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,

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: 2018-05-08

Court File No.: Halton 140/16

BETWEEN:

THE CHILDREN'S AID SOCIETY, REGION OF HALTON

Applicant,

— AND —

J.K.V.

and

T.M.P.

and

J.A.M.

Respondents

Before: Justice Victoria Starr

Heard on: November 6, 7 & 8, 2017, January 8, 9, 10 & 11, 2018, and April 27, 2018

Order released on: April 27, 2018, with written reasons to follow

Reasons for Judgment released on: May 8, 2018

COUNSEL

Lucia Spampinato — counsel for the applicant society

David Rappaport and Ted Laan — counsel for the respondent J.A.M.

J.K.V. — on her own behalf

T.M.P. — on his own behalf

Rasim (Sam) Misheal — counsel for the Office of the Children's Lawyer, legal representative for the children

VICTORIA STARR J.:

INTRODUCTION

[1] On April 27, 2018, the court gave its decision and made a final order with respect to the Amended Child Protection Application of the Children's Aid Society, Region of Halton (the "Society"), dated March 27, 2017. The Court gave brief oral reasons that day with these written reasons to follow.

THE CHILDREN, PARENTS, AND OTHER IMPORTANT INDIVIDUALS AT THIS TRIAL

[2] There are three subject children in this protection application: A. (age 17), N. (age 14), and S. (age 5).

[3] S.'s mother is the respondent J.K.V. ("Ms. V. or "the mother"). Her father is the respondent, J.A.M. ("Mr. M." or "S.'s father").

[4] A. and N.'s mother is Ms. V. and their father is the respondent, T.M.P. ("Mr. P." or "N.'s and A.'s father").

[5] A. and N.'s paternal grandfather is M.P. Sr. He was a witness at this trial.

[6] M.M. another witness, is S.'s paternal grandmother.

[7] There were a number of Society workers who have been involved or interacted with this family and who gave evidence at this trial. They are: Community Child Protection workers: Sarah Malenfant, Michele Anderson, Cynthia Thompson, Sonia Gomez, Brittney Gendron; and Child Protection Supervisors, Jeffrey Laforet and Cynthia Thompson. There is also Susan Matthews, a Child and Youth Permanency worker and Child and Youth Permanency Supervisor, Steve Lavac.

[8] Marie Lisik, also testified on behalf of the Society. She was involved with A., in her capacity as a Youth Probation Officer, employed by the Ministry of Children and Youth Services, Youth Justice Services.

[9] Michelle Hayes is a member of the Office of the Children's Lawyer ("the OCL") clinical panel. She was appointed in her capacity as a clinician to assist the children's lawyer. She too was a witness at this trial.

[10] Expert and psychiatrist, Dr. E.N. Zamora, conducted a psychiatric assessment of the mother and he too gave evidence at this trial. His expert report forms part of his evidence and is dated January 26, 2017.

THE CHILDREN

A.

[11] A., born [...], 2000 ("A.") is currently 17 years of age. A. is presently in the temporary care and custody of the Society, and he has been living with his father's ex-wife, D.P., in Hamilton, Ontario, since December 20, 2017.

[12] A. was first apprehended from his mother's care on March 17, 2016. He was subsequently returned to the mother's care on April 10, 2017. He was apprehended from his mother's care a second time on September 11, 2017. He has now been in care for over 2 ½ years.

N.

[13] N., born [...], 2003, is currently 14 years of age ("N."). N. was apprehended from his mother's care on February 8, 2017 and placed in the Society's care until November 7, 2018. On August 26, 2017, N. went to stay with his father and paternal grandparents on an extended access visit. On the second day of trial, November 7, 2017, that placement was formalized, on consent, by a temporary (without prejudice) supervision order. N. had, up to that point been in the Society's care for nine months. While this trial was on adjournment awaiting the Court's decision, the placement with the paternal grandparents broke down and N. and his father moved out of the home. N. and his father are residing on their own now.

S.

[14] S., born [...], 2013, is currently five years of age ("S."). S. has not been in Society care. She was apprehended from her mother's care on October 27, 2016 and placed in her father's care. She has remained in her father's primary care for just over 1 ½ years.

Caregiving, Access, and Current Placement

[15] Immediately prior to the start of the within child protection application, Ms. V. and Mr. M. had joint custody of S. S.'s primary residence was with Ms. V. S. enjoyed regular access with her father. A final order addressing the issues of custody and access was in place. It was made in separate proceedings under the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA"). It is the final order of Justice Sheilagh O'Connell, dated October 24, 2014.

[16] Immediately prior to the start of these proceedings, A. and N. were in Ms. V.'s primary care. They each had infrequent, sporadic communication and access with their father, Mr. P.

[17] From October 27, 2017 (the date of her apprehension) until March 2, 2017, S. had access with her mother on Tuesdays, Thursdays and Sundays of each week. These visits were unsupervised. That order was varied on March 2, 2017 by Justice Kurz. He both reduced the number of visits per week and placed restrictions on the mother's access.

[18] As a result of the variation, from March 2, 2017 until January 23, 2018, the mother had access to S. twice a week for periods of three hours at a time. Although her access remained unsupervised, the exchanges were directed to take place at the Society offices with the option given to the Society of facilitating the exchange. There were restrictions that applied to the visits, such as, that Ms. V. was not to take S. to her home and was to exercise her access in the community. Ms. V. exercised her access consistently.

[19] Ms. V.'s access stopped altogether (largely by her own choice) shortly after the last trial day in January 2018. She has not exercised access to S. since January 23, 2018.

THE TRIAL

[20] The trial was held on November 6, 7 & 8, 2017 and on January 8, 9, 10 & 11, 2018. The court heard a motion by the Society and a second motion by Mr. M., both to re-open the trial so that fresh evidence could be put before the court. The motions were heard on April 27, 2018. The trial was re-opened that day and the fresh evidence received.

[21] The Society, the Children's Lawyer, and Mr. M. and his counsel were present for all trial dates. Mr. P. attended only one day of trial, November 7, 2017. Ms. V. was present during the three November 2017 trial dates, as well as at the mid-trial, trial management conference held on November 10, 2017. She did not appear for any of the 2018 trial dates.

[22] When Ms. V. failed to attend on January 8, 2018, steps were taken to protect her interests. For example, the court heard no evidence that day. It adjourned the trial (after dealing with some evidentiary issues), to the next day. The endorsement of that day was sent to Ms. V. In that endorsement the court highlighted for Ms. V. some of the likely consequences, of a decision on her part and at this stage of the trial, to stop participating in the trial. Thereafter, when she failed to appear, a copy of the court's endorsement for each day was sent to Ms. V.

[23] On the court's direction the materials for use on the motions to reopen the trial and the proposed fresh evidence (affidavits) were sent to Ms. V. and Mr. P. along with a copy of the court's endorsement advising her that the motions would be heard on April 27, 2018, and that it was the court's intention, that should the relief be granted, and no adjournment sought, it would immediately proceed with receiving the fresh evidence. She was given 4 days' notice of the motions and provided the fresh evidence no less than 3 days prior to the scheduled hearing date.

[24] Ms. V. and Mr. P. chose not to oppose the motions or to attend on April 27th. It is clear from some email communication that Ms. V. sent, that she got the material, knew the date of April 27, 2018, had been set to hear the motions to adduce fresh evidence, and, that she did not intend to be at court on April 27, 2018.

[25] As a result of Ms. V.'s and Mr. P.'s decisions not to give evidence and not to cross-examine any of the witnesses (in Ms. V.'s case the witnesses who gave evidence in 2018), the court received no direct evidence from either Mr. P. or Ms. V. More significantly and except with respect to the issue of access by Ms. V. to S., the evidence at this trial went in largely unchallenged.

[26] The evidence in-chief of all but one of the Society's witnesses along with Mr. M.'s witnesses (himself and his mother, M.M.), that of the OCL clinician, and that of Michelle Hayes, was given by affidavit. Dr. Zamora's expert report was also admitted into evidence and formed part of his evidence in chief. The only witness whose entire evidence was given orally (no affidavit) was Society witness, M.P. Sr., N. and A.'s paternal grandfather.

[27] A statement of agreed facts was filed with the court. It addresses the narrow issue of community resources available to provide supervised access services. It is dated January 11, 2018. It is signed by child protection worker, Sonia Gomez, S.'s father, J.A.M., and the Children's Lawyer, R. Misheal on behalf of the child.

[28] On consent of the parties, this trial was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in determining if the child was a child in need of protection.

POSITIONS

[29] The position of the Society with respect to the finding in need of protection is as follows:

(1) A. is in need of protection pursuant to sections 37(2) (a)(i), 37(2)(b)(ii) and 37(2)(f) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended ("CFSA").

(2) The children, N. and S. are each a child in need of protection pursuant to sections 37(2) (b)(ii) and 37(2)(g) of the CFSA.

[30] The Society's position with respect to disposition and access is as follows with respect to A.:

(1) A. shall be made a Ward of the Crown;

(2) The mother shall have a right of access to A. and A. the right of access to his mother. The access shall be as agreed between the Society, and the mother as to frequency, duration, location and level of supervision, taking into consideration A.'s views and preferences. If they cannot agree, access shall be held at the Society's office and supervised by the Society.

[31] The position of the Society as of April 27, 2018 is as follows with respect to N.'s disposition and access:

(1) N. shall be placed in the care and custody of his father for a period of seven (7) months, subject to the supervision of the Society, and subject to various terms and conditions (at the start of trial the position was placement with his father and paternal grandparents jointly but this changed by the conclusion of the trial).

(2) Access between the mother and N. shall be as agreed between the mother, the paternal grandparents and the Society, taking into account N.'s wishes and his schedule, and shall occur once a week on either Saturday or Sunday, for a minimum of four hours per visit unless otherwise agreed. Access is to be subject to various terms and conditions. Those terms and conditions are discussed later in these reasons.

[32] The position of the Society with respect to disposition and access regarding S. is as follows:

(1) S. shall be placed in the custody of her father pursuant to section 57.1 of the CFSA.

(2) The mother shall have supervised access to S. for a minimum of two times per week, three hours per visit, unless this frequency cannot be supported by the access centre's facilities. The mother and father shall agree on the specific dates and timeframes for this minimum access to occur. Ms. V. may have such further access as agreed between her and Mr. M., taking into account S.'s schedule. Ms. V.'s access shall be supervised at a supervised access centre, and Ms. V. and Mr. M. shall pay all costs associated with the access centre in proportion to their respective incomes. Mr. M. and Ms. V. may also agree on a third party supervisor who may supervise Ms. V.'s access visits with S.

(3) In the event that J.A.M. and/or J.K.V. and/or any person seeks to change the custody and/or access arrangements set out herein regarding the child With respect to S., either verbally or by written agreement or further Court Order, they shall provide written notice to the Children's Aid Society, Region of Halton in advance of any changes being made.

[33] The position of the Children's Lawyer and the Society are the same on disposition but not on the protection findings. It is the position of the Children's Lawyer that each child is in need of protection pursuant to s. 37(2) (b)(ii), of the CFSA.

[34] It is the position of S.'s father that S. is not in need of protection so long as she remains in his care and he has sole custody. With respect to disposition, he agrees with the Society and the OCL that an order should be made pursuant to subsection 57.1 of the CFSA granting him sole custody.

[35] S.'s father takes no position with respect to the boys.

[36] Mr. M. takes a different position from the Society and the OCL viz a viz the mother's access to S. It is his primary position that Ms. V. should not have an immediate right of access to S. Instead, she must undergo a re-assessment by a psychiatrist in good medical standing, such as but not limited to Dr. Zamora, who can confirm that Ms. V. no longer presents a short or long-term risk of harm to S.

[37] As an alternative to no access, S.'s father proposes an order that Ms. V. have an immediate right of access to S. so long as she forthwith commences treatment for her mental health, drug use, and alcohol use, and so long as she provides a medical note confirming, that she is undergoing treatment for the issues I have just mentioned.

[38] In the event that the court orders access between S. and the mother, S.'s father asks that the access be supervised by a supervised access centre, at the mother's sole expense.

[39] It is also his position that Ms. V. be prohibited from attending at S.'s school, any of S.'s activities, and his home, without his prior permission.

[40] Although Ms. V. did not participate in this trial beyond the 2017 dates, she did serve and file an answer and plan of care and a trial opening statement. Both are woefully deficient. None the less, from these documents and her participation on the 2017, trial dates, it is clear that it is her position none of her children are in need of protection and thus, an order should be made dismissing the amended protection application entirely. Also, in the event that the court does not return the children to her care, she wants unrestricted and unsupervised access to her children.

[41] Mr. P. supports and consents to the findings in need of protection and final orders the Society seeks.

THE ISSUES

[42] The necessary statutory findings pursuant to s. 47(2) of the CFSA were made by me by order dated August 10, 2017. Those findings were made on consent of the parties.

[43] The issues I must decide are:

(1) Whether the children are in need of protection and if so, pursuant to what subsections?

(2) What final disposition as to placement for each child under s. 57 and s. 57.1 of the CFSA, is in each child's best interests?

(3) What final disposition as to access for each child under s. 57 and s. 57.1 of the CFSA, is in each child's best interests?

[44] The issue of access between the mother and S. was the most contentious issue in this case.

ISSUE #1: ARE ANY OF THE CHILDREN IN NEED OF PROTECTION?

The Grounds

[45] Under s. 37(2) of the CFSA, a child may be found to be in need of protection based upon a number of risk factors. The Society and Children's Lawyer both seek a finding that all three children are in need of protection pursuant to subclause 37(2)(b)(ii) of the Act, which reads as follows:

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

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

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

[46] While not pleaded, the Society submits that the evidence adduced at trial supports a finding that A. is a child in need of protection pursuant to ss. 37(2)(2)(a)(i) and 37(2)(f). Those subsections read as follows:

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

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

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

(f) A child is in need of protection where the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[47] Further, the Society also asks, although again it did not formally plead it in its amended protection application, that N. and S. be found to be in need of protection pursuant to subclause 37(2)(g), which reads as follows:

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

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

Preliminary Legal Issue

Can the Court make a finding that a child is in need of protection, on a basis not originally pleaded?

[48] The Society's reliance on additional grounds for the finding in need of protection raises the issue of whether the Court can make a finding that a child is in need of protection, on a basis not originally pleaded. Counsel all agreed that the Court can.

[49] I agree. In adopting this principle I am guided by the reasoning of Justice S.B. Sherr in the case of Children's Aid Society of Toronto v. P. (J.), 2009 ONCJ 1, at paragraph 59. That paragraph reads:

59 The court has discretion to make a finding that a child is in need of protection pursuant to a clause of the Act not pleaded, if justified by the evidence, the parent had prior disclosure of the relevant evidence, is not caught by surprise and has had a full opportunity to test this evidence. See Children's Aid Society of Durham (County) v. S. (R.) and Children's Aid Society of Hamilton-Wentworth v. R. (K.), where Justice George Czutrin stated:

[37] While it is better practice, and the sections are set out in the forms to plead the subsections relied on, the court cannot be prohibited from finding a child in need of protection if the appropriate box has not been checked off, especially where the facts support such a conclusion. Events in a child's life are ever evolving and not frozen to events that existed at the beginning of the court process. It is open for me to find a child in need of protection where the evidence supports the facts that fall under any subsection of section 37 where the evidence and facts have been established and, as in this case, cannot come as a surprise.

[50] In this case, as was the situation in Justice Sherr's case, the mother and Mr. P. had full disclosure of the relevant evidence and had the opportunity to test it and to respond fully. There was no surprise about the evidence upon which any of the other parties relied. Each, along with counsel for the remaining parties, had the opportunity to make submissions as to whether or not I should make a finding under clauses 37(2)(a)(i), 37(2)(g) and 37(2)(f).

[51] The fact that Mr. P. and Ms. V. chose not to be present and in doing so, to deprive themselves of these opportunities, does not preclude the court from making these additional findings, so long as the evidence as it evolved during the trial supports such a conclusion. See also Children's Aid Society of Toronto v. P. (J.), supra, at paragraph 60.

Can the court make a 57.1 order without first finding that the child is in need of protection?

[52] A second preliminary issue that must be addressed is whether the court may make a 57.1 order without first finding that the child is in need of protection. This issue arises, in part, because Mr. M. takes the position that S. is not a child in need of protection so long as she remains in Mr. M.'s sole custody. It also arises because, although he was very clear through the tenor of his evidence and cross-examinations of various witnesses, that he is of the view that S. was and would be at risk of harm if placed in her mother's care, Mr. M. failed to take an explicit position or even make reference to any of the enumerated statutory grounds the Society and the OCL rely upon for the finding that S. is in need of protection.

[53] All of this, coupled with his position that the appropriate disposition of this application is for a 57.1 custody and access order, suggests that his position is that it is not necessary for this court to make a finding that S. is in need of protection, before it can dispose of the matter by way of the requested s. 57.1 order. As his position is unclear and he seems to me to be suggesting that no finding in need of protection must be made before a s. 57.1 order is made, I am forced to address the issue.

[54] The threshold issue in child protection proceedings is whether the child is in need of protection. Without such a finding, the child protection court does not have the jurisdiction to make any final orders, except for an order dismissing the application. It is only if and once a finding is made that the court acquires the jurisdiction to invoke a number of remedies. Those remedies are set out in subsections 57(9), 57(1), and a domestic custody and access order made pursuant to subsection 57.1. See Halton Children's Aid Society v. T. (J.), 2017 ONCJ 267, (per Marvin Kurz), at paragraph 21, and Family & Children's Services of St. Thomas & Elgin v. O. (B.), 2011 ONCJ 640, (per O'Dea, J), paragraphs 15 and 17 – 19.

Other Legal Principles that Apply at the "Finding in Need of Protection" Stage

[55] These general legal principles have guided me in reaching my decision with respect to the question of whether any of the children are in need of protection:

(1) The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.

(2) Risk of harm must be real and not speculative; see Children's Aid Society of Ottawa-Carleton v. T., and Children's Aid Society of Toronto v. P. (J.), supra.

(3) Harm caused by neglect or error in judgment comes within the finding. See: Children's Aid Society of the Niagara Region v T.P..

(4) Risk of harm can be caused by an act, omission or pattern of conduct by a parent.

(5) It is not necessary for the society to prove a parent's intention to cause harm before finding that a child is in need of protection. It can be caused by an act, omission, or pattern of conduct by a parent. See Halton Children's Aid Society v. T. (J.), 2017 ONCJ 267, (per Marvin K. Kurz), at paragraph 24. A pervasive pattern of exposing a child to domestic abuse is sufficient: see Children's Aid Society of Niagara Region v. P. (T.), Children's Aid Society of Toronto v. P. (J.), supra.

(6) CFSA s. 37(2)(f) speaks to actual emotional harm that has befallen the child while s. 37(2)(g) speaks to the risk of such harm occurring in the future. The emotional harm must be demonstrated by a serious form of one of the listed conditions or behaviours. The Society must show a real likelihood of harm on a balance of probabilities. See Halton Children's Aid Society v. T. (J.), 2017 ONCJ 267, (per Marvin K. Kurz), at paragraph 23.

(7) In order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required.

(8) Even when a child suffers or is at risk of emotional harm, absent expert evidence, the court should not assume that the harm or risk arises because of the conduct of the child's parents. The onus is on the Society to prove, on a balance of probabilities, that there is a real likelihood that the child will suffer emotional harm if returned to the care of his or her parent. See Halton Children's Aid Society v. T. (J.), 2017 ONCJ 267, (per Marvin Kurz), at paragraph 27.

(9) The architecture of the CFSA requires a trial judge to consider evidence related to a finding before considering evidence that relates solely to disposition. No one in this trial raised the issue of bifurcation. They were content with a blended hearing. That being said, the majority of the evidence that I have heard related to both a finding and disposition. I have relied on no evidence that relates solely to disposition in coming to a finding about the need for protection.

Additional Background and Findings of Fact

The mother's mental health

[56] There is expert evidence in this case from psychiatrist, Dr. E.N. Zamora. He conducted a psychiatric assessment of the mother as ordered by Justice Marvin Kurz on October 7, 2016. His evidence consists of both his oral evidence and his written report, dated January 26, 2017.

[57] Although Dr. Zamora reviewed various medical and non-medical records and reviewed the mother's medical, familial, and developmental history with her, all of which tended to corroborate his own conclusions, on the basis of Dr. Zamora's examination of Ms. V. alone, he diagnosed her as follows:

(1) Substance abuse, alcohol, cannabis and possibly other drugs (chronic).

(2) Bipolar Mood Disorder, manic phase with paranoid delusions;

(3) Borderline Personality Disorder with paranoid features;

(4) Rule out Attention Deficit Hyperactivity Disorder.

(5) Rule out possible temporal lobe abnormalities in her brain giving olfactory hallucinations and bipolar like systems secondary to multiple head traumas as reported in her history.

(6) Rule out substance induced disorders such as bipolar.

[58] Dr. Zamora was confident in his diagnoses despite the fact that he did not have all of the historical medical records he had requested (which would have given him more information into the mother's medical history), the results of the blood work he requisitioned and left to the mother to obtain, and despite the fact that the mother only attended two of the three scheduled appointments she was to have had with him.

[59] Dr. Zamora describes statements made to him by the mother during the two appointments. Each appointment was over two hours. Some of the things she said that are indicative of her impaired mental health and which led him to form the diagnoses he made include the following:

(a) There is a loud buzzing sound at her door which she claimed was just present at night. She presented her cell phone as she had apparently recorded the buzzing sound, but the doctor heard nothing.

(b) The resident managers had scared her as they look like monsters and had been following her for years.

(d) She has been vomiting blood for the last two months as there has been a gas smell in the house for two years. She was collecting her vomit in a bucket in order to have it tested.

(e) Todd Carpenter is a drug addict who lives in her building. He is some type of mining specialist. Because of this she feels he must be involved in the gas smell being present in her apartment. He apparently knows how to manipulate people, and manipulates the pharmacy lady who lives in the building. The pharmacy lady parks in a space under a gas pipe where there is a lever for gas outlet.

(f) The gas even comes out of her electric oven and frequently does not allow her to sleep at night.

(g) Pharmacists scare her.

(h) Her groceries have gone missing and this has been happening in the past two years.

(i) She experiences dead body smells.

(j) She was admitted to Joseph Brandt Hospital in March 2015 as a result, she says of smelling dead body smells. When she was asked by Dr. Zamora what further they did for her when she was in hospital, she stated, "my teeth were scaled" and she was possibly tested for drugs or she was "raped, then cleaned out my mouth out of DNA or tested for other things".

(k) She believes that Sarah Malenfant (child protection worker) and J.A.M. are together dating and that they have S. now. I note that Ms. V. also voiced suspicions that other workers were also either in a relationship with, or sleeping with Mr. M. Mr. M. denied these allegations.

(l) She "picks up characteristics of people, their mannerisms".

(m) She is "educated as an aesthetician, educated to recognize someone with STD and AIDS in their last stages".

[60] Dr. Zamora goes on to report that although she did not evidence any anxiety she spoke of fears for herself in the place where she lived. These varied from an individual in the laundry room washing "poop rags", meaning bum wipes because he was not using toilet paper, to people saying negative things about her, to an addictions' filled atmosphere in the building. She spoke of smells of "carbon monoxide and rotten eggs", attributing them to her numerous pains in her body. She noted an atmosphere of negativity, harassment which was made worse by her son who was into drugs introduced by people in the building and letting strangers into the apartment in the middle of the night. She indicated that she had evicted her son for that reason. She denied any panic attacks and denied any hallucinations except for the smells and the smoke which were creeping into her apartment and "probably causing leukemia and cancer". She said she is "screaming at older grown women, who were obviously high on drugs and leaving keys in their door.

[61] Further, when she was asked about distrust and feelings of paranoia towards her neighbours and residents in the apartment buildings, she stated that she was "painfully always in reality and was not delusional or wrong in any way". She further claimed that she had experienced all types of emotions and was in control at all times and was always open, a "self, independent being". She furthermore did not believe in her family tree having any part to play in her personality or any problems in her life and did not believe in genetics. "Ancestors don't affect me and I have outgrown my ADHD".

[62] She repeatedly emphasized that she was a strong, independent, stand up for herself woman who does not lie. "If I needed help I would get it. I understand my weaknesses. I don't ever take medicine, alcohol is a drink not medicine, marijuana is a medicine for cancer but I will take no other". She admits to having many fights in her lifetime with many hits to the head. She denies any feints or fits of any type or episodes where she would lose her memory, even briefly. She said, "I remember everything, I would have been an excellent detective because I pay attention to details." "I'm going to go into the medical field but not surgery or anything gruesome, not like Gray's anatomy but more like Weeds, improving the drugs".

[63] Dr. Zamora reports that Ms. V. also spoke rapidly and began responding appropriately but would wander off on a tangent and had to be refocused a number of times. She also demonstrated pressured speech and flight of ideas as a thought disorder.

[64] With respect to the mother's cognitive abilities and functioning, Dr. Zamora estimated that the mother's IQ is in the low to average range and she has an exaggerated or grandiose view of her intelligence and abilities. Her insight and awareness of her own difficulties or failings and judgment on the basis of the information she gave him and in the fashion she gave it to him appeared extremely poor. In his opinion she has delusions and hallucinations despite her denial.

[65] Dr. Zamora's observations of the mother's paranoid and delusional thought processes along with signs that she hallucinates, impaired cognitive functioning, and poor decision making, logic, and reasoning, were also observed by almost every witness who gave evidence at this trial. Those witnesses either reported that the mother behaved in the same or similar way that she did with Dr. Zamora which included making the same or similar statements to them.

[66] The same is true of what is recorded in some of the documentary evidence such as the Discharge Summary from the mother's attendance at the Joseph Brant Hospital on March 20, 2014, where she was seen by Dr. D.P. Colonne.

[67] It is also evident from Ms. V.'s representations given to Justice of the Peace Paul Welsh on March 15, 2016, when she attended A.'s Youth Court matter and tried to present herself as a surety for him. Following Ms. V.'s description of her involvement with the Society, Ms. V.'s representations to His Worship that she was mentally fine and going into the medical field, Ms. V. went on to:

(a) Describe pills she found in her home, including on S.'s craft table;

(b) Express that she is unsure who places the pills in the home as she has issues with management;

(d) Said people come into her home and night and remove her groceries from the fridge.

(e) Indicated that she has been dealing with people coming into her home for the last three years.

[68] Although there was significant historical Society involvement dating back as far as 2004, the most relevant because the concerns related primarily to the mother's mental health and its impact on her ability to care for the children, began on March 20, 2014 and ended on September 4, 2014. During that file opening the Society entered into a six-month Voluntary Service Agreement with the mother on April 30, 2014, that included a term that Ms. V. would attend for psychiatric services/assessment as deemed appropriate by a medical professional or her family physician and follow through with recommendations. It also dealt with steps to be taken if Ms. V. was in crisis. There was no further Society involvement until the current opening, which started on January 27, 2016.

[69] Between March 20, 2014 and the time of trial, there have been four Child Protection Workers, who have had the primary responsibility of working with this family and in particular, who had the most direct dealings with the mother. They are Brittney Gendron, Sarah Malenfant, Michelle Anderson, and most recently, Sonia Gomez. All of them reported having observed Ms. V. to have said and done things that are the same or similar to that which Dr. Zamora reports.

[70] What their unchallenged evidence reveals to differing degrees, is that Ms. V. consistently and repeatedly:

(a) Demonstrated frequently unstable mood;

(b) Made statements that were grandiose;

(d) Demonstrated inconsistent thought patterns of being persecuted;

(e) Demonstrated paranoid thinking;

(f) Been suspicious and distrustful of Society workers (and others) for reasons that are not based in fact;

(g) Demonstrated impaired logic and reasoning skills, poor decision making, and exercised poor judgment; and,

(h) Demonstrated an escalation and worsening of her behaviours, over time.

[71] The evidence of the paternal grandfather of A. and N., Mr. P. Sr., and of S.'s father, J.A.M., demonstrates that the mother's thoughts of persecution, paranoia, delusional thinking, and unstable mood, is longstanding.

[72] Mr. M.'s evidence, confirms the consistency in the pattern in the mother's unstable mental health observed by the Society workers. It also demonstrates that although it was something he said was always unstable, has gotten progressively worse with time.

[73] Mr. M.'s affidavit and some trial exhibits also show examples of more recent and concerning emails Ms. V. has sent. His unchallenged evidence is that some of these were sent to him out of the blue, at random. In other words they were unexpected and not the result of anything he had done or said. For example, in one, Ms. V. threatened to take out a restraining order against him; in another, (an email sent on October 2, 2017), she writes "What do you think?" with a link to a photo showing Prince Charming over Snow White with the caption "Wake up bitch, It's time to go to the gym."

[74] On the basis of the overwhelming unchallenged evidence before me, I find that:

(a) The mother has, since at least March 20, 2014, and likely before, consistently experienced delusional and paranoid thought processes and hallucinations, and holds a grandiose view of her intelligence and abilities. These symptoms have worsened with time, and become particularly apparent throughout the most current Society file opening;

(b) The mother suffers from a number of diagnosed psychiatric and mental disorders and shows strong symptoms of others that have yet to be ruled out.

(c) As a result of her mental illnesses and disorders, and with the exception of her substance misuse which will be discussed shortly, I find, that her perception, ability to logic and reason, ability to make decisions, and judgment are all significantly impaired.

Ms. V.'s Chronic Substance Misuse

[75] There is an abundance of evidence before me and I am persuaded that the mother drinks alcohol and uses marijuana daily, and that this use is chronic (gone on for years). Some examples of the evidence are:

(a) The unchallenged evidence of statements Dr. Zamora reports she made to him;

(b) Mr. M.'s observations of the mother which included consistently seeing her drinking alcohol regularly and consistently seeing her with a glass of wine and a beer going at the same time.

(c) Ms. Gendron's observations of the home on March 20, 2014. Ms. Gendron observed 7-8 empty wine bottles by Ms. V.'s apartment doorway (along with the large pile of trash and recycling), and also two glasses of wine with what appeared to be red wine by the kitchen sink;

(d) Ms. Malenfant's evidence that the mother admitted to drinking in the morning of February 7, 2017 – a day when she was to have access to A. at noon;

(e) The results of a urine screen which tested positive for alcohol and THC (marijuana);

(f) Two Breathalyzer tests performed on the mother on February 8, 2017, 15 minutes apart with readings of .029 and .022. Those two Breathalyzers were done on a school day, around noon, when the mother was to attend at a meeting at N.'s school.

(g) A.'s reports to the Society, his probation officer, and his Children's Lawyer, following his September 2017 apprehension, that his mother drinks approximately a 6 pack of beer daily.

[76] Although she has intimated to others that her use of marijuana is prescribed, there is no evidence to corroborate this. From the mother's failure to provide proof of such prescription when asked by the Society worker before trial and at trial, I draw the inference and find that her use is not pursuant to any medical prescription.

[77] The evidence also establishes that she has used cocaine in the past. There is no evidence that the mother has used cocaine or any other illicit drug, except for marijuana, since becoming pregnant with S.

[78] Dr. Zamora reported that the mother acknowledged that her use of alcohol had a significant impact on her life, on interpersonal issues, difficulty on the job and possibly health complications. He opined that this (in addition to her diagnosed and other potential psychiatric and mental health disorders) could also affect her logic, reasoning, perception and decision making.

[79] All of this evidence is unchallenged. I accept Dr. Zamora's diagnosis and find that the mother drinks alcohol and uses marijuana daily and that her use is chronic, and I accept that it has had a negative effect in her life. I also acknowledge and accept his diagnosis that the mother has a chronic substance abuse disorder, and his evidence of the negative impact all of this could have on the mother's mental health, cognitive and executive functioning, and parenting.

[80] However, it is important to point out that this is not a case where the evidence suggests the mother is frequently intoxicated or under the influence, to the point of impairment. It is not replete with examples of the signs of same such as red face, slurred speech, bleary eyes, stumbling and other motor skill impairments, etc.

[81] Also, while there is ample evidence of the mother behaving belligerently, combatively, and with lowered inhibitions – all behaviours commonly associated with a person who is impaired due to alcohol or drug use), the descriptions of those occasions do not consistently include observations or admissions of alcohol and drug consumption, let alone to the point where that could explain the behaviours reported.

[82] For example, the evidence of her consumption on the day of N.'s school meeting and on the day of her access with A., does not suggest excessive consumption or that she was behaving as if she was intoxicated or under the influence to the point of any impairment.

[83] Even the mother's report to the workers as to how much she drank and when on the day of the meeting at N.'s school and on the day she was to have access to A. at noon, and the readings from the two Breathalyzer tests indicate a level of consumption that is fairly – below the legal limit after which a person is deemed too impaired to operate a vehicle.

[84] The evidence before me is not strong enough to persuade me that there is a sufficient correlation between the mother's use of alcohol, marijuana and possibly other drugs, and the evidence of her poor behaviour and impaired mental functioning. The evidence as to actual impact or effect, is more in the nature of speculation and conjecture about the impact her substance misuse could have on her parenting.

[85] None of this means, however, that her use is not chronic, misuse, causally connected to, or negatively affecting, her mental health. As Dr. Zamora notes in his report, her alcohol abuse and marijuana abuse alone will undoubtedly create major problems for her from a physical health standpoint even. The substance abuse is significant and definitely present although Ms. V. refuses to acknowledge that it is a problem that she has.

[86] In his report Dr. Zamora concludes it is obvious that her logic, reasoning, deception [sp meant perception], and decision-making are being affected by her condition and therefore her life and the lives of her children is chaotic and would continue to be so if she did not agree to treatment.

[87] He also opines that treatment for her disorders is essential for her stability to be a caring, loving, responsible mother, as she wants to be.

[88] He noted that her motivation and cooperation is essential for management of her future health and its effects on her children.

[89] With respect to treatment recommendations, Dr. Zamora indicated it would ideally be a hospital admission and withdrawal from her use of alcohol and other substances. This would provide an opportunity under observed conditions to determine whether the symptoms and signs of hypomanic or manic state disappear or are greatly modified. This could be an admission into a Concurrent Disorders program, but would have to be done voluntarily. A number of other recommendations are made that could be followed, in effect, depending on the diagnosis resulting from the hospitalization.

[90] With respect to Ms. V.'s willingness, interest and ability to engage in treatment, the prognosis is bleak. This is because, as Dr. Zamora opines:

(a) She appears to be satisfied with herself and sees little need for change in her behaviour."

(b) "Ms. V. shows no interest in treatment as she feels there is nothing wrong with her and has definitively stated that she does not want medication of any type",

[91] There is no evidence before me upon which I could find that Ms. V. has, is or will address her mental health issues.

[92] In the absence of any challenge to the evidence before me, or any evidence from Ms. V. or a medical professional treating her at this time, I find that:

(a) Ms. V.'s mental health is and continues to be untreated, and Ms. V. is not amenable to treatment;

(b) Ms. V.'s perceptions, logic and reasoning, decision making and judgment, insight into how her illness impacts on her parenting and on her children all remain seriously impaired; and,

Analysis of Risk and Harm – the Mother's Parenting

[93] The chaos Dr. Zamora opines will exist in the mother's life and in the lives of her children along with the consequent impairment of her perceptions, reasoning skills, judgment and decision making, as a result of her untreated mental illness, is confirmed through the evidence of the mother's parenting. So too are the effects in terms of the impact on the children, which has been to put them at likely risk to suffer harm and in the case of A., actual harm. The correlation that plays out in the mother's parenting of the children are next discussed.

Unstable Housing and Unsafe Home Environment

[94] I find that while the children were in her care, the mother was not able to provide them with a clean, safe and stable home environment. In fact, the home life she provided for them was very chaotic. This finding is based on a number of incidents, some of which are discussed below.

[95] First, on March 20, 2014, when Ms. Gendron was able to enter Ms. V.'s home, she observed a large pile of trash and recycling near the doorway. The children told her that they were not allowed to take the garbage out of the home as it was unsafe.

[96] Second, the mother's report that she sleeps on the couch lately because her boys are taking pills and they are scaring her. She knows that she can run out through an emergency exit.

[97] Third, the mother's pending and then actual eviction from her apartment at the end of January 2017, followed by residing with N. in a hotel and her subsequent eviction from that hotel, and then residence in two others before she finally found an apartment. These housing changes undermined and put N.'s stability and emotional well-being at risk.

[98] In this regard, Ms. Anderson's evidence confirms a lack of planning on the mother's part. Ms. V.'s failure to plan for a subsequent stable residence even though she knew for some time beforehand that she was going to be evicted reflects her poor judgment and decision-making.

[99] The home environment Ms. V. provided for the children was also physically unsafe, particularly for N. and S. Some of the evidence that has led me to this conclusion includes:

(a) Mr. M.'s evidence that there were drugs, drug paraphernalia, and drug use in the home by the older children, A. and A.P. Mr. M.'s evidence is that both N. and S. were home at the time and he observed the drugs and drug paraphernalia in the bedroom N. shared with his brothers;

(b) On at least one occasion around the time of A.'s arrest in March 2016, there were pills on S.'s craft table, which would have been within S.'s reach;

(c) The mother's own description of the goings on in her home, given to Justice of the Peace P. Welsh on March 15, 2016. As discussed earlier, she described for His Worship how there were pills she found in her home, including on S.'s craft table, people coming in and out of her home without invitation, and dog feces on the floor;

(d) Mr. M.'s evidence that one time when he went over to the mother's house, there was in fact feces on her floor.

[100] All of this, I find demonstrates that N. and S. were at risk of significant physical harm, while in their mother's care as a result of exposure to drugs, and that all three children were at risk of physical harm due to Ms. V.'s pattern of failing to provide them with a home clean and free of materials and substances hazardous to their health and general physical well-being.

A.

[101] I find that Ms. V.'s care of A. when he was in her care was woefully deficient and that he has suffered actual physical and emotional harm as a result.

[102] An example of Ms. V.'s poor judgment and inability to care for A. properly and which resulted in him suffering actual physical harm arose, during the period when he was in her care under a temporary supervision order from April 10 – September 11, 2017. During this period Ms. V. neglected and failed to care for A. by failing to meet A.'s nutritional needs. She did this by failing to ensure that he had enough food and by restricting his food intake by becoming angry with him when he tried to fix himself something to eat. The consequence of this (harm to A.) was threefold.

(1) He was often hungry. The evidence is that at meetings with his probation officer, the probation officer would feed him because he appeared to her to be hungry.

(2) A. lost significant weight and did so rapidly. Ms. Gomez observed A. looked thin and unwell at their meeting on July 13, 2017. A. told Ms. Gomez on September 11, 2017, that he had weighed 135 lbs, but was now 115 lbs. In other words, he lost about 20 pounds between April 10 – September 11, 2017.

(3) A. suffered emotional harm. I will have more to say about this below.

[103] I also find that Ms. V. consistently failed to provide adequate care, structure and supervision for A. For example:

(a) A. had no curfew and was allowed to come and go as he pleased. On July 13, 2017, he indicated to Society worker Sonia Gomez that he was rarely home.

(b) A. reported to his probation officer on September 13, 2017 that when he was in Ms. V.'s care, she was often sleeping, was consuming alcohol, and was not taking care of him.

[104] It is more likely than not that as a result of the lack of supervision, structure in the home, a curfew, and allowing A. to effectively do what he wanted, A. engaged in unsafe and self-destructive behaviours. These include using illicit drugs and developing a serious addiction; and it is likely that his being at large as he pleased in the community, resulted in him being, as he told the OCL clinician, Ms. Michelle Hayes, "jumped" by 8 or 9 people.

[105] The mother was also emotionally and verbally abusive towards A., which had the likely potential of undermining his self-esteem and sense of security. For example, upon learning of the incident where he was jumped, she was, according to A., angry, and told him that he was a "loser and has no friends". The same applies when she would get angry with him when he tried to fix himself some food. Furthermore, A. also reported that his mother always yells and he told Ms. Matthews that on the day she drove him, at his request, to the Society so that he could come into care, Ms. V. was yelling at him during the entire car ride.

[106] The mother also failed to meet A.'s mental health needs when she failed to properly address his addiction issues in a way that would reduce the risk of harm and in failing to provide the level of supervision required to prevent him from continuing to engage in such self-destructive behaviour. The emotional / psychological harm to him can be seen from the fact that it was while in her care that he developed the significant addiction he has had. This is to say nothing of the risk of physical harm that comes from partaking of illegal street drugs – such as illness and possible death due to tainted drugs, overdose, etc.

[107] An example of Ms. V.'s failings in this regard is revealed in the evidence given by Ms. Matthews and A.'s probation officer. Their evidence is that they each strongly supported A. attending at Portage, which is an inpatient drug rehabilitation facility for youth. Ms. V. did not engage with A.'s probation officer, and she minimally engaged with the Society to support A.'s placement in her care. A. was not able to access the addiction supports he needed in part because of a lack of direction and engagement from his mother. Although not entirely Ms. V.'s fault, she bears a significant portion of the responsibility for the loss of opportunity at the time to participate in the program.

[108] Actual emotional harm to A. is also evident from his extremely self-destructive behaviour of engaging in significant criminal activity. This landed him in trouble with the law. Since January 22, 2016, A. has had involvement with the Youth Court. That involvement is ongoing. He has incurred charges of:

(a) Threat of bodily harm (Offence date of March 14, 2016. Found guilty on October 31, 2016);

(b) Two counts of mischief (Offence dates of January 22 and March 14, 2016. Found guilty on October 31, 2016);

(d) Possession of controlled substance (Offence date of January 22, 2016. Found guilty on October 31, 2016);

(e) Uttering threats (Offence date of November 16, 2016. Outstanding, as there had been an attempt to resolve this through Enhanced Extrajudicial Sanctions);

(f) Five outstanding counts of breach of probation (Offence date of August 1, 2017).

[109] Again, Ms. V. does not bear all of the responsibility for this but her lack of supervision, lack of engagement, and lack of structure for A., more likely than not, played a key role in his acting out, including the decisions he made to engage in this type of self-destructive behaviour.

[110] A. withdrew voluntarily from his mother's care on September 11, 2017, and chose to return to the Society's care to get help. The main reason for his withdrawal, based on the evidence before me, was Ms. V.'s failure to properly care for him.

N.

[111] The mother was unwilling or unable to ensure that N.'s educational needs were met by ensuring that he attended school regularly and on time. As a result, N. was frequently late and had a significant number of absences. This placed N. at likely risk to suffer emotional harm.

[112] When Ms. Anderson explored the reason behind his lateness and poor school attendance on February 8, 2017, N. reported the following to her, all of which serves to confirm the chaotic, destructive and poorly structured and supervised home life that Ms. V. provided for the children:

(a) He likes school. He is just so tired that he does not wake up on time and during the day he is tired so he stays home with his mother. When he stays home with the mother, he will watch TV, sleep, or go on the laptop, and so will his mother.

(b) He did not know what time he goes to bed, maybe 10 p.m. He said he has a hard time falling asleep. Ms. Anderson asked if he was worried about anything, and what makes it difficult for him to sleep. N. said he did not know why.

[113] At a meeting at Ms. V.'s home on December 5, 2016, attended by Ms. Anderson and the School Social Worker, Jeff Von Zuben, the purpose of which was to address N.'s significant school attendance issues, Ms. V. made comments that were very suspicious of school staff and abuse. Her comments indicated her belief that N. was not going to school because teachers and faculty and bad people were bullying N. She also expressed her belief that faculty were sexually abusive of students. She said she would not subject her son to sexual abuse. Ms. V.'s concerns were unsubstantiated and akin to many of the paranoid and delusional thoughts she expressed at other times. They were not echoed in the reasons N. gave for not going to school regularly and inconsistent with his statement that he liked school.

[114] N.'s poor school attendance while in his mother's care threatened to undermine his social, emotional and educational development. Although not intentional and most likely due to her poor mental health, her suspicious, paranoid, and delusional thoughts most likely prevented her from ensuring N.'s emotional and development needs were met. As a result there was a real risk that he would likely suffer emotional harm.

S.

[115] I find that S.'s physical needs were being neglected while she was in Ms. V.'s care and as such she was at risk and likely to suffer physical harm. There was significant and plenty of evidence about this. For example, Mr. M.'s unchallenged evidence was that Ms. V. would provide S. to him at the beginning of access visits with a full diaper such that he had to perform a diaper change before buckling her into her car seat. His evidence was also that S. often presented as dirty to the point he had to scrub off food from her face, and she was often not fully dressed when he received her for access. Even after S. was placed in Mr. M.'s primary care, Mr. M.'s evidence is that Ms. V. would often return S. late and unfed, and he would have to give her dinner at 9 p.m.

[116] There was also Ms. Malenfant's evidence that S. was not fed for a 6 hour period one time when the parties were in court in October 2016.

[117] The Society and Mr. M. placed significant weight on an occasion when Ms. V. administered laxatives to S. This resulted in S. having a large number of bowel movements. The suggestion is this physically harmed S. or put her at risk of physical harm because it was inappropriate treatment for her constipation. I am not persuaded. It was established that S. had a history of constipation issues while in Ms. V.'s care. Despite the height of alarm Mr. M. expressed in relation to this incident, he himself did not seek medical attention for S. This suggests to me that the degree of risk is overstated and that there was no actual or real risk of harm to S.

[118] The Society submits that while the cause of the constipation is unknown, it may arguably have been the result of her living in Ms. V.'s home, given that it has not been an issue since she was placed in her father's primary care. This is highly speculative and I place no weight on this argument.

[119] The Society and Mr. M. also allege that there was a risk that S. would suffer emotional harm while she was in her mother's charge or custody as a result of her mother's interference with the father's access and S.'s attendance at daycare. I decline to make that finding. It is clear to me that Ms. V.'s withholding of access, misperception that S. was exhibiting signs of distress over access with her father and her mother's repeated efforts to get S. help for this, and her decision to pull S. out of daycare, an environment where S. was thriving, were all misguided and examples of very poor decision making and judgment on Ms. V.'s part. The problem is that I cannot make the leap from this to "likely to suffer emotional harm" without speculating far into the future, particularly given that there is no persuasive evidence that S. was showing any signs of emotional harm at the time.

[120] The evidence does however, firmly establish, and I find, that Ms. V.'s behaviours towards S. and towards others in the presence of S. cause S. anxiety and stress, and thus, negatively impacted S.'s emotional well-being, and if left unchecked, would most probably cause S. to suffer emotional harm.

[121] The negative impact on S. in terms of causing her anxiety and stress is evident from S.'s reactions in circumstances where the mother has said or done things that are completely inappropriate. This includes initiating conflict with others in S.'s presence. While these reactions do not yet signal that S. has suffered actual emotional harm, they are clear indicia that she is likely to. I turn to review just some of the examples of the mother's inappropriate behaviour and its impact on S.

[122] First, S. has displayed some anxiety about her mother seeing her positively interact with Society employees. For example, Ms. Gomez described an instance during which she was reading S. a book while they waited for Ms. V., and when S. spotted her in the parking lot, she quickly told Ms. Gomez to stop reading to her as soon as her mother comes in. Ms. Gomez observed S. appearing nervous about her mother seeing her read to S.

[123] Second, Mr. Laforet deposed that he has also observed the mother be belligerent and yell at Society staff in S.'s presence, and S. will often appear scared, with her head pointing down and standing alone unless her mother pulls her towards her. If the mother is verbally aggressive, S. is quieter and appears sullen.

[124] Third, Mr. Laforet's evidence is also that during another access exchange wherein the mother made the comments about CSIS and satellites, when he tried to walk S. down the hallway, S. reached out her hand to him. He put his hand on S.'s head but did not grab the hand to avoid an escalation in Ms. V.; however, Ms. V. loudly exclaimed "don't touch my daughter". When Mr. Laforet and S. turned the corner, S. grabbed his hand.

[125] Fourth, Mr. Levac's evidence is similar. He described how during the access drop off on August 29, 2017, he observed that S. was aware of her mother's escalation, and she quickly went to him in order to avoid anything further.

[126] Fifth, Ms. Thomson deposed that during an access exchange in which Ms. V. was saying in a singsong voice that she was going to be a doctor and would be attending medical school at the University of Toronto, Ms. Thomson observed S. was very quiet while sitting on her mother's lap, and she looked down while her mother was talking to her.

Conclusion and Finding in Need of Protection

[127] In light of the strong and unchallenged evidence of poor and unacceptable parenting of all three children, the evidence that her parenting ability is likely to be impaired due to her untreated mental disorders, and the absence of any other plausible explanation for her substandard parenting, I conclude and find that these significant shortcomings are most likely causally connected to her impaired functioning due to her unstable and untreated mental illness.

[128] While the level of risk could be mitigated and reduced to an acceptable level with treatment, the mother is neither motivated nor interested in, and continues to refuse treatment. Until this changes, her ability to parent any of these children at an acceptable level will not change.

[129] Although the examples I have relied upon in making the findings above demonstrate specific instances where the mother has neglected or failed to adequately care for, provide for, supervise or protect one or more of her children, looking at her parenting as a whole I also find, her actions are reflective of a pattern of neglect and failure to care for and supervise her children.

[130] Given all of the above, it is my finding that on a balance of probabilities, if any of her children are returned to her care at this time, those returned children would be at real risk and likely to suffer both emotional and physical harm.

[131] Further, in the case of A., the pattern of inadequate parenting and the actual failure to properly supervise and care for him have actually caused him both emotional and physical harm.

[132] For all these reasons I find that both when each child was in the mother's care and at the time of trial:

(1) The youth, A., born [...], 2000, is in need of protection pursuant to clauses 37(2) (a)(i), 37(2)(b)(ii) and 37(2)(f) of the CFSA.

(2) The child, N., born [...], 2003, S., born [...], 2013, are children in need of need of protection pursuant to clauses 37(2) (b)(ii) and section 37(2)(g) of the CFSA.

ISSUE #2: WHAT FINAL DISPOSITION AS TO PLACEMENT IS IN EACH CHILD'S BEST INTERESTS?

Legal considerations on Disposition

[133] Subsection 57(1) of the Act sets out the types of disposition orders available to me. This subsection reads as follows:

57. Order where child in need of protection. — (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:

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

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

3. Crown wardship — 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.

4. Consecutive orders of society wardship and supervision — 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.

[134] Subsection 57(1) is limited by clause 70(1)(a) of the Act, which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding 12 months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in subsection 70(4) of the Act.

[135] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See Children's Aid Society of Toronto v. P. (J.), supra, Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.). Simply put, the court asks, "What has changed?"

[136] A Crown wardship order is the most profound order that a court can make. To take someone's children from him or her is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of the alternative remedies. See Children's Aid Society of Toronto v. P. (J.), supra, Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J.).

[137] Subsection 57(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part III of the Act.

[138] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[139] Subsection 57(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care. T. and O. have been placed with family members.

[140] A fifth disposition to s. 57(1) is a domestic custody and access order made pursuant to subsection 57.1, the relevant provisions of which read as follows:

57.1(1) Subject to subsection (6), if the court finds that an order under this section instead of an order under subsection 57(1) would be in the child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of that person or persons.

57.1(2) An order made under subsection (1) and any access order under s. 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under s. 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under s. 28 of that Act; and,

(b) may give any directions that it may give under s. 34 of that Act.

57.1(6) No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or,

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

57.1(7) Subsection 57(3) applies for the purposes of this section.

[141] In applying these provisions, I must determine what order is in each child's best interests, not the mother's. Subsection 37(3) sets out the criteria to determine their best interests. It reads as follows:

(3) Best interests of child. — 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 by blood or through an adoption order.

7. The importance of continuity in the child's care and 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's 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.

[142] I have considered the legal factors and principles set out above, together with the evidence that already discussed and additional evidence to which I now turn, in making my determination of the disposition that is in each child's best interests.

Discussion and Analysis

Return of the Children to the Mother

[143] The overriding reason why these children cannot be returned to their mother's care subject to a supervision order, with or without terms and conditions is because the degree of risk of harm is high and there is, I find, no way to mitigate it such that it is brought within acceptable limits.

[144] I make this finding, in part, because:

(1) The mother lacks any insight into her mental health or the impact it has on her ability to act as a competent parent.

(2) She does not perceive the risk to the children and has done nothing to address the concerns which give rise to those risks;

(3) The mother does not see the things she has done or the decisions and choices she has made as problematic in any way.

(4) She accepts no responsibility and blames others almost entirely;

(5) She refuses to accept help and support, except in the form she deems fit.

[145] Counsel referred me to a number of cases where the court refused to return a child or children to a parent with mental illness and where the parent exhibited many of the same traits as Ms. V.'s. These include, Children's Aid Society of Toronto v. P. (J.), supra, a decision of Justice Sherr on a motion for summary judgment; and, Halton Children's Aid Society v. T. (J.), supra, a decision of Justice M. Kurz. In both of these cases the level of continuing risk played a significant role in the outcome. At the end of the day, both judges asked themselves what had changed and found little. In this case I find nothing has changed viz a viz the mother's metal illness or the behaviour and poor judgment which gives rise to the protection concerns and finding that each child is in need of protection.

[146] There are other reasons why it is not in the best interests of any of these children to be returned to their mother's primary care.

[147] First, the evidence set out in the affidavit material demonstrates significant efforts on the part of the Society to support all of the parents and in particular, the mother both before and after the Society's intervention under Part III of the Act. It also establishes that the mother has not and will not accept support (unless it is in the form that she requests such as that they fund her return to school). This is in part because she does not trust them and believes they are out to persecute her. It is also likely because she thinks she knows best. Most significantly, it is because she does not recognize or accept that she cannot parent without support.

[148] Second, given her delusional and paranoid thought processes she is unlikely to be able to work cooperatively with service providers and others such as in S.'s case, Mr. M. The evidence of constant power struggles and conflict between the mother and others (at her instigation), of the mother's belligerent behaviour and refusals to engage, are all examples of this.

[149] Third, she is ungovernable. She has demonstrated this over and over again. She cannot and will not take direction consistently. She does not abide by court orders as is evidenced by her routine lateness in returning S. after access, and her taking of S. to her home despite the fact that the existing temporary order prohibits this.

[150] Fourth, she has not presented the court with a current plan of care and as she did not testify at this trial, there is no evidence as to her current situation and plan for the children.

[151] Sixth, none of the children wish to return to her care at this time.

A.'s Best Interests as to Placement

[152] A. has been in Society care for over 2.5 years. It is time for a permanent order to be made for him.

[153] There is no reasonable prospect of his mother improving to the point where she can resume care of him, in the foreseeable future.

[154] No person is presenting a plan to care for A., and there is no alternative placement option for him outside of Society care.

[155] With respect to A.'s views and preferences, A.'s position until September 2017 was that he wished to be in Ms. V.'s care. Upon returning to Society care on September 11th, A. was consenting to an order that he be made a Crown and placed in the Society's care. However, during the trial adjournment between November 8, 2017 and January 8, 2018, A.'s views and preferences changed. He does not want to return to his mother's care and wants to remain where he is. He consents to being made a Crown Ward. I place great weight on A.'s wishes given his age.

[156] The evidence is that A. is doing very well in the Society's care. He is residing with D.P., his father's ex-wife. His older brother A.P. also resides in that home. He has been there since December 20, 2017, and since then seems to have settled down. Quite frankly, this is the longest period of stability he has enjoyed in a long time.

[157] The Society's plan at this point is to support his current placement in the care of his father's ex-wife, D. P.

[158] Given all of the forgoing, I find it is in A.'s best interests that an order be made making A. a Ward of the Crown and placing him in the Society's care. Accordingly, I make that order.

N.'s Best Interests as to Placement

Additional Facts

[159] As outlined earlier and until very recently, N. had been living with his father in the paternal grandparents' home for several months.

[160] His father has been the one primarily caring for N. and there are no reports to suggest that N. is not well cared for.

[161] By all accounts N. is doing very well and going to school.

[162] Mr. P. and N. moved out of the grandparents' home following a recent altercation between Mr. P. and N.'s grandmother. The grandmother was unwilling to continue to allow N. (who intervened to protect his father and with whom she has generally had a conflicted relationship with and overall, holds a dim view of) to continue to reside in her home.

[163] For a short period after the move, N. stayed with D.P. At present, N. and his father are living in a hotel while the father works to get financial supports in place, as well as find permanent housing.

[164] Despite the move and with Society assistance, N. is continuing to attend at the same school and is doing well.

[165] Mr. P. has a history of alcohol misuse and becoming intoxicated. There was an incident in September 2017, which raised concern about his ability to maintain sobriety or control his drinking. There have been no similar incidents since and it appears that Mr. P., (who is effectively following a harm reduction approach to address his drinking) is managing his alcohol consumption appropriately.

[166] As a result in the change in N. and his father's living situation, on April 27, 2018, the Society filed an amended plan of care for N. The change in plan was from their original position that he be placed in the joint care of the paternal grandparents and his father, to his father's care alone.

Findings and Analysis

[167] I find that it is in N.'s best interests for him to be placed in his father's care, subject to a seven month supervision order with the terms and conditions newly proposed by the Society, for the key reasons set out below.

[168] First, it is the next least intrusive disposition and is preferable to Society Wardship or Crown Wardship.

[169] Second, N. has been consistent in his views and preferences that he wishes to remain with his father. He is 14 years old and I place great weight on his wishes.

[170] Third, N. in his care and residing with him, is Mr. P.'s wish. He consents to the supervision order and terms thereof proposed by the Society.

[171] Fourth, Mr. P. has been generally cooperative with the Society. I have confidence that he will accept direction and support from them during the term of the order.

[172] Fifth, the lack of evidence to suggest Mr. P. is not managing use of alcohol appropriately coupled with the fact that there have been no further reports of intoxication since the September incident, suggests to me that the risks associated with his use of alcohol, are being managed and thus, reduced to within acceptable limits.

[173] To the extent that Mr. P.'s alcohol consumption presents a risk, I am satisfied that the Society understands the risk, particularly at this precarious time of increased stress, and that it is prepared and will take regular steps to monitor the situation and intervene if required.

[174] Sixth, despite living with his parents, Mr. P. took on a stronger role in caring for N., and there are no concerns about the care he provides to N. and the evidence is that N. has been doing well. Given his age, N. is able to take on greater responsibility for his care.

[175] Seventh, N. and his father are well bonded and attached to one another now.

[176] Eight, because the plan is new and some time is needed to see if things stabilize and continue to be positive for N., a supervision order is appropriate as it will afford the Society greater ability to monitor the situation and to intervene and support the family. Further, as N. will be attending at the same school, there will be an outside source familiar with N. and able to identify any negative changes or concerns, and to report these to the Society;

[177] Ninth, while the court is concerned about Mr. P.'s lack of permanent housing and financial means at this time, I am satisfied that the situation is most likely temporary and not likely to last long. Efforts are being made by Mr. P. and the Society to address these. Further, Mr. P. has a safety net of sorts. He not only has the support of the Society but he also has that of D.P. She has demonstrated both with A. and A.P. and most recently with N. that she is committed to these boys and is there to support N. and Mr. P.

[178] Tenth and overall, the terms of the supervision order sufficiently address the risks associated with this plan particularly when coupled with the society and community supports, Society monitoring, and N.'s visibility in the community through his school.

[179] I therefore grant the disposition order requested by the OCL and the Society.

S.

The Evidence and Additional Facts

[180] Since being in her father's care S. typically presents as a happy child, who has been meeting her developmental milestones.

[181] By Family Court Order dated October 24, 2014, of Justice Sheilagh O'Connell, Mr. M. and Ms. V. were granted joint custody of S., with Ms. V.'s home as S.'s primary residence. Mr. M. was to have parenting time with S. each Tuesday, Wednesday and Thursday from 5:30 p.m. to 8:30 p.m. and each Sunday from 11:00 a.m. to 4:00 p.m. Otherwise S. was to reside with Ms. V.

[182] The Society's initial position when the Child Protection proceedings were commenced in March 2016 was to maintain the status quo as to S.'s primary residence. However, due to escalations in Ms. V.'s behaviour which affected her parenting of S. and an apparent deterioration in Ms. V.'s ability to continue to jointly parent S. with Mr. M. (i.e. Ms. V. making decisions without consulting Mr. M.), the Society's position gradually changed.

[183] By temporary order dated October 7, 2016, S. was ordered to reside with Mr. M., and the mother to have access to her once a week. Restrictions were put in place regarding Ms. V. administering medication to the child and taking her to a doctor.

[184] Since S.'s primary residence was changed in October 2016, there has been one child protection concern regarding S. while in Mr. M.'s care. Specifically, in late October 2016, S. had a bruise on her ear, which she indicated to daycare staff was caused by her paternal grandfather, T.M. The Society verified the concerns of harm by a non-caregiving family member towards S. On December 5, 2016, Mr. M. was directed to provide same-room supervision of S. with Tony M. at all times and indefinitely. T.M. is also aware of this direction and he agreed to abide by it.

[185] Mr. M. has been receptive to learning parenting techniques from Society staff when offered. He has also generally been compliant in ensuring that S. attends for access visits with Ms. V. on time.

[186] Since being placed in Mr. M.'s primary care, S. attended daycare regularly, and she now attends school regularly. Mr. M. has also engaged her in appropriate extra-curricular activities.

[187] Ms. V.'s negative behaviour towards Mr. M. clearly suggests that a joint custodial regime is unrealistic, particularly as this behaviour has included attempts to instigate conflict with him while in S.'s presence, threats, demands that he not contact her, and periodic statements that, in effect, come out of the blue that she will be seeking a restraining order against him.

[188] The fresh evidence suggests that Ms. V. is not doing well and is escalating in terms of the degree of her aggressiveness and other negative behaviours. Most recently and against Mr. M.'s wishes, Ms. V. attended at Mr. M.'s home twice.

What Custodial Arrangements are in S.'s Best Interests?

Sole vs. Joint and Primary Residence / Care

[189] I find that it is in S.'s best interests that she continue to be in Mr. M.'s primary care and that he have sole custody of her. This is why.

[190] First, there is no question that S. should be placed in the exclusive care and custody of her father. This is the least intrusive option available that is also appropriate and in S.'s best interests.

[191] Second, he had joint custody of S. prior to these proceedings. The evidence showed that he had been very supportive of the mother, coming when she called him to comfort and address her fears. He exercised his access regularly. There was no evidence that he exercised his rights of custody in an inappropriate way.

[192] Third, all of the evidence before me points to the child thriving in her father's care in a manner that she did not in her mother's care.

[193] Fourth, all of the evidence before me indicates that he is a competent and attentive parent who is committed to, willing and able to meet her needs. No one at this trial expressed any concern about Mr. M.'s parenting of S. and all who were asked confirmed his competency.

[194] Fifth, the evidence before me makes it clear that S. and her father love each other and are strongly bonded and attached. S. looks to her father to protect her, to support her, and for comfort, and he provides her with all of this and more.

[195] Sixth, Mr. M.'s plan of care is sound and will meet S.'s needs. It is already in place, well established, and working well in terms of meeting S.'s needs.

[196] Seventh, it is in S.'s interest that she enjoy continuity of care, routine and stability. She has been living with her father since October 2016, and is well settled. She has already undergone so much chaos and disruption in her life. What is best for S. is that she not have to undergo any further significant changes.

[197] Eight, joint custody is simply not workable. Ms. V. cannot make child-focused decisions and her decision making and thought processes are impaired. She is also unwilling or unable to recognize and meet S.'s needs, let alone make them a priority over her own. This is clear from her repeated exposure of S. to conflict at exchanges, and most recently, in her decision not to exercise access to S. for over three months, because she was, in part, training a puppy. Further, the evidence is clear that Ms. V. is verbally abusive to Mr. M., disregards and places no weight on his perspective, is unable to cooperate and communicate with him properly. Mr. M. does not want joint custody, as he cannot co-parent with Ms. V. at this time, and rightly so.

Supervision Order vs. s. 57.1 Custody and Access Order

[198] In deciding that a s. 57.1 order is preferred over a supervision order, I have considered and followed the reasoning of the Court in the case of Family and Children's Services of Frontenac, Lennox and Addington v. L. (A.), 2015 ONSC 4491. Justice Polowin presided over a case where a 57.1 order had been made in favour of the mother already and then subsequently, another judge suspended access and directed that the father attend for assessment and treatment of his mental health issues with a qualified psychiatrist approved of by the Society and to follow the treatment recommendations made by the psychiatrist. At the time of that order, the father, among many other shortcomings, suffered from a delusional disorder, had hallucinations, and delusions and (like Ms. V.) thought he was absolutely right on everything. Also, like Ms. V., he had no insight and could not imagine he might be the problem.

[199] Justice Potwin did not agree with the approach taken by Justice Buyers. He noted that absent a finding that the children continued to be in need of protection, of which there was no evidence, and given that the mother had already been granted custody pursuant to a s. 57.1 order, he was of the view that the court had no jurisdiction to continue the supervision order and by extension, the obligation on the Society to supervise the father's access (see paragraph 53). He set aside the supervision order, restored the original 57.1 order and then seems to have treated the application as an application to vary access under the CLRA. He then granted the father supervised access on terms.

[200] His comments at paragraphs 52 and 54, although not made for the purpose, offer this court guidance as to why and when a court deciding the appropriate disposition option, might prefer to make a 57.1 order, rather than a supervision order. At paragraphs 52 and 54, he writes:

52 The Society has been involved with this family for five years. Social workers have been assigned to this family over this time. There has been significant court involvement throughout. This family has tapped Society resources for these many years. However, Society resources are not limitless. What is unnecessarily expended on one family is not available to another. If this Court were to make another supervision order, even if it were solely for the purpose of providing supervised access to the children for Mr. L, the Society would still be required by virtue of the Ministry Regulations to visit with Ms. L and the children on a monthly basis, in addition to the cost of having a child protection worker transport the children and supervise the access at the farm. This has been a significant cost and as noted above could potentially continue for many years to come. I must also note that there are legitimate worker safety concerns with respect to the supervised access. The farm is isolated without reliable cell phone coverage.

54 A children's aid society is not to be used by the Court as a supervised access facility. While a society may as an adjunct to the services it provides to families, provide supervised access, its mandate, its raison d'etre is to provide services to families where children are or may be in need of protection (see Section 15 of the CFSA). At this juncture, this is not such a family.

[201] Taking all of the forgoing into account, I find that granting Mr. M. sole custody pursuant to a s. 57.1 order is in S.'s best interests and more appropriate than a supervision order because:

(1) It is the least intrusive, available and appropriate disposition that is in S.'s best interests.

(2) There is no need for Mr. M.'s care to be subject to supervision and nothing to be gained by such an order. There are no protection concerns relating to Mr. M.'s parenting and thus, no need for the Society to supervise his parenting of her.

(3) S. is not at risk of harm and will not be in need of protection while in her father's care.

(4) S. is under 6 and this, coupled with the fact that she has not been in Society's care, means the total length of the term of any supervision order cannot exceed 12 months. Given the current state of the mother's mental health and disposition towards treatment, not much is likely to change in the sense of the mother being able to demonstrate sufficient change at the end of a 12 month supervision order (and certainly not within a lessor term) for this court to even consider returning S. to her mother's care.

(5) There is no realistic prospect of success that the concerns regarding the parents' inability to co-parent will resolve in the future given Ms. V.'s unwillingness to acknowledge the concerns and/or take any steps to address them either with the Society's assistance (which she has refused for a significant period of time) or on her own. Given this there is no justification to delay her permanency.

(6) The only real purpose to a supervision order given all of the circumstances, would be to continue to use the Society as a facilitator of access exchanges. This is not appropriate given that there are other resources available in the community to provide such service and because such service comes at a cost to the Society that is not justified. Not only does it mean that the workers will continue to be exposed to Ms. V.'s abusive treatment of them, but they will have to continue to meet with the mother to assess her care and plan, even though there is no reason to expect the situation to change. They would also have to meet regularly with Mr. M. to monitor his care of S., even though there is no evidence to suggest that his care of S. is anything other than excellent. Society resources are not limitless. What is unnecessarily expended on one family is not available to another.

Conclusion

[202] Taking all of the forgoing into account, I find, on a balance of probabilities, that S.'s best interests will be met by her remaining in the care and sole custody of her father, under a custody order made pursuant to section 57.1 of the Act. I have so ordered.

ISSUE #3: WHAT ACCESS IS IN EACH CHILD'S BEST INTERESTS?

[203] N. and A. already have access to one another and it is in their best interests that this continue, particularly given their ages and that this is their wish.

A.

[204] With respect to access with their mother, A. is old enough and been through enough that it should be up to him whether he sees his mother. Because of the need to ensure that A. is properly supervised so as to avoid him getting into further trouble with the law and drugs, it is important for his caregivers to know where he is, with whom, and when he is to come and go. The order the Society and OCL propose – that access with his mother shall be as agreed between the Society and Ms. V. as to frequency, duration, location and level of supervision, taking into consideration the youth's views and preferences – will meet this need.

[205] It may be that Ms. V. and the Society cannot agree on terms or that the state of the mother's mental health and willingness to abide by conditions placed on access by either A. or the Society, is poor. For this reason it is appropriate to order that in the event the parties cannot agree, A.'s access to his mother shall be held at the Society's office and supervised by the Society.

[206] I find therefore that the order sought regarding A.'s access to his mother is in his best interests. I grant the order requested, accordingly.

N.

[207] N. has had some visits with Ms. V. since leaving her care, though the frequency has declined since he moved to Grimsby, Ontario in late August 2017. Ms. V.'s commitment to timely, regular and consistent access has been poor. Because of the distance N. must commute, it is necessary to ensure that N. is not transported to access only to learn that a visit is not going ahead. Putting conditions on the mother, such as that she confirm her visits in advance, that there will be no make-up access, and requiring the mother share in the transportation by meeting at a half-way point, will help to reduce the risk of this occurring and thus, any negative impact it may have on N.

[208] Ms. V. and Mr. P. do not always get along. It will be important for them to shield N. from any conflict at exchanges.

[209] Given Ms. V.'s use of marijuana and her past seeming lack of control over illegal substances being brought into the home, it is important that a condition of access be that she shield him from exposure to illicit substances. The conditions of the order requested will address this issue, as long as Ms. V. follows them.

[210] For all these reasons and because the order requested is consistent with N.'s wishes and decisions about access will take his wishes into account, I find that the access order, including conditions, requested by the Society and the OCL for N. is in his best interests. I grant the order requested, accordingly.

S.

Additional Evidence / Facts – As at January 11, 2018

[211] Access visits between S. and her mother occurred fairly regularly and consistently until they stopped altogether after the last visit on January 23, 2018. From March 2, 2017, up to an including January 23, 2018, Ms. V. has had unsupervised access with S. twice a week for three hours per visit. The terms and conditions of her access include:

(a) Pick-up and drop-off is to occur at the Society's office.

(b) Ms. V. may not bring S. to her home during access visits.

(c) Ms. V. shall not discuss the father, her views of the Society, or these court proceedings with the child during access visits.

[212] In addition to the above terms, the Society has had to put additional safety measures in place to ensure that S. is not exposed to adult conflict between Ms. V. and Mr. M. Those safety measures include Ms. V. remaining in her car at exchange while S. is retrieved or brought out to her and being required to leave the premises immediately after S. is picked-up/dropped-off.

[213] These measures were put in place following the drop-off that occurred on October 17, 2017. On that day Ms. V. was yelling at Mr. M. and did not leave for at least five minutes following S. being returned to the Society. Ms. V. remained in her car, which was running with her headlights on, pointed at Mr. M.'s car.

[214] Despite the precautions, conditions and court order designed to regulate Ms. V.'s conduct at exchanges and during her access with S., problems persist and abound. For example:

(a) Ms. V. has taken S. to her home during access visits on a number of occasions, which is in direct breach of the March 2, 2017, temporary order.

(b) While Ms. V. has been on time to pick S. up, she is frequently late to return her at the end of the visit.

(c) Ms. V.'s presentation and/or statements have been very odd, indicative of continued deterioration in her mental health, and she is often very hostile towards Society staff. These events have happened in S.'s presence. Some examples are outlined earlier in these reasons, and more are given below.

[215] In or about mid-August 2017, S. began telling Society worker, Sonia Gomez, and her father that Ms. V. was yelling at her during access visits.

[216] Around that same time, S. also began showing signs of difficulty in leaving Mr. M. to start her access visits. When Ms. Gomez spoke to S. about this, S. indicated that part of the reason she does not like leaving her father is because she misses him when she is with her mother. She has also repeated that her mother yells at her, but has generally been unable to articulate further information regarding the yelling. This is likely due to her young age and stage of development.

[217] When Society worker, Ms. Gomez, spoke privately with S. on October 25, 2017, in her room at Mr. M.'s home:

(i) S. denied that she hears her father talking badly about her mother, but indicated that her mother talks about her father and that her mother does not like her father.

(ii) S. said she does not really want to see her mother because she misses her father and her father plays games with her.

[218] Ms. V. was unresponsive to the Society's warnings that her behaviour is harmful to S. and Ms. V.'s behaviour did not changed following her receipt of these warnings, which have been set out in letters and emails to her.

[219] As well, when Ms. Gomez tried to raise the issue of S.'s concern around the yelling on September 5, 2017, Ms. V. was belligerent with Ms. Gomez and mocked Ms. Gomez's voice and what S. had said.

[220] Dr. Zamora gave oral evidence that, in effect, while there is likely a low immediate risk of harm to S., there is a long-term risk of S. being exposed to Ms. V.'s behaviour and erratic thinking. He indicated Ms. V. cannot see the impact of her behaviour on the child's emotional wellbeing. He testified that Ms. V.'s views are entrenched, and she has a low tolerance for frustration. Ms. V. will be unpredictable, and can become agitated at times. There were examples of this observed by Society employees following the completion of Dr. Zamora's report.

[221] Notwithstanding S.'s perspective, the conflict and difficulties around access, S. continued to be compliant in going on her access visits with Ms. V. and did, at times, report she had fun. There was also evidence given by society staff that they have observed S. running and skipping towards Ms. V. at the start of visits. S. and Ms. V. had also been observed to exchange appropriate affection with each other. As Ms. Matthews indicated in her evidence, "while S. has been observed to appear reluctant to leave her father and visit with her mother at the Society office, S. has been observed to appear to be happy when she actually is in her mother's presence".

Additional Facts – The Fresh Evidence (January 23, 2018, onwards)

[222] The fresh evidence of Mr. M. is that the mother's housing situation has once again become unstable as a result of being evicted again.

[223] The fresh evidence of Mr. M. and Ms. Gomez reveals that since January 23, 2018, Ms. V. has not attended any visits with S., cancelled many of them herself, for a variety of reasons. On February 27, 2018, the mother sent Ms. Gomez an email stating she would not have further access with S., as she was so tired of Mr. M. and Ms. Gomez. She asked that Ms. Gomez tell S. that she loves her very much and they would see each other once Mr. M. and Ms. Gomez grew up. Ms. Gomez has had no communication with the mother since February 27, 2018.

[224] The mother's negative behaviour towards the Society workers, also seems to have escalated in intensity, including in S.'s presence. The evidence regarding the incident that occurred in S.'s presence on January 23, 2018, is particularly illustrative of this. Some of what occurred that day includes the following:

(1) She (the mother) leaned towards Society worker, Wendy Mackenzie, and said words to the effect of "Fuck you, you fucking bitch, she (referring to S.) slept the entire time";

(2) She screamed and yelled;

(3) She nearly hit S. with the door as the mother was exiting the office.

(4) She hugged S. and told her words to the effect of "she's a fucking bitch" and other inappropriate words which appeared to shock S.

(5) She continued to use profane and insulting words towards Ms. Mackenzie as she was escorting her out of the office.

[225] Ms. Gomez sent an email to the mother on January 25, 2018 to let her know, among other things, that her access was suspended until they could talk about the January 23, 2018 incident. The mother's sent two emails in response, both of which were odd and make no sense. One states "Oh Canada has just began. See you all soon. J.", and the other only contained a link to a Wikipedia page describing extortion.

[226] The mother showed up at the Society's office on January 25, 2018 at 4 p.m. anyway for her access. When Ms. Gomez approached her and the mother saw that she did not have S. with her, the mother then commented, "no visit today" and before Ms. Gomez could continue Ms. V. rolled up her window and would not let Ms. Gomez speak. She then rolled it down and said "fuck you", I'm calling police" and she then drove off. The police did not attend, suggesting no call was actually made by Ms. V.

[227] The fresh evidence of Mr. M. also supports a finding that the mother's negative behaviours and judgment is getting worse. He described two separate dates when Ms. V. showed up at his house uninvited. The first was on April 10, 2018. His evidence is that she arrived at approximately 7:30 a.m. and was filthy and upset. She explained that she was homeless and living out of her car. She also told him she was pregnant. While he allowed her to enter his residence, he asked her to keep her boots and jacket on. He made her coffee, which he put in a cup for her to take with her when she left. He let her peak in on S., who was sleeping and asked her to leave, which she did.

[228] The mother then wrote to Mr. M. on April 14, 2018 asking that she sleep at his residence because it is cold. On April 22, 2018, she came to his residence again, unannounced and uninvited. He told her that she is not to come to his residence and that if she does, he will call the police. The mother returned to her car, turned the music up, told Mr. M. to fuck off, turned her middle finger up at him, and drove away. Immediately after, police attended at his residence after being called by the mother and told that S. had no food to eat. Mr. M. showed them that everything was fine.

[229] The fresh evidence also demonstrates that S. continues to be negatively affected by her mother's aggressive behaviour towards the Society workers who assist with exchanges and thus, that the signs of the toil this is taking on her emotional wellbeing persist without abatement.

[230] For example, there is S.'s behaviour in relation to the January 23, 2018, incident. It exemplifies the persistent negative toll the visits are having on her emotional well-being. That behaviour included:

(1) When S. was being brought from Mr. M. to her mother S. was very clingy to her father and would not let go of his hand. S. appeared quieter than usual.

(2) Following the mother's behaviour after she returned S. and which occurred in S.'s presence on January 23, 2018:

(a) S. was very quiet and appeared upset but did not cry or speak with Ms. Mackenzie.

(b) When Mr. M. (who arrived after) asked S. what was wrong, she grabbed him, hugged him and buried her head in his shoulder.

(c) Mr. M. reported to Ms. Gomez that S. had cried in front of her teacher on the Tuesday about not wanting to go see her mother.

[231] S.'s statements to Ms. Gomez during her visits with S. in January, February and March, 2018, set out her statement of mind and perspective on contact with her mother. I find these statements reliable given Ms. Gomez evidence about the circumstances surrounding the making of these statements. Some of the statements S. made were:

(1) On January 26, 2018, S. told Ms. Gomez:

(a) She was happy as she did not want to see her mother. When Ms. Gomez asked why, S. said she does not want the yelling. Ms. Gomez asked why her mother was yelling, and S. said she did not know why her mother was yelling or why she is angry.

(b) Ms. Gomez later asked S. what her feelings would be if she (Ms. Gomez) told her that she was not going to see her mommy for a long time or never again. S. said "Happy, very happy" and that she would not miss her.

(c) Ms. Gomez pointed out that it sounded like S. did have some fun things with her mom like go to McDonald's, Spencer Smith Park and the mall, so why would she feel happy if she did not see her and get to do those things. S. replied because her mother "yells at me 10 times", and indicated that it makes her feel sad and scared.

(2) During their February 2018, private meeting, Ms. Gomez and S. discussed that S. would not be seeing her mother that week but maybe the next week, and S. said okay, maybe she will see her mother next week. When asked if she felt scared to visit with her mother, S. said no but she still does not want to see her because she yells.

(3) During her March 23, 2018, private meeting with S., S. told Ms. Gomez she had not seen her mother because her mother has been very busy, but she is happy about this because she does not want to see her mother and she does not miss her mother.

The Jurisprudence and Legal Framework

[232] Access is governed by section 58 of the Child and Family Services Act and any access order is to be made in the child's best interests. Pursuant to section 59(1.1), if a custody order is made as proposed, this will mean removing a child from an individual who had charge of the child before the intervention, in this case Ms. V. The Act specifically directs that in such circumstances, the Court shall make an order for access unless the Court is satisfied that continued contact will not be in the child's best interests.

[233] Section 37(3) of the Act sets out the criteria for determining best interests viz a viz access. Those criteria are set out above.

[234] Although it is generally not appropriate to import into proceedings under the CFSA, principles that apply in matters proceeding under the CLRA, given that an order under s. 57.1 is by virtue of subsection 57.1(2) deemed to be an order made under the CLRA, and given the common purposes of such orders when the disposition is not Crown Wardship, access cases decided under the CLRA can guidance.

[235] In such cases supervised access and the suspension or termination of access altogether are three ways in which the court can respond to access problems. This is because, as Justice J. Blishen noted in the case of Jennings v. Garrett, at paragraph 137, it is possible through a supervision order to do the following:

(a) protect children from risk of harm;

(b) continue or promote the parent/child relationship;

(c) direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting;

(d) create a bridge between no relationship and a normal parenting relationship; and,

(e) avoid or reduce the conflict between parents and thus, the impact upon children.

[236] An order for no access to a parent is an extreme remedy, and one of last resort. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most exceptional, extreme and unusual circumstances, or as otherwise mandated by the CFSA. Thus, the option of supervised access, whether short, medium, or long term, should always be considered as an alternative to the complete termination of the parent-child relationship.

[237] The factors most commonly considered by the courts in terminating access in cases proceeding under the CLRA are the following:

(1) Long term harassment and harmful behaviour towards the custodial parent causing that parent and the child stress and or fear.

(2) History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and wellbeing.

(3) Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

(4) Ongoing severe denigration of the other parent.

(5) Lack of relationship or attachment between noncustodial parent and child.

(6) Neglect or abuse to a child on the access visits.

(7) Older children's wishes and preferences to terminate access.

[238] Cases will never deal with one of the above-noted factors alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access.

[239] It is also important to remember, supervised access is not ordinarily a viable long-term plan. It is generally intended to be a bridge to unsupervised access and to a normalized parent child relationship. As Justice Pazaratz states in the case of Izyuk v. Bilousov, 2011 ONSC 7476, at paragraphs 53 and 54:

53 Supervision may be an intermediate step in certain situations such as:

a. Where there are substance abuse issues which need to be addressed.

b. Where the child requires protection from physical, sexual or emotional abuse.

c. Where there are clinical issues involving the access parent.

d. Where the child is being introduced or reintroduced to a parent after a significant absence.

54 In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve.

[240] Supervised access is not generally ordered in cases where it is expected that it will continue ad infinitum. Thus, an additional consideration in the analysis includes a determination as to whether the circumstances that have given rise to the need for supervised access are likely to change. The onus is generally on the access seeker to demonstrate this.

[241] Where there is no reasonable prospect of improvement, there has to be a good reason for continuing with supervised access. In the absence of a good reason, or put another way, a significant advantage or benefit to the child, access may be terminated. Thus, even though a child may be protected from potential harm by having access visits supervised, such measures should not be imposed in a final order unless there is a reasonable possibility that they will be temporary in nature.

Discussion and Analysis

[242] Counsel referred me to a number of cases that specifically dealt with access between a child and a mentally ill and/or poorly behaved parent. In most of the cases the issue was whether to order supervised or unsupervised access and/or the choice of supervisor for the visit or the exchange. None of the cases was on all fours with this case. In each, the mentally ill parent, shared one or more similarities, but no one parent presented with all of the issues that Ms. V. presents with. What most of them have in common with each other but not with the case at bar, is that there was a strong attachment, bond, or love and affection between the parent and the child, or, the parent was engaging in some form of treatment and thus, there was a possibility of change in the future.

[243] For example, in Halton Children's Aid Society v. T. (J.), supra, Justice Kurz placed great weight on deciding whether to grant a supervision order or 57.1 order in favour of the father and the choice of access supervisor, on the fact that there was a very strong attachment and bond between the child and the mother (see paragraph 188).

[244] In Children's Aid Society of Toronto v. P. (J.), supra, Justice Sherr placed the children with their grandparents and there was a great deal of conflict between them and the mother. A key factor that appears to have influenced him to order supervised access, despite the fact that the mother showed no signs of changing her life and was likely to try to undermine the placement because she did not accept it, was that the children supported continued access with their mother.

[245] In her decision in the case of Family & Children's Services of Lanark, Leeds and Grenville v. R. (L.), 2016 ONSC 599, Blishen J. was faced with a situation where the parent had many issues that presented risk including mental health issues. The parent, like Ms. V., had done very little to alleviate the risk. After making a 57.1 order she went on to order supervised access. At paragraphs 128 and 129 (in part) of her decision she gives the reasons for this, one of which being that termination of access is an extreme remedy, another being the love and affection between the child and the mother, and the third being that there was some evidence suggesting that the parent could moderate her behaviour.

[246] Two additional non-child welfare decisions were presented to the court. The first, illustrates the significance of a strong parent-child relationship, even in that arena, and is the decision of Justice R. Zisman in the case of McCash v. McCash, 2012 ONCJ 503. There the children loved their father and wished to spend time with him. The children were confused and scared of their father when he became agitated and aggressive with those around him, not unlike S. The father exhibited some of the same characteristics as Ms. V. He too would not abide by the timelines, and created conflict. His behaviour resulted in third parties being unable or unwilling to supervise access. Access had had to be changed from supervised community access to access at a supervised access centre as a result.

[247] Justice Zisman found that while Mr. McCash had not caused purposeful harm to the children, they would be at risk in Mr. McCash's unsupervised care. His inability to follow rules with which he disagrees was another factor considered by Justice Zisman as was the fact that attempts to reason or negotiate with him on these issues had been difficult as he was not able to see outside of his view on the matter. She ordered that he have supervised access and noted that this "type of access will need to continue until Mr. McCash could engage in ongoing treatment where his personality difficulties can be addressed.

[248] The facts in the case of Gregoire v. Philion, 2013 ONSC 7560, are also similar to this case and in that case Justice Timothy Minnema terminated access.

[249] The situation in Gregoire was such that, as in this case, there were very limited possibilities given the father's behaviour. The court explored and ruled out a number of options including the use of a supervised access centre. The mother in that case took the position that the arrangement should not require contact between her and the father as that would invite further harassment, risk, and harm, and, any arrangement must provide for an adequate level of supervision.

[250] In that case, as in the one before me, the parent in question (the father in that case) did not participate. As such, Justice Minnema was faced with a similar situation in terms of a lack of evidence from the parent whose access was at stake. This, Justice Minnema found hampered the court's ability to determine the child's best interests and left it uncomfortable granting any form of access (see paragraph 18).

[251] I have carefully considered all of the evidence, applied the legal principles I have referred to, and reviewed the reasoning and decisions in each of the cases I was referred to. Having done so, it is my conclusion that, in this case, it is in S.'s best interests that her access with her mother be terminated. My ultimate reason for terminating access instead of ordering that access be supervised is that the negative consequences and potential harm to S. of even a supervised access order, far outweigh the benefits to be gained by her.

[252] In coming to this conclusion I also placed great weight on the considerations set out below:

[253] First, S.'s behaviours and statements tell me a lot about her state of mind, views, and feelings about a continued relationship with her mother. They tell me, and I find, that being with her mother upsets her more often than not and that she either does not want to see her mother or is ambivalent about it. Either way, she is nonplused by not doing so, and indeed happy for it.

[254] Second, S.'s behaviours when her mother is upset and belligerent or confrontational with Mr. M. and Society workers in her presence, and when her mother acts bizarrely, tells me, and leads me to find that she may feel embarrassed, is certainly anxious and stressed, and scared at times. These are red flags, signals of real risk of emotional harm. As Dr. Zamora opined, while the risk Ms. V. poses to the children may not be an imminent risk of harm, if it continues it is likely to have long term risks to the children's emotional wellbeing.

[255] Dr. Zamora did not have the evidence I have before me about S.'s physical reactions or statements indicative of her state of mind. His evidence as to the mother's behaviour during access, towards Mr. M., and towards the Society, was as of January 2017. I have 1½ years' worth of additional evidence, showing there has been no abatement and in fact, the conflict and strange behaviour S. is exposed to is getting worse, not better. I find that S. is already negatively affected by, and exhibiting early signs of possible emotional harm, as a result of witnessing her mother's bizarre and aggressive behaviours towards others.

[256] Third, as far as I can discern, S. derives no real benefit from her access with her mother, and other than occasionally doing things that are fun and (which she could do with anyone). Her relationship with her mother is not particularly beneficial or meaningful for her.

[257] Fourth, the evidence makes it clear to me that Ms. V.'s mental health remains untreated and that her negative and aggressive behaviours are getting worse, not better. There is nothing in the evidence to remotely suggest she is going to change her life and get treatment. In fact, the evidence suggests the opposite. An order for supervised access will not serve as a bridge therefore between now and when the mother's health is better. Any order for supervised access would, in all the circumstances amount to a long term and continue ad infinitum. There are no significant benefit to be gained by S. and thus, no good or significant reason why such an order should be made.

[258] Fifth, what Ms. V.'s behaviour towards the society workers who are present to help with exchanges and to support her, and towards Mr. M., tells me and leads me to find, is that Ms. V. cannot work cooperatively with service providers and has no concept of appropriate behavioral boundaries and limits when it comes to others, let alone any respect for them. She is either not aware of or does not care about how inappropriate, abusive, aggressive and threatening her behaviour appears (including to me) and is experienced by others.

[259] As I noted earlier in these reasons, Ms. V. is also ungovernable. She does not obey court orders and becomes highly aggressive and abusive verbally towards those who take a contrary view or a stance she does not like. If I ordered supervised access to occur using one of the local supervision centres / services proposed, such access would be short-lived. I do not think it likely that those staff, are as well trained and experienced in dealing with, behaviours such as those exhibited by Ms. V., as the Society workers, would put up with her behaviour for very long. Furthermore, it is likely access would be suspended in the face of such behaviours, if for no other reason but to protect the other children who may be exercising access with their parents at the centre.

[260] For all these reasons I order that access between S. and her mother shall be terminated.

Access between S. and her Brothers

[261] I was not asked to make an order regarding access between S. and her brothers and have not made one. During his evidence Mr. M. made it clear that he did not see a need for such access as neither of the boys was asking to see S. and S. was not asking to see them.

[262] This appears to have changed. As part of the fresh evidence I learned that during a recent meeting, between Ms. Gomez and S., they discussed that A. wanted to see S. S. smiled very widely upon hearing this. Ms. Gomez provided contact information to Mr. M., who was agreeable to facilitating this.

[263] I am pleased to learn that Mr. M. is agreeable to arranging some form of sibling access, as this is desirable and in S.'s best interests from the court's perspective. I was disturbed by the lack of contact and but for this unchallenged evidence, I would have considered making such an order, on my own initiative. The decision about what that access will look like shall be left to Mr. M. who has steadfastly demonstrated his ability to focus on S.'s needs and desires, and I have no reason to believe that he will not do what is consistent with her wishes and interests.

Two Additional Conditions / Terms Ordered

[264] Two conditions are appropriate to order in this case in order to advance S.'s best interests. The first is that guidelines be put in place to serve so that Ms. V. can know what is required of her in the event that she wants to change the order, and as to how she may apply to this court to change it.

[265] In at least three of the cases I have already discussed the judges suggested guidelines for variation. In McCash, supra, Justice Zisman in ordering the father was to have supervised access, noted that this "type of access will need to continue until Mr. McCash could engage in ongoing treatment where his personality difficulties can be addressed.

[266] In Halton Children's Aid Society v. T.(J.), supra, Justice Kurz considered conditions [see paragraph 204] that would have to be met before the order could be changed. Two of these included: (11) the mother continue to undergo counselling; and (2) that the counsellor receive a copy of this decision as well as, if not already received, the CAAP and Dr. Walton-Allen reports.

[267] In Children's Aid Society of Toronto v. P. (J.), supra, Justice Sherr noted that the court's hope was that the mother would eventually have unsupervised access and suggested that there were many steps that she could take during the six month term of the supervision order including: "Obtain a psychological assessment for the purpose of addressing which supports would best facilitate her functioning. It might be possible to obtain this information from Dr. Perlman without a further assessment".

[268] The guidelines I have put in place below is a hybrid of the approaches I have discussed. It addresses the need for evidence of a change in the mother's mental health which is at the heart of all of this decision on the whole. At the same time, it make the court the gatekeeper to future litigation. In this way, I hope to shield Mr. M. (and by extension S.) from further litigation which the mother may initiate and drag on but then drop at the last minute as she has done here. Litigation is divisive and this case was no exception. It is also expensive and time consuming. In this case Mr. M. retained counsel, no doubt at considerable cost to him. It is rare for costs to be awarded in child protection proceedings and in any event, Ms. V. does not appear to have much in the way of financial means. A cost award is not to be expected in such circumstances. It would be wrong to subject Mr. M. to such consequences in future, without first ensuring that there is some merit to any motion to change access launched by a litigant who may still be suffering from untreated mental illness, affecting her ability to logic, reason, make decisions, and judgment.

[269] The second additional term of my order below is to forbid Ms. V. from attending at various places where Mr. M. and S. may be. This is necessary because of Ms. V.'s unstable mental health. It is also necessary because Ms. V. has threatened Mr. M. in emails, verbally abused him, threatened him with police and court action, called the police on him unjustifiably, and belittled and denigrated him publically. She also previously attended S.'s daycare and removed her from it without Mr. M.'s consent and despite the fact that S. was thriving there. Most recently, she has twice shown up at his home unannounced and uninvited and while she left when asked, on the second occasion, she did not do so without first, making trouble for Mr. M.

[270] It is also imperative and necessary to ensure S.'s wellbeing that the order I make protect S. from witnessing conflict between Ms. V. and Mr. M., and Ms. V. and S.'s service providers. Clear boundary lines must be put in place along with a request for police assistance in enforcing them. In this way, Mr. M. and some of S.'s service providers can protect themselves and S. from her mother's impaired judgment and harmful behaviours. For all these reasons I make the order blow restricting Ms. V.'s ability to attend at places where S. lives, or may otherwise be expected to be.

CONCLUSION

[271] For all these reasons I made the findings in need of protection and orders relating to disposition and access for all three children and as set out in Schedule A.

Released: May 8, 2018

WARNING

ONTARIO COURT OF JUSTICE

BETWEEN:

COUNSEL

INTRODUCTION

THE CHILDREN, PARENTS, AND OTHER IMPORTANT INDIVIDUALS AT THIS TRIAL

THE CHILDREN

A.

N.

S.

Caregiving, Access, and Current Placement

THE TRIAL

POSITIONS

THE ISSUES

ISSUE #1: ARE ANY OF THE CHILDREN IN NEED OF PROTECTION?

The Grounds

Preliminary Legal Issue

Can the Court make a finding that a child is in need of protection, on a basis not originally pleaded?

Can the court make a 57.1 order without first finding that the child is in need of protection?

Other Legal Principles that Apply at the "Finding in Need of Protection" Stage

Additional Background and Findings of Fact

The mother's mental health

Ms. V.'s Chronic Substance Misuse

Analysis of Risk and Harm – the Mother's Parenting

Unstable Housing and Unsafe Home Environment

A.

N.

S.

Conclusion and Finding in Need of Protection

ISSUE #2: WHAT FINAL DISPOSITION AS TO PLACEMENT IS IN EACH CHILD'S BEST INTERESTS?

Legal considerations on Disposition

Discussion and Analysis

Return of the Children to the Mother

A.'s Best Interests as to Placement

N.'s Best Interests as to Placement

Additional Facts

Findings and Analysis

S.

The Evidence and Additional Facts

What Custodial Arrangements are in S.'s Best Interests?

Sole vs. Joint and Primary Residence / Care

Supervision Order vs. s. 57.1 Custody and Access Order

Conclusion

ISSUE #3: WHAT ACCESS IS IN EACH CHILD'S BEST INTERESTS?

A.

N.

S.

Additional Evidence / Facts – As at January 11, 2018

Additional Facts – The Fresh Evidence (January 23, 2018, onwards)

The Jurisprudence and Legal Framework

Discussion and Analysis

Access between S. and her Brothers

Two Additional Conditions / Terms Ordered

CONCLUSION

Cited By (1 case)

Catholic Children’s Aid Society of Toronto v. C.S. and G.W., 2024 ONCJ 393

Judge

Counsel

Parties

Areas of Law