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 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

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

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

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

(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

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

ONTARIO COURT OF JUSTICE

DATE: 2017-12-08

COURT FILE No.: Elgin C225/06

BETWEEN:

THE CHILDREN'S AID SOCIETY OF ST. THOMAS AND ELGIN

Applicant,

— AND —

A.H. and J.H. and S.C.

Respondents

Before: Justice C.A. PARRY

Heard on: February 13-17, April 25-26, July 25, 2017

Reasons for Judgment released on: December 8, 2017

Counsel:

• D. Haklander — counsel for the applicant society
• A. Skuce — counsel for the respondent, A.H.
• G. Parrack — counsel for the respondent, J.H.
• D. Pentz — counsel for the Office of the Children's Lawyer, and legal representative for M.M.C. and D.S.C.
• P. Miller — counsel for the Office of the Children's Lawyer, and legal representative for J.M.C. and D.L.C.

Table of Contents

• I. OVERVIEW
• II. SECTION 47(2) STATUTORY FINDINGS
• III. THE STRUCTURE OF THE TRIAL AND THE ISSUES TO BE DECIDED
• IV. THE HEARSAY ISSUES
• V. THE COURT'S ASSESSMENT OF THE IMPORT AND WEIGHT OF THE ADMISSIBLE HEARSAY EVIDENCE
• VI. OTHER PRE-APPREHENSION EVIDENCE
• VII. THE PARENTS' EVIDENCE IN RESPONSE TO THE PRE-APPREHENSION EVIDENCE
• VIII. POST APPREHENSION EVIDENCE
• IX. FINDING IN NEED OF PROTECTION
• X. DISPOSITION
• XI. THE ORDER IMPOSED

I. OVERVIEW

A. The Parties

[1] The Children's Aid Society of St. Thomas and Elgin [hereinafter the "Society"] has brought a child protection application in respect of six children. Those children are as follows:

1. M.M.C. (D.O.B.: […], 2002; female)
2. J.M.C. (D.O.B.: […], 2005; female)
3. D.S.C. (D.O.B.: […], 2006)
4. D.L.C. (D.O.B.: […], 2006)
5. A.S.H. (D.O.B.: […], 2014)
6. D.L.H. (D.O.B.: […], 2014)

[2] The Society seeks a finding that all 6 children are in need of protection. The Society asks that M.M.C., J.M.C., D.S.C., and D.L.C. be made Crown wards. The Society takes a somewhat ambiguous position on access – if it is permitted [which they do not appear to be wholly for or against], the Society wants the discretion to dictate when and under what circumstances access occurs. The Society further seeks a supervision order, placing A.S.H. and D.L.H. with A.H. and J.H.

[3] The biological father of M.M.C., J.M.C., D.S.C., and D.L.C. is S.C.. Although served, he did not attend or file any materials in this Application. Accordingly, he was noted in default. I also note that he has not had the care and custody of these children since the commencement of an earlier child protection application in October of 2010 that gave rise to a 2013 supervision order which placed these children in the care and custody of A.H. (nee C.). I heard no evidence to suggest that he has had any recent contact with any of the children.

[4] A.H. [hereinafter referred to as "A.H."] is the biological mother of all of the children and had care and custody of all of the children at the time of their apprehension in this matter. At the time of the apprehension of the children, she was in a common law relationship with J.H., and continues to be in this relationship now.

[5] J.H. [hereinafter referred to as "J.H."] is the biological father of A.S.H. and D.L.H.. As noted, he is the common law partner of A.H.. He had the lawful care and custody of A.S.H. and D.L.H. at the time of their apprehension and treated A.H.'s older 4 children as his own.

[6] A.H. and J.H. ask the court to decline to find any of the children in need of protection. In the alternative, they seek the return of all children to the care and custody of A.H. and J.H., subject to terms of supervision, if necessary.

[7] As legal representative for M.M.C. and D.S.C., Mr. Pentz indicates that these two children [through the expression of their views and preferences] support the position of the Society.

[8] As legal representative for J.M.C. and D.L.C., Ms. Miller indicates that these children [through the expression of their views and preferences] effectively support the position of A.H. and J.H.. However, as will be seen in due course, D.L.C.'s expression of his views and preferences [as recounted in the evidence of various witnesses] is far more nuanced and ambiguous than it might seem at first glance.

II. SECTION 47(2) STATUTORY FINDINGS

[9] At the outset, I make the following non-controversial statutory findings, pursuant to s. 47(2) of the CFSA:

1. The children's names and ages are: M.M.C. (D.O.B.: […], 2002); J.M.C. (D.O.B.: […], 2005); D.S.C. (D.O.B.: […], 2006); D.L.C. (D.O.B.: […], 2006); A.S.H. (D.O.B.: […], 2014); and D.L.H. (D.O.B.: […], 2014).

2. The children are not being raised in any religious faith.

3. None of the children are Indian or Native Persons.

4. All of the children were apprehended and brought to a place of safety from within the County of Elgin.

III. THE STRUCTURE OF THE TRIAL AND THE ISSUES TO BE DECIDED

[10] On consent of all parties, the trial took the form of a "blended" hearing, wherein the court heard evidence relevant to both findings and disposition. I have reminded myself to consider only the evidence relevant to the findings before making any findings. I have disabused myself of any evidence not relevant to findings until I was able to make the findings. Then and only then did I consider evidence relevant to disposition. Of course, some of the evidence was relevant to both issues.

[11] At the outset of the trial, the Society submitted an affidavit brief that included affidavits from various Society staff and various foster parents with whom the children had been placed over the course of this ongoing application. The Society called these affiants as witnesses to provide amplification on these affidavits. In addition, the Society called additional witnesses, including another foster parent, a clinical psychologist who worked with J.M.C. and M.M.C., two police officers, additional Society staff, and staff from the schools of the eldest four children. The Society also relied upon previous judgments and previous Agreed Statements of Fact pertaining to A.H., in an effort to provide past parenting evidence.

[12] The Society had also sought to call the oldest four children as witnesses. The parents agreed with this approach. Both OCL counsel opposed the use of the children as witnesses in this trial and moved to quash their subpoenas. I addressed this issue at the outset of the trial and ruled that no party shall be permitted to call the children as witnesses. Given this ruling, the Society then sought to introduce numerous out-of-court statements of the older four children. The Society also proposed to rely upon some out-of-court utterances of the youngest twins. The parents opposed the admission of these statements. Consequently, a voir dire became necessary to determine the admissibility of any out-of-court utterances of any of the children.

[13] All counsel agreed that the voir dire could be blended with the trial. In other words, all evidence relevant to the hearsay issue is admissible in the trial proper, subject to any ruling on the admissibility of the hearsay itself. Similarly, counsel agreed that submissions on the admissibility of the hearsay evidence could be made at the conclusion of trial, as part of each party's closing submissions.

[14] Consequently, the issues to be determined in this decision are:

1. What if any hearsay utterances are admissible? The determination of this issue has an enormous effect on the determination of the other issues in this case.

2. Are the children in need of protection?

3. If the children are in need of protection, what is the proper disposition?

A. The Historical Backdrop of the Current Application: A Long History of Society Involvement

[15] The Trial Record contains Orders and Agreed Statements of Fact from prior proceedings involving A.H.. From these documents, it becomes clear that the Society has had significant involvement with A.H. since the summer of 2006. All four of the oldest children were first apprehended in the fall of 2006. They remained in Society care for a considerable period of time. The boys were returned to A.H.'s care and custody (subject to a supervision order) in November of 2007. M.M.C. and J.M.C. were returned to A.H.'s care and custody (subject to a supervision order) in January of 2008. The supervision of these children was terminated in December of 2008. Then, in the fall of 2010, the children were once again apprehended. They remained in the care and custody of the Society until August of 2013, when Justice Tobin returned the children to the care and custody of A.H., subject to a 12 month supervision order. A.H. was pregnant with the youngest twins at the time this Supervision Order was granted.

[16] Before I turn to more recent events, I think it is important to highlight certain findings made by Justice Tobin regarding A.H.'s past parenting of her children. Pursuant to section 50(1) of the CFSA, this past parenting evidence is relevant in the proceedings before me. In finding A.H.'s four children to be in need of protection, Justice Tobin made the following findings:

1. A.H. has a longstanding pattern of being involved in intimate relationships where there is domestic conflict and abuse. This has been the case in her relationships with S.C., W.C. [a subsequent partner] and J.H. [another subsequent partner], though there has been only one incident with J.H.

2. The children have been exposed to this domestic conflict and abuse. This was most poignantly described by J.M.C. when she demonstrated to the worker how her legs trembled during an incident of domestic violence. I accept the girls' evidence that they had been exposed [to domestic violence]. They may not have been in the room where the violence occurred, but they were in the house and were aware of it occurring on a number of occasions.

3. A.H. minimized the effects of domestic violence upon the children.

4. A.H. used physical discipline upon D.L.C. and D.S.C. by spanking them.

5. A.H. has allowed her consumption of alcohol to interfere with her care of the children. A.H.'s alcohol consumption continued to pose a risk to her ability to care for the children.

6. A.H.'s ability to care for all four children has been taxed such that the children have been left unsupervised, including on one occasion when D.S.C. ingested an unknown quantity of Tylenol.

7. A.H. showed poor judgment in allowing the children's father [S.C.] to care for the children when she knew he drank alcohol while they were in his care.

[17] Justice Tobin also accepted and referred to the opinions expressed in the Parent Capacity Assessment of Dr. Ashbourne, tendered at trial by the Society. He noted the following opinions:

As for [A.H.], the assessor's opinion in part is that she was able to stage her home and visits well. She was able to offer socially appropriate responses to parenting situations and talked of working hard to meet the children's need. The assessor's opinion is that [A.H.] over-estimates her abilities and capacity to follow through with good parenting practice. She is able to meet the children's basic "instrumental needs for food, shelter, structure and some safety . . . ." [However,] The assessor further states in his report, "With regards to the children's social, emotional, academic and psychological needs, Ms. A.C. [A.H.] fares little better than does Mr. W.C. [A.H.'s last abusive partner, who did not fare well in these categories]."

The assessor was of the opinion that A.C. [A.H.] does not appear to appreciate what the impact of the children's extensive exposure to domestic violence has had on their development.

[18] For the duration of the Supervision Order made by Justice Tobin, the Society did not observe any child protection concerns that warranted apprehension or any motions to change the order. I would note however, that Jennifer Lewis, the child protection worker assigned to the case during the 1 year supervision order, noted that the children

…were always fearful if they reported anything to the Society, that they felt like their mom would not be happy with them. They would get in trouble for that. In addition to that, they did report to me times where they were spending a significant amount of time in their rooms as time-outs, and I'd had previous discussions with A.H. prior to closing [the file] to not do that.

[19] When the twins (A.S.H. and D.L.H.) were 5 months old, Justice Tobin's Supervision Order was terminated. The Society's most recent involvement begins about 18 months after the termination of the last Supervision Order.

[20] These prior judicial proceedings by and large preceded J.H.'s involvement in A.H.'s life. When Justice Tobin released his decision, J.H. was dating A.H.. Indeed, he and A.H. had conceived, A.S.H. and D.L.H.; however, J.H. had not yet been involved in the older four children's lives. The proceedings before Justice Tobin concerned A.H. and previous romantic partners, including S.C. (the father of A.H.'s four oldest children) and W.C. (her latest abusive partner).

B. An Overview of Factual History that Forms the Subject Matter of This Application

[21] Following the termination of Justice Tobin's Supervision Order, the Society did not hear of any more concerns respecting A.H. until January of 2016. However, at this point it should be noted that the Society tendered evidence that, if admissible, suggests that the parents of the children, particularly A.H., obstructed and hindered the Society's ability to supervise her during the course of Justice Tobin's recent supervision order. Essentially, the Society alleges that the children have a long history of facing repercussions for making any disclosures to the Society that may negatively impact upon A.H.

[22] On January 25, 2016, a Society Intake worker [Jennifer Lewis] was assigned to investigate a concern raised by M.M.C. while she was at school. M.M.C. disclosed being fearful about returning home. In her physical demeanour, she presented as being very distraught. She had taken two waffles at breakfast in the morning, one more than permitted. She reported that her step-dad forced her to throw the extra waffle into the garbage, as a reprimand, despite the fact that she was still hungry. She also described excessive groundings, during which she and her siblings would be grounded for an entire weekend. The groundings involved confinement in their bedrooms, with exceptions for bathroom breaks and meals. She also disclosed being yelled at and called a brat for involving the Society.

[23] Ms. Lewis spoke to J.H. and A.H.. According to her evidence, J.H. essentially corroborated the complaint. J.H. explained that there were rules about what the children were allowed to eat – money was tight and the family had a budget. Both J.H. and A.H. also admitted that the older ones get time-outs in their room, wherein they were allowed out to eat and to shower. In short, the parents essentially corroborated M.M.C.'s complaint. In response, Ms. Lewis provided some guidance about appropriate boundaries, ages and stages discipline. She also provided information about the Canada Food Guide and the nutritional needs of a 13 year old. She did not, however, take steps to commence an application. While both A.H. and J.H. have both disputed making the above-noted admissions to Ms. Lewis, I reject their evidence. I note that Ms. Lewis made contemporaneous notes of her conversations with A.H. and J.H.. I also note that she was attempting to work collaboratively with both parents, and had no motive to fabricate her notes. I have no hesitation in accepting her evidence.

[24] The Society's current involvement began on May 17, 2016, after M.M.C. and J.M.C. made complaints at their school about life at home. A few months earlier, on January 25th, 2016, M.M.C. made similar complaints to a different worker while at school; however this January complaint did not lead to any immediate apprehension or application. In any event, once M.M.C. and Justice voiced their concerns on May 17th, staff at their school contacted the Society. The Society and the school then made arrangements for D.L.C. and D.S.C., who attended a different public school, to also attend at M.M.C. and J.M.C.'s school.

[25] Given the concerns raised by the children about excessive discipline and an overly strict living environment, and the general aura of fear in which the children lived, the Society felt compelled to find a solution that would assuage the concerns of the children. Initially, the Society simply planned to allow the children to go home, but they intended upon speaking to both parents in an effort to provide guidance and boundaries about parental discipline. Due to the extreme apprehension expressed by J.M.C. and M.M.C., and to a lesser extent, the reaction of D.S.C. and D.L.C., a different plan was developed. To their credit, A.H. and J.H. agreed to vacate their home and allow A.H.'s elderly Aunt D.T. to temporarily care for the children until the situation could be sorted out.

[26] Given the Aunt D.T.'s somewhat advanced age, she was only able to provide a few days care for the children. As a result, the Society sought and obtained a warrant to apprehend all of the children. The warrant was executed on May 20, 2016.

[27] Five days later, on May 25th, 2016, Justice McFadyen issued a temporary without prejudice order placing all 6 children in the care of the Society. The Society placed the 6 children with various foster-to-adopt foster families. M.M.C. was placed with G. and K.F.. J.M.C., A.S.H., and D.L.H. were placed with K.J. and W.J.. D.L.C. and D.S.C. were placed with J.B. and P.B.

[28] On June 9th, 2016, Justice O'Dea returned the four youngest children to A.H. and J.H.. The older two (M.M.C. and J.M.C.) remained in care with their respective foster families.

[29] On June 14th, 2016, the Society apprehended D.L.C. and D.S.C. a second time, because of accusations made by D.S.C. on June 8th 2016 [one day before the Order which mandated his return home] about an alleged assault upon him by his mother, which he alleged occurred a few months previously [prior to the initial apprehension, in fact]. This apprehension was performed without a warrant. It was precipitated by the arrest of A.H. for the criminal offence of Assault. She was released on terms which prohibited her from contact with M.M.C., D.L.C., and D.S.C., all of whom were material witnesses to the alleged assault.

[30] On June 16, 2016, Justice O'Dea placed D.S.C. and D.L.C. back into the temporary care of the Society.

[31] Soon thereafter, on June 17th, 2016, the Society applied for and received a warrant from Justice Roberts to apprehend A.S.H. and D.L.H.. On a temporary and without prejudice basis, the children were placed in the Society's Care.

[32] On July 28th, 2016, Justice LeRoy returned A.S.H. and D.L.H. to the care of A.H. and J.H.. D.L.C. and D.S.C., however, remained in the care of the Society.

IV. THE HEARSAY ISSUES

A. An Overview of the Approach to Hearsay Voir Dire

[33] The Society seeks to introduce a large body of hearsay utterances that were made by the children over the course of this matter from January 2016 [a few months before the apprehension] onwards. Some of the utterances are relevant to the findings, some to the disposition, and some to both. I have referred to some of the utterances already, when providing a historical backdrop. There are of course, many more, including the videotaped police interviews of M.M.C., J.M.C., D.L.C., and D.S.C. that were conducted on June 8, 2016, in furtherance of the investigation of the alleged assault by A.H. upon D.S.C.

[34] The most efficient and cogent way in which to deal with the hearsay issues is to deal with them en masse and in chronological order. Before doing so, I will provide an overview of the relevant legal principles that govern the admissibility of out-of-court statements.

B. The Law

[35] The recent Supreme Court of Canada decision in the case of R. v. Bradshaw, 2017 SCC 35, provided a synthesis and restatement of the law pertaining to the admissibility of hearsay statements. In doing so, the majority made what might arguably be considered refinements of the law, particularly as it pertains to the identification of sufficient corroboration of hearsay statements. What follows is a summary of the law of the admissibility of hearsay evidence as articulated in the majority decision in the Bradshaw decision.

[36] The identification of hearsay is determined by the identification of the purpose for which the evidence is tendered. Hearsay is the out-of-court utterance of a person, tendered by a party to prove the truth of the assertions made in the utterance. An out-of-court statement does not constitute hearsay if it is not tendered for the purpose of proving the truth of the contents of the statement. Sometimes the probative value of the statement comes solely from the fact that it was made, not from its truth.

[37] Hearsay statements are presumptively inadmissible, because the opposing party is deprived of the opportunity to test the reliability and credibility of the evidence through contemporaneous cross-examination in the presence of the trier of fact. The trier of fact is therefore deprived of the opportunity to ascertain the presence or absence of potential frailties in the evidence. Those frailties or dangers have been summarized as follows:

1. The declarant may have misperceived the facts to which the declaration pertains [the hearsay danger of faulty perception];

2. The declarant, despite correctly perceiving the facts to which the declaration pertains, may have wrongly remembered those facts [the hearsay danger of faulty memory];

3. The declarant may have narrated the facts in an unintentionally misleading fashion [the hearsay danger of faulty narration];

4. The declarant may have intentionally attempted to present the facts in a misleading manner [the hearsay danger of insincerity].

[38] The presence of the dangers associated with hearsay evidence, coupled with the lack of an ability to test the evidence, gave rise to the presumption of the inadmissibility of this type of evidence. However, some hearsay evidence presents minimal dangers and, accordingly, its exclusion inhibits the truth-finding function of the court more than its admission would. Consequently, certain categorical exceptions to the hearsay rule have evolved at common law.

[39] Declarations of the declarant's contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule. In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind. Therefore there exists a circumstantial guarantee of the trustworthiness of the statement. The passage of time also erodes the likelihood the declarant witness providing equally accurate and unclouded recounting of the same state of mind during the course of the trial. In that sense, the contemporaneous state of mind declaration is considered necessary to obtaining the most truthful account of the declarant's state of mind. In other cases, courts have ruled that the contemporaneous declarations of the declarant's state of mind can be received as original evidence, as circumstantial evidence of the declarant's state of mind, and thus not hearsay at all. However categorized, this type of declaration has long been recognized as not attracting the hearsay exclusionary rule.

[40] Over time, courts developed a flexible and principled approach to the determination of the admissibility of hearsay. The principled approach concerns itself with an assessment of the necessity of the receipt of the evidence and the threshold reliability of the evidence.

[41] Necessity may be established by establishing the unavailability of the witness in the trial. In the case at bar, the court has ruled that none of the children of A.H. and J.H. may testify. Given the unavailability of the children as witnesses, the Society seeks to tender out-of-court statements of the children. This is the quintessential example of necessity; a point on which all parties agree. Therefore, I will not dwell upon the legal parameters of necessity.

[42] In addition to establishing necessity, the party seeking to tender an out-of-court statement must establish that the statement passes a certain threshold of reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it [without the benefit of contemporaneous cross-examination of the declarant at trial]". Once this threshold is passed, the trier of fact may invoke the discretion to consider the evidence in the fact-finding process. The assessment of the ultimate reliability of the truth and accuracy of the hearsay utterance is, of course, not determined until the trier of fact considers all of the evidence and applies the appropriate standard and burden of proof.

[43] In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome.

[44] There are two ways in which hearsay dangers may be overcome:

1. Satisfying the trier of fact that there exist adequate substitutes for contemporaneous cross-examination [procedural reliability]. The substitutes for cross-examination must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant at some juncture is usually required. For example, the opportunity to cross-examine the absent witness may arise at the preliminary inquiry testimony. Similarly, the opportunity to cross-examine the recanting witness may arise at the trial.

2. Satisfying the trier of fact that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy [substantive reliability]. To determine whether or not a hearsay utterance is inherently trustworthy, the trier of fact may look at the circumstances in which the utterance was made and whether there exists evidence that corroborates the statement. Substantive reliability is established if the trier of fact is satisfied that the hearsay statement is so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other words, the statement must have been made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken.

[45] Interestingly, the court in Bradshaw also noted that the two methods of establishing threshold reliability may work in tandem. At the same time the court urged caution in using this combined approach, so as to avoid admitting statements that lack both procedural and substantive reliability.

[46] Corroborative evidence is not capable of enhancing the procedural reliability of a hearsay statement. However, in appropriate circumstances, it is capable of enhancing the substantive reliability of a hearsay statement. To do so, it must be capable of buttressing the truthfulness or accuracy of the material aspects of the hearsay statement. In other words, the corroborative evidence must address the fact in issue that the hearsay statement attempts to prove, not some other non-material fact. The corroborative evidence must also be trustworthy. Finally, corroborative evidence can only enhance the substantive reliability of a hearsay statement if, on a balance of probabilities, it rules out any plausible explanations that disclose that the maker of the hearsay statement was either untruthful or unreliable. In other words, having considered plausible alternative explanations for the making of the statement, the trier of fact must be satisfied that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of the material aspects of the statement.

[47] As the majority in Bradshaw summarized:

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:

(1) Identify the material aspects of the hearsay statement that are tendered for their truth.

(2) Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case.

(3) Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.

(4) Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

C. The January 25th, 2016 Utterances of M.M.C.

[48] In my view, M.M.C.'s January 25th, 2016, complaint to Jennifer Lewis is extremely important. First, it provides a specific example of the harsh and authoritarian environment the children purport to have endured. M.M.C. reports that J.H. threw out an Eggo waffle, rather than let M.M.C. eat it, as a consequence for M.M.C. having more than her one-waffle quota. Secondly, M.M.C. provides a general description of an authoritarian household, where excessive groundings [quasi-solitary confinement] were a regular form of discipline. This general description forms the kernel of the complaints made by all four of the oldest children during their interactions with school staff, CAS workers, and the police. Thirdly, M.M.C.'s state of mind is compellingly revealed by her declarations to Ms. Lewis. M.M.C.'s fear of going home is palpable; and it is declared at a time when there exists no apparent motive to fabricate. Fourthly, as noted above, M.M.C.'s complaint is essentially admitted in its entirety by J.H. and A.H., the parties against whom the utterances are tendered. In an adversarial system, an out-of-court statement by a party to the proceedings may be introduced by another party to the proceedings. The admissions by J.H. and A.H. therefore serve to virtually completely corroborate the complaint made by M.M.C.

[49] As noted above, Jennifer Lewis attended at D[…] Public School [M.M.C.'s school] to speak with her about concerns A.H. raised at school about her home life.

[50] M.M.C. disclosed being fearful about going home as a result of disclosing her complaint about her step-father to the principal. She was visibly upset and wringing her hands. She told Ms. Lewis that she believed she would be in trouble at home as a result of complaining about the incident with her step-father that morning. In my view, these utterances are admissible for the purpose of establishing M.M.C.'s state of mind. The utterances were contemporaneous with the professed state of mind. They were observed by a worker who took notes proximate to the time of her observations. The worker did not take an adversarial stance with either of M.M.C.'s parents. Indeed, Ms. Lewis attempted to work collaboratively with the parents to resolve M.M.C.'s concerns. In my view, Ms. Lewis's observations are reliable and credible. The declarations in question are admissible for the purpose of establishing M.M.C.'s state of mind at the time of the complaint.

[51] M.M.C., of course made specific accusations against her parents when talking to Ms. Lewis. As noted above, she described getting in trouble for having an extra frozen waffle. Her step-father threw out the waffle, rather than let her eat it. Ms. Lewis made fairly contemporaneous notes of this conversation. M.M.C. also disclosed that she and her siblings are frequently grounded for long durations, sometimes for the entire weekend. While grounded, they are not allowed to come out of their room unless to go to the washroom, or to eat; and while grounded, they cannot socialize with anyone. In other words, as a form of discipline, they are placed in a quasi-solitary confinement over entire weekends on a relatively frequent basis.

[52] I accept that Ms. Lewis's account of the conversation with M.M.C. is accurate. And I accept that her observations of M.M.C.'s demeanour to be similarly accurate. There is therefore some level of procedural reliability provided by the evidence of Ms. Lewis. In addition, there is an overwhelming amount of substantial reliability disclosed by the evidence of Ms. Lewis. First of all, M.M.C. makes her disclosures despite what I accept to be a genuine fear of repercussions for making the complaint. These essentially are statements against her perceived safety interests. Secondly, the allegations by M.M.C. are made without any credible motive to fabricate. Ms. Lewis rejected any suggestion that M.M.C. raised any concerns about any limits being placed by the parents upon M.M.C.'s ability to see her boyfriend. Thirdly, and most importantly, Ms. Lewis testified that she spoke with both parents and that both parents essentially corroborated the entirety of M.M.C.'s complaints about the waffle incident and the excessive grounding. Indeed, Ms. Lewis testified that A.H. agreed that the time-outs described by Ms. Lewis ["days on end"] might have been excessive. Ms. Lewis then offered advice on the appropriate diet for a 13 year old and appropriate levels of discipline. In effect, both parents, who are parties to this proceeding made admissible admissions about the veracity of the hearsay utterances of M.M.C. as relayed in the evidence of Ms. Lewis. A record of these admissions was made contemporaneously with the making of the admissions, at a time when Ms. Lewis was attempting to work collaboratively with the parents, months before the Society brought an application. I therefore reject any suggestion that Ms. Lewis was mistaken or untruthful about her account of the parents' admissions. I consequently reject both parents' assertions that the admissions were not in fact made by either of them. I am therefore satisfied that the only likely explanation for M.M.C.'s complaint to Ms. Lewis is that her complaint is truthful. I therefore conclude that the out-of-court statements made by M.M.C. to Jennifer Lewis on January 25th are admissible in their entirety.

D. The Admissibility of the Utterances Made by the Four Oldest Children on May 17th, 2016, at J.M.C. and A.H.'s School

[53] The Society next becomes involved on May 17, 2016. On that date, the hearsay utterances of M.M.C. to Society worker Nicole Kuipers discloses that M.M.C. and J.M.C. had been caught at school using another boy's phone to make prank calls. The police came to caution the girls about these prank calls. M.M.C. then later voiced concern to her teacher, R.S., about repercussions at home for this prank. The teacher advised K.A.S., the school principal. On her advice, Mr. R.S. contacted the Society, who indicated that they would send a worker to the school.

[54] While the principal waited for a worker from the Society to attend the school, she asked B.B., a Learning Support Teacher at the school, to allow the children to wait in her office. Both Ms. B.B. and Ms. K.A.S. sat with the children until the arrival of a Society worker. I infer that they were both attempting to provide some comfort and to lessen their anxiety. They did not play an investigative role. Both made contemporaneous records of their observations.

[55] Ms. K.A.S. also called C.W., the principal of M[…] Public School, which was the school attended by D.S.C. and D.L.C.. Given the concerns raised, Ms. C.W. brought the boys over to D[…] Public School. Upon arrival, they all waited in Ms. B.B.'s office with the others. Ms. C.W. also made note of her observations.

[56] In response to the complaint, the Society sent Nicole Kuipers to the school. Upon her arrival, she interviewed each of the children alone, taking scrupulous notes as she did so.

[57] The preponderance of the evidence suggests that M.M.C. and J.M.C. were mortified that the Society had been contacted, and were visibly and deeply worried about their parents' reaction to the involvement of the Society. The utterances and accompanying demeanour that establish their state of fear is admissible as an exception to the hearsay rule. Both children expressed their concern at the Society's involvement and their extreme concern about repercussions they might face for having instigated the Society's involvement. The evidence supports the conclusion that both thought Society involvement would be counterproductive and would lead to a worse environment at home. Consequently, while the respondents submit that M.M.C. and J.M.C. had a motive to fabricate their complaints on May 17th, in my view the preponderance of the hearsay evidence and the other contextual evidence suggests in fact that both children had a motive to avoid Society involvement. These two children had been involved with the Society for years. I infer that they would know the likely consequences of any complaint to their school or the Society; and I infer that they dreaded the consequences of raising their concerns on May 17th. This dread serves to corroborate their complaint; it is the antithesis of a motive to fabricate.

[58] I note as well that Ms. Lewis was involved with the H. family during the year in which the family was subject to Justice Tobin's supervision order. Ms. Lewis noted that during that time period, the children voiced concern about repercussions for disclosing complaints to the Society. While the Society does not tender these past utterances for their truth [indeed, these utterances were elicited in cross-examination of Ms. Lewis], I am of the view that these utterances are admissible for the purpose of rebutting any alleged motive to fabricate the May 17th allegations.

[59] I also note that M.M.C.'s January 25th statement [which I have already ruled admissible] corroborates J.M.C. and M.M.C.'s May 17th complaints. M.M.C.'s fear of going home was nothing new. She appears to have lived in a perpetual state of fear of excessive and unfair discipline. The suggestion that her fear on May 17th was fabricated is belied by the January 25th incident. As noted, the general theme of the complaint made on May 17th mirrors the complaint made on January 25th: the children alleged that they lived under harsh and unfair authoritarian rule, which caused them significant emotional distress. In my view, the admissions made by J.H. and A.H. on January 25th [coupled with the admissible complaint of M.M.C. on January 25th] corroborates the complaints made by J.M.C. and M.M.C. on May 17th.

[60] I also note that the complaints made by M.M.C. and J.M.C. on May 17th are generally consistent with the conclusions made by Justice Tobin in his 2013 decision. In her private interview with Nicole Kuipers at the school, J.M.C. paints a picture of a mother who cannot cope with the demands of parenting 6 children. She describes herself as being burdened with the care of her toddler twin sisters; she describes her mother yelling and swearing during the twins' diaper changes; and she also describes frequent groundings. Her descriptions are strikingly reminiscent of Justice Tobin's description of a mother who struggled to cope with the demands of parenting and found her abilities taxed to the breaking point.

[61] The anecdotes provided by J.M.C. and M.M.C. on May 17th are simply specific examples of the overarching theme described by M.M.C. on January 25th. The examples were provided either spontaneously or in response to open-ended questions. The utterances were witnessed by one or more adult witnesses, who made a reliable record of their observations. Moreover, the utterances were made despite the existence of an extreme distrust in the ability of the school system or the Society to protect them from repercussions.

[62] In addition to the utterances made in the presence of school staff in Ms. B.B.'s classroom, each of the four children participated in detailed forensic interviews with Ms. Kuipers. Each child's general description of the authoritarian environment is quite consistent. They all describe frequent use of excessive groundings as a significant disciplinary tool. Both D.L.C. and J.M.C. complain about the older children being burdened with too much adult responsibility [for example, caring for the younger siblings, laundry, mopping, and doing dishes]. D.S.C., J.M.C., and M.M.C. all complain of being yelled at by their parents. J.M.C. and M.M.C. both speak of exposure of the children to physical violence. D.L.C. also speaks of being mindful of the rule that they not ask their parents for things when their parents are busy – a complaint consistent with the theme that the parents struggle to cope with the demands of having so many children. There is also frequent mention of the scarcity of food for the children. The fact that each child, during these one-on-one interviews provides a similar picture of the home environment is telling, and enhances the substantive reliability of each child's utterances.

[63] I also note that M.M.C. had twice previously complained to her former teacher, T.M., about her parents. On one occasion, M.M.C. reported being yelled at and slapped on her knee. On another occasion, M.M.C. complained about being yelled at. These prior complaints serve to (1) corroborate the veracity of M.M.C.'s expressed fear of going home on May 17th; and (2) rebut any suggestion that M.M.C. spontaneously fabricated her May 17th complaints about life at home to avoid legitimate discipline for misbehaviours at school.

[64] Interestingly, just as she did with M.M.C.'s January 17th complaint, A.H. herself corroborates an aspect of J.M.C.'s utterances to Ms. Kuiper. That corroboration again comes in the form of an admission. This time, the admission is one relayed to her Aunt D.T.. When seeking guidance on the routine and schedule for the care of the twins after moving in with the children on May 17th, D.T. called A.H.. Rather than provide D.T. the routine herself, A.H. simply told D.T. to ask J.M.C.. J.M.C., in turn, thoroughly wrote out the entire rigid routine. A.H.'s referral of the issue to J.M.C., combined with J.M.C.'s acute ability to recite the twins' routine in every detail, and combined with the rigid/restrictive nature of the routine all serve to corroborate key factual assertions and/or implications of J.M.C.'s May 17th interview:

1. A.H. had difficulty coping with the demands of parenting;

2. She delegated a significant amount of the responsibility of A.S.H. and D.L.H.'s care to J.M.C.; and

3. A.H.'s rigid and restrictive style of parenting reduced the burden upon A.H. by impinging upon the freedom of her children [e.g. Excessive crib time for the younger twins, and excessive groundings for the older children].

[65] Given the intense motive to refrain from making any complaints [particularly as expressed by M.M.C. and J.M.C.]; given the reliability of the witnesses' accounts of the children's utterances; given the general similarity of their accounts of home life when speaking privately with Ms. Kuipers; and given the various pieces of corroborating evidence I have referred to; I conclude that there exists sufficient substantive reliability in the utterances made by each of the children to the various witnesses on May 17th.

E. The Admissibility of the Videotaped Police Interviews of The Four Oldest Children

[66] In the wake of D.S.C.'s allegation that his mother choked him in the late winter or early spring of 2016, Cst. Marcia Geling conducted videotaped interviews of each child. She interviewed each child separately. By that point in time, M.M.C. had been separated from all of her other siblings for about 2 ½ weeks. Similarly, J.M.C. had been separated from M.M.C. and her twin brothers for about 2 ½ weeks; and the twin boys had been separated from M.M.C. and J.M.C. for 2 ½ weeks. Constable Geling stressed with each child the importance of telling the truth. She asked open-ended questions and avoided leading questions. The demeanour and tone of each child is easily observed on each video tape. Having regard to all of these factors, I conclude that there is a substantial degree of procedural reliability inherent in each of the four videotaped statements. The only feature of procedural reliability absent from these statements is the lack of an opportunity to conduct a non-contemporaneous cross-examination of these witnesses.

[67] I also conclude that there exists significant substantive reliability in each statement. First, I would note that each child provides a fairly consistent account of the life they experienced at home. The similarities are many: all described frequent groundings; all described A.H. yelling and swearing frequently; all described an abundance of chores and responsibilities and a scarcity of personal freedom; all described to one degree or another the existence of some physical discipline in the home; and all described D.S.C. as being the primary target of abusive parental conduct. J.M.C.'s described home life as like being in the military. Her siblings shared the sentiment even if they did not employ the same simile. In effect, they all describe a system of coercive control by domineering parents, with one parent [A.H.] being the most domineering one. All implicitly suggest that A.H. had difficulty coping with the demands of parenting a large number of children and that her behaviours were motivated by a desire to minimize the strain of active engagement in her children's lives. In effect, they offer similar fact evidence in support of one another in circumstances that substantially negate the possibility of collusion. In my view, their overall descriptions of their home life are strikingly similar, such that the only likely explanation for the similarity is the truthfulness of the descriptions.

[68] There is another key similarity that in my view is strikingly similar. M.M.C., D.L.C., and D.S.C. all describe a choking incident.

[69] D.L.C. noted the following about the choking incident:

1. D.L.C. said that the incident happened in February, March, or April.

2. He said that D.S.C. came downstairs and declared that his mother had choked him.

3. He also noted that D.S.C. had a red mark on his neck.

4. Sadly, D.L.C. also noted that he was afraid for D.S.C. to return home. This state of mind provides circumstantial evidence of the existence of events and people that pose a threat to D.S.C. – or at least D.L.C.'s perception of those events and people.

[70] M.M.C. indicated the following about the choking incident:

1. She was downstairs in the basement with D.L.C. and J.M.C.

2. She heard banging, yelling, and screaming.

3. Then she heard D.S.C. yelling.

4. She went upstairs and saw D.S.C. getting in trouble for something.

5. D.S.C. was on the ground crying.

6. She saw her mother's hands around D.S.C.'s neck.

7. She also saw D.S.C.'s hands around his neck.

8. She yelled stop it.

9. J.H. told her to go downstairs.

10. At first she defied him, but then she said, "Fine. I'll go" and glared at him.

11. As she departed downstairs, J.H. rushed towards her, so she started running down the stairs.

12. She was fearful that J.H. would push her down the stairs.

13. J.H. followed her all the way downstairs and started yelling at her.

14. She talked back to him.

15. He grounded her.

16. Later, she saw red scratches on D.S.C.'s neck. She did not think he had the nails necessary to cause the scratches.

17. D.S.C. originally told her that his mom choked him. Later, he said that he choked himself.

18. M.M.C. believed that D.S.C. had to lie about choking himself, because she did not think his nails were capable of causing the scratch marks she saw.

19. In the final analysis, she wasn't sure if A.H. choked D.S.C. or he choked himself.

[71] D.S.C.'s description of the choking incident was very similar to M.M.C.'s. He told the officer that his mother was mad at him for not taking his medications [he has ADHD]. He went on to say that she swore at him and then grabbed him by the neck with two hands. She then threw him to the ground. He also said that J.H. was also swearing at him. At that point, M.M.C. came into the room from downstairs and yelled at his mom and dad.

[72] While there were certainly dissimilarities in the accounts, including the description of the approximate date of the occurrence, the similarities in the accounts are striking. The observation of scratch marks on D.S.C.'s neck by both M.M.C. and D.L.C. is also significant. I note that M.M.C. had no opportunity to discuss this allegation with D.S.C. and D.L.C. prior to the police interview. She had been separated from the boys for 2½ weeks. I therefore consider the fact three of the children provided a similar description of a choking event to be a significant corroborating factor.

[73] While J.M.C. did not purport to witness the choking event, she purported to have witnessed her parents get violent with D.S.C. on other occasions. Indeed, she describes an event in which D.S.C. gets pulled from his bed. Her description bears a resemblance to an event described by D.S.C. in his interview.

[74] I am also of the view that the prior admissions of A.H. and J.H. on January 25th to Jennifer Lewis provide corroboration for the children's description of an oppressive and strict environment, one akin to the military.

[75] With respect to J.M.C.'s statement, I observe that J.M.C. provided a more detailed complaint about the degree to which her mother relied upon her to care for her twin sisters. She described being required daily to instantly attend to her twin sisters the moment she arrived home from school. As a result, she barely got to play. As noted previously, this assertion is corroborated by A.H.'s direction to her Aunt D.T. to obtain the twin girls' daily schedule from J.M.C.. The assertion is also corroborated by J.M.C.'s demonstrated ability to write down for Aunt D.T., every precise detail of the twin girls' somewhat restrictive daily routine.

[76] Finally, I wish to note the verisimilitude created by the extensive detail provided by each child. They do not simply make bald assertions. They paint an intricate portrait of their home life. They may each focus their attention on different parts of the portrait, but some of their focus overlaps. This intricate living detail provides each child's description an inherent trustworthiness.

[77] When I consider the similarity of the descriptions by each child of their home life, the similarity of descriptions of the disproportionate abuse of D.S.C., the shared concern for D.S.C. by his siblings, the various items of corroborating evidence described above, and the verisimilitude of each child's statement, I come to the conclusion that there exists sufficient substantive reliability to overcome any shortcomings in the procedural reliability of these statements.

[78] I therefore conclude that the videotaped statements of all four children are admissible for their truth. The Society has highlighted utterances to Cst. Marsha Geling during her videotaped interviews of the children on June 8th. I have provided condensed summaries them here:

M.M.C.:

• Her and her step-father are constantly getting into fights over little things
• If there is a slight mistake they are grounded for the littlest things
• Recounts the incident of D.L.C. doing D.S.C.'s laundry as D.S.C. was having a nap
• Her mom would scream at her and push her on her bed or push her up the stairs at Unit 45
• Her mom is the "swearing kind of mom" and went on to list the type of swear words her mom would say such as "bitch […] snotty little brat […] fuck you" and she would swear in front of the girls and say "shit"
• She was accused of swearing and she was grounded for a whole month
• She would be pushed upstairs on the bed and M.M.C. was in trouble for using violence in front of the girls
• She had a red mark from her mom hitting her in the leg after she was mad because she thought M.M.C. was using violence in front of the girls and that the mark was red for a couple of hours
• She is defending her brother, D.S.C. and that D.S.C. tends to lie but he knows when to tell the truth and when not to lie – he's pretty smart. M.M.C. discloses that sometimes D.S.C. has to lie to not get in trouble and so does she if it's her mom
• D.S.C. was upstairs and she, D.L.C., and J.M.C. heard a banging, yelling, and screaming. M.M.C. went upstairs. She saw D.S.C. crying and M.M.C. yelled "stop it"
• M.M.C. disclosed that she saw her mom choking D.S.C.. However, it also looked like she was trying to help him by trying to remove his hands from his own throat. She saw both of their hands around D.S.C.'s throat
• M.M.C. advised that at first D.S.C. said his parents did it and then he stated he choked himself. Later, she saw red scratches on D.S.C.'s neck. She did not think he had the nails necessary to cause the scratches. She wondered if D.S.C. had to lie and say that he choked himself [to cover for his mom]. In the final analysis, she wasn't sure if A.H. choked D.S.C. or he choked himself
• Choking incident occurred, 8:15 to 8:25 a.m. and it was winter going into spring

J.M.C.:

• D.L.C. switched D.S.C.'s laundry when D.S.C. was having a nap and he got grounded for doing that
• Not allowed to talk at table because too long to eat, D.S.C. in trouble for not taking his pill… they will force to us to eat food we don't like (once they forced me to eat chilli and I threw it up), or make us go to bed without any other food. And even though we are really hungry, we can't say 'we are hungry' …. we have to wait until stuff is offered to us
• Mom says bullshit when I tell her the chili is too spicy
• Stated that dad (meaning J.H.) yelled at D.S.C. and he had to go to bed without supper, D.S.C. cried and mom said "suck it up"
• If they (A.H. and J.H.) were really mad they or something at D.S.C. they would hit D.S.C.
• Saw them hit D.S.C. and J.M.C. responded yes but it was at Unit 45 and she admits to eavesdropping
• Mom grabbed D.S.C. off and dragged him off the bed and D.S.C. was crying, mom yelled at him top of her lungs in his face and another time heard a towel whack and heard D.S.C. say stop hitting me with the towel
• Got home from school she instantly had to go downstairs and help with her baby sisters – every single day and she barely got out to play
• Begins to talk about her memory book, memories from old foster parents and that her mom said the foster parents were bad people, deleted pictures they had and her mom didn't want J.M.C. to see the book
• I do and I don't […] but most of the people in our family don't really like her [A.H.]
• How her mom says she never did anything wrong, she did everything right and then proceeds to compare her mom to D.S.C. and blames her mom for some of D.S.C.'s problems
• Cst. Geling questions J.M.C. if she has been hit, J.M.C. responds "no"
• J.M.C. responded that he would get grounded the whole day and went to describe that groundings were on the bed, not take bathroom breaks other than once in a while
• Cst. Geling asks another clarifying question about D.S.C. getting hit and J.M.C. responds that he had red marks, scratches on his back and arm and she then identified that those marks occurred while the family resided at Unit 45
• Her sisters, A.S.H. and D.L.H. are fed in living room or downstairs, they are forced to eat and they are yelled at. J.M.C. further states that her mom watches them cry and states "I don't fucking care … and stuff like that"
• A.S.H. and D.L.H. are forced down either laying down or sitting up and that her parents took turns holding their arm, that the girls would be screaming and crying
• J.M.C. stated that her mom says not to swear in front of the girls yet "she swears in front of the girls and the girls actually one said the F word 'cause my mom kept saying the F word". J.M.C. then states that her mom took her frustration and madness out on the girls
• Cst. Geling asks J.M.C. if she was happy at her house and J.M.C. responds "no", when asked to say why, J.M.C. responded "because I hated it […] too much yelling […] so strict […] not allowed to give out phone number or address […] friends not allowed to come to the door […] growing up in the military". J.M.C. then states D.S.C. had to redo his bed if it's messy and that she herself ensures that there are no lines in her bed

D.L.C.:

• They were grounded for doing something wrong but not really wrong because they (parents) were always kinda strict
• Described being grounded as doing nothing just on the bed and things that have gotten him grounded included saying a bad word and when he helped D.S.C. with his laundry
• Groundings could be for 2 days or 2 weeks
• He and his siblings don't go outside often and that he does not play with J.M.C. because she's usually helping with the girls (A.S.H. and D.L.H.)
• But heard crying and banging and lots of swearing and saw a mark on D.S.C.'s neck. Recalls the choking incident and states it was February, March or April and that D.S.C. had told D.L.C. about it
• D.L.C. stated that D.S.C. told him about being choked and confirmed it was just mom
• Parents swear "fuck […] fuckin' […] asshole [and] dad says "shut your goddamn mouth […] don't fuckin' do that […] shut up […] idiot […] stupid […]"
• D.L.C. states that his parents say to all of his siblings but that D.S.C. is the only one they abuse – he has marks
• His parents call D.S.C. "dumb dumb"
• D.S.C. had a red face sometimes and that D.S.C. is "always like bawling his eyes out" […] because mom and dad hurt him and they scream so loudly scream "don't fuckin' do that"
• D.S.C. gets yelled at really bad and that his parents should not yell at D.S.C. that much
• D.S.C. comes into his bed to talk about stuff and whisper so mom and dad won't hear them
• He is afraid for D.S.C. (to go home) and afraid for A.S.H., D.L.H., and M.M.C.

D.S.C.:

• "Didn't like it", "they kept hitting me", "they were hitting me in the arm, they would hit me in the head and once they choked me"
• Events happened at Unit 45 and now I live in a different place … Unit 5
• "Well I forgot my pills 'cause I take pills … and then she got mad and then my mom got in a fight with me and then um and then she um and then she choked me"
• "She swore at me … she said the F word and the B word"
• "She said fuck you ..son of a bitch ..hell boy"
• He has been taking his ADHD pills for two years
• Choking incident occurred in the "living room" … "she picked me up by the neck"…(she used) two (hands)" "she threw me on the ground" (incident occurred in the) "morning"
• J.H. threw D.S.C. "about five minutes after … he kept swearing … stop forgetting your fucking pills … you're such a hell boy"
• "they do everything on purpose"
• (anything good) "rarely"
• "grounded for things that I don't like …they say I talk back which I don't…"
• (groundings) "own room doing nothing but relax and out to eat and go to the bathroom that's all … we're not allowed to socialize (talk)…with anybody"
• "my dad didn't doesn't let us have his stuff which we like … their stuff is better like honey buns … brownies …or else we get grounded"
• "my neck was bleeding" [after the choking incident]
• "February … graduation pictures in February…" [the timing of the choking incident]
• (have mom or dad hurt anybody else) "no … they yell"
• "my sister got really scared because she ran upstairs …she heard a big bang and then she went upstairs …M.M.C. …she yelled at mom and dad" [during the choking incident]
• "because no one likes me because I got suspended last year"

F. The Admissibility of Various Utterances to Establish the State of Mind of the Declarant Child

[79] On January 25th, May 17th, and June 8th, 2016, one or more of the children made utterances which disclosed their state of mind. On subsequent dates, the children from time to time continued to make contemporaneous declarations of their state of mind. For the sake of simplicity I will reproduce the complete collection of their state of mind utterances in the charts below. In every circumstance listed, I am satisfied that the witness provided an accurate and credible account of the utterance. With respect to each utterance on the list below, I am also satisfied that the declarations were contemporaneous with the state of mind being described. I am also satisfied that the declarations were made without the distorting impact of any manipulation or persuasion by the witness or others present. Below are the admissible utterances regarding each child's state of mind, organized by child and in approximate chronological order:

M.M.C.:

Witness	Statement
Jennifer Lewis – Intake Worker [January 25th, 2016]	M.M.C. disclosed being fearful about going home
K.A.S. - Principal at D[…] Public School [May 17, 2016]	She was going to be in trouble; She was scared
B.B. - Learning Support Teacher at D[…] Public School [May 17, 2016]	"I am afraid to go home"; We're going to be in a lot of trouble when we go home; You don't know how strict our parents are. We're not allowed to go outside, even though there is a park near our house. I've never been to a friend's house. When we get grounded, it's for weeks. My mom, I don't know if she's crazy, because she doesn't take any pills or anything, but sometimes she acts crazy. She screams at the babies. She tells the babies to shut up, but that only makes the babies cry louder; I'm feeling so sick right now. My leg's twitching. My stomach is so upset. I get like this when I know that we're going to be in big trouble. When my mom is mad, she yells, and she has shoved me up the stairs
C.W. - Principal of M[…] Public School [May 17, 2016]	She was afraid of the plan [to return home to her parents that day]
Dr. L. Forbes [post apprehension, while in care, for purposes of psycho-educational assessment]	M.M.C. was very clear and upfront and that she was very, very afraid about being sent home and thought she would be severely punished and eternally grounded and locked in her room. M.M.C. disclosed having nightmares and was concerned about being killed by her parents, particularly if she was sent home
Amanda McCooeye – Children's Services Worker	She does not wish to have access right now because she is scared of her parents but that maybe one day; She expressed to me that she was scared for A.S.H. and D.L.H. because they are just small and when her mom, A.H., yells and swears at them what can they do, they are only two years old. M.M.C. was happy to hear that her brothers were back in the Society's care. M.M.C. advised me that she would see her mom if the access visits were fully supervised at the office; M.M.C. said that at home things "had to be perfect" but how she was never able to do it as her mother wanted. She could never do it "fast enough, or right"; M.M.C. said to me that she has had a few nightmares lately that are different and they are all about if she was sent back home. She said that these could be because she is "worried that if she has to go back, how she will make it all right so that she does not get hurt"; She "does not trust the judge or the CAS to keep her safe". M.M.C. made the comment, "I will be beaten to the ground and in a graveyard before my 15th birthday" if I go home; M.M.C. has always advised Amanda McCoeye that she wants to stay in foster care
K.F.******** – Foster Parent for M.M.C.	When M.M.C. first came into our care she would describe to me and other family members that her nightmares were about her mother and step-father "come to kill her for telling the truth"; On June 21, 2016 M.M.C. advised myself and Wynie Dearlove that she was "glad the babies are back at their foster home". She told myself and Wynie Dearlove that she is not there to "protect them" when mom is angry and can't deal with them screaming, on the floor and leaves me to watch them while she is outside for a smoke. She angrily expressed they can't care for themselves you know; M.M.C. was talking about how she does not trust the judge or the CAS to keep her safe, she then stated "I will be beaten to the ground and in a graveyard before my 15th birthday" if I go home; M.M.C. has always advised A.H. that she wants to stay in foster care

J.M.C.:

Witness

Statement

K.J.**** – Foster Parent

J.M.C. advised K.J. on at least two occasions how to act during the sibling access visits where A.S.H., D.L.H. and J.H. are present. K.J.is not allowed to hug her, tell her she loves her or show their relationship because she is afraid it will make her dad mad; J.M.C. advised that the reason people were on her "kill list" was that they can't be trusted; J.M.C. disclosed an unwillingness to attend the Walmart or Superstore with Ms. J****, because of a concern that she might run into her parents at those stores; It is my understanding that J.M.C. was advised by Society workers on both occasions when A.S.H. and D.L.H. were returned home. On the first occasion I was present. J.M.C. appeared to be sad but stated something like well at least I am an only child; J.M.C. prayed for two to three nights that A.S.H. and D.L.H. would be safe at mom and dad's home. She continues to pray that "they will be safe at home"; J.M.C. will advise me that "I am afraid that they are mad at me", "I'm afraid to see them"; On or around August 22, 2016 J.M.C. advised me that she would be "ok" to see her mom if the visit was supervised by agency staff; J.M.C. has commented on multiple occasions that she wants to be adopted. On July 6, 2016, when I registered J.M.C. for camp I told the camp her last name and J.M.C. interrupted to tell me that I was wrong and that she wanted me to register her as "J. J****"; One of J.M.C.'s nightmares is about adoption and this nightmare has been reoccurring. J.M.C. has difficulty sleeping through the night. J.M.C. was prescribed melatonin to assist her in sleeping through the night, which commenced August 27, 2016. Often when J.M.C. wakes up she is calling out for me. J.M.C. has advised me on multiple occasions that it is "stuff from my past"; On September 12, 2016 J.M.C. finished one of the occasions with Dr. Forbes and asked if she was being tested because she was in foster care. I told her "yes" and then she said she "wished I could get adopted". I just told her that this is all part of the process. She immediately said that if she did well on the tests she could get adopted

D.L.C.:

Witness	Statement
Constable Marcia Geling	He is afraid for D.S.C. (to go home) and afraid for M.M.C.
Amanda McCooeye – Children's Services Worker	Advised D.S.C. and D.L.C. that I was taking them to a foster placement they appeared happy and said "yes!"
J.B.****** – Foster Parent for D.S.C. and D.L.C.	D.L.C. advised both P.B and I that he "missed his mom and dad". We explained why they cannot see them right now and D.L.C. then stated how he wanted to go home to see his friends and he missed his school and his sisters. Following this conversation D.L.C. then stated that he wanted to go home and that "it is a fifty-fifty chance that mom and dad will be different" and that he "would be willing to take that chance for his friends". D.L.C. stated that if rules were in place things would be different as his mom and dad would have to follow the rules; D.S.C. is D.L.C.'s favourite thing in the whole world; D.L.C. in response to D.S.C. not wanting to attend a sibling visit replied – "well I'm not going without D.S.C."; The Videotape from the Wallacetown Fair, depicting D.L.C.'s Speech in which he Explains Why D.S.C. is his Favourite Thing in the World

D.S.C.:

Witness	Statement
SUSAN NICHOL, Resource Worker and the Society	D.S.C. said "I don't want to go. I don't feel safe there"; D.S.C. stated randomly that "I don't want to go home because I'm not safe or comfortable there"; D.S.C. said he likes talking to workers "because they gather all the information and can tell the Judge". D.L.C. said he kind of likes talking to workers; D.S.C. said that he can't go home because he is not safe several times and that he doesn't feel "comfortable going home
P.B.******, Foster Parent	D.S.C. asked who folded them and I said "me". D.S.C. then stated that "if I folded socks like that I would be grounded for a week"
J.B.****** – Foster Parent for D.S.C. and D.L.C.	D.S.C. said he didn't want to go to a sibling access visit with A.S.H. and D.L.H. because he didn't like the way J.H. treated the girls in front of him; Both D.S.C. and D.L.C. said that it was "all their fault" and that they "didn't trust anyone". D.S.C. and D.L.C. expressed that they felt bad that their mother was arrested; D.S.C. asked if it was good news. I said "what would be good news?" D.S.C. said "if we get to stay here". I then stated that the news is "different" than that and we can talk about it
Amanda McCooeye – Children's Services Worker	D.S.C. asked me about seeing his mother and little sisters. He said that "even though I don't want to live with my Mom, she is still my Mom"

G. The Admissibility of Other Utterances [for their truth] by the Children to various CAS Workers and Foster Parents

[80] By and large, subsequent statements made by the four oldest children to others constitute a repetition of what was already reported to the people present at D[…] Public School on May 17th and to Officer Geling on June 8th. Apart from utterances which establish the ongoing states of mind of the children, much of this other hearsay evidence amounts to repetitions of or variations on a theme.

[81] Having said that, I make the following observation. In my view, although prior consistent statements may not (with some exceptions) be employed to buttress the assessment of a witness's ultimate credibility, they may permissibly be used at the stage of the assessment of the threshold reliability of a particular hearsay utterance. When a witness testifies under oath at trial, the prior consistent statements are unnecessary [since the witness has already testified to the facts in issue]; are of limited probative value in assessing the testimonial credibility of the live witness; and risk unnecessarily prolonging proceedings. When employing the principled exception to the hearsay rule, the prior consistent statements are, due to the absence of the witness, both necessary, relevant, and likely to have higher probative value. The fact that the children consistently, and often spontaneously, characterize their parents' behaviour in a certain fashion tends to support the conclusion that the only likely explanation for their consistent assertions is that the assertions are true. I say this because I cannot conceive of a rational explanation for any of these children to consistently assert specific factual falsehoods about their parents for an improper motive. For example, it is clear that D.S.C. is motivated to stay in care; and it is clear from his state of mind utterances that he viewed his life at home with his biological mother to be an unpleasant existence. His only apparent motive to stay in care is entirely consistent with the truth of the allegations he repeatedly makes. I cannot conceive of a plausible motive for him to make his assertions to his foster parents and CAS workers that is inconsistent with the truth of those assertions. Similarly, with M.M.C., there appears to be an absence of any realistic motive to continue an ongoing campaign of fabrication. D.L.C. and J.M.C., on the other hand, gradually made declarations to workers and foster parents, and ultimately their OCL counsel, that suggested a desire to return home. In D.L.C.'s case, the primary professed motive to return home, interestingly, is to be with his old school friends [as opposed to his parents]. J.M.C., on the other hand, presents as having a profound attachment to her twin sisters [for whom she complained she was required to provide an inordinate amount of parental care]. While there exists some evidence that both have at various times been conflicted on this subject, there is no evidence to suggest a motive to continue to make consistent allegations about the conduct of their parents. Indeed, there is an apparent motive for both of them to recant their allegations -- yet neither did.

[82] I therefore conclude that the admissible hearsay utterances from January 25th, May 17th, and June 8th may be relied upon as corroboration in assessing the threshold-reliability of many subsequent utterances by the four older children to CAS workers and their respective foster parents.

[83] I would also observe that, without exception, that I found the various witnesses who proffered hearsay evidence on behalf of the society to be reliable and credible historians.

[84] I also observe that with respect to the utterances that I am about to list, all of them were made in circumstances that suggested an absence of manipulation by those who witnessed the hearsay utterances. The utterances that I am about to list were not the product of leading questions, suggestion, or inducements. I accept the Society's written submissions wherein it submitted that the circumstances in which they were made provide a circumstantial guarantee of inherent trustworthiness.

[85] For all of these reasons, I will admit the utterances listed in the following chart for the purpose of proving the truth of their contents. Before turning to the list of admissible hearsay utterances, I will note that I have exercised my discretion to decline to admit some utterances tendered by the Society, having concluded that they have limited probative value and do not sufficiently assist me in the fact finding process.

[86] I will also note that a small of the utterances are admissible as proof of the state of mind of the declarant at the time of the declaration.

[87] Having made these comments, I will now list the other out-of-court statements that I will admit for the truth of their contents:

M.M.C.:

Witness	Statement
Wynie Dearlove – foster support worker	M.M.C. reports that she "freaks out" sometimes and gets very angry when requests or expectations are made. She also reports spending time alone in her room because she believes people are talking about her. M.M.C. reports going upstairs to bathe or shower and then coming out of the bathroom without having had a shower/bath but still thinking that she has had a shower. M.M.C. describes "zoning out" when she is stressed or upset. M.M.C. describes coming home from school in a terrible mood but not being aware why she is in a bad mood or how to stop it. She states these moods often last for several hours and she feels that there is not much she can do to "snap out of it"
Amanda McCooeye – Children's Services Worker	Asked if she has told her mother that it [her foot] still hurts and she said yes she has but her mother keeps saying she is fine and she is not taking her to the doctors; She said that she would go to school, wait for J.M.C. after, go get her brothers, and walk home. When they got home, they were expected to go in the house and stay. Once in a while they were allowed to go out in their little yard and play but they had to play with each other as her mom did not like them playing with anyone else. She said they were not allowed to go see friends, even when the one friend, her mother knew was a good kid. She said that she could only see friends at school and that was only at recess so it was not a lot; She said that they could not ask for food and they could only have food if they were offered; She said that her mother hit her one time on her leg and for 3 hours she could have traced the handprint on her leg but she did not trace it because her mother would see it and be really mad. She said J.H. did not hit her. She said that her biggest fear, since she was 6, was her parents yelling at her. She gets really scared when they yell. She said "there is yelling, and then there is more than yelling, and that is what my mom did"; She said that her mother would ask her why she 'lied' when the worker left and M.M.C. wanted to say that she was being honest but her mother would ground her for a month so she would just not say anything. M.M.C. said that she is worried because she told these stories so many times but never did the worker believe her and take them away; M.M.C. talked about when she was grounded. She would be in her room. She said that she could come out to go to school or to eat when asked by the parents. If she was thirsty, too bad, had to wait till a meal time. She said this was sometimes really hard because it was summer and really hot in her room upstairs. She said that she would have to lie and say she had to go to the washroom to drink from the tap because she was so thirsty; She expressed to me that she was scared for A.S.H. and D.L.H. because they are just small and when her mom, A.H., yells and swears at them what can they do, they are only two years old. M.M.C. was happy to hear that her brothers were back in the Society's care. M.M.C. advised me that she would see her mom if the access visits were fully supervised at the office; M.M.C. said that at home things "had to be perfect" but how she was never able to do it as her mother wanted. She could never do it "fast enough, or right"
K.F.******** – Foster Parent for M.M.C.	When M.M.C. first came into our care she would describe to me and other family members that her nightmares were about her mother and step-father "come to kill her for telling the truth"; M.M.C. spontaneously came to me and stated "mom has never had to go to jail before". I then asked her what is different and M.M.C. stated "mom hits" and then stated "that is what people go to jail for"; She has told both G. and I that her food was often limited, or unavailable when she was hungry (the first 7 days of care she said this daily at meals); She told myself and Wynie Dearlove that she is not there to "protect them" when mom is angry and can't deal with them screaming, on the floor and leaves me to watch them while she is outside for a smoke. She angrily expressed they can't care for themselves you know; M.M.C. responded "well if you were hit in the head as many times as me you would be ducking also"; M.M.C. had come to me and demanded to see her mom right away about different things she wanted answers for. The last week of August she came to ask me about her mother choking her brother, kicking and pushing him upstairs when he is "too slow". Before I could answer she switched the subject and said that "isn't why I really came but I came to talk about me being hit in the head multiple times as a child" and she went on to say that before she went into the Naylor's care and after returning home and she then asked if that was why she was on medication. M.M.C. then stated that she hears voices. M.M.C. said that she had enough when she went home and she got mouthy and stood up for herself and that is why her mom "smacked her". I asked her if there was anything she wanted to say and she shook her head violently. I asked her what made her think of this and she said she is "worried the judge will make (me) go home". M.M.C. then stated that she was scared that if she went home she would really be blamed and if mom choked her she could die and no one would know it but me; After this M.M.C. advised us how she used to watch scary movies with her mother in the middle of the night; M.M.C. stated that when they were returned home last time she was blamed for everything that happened. She said that when she was home the last few years, she tried really hard to do everything her mother wanted because she felt guilty for splitting her family up. M.M.C. was talking about how she does not trust the judge or the CAS to keep her safe, she then stated "I will be beaten to the ground and in a graveyard before my 15th birthday" if I go home

J.M.C.:

Witness	Statement
Wynie Dearlove – foster support worker	"Meanest to D.S.C. and M.M.C." and "not as mean to me and D.L.C." and "only yelled at the babies"; J.M.C. stated that if she tried to explain to her mom what had happened that her "mom would get her creepy mad look on her face and stare. Wynie Dearlove asked J.M.C. if that look had words what would the words be and she stated "I'm gonna get you"; Her mom would only get mad at the babies if they "wouldn't shut up or go to bed"; J.M.C. stated that she probably wouldn't get to see them because "I don't want to see my mom that would be too scary"
Amanda McCooeye – Children's Services Worker	"VERY strict and they will freak out, scream, swear at us, and punish us too much for anything we do"; "If we do one thing, like bring the i-pod to school, they will keep us in our room for a week and we are not allowed to come out"; "We cannot say we are hungry and if we use the bathroom too much we are not allowed to use it anymore either." J.M.C. stated that "we have all our stuff taken away so for the week all we can do is sit on our beds"; "Never allowed to say we are hungry or ask for food. It has to be offered to us." "At meal times, we eat what is given to us; we are not allowed to ask for more"; "We are not allowed to play with friends after school or on weekends. We have to stay in the house. We can see the park from our house but we are not allowed to go to it." She stated, "My parents would not let us go to birthday parties or have friends over our house. I think my mom was 'over protective'. I am not sure why she is like this now because when we were younger and lived at our other house, she would let us do whatever we wanted and did not care"; In my room for being bad, or when I was not, I had to watch my little sisters. I think this might be so that I cannot play. The only playing I did was with my little sisters. We were not allowed outside; Parents "screamed, swore, and sometimes would shove us into walls and stuff and my Dad treated us different than the babies"; "Weird how my parents always tell us to not lie and we get in trouble for lying but then when you guys come to check up on us, they tell us to lie and not say anything"; J.M.C. said that she wants to say 'no' to visits but she is really 'scared that her parents will be really mad'; "I don't want to wake the babies if they are sleeping, mom would be mad"; J.M.C. replied "What? Yes she does." I asked her what this book was about and she said that her mother "took it from her a long time ago because it had photos of her and the Naylors", her old foster parents, and her mother took it "because she said that she wanted her to forget about them". I told her that if she wanted, she could ask Mom today for the book while we were there and she said "No, I don't want to ask because my Mom will get mad"
K.J.**** – Foster Parent	J.M.C. advised that her parents needed to use her twenty dollars for gas to get her home from the access visit; It is my understanding that J.M.C. was advised by Society workers on both occasions when A.S.H. and D.L.H. were returned home. On the first occasion I was present. J.M.C. appeared to be sad but stated something like well at least I am an only child; J.M.C. prayed for two to three nights that A.S.H. and D.L.H. would be safe at mom and dad's home. She continues to pray that "they will be safe at home"; J.M.C. will advise me that "I am afraid that they are mad at me", "I'm afraid to see them"; On or around August 22, 2016 J.M.C. advised me that she would be "ok" to see her mom if the visit was supervised by agency staff; J.M.C. has commented on multiple occasions that she wants to be adopted. On July 6, 2016, when I registered J.M.C. for camp I told the camp her last name and J.M.C. interrupted to tell me that I was wrong and that she wanted me to register her as "J. J****"; I asked J.M.C. if I could attend the tournament and watch her play and she appeared to be surprised and stated something like – nobody has ever come to anything before; J.M.C. hides her shoes under her bed and she reported that she used to "watch super scary movies"; One of J.M.C.'s nightmares is about adoption and this nightmare has been reoccurring. J.M.C. has difficulty sleeping through the night. J.M.C. was prescribed melatonin to assist her in sleeping through the night, which commenced August 27, 2016. Often when J.M.C. wakes up she is calling out for me. J.M.C. has advised me on multiple occasions that it is "stuff from my past"; On September 12, 2016 J.M.C. finished one of the occasions with Dr. Forbes and asked if she was being tested because she was in foster care. I told her "yes" and then she said she "wished I could get adopted". I just told her that this is all part of the process. She immediately said that if she did well on the tests she could get adopted; J.M.C. stated that nobody has ever helped her with homework before

H. Utterances Made by A.S.H. and D.L.H.

[88] Given their young ages, it is not surprising that the Society proposes to tender only a few utterances of the twin girls.

[89] The evidence of Wynie Dearlove (the foster support worker for these twins) and K.J.**** (the foster mother) reveals that the twins would from time to time use profanities, such as "fuck off" and "fuck that". Ms. J**** noted that such profanities were common during diaper changes. This evidence would tend to corroborate J.M.C.'s assertion on May 17th, 2016 that A.H. would yell and swear at the twins during diaper changes.

[90] Wynie Dearlove also testified that during home visits with the twins' foster mother (Ms. J****), she noticed that the twins became very agitated when the she and Ms. J**** departed the room. She testified that the girls would stand at the baby gate screaming when they walked out of room. They would scream, "No bad baby. No fucking bad baby." This evidence suggests that the twins thought they had been bad simply because their caregiver had left the room. They had to be taught the phrase "fucking bad baby" somewhere. The evidence suggests that they learned this phrase from one or more caregivers. The evidence also provides circumstantial evidence that the twins had learned to associate the departure of a caregiver from the room with their alleged bad behaviour.

[91] The probative value of these proposed utterances comes from the fact that they were said at all, not from the truth of the contents of the utterances. The utterances provide circumstantial evidence of (1) the state of mind of the twin who made the utterance and/or (2) the environment in which the twins existed when they lived with A.H. and J.H.. I am therefore of the view that the utterances in question are admissible for that purpose.

V. THE COURT'S ASSESSMENT OF THE IMPORT AND WEIGHT OF THE ADMISSIBLE HEARSAY EVIDENCE

A. The Judicial Approach to the Assessment of Children's Evidence

[92] Historically, both the common law and statutory law treated the evidence of children treated as inherently unreliable. Indeed, the Criminal Code made corroboration a prerequisite for the court's reliance upon the evidence of a child. Such statutory provisions have long since been repealed, and the common law has evolved over the last thirty years.

[93] The old rule that the testimony of children suffers from inherent frailties is just that, an old rule. It is no longer the law either in statute or at common law. Testimony is not suspect merely because the witness is a child. However, there also does not exist a presumption that children's evidence is inherently reliable. The same standard of proof applies to the evidence of children and adults; and, just as with adults, a judge is free to treat a child's evidence with caution where the circumstances of the particular case indicate caution is appropriate. [See: R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.)].

[94] Having said that, the appellate courts have urged the judiciary to take a common sense approach to the evidence of children. Courts are encouraged to understand that children may sometimes have a decreased capacity to make observations; to recall events; and to communicate. [see: R. v. E.(A.W.) (1993), 83 C.C.C. (3d) 462 (S.C.C.)].

[95] In recognition of the different ways in which children experience the world and interact with it, Wilson J. provided the following guidance with respect to the assessment of the evidence of children:

... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults . However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult . I think his concern is well founded and his comments entirely appropriate . While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it . In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

R. v. B.(G.) (1990), 56 C.C.C. (3d) 200 (S.C.C.)

B. This Court's Assessment of the Credibility and Reliability of the Evidence of the Children

[96] As noted previously, I saw virtually no evidence of collusion amongst the children. I recognize the circumstance of all the children waiting in the same classroom on May 17th, 2016, to provide statements to a Society worker. However, even on that occasion, the children appear to have spoken spontaneously in each other's presence, and made only a few factual assertions in each other's presence. The main interviews of each child [the interviews conducted by Nicole Kuipers and Constable Geling] were conducted in isolation from the other children.

[97] In the primary interviews, the older four children essentially corroborated one another when providing the broad brush strokes of their depiction of life at home. What emerges from their respective accounts of life at home is a picture of a repressive home environment; where the parents do not trust outsiders; where the children are not permitted to have friends over; where unjust excessive groundings for minor infractions are routine; and where yelling and swearing by the parents at the children is routine; where two of the children (D.S.C. and M.M.C.) receive the brunt of the abusive conduct; and where violence against D.S.C. is not uncommon. The evidence of all the children suggests that A.H. had a paucity of positive interaction with the children; and instead practiced avoidance. Groundings facilitated avoidance; reliance upon J.M.C. [and to a lesser extent M.M.C.] as a substitute parental figure for the twin girls facilitated avoidance; and going outside for a smoke facilitated avoidance. Interestingly, the utterances of the twin girls [probative by virtue of the fact that the utterances were made at all] provides a striking piece of corroboration of the picture painted by the other children. As they see the adults leave the room to talk in private, they both scream phrases like, "No bad baby. No fucking bad baby." The consensus depiction of the parents, particularly A.H., was that of parents struggling to cope with the demands of parenting six children while simultaneously struggling to cope financially.

[98] The failure of both parents to cope with the demands of parenting also manifested itself in physical violence towards at least some of the children, particularly D.S.C. and M.M.C.. While the hearsay utterances reveal A.H. to be the main perpetrator of violence towards these two children, they disclose J.H. employing violence at times as well. For instance, D.S.C. reports J.H. throwing him off of the couch and calling him a hell boy.

[99] As noted previously, subsequent statements of the children to Society workers or foster parents by and large constituted variations on a theme already clearly established by the two primary interviews.

[100] As noted, A.H. herself provided corroboration for some of the depictions when speaking to Ms. Lewis in January of 2016. She also provided some corroboration, perhaps unwittingly, in her testimony. For instance, I note her admitted unwillingness to allow other children over for a visit.

[101] I also note that the children's depiction of A.H.'s inability to cope is consistent with the factual findings of Justice Tobin in 2013. As in 2013, the basic necessities of life are provided, but evidence of the children continues to suggest that the parents struggle to meet the social, emotional, and psychological needs of the children. As in 2013, violence towards some of the children remains a factor in the parenting of the children.

[102] In my view, J.M.C. provides a description of an act of violence by A.H. towards D.S.C. that is strikingly similar to a description provided by D.S.C. himself. Both provide their accounts in their respective video recorded police interviews. Neither had the opportunity to collude with the other. Both described A.H. throwing D.S.C. off of his bed.

[103] As already noted, M.M.C., D.L.C. and D.S.C. all provide compelling corroboration about the incident in which A.H. allegedly strangled D.S.C.

[104] I appreciate that there are some inconsistencies or difficulties when one compares and contrasts all of the utterances. For example, some of the children seemed to resort to hyperbole when discussing the length of the groundings [J.M.C. described D.S.C. being grounded for 5 months]. In addition, there are variations in the specific details of certain alleged events, including the date and more precise details about the events. In my view, the majority of the frailties in the statements of the children can be attributed to the fact that, as children, they experience the world differently and have a lesser capacity to communicate their experiences with precision and clarity.

[105] I also appreciate that Justice Tobin found M.M.C. to have been dishonest about one specific allegation when making his factual findings in 2013. I note however, that Justice Tobin also accepted many of the factual allegations made about A.H.'s parenting struggles, some of which were based upon the hearsay allegations of M.M.C. and the other children.

[106] For all of the above reasons, and having considered the hearsay utterances in light all the other trial evidence, I found the hearsay utterances of the children to be generally credible, reliable, and compelling.

VI. OTHER PRE-APPREHENSION EVIDENCE

[107] In addition to the now admissible hearsay evidence of the children, the Society marshalled some additional evidence about the parents and the well-being of the children.

[108] C.W. was the school principal at McGregor Public school. She provided some evidence about D.S.C. and D.L.C.. She described D.S.C. as attention seeking. He was prone to complaining about minor injuries that did not warrant much attention or a call home. He was often in the main office nursing these minor ailments. He was also prone to other attention seeking behaviours in the classroom [taking things and being dishonest when confronted] and had trouble adapting socially with his peers. It was not uncommon for his teacher to seek Ms. C.W.'s assistance. D.L.C., on the other hand, was a more reserved child. He presented as being more mature and socially adept. In Ms. C.W.'s view, he presented as being like an older brother to D.S.C.. She noted that, although the boys were placed in separate classrooms [not uncommon], they generally spent their time at recess together. Ms. C.W. described them as having a "close" relationship.

[109] Ms. C.W. also offered some evidence about A.H.. During a discussion with A.H. about some of D.S.C.'s attention seeking behaviour, A.H. told Ms. C.W. that D.S.C. was "a liar", which Ms. C.W. found disconcerting. In her view, A.H. chose to use specific actions of her child to define his character as a whole.

[110] Ms. C.W. observed that since the Society's intervention on May 17th, the school had few issues with D.S.C. during his remaining tenure at her school.

[111] D.T., A.H.'s aunt also provided some historical evidence. She observed that A.H.'s mother, who was A.H.'s main source of support, died in 2015. D.T. was the sister of A.H.'s mother. While A.H.'s mother had confided in D.T. about issues with A.H. prior to her death, D.T. had little involvement with A.H. prior to the death of A.H.'s mother. D.T. had promised her sister, however, that she would step in and assist once her sister had passed away.

[112] D.T. noted several observations about the children. In general, she noted that they appeared to "walk on eggshells" around their mother. In essence, she described an atmosphere of fear, consistent with the atmosphere described by the children in their out-of-court statements. She also described D.S.C. and M.M.C. being the target of more harsh discipline, again consistent with the out-of-court statements of the children. She also noted that A.H. had harsh words for D.S.C. and M.M.C.. She heard A.H. saying things like, "If you'd have kept your big mouth shut, we wouldn't be where we are today." D.T., indicated "that was the picture I got every time" she visited. D.T. also described a favouritism bestowed upon some of the children, J.M.C. in particular. In that same vein, she described J.M.C. assuming the mantle of the child in charge of the others. This evidence is consistent with the out-of-court utterances of J.M.C., wherein J.M.C. complained of being consistently left in charge of the twins by her mother. To some degree, this evidence is also consistent with the utterances of M.M.C. wherein M.M.C. complained that her mother would frequently leave M.M.C. in charge while her mother stepped out for a smoke. The common theme presented by all these sources of evidence is this: A.H. had trouble coping with the daily routine of parenting, and consequently adopted a strategy of avoidance and delegation of responsibility to the older children, primarily J.M.C., who thrived more in the parental role than M.M.C.. Consequently, J.M.C. received favouritism; M.M.C. received wrath.

[113] Further evidence of J.M.C.'s pre-apprehension caregiving role comes from the mouths of both A.H. and J.M.C.. As noted previously, when D.T. temporarily stayed with the children between May 17th and May 20th, 2016, D.T. sought guidance from A.H. about how to care for twin toddlers. A.H. declined to give any guidance herself. Instead, she reflexively told D.T. to ask J.M.C.. J.M.C. in turn was able to recite chapter and verse the twins' routine.

[114] D.T. also noted that M.M.C. had a "crooked foot" about which M.M.C. frequently complained [primarily about being teased by other kids about the way she walked]. She noted that historically, A.H. resisted any suggestion by D.T. that A.H. take steps to get M.M.C.'s foot surgically repaired. In her testimony, A.H. appears to acknowledge the issue, but considers it to be a relatively minor one; an ailment she herself suffered and survived. To be fair, I would also note that the Society has not, in the 1.5 years M.M.C. has been in care, taken any steps to address this issue either.

[115] In addition, D.T. observed that, in the past, A.H. was simply going through the motions when complying with past Society supervision. She was not particularly specific in describing the facts upon which she based her conclusion. She essentially provided a description of a cumulative set of behaviours and a pervasive attitude. I do note however, that she specifically described A.H. repeatedly blaming the Society interventions upon the children rather than herself: "If you'd have kept your big mouth shut, we wouldn't be where we are today."

[116] Having made these observations about the evidence of Aunt D.T., I have come to the conclusion that she provides a description of A.H. and the children's home life that accords with the general description provided in the hearsay statements of the children.

[117] I would also observe that D.T. described J.H. as a loving and devoted father, who adored his children. She did not observe any problematic behaviours by J.H. towards the children. I note here that the evidence presented at trial established that J.H. worked full time and that A.H. was the primary caregiver of the children. That said, D.T. did not witness in J.H. the same kinds of problematic behaviours she witnessed in A.H.. In that sense, she did not corroborate the hearsay accounts of the children. Given her limited ability to observe J.H.'s parenting, I do not place much weight upon what might be characterized as a contradiction between her evidence and the children's evidence about J.H.'s parenting.

VII. THE PARENTS' EVIDENCE IN RESPONSE TO THE PRE-APPREHENSION EVIDENCE

[118] Both A.H. and J.H. gave evidence in this trial.

[119] A.H. denies the vast majority of the allegations against her. Essentially, A.H. presented as being the victim of an ongoing CAS campaign, of years in duration.

[120] Indeed, A.H. denies or disagrees with the findings of fact made by Justice Tobin in 2013. A.H. also downplayed the contents of prior Statements of Agreed Facts, signed by her in June and November of 2007. In both Statements, she conceded child protection concerns and consented to Society supervision. At the current trial, however, A.H. declared that she simply signed what she was told to sign, and was not aware of the contents of the Statements. This claim is patently false, and is belied by the fact that various revisions were made to the Statements, each revision bearing her initials. Of note, in the June 14, 2007, Statement, A.H. admitted the following, at paragraph 7 of page 5:

As a result of the continuing concerns with respect to the children's exposure to violence in the home, and Ms. Pratt's [her surname at the time] lack of cooperation with respect to safety plans and no-contact agreements focussed on taking precautions around ensuring the children's safety , the children were apprehended.

This admission flies in the face of A.H.'s current suggestion that she is a victim of longstanding unwarranted Society intervention. This admission is also consistent with the children's complaints that A.H. has consistently resisted Society involvement and exacted retribution upon the children when they complained about her. This admission, is also paradoxically consistent with her assertion that she is a victim of a longstanding Society campaign: she does not cooperate, she resists any suggestion of wrongdoing, she exacts retribution upon any of her children who complain, precisely because she does not view her conduct as problematic. Instead, she voices concern about the Society and the truthfulness of her children; and [despite the contents of two signed Statements of Agreed Facts] she voices anger that her children were apprehended in the past. In her evidence, I saw little to no ownership of her past parental shortcomings. Her trial stance is entirely consistent with the picture painted by the various Society witnesses: a woman with little insight into her parental shortcomings and woman who has failed to internalize past parental counselling efforts.

[121] I am troubled by A.H.'s response to the Society's cross-examination about the historical Statements of Agreed Facts. In my view, she lied when she asserted that she signed, without reading, the documents she was told to sign. I acknowledge that, after being presented with the documents for review, she backed away from this lie. However, the lie itself, was consistent with the complaint about her pattern of conduct: she is a woman who lives in denial and strikes out at those who suggest she has shortcomings as a parent. Both the Society and her children have been the objects of her ire.

[122] A.H. also denied she ever hit any of her children or employing any physical violence. She denied using groundings excessively. She denied the children's complaints about strictly limiting the children's food consumption [for budgetary reasons], but admitted being on a strict budget. She denied burdening any of her children with responsibilities that were not commensurate with their age, and explained that all of her children were independent. She denied that any of her children [apart from D.S.C., who had ADHD and behaviour issues commensurate with that condition] had displayed adverse emotional or psychological trauma whilst in her home, implying that any symptoms discerned since their apprehension were the product of being placed in care, rather than the product of her parenting.

[123] A.H. also denied the evidence of Jennifer Lewis about the January 25th, 2016 waffle incident. As previously noted, I reject her evidence on this point. I accept the evidence of Jennifer Lewis that A.H. made various inculpatory admissions. A.H.'s flat denial of the conversation and resulting admissions undermines her testimonial credibility. This is the second instance in which I have concluded that A.H. has been dishonest with the court. As will be seen when I discuss A.H.'s evidence about post-apprehension events, I have found A.H. to be dishonest on a number of occasions in this trial.

[124] J.H. presents a similar blanket set of denials to the denials provided by A.H.. He too presents a fairly idyllic picture of family life. He denies yelling at or using any physical discipline on the children. He essentially denies the existence of any facts which might ground a protection concern.

[125] J.H. also denies making inculpatory admissions to Jennifer Lewis on January 25th when she discussed the waffle incident with him. Like A.H., I also reject his evidence on this point. His general credibility suffers as a result.

[126] Interestingly, A.H. describes J.H. as being a meek individual, a "mouse". Having watched her testify and listened to her description of her spouse, it is clear to me that J.H. has assumed a somewhat subservient role in the relationship. There is no doubt in my mind that A.H. is in charge. This balance of power stands in stark contrast to A.H.'s prior relationships.

VIII. POST APPREHENSION EVIDENCE

A. M.M.C.

[127] M.M.C. has been in care since her apprehension on May 17th 2016. The Society placed her with K.F.******** and her spouse, C."G." F********. They have signed up to the Foster-to-Adopt program in the region, so that they are able to provide permanency to any children placed in their care. They have both taken various courses to assist in fulfilling their role as foster parents, including PRIDE, Equine Assisted Growth and Learning with EAGALA. They live in an old farmhouse in the country side in this region. There are numerous animals on the farm. They also operate Funny Farm Incorporated / Farmtown Canada from their rural property. This is an animal-based program designed to "offer support to young people to find their way."

[128] Ms. F******** and her spouse have provided M.M.C. with a nurturing, safe, structured, and supportive environment. In addition to attending school, M.M.C. has been involved in a volunteer teen group at the farm, a youth group at church, church, and a girls' empowerment group.

[129] During M.M.C.'s stay with the F******** family, M.M.C. displayed various emotional, educational, and behavioural issues. As a result of concerns about her difficulties at school, she was referred for a psycho-educational assessment. Dr. Forbes performed the assessment in September of 2016. Dr. Forbes testified as an expert witness in this trial. She is a clinical psychologist. In her opinion, M.M.C. suffered from a number of cognitive deficits. In addition, M.M.C. presented with Post Traumatic Stress Disorder (with dissociative symptoms) and Complex Developmental Trauma. During her clinical assessment, she observed that M.M.C. at times had dissociative episodes, wherein M.M.C. "zoned-out". Dr. Forbes made recommendations about the comprehensive treatment and therapy necessary to address the anxiety, dissociative symptoms, emotional, and cognitive/educational challenges faced by M.M.C.

[130] As noted when addressing the admissibility of hearsay utterances above, M.M.C. from time to time made statements about her state of mind and about her life with her mother. I will not repeat those utterances here. I will simply summarize them by saying that M.M.C. voiced concern about the welfare of her twin sisters, she also spoke of past abusive behaviour at home, of an ongoing fear, and of a distrust in the Society's and court's ability to protect her.

[131] Ms. F******** and her husband have been diligently attempting to provide support and assistance to M.M.C. to address her psychological and educational issues. They have pledged to continue to provide her with the necessary personal and professional support she requires. They have also pledged to provide a permanent placement for M.M.C.

[132] M.M.C. has consistently, during her time and care, voiced her desire to stay in care. Her counsel, while not advancing evidence, has provided input about M.M.C.'s views and preferences. This input is consistent with the numerous state of mind hearsay utterances M.M.C. has made whilst in care.

B. J.M.C.

[133] J.M.C.'s situation is a complicated one.

[134] Upon apprehension, the Society placed J.M.C. and her twin sisters with K.J. and W.J.****. They are part of the Foster-to-Adopt program. They provided a stable, structured, safe and nurturing home environment for J.M.C.

[135] Just like M.M.C., the Society referred J.M.C. to Dr. Forbes for a psyco-educational assessment in September of 2016. Just like M.M.C., J.M.C. presented with Post Traumatic Stress Disorder (with dissociative symptoms) and Complex Trauma Disorder. Dr. Forbes noted that J.M.C. had a learning disability but generally had a higher IQ and cognitive functioning level than M.M.C.. Dr. Forbes also provided recommendations about comprehensive treatment and therapy necessary to address the anxiety, dissociative symptoms, emotional, and educational challenges faced by J.M.C.

[136] Upon her initial arrival, J.M.C. presented as somewhat fearful. She also observed that J.M.C. attempted to play a significant caregiving role for her twin sisters. Ms. J**** attempted to assure J.M.C. that she was not required to parent the twin girls; that Ms. J**** and her husband could do that. J.M.C. struggled with hygiene initially. She also struggled with anxiety and nightmares. She frequently sought reassurance from Ms. J****, who provided love and reassurance to J.M.C.. Having said all that, Ms. J**** described J.M.C. as amazing, kind, encouraging, helpful, and beautiful. She also initially expressed a desire to be adopted, despite expressing a love for A.H.

[137] While the temporary Order of Justice O'Dea [made on June 9th, 2016] permitted J.M.C.'s parents to have access to J.M.C., J.M.C. was initially resistant to access and expressed fear of her mother. She was afraid her parents would be mad at her. She also expressed fear of running into them while out shopping with Ms. J****.

[138] After the court ordered the temporary placement of the twin sisters with A.H. and J.H. on July 28th, J.M.C. was deflated. J.M.C. soon became more receptive to access visits with her mother. It is clear to me that she missed daily contact with her sisters and the loss of her sisters hit her very hard.

[139] By September of 2016, J.M.C. commenced weekend access visits with her parents. That access occurred on Saturdays. J.M.C. also had sibling access visits with M.M.C., D.L.C., and D.S.C. on Sundays.

[140] Once regular parental access occurred, which necessarily also involved contact with her twin sisters [whom she obviously missed dearly], J.M.C.'s behaviour at her foster home deteriorated significantly. Her behaviour was often ambivalent. On the one hand, she presented as being very needy, requiring excessive amounts of love, support, and assurance from Ms. J****, especially after access visits. On the other hand, she often spoke harshly to her foster parents, as if rejecting them, especially before access visits. By the time Mr. J**** testified near the end of the trial, the J****' had been forced to remove J.M.C.'s bedroom door from its hinges, because of her self-harming and erratic behaviour.

[141] While the J**** family had initially been committed to providing permanency for J.M.C., they became ambivalent as J.M.C.'s behaviour worsened. When Ms. J**** testified, she was uncertain whether or not she and her husband could commit to permanency. Mr. J**** was called as the last witness at trial. By the time of his testimony, he and Ms. J**** had been able to reflect further on the issue, and they had both recommitted themselves to permanency. However, his willingness to provide permanency was contingent upon the cessation of access by A.H. to J.M.C.. He viewed, quite reasonably, there to be a correlation between the access visits and J.M.C.'s volatile emotional states.

[142] In September of 2016, J.M.C. told Society Worker Amanda McCooeye that she wanted certain specific stuffed animals [unicorn stuffies] and her Memory Book from her mother's home, so that she could have them while in foster care. The Memory Book had been created in commemoration of her previous time in foster care with a different foster family. J.M.C. had declared a significant sentimental value to both the Memory Book and the stuffed animals. On September 6, 2016, Natalie McLachlin attended for a home visit with A.H.. During that home visit, Ms. McLachlin asked for the stuffed animals and the Memory Book. A.H. told Ms. McLachlin that she was unwilling to part with the stuffed animals and the Memory Book. She explained that the stuffed animals in question had belonged to her when she was a child. They were a mother-daughter gift from her to J.M.C.. She was afraid that if J.M.C. went into care, she would not see them again. With regard to the Memory Book, A.H. claimed not to know about it or to what J.M.C. was referring.

[143] A.H. testified about the Memory Book and stuffies at trial. By the time of trial, it is clear that A.H. knows exactly what the Memory Book was. She asserted that the Memory Book still exists [not destroyed as J.M.C. feared], that since being asked for it, she found it in a hope chest, and informed Ms. McCooeye of its discovery. She also denied that J.M.C. had ever asked for it. However, as I understand the evidence, she has never provided this apparently important book to her daughter, claiming J.M.C. has never personally requested it. She also indicated that this book was personal to her and her family, and she planned to give these Memory Books [a.k.a. Life Books] to the children when they grew up. With respect to the unicorn stuffies, A.H. testified that she would have provided the stuffies if she had known which stuffies were being requested.

[144] I have considered A.H.'s evidence regarding the Memory Book and unicorn stuffies, and reject it as outright fabrications. The Memory Books are not personal to A.H., they are photo albums from each child's time in foster care; prepared for the benefit of the children by the Society and/or foster parents. The suggestion that the books are somehow personal to A.H. lacks any credibility. The suggestion that she would not know the stuffies to which J.M.C. refers might be credible if J.M.C. had hundreds or thousands of stuffies, but that is clearly not the case. Ms. McLachlin made specific, contemporaneous, and detailed notes about the conversation with A.H.. No one suggested in cross-examination that Ms. McLachlin fabricated her case notes or her testimony. Her credibility was not called into question. I accept without reservation Ms. McLachlin's evidence and reject without reservation A.H.'s. I therefore conclude that A.H. refused to hand over these items out of spite. I also conclude that her refusal was manipulative and emotionally abusive; and entirely consistent with the historical pattern of conduct attributed to A.H.

[145] At the commencement of trial, J.M.C.'s instructions to OCL counsel were ambivalent. This state of affairs was commensurate with the evidence, which suggested that J.M.C. vacillated in the expression of her views about foster care and a return home. However, J.M.C. soon informed her OCL counsel of her desire to return home. Since doing so, her instructions have remained firm. Having considered the entirety of the evidence, I have come to the conclusion that J.M.C. is motivated by a desire to be reunited with her sisters. There is ample evidence of this motive in the various state of mind utterances of J.M.C.. There is also ample evidence found in J.M.C.'s significant and persistent caregiving role for the twins. Interestingly, I have heard little evidence to suggest that her motivation to return home lies in a desire to be re-united with her mother. I certainly have heard evidence that leads me to the inference that, despite everything, J.M.C. loves her mother. However, it would appear to me that the twins are the driving force behind J.M.C.'s desire to return home.

C. D.L.C. AND D.S.C.

[146] Pursuant to the temporary Order of Justice O'Dea made on June 22, 2016, the Society placed D.L.C. and D.S.C. with P.B.****** and J.B.******. As with the other foster parents in this case, these parents are part of the Foster-to-Adopt program. They are prepared to offer permanency to at least these two boys.

[147] The boys have been provided with a safe, structured, loving, and nurturing home. By all accounts, the boys are thriving while in foster care. D.S.C. is described as doing much better in school. His foster parents do not describe any ongoing behavioural issues at home or at school. While D.L.C. performs at a higher academic level, there were no concerns raised about D.S.C.'s academic performance.

[148] The boys present as being exceptionally close to one another, despite having different [and perhaps complimentary] personalities. D.S.C. is described as being more outwardly dependent upon D.S.C., but D.L.C. has displayed his affection and dependence in both subtle and overt ways. As noted, at the annual local Fair, D.L.C. did a presentation, wherein he gave a speech about his favourite thing in the world. He independently chose D.S.C.. In watching the video of that speech, I was struck with D.L.C.'s sincerity. I was also struck by their easy rapport and obvious display of affection towards one another.

[149] I am mindful of the evidence that I heard about D.L.C. also having a very close relationship with J.M.C.. I do not doubt that evidence for a second. However, I accept without reservation the evidence of the foster parents that these two young twin boys have displayed a significant bond.

[150] As noted above, both boys made utterances to their foster parents while in care. D.S.C. has consistently voiced his desire to remain in care. His instructions to counsel are consistent with his out-of-court utterances.

[151] D.L.C. presents a much more complicated picture. It is clear to me from his out-of-court utterances, that he misses his friends and his school. It is also clear that he misses J.M.C.. I find it troubling that D.L.C. voiced the view that there was a 50/50 chance that his parents would change but he was prepared to take that chance for the opportunity to be reunited with his friends. I keep in mind that prior to going into care, D.L.C. made utterances that make it abundantly clear that he was acutely aware of his brother's mistreatment, even as he pointed out that he was not treated as harshly. Exposure to the abuse of a sibling is, in and of itself abuse. The willingness to be exposed to further abuse, for the sake of seeing school chums is not a ringing endorsement from a child about his parents – far from it. While I appreciate that D.L.C. misses J.M.C. and his school friends, I am equally convinced that D.L.C. would painfully miss D.S.C. if separated from him. D.L.C., in my view, finds himself torn between two worlds, one of which he views as a world that is likely to continue to be an abusive one.

D. A.S.H. AND D.L.H.

[152] On July 28, 2016, the court ordered the return of the twin girls to the care and custody of J.H. and A.H. pending the outcome of the application, and subject to Society supervision. The Society has conducted about two home visits per month since that time; which has allowed them about 2 hours per month to observe the parenting of the girls. During that time, the Society has found no evidence that would give rise to any further child protection concerns.

[153] A.H. and J.H. have given evidence that suggests the children are progressing well in their care. There is no evidence to suggest otherwise.

[154] At this juncture, I would note that I did hear evidence that around the time of their apprehension, these twins had been somewhat behind in reaching certain developmental milestones. As I understand the evidence, there is no evidence to suggest a continuing concern about their development in the time that has passed since their return home.

[155] The twin girls resumed contact with their sister, J.M.C., in the fall of 2016. However, they did not commence seeing their other siblings until after the end of the first week of trial. I heard evidence from Natalie McLachlin that A.H. did not support or agree with the twin girls having access to her other siblings while they were still in care. It was not until Mr. Pentz, OCL counsel for D.S.C. and M.M.C., brought an oral motion for sibling access that A.H. (and by extension, J.H.) formally consented to the twins engaging in sibling access with all of their other siblings. A.H.'s bail provisions prevented her from being present for the group sibling access, so J.H. facilitated the twin girls' access to their other siblings on a weekly basis after the first week of the trial.

E. SIBLING ACCESS VISITS

[156] As noted above, since their apprehension, D.L.C., D.S.C., M.M.C., and J.M.C. engaged in regular weekly sibling access visits with one another at a community centre.

[157] J.M.C., of course, eventually also started to see the twin girls on a weekly basis as well.

[158] After the first week of trial, J.H. began bringing the twin girls to the sibling access visits.

[159] While there were some tensions once J.H. was introduced into the access visits, I would observe that, by and large, the access visits were uneventful. Understandably, access visits can highlight for the participants their past historical complaints and their current uncertainty about what the future holds. I would be surprised if there was not at times some tentativeness and some uneasiness.

F. OTHER CONDUCT BY A.H. AND J.H. SINCE THE COMMENCEMENT OF THE APPLICATION

[160] I have already mentioned some evidence already that causes me concern about the credibility of J.H. and A.H.: the evidence that the children face retribution for complaints they make; J.H. and A.H.'s denial of the conversation with Jennifer Lewis; A.H.'s evidence about not reading her prior signed Agreed Statements of Fact; and A.H.'s evidence about the unicorn stuffies and the Memory Book.

[161] There are a few other areas of A.H.'s evidence and her post apprehension conduct that cause me some concern.

[162] First, A.H. denied that she was not supportive of the twin girls taking part in sibling access with the other children pending the trial. She testified that she was "all for" sibling access and that it was Natalie McLachin who was not supportive of the access. Natalie McLachlin testified on this subject. She testified about meeting with A.H. on August 26, 2016. She took contemporaneous notes of this meeting. She indicated that she raised the issue of sibling access, pointing out that all of the other children were having access visits with each other. According to Ms. McLachlin, A.H. indicated that she did not want to confuse the twin girls, and she preferred to wait until the completion of the criminal trial. In cross-examination, A.H. eventually backtracked and agreed that she made mention of not wanting to confuse the girls, a concession which seems to validate Ms. McLachlin's account of the conversation. I also note that it took an oral motion by M.M.C.'s OCL counsel at the end of the first week of trial for the issue to be finally resolved. Having considered the evidence I have no hesitation in concluding that Natalie's account of the conversation is accurate and that A.H. was untruthful with the court.

[163] Second, I am also concerned about A.H.'s evidence about her counselling, or more precisely, her lack of effort to obtain counselling since the commencement of this application. Natalie McLachlin testified that she met with A.H. on January 13th, 2017, to discuss the terms of the temporary supervision order. One of the terms required A.H. to obtain counselling to address the roots of her historic abuse, her anger, and her stress. According to Ms. McLachlin, when she broached this term with A.H., A.H. responded by saying that she does not feel that going to see someone to rehash her past will be helpful. In her testimony, A.H. admitted not performing counseling but indicated a willingness to do so. Interestingly she testified that she did not do additional parenting counselling because she didn't know she could and no worker raised the issue. Given that counseling was a written term of the temporary supervision order and given the evidence of Ms. McLachlin, I have concluded that A.H. lied when giving evidence about her ignorance of the availability of counselling; and I fully accept the evidence of Ms. McLachlin about A.H.'s expressed reluctance to perform counselling.

[164] In addition, I note as well that A.H. has consistently expressed the view that she is the victim of an unwarranted and unjust Society persecution. She suggests to the court that Society workers have fabricated evidence. She also suggests that her children are dishonest and/or have been manipulated by the Society. She attributes the mental health problems of J.M.C. and M.M.C. to the Society's interventions, and denies any responsibility for the children's emotional and psychological trauma. In doing so, in her testimony, and in her comments to Society workers, A.H. has shown little to no insight into the longstanding and persistent child protection issues that have arisen during the course of her parenting of her children. To put it bluntly, she presents as living in denial of her own issues; and in defiance of the efforts of others to educate her and guide her toward behaving in a manner more capable of meeting the best interests of her children. Aunt D.T.'s observation that A.H. simply goes through the motions seems to be particularly apt.

[165] Having expressed these concerns about A.H., I would point out, however, that the Society has raised no concerns about A.H.'s parenting of the twin girls since their return home last summer. While the ability to observe A.H.'s parenting has been minimal, there are no complaints. I am inclined to infer that A.H. has benefited greatly from the reduced demands upon her, occasioned by the reduced number of children for which she has been responsible. In other words, I infer she is coping better because she has less with which to cope.

[166] I would make one other comment regarding A.H.. I have been advised by counsel that, since submissions were made in this application, the criminal charge against her was withdrawn. However, I am also advised that the withdrawal of the charge against her was contingent upon her entering into a common law peace bond. Counsel have in fact sent me a copy of the peace bond. I treat this new information as an agreed statement of fact tendered with the consent of all the parties. This development has implications. On the one hand, the state has abandoned its attempt to prove the choking allegation beyond a reasonable doubt in a criminal court. On the other hand, by consenting to the imposition of a common law peace bond, A.H. must have conceded the existence of reasonable grounds to believe that A.H. posed a risk of future misbehaviour, a risk which could be attenuated by the imposition of the bond. But for the existence of such grounds, a court cannot impose a common law peace bond – this is a legal fact, of which the court is entitled to take judicial notice. The concession of reasonable and probable grounds to believe in the risk of further future misbehaviour has significant import in the child protection context, where the standard of proof is much lower than in a criminal proceeding.

[167] J.H., for his part, presents as being more compliant than A.H., perhaps to a fault. A.H.'s description of him as a "mouse" is somewhat telling. I get the sense that A.H. runs the household and that J.H. toes the line. Similarly, I get the sense that his trial strategy and plan of care were both constructed in deference to the stance taken by A.H.. He has hitched his wagon to A.H.'s and would not purport to adopt a cut-throat strategy to enhance his own prospects of success. In addition, the occasions on which I have found him to be dishonest in his testimony are occasions where he has formed a united front with A.H. on the facts -- again, he his loyal to a fault. I also note that, from the evidence presented to me, J.H. would appear to have taken a back seat during home visits from the Society, while A.H. did the talking. Unfortunately, he too has failed to take counselling as required by the temporary order. He too provided an unsatisfactory excuse for his failure. All of that said, I am heartened by his somewhat less combative stance with Society workers and by Aunt D.T.'s description of him as a loving and devoted father. I am also heartened to note that no one has alleged that he physically or verbally abuses A.H.. He just may well be the best thing that has happened to A.H. in years.

IX. FINDING IN NEED OF PROTECTION

A. Resolution of Credibility and Factual Issues

[168] As has no doubt become apparent, I have significant concerns about the credibility of both A.H. and J.H.. They have, in my view, been dishonest with the court on material issues. They were both dishonest in their denial of the contents of their conversation with Jennifer Lewis on January 25th 2016. A.H. was also dishonest about the Memory Book and the unicorn stuffies.

[169] In addition, A.H. has consistently presented to workers and this court as perceiving herself to be the subject of Society persecution. She presents as having no insight to the protection issues raised and presents as having no motivation to take any counselling or engage in any significant efforts to address these protection issues.

[170] I have considered A.H. and J.H.'s denial of D.S.C.'s choking allegation, and I have rejected it. In my view, their evidence was once again dishonest. I come to this conclusion for number of reasons. First of all, my conclusion that A.H. and J.H. were dishonest at other points in their testimony causes me concern about their overall credibility. Secondly, I note that the existence of the incident is corroborated by the statements of both D.L.C. and M.M.C.. Thirdly, the evidence establishes that these three children did not have the opportunity to collude prior to their police interview. M.M.C. specifically refers to an observation [nail marks on D.S.C.'s neck] that would seem to me to unwittingly provide a verisimilitude to her description of the event. M.M.C. actually gave her mother an out: an acknowledgement of the existence of the event, but an explanation that it was in fact D.S.C. choking himself. Neither A.H. nor J.H. took that lifeline. They rested their hopes in outright denial. Their hopes were misplaced. Given the similarity of the accounts of the event [particularly between D.S.C. and M.M.C.] I am satisfied on a balance of probabilities that the choking event occurred; that A.H. did in fact choke D.S.C.; and that J.H. chased M.M.C. down the stairs, yelling at her.

B. The Specific Protection Findings in this Case

[171] Having regard to my concerns about the credibility of J.H. and A.H. and having regard to the evidence tendered by the Society, which I by and large accept, I have concluded on a balance of probabilities that the preponderance of the evidence discloses a consistent pattern of behaviours that causes significant concerns. Those behaviours include the following:

1. A strict dictatorial parenting style, primarily by A.H. but supported by J.H., motivated by an inability to cope with the demands of parenting six children and motivated by a desire to avoid those demands and the stresses created by those demands;

2. An over-reliance upon J.M.C. (and to a lesser degree, M.M.C.) to assume parental responsibilities for the care of A.S.H. and D.L.H.;

3. Occasional harsh physical discipline of M.M.C. and D.S.C., that includes hitting, pushing, and [in the case of D.S.C.] choking;

4. A consistent pattern of yelling at the children by both parents;

5. A.H.'s use of slapping, pushing and hitting in the discipline of M.M.C.;

6. A.H.'s use of similar forms of physical discipline against D.S.C.; and, in addition, the choking of D.S.C. on one occasion;

7. An exposure of the children to the perpetration of physical violence against D.S.C. and M.M.C.;

8. The repeated imposition by the parents of excessive groundings upon the oldest four children, groundings that are often disproportionate to the perceived misdeeds of the children; and

9. Retribution for complaints to school or Society staff about the parents.

[172] Cumulatively, this constellation of facts causes me to conclude that all six children are in need of protection, because there is a risk that the children are likely to suffer physical and emotional harm, pursuant to sections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act.

[173] The propensity of the parents to behave violently towards some of the children gives rise, in my view, to a risk of similar behaviour towards the others, and thus a risk of physical harm to wards others.

[174] Moreover, to one degree or another, all of the children have displayed signs of anxiety. I infer that the pattern of conduct of both parents is at least a significant contributing factor to the anxiety displayed by all six children. J.M.C. and M.M.C. both had PTSD. All four children were at one point or another and to one degree or another fearful of returning home. J.M.C.'s behaviours before and after home visits disclose extreme anxiety and emotional disturbance. Many of the children were fearful for the welfare of the others in the event of a return home. Many were concerned about the welfare of A.S.H. and D.L.H., who had returned home. Even the twins displayed anxiety when left alone briefly by the foster mother and Society worker ["No bad baby. No fucking bad baby."]. These actual manifestations of anxiety and emotional distress are not surprising, given the constellation of facts listed above.

[175] Having regard to the obvious harm caused at least in part by the pattern of parental conduct outlined above, I have no hesitation in concluding that the pattern of parental conduct gives rise to a risk of emotional and physical harm.

X. DISPOSITION

A. The Statutory Framework

[176] If the court makes a finding that the children are in need of protection and the court is satisfied that intervention through a court order is necessary, the court must then assess the appropriate disposition for each child. Section 57(1) sets out the available dispositions. It reads as follows:

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

Supervision order

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

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[177] Section 57(2) requires the court, prior to making any order under s. 57(1), to inquire as to what efforts the Society or other agency or person has made to assist the children.

[178] Section 57(3) requires that the court consider the least disruptive order necessary to ensure each child's best interests.

[179] Section 57(4) requires the court to consider, prior to making any Society wardship or crown wardship order, the possibility of any other community placement for the children.

[180] Section 70 of the CFSA limits the total time each child may be in Society care. For children under 6 years of age, the limit is 12 months. For children over 6 years of age, the limit is 24 months. This provision also permits the court to extend the limits by 6 months if it is in the best interest to do so. By operation of this section, the oldest four children in the case before me must either be returned to the parents or made Crown wards. Conversely, the twin girls are still statutorily eligible for a Society wardship order.

[181] In assessing the best interests of each child, the court must take into consideration the factors listed in section 37(3) of the CFSA. That section reads as follows:

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[182] In assessing the best interests of each child, I must assess the degree to which the child protection concerns that existed at the time of apprehension still exist at the time of the making of the disposition.

[183] Section 56 of the CFSA requires that I consider the Society's plan for the children prior to making any order under s. 57(1). Similarly, I must also consider the plan of care of the parents.

[184] Section 59(2.1) dictates that, if the court orders Crown wardship for a child, the court cannot make an access order with respect to that child unless the court is satisfied that:

1. The relationship between the person and the child is meaningful and beneficial to the child; and

2. The ordered access will not impair the child's future opportunities for adoption.

B. The Plans of Care

[185] The parents, having denied virtually any child protection concerns regarding any of the children, seek the return of all their children to their care. They would agree (reluctantly, in my view) to supervision terms, including counselling, if required. They propose to continue to provide the necessities of life, recreational activities, school enrolment, and the supports necessary to ensure the proper emotional, social, educational, and moral development of their children.

[186] The society proposes that A.S.H. and D.L.H. remain in the care and custody of their parents, subject to the terms of a Supervision Order. It does so, in part, because it concedes that there is no evidence of conduct detrimental to the best interests of A.S.H. and D.L.H. since the court ordered the temporary return of these two children to their parents. These two girls are very young, and but for a very short period of time, have spent their entire lives under the same roof as their parents. However, given the longstanding pattern of protection concerns, the Society seeks extensive supervision terms to ensure that A.S.H. and D.L.H.'s best interests are fostered.

[187] The Society proposes that the oldest four children be made Crown wards, without access; or alternatively, with access at the discretion of the Society to dictate all terms of access. They have proposed that the children be placed with foster-to-adopt families, with a view to those families ultimately adopting the children. To date, three families have come forward and acted as placements for the children. To date, all of these families have engaged in commendable efforts, to foster the physical, emotional, educational, psychological, and social well-being of the children in their care. D.S.C. and D.L.C. have been thriving in their placement. Their foster family is prepared to offer permanency for these two boys. There is some suggestion, albeit vague, that they might possibly offer permanency for more of the children. M.M.C. continues to struggle with her psychological issues, but has made strides and is certainly far removed from an environment which she clearly viewed as detrimental to her own well-being. Her placement is also prepared to offer permanency. J.M.C. presents a more challenging situation. Her foster parents have been valiantly attempting to support J.M.C.'s significant psychological needs, and are prepared to offer her permanency, but not if A.H. continues to have access to J.M.C.

[188] No party has put forth any other community placement option.

[189] I will now deal with each child in order from oldest to youngest.

C. The Disposition for each Child

1. M.M.C.

[190] M.M.C. has made her views and preferences clear, both in her statements to various witnesses and through her OCL counsel. She does not want to return home. She wishes to remain in care. Given the unavailability of a Society wardship order, she has effectively declared that she wishes to be a Crown ward.

[191] While I cannot be certain which particular event or set of events in M.M.C.'s past gave rise to her PTSD [I was not provided with an opinion about the specific cause of the PTSD], I am prepared to infer that her PTSD arose from the environment to which her mother (and more recently, her step-father) exposed her during her childhood. To use a criminal law term, there is no third party suspect. M.M.C. reports that her parents, particularly Amada, are the focus of her grievances. Having regard to all of the evidence, I am satisfied that M.M.C. would suffer more emotional harm if she were forced to return to live with her mother. Such a disposition would serve only to cement her already expressed lack of faith and distrust in the Society's and the court's ability to protect her.

[192] M.M.C. has spent a considerable amount of time over the last 7 years in Society care. Her mother and step-father present as a significant source of anxiety for her. The evidence suggests that she will require long term support and care to remedy the psychological harm suffered when living with her mother [and step-father]. Her mother and step father simply deny the existence of any issues. Indeed, A.H. from time to time has placed the blame for the Society's scrutiny squarely upon M.M.C.

[193] Given the lack of parental insight, given M.M.C.'s views and preferences, given M.M.C.'s progress since her apprehension, and given the excellent plan of care put forth by the Society, I have concluded that M.M.C. should be made a Crown ward.

[194] I have come to the conclusion that access by A.H. and J.H. to M.M.C. would be neither meaningful nor beneficial to M.M.C.. Indeed, given all of the evidence I have heard, I have come to the conclusion that it would likely be detrimental to her. I have heard virtually no evidence to suggest any level of involvement by S.C. in any of the children's lives since the last child protection trial; and this application, he was noted in default. I therefore conclude that he has not rebutted the presumption against access.

[195] It would seem to me however, that her siblings ought to have a right of access to her. All of the children are clearly very close to one another. The oldest four also clearly care very much for the welfare of each other. It would seem to me that their adverse upbringing has brought them very close. In my view, access by the other children to M.M.C. would therefore be meaningful and beneficial to her. I am also satisfied that contact between M.M.C. and her siblings would not impair M.M.C.'s prospects of adoption.

[196] I have therefore come to the conclusion that none of the respondents should have access to M.M.C., but M.M.C. should have access to her siblings and her siblings should have access to her.

2. J.M.C.

[197] When J.M.C. was in foster care with her twin sisters, she seemed content and was adapting. When her twin sisters returned home on July 28, 2016, she presented as being somewhat dejected. When she began to have access to her twin sisters in the fall of 2016, she began to present with significant behavioural and emotional issues. Amongst other things, she began to engage in self-harming behaviour, to the extent that her foster parents were forced to remove her bedroom door. In alternating measures, she sought comfort from and then rejected the comfort offered from her foster parents. Throughout the vicissitudes of her mental and emotional state, she never once recanted her previously expressed concerns about her parents conduct. Although she expressed some past frustration with being burdened with the care of the twins when living with her mother, it is clear to me that she formed a significant bond with her twin sisters and derived an identity and a sense of purpose from being their caregiver. All of the circumstances lead me to conclude that J.M.C.'s perceived well-being is inextricably linked to her remaining a fixture in the life of her twin sisters.

[198] I also note that at the beginning of trial, her instructions to counsel were ambivalent. Her views and preferences had not crystalized. Eventually, OCL counsel received clear instructions to inform the court that J.M.C. wished to return home. Once those instructions were given, they remained constant. Having considered all of the evidence, I have drawn the inference that J.M.C. was conflicted about whether or not she should return home, but resolved that conflict in favour of a reunification with her twin sisters, and has since held steadfastly to that position.

[199] While the totality of the evidence causes me to be inclined to make a wardship order for J.M.C., consistent with the order made for M.M.C., I fear that the cure may in fact be worse than the disease. As will be seen below, I intend to order that A.S.H. and D.L.H. remain in the care and custody of A.H. and J.H.. I have concluded that it is J.M.C.'s best interests to reside with her twin sisters. While I still have significant concerns about the ability of A.H. and J.H. to cope with the daily demands of parenting their children, I believe that their ability to cope will improve if they have fewer children under their care. I also note that there have been no reports of any significant incidents since J.M.C. has been having unsupervised access with her parents and twin sisters every Saturday. Consequently, I believe that, with intensive supervision, J.M.C.'s best interests are served by a reunion with her twin sisters and her return to the care and custody of her mother and step-father. However, I am also mindful that in her young life, J.M.C. has endured significant trauma on her mother's watch and requires extensive support for the foreseeable future. I do not believe either J.H. or A.H. have recognized or accepted the significant psychological issues faced by J.M.C.. Left to their own devices, I highly doubt J.H. and A.H. will adequately attend to J.M.C.'s emotional and psychological needs. They and J.M.C. need significant support. Accordingly, I will order that J.M.C. return home to the care and custody of her parents, but under the intensive supervision of the Society. The supervision order shall last a full 12 months. I will outline the terms below.

[200] As with the other children, it is clear to me that J.M.C. has a strong bond with all of her siblings. I have concluded that contact between her and her other siblings will be meaningful and beneficial to her. I have also concluded that such contact will not impair the prospects of the adoption of the children who are Crown wards.

3. D.S.C.

[201] Like M.M.C., D.S.C. does not wish to return home. His views and preferences are well founded. He has ADHD and appears to have presented a significant challenge to his mother; he has been the subject of physical and emotional abuse; he has been the subject of frequent groundings; he has been called a liar by his mother [rather ironic, given my findings of fact]; and he was struggling socially and in school while living with his parents. To compound things, his parents deny any impropriety on their part; they cast aspersions upon D.S.C.; they show no insight into their own shortcomings; and they show little desire to modify their parenting practices. Meanwhile, while in care, D.S.C. has been thriving in his foster placement. He is doing well at school; he is thriving socially; and he is immensely enjoying the comfort and companionship of his twin brother. The evidence suggests that D.S.C. is happier than he has been for a long time.

[202] In my view, the return of D.S.C. to the care and custody of A.H. and J.H. would put more on their plate than they can handle. In addition, I believe the return of D.S.C. to his mother and step-father would, in and of itself, cause further emotional harm to him.

[203] I would also note that D.S.C.'s foster parents have offered permanency for D.S.C. and his brother.

[204] I am therefore satisfied that a Crown wardship order is the least restrictive disposition that can be made in the best interests of D.S.C.. In all the circumstances, and for the same reasons as indicated for M.M.C., I am not satisfied that the presumption against parental access has been rebutted by the any of the parents/respondents. The evidence before me is not capable of establishing that D.S.C.'s contact with his mother, father, and step-father would be meaningful and beneficial to him. Indeed, the opposite may be true.

[205] However, for the reasons already indicated when discussing the situation of M.M.C., I find that D.S.C. will benefit greatly by access to his other siblings and their access to him. I also conclude that access to his siblings will not impair his prospects for adoption. I therefore order that D.S.C. have access to his siblings and that his siblings have access to him.

4. D.L.C.

[206] D.L.C. has expressed through his OCL counsel a consistent preference to return home to the care of his mother. When one examines the evidence, including the utterances attributable to him, it becomes clear that D.L.C. misses his friends and his school, and his siblings [particularly J.M.C.]. However, there is little to no evidence capable of establishing he misses his mother, step-father, or life with them. In this context, it is telling that he has declared a belief that there is only a "50/50" chance his parents will change and the situation at home will improve.

[207] The evidence also abundantly establishes that D.L.C. has an extremely significant bond with D.S.C., and D.S.C. with him. In my view, keeping these two boys together is in their mutual best interests. Separating them is contrary to their mutual best interests.

[208] Given my skepticism about A.H.'s prospects for positive change, and my belief that her parenting capacity decreases with each additional child under her care, I am of the view that the return of D.L.C. to the care and custody of his mother and step-father is not in his best interests.

[209] Like D.S.C., D.L.C. is thriving in his current foster placement. His foster parents have offered him permanency and a loving home. The Society's plan of care for D.L.C. is, in my view, clearly in D.L.C.'s best interests.

[210] I have little evidence with which to gauge whether parental access to D.L.C. will be meaningful and beneficial to him. As noted, I have found A.H. [and to a lesser extent, J.H.] to have assumed an oppositional and defiant stance towards the Society. I have little confidence in their ability to change, until they change their oppositional stance. D.L.C. has been out of the care of his mother for well over a year. He was previously out of the care of his mother for a long period of time prior to the completion of the trial before Justice Tobin. During his most recent tenure in care, there is little to no evidence he expressed any desire to see his parents; and there is little to no evidence of any enduring bond between he and them. Similarly, there is virtually no evidence of any involvement by S.C. in D.L.C.'s life. Having regard to these factors, I have concluded that the presumption against access has not been rebutted by the any of the parents/respondents. I am not satisfied that access will be meaningful and beneficial to D.L.C.

[211] I am satisfied, however, that access by D.L.C. to his siblings and by his siblings to him will be meaningful and beneficial to him. I have also concluded that such an order will not prove to be an impediment to adoption. I will order that he be the access holder to his siblings and recipient of access from his siblings.

5. A.S.H. and D.L.H.

[212] As noted, these two girls have been placed with their parents for well over a year. During that time frame, the Society has not raised any protection concerns worthy of their further intervention.

[213] I am concerned about the limited amount of supervision that the Society has been able to undertake. I am left wondering whether the lack of evidence of concern arises from a lack of intensive supervision or the presence of good parenting. Having said that, I am inclined to infer that, with less on their plates, both parents have been able to more easily cope with the task of parenting.

[214] I am therefore satisfied that, with intensive supervision, the child protection concerns for A.S.H. and D.L.H. can be managed while they continue to reside with their parents. A.S.H. and D.L.H. shall therefore be placed in the care and custody of A.H. and J.H., subject to an intensive supervision order [the terms of which shall be detailed below].

[215] As with the other siblings, I am also of the view that A.S.H. and D.L.H. should have the right of access to their siblings and their siblings should have a right of access to them. All of these children have a bond, the one with the other. I have no hesitation in concluding that ongoing contact with each of their other siblings will be meaningful and beneficial to them. I also conclude that such contact will not impede the prospects of the adoption of their siblings that are Crown wards.

XI. THE ORDER IMPOSED

[1] I make the following findings:

1. The children's names and ages are: M.M.C. (D.O.B.: […], 2002); J.M.C. (D.O.B.: […], 2005); D.S.C. (D.O.B.: […], 2006); D.L.C. (D.O.B.: […], 2006); A.S.H. (D.O.B.: […], 2014); and D.L.H. (D.O.B.: […], 2014).

2. The children are not being raised in any religious faith.

3. None of the children are Indian or Native Persons.

4. All of the children were apprehended and brought to a place of safety from within the County of Elgin.

5. All six children are in need of protection, pursuant to sections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act.

[2] The children M.M.C. (D.O.B.: […], 2002), D.S.C. (D.O.B.: […], 2006), and D.L.C. (D.O.B.: […], 2006) shall be made wards of the Crown and placed in the care of the Children's Aid Society of St. Thomas and Elgin. There shall be no access between A.H. and these three children. There shall also be no access between J.H. and these three children. There shall also be no access between S.C. and these three children.

[3] J.M.C. (D.O.B.: […], 2005); A.S.H. (D.O.B.: […], 2014); and D.L.H. (D.O.B.: […], 2014) shall be placed in the care and custody of A.H. and J.H., subject to the supervision of the Society for 12 months. The terms of supervision shall be as follows:

1. The Society shall engage home visits at least once a week to observe the care provided by the parents to their three children; at the Society's discretion, these visits may be scheduled or unscheduled;

2. A.H. and J.H. shall allow the Society worker scheduled and unscheduled access to the home and children and shall allow the worker to meet with the children privately, at home or at school;

3. A.H. and J.H. shall not change the children's residence outside the County of Elgin without further order of the court;

4. A.H. and J.H. shall ensure the Society is provided with up-to-date addresses and telephone numbers where they can be reached and shall notify the Society at least 14 days prior to any change of address or telephone number;

5. A.H. and J.H. shall sign any and all release of information forms reasonably necessary to monitor the terms of the supervision order and plan of care;

6. A.H. and J.H. shall ensure that the children's basic needs are met at all times;

7. A.H. and J.H. shall facilitate access between the children in their care (A.S.H., D.L.H., and J.M.C.) and their siblings (M.M.C., D.S.C., and D.L.C.), and shall do as directed by the Society and in a manner directed by the Society;

8. A.H. shall seek prior approval of the Society when placing J.M.C. in a caregiving role for A.S.H. and D.L.H.; and shall only do so in accordance with their approval;

9. A.H. and J.H. shall attend any parenting, anger management, budgeting, and life skills courses deemed necessary by the Society; A.H. shall also, if required by the Society, attend counselling to address the impact of past domestic violence upon her;

10. A.H. and J.H. shall ensure the attendance of A.S.H., D.L.H., and J.M.C. at any counselling deemed necessary by the Society, to address past trauma and exposure to violence in the home, the impact of the child protection proceedings upon them, and the separation of them from their siblings;

11. The Society shall provide assistance to A.H. and J.H. in securing appropriate counsellors and in transporting the children to counselling;

12. A.H. and J.H. shall not yell at, swear at, or use physical discipline against A.S.H., D.L.H., or J.M.C.;

13. A.H. and J.H. shall meet all of the medical needs of A.S.H., D.L.H., and J.M.C.;

14. A.H. and J.H. shall meet the educational and developmental needs of A.S.H., D.L.H., and J.M.C.;

15. A.H. and J.H. shall not engage in excessive grounding of J.M.C., and in particular shall not ground J.M.C. for any longer than one hour at a time and no more than a total of two hours in a week;

16. A.H. and J.H. shall not engage in any grounding of A.S.H. and D.L.H.; and will consult with and abide by the Society's direction about the appropriate use of time-outs;

17. Access by S.C. to these three children shall be at the sole discretion of the Society.

[4] Each child shall have a right of access to all of the other children and shall be entitled to receive access from all of the other children. In other words, each child shall be the access holder and access recipient in relation to the others.

Released: December 8, 2017

Signed: Justice C.A. Parry