 (2) (i) of the Child and Family Services Act (" CFSA ") and the children were placed in the care of the mother subject to a 6 month supervision order.
[5] On April 14, 2014 the mother then voluntarily placed C. in the care of the society and shortly thereafter she placed the other children in care.
[6] The children were returned to her temporary care on March 22, 2015. On September 24, 2015 the mother indicated she was unable to care for the children and the children were placed in care where they have remained since that time.
[7] C. has been in the care of the society cumulatively for 19 months and T. and L. have been in the care of the society cumulatively for 18 months.
[8] The issues to be determined are:
Should there be a continued finding that the children are in need of protection and if so, is state intervention necessary?
What disposition is in the children's best interests? An order for crown wardship, a return of one or all of the children to the mother or an extension of the time for the children to remain in care?
If an order of crown wardship is made, should an order for access be made?
2. Brief Background
[9] The mother is 30 years old. She reports a good childhood. She resided with her parents and brother in the Whitby area. Her father worked and her mother was a foster parent. They had many foster children in her home. The mother grew up in a strict and sheltered home. The family attended church regularly. The mother left school when she was only 16 years old as she was not interested or comfortable in school. She obtained a job at a coffee house and has worked in the restaurant industry since that time.
[10] The mother met the father in 2007. She 20 years old and he was 32 years old. The mother was aware shortly after they met that he had been involved in domestic violence with a previous partner and was on the sexual abuse registry as a result.
[11] The Durham Children's Aid Society ("Durham CAS") became involved with the mother in […] 2008 after the birth of C. due to the father's assault of the mother and his significant history of domestic violence.
[12] Since that time the Children's Aid Society of the District of Nipissing and Parry Sound ("CAS-NPS") and the CAS-Toronto have been involved due to the significant pattern of domestic violence, the mother's inability to manage the children's behaviour, the mother's inability to follow through with services and concerns regarding the mother's inconsistent commitment to the children.
3. Court Proceedings
[13] Counsel for the society prepared a helpful chart of the court proceedings which was not disputed by other and which I reproduce with some minor changes.
| Date | Proceeding or Event | Outcome |
|---|---|---|
| November 18, 2013 | Protection Application commenced by CAS Nipissing & Parry Sound (dated November 14, 2013); Seeking six month supervision order with mother | First hearing not commenced; adjourned to November 25, 2013 |
| November 25, 2013 | Consent temporary order | Temporary supervision order with the mother, with terms and conditions |
| April 7, 2014 | Consent final order | Pursuant to Statement of Agreed Facts dated March 17, 2014 Finding: 37(2)(b)(i) Final 6 month supervision order with mother with terms and conditions |
| June 3, 2014 | Early Status Review Application filed by CAS Nipissing & Parry Sound seeking 4 month Society Wardship for all three children | Children apprehended May 30, 2014 per mother's request (C. had been in care pursuant to Temporary Care Agreement, April 14, 2014-May 30, 2014) |
| June 4, 2014 | Consent temporary order | All three children placed in temporary care & custody of CAS Nipissing & Parry Sound; access to the mother, supervised or unsupervised at discretion of CAS |
| February 10, 2015 | Temporary Care & Custody Motion brought by Respondent Mother, seeking return of all three children to her care & custody | TCC motion argued; decision reserved until March 2, 2015 |
| March 2, 2015 | Temporary order of Justice Mathias-McDonald | Temporary order that all three children be placed in mother's care and custody, subject to supervision of CAS Nipissing & Parry sound, with terms & conditions, by March 22, 2015 |
| April 21, 2015 | Motion brought by CAS Nipissing & Parry Sound to amend Early Status Review Application to seek 12 month supervision order with mother and to transfer legal proceedings to Toronto | Several adjournments; heard on September 14, 2015 |
| May 7, 2015 | Motion brought by Society to place all three children in care and custody of CAS Nipissing & Parry Sound | Adjourned status quo to May 14, 2015, to allow mother to respond |
| May 14, 2015 | Temporary Care & Custody Motion | Society's motion dismissed; status quo to continue with additional terms of supervision |
| September 14, 2015 | Consent order to transfer Statement of Agreed Facts signed | Proceedings transferred to jurisdiction of Toronto Statement of Agreed Facts signed by mother & CAS Nipissing & Parry Sound consenting to final 12 month supervision order with mother |
| September 25, 2015 | Early Status Review Application commenced by CAS Nipissing & Parry Sound seeking Crown Wardship orders for all three children | All three children apprehended on September 24, 2015 at request of mother First appearance for September 29, 2015 |
| September 29, 2015 | Consent temporary order | Service dispensed with on Respondent father Children placed in care & custody of CAS Nipissing & Parry Sound Access to mother shall be combination of supervised & unsupervised access at the discretion of the Society as best meets the needs and interests of the children Proceeding transferred to jurisdiction of Toronto |
| November 17, 2015 | First appearance in Toronto | Consent adjournment; status quo |
| October 28, 2015 | Respondent Mother files Answer/Plan of Care | Seeking return of children to mother's care and custody |
| April 4, 2016 | Respondent Mother serves Amended Answer/Plan of Care | Seeking return of children to mother's care and custody, subject to supervision order; In the alternative, an extension of the children's time in care pursuant to section 70(4) of the CFSA and an order returning the children gradually to her care & custody subject to a supervision order |
| April 19, 2016 | Assignment Court | Matter set for trial before Justice Zisman, commencing June 6, 2016 |
4. Statutory Framework and Legal Principles
[14] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purposes, sections 1 (1) and (2) the CFSA are also designed to support the autonomy and integrity of the family unit and to recognize that, whenever possible, children's services should be provided in a manner that respects the children's need for continuity of care and for stable family relationships.
[15] Sections 2 (2.2) and 57 (3) of the CFSA requires the court to consider the least disruptive alternative that will adequately protect the child.
[16] As this is a status review application, there has already been a finding that the children are in need of protection pursuant to s. 37(2) (b) (i) of the CFSA.
[17] It is well-settled law that the court must now evaluate whether there is a continued need for state intervention to protect the children and consider what disposition would be in their best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent's parenting ability.[^1]
[18] Section 70 of the CFSA limits the available options for disposition and is a statutory recognition that permanency planning is of paramount importance for children. The section limits the cumulative time in care for children under the age of six years to only 12 months and for children over the age of 6 years to 24 months.
[19] Given those time limitations and the fact that at the time of the commencement of the trial L. who is 3 years old had been in care for 18 months and C. who is 8 years old had been in care for 19 months and T. who is 7 years old and had been in care for 18 months, if there is a finding that the children continue to be in need of protection, the options for disposition are:
a) To return L. to the care of the mother with or without an order of supervision or extend the time she is in care pursuant to section 70 (4) of the CFSA or order that L. be made a Crown ward with or without access;
b) To return C. and T, to the care of the mother with or without supervision or order that they remain in care as they have not yet reached the maximum time limits or order that they be made Crown wards with or without access.
[20] The test is not "beyond a reasonable doubt" or "is the parent completely hopeless." The test is on a balance of probabilities. As no one can predict the future with certainty, the court must decide whether or not the children's best interests are more likely to best be served by being raised by their mother or being made Crown wards.
[21] Section 37 (3) of the CFSA lists a number of factors to be considered in determining the "best interests" as follows:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
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.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
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.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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 degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[22] Section 15 (3) (c) of the CFSA requires that the society attempt to provide services to assist the family before a child is removed from the home. The society is required to, among other things provide guidance, counselling and other services to families for protecting the children or for the prevention of circumstances requiring the protection of children.
[23] Section 56 (d) (i) of the CFSA requires that the society must describe their efforts to ensure the child's protection while in the parents' care. Prior to making an order that would remove the child from the care of a parent, pursuant to section 57 (2) of the CFSA the court is required to ask what efforts the Society made to assist the child before intervention. As already mentioned, section 57 (3) states that the court should make the least disruptive order that will adequately protect the child.
[24] While the child's best interests are always the primary consideration, these provisions ensure that removal of the child is viewed as a last resort and that where possible, families are provided the support and skills they require to parent their children in the home safely and effectively.
[25] Once a child has been made a Crown ward, section 59 (2) of the CFSA provides a statutory presumption against access unless the person claiming access can satisfy the court that the relationship between the person and the child is beneficial and meaningful to the child and that the ordered access will not impair the child's future opportunities for a permanent and stable placement.
[26] The society took the position that given the ages of the older children, the complex needs of these children and the fact of the sibling group that there should be no order as to access as it might be a barrier to their future opportunity to be adopted.
[27] In reaching my decision I have considered and applied these principles. I have also considered that a crown warship order is the most profound order that a court can make. The order should only be made "with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies."[^2]
5. Evidence of the Pattern of Domestic Violence
[28] The mother executed Statements of Agreed Facts on March 17, 2015 and September 14, 2015 outlining her history of involvement with the father and another partner. In her evidence she did not attempt to diminish the concerns about her relationship with the father. Further evidence was also presented with respect to the mother's relationships with another partner.
[29] The father is a violent offender and has been convicted of several serious assaults both physical and sexual. He is on the sexual offender registry.[^3]
[30] The mother testified that she was aware that the father was convicted of violent offences against a previous partner and has 2 other children to whom he has no access. The mother testified that he had been sentenced to 4.5 years with respect to his relationship with his former partner and had been released after serving 2.5 years. When she met him she was young and believed that people could change.
[31] Durham CAS became involved with the mother shortly after C. was born in […] 2008 as the father assaulted the mother in the hospital. The mother testified that this was the first time he had been physically violent with her and the dispute was about the name for C. The mother testified that he was convicted of assault and spent about 8.5 months in jail.
[32] Upon his release, they reconciled and she became pregnant with T. The Durham CAS insisted that the mother move closer to her parents in the Parry Sound region or C. would be apprehended.
[33] In August 2009, the mother moved to the Parry Sound region and the CAS-NPS monitored the supervision order for the Durham CAS.
[34] According to the affidavit of Sherry Klunder, a society worker for the CAS-NPS, on November 4, 2009 the father was convicted and sentenced to 18 months incarceration followed by 3 years of probation.[^4]
[35] In December 2010, the mother obtained a custody order and the society terminated its involvement as the father was incarcerated.
[36] In April 2011, upon the father's release, the mother testified that the father found out where she was living and showed up all of the time. He apologized and he seemed remorseful. The mother testified that she wanted to be a family and wanted the children to have a father. Although they were not living together they planned to work things out. The father was charged with a breach of probation as he was not permitted to have contact with the mother and spent another 4 or 5 months in jail. The Durham CAS again closed their file as the father was incarcerated.
[37] When the father was released from jail the mother executed a revocable consent so that she could have contact with him.
[38] In about December 2012, the mother left the Parry Sound area and moved to the Durham region in an attempt to again reconcile with the father. The mother lived with the father in his parents' home. She became pregnant with L. who was born on […], 2013.
[39] The relationship deteriorated quickly. The mother testified that the father did not help her with the children, they fought about money and if she did not give him money he would hit her. The paternal grandparents were aware of what was happening and told her not to go to the police and one time blocked her from going to report what was happening.
[40] In May 2013, the Durham CAS became involved due to a report from the father's probation officer. Despite the fact that the father was assaulting her, the mother did not advise the children's aid society or the father's probation officer.
[41] In June 2013, during an argument the mother had with the father, T. was hit trying to protect the mother and L. who the mother was holding at the time flew out of her arms. The mother reported this incident to the police but the father was not arrested as he fled the jurisdiction. For her safety and the safety of the children the mother and children went to a shelter. In July 2013 the mother and the children again relocated to the Parry Sound area to be closer to her parents and the file was transferred to the CAS-NPS.
[42] In August 2013, the mother signed a safety plan with the CAS-NPS and agreed that she would have no contact with the father and that she would report any contact to the CAS-NPS.
[43] The mother set up a fake Facebook account. She testified that she did this so that she could try to find out where the father was and obtain proof if he threatened her. She felt that the police were not doing anything to find the father. The father eventually contacted her through Facebook and then somehow found her telephone number and called her. As she heard his sister in the background she assumed he was in Calgary where his sister lived. The mother testified she felt it was safer to speak to him so she could keep track of him. She testified that she did not disclose her contact with the father to the society or the police as she was working on confirming where the father was and she felt safer knowing where he was.
[44] On October 27, 2013, the mother told Ms Klunder, her family service worker and the police that she had been in contact with the father. She testified that she advised them of her contact as the father threatened to kill her and the children if she did not come to Calgary.
[45] Ms Klunder wanted the mother and children to go to a shelter for their safety immediately. The mother testified that she and the children were ill that day but she did go on November 2, 2013. The mother admitted in cross-examination that she went as the society threatened to remove the children if she did not go to the shelter.
[46] On December 6, 2013 the father who had been on the run since June 2013 was arrested in Calgary. According to the mother, he was charged with uttering threats, assault and 5 breaches of probation. She testified that he pleaded guilty and was sentenced to 2 years in jail.
[47] On May 29, 2015 the father was released from jail. On July 14, 2015 the father attended at the mother's workplace and tried to block her getting into her car. The mother told him that she was not going to resume a relationship with him, that she did not love him and would not risk losing the children. The mother testified that she told the father that if he contacted her again she would call the police. The mother testified that she did not tell the society because she did not want them to know that the father contacted her and she did not contact the police as he had not made a threat.
[48] On July 18, 2015 the father sent the mother a text message threatening to rape her. The mother notified the police and the father was arrested. The father is currently in jail facing charges of uttering threats and 6 charges of fail to comply. The mother testified that although the father pleaded guilty he disputed the facts underlying the charges and she testified for 3 days during the sentencing hearing. It is the mother's understanding that the Crown is seeking to have the father declared a dangerous offender.
[49] During a criminal court attendance in March 2016, the mother testified that the father mouthed a death threat to her while passing her in the courthouse hall. She reported this incident to the police and the father is now facing a new charge for uttering death threats and another trial date is set for this charge.
[50] The mother testified that she has not been in a relationship with the father since the last separation in June 2013 and has no intention of resuming a relationship with him.
[51] There was evidence with respect to the mother's relationship with another male, D.M.
[52] On May 30, 2014, after the mother placed all of the children into the care of the society, the mother moved into the home of D.M. who was someone she had previously known for about 10 years through her church. The mother testified that she was not aware that he had a history of domestic violence until a society worker advised her that the society had been involved for a few months due to concerns about domestic violence with a previous partner. The mother did not advise the society about the relationship as she denied that it was a romantic relationship and she was only moving in with him temporarily. But the mother testified that he thought they were in a relationship. In July 2014 the mother advised that she was no longer in any type of relationship with D.M. and that she had moved to Oshawa into a friend's apartment.
[53] On January 22, 2015 the children disclosed to the society that while they had been on a visit with their mother that D.M. had been left to care for them while the mother went shopping. The mother denied this.
[54] On April 30, 2015 D. M. attended at the mother's home and according to the mother there was a dispute about money she had lent him and he put his hand through a window. The children who had been returned to the mother's care about a month earlier, were in the home when this happened and did not actually see the incident. However, they saw the blood as the mother had asked T. to call an ambulance and L. ran through the blood.
[55] The mother testified that she stopped talking to D.M. and he has no way of contacting her except through email. There was no evidence that the mother resumed any type of relationship with D.M.
[56] The mother testified that she is not currently in a relationship.
[57] The mother's counsellor, Tamara Elliott testified that the mother was having written communication with two males, one of whom had previously been abusive to her. Although she ended contact with one of the males, she was still in contact with the other male who had been abusive to her but she did tell him that she was not interested in a romantic relationship. The mother told Ms Elliott that she is not interested in or ready to have a relationship. But the mother also told Ms Elliott that she has a hard time ending relationships with people so she is limiting contact by saying that she is busy or by not replying to texts. Ms Elliott agreed that this was a concern and advised both the mother and the society of her concern but this is something she and the mother are working on. Ms Elliott did not know the identity of either male and the mother was not asked about the identity.
6. Services to the Mother and Children
[58] Much of the evidence in the trial focused on the services provided to the mother and the children or the lack of appropriate services and the lack of follow through by various workers from the different societies that were involved. I will therefore review those services by the various societies and the workers who provided those services.
[59] There was no evidence with respect to any services offered to the mother and children while the Durham CAS was involved. The Statement of Agreed Facts filed do not outline any services offered by that agency.
[60] The CAS-NPS was involved with the mother and children from November 2013 to March 2015 and during this timeframe the children were both in the mother's care and the care of the society. The evidence with respect to services was outlined in the Statement of Agreed Facts filed. Evidence was also provided by Sherry Klunder who was the family service worker from July 15, 2013 to May 30, 2014, Debbie Hill who was the child service worker from June 5, 2014 to March 22, 2015 and Deanne Bernard who was the support worker who supervised 7 access visits from May to September 15, 2014.
[61] The services provided and offered were as follows:
a) The services of the family service worker, child service worker and support worker during access visits;
b) While the mother and children resided in a shelter from November 2, 2013 to about November 25, 2013 the mother was provided and participated in programs for herself and children related to domestic violence;
c) After the mother left the shelter, which was permitted by a court order, the mother and children continued to attend the programs at the shelter but by January 2014 she stopped attending due to the distance and the late evening times of those programs. The society workers agreed that it was not practical for the mother to continue to attend;
d) The services of Esprit Place, which was close to where the mother and children were residing, was recommended for counselling with respect to domestic violence. The mother followed through with only one appointment but was reluctant to participate;
e) The mother and children participated and completed the TIPS program which is an in-house service assisting parents in the management of children's behaviour;
f) A letter of support for subsidized housing and Ontario Works was provided;
g) The mother obtained a prescription for Ritalin from the children's doctor for C. and T. but discontinued the use due to the effects on the children;
h) The mother attended 2 or 3 appointments in October 2014 with a counsellor through the John Howard Society with respect to domestic violence but did not follow through due to a conflict with the counsellor;
i) The mother completed the 8 week Active Parenting program through the John Howard Society;
j) Ms Klunder confirmed that she was aware that on September 24, 2014 in a court attendance the counsel for the children requested that the children commence counselling and play therapy specifically related to witnessing domestic violence;
k) While the children were in care, they attended Sunny Sundays a 8 week program for children exposed to domestic violence; and
l) While the children were in care, the foster parents were provided with the assistance of the society workers and a resource worker. The foster parents were also provided with a child and family support worker to educate the foster parents about the impact of domestic violence and ways to effectively care for children who have been exposed to this type of trauma.
[62] The mother has been involved with the CAS-Toronto from March 22, 2015 to the present time and during this timeframe the children have been in the care of the mother and in care of the society. Evidence with respect to services was provided by Taia Gjecko who was family service worker from March 27, 2015 to July 2015. Then the file was transferred to Jackie Santos who was the family service worker from July 29 to December 2, 2015 and then the file was transferred to Michelle McQuillan who assumed carriage of the family service file as of December 2, 2015 and became the child service worker as of January 8, 2016. Cathy Potwin was the child service worker from September 29, 2015 to January 8, 2016. Kristen Peters is a child and youth worker who has been supervising the access visits since November 2015.
[63] During Ms Gjecko's involvement from March to July 2015, the following services were provided or offered:
a) In April 15, 2015 the mother was advised to make a referral to Aisling Discoveries. The mother did not contact Aisling until May 11, 2015 and then did not hear back from Aisling until about June 9 th . The intake appointment was conducted by telephone and she was directed to call YWCA to access the Here to Help program. On June 24 th the mother heard back and was told that the next Here to Help program would commence in September 2015;
b) On June 4 th , Ms Giecko provided mother with additional resources namely, the society's after-hours emergency contact information and shelter information;
c) Offered to attend with the mother at the children's school to determine if there was any available assistance;
d) Offered summer camp for C. and T. but the mother wished to pursue a church camp that she had attended. By the time mother was able to arrange funding neither camp was availability;
e) Advised mother to attend with her family doctor or at a walk-in clinic to obtain a referral to CAMH for an assessment of the children. The mother attempted to attend but due to the children's disruptive behaviour she did not re-attend and accordingly the referral then was not made;
f) Ms Gjecko contacted various agencies to obtain assistance pending the availability of Aisling being involved but no other services were appropriate or available;
g) The mother contacted Aisling Discovereis to attempt to obtain other services while waiting for the Here to Help program but she was told nothing else was available;
h) The mother contacted and attended only one session at Tropicana for individual counselling for domestic violence. The mother testified she did not return due to her inability to arrange child care; and
i) Ms Gjecko provided the mother with telephone numbers for a free income tax clinic and food banks. The mother was able to straighten out her income taxes so she could obtain the child tax credit and apply for subsidized daycare.
[64] As indicated, Cathy Potvin was the child service worker from September 2015 to January 2016 and Jackie Santos was the family service worker from July 2015 to December 2015, the following services were provided or offered:
a) Ms Santos first met the mother and children at a home visit on August 6, 2015. Despite being told about the mother's difficulties in managing the children's behaviours, that the mother was still on a waitlist for Aisling Discoveries and the Here to Help program and that she had only attended one meeting at Tropicana for counselling due to child care difficulties, no suggestions were made for any other services. During several subsequent meetings, no evidence was provided with respect to any services offered;
b) After the children were apprehended, a Plan of Care meeting was held on October 29, 2015 and a recommendation was made for all 3 children to have a psychological assessment. The referral for the assessment was not made until November 27 th [^5] due to each worker assuming the other worker had the responsibility for making the referral;
c) At the Plan of Care meeting on October 29, 2015, a recommendation was also made for a clinical referral for counselling. The children were in a foster home run by Milestones who sent the referral form that was never returned by either worker during this time frame; and
d) The foster mother was provided with services of a resource worker from Milestones and the services of the child service worker;
[65] During the timeframe when Ms McQuillan was involved that is, since December 2015, the following services were provided or offered:
a) The psychological assessments for the children were conducted on February 26 and March 3, 2016 and the reports provided on April 4, 2016;
b) C. was placed on medication and special assistance arranged for him through the school;
c) T. was placed on medication and special assistance arranged for him through the school;
d) Ms McQuillan competed the referral forms for counselling for C. and T. on April 7, 2016 and counselling began in May 2016 on an alternate weekly basis for each child;
e) C. and T. have been referred for a psychiatric assessment to be done in October 2016;
f) A recommendation was made for a referral to the WRAP program through the Women's College Hospital and the Barbara Schliffer clinic. Although the mother followed up with these referrals neither were able to offer services to the mother. No other services were recommended;
g) The mother self-referred herself to counselling at the Scarborough Centre for Healthy Communities and began counselling with Tamara Elliott in December 2015;
h) Ongoing support is offered to the mother during access visits including some one on one visits with the children; and
(j) The foster mother arranged for the children to attend a weekly Christian based bible activity program and also arranged extra-curricular activities for C. and T.
7. Summary of Evidence with Respect to Access Visits
[66] During the time the children were in care of the CAS-NPS, the mother was inconsistent initially visiting in April to June but by July 2014 her visits were consistent.
[67] The affidavit and evidence of Deanne Bernard outlined her observations of 7 access visits between May to September 2014.
[68] Overall, she concluded that the mother met the "minimal level of appropriate parental behaviour". The mother demonstrated the ability to show affection and attention towards the children and the children in turn relished this. However, the mother's inconsistent parenting strategies, her inability to set boundaries and her reluctance to accept direction left the children to escalate their misbehaviours making visits increasingly challenging for her.
[69] Ms Bernard in cross-examination agreed that the visits and contact with the mother was meaningful to the children.
[70] The affidavit and evidence of Debbie Hill who was the child service worker identified similar concerns during access visits. She also observed that the mother had difficulties dividing her attention between the children and this sometimes caused her not to observe safety issues with the other children. Ms Hill expressed that the mother often made unrealistic threats to the children such as threatening not to come to any more visits if the children would not listen.
[71] The mother testified that she did not find support offered to her during the access visits was helpful.
[72] Since September 2015 the children have been in the care of the CAS-Toronto. The evidence of the child support and youth worker, child service worker and family service worker noted the following with respect to the mother's access visits:
a) The mother attends visits on a regular and consistent basis;
b) The mother often attends with snacks, treats and activities for the children;
c) The mother attempts to engage the children in a variety of appropriate discussions and is affectionate during the visits;
d) The mother regularly makes herself available to meet with service providers and is often receptive to the support and suggestions staff make and at times is able to try and implement those suggestions during the visits;
e) The mother has often been able to demonstrate consistency when being asked to redirect some of the children's difficult and challenging behaviours. However, the children are generally not receptive of this, despite the mother's efforts;
f) C.'s behaviour is the most challenging and he often attempts to engage the mother and his siblings in inappropriate activities, inappropriate content of conversation and risky behaviours. As a result the visits easily escalate and create a toxic environment;
g) At times, T. is able to follow through with the mother's requests although he can also be difficult and challenging when the mother tries to redirect his behaviour. He is easily influenced by his older brother C. and will often participate by acting out in a negative manner;
h) L. receives a great deal of attention from the mother and so her needs are generally met in the visits. But she can be demanding at times and will often throw herself on the floor in attempts to get her own way or when the mother is attempting to set limits;
i) The mother tries to set limits with the children but they are not always receptive and the mother is not able to consistently follow through with being able to implement limits or consequences;
j) The children are disrespectful to her calling her names and are not allowing her to parent them when she attempts to implement limits;
k) The mother has lost her patience with the children and on one occasion was heard to tell T. that she would "smack" him;
l) A number of times, the child service worker had to tell T. and C. that they may not be able to visit if they do not listen or cannot be safe during visits;
m) Ms McQuillan met with the mother in January 2016 to discuss ways to improve the visits and the mother was open to her suggestions such as limiting the time the children can play with her cell phone, using a different tone of voice when telling the children she does not like what they are doing and trying one on one visits with the children in addition to the regular visits;
n) As of about April 2016, the quality of the visits have improved. Ms Peters who has observed about 10 visits since then testified that C. is more settled, not as impulsive and more affectionate. T. is also more affectionate. The mother is trying to implement parenting skills and the children are more receptive and the staff are stepping back more. The mother is willing to meet with staff and accepting guidance;
o) Ms McQuillan testified that if the visits continued to go well and she received positive feedback from the mother's counsellor she would consider expanding access. In answering my question as to this position being inconsistent with the society's request for an order of crown warship without access, she indicated that until there was a final decision it is her responsibility to continue to think about whether the children can go home and to keep all options open.
8. Summary of Evidence with Respect to the Children
[73] While the children were in the care of the CAS-NPS it was the evidence of the workers involved that they did not see the need for a psychological assessment despite the evidence from the mother, the foster parents and school about concerning behaviours.
[74] When the case was transferred to the CAS-Toronto, the workers were surprised that an assessment had not been done. Dr. Fitzgerald who conducted the psychological assessments of the children testified that he would have recommended an assessment earlier and that individual counselling and supports would have benefitted the children.
[75] C. who is 8 years old is bright with good potential in terms of his cognitive and academic development. However, he was found by Dr. Fitzgerald to have difficulties with his emotional regulation and low tolerance for frustration. He was diagnosed with Attention Deficit Hyperactivity Disorder as well as Oppositional Defiant Disorder that could evolve to a Conduct Disorder without proper guidance and direction.
[76] His current foster parent testified that when he initially came into her home his behaviour was challenging; he was angry, used inappropriate language, displayed sexualized behaviour and language and was aggressive with his brother but that he has responded well to the routines and discipline in the home. She testified that in November 2015 he threatened to kill himself and was taken to the hospital but it was determined that this was not a real threat.
[77] T. is 6 years old and was assessed by Dr. Fitzgerald to be exceptionally bright and that he has considerable academic potential. Although attention problems were noted, Dr. Fitzgerald did not make a diagnosis and felt that T. should be monitored. Subsequently, the society's medical doctor did make a diagnosis of Attention Deficit Disorder and T. has been prescribed medication. It was Dr. Fitzgerald's opinion that socially and emotionally T. lacked effective interpersonal skills and would benefit from ongoing support to help him learn to more effectively engage with others and relate to them in a mutually respectful manner.
[78] The foster mother also testified that T. had issues with aggression and inappropriate language when he came into her home. But he has adjusted fairly well. He disclosed self-harm and was also taken to the hospital and was assessed as having possible post-traumatic stress disorder. A psychiatric assessment is pending.
[79] Both C. and T. have just commenced individual counselling with Jessica Ticar. T. spoke about being angry at his mother but also identified her as a positive support. C. spoke about his mother being an important person in his life. He expressed thoughts of self-harm and said that he had been serious about hurting himself. C. told Ms Ticar that L. is sad and cries after visits with the mother but he would not explore his own feelings about his mother and his visits.
[80] Ms Ticar testified that she is just beginning to develop a trusting relationship with the children. She will be working on helping them address the underlying pain and trauma of being exposed to domestic violence. She will try to help them understand their mixed and confused feelings about their mother. Her counselling services are provided through Milestones and if the children were moved out of their foster homes she would not be able to provide her services through that agency. She also testified that if a recommendation is made and if she has the time she could see T. and C. on a weekly basis. She could not comment on when family counselling would be appropriate as she is just at the beginning of developing a safe and trusting relationship with T. and C. She testified that the benefit of family counselling is to help develop healthy relationships and help the family move forward.
[81] L. who is 3 years old was also assessed by Dr. Fitzgerald. She was assessed as having some developmental lags in terms of her language and her overall cognitive ability was within the borderline range of functioning. She was found to have mild oppositionality with disruptive behaviour with a propensity for aggression. Dr. Fitzgerald felt that her behaviour could be a result of witnessing domestic violence and that her cognitive abilities may improve.
[82] The foster mother described her as having adjusted fairly well to the routines in the home. She is mostly a happy and loving child but she can be oppositional and aggressive if she does not get her own way.
[83] The foster mother testified that the siblings are all close to each other and T. and C. are protective of L. T. and C. have told her they want to go home but at other times have said they wish to stay in her home for a few years.
9. The Plan of the Society
[84] The society's plan is for the children to remain in their current foster home until they are adopted.
[85] The society stresses the need for permanency for these children who have witnessed considerable instability in their short lives and have been exposed to significant domestic violence.
[86] The foster mother is committed to the children remaining in her care long term but is not in a position to adopt the children.
[87] The society adoption worker, Allison Hannah relied on her affidavit and also testified as did her supervisor Wilma Burke.
[88] Ms Hannah testified that the society does not look at any child as being unadoptable although for a variety of reasons there will be children who are not adopted.
[89] Ms Hannah has been an adoption worker since 2002 she has placed 2 sibling groups of three children. In both cases a child or children were placed with siblings that were already in an adoptive home. According to the statistics, in 2014 the society placed 3 sibling groups of 3 and none in 2015. However, there was no information about whether or not the sibling groups of 3 placed in 2014 had any risk factors or the nature of the placement. Ms Hannah confirmed that the society does not receive frequent requests to place large sibling groups together.
[90] Ms Hannah was not aware of any specific family that would be available for these children and it was "her wish" that they be placed together. Although she understood the benefit of a child's connection to biological family she testified that ongoing access adds complexity to finding an adoptive family. It has also been her experience that the more issues that a child has and the higher the expectations placed on the adoptive parents, the smaller the pool of potential adoptive families there will be.
[91] The statistics prepared by Ms Burke were filed. Unfortunately, despite the number of times this has been an issue in trials, no statistics are kept with respect to the number of children waiting for an adoptive home, the profile of the children waiting to be placed or the length of time children have waited in care.
[92] Further, the statistics are rudimentary. The statistics with respect to risk factors are of little use as they are categorized into very broad risk categories with no breakdown as to overlapping risk factors or any correlation to the ages of the children. The statistics do indicate that of the 60 children placed for adoption in 2015, 28 were placed with either kin or a foster parent.
[93] These children are from a biracial cultural heritage. The statistics and evidence support that the society has been fairly successful in placing children in culturally matched adoptive homes. But again those placements are not broken down into any age groups or with respect to any risk factors.
[94] Both workers confirmed that they expected it would take a couple of years to find a suitable placement.
10. The Plan of the Mother
[95] The mother wished the children placed in her care. Whether all of the children or just L. is placed, she wishes to resume care of her children.
[96] The strengths of the mother's plan is that she loves her children and wishes them to be a family.
[97] The mother acknowledges the struggles she has had with her children and that she exposed them to an unacceptable level of domestic violence.
[98] The mother wants the children to receive the support they need for the domestic violence they witnessed and for the trauma they experienced.
[99] The mother has accepted that she needs supports and counselling to understand the trauma she has experienced and to deal with the symptoms of that trauma. The mother also recognizes that she needs help in recognizing the early warning signs of abuse so that she will not get into another abusive relationship. The mother is committed to her counselling and has been open and transparent with her counsellor and has been prepared to deal with her long standing difficulties on a profound emotional level.
[100] The mother has not been a relationship with the father since June 2013 and has shown the strength to prepare a victim impact statement, testify against him and report his threats against her to the police.
[101] Over the last several months, her access visits with the children have improved as has her ability and willingness to accept suggestions from the society workers.
[102] Despite all of the turmoil in her life, the mother has been able to maintain employment. Although if the children were returned to her care she would take a leave of absence.
[103] The mother also has a good relationship with the children's current foster mother and has not attempted to undermine that placement.
[104] The weaknesses in the mother's plan is that the improvements in her interactions with the children are recent and her counselling has only been in place for the last 6 months.
[105] The mother has a very limited support system. She is currently living with her friend who has a partner who is on disability as is the friend due to some emotional difficulties. Her friend also has a child with some special needs. Although her friend was approved by the society as a suitable caregiver, realistically at most the friend could provide is some limited assistance to the mother.
[106] The mother's plan is to continue to reside in her friend's home with all of the children which again even her friend acknowledged would only be a short term solution for maybe a year or so.
[107] The mother herself suggested that it may be better for T. and C. if they remained in care to continue the counselling they have just begun to receive but she worried if L. was placed in her care what the effect on her boys would be.
11. Analysis
11.1 Is There a Continued Finding That the Children Are in Need of Protection?
[108] The children were found to be in need of protection due to concerns that there was a risk of physical harm due to their exposure to domestic violence. Although I find that the mother would not resume her relationship with the father, there is a risk that she could have another relationship with an abusive partner. Although I found the mother overall to be a credible witness, I found that she was not as open and forthcoming about her relationship with D. M. Even if she was not involved in a romantic relationship with him, the children were still exposed to another traumatic incident involving a verbal altercation, seeing blood and the involvement of the police. Further, even though the mother is not in a relationship with another partner she told her counsellor that she is in contact with two males, one of whom was previously abusive to her and the other who shows signs of being controlling. To the mother's credit, she revealed this to her counsellor and was able to cut off all communication with one of these men and was discussing with her counsellor why she was still in written contact with the other male. Her counsellor does not just provide her with supportive counselling but with psycho-education on common effects of trauma, warning signs of abuse, healthy relationships, cycle of violence and stress management and ways to address her self-esteem.
[109] It has also become evident that the children are at risk of emotional harm especially C. and T. who have expressed wishes of self-harm and suicidal ideation. The children's oppositional and aggressive behaviours may be related to their exposure to domestic violence.
[110] I find that there is a continued need for a finding of need for protection and that the intervention of the society is required. The mother has never expressed any opposition to the involvement of the society and has for a long time sought services for her children.
11.2 What Disposition Is in the Children's Best Interests?
[111] I find that at this time the mother is not in a position to meet the complex emotional needs of the children. The children have just been diagnosed as a result of the psychological assessments, C. and T. have just began counselling and there is a pending psychiatrist assessment. The full extent of their trauma and their needs are still being explored.
[112] The mother was offered many opportunities to engage in her own counselling. In the past, the mother did not engage in any meaningful counselling and never saw the need. The mother finally has been able to understand that she needs such counselling. But she is also still in the beginning stages of her own counselling and although she has been committed to the counselling for the last 6 months she still requires ongoing counselling.
[113] The mother's present plan and the supports she has in place will not be sufficient to meet the needs of the children. In view of the gains the children are beginning to make, there is a risk that disrupting the stability of their placement in the foster home and disrupting their counselling would be detrimental to them.
[114] Despite the bond, affection and love between the children and the mother, C. and T. experience anger and confusion about their relationship with her.
[115] Although given the ages of the children I would not place much weight on their views, nevertheless T. and C. have expressed ambivalent wishes about returning to live with the mother or living for at least several years with the foster family. L. is reported to be sad or cry after a visit with the mother.
[116] Even though I find that the mother is not yet ready to be able to resume care of the children, I am not convinced on the evidence presented that it is in the children's best interests to be made crown wards.
[117] In the referral form submitted to Dr. Fitzgerald he was requested to not only assess the impact of childhood experiences on the children and supports that will be required but to assess any concerns in relation to attachment and the type of contact that the children should have with the mother. Dr. Fitzgerald indicated that he could not comment on the issue of either attachment or contact as he had not seen the children's interaction with the mother or interviewed the mother and that was not the focus of his assessment of the children. This gap in the evidence combined with the lack of appropriate services for this family leaves me with a serious concern that the severance of the children's relationship with their mother is not in their best interests.
[118] I find that the society has not met its mandate to provide services that were required to prevent the children's removal from the care of the mother or once they were removed to provide the services they required to ensure they could be reintegrated into the care of the mother. I make this finding based on the following:
a) While the children were being supervised by the CAS-NPS, they did not receive a psychological assessment. None of the workers involved with the family had even an undergraduate degree in social work or any specialized training in domestic violence or trauma. However, they did not seek out any expert advice when it should have been obvious that based on the children's behaviour and the serious nature of the domestic violence they were exposed to that intensive support and counselling was required;
b) While the children were in the mother's care, the CAS-NPS arranged the TIP in-home service for 8 weeks to assist the mother with managing the children's behaviour. The mother testified that the worker often cancelled appointments and this was not disputed by any society worker. There was no evidence as to the final report or any recommendations made by the worker. The workers did not provide any evidence as to any follow up after this service was completed;
c) Although the mother was referred to individual counselling that she did not follow through with, none of the workers attempted to speak to the mother to try to determine why she was having trouble committing to such counselling or trying to encourage her to follow through;
d) Ms Hill, the child service worker from CAS-NPS, testified that during the time she was involved she thought the children were too young for such an assessment; however, she never sought any expert advice on this issue and based on the subsequent evidence of Dr. Fitzgerald this is not accurate. Further she testified that she did not identify any issues that required an assessment as the children's behaviour, except for their behaviour with the mother, was not a concern. But this was contradicted in her own affidavit where she outlines the concerns of the foster mother and the school. Supports were put in place for the foster mother but those supports were never made available to the mother when the children were in her care;
e) While the children were in the care of the CAS-NPS, although the children attended a group program for children exposed to domestic violence, none of the workers were aware of the credentials of the leader of the group, no report was filed and none of the workers testified that they followed up to determine what further recommendations were made. Given that the children's behaviour did not improve this should have been done;
f) The CAS-NPS did not follow up with the children's doctor with respect to any medication needs of the children especially when they were aware that the mother had obtained a prescription for Ritalin and the school reported that the children were acting like zombies on the medication and then the mother discontinued the medication;
g) The CAS-NPS did not follow up with the request by counsel for the children for the in September 2014 for the children to receive counselling and play therapy;
h) Neither the CAS-NPS or the CAS-Toronto followed up with the mother's request for family counselling;
i) During the 10 months T. and L. and the 11 months C. was in the care of the CAS-NPS they did not receive the intensive services they required. This is despite the evidence of Ms Klunder the family service worker that she was not surprised at the children's behaviour due to the domestic violence they witnessed or the mother's issues with managing their behaviours. But she testified that she was not the child service worker and the issue of an assessment was never discussed with her;
j) Dr. Fitzgerald and the workers from the CAS-Toronto were surprised that the children has not been assessed while in the care of the CAS-NPS. Nor were they surprised about the children's behaviour in view of their exposure to domestic violence.
k) When the children were returned to the mother's care on March 22, 2015 there was no planned integration or supports in place. No family counselling had taken place before the reunification;
l) When the case was transferred to the CAS-Toronto in March 2015, Ms Giecko was the family service worker and yet she was not even aware as to whether or not the children were assessed while in the care of the CAS-NPS. She testified that the mother told her they had been assessed and there were no concerns. Even a cursory review of the file should have alerted the worker to the fact that this could not possibly be accurate. The mother testified that she has been told by a worker from CAS-NPS that the children had been assessed. In any case, when the file was transferred Ms Giecko should have been told or made inquiries as to whether or not there had been an assessment and the results if there was such an assessment;
m) Ms Giecko met with the mother within about a month of the file transfer and provided her with a referral to call Aisling Discovery. Although the mother delayed by a few weeks, there was no meaningful service provided by Ms Giecko with respect to advocating for more expedited service or for any alternatives;
n) Ms Giecko told the mother to attend with her family doctor or a walk-in clinic to obtain a referral to CAMH for a mental health assessment for the children. The mother can certainly be faulted for not pursing an appointment with a doctor for a referral to CAMH. She testified that as she was unable to control all 3 of the children when she tried to go for an appointment and that she never returned. But certainly Ms Giecko should have followed up to see if she could assist the mother with some child care or offered to go with the mother. The same issue arose with respect to the mother attending for her own counselling at Tropicana. Assistance must mean more than handing a mother some telephone numbers to call especially when it was clear to the worker that the mother was overwhelmed with meeting the needs of the children and that she needed assistance;
o) Ms Giecko made no inquiries as to whether or not the society would fund a psychological assessment of the children while they were in the mother's care;
p) Ms Giecko testified that although the society did not have any services available to assist the mother in the home, she was aware that Aisling had such a service. But she did not attempt to contact Aisling rather she testified that the mother made the referral and as Aisling had recommended the Here to Help program she felt that was the best service. This is despite the fact that by May 2015, the mother was telling her that she could not cope with the children's behaviour, the school was reporting concerns about the children and there were no supports in place for the mother and the children;
q) After the mother advised the society that she could not handle the children's behaviour and they came into care in September 2015, the society delayed in arranging for a psychological assessment. I have no confidence in the evidence that once the error was discovered that the referral was made at the end of November 2015. Dr. Fitzgerald testified that based on the dates of the assessment he felt there was a request for an expedited assessment. The assessments did not take place until late February and March of 2016;
r) Ms Santos who assumed carriage of the file from Ms Gjecko and Ms Potvin who was the child service worker provided no further referrals for services either for the mother or the children;
s) The most concerning evidence was that at the October 2015 plan of care meeting when the recommendation was made both for the assessment and for counselling for the children, the referral for the children's counselling was not submitted until April of 2016 when the new worker Ms McQuillan discovered that the referral for the children's counselling was never submitted by the former workers. As a result C. and T. did not receive any counselling until May 2016.
[119] It is submitted by counsel for the society that it would be pure speculation for the court to assume that if the children had been assessed earlier or if they had received counselling earlier that things would have been different. But I agree with the evidence of Ms Santos that if the mother had obtained counselling and the children has obtained the supports they needed, things could have looked differently.
[120] I agree with the submissions of counsel for the mother that in this case, the issue of the children being assessed was pivotal, it would have clearly outlined the needs of the children and the impact of domestic violence on them which in turn would have ensured the children obtained the services they required and may have caused the mother to understand the need for her to seriously pursue counselling to ensure that she would not expose them to domestic violence again.
[121] The society's duty to provide services to a family is a fundamental issue in determining whether or not the risk to a child of being returned to a parent can be addressed. If every available service is not provided or not provided in a timely manner then a parent is not given a reasonable opportunity to engage in those services and the ability of the parent to benefit from those services cannot be assessed by the court.[^6]
[122] Counsel for the society submits that even though the society could have provided services for the children earlier nevertheless the court must consider the delay and the statutory timelines. Counsel relies on the comments by the Ontario Court of Appeal in the case of C.M. v. Children's Aid Society of the Regional Municipality of Waterloo[^7] where the court emphasizes the importance of timeliness in child welfare cases at para. 34:
That requires, among other things, that assessment reports be prepared with dispatch, the Children's Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in which timetables are set and witness lists are fully canvassed; that trials be scheduled so that trial dates are not stretched over months; and that trial judges receive adequate time to prepare reasons in a timely fashion.
[123] I certainly support these comments and in this jurisdiction the court has done everything in its powers to comply. However, in the case the society relies on the children had been in care for almost 5 years and there had not been any improvements. The facts are not similar to this case, where the children have not in care such an inordinate amount of time and things are now looking differently. Further, the court points out the need for assessment reports to be prepared "with dispatch" and that certainly did not take place in this case and both of the societies involved must take responsibility for that delay.
[124] In this case, there have been significant improvements and changes over the last several months. Based on the evidence since the C. and T. were assessed, put on medication and started counselling, there have been improvements in their behaviour and positive improvements in the interactions between the mother and children at the access visits.
[125] The mother has been committed to following through with her counselling and has made gains over the last 6 months in understanding the effects of domestic violence on herself and the children.
[126] It is submitted that the improvements could also be based on the fact that the children have been in a stable foster placement. While I accept that the consistent routine and discipline in the foster home have no doubtedly been a factor I am not prepared to discount the other factors that have assisted the children and the mother in developing a more positive relationship.
[127] I do not agree with the submissions of counsel for the society that the real issue is the mother's inability to manage the children's behaviours. This is simplistic view of a much more complicated issue involving not only the need for C. and T.'s impulsivity to be managed by medications but their confused and complex relationship with the mother. Several of the society workers testified that the children's behaviour was more than a child management issue.
[128] I find that despite the length of time that the children have been in care that to extend their time in care is warranted in this case. In the case of L. as she has exceeded the statutory timelines a further extension of 6 months pursuant to section 70 (4) of the CFSA is necessary and as both C. and T. have not yet exceeded the statutory timelines they can still remain in care.
[129] I have considered the case of Children's Aid Society v. L.U.[^8]. In that case, Justice Wilson sat in appeal of the decision of Justice Ellen Murray where she granted an extension of 6 months for a child in care to determine if the child could then be safely returned to the care of the mother. In upholding the decision, Justice Wilson reviewed the existing caselaw and held that:
a) an extension should only be granted in unusual, exceptional and for equitable considerations;
b) The power to grant extensions should not be routinely used; and
c) The extension must be in the best interests of the child, understanding the importance of promoting stability in a child's life.
[130] I find that there exists in this case such unusual, exceptional facts and that equitable considerations support extending the time the children remain in care and that it is in the best interests of these children to do so for the following reasons:
a) It was the society's initial position that for the children to be returned to the mother's care she would have to demonstrate the ability to manage the children's behaviour and enhance her parenting skills and attend for counselling to address her past trauma and exposure to domestic violence as there were concerns about her pattern of reuniting with the father. I find that the mother has begun to demonstrate and fulfill these expectations;
b) The mother has made significant progress in understanding the risk to the children of their exposure to domestic violence and of ensuring that she does not become involved in any other abusive relationships. The mother has been committed to counselling for the last 6 months and she is committed and able to continue with that counselling. I was impressed with the professionalism of her counsellor, Ms Elliott and her abilities to continue to assist the mother;
c) The mother has ended her relationship with the father and has not had a relationship with him since June 2013;
d) The mother has testified against the father and reported the threats he made against her to the police;
e) There has been a fairly recent but significant improvement in the children's interactions with the mother and with the mother's ability to manage their behaviour;
f) The extent of the children's future needs are not yet certain;
g) There was a significant delay by the society in ensuring the children's needs for an assessment, treatment and counselling were met and this in turn has impacted on the time the mother has had to understand the needs of the children and to learn how to respond to those needs;
h) As the counselling for C. and T. has just commenced, their counsellor testified that it was too early for family counselling to begin. This is effect is penalizing the mother from having an opportunity to heal the relationship between herself and the children since if the children's counselling had commenced earlier, the family counselling could have already taken place;
i) I find that the mother is committed to caring for her children. I find that the mother previously placed the children in care because she was overwhelmed in attempting to care for them without the proper supports or services in place for either herself or the children. Although the mother did not follow through with counselling for herself with respect to domestic violence, the society workers should have had some understanding of the dynamics of domestic violence, the pattern of victims resuming a relationship with their abusers and the difficulties of victims engaging in counselling that require them to relive their past traumas.
j) The children have a significant bond with the mother and the legislation recognizes the importance of keeping a family together if possible;
k) There is a realistic possibility that in the near future the mother will be able to meet the needs of the children such that they can be returned to her care;
l) There would be a delay in permanence planning if an extension was granted. But the society's present plan for foster placement is not a permanent plan and the evidence of the prospect of adoption for these children as a group was not promising. I am aware that an extension may mean a delay in even looking for a possible adoptive home. But in view of the evidence of the scarcity of adoptive placements for sibling groups and the added complications of a cultural match, children with special needs and placement of two older children, such a delay would not significantly impact on the children's prospects of adoption. There was no undertaking by the society to only look for an adoptive home for the children as a group and in view of the strong bond between the children this is a further concern about the society's plan for crown wardship; and
m) I find that the delay can be minimized if I remain seized of the case. If the improvements continue, the society may agree to a return of the children to the mother and a planned reintegration can be arranged. If the improvements do not continue, the society could bring a summary judgment motion. If there continues to be a dispute as to whether or not the children can be safely returned to the mother's care, a focused trial can be scheduled before me.
12. Conclusion
[131] I find that it is in the children's best interests that there be a further extension of their time in care.
[132] During the next 6 months, I expect that the mother will continue with her individual therapy, that C. and T. will continue with their counselling and that the society will follow up with any other recommendations made as a result of the pending psychiatric assessment and any other recommendations of the children's treatment providers.
[133] I would recommend that if possible, T. and C. receive counselling on a weekly basis. I would also recommend that if the children are emotionally ready that some family counselling be commenced regardless of whether or not the society's plan remains for crown wardship or a reunification plan so that the children can be helped to work out their feelings about their mother.
[134] I expect that the mother to develop a more detailed plan for the safe return of the children to her care and that she obtains a residence that is more appropriate for the children that perhaps could be close to her current residence with her friend who could then still offer her some assistance.
[135] I therefore order:
A further period of 6 month society wardship for L. pursuant to section 70 (4) of the Child and Family Services Act and a further order of society wardship for both C. and T. if their time in care exceeds 24 months by the time this matter returns to court;
The mother shall continue to have access to the children in the discretion of the society that can include both supervised and unsupervised access and that will occur no less than once a week with all of the children and additional access can be arranged for each child individually; and
The parties shall arrange a return date before me in January 2017 for an informal trial management conference to speak to the case and advise as to how the parties wish to proceed. If for any reason any party seeks an earlier date, a form 14 B should be submitted on notice to the other parties.
Justice Roselyn Zisman
Date: July 12, 2016
Footnotes
[^3]: Unfortunately the society did not obtain the father's criminal record which would have been helpful as the mother was not always aware of the specific charges or dates and the Statement of Agreed Facts signed by the mother also did not have all of this information.
[^4]: This fact was not in the Statement of Agreed Facts and the dates are somewhat confusing but it may be that the father was charged with another offence.
[^5]: This date is only based on Ms Santos' evidence. There is no date on the referral form and Dr. Fitzgerald could not recall when he received the referral.
[^6]: See Children's Aid Society of Hamilton v. E.D., [2009] O.J. No. 5534 (SCJ)
[^7]: 2015 ONCA 612
[^8]: Children's Aid Society of Toronto v. L.U., [2008] O.J. No. 2170 (SCJ)
