WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: May 25, 2020

Court File No.: City of Stratford C287/17

BETWEEN:

Huron-Perth Children's Aid Society

Applicant,

— AND —

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

Respondents

Before: Justice K.S. Neill

Heard on: March 2, 3, 4, 6 and 16, 2020

Reasons for Judgment released on: May 25, 2020

Counsel:

• Barbara Tuer — counsel for the applicant society
• Leonard Reich — counsel for the respondent mother
• David Lang — counsel for the respondent father

DECISION

Neill J.:

Introduction

[1] This trial dealt with the children, T.H., d.o.b. […], 2014 and Z.H., d.o.b. […], 2015 of the respondent parents. At the time of trial, T.H. was 5 years of age and Z.H. was 4 years of age. The respondent parents also have two younger children, C.H., age 2, and Z.E.H., age 1, who were not the subject to this trial. On consent, on December 30, 2019, the younger children C.H. and Z.E.H. were placed in extended society care with access to the parents and to their older siblings.

Background

[2] Since T.H.'s birth in 2014, the parents have been involved with several child protection agencies, including the Huron-Perth Children's Aid Society; Family and Children Services of the Waterloo Region; and the Child Protective Services of Medicine Hat, Alberta. The concerns relate to transiency, neglect, domestic violence, parental capacity and the parents' low intellectual functioning.

[3] The parents have been together since 2012. They initially lived in Sudbury, then moved to Alberta to be closer to the father's family and where they obtained employment. The child protection agency in Alberta became involved when T.H. and Z.H. were young due to an allegation that the father hit the mother. The father admitted to being physically violent with the mother in the presence of the children.

[4] On May 3, 2017, the mother gave birth to C.H. but she did not know she was pregnant until 6 weeks prior to her delivery and she was not involved in any pre-natal care. The parents did not connect with resources as recommended by the CAS in Calgary and cancelled a number of visits with the public health nurse. There was a concern regarding C.H.'s lack of weight gain.

[5] The father obtained work in Ontario and the family abruptly left Alberta in July 2017 and moved to New Hamburg. The mother acknowledges that this abrupt move was not in the children's best interest as they moved before C.H. could be seen by a doctor for his torticollis and before Z.H. could obtain required dental care. The mother indicated that it was the father's idea to move and she could not stop this from happening. The parents left Alberta without a plan of where they would be living so had to reside in a hotel after relocating to Ontario.

[6] In August 2017, the family moved to Milverton, Ontario and the Huron-Perth Society became involved. The family was referred to Healthy Babies/Healthy Children but refused to participate fully in the program. During their limited involvement, the Public Health Nurse noted concerns regarding C.H.'s weight and muscle tonicity, and the parents' lack of emotional regulation skills. The older boys' behavior was a concern and they were observed to hit their mother. The family was discharged from the HBHC program in November 2017.

[7] In December 2017, the child Z.H. was seen hanging out of the window of the second floor of the parents' home. Although the Society provided a window alarm to the family and asked the parents to move the bed away from the window, they did not implement either request. In private, the mother disclosed to the society workers that the father exhibited controlling behaviours, such as restricting her access to the cellphone; cancelling the children's medical appointments and providing her no access to finances. On December 13, 2017, the mother contacted the society worker requesting shelter information.

[8] During home visits in December 2017, the society worker observed the two older boys to be choking one another and wrestling so that the worker had to intervene. Z.H. was running outdoors and the mother was slow to respond to him.

[9] C.H.'s pediatrician, Dr. Mitchell, noted C.H.'s history of failure to thrive, he had gross motor delays, torticollis and plagiocephaly. The parents had to be convinced by society workers to attend appointments for C.H. The mother admitted diluting C.H.'s formula to preserve her supply.

[10] On December 20, 2017, the parents advised that their heat was no longer working and there were no smoke alarms in the home. Due to the numerous protection concerns, the children were brought to a place of safety on December 21, 2017, and the Society commenced a Protection Application seeking interim society care for a period of 6 months.

[11] Once in care, it was discovered that T.H. had experienced severe dental neglect. On February 14, 2018, T.H., who was only 3 years old at the time, had dental surgery to have 4 teeth pulled, eight molars capped, several fillings and a root canal. T.H. also had significant speech delays partially due to the number of teeth that had to be removed. The child, Z.H., also required dental care, including 4 fillings. Z.H. was initially underweight but after being in care was at a healthy weight. C.H. also had delays and had to be referred to occupational therapy, after which he made significant progress in his development.

[12] In April 2018, the parents were evicted from their home in Milverton. They had no heat and often stayed in their car to warm up. The parents initially went to reside in Listowel with a woman who had been convicted for assaulting a child.

[13] On April 19, 2018, the child, Z.E.H. was born. The mother had very limited prenatal care with Z.E.H. Z.E.H. was brought to a place of safety at birth and a Protection Application was commenced regarding Z.E.H. also seeking a period of 6 months interim society care.

[14] On May 9, 2018, the parents relocated to Brantford to reside with one of the father's relatives. The father testified that he did not ask the mother if she wanted to move: he just did it so that they would have a roof over their head. However, by the end of May 2018, the parents left this residence, resided in their car for a few nights and then moved to a hotel in Brantford for approximately 5 months. From February to July 2018, the parents cancelled 19 access visits with the children.

[15] On July 10, 2018 a final order was made on consent finding that all of the children were of Metis heritage (with no specific band/community identified), and that they were in need of protection pursuant to s. 74(2)(bi) and (bii) of the CYFSA. A final order was made placing the children in interim society care for 6 months with access to the parents to be supervised or unsupervised at the discretion of the Society.

Present Society Proceedings

[16] On November 15, 2018 the Society commenced a Status Review Application seeking an order for extended care for all of the children and did not specify any access order being sought.

[17] On March 20, 2019 an order was made on consent that Dr. Kimberly Harris conduct a parenting capacity assessment pursuant to s. 98 of the CYFSA. The assessment report was initially scheduled to be completed by June 30, 2019. Initially the father was not cooperative with the assessment process and failed to meet with Dr. Harris. On June 25, 2019, an order was made to extend the completion date for the assessment to September 10, 2019, and the father participated in the process.

[18] On September 10, 2019 Dr. Harris released her parenting capacity assessment and recommendations for all four children. Dr. Harris found that both parents have significant cognitive delays and concluded that the parents are not able to meet the needs of the children currently or over the long-term and that the high needs of the children are beyond the parents' capacity. It was also Dr. Harris' opinion that any intervention offered to the parents is likely to be unsuccessful.

[19] After the assessment report was released, on December 16, 2019, the parties engaged in mediation. As a result, the parties came to a resolution regarding the two younger children but not the two older children. On December 30, 2019 a final order was made on consent regarding the children, C.H. and Z.E.H., that they are in continuing need of protection pursuant to s. 74(2)(n) of the CYFSA; and that the children be placed in extended society care, with access to the parents a minimum of three face-to-face visits each year, subject to the children's best interests and responsible wishes. The children also had a right of access to their siblings.

[20] The Statement of Agreed Facts dated December 16, 2019 regarding the children, C.H. and Z.E.H. indicated that the parents acknowledge that they are not in a position in the foreseeable future to provide a home for all four children and agree with the permanency plan for C.H. and Z.E.H. for adoption or customary care. The parents do not agree with a plan for T.H. and Z.H. to be placed in extended society care and request that T.H. and Z.H. be returned to their care.

Position of the Parties

[21] The Society seeks an order for extended society care for T.H. and Z.H., with access to the parents and siblings to mirror the order with respect to C.H. and Z.E.H. All of the children are presently residing in the same foster placement with a culturally matched Metis family, who is willing to put forth a permanent placement for all 4 children together.

[22] In the parents' Answers filed separately they were both seeking a return of all of the children to their joint care subject to a supervision order. However, in opening statements made mid-trial, the parents' position had changed. Both parents are now supporting a return of the older two children to the mother's care alone subject to a supervision order, with the father living separately from the family. The father is willing to have supervised access with the children. This was the first time that the parents presented this plan for the children.

The Legal Framework

[23] This is a Status Review Application brought pursuant to s. 113 of the Child, Youth and Family Services Act ("CYFSA"). Section 114 indicates that on a Status Review Application the court may, in the child's best interests, make, vary or terminate any order under s.101(1), order that the original order be terminated, make any further order under s. 101 or make a custody order under s. 102.

[24] The Supreme Court of Canada in Catholic Children's Aid Society of Toronto v. C.M., indicates that on a Status Review Application, the examination is two-fold:

1. The court must first find if the child continues to be in need of protection and as a consequence requires a court order for his or her protection. The need for continued protection may arise from the existence of absence of the circumstances that triggered the first order for protection or from circumstances which may have arisen since that time.

2. The second is a consideration of the best interests of the child, taking into consideration of the factors in what is now s. 74(3) of the CYFSA.

[25] In Catholic Children's Aid Society of Toronto v. C.M., the Supreme Court of Canada indicated that "the wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child's desires".

[26] Both parents agree that the children are in continuing need of protection. In fact, the plan the parents put forward at trial is to have the children returned to the mother subject to a supervision order, which requires a finding in continuing need of protection. A specific finding in need of protection pursuant to an enumerated ground in s. 74(2) need not be made at the status review application stage. However, I find that the evidence supports findings that the children are in continuing need of protection as being at risk of physical harm pursuant to s. 74(2)(bi) due to neglect, as proposed by the Society and not opposed by the parents. The parents have not completed the services as requested by the Society to resolve the protection concerns, as indicated in further detail below. The father has not cooperated with the Society and has been verbally aggressive with society workers. The parents together and the mother separately have difficulties controlling the children's behavior in access visits requiring the support of two workers during visits. In Dr. Harris' opinion, the parents are unable to meet the significant needs of the children. Therefore, it is clear that the children are at risk of physical harm.

[27] The children have been in the care of the Society since December 21, 2017, being over 2 years at the end of the trial. The children are well beyond the statutory time lines pursuant to s. 122(1). The only options before the court are orders for extended society care or placement with the mother subject to a supervision order.

[28] In determining the appropriate disposition, the court must decide what order is in the child's best interests, considering the factors outlined in s. 74(3) of the Act as follows:

Best Interests of Child

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall:

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including:

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

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

(ix) the effects on the child of delay in the disposition of the case,

(x) 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, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[29] In all proceedings under the CYFSA, the court must always consider the overriding paramount purpose of the Act in s. 1(1) to promote the best interests, protection and well-being of children, including the other purposes in s. 1(2) of giving support to the autonomy and integrity of the family unit, and considering the least disruptive course of action that is available and appropriate to help a child.

[30] As these children have been found to be of Metis heritage, the court must also consider the new federal legislation Bill C-92: Act Respecting First Nations, Inuit and Metis children, youth and families ("Bill C-92"), which came into effect on January 1, 2020. This legislation was enacted to ensure that courts and child protection agencies follow minimum standards with respect to providing services to or making decisions about indigenous children and to supplement the provisions of the Ontario legislation in the Child, Youth & Family Services Act [see s. 4 of Bill C-92]. Specifically, cultural continuity in s. 9(2), the best interest test for indigenous children in s. 10, and priority of placement in s. 16 of Bill C-92 must be considered. These specific provisions provide that:

Principle – Best Interests of Child

s. 9(1) This Act is to be interpreted and administered in accordance with the principle of the best interest of the child.

Principle — Cultural Continuity

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child's best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

Best Interests of Indigenous Child

s. 10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Primary Consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child's connections to his or her culture.

Factors to be Considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including:

(a) the child's cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(c) the nature and strength of the child's relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child's cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) any plans for the child's care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Consistency

(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.

Placement of Indigenous Child

Priority

s. 16(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child's parents;

(b) with another adult member of the child's family;

(c) with an adult who belongs to the same Indigenous group, community or people as the child;

(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or

(e) with any other adult.

Placement with or Near Other Children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child's family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.

Customs and Traditions

(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.

Family Unity

(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with:

(a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or

(b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a).

The Ongoing Protection Concerns and Efforts to Resolve Them

Police Records

[31] The criminal records and police occurrence reports involving both of the parents were filed, which provide a background of the history of volatility/conflict with others and the parents' financial stress.

[32] The mother has no criminal record. However, the father has a criminal record dating back to 1997 when he was 18 years of age and continuing until 2006, with 22 convictions including thefts, possession of a weapon, assault, assault with a weapon, uttering threats, trafficking, possession of a scheduled substance and several convictions for disobeying court orders.

[33] Police occurrence reports outline that there was some police involvement with the father commencing in 2001 (when the father was 23 years old). Of note was that in October 2003, the police were called to a bank as the father would not take "no" for an answer when told the bank would not cash his cheque. The father left the bank and commented that he would "shoot them all" but returned later to apologize. This type of behavior is a pattern for the father.

[34] The police occurrence reports indicated the following involvement of the police with both parents:

• June 19, 2016: The father contacted police as the family was travelling from Alberta to Kitchener and ran out of money. Monetary assistance of $30.00 was provided to the family.

• September 8 – 14, 2016: Police were contacted by the mother's step-sister as the parents had been staying with her for 2 weeks and she wanted them to leave, although they had paid rent to the step-sister the day before. The step-sister was directed to follow the proper channels for eviction. Two days later, the mother contacted to police due to a dispute with her step-sister over damage to property in the apartment and behavior of the children. No action taken. On September 13, 2016 the family was travelling to Kenora and had no money for shelter. They were directed to stay in a park and sleep in their vehicle for the night. The next day, the father requested further assistance from police for gas and food.

• September 3, 2017: The father was found in Goderich on the street panhandling for money.

• October and November 2017: Complaint from a neighbor that the parents were smoking drugs in their apartment as neighbor has breathing problems. Father admitted to smoking marijuana on the back porch. The neighbor called again on November 23, 2017 to complain about the father smoking marijuana outside. Father directed not to smoke inside the house.

• October 24, 2017: The father contacted police about laying charges against the Children's Aid Society as he believes they are stalking and harassing him. Father directed to allow the Society to do their job as they were obligated to investigate incidents.

• December 21, 2017: Police assistance requested to execute the warrant for apprehension of the children. The children were removed without incident.

• February 16, 2018: Mother reported that her sister was making false allegations to the Society. Not a police matter.

• March 17, 2018: The parents were standing outside of Walmart with a sign asking for money. They moved along without incident.

• April 4, 2018: Father reported a dispute with the landlord due to his heat not working, which dispute was being dealt with by the Landlord and Tenant Tribunal.

• March 19, 2019: The mother reported a dispute between the father and another individual over the issue of money being owed. There was a verbal argument and the individual asked the father to leave his residence. The parties were cautioned to stay away from each other.

• March 20, 2019: The parents were spoken to regarding soliciting in a parking lot. They moved along without incident.

Domestic Violence

[35] The parents' relationship has always involved conflict and controlling behavior by the father.

[36] As outlined in the Statement of Agreed Facts dated July 10, 2018 the father admitted to inflicting physical violence against the mother when they resided in Alberta. The mother admitted to society workers just before the children were removed from their care in December, 2017 that the father exhibited controlling behaviours and she was considering moving to a shelter. After the children were placed in care, the mother admitted to the Family Service Worker that she had continuing difficulties in her relationship with the father, and the father acknowledged to the worker that he has been verbally abusive to the mother. The mother testified the father would get into "moods", usually after he spoke with his parents: his behavior would escalate, he would raise his voice, and she could not even be in the same room with him. During the assessment in 2019, the father also acknowledged to Dr. Harris that at times he was verbally abusive to the mother: that he has called her names and has woken her up at 4:00 a.m. to join him for a car ride and was uncertain if the mother was afraid to say "no" to him. The father's friend Jason testified at trial that he has witnessed the parents argue.

[37] The father's controlling behavior towards the mother has had a negative impact on the children. The mother testified that it was the father who told her to dilute C.H.'s formula to save money and she did it even though she knew it was not right. The mother acknowledged that the father has interfered with her ability to attend services in order for the children to be returned to her care; that he discouraged her from attending parenting appointments, and that her relationship with the father has caused harm to her and the children. Recently, the mother did not approve of two persons who the parents barely knew residing in their home, which made the mother feel unsafe, but stated that it was the father's idea and she could not stop him.

[38] Despite all of the above, the mother testified that overall, she believed her relationship with the father was "good". The father testified that he did not believe the he was controlling of the mother as she is "free to do whatever she wants".

[39] The mother's only serious relationship other than with the father was with a man named Doug that she resided with for approximately 3 years. There are many parallels between the Doug and the father: both had difficult upbringings; both were in the care of the Society and abused in care; and both were emotionally abusive to the mother. Doug died in their home with the mother present in 2010. The mother never received any counselling to deal with this traumatic event in her life, and now is involved in a relationship with a man with a very similar background to Doug.

Efforts to Resolve the Protection Concerns

[40] Shortly after the final order was made in July 2018, the society worker met with the parents to discuss the society's expectations and services that were required to address the protection concerns as outlined in the Plan of Care dated July 10, 2018. These included:

• The parents to maintain appropriate housing.
• The parents to work cooperatively with the Society and attend access visits consistently.
• Both parents to engage in counselling to deal with adult conflict, trauma and healthy relationships.
• The parents to participate in parenting programs.
• The parents to demonstrate for a significant period of time that they are able to meet their children's needs with parenting instruction provided by the Protection Support Worker.

[41] These were similar expectations outlined in the recent Plan of Care dated December 16, 2019 although this Plan of Care provided specifics that the parents were to engage in the Circle of Security Program; that the parents were to attend at the Early Years Centre with the children and work with Healthy Babies/Healthy Children; that the parents continue to work with the Protection Support Worker; and that the mother was to receive counselling to address unhealthy relationships at Optimism Place or Emily Murphy Centre.

The Parents' Housing

[42] Transiency has been a concern for the parents since prior to the children's removal from their care. They moved from Alberta to Ontario without any plan for housing and had to reside in a motel. After the children's removal, the parents were evicted from their home in Milverton, moved to Brantford, at times resided in their car, and again moved to a hotel for a period of 5 months. This move affected their ability to participate in services offered by the Society and attend for access visits with their children who were in foster care in Huron-Perth. In November 2018, the society worker wrote a letter to advocate for the parents to obtain housing in the Huron-Perth Region, which the parents were able to obtain in January 2019. However, the mother's plan now is unclear: to either continue to reside in her present residence with the children if the father moved out; or to move to Brantford to an unknown residence.

Engagement with Services

Healthy Babies/Healthy Children ("HBHC")

[43] A letter from Teresa Tratnyek, a Public Health Nurse, dated May 17, 2019 confirmed that the parents participated in the Healthy Babies/Healthy Children program at three different periods.

(a) August 22 to November 20, 2017:

The initial involvement from Public Health was on the basis of a self-referral from the mother to obtain assistance with toilet training. However, after an assessment, Public Health determined that there was risk with this family in a number of areas (financial and housing concerns, disability, Society involvement, concerns with growth and development of C.H., and no primary health care provider). There were difficulties arranging home visits and visits were often rescheduled by the mother. There were concerns noted about C.H.'s poor weight gain and weak muscle tone. A referral to a pediatrician was made and the parents were taught how to mix formula correctly as it was being diluted and instruction for tummy time for C.H. to allow for muscle development. Home visits were chaotic and the children were not emotionally regulated (ie/ the children would throw items and hit their mother). After three visits, the family declined the HBHC program.

(b) January 4 to January 9, 2018:

This involvement was initiated by a self-referral but there were no home visits as the children were apprehended.

(c) February 12 to May 22, 2018:

The focus was to provide pre-natal care for the parents' fourth child. Scheduling visits continued to be a concern. The child Z.E.H. was apprehended at birth, and the public health nurse was not successful in scheduling further home visits so the family was discharged.

Counselling

[44] The parents attended for a few sessions of marriage counselling in 2018. A letter from Kimberly Whyte of By Peaceful Waters confirmed that the counsellor met with the parents on three occasions from March to May 2018. Thereafter, the parents moved out of the area and ceased attending counselling. Ms. Whyte indicated that there had not been enough sessions to speak towards patterns or changes. There is no evidence that the parents have done joint counselling since that time.

[45] The mother was referred to individual counselling through Ontario Works in May 2019. The mother attended for an intake appointment with Family Services Huron Perth, however, she failed to attend for any further counselling sessions.

[46] In October 2018, the father advised the society worker that he "did not need any counselling, he is perfectly normal and doesn't need any help". In November 2018, the father stated that he would attend counselling but did not require it. The father indicates that he did some counselling at a walk-in clinic in Brantford in or about 2018 where he was encouraged to do ongoing counselling but never did. At trial, the father was clear that he did not believe that counselling would assist him. However, the day before the father testified at trial in March 2020, he attended at the hospital as he believed he was having a "nervous breakdown". The father was prescribed lorazepam to assist him to sleep at night. It was also recommended to the father to attend for group therapy to deal with his past issues.

Parenting Programs

[47] The parents have been involved with the protection support program through the Society since November 2017. Their first protection support worker ("PSW") was Brooke Taylor, who worked with the family from November 2017 to January 2019. Ms. Taylor did not provide formal parenting instruction to the parents after October 2018 as the parents indicated that they did not wish to receive parenting instruction from the Society and were seeking parenting instruction from a different program.

[48] Ms. Taylor testified at trial. The issues that Ms. Taylor was to address with the parents, as identified by the Family Service Worker, were budgeting, interactions with the children including ideas for play and responding to their emotional needs, discipline and behavior management techniques, parenting, and stress management.

[49] Regarding these identified issues, Ms. Taylor noted the following:

• Although both parents have been employed, the father would spend a lot of money on CDs and DVDs. The parents had debts and were struggling to pay bills on time. The parents failed to put together a budget as requested.

• Due to C.H.'s issues with muscle tone, the parents had to be cautioned not to let C.H. sit in his seat for lengthy periods and needed tummy time to develop his strength.

• The parents were encouraged to bring healthy snacks to access visits, instead of pop and junk food.

• When visits were initially in the home, Ms. Taylor had concerns about the children's safety, as the children's behavior was chaotic. One time, T.H. grabbed the mother's face and drew blood. The parents had difficulty following through with consequences for the children's negative behaviours. The parents would threaten to call the foster mother to have the children sent home if they were misbehaving. The father acknowledged that he struggled with disciplining and setting limits for the children.

[50] In or about March 2018, the parents commenced the Circle of Security Program with Ms. Taylor, which is comprised of 8 sessions. This is a relationship based early intervention program designed to enhance attachment security between parents and children and increases parent skills in observing parent/child interactions. The parents completed the first session together, and only the mother attended the second session. Thereafter, neither parent attended any further sessions.

[51] During Ms. Taylor's involvement of approximately 14 months, she indicated that the parents were not able to achieve the service goals.

[52] While the mother was residing in Brantford, in August 2018, she attended four 2-hour sessions of the Triple P Pathways Parenting Program and completed the program, which was confirmed in a letter dated May 16, 2019 from the Assistant Resource Coordinator of the program. The mother declined to sign a consent for the worker to speak directly with the facilitator of the Triple P Parenting program. The family service worker, Ms. Middegaal, indicated that this was not the type of parenting program that she had suggested to the parents.

[53] Ms. Justina Wallace was the assigned PSW from February 2019 to the present and continued to work on the goals set with Ms. Taylor. She also testified at trial. The mother met with Ms. Wallace from April 2019 to June 2019, but the father rarely attended meetings. In April 2019, the mother explained to Ms. Wallace that she did not want the father to know that she was participating in parenting education.

[54] Neither parent attended for any parenting education sessions from May 14, 2019 to January 6, 2020, despite Ms. Wallace scheduling numerous meetings.

[55] Both parents started to attend again for parenting support as of January 6, 2020. They attended together for 3 sessions in January 2020. The father failed to attend the session in February 2020. During the February 2020 session, the mother told Ms. Wallace that when the father attends meetings he is challenging to work with and they do not want to parent the same way.

[56] Ms. Wallace indicated that the parents had not attended enough meetings to determine if the goals had been met or if there had been any progress made. Ms. Wallace clarified that the goals for the parents were set to support increases in access at this point, and not for the purpose of determining if the children could be returned home.

[57] At trial, the father acknowledged that the mother does the budgeting in the family, and he tends to spend "more of his share" of the family income and continued to overspend despite the mother's suggestions. He acknowledged that he does not have the tools to learn how to save money. The mother pays for family bills and the father spends his money on cigarettes, marijuana and gas. The mother estimated that the father spent between $200 to $300 per month on marijuana. Given the parents' incomes and bills, there was approximately $2,000 left over each month and the mother could not account for where that money was spent. However, the parents continued to have financial difficulties, even without the children in their care, and at times did not have money for gas to even attend access visits.

[58] At times the mother demonstrated that she was able to put into practice concepts that she had learned through parenting instruction. For example, the mother used the discipline technique of a "time-in" that she learned in the Circle of Security program. The mother brought a variety of snacks to access and planned activities. The mother tried to implement the "rules of the access room" to assist to control the children's behaviours but did not write down the rules for the children as suggested by Ms. Wallace. In general, the parents did not follow through with many suggestions made by Ms. Wallace, such as creating a "rule chart".

[59] Other parenting programs were suggested by the Society for the parents to attend as follows:

• In October 2018, the worker suggested that the mother attend the "Behaviour at its Best" program beginning on October 9, 2018. The mother declined.

• In January 2019, the worker referred the parents to two parenting programs, the "Smart Sense" program and "Raising Your Spirited Child" program facilitated by the Society that ran in January and February 2019 and referred the father to the Caring Dad's program. The parents did not attend the Raising Your Spirited Child program and only attended 2 of the 4 sessions of the Smart Sense program. The father missed two intake appointments for the Caring Dad's program and was terminated from the group.

• In February 2019, the Society referred the parents to the "Scream Free Parenting" and in March 2019 the parents were again referred to the Circle of Security program. By the beginning of April 2019, the parents had missed two of the scheduled sessions for Circle of Security and thus were terminated from this program.

• In January 2020, the mother attended all 4 sessions of the parenting program "Behaviour at its Best".

[60] The parents have again been referred to the Circle of Security Program for April 2020. The mother commenced the Raising your Spirited Child at the beginning of March 2020 and registered for 3 parenting programs through the Emily Murphy Centre also starting in March 2020 that are 10 weeks long.

[61] Dr. Harris in her assessment indicated that while the mother enjoys learning and expresses an interest in taking parenting courses, this type of intervention is not sufficient to mitigate the risk because the application and generalization of learned materials is a problem for her.

Working Cooperatively with the Society

[62] The father had a very difficult history with the Society as a child, which has contributed to his lack of trust of society workers. He was placed in care at a very young age and adopted at the age of 6 or 7. He was abused by his adoptive parents and placed back in care at the age of 12. He resided in group homes and was bullied and abused. At the age of 16 he ran away and began living in the streets.

[63] The father advised Dr. Harris that he did not believe that the Society should be involved in his life. The father blames the worker for the children's apprehension in December 2017 claiming their lack of heat was due to the worker adjusting their thermostat in the home and messing up the heating system. The father clearly does not like the Society stating that he "can't stand these people here", and that the Society is his "abuser, I hate them, they ruin lives". He has referred to the Society as "evil". He has made comments to the worker such as: "I despise you and what you are doing, the system and everything that you have done", and has told the worker to "fuck off I am sick of your lies".

[64] His mistrust of the Society has led to his lack of cooperation with the workers.

[65] When the protection support worker would attend at the home to provide parenting instruction, the father would often not participate and would sit in the car. The father believed that workers were judging him, and he did not want to hear their suggestions. The father believes that he was able to parent without someone telling him what to do. The father failed to attend numerous meetings with the society workers, partly due to his lack of trust in the Society and partly due to the fact that he was working.

[66] As recently as weeks before the trial commenced on February 10, 2020 the parents refused to meet with the worker unless the Society was willing to return the children to their care. The father yelled at the worker and ended the conversation by telling her to "fuck off". Since then, the only contact the parents have had with the worker is to arrange access visits. The father acknowledged at trial that it would have been important at this time to demonstrate to the court that his children were important, and he did not do that.

[67] In contrast, when not being controlled by the father, the mother is generally cooperative with the Society. She is open to suggestions from the PSW during parenting sessions and from workers during access visits. However, she acknowledged that the father was holding her back and told her that she was a "puppet for the Society".

Access

[68] Access visits have always been supervised by two society workers due to the children's challenging behaviours and the frequency of visits has been reduced over time.

[69] After the children were initially removed from the care of the parents, access occurred with all three children twice weekly and just with C.H. on Saturdays from 1:00 p.m. to 4:00 p.m. After Z.E.H. was born, visits occurred at the Society offices with all four children on Mondays from 2:30 p.m. to 4:30 p.m. and on alternate Tuesdays. One Tuesday visit would involve the four children from 3:30 p.m. to 4:30 p.m., and the alternating Tuesday visit would involve the mother with the 2 younger children from 4:30 p.m. to 6:30 p.m.

[70] Due to an incident during access in November 2018 described below, visits were changed again to Tuesdays for one hour for both parents, and Saturdays for 3 hours and bi-weekly on Mondays for only the mother.

[71] Since May 2019 supervised visits with all 4 children are now scheduled on Mondays for 2 hours at the Society. The children had moved to their present foster home which is further away from Stratford and the Society wanted to reduce the children's travel time for access. In September 2019, access was further reduced to 1.5 hours each week at the request of the parents due to the parents' work hours.

[72] A chart of the parents' attendance for access from July 21, 2018 to January 6, 2020 was filed. There were a total of 118 visits scheduled. Only the mother attended visits on 53 occasions, noting that as of on or about December 4, 2018 only the mother was permitted to attend access on certain days. Both parents attended together for 46 visits. Neither parent attended for 17 visits. A few visits did not occur due to weather or if the children were in respite.

[73] The father missed many access visits due to work and at times the mother explained that he was "not in a good space" and felt he should not see anyone. By October 2018, the Society asked the parents to confirm their visit by noon on the day of their scheduled visit or else their visit would be cancelled. This was done to avoid the children being brought to visits and sent home when the parents did not attend.

[74] The parents did have positive interactions with the children during visits, and specifically the father would get down on the floor and play with them. All of the workers who supervised access visits indicated that the children were affectionate with their parents, and generally the visits start and end on a positive note. The children are very excited to see their parents at the beginning of visits and there are lots of hugs and affection.

[75] All supervisors also indicate that access visits are loud and chaotic. The older two boys will run out of the access room, stand on chairs, throw toys or food, and fight with each other. Z.H. has hit his parents during access.

[76] The parents struggle to manage the children's behaviours. At times, the parents do not or are slow to respond to these behaviours so access supervisors have to intervene. For example, on one occasion, C.H. has almost hit his head on the Foosball table, and the worker had to intervene. On several occasions, T.H. has choked Z.H. without the parents intervening.

[77] There were many incidents where the parents would threaten consequences for the children's behavior but would not follow through. The parents have even threatened to have the foster parents give them time-outs, or that "Santa is not bringing you anything because you are being a bad boy". The children have learned that their parents do not follow through so no longer pay attention to their threats.

[78] The parents attempted to implement a sticker or star system but never produced a chart or anything for the children to concretely see, so this system to encourage good behavior was ineffective.

[79] The mother believes that the visits are chaotic because the children are excited to see them, but also acknowledges that the father undermines her when she tries to set limits or follow through with disciplining the children.

[80] The Society arranged for a community visit with the children and parents at a splash pad on July 29, 2019 to also be observed by Dr. Harris. Despite being advised of where the visit would take place, the parents did not bring the appropriate attire for the children for the visit (ie/ towels, swim suits, sunscreen, hats).

[81] The father was clear that he did not want workers to intervene during access visits unless necessary, such as a safety concern, and only wanted workers to discuss issues at the end of the visit. However, the father was not receptive to feedback from the workers even at the end of the visit. The mother was worried about intervention when the father was there knowing that he does not want the help.

[82] The mother, however, welcomed the support of workers during access visits when she attended alone as she felt she could only manage two children at once. The mother struggled with all four children when on her own, and at times would put Z.E.H. in an exersaucer and C.H. in a highchair for extended periods while she managed the two older children.

Incident of November 6, 2018

[83] At the beginning of the visit, the father met with the worker separately and verbally berated her, yelling that she was a "liar". He shouted statements that, "I will end you McKala", and that as she robbed him of his life with his children, in return he would do the same to her. The visit was cancelled due to the father's agitated state, which angered him even more. The father would not leave despite being asked several times to leave and threatened to "blow up" the building. The father yelled at Ms. Taylor, the PSW also present for the visit that she was a "liar too" and that she "lied in court papers". Ms. Middegaal activated the panic button and the police attended shortly thereafter.

[84] The police occurrence report was filed confirming that the father was not violent and spoke calmly to the police, was cooperative and not hostile. Police convinced the parents to leave the property and they left without further incident. Several days later the father attended at the agency to apologize for his actions.

[85] The father explained to Dr. Harris that his comments on November 6, 2018 were made in frustration and taken out of context. At trial, the father denied threatening to blow up the agency, but did acknowledge yelling close to Ms. Middegaal's face, threatening to have her job and to sue her for lying.

[86] As a result of the incident on November 6, 2018, a decision was made that the father's access had to take place during office hours for safety reasons. Therefore, access was changed to Tuesdays for one hour for both parents, and Saturdays for 3 hours and bi-weekly on Mondays for only the mother.

[87] After the final order for extended care was made for C.H. and Z.E.H., the younger two children now attend the Monday access visits once per month, which the Society indicates they will maintain until C.H. and Z.E.H. are placed for adoption, if that does take place. It has been noted that with only two children attending visits, the visits are not as loud but are still disorganized.

Parenting Capacity Assessment

[88] In early 2019, the Society requested that a parenting capacity assessment be conducted on the parents due to concerns regarding their intellectual functioning and as there were no recent assessments on the parents to determine if they had the skills required to parent four children and what supports would be necessary.

[89] Dr. Harris' parenting capacity assessment report dated September 10, 2019 was filed on consent. At the time the s. 98 order for the assessment was made, all parties and the court agreed that the assessment was necessary for the court to make a determination regarding what disposition was in the children's best interests. In accordance with s. 98(4), the court agreed that Dr. Harris was qualified to perform the assessment.

[90] The order of March 20, 2019 indicated that the s.98 assessment was necessary "to determine if the parents have the cognitive abilities to safely parent their four children" and asked a series of 6 specific questions for Dr. Harris to address. Dr. Harris' report is deemed to be evidence and part of the court record pursuant to s.98(12).

[91] On August 22, 2019, the Ministry of Children, Community and Social Services issued a Policy Directive regarding parenting capacity assessments in child protection matters, including the following requirements for societies:

• After a society has determined that a parenting capacity assessment is necessary and has selected or agreed to an individual that, in the society's opinion, is qualified to evaluate the particular questions to be addressed by the assessment, the society shall have a process for verifying the individual's representation of their credentials.

• At minimum, for individuals who have identified themselves as being a member of a regulatory body for a particular profession (e.g. College of Psychologists of Ontario, College of Physicians and Surgeons of Ontario, Ontario College of Society Workers and Social Service Workers), the society shall verify with that individual's regulatory body the individual's representation of their professional credentials, and that the individual remains in good standing with their professional regulatory body. Where individuals have identified themselves as being a member of multiple professional regulatory bodies, the society shall verify their professional credentials with each of the relevant regulatory bodies.

• Where, in the course of verifying an individual's professional credentials, the society identifies a concern with an individual's representation of their professional credentials and the society still has a concern after discussing this with the individual, the society shall file a complaint with the individual's professional regulatory body or otherwise contact that body to follow up on the concern.

• The society shall record the steps taken to verify an individual's credentials and shall record any reports or complaints it has made to a professional regulatory body about an individual's representation of their professional credentials, including the outcome of the report or complaint if known.

• Societies shall identify all parenting capacity assessments that are in progress and all parenting capacity assessments that have been completed in cases that are still before the court, and take the following steps with respect to the assessor(s):

  (a) For individuals who have identified themselves as being a member of a regulatory body for a particular profession or professions, verify their representation of their professional credentials in accordance with the requirement set out in this directive, and

  (b) Where concerns are identified with respect to an individual's representation of their professional credentials, follow the requirements set out in this directive.

• Reporting: By September 30, 2019, each society shall confirm in writing to the ministry that it has implemented the requirements in this directive.

[92] At the trial management conference held on October 15, 2019 it was confirmed that the Society had complied with the Policy Directive dated August 22, 2019 and verified Dr. Harris's professional credentials.

[93] Dr. Harris testified at trial. Her 15-page curriculum vitae was filed as an exhibit. She is a Doctor of Philosophy and the Assistant Executive Director and Director of Assessment Services at the London Family Court Clinic. She has 23 publications in the areas in her field and been involved in 26 presentations and workshops on a wide-range of topics within her area of practice. Dr. Harris has testified in court 10 times in the past and on each occasion has been qualified as an expert witness in family proceedings in the areas of parenting capacity, psychometric assessment, domestic violence, fetal alcohol spectrum disorder, child witness testimony, child development, and mental health.

[94] In this case, there were no objections to Dr. Harris being qualified in the areas of parent capacity assessment, psychometric testing and domestic violence. However, as a gatekeeper for the trial process, I conducted a voir dire on Dr. Harris' qualifications to give opinion evidence regarding her assessment conducted in this case.

[95] Written confirmation was filed indicating that Dr. Harris has a certificate of registration with the College of Psychologists of Ontario listing her authorized areas of practice to be clinical psychology and forensic/correctional psychology. There were only two other persons involved in the assessment. Ms. MacMillian, a case manager, who conducted the intake process with the parents; arranged for interviews and was present with Dr. Harris during the feedback session. Ms. Kayla Janes, a psychometrist conducted the cognitive testing of the parents. Ms. Janes' curriculum vitae indicated that she had been employed with the London Family Court Clinic since July 2012 and as a psychometrist since April 2018. Written confirmation was filed that Ms. Janes has been registered with the College of Psychotherapists since May 2015. Ms. Janes administered the testing under Dr. Harris' supervision, and Dr. Harris interpreted the results based on psychological theory. Ms. Janes had no part in writing the assessment report.

[96] Justice Jones in Children's Aid Society, Region of Halton v. J.B. outlined the current approach to the admissibility of expert, quoting from the Ontario Court of Appeal in R. v. Abbey 2017 ONCA 640:

Expert evidence is admissible when:

1. It meets the threshold requirements of admissibility, which are:

   (a) The evidence must be logically relevant;

   (b) The evidence must be necessary to assist the trier of fact;

   (c) The evidence must not be subject to any other exclusionary rule;

   (d) The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is:

   (i) Impartial,

   (ii) Independent, and

   (iii) Unbiased.

   (e) For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose;

and

2. The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

   (a) Legal relevance,

   (b) Necessity,

   (c) Reliability, and

   (d) Absence of bias

[97] In Children's Aid Society, Region of Halton v. J.B., Justice Jones held that a voir dire on an expert's qualifications to give opinion evidence on a section 98 assessment should be held routinely before the trial judge, especially when the opinions expressed in the report are not accepted by all parties and the answers in the assessment report to the questions posed in the assessment report, if accepted, would provide ready-made answers to the very questions before the court.

[98] On the basis of the evidence on the voir dire, and as Dr. Harris confirmed her duty to the court to be impartial, independent and unbiased, I found that Dr. Harris' report and her opinion evidence met the test for admissible expert evidence and deemed her to be qualified as an expert in the areas as proposed by the Society and not opposed by the respondents.

[99] The children have been found to be of Metis heritage. Of importance is the fact that Dr. Harris has a registration as a mental health service provider with the First Nations and Inuit Health Branch, Health Canada. Dr. Harris explained that she is on a roster with Health Canada of practitioners with their Masters or PhD levels of education that Health Canada supports for indigenous people to receive mental health counselling, and she has had some specific First Nations, Metis, Inuit Cultural training, particularly for indigenous youth.

Dr. Harris' Evidence

[100] Dr. Harris' methodology in conducting the parent capacity assessment was not challenged. She obtained information from multiple sources including service providers involved with the parents; she conducted the assessment over time; she met with the parents both together and individually for 10 hours in total; and saw the children and the parents interacting with each other on three occasions for a total of 6 hours, including at the offices of the Society and in the community, as well as conducted psychological testing on the parents.

[101] The father initially did not participate in the assessment progress. The mother explained that the father would only participate in the assessment if he was in a "good mood". The father eventually demonstrated full cooperation in the process. However, he did not attend the final feedback assessment appointment and the mother attended alone.

[102] Dr. Harris saw many positive aspects in the parents including:

• The father has made significant gains in his life given that his early years were troubled with significant substance use and violence. He has settled to a large extent.

• The father loves his children and is adamant he would never hurt them.

• The father has a robust work ethic and a strong drive to be a "provider" for his family.

• The mother is kind, resilient, compassionate, very reliable and even-tempered. She is resourceful and has been the parent to secure housing and a vehicle. She enjoys learning and is taking classes to upgrade her education.

• The mother was able to acknowledge that the children have complex needs and expresses a desire to help them.

• The mother is cooperative with the Society and various professionals.

[103] Dr. Harris identified several risk factors in this case as follows:

1. The Parents' Cognitive Functioning and Concerns Regarding Their Ability to Problem Solve, Plan and Organize

[104] Psychological testing placed both parents' cognitive functioning in the very low range of the 5th percentile for the mother and 2nd percentile for the father. Both parents have difficulties with time management, attendance and prioritizing competing demands in life. Dr. Harris used the example of the father watering down C.H.'s formula as a way to save money as his poor problem solving and inability to foresee the consequences of his actions.

[105] Dr. Harris was clear that cognitive delays do not in and of themselves suggest that a parent will not be able to meet the needs of their children. However, the parents are isolated with a limited support network. Given the extent of the parents' limitations, support in the form of check-ins would not be sufficient to mitigate the risks. In Dr. Harris' opinion, live-in support would be required for the parents to adequately parent the children, which support the parents did not have.

[106] The parents' limited cognitive functioning is unlikely to change over time.

2. Their Parenting Capabilities, Particularly as They Relate to the Protection Concerns of Neglect, Transiency, Lack of Supervision, and Inability to Foresee Risk of Harm to the Children

[107] In Dr. Harris' opinion, both parents have cognitive limitations and mental health/personality patterns that can affect parenting.

[108] Dr. Harris indicated that the "crux of this case" as it relates to the father is his poor insight, inability to accept responsibility, and his manner of relating to society in general. The father rejects concerns related to his children's development and his own challenges. His position is that he, the mother, and the children "are fine" and the family does not need support. However, the children have shown significant health and behavioural concerns. Dr. Harris indicated that as the father does not acknowledge that problems exist, it is not possible for him to address the child protection concerns. The father's lack of acknowledgement of the concerns combined with his mistrust of authority and service providers means that he rejects offers to help leaving his family to be further isolated.

[109] Although the mother has many positive qualities, she placates the father and her passivity undermines her ability to avail herself of needed resources for herself and her children. When Dr. Harris met with the mother alone, she expressed remorse about her children not receiving the care they needed, and that she always wanted and welcomed help but felt she could not avail herself of the resources because of the father's resistance.

[110] Instrumental care of the children such as dental neglect and supervision issues were a concern when the children were with the parents. The father described the older boys' dental issues as a "lack of responsibility" on his part. The father acknowledged that he should have listened to the mother to have the children's dental issues addressed in Calgary.

[111] Dr. Harris reviewed the notes from the children's pediatrician, Dr. Mitchell, and from the general pediatric clinic with Consult Kids Stratford. It was noted that when the mother attended at a medical clinic with the children in October 2017, the two oldest children were described as dirty and unkempt with food on their faces, they had an unhygienic odor and the mother had no control over their behavior. None of the children had birth certificates or health cards. The mother did not know the proper ratios for making formula and was not giving C.H. any nighttime feedings. Dr. Mitchell indicated that at 5 months old, C.H. presented with a history of failure to thrive, likely due to his poor weight gain due to insufficient caloric intake. C.H. had been referred to the Head Shape Clinic but the family moved before an intake could be scheduled. There were also multiple no-shows for immunization appointments for the children.

[112] The parents acknowledged that they did not always attend requested appointments for the children and cancelled at the last minute. With respect to C.H., the parents stated that there were far too many physiotherapy appointments and the therapist set unrealistic timelines to get things done. They expressed concern that in general there were too many appointments which placed demands on the family. The father also explained that he was a private person and did not want people in his home.

[113] The parents were unable to apply their learned parenting knowledge. Access visits were chaotic and the parents could not provide appropriate and consistent supervision.

[114] As a result of the father's manner of relating to the Society and the mother's lack of assertiveness, in Dr. Harris' opinion if the children are returned to their care the risk of child neglect would be on ongoing concern.

3. The Parents' History of Trauma and How It Impacts Their Ability to Care for the Children

[115] The father has a history of trauma extending back to his childhood which has not been dealt with. The primary outcome of this that bears directly on his parenting ability is his lack of trust in others and his ability to avail himself of services offered to him and the children. He has remained in his car to avoid meeting with workers and not attended access visits because of the trauma of entering into the Society offices. Due to this trauma history he also has an inability to self-regulate, which results in verbally inappropriate and at times threatening behavior towards society workers and could affect his relationship with other service providers such as the children's teachers.

[116] The mother also has a history of trauma but has engaged in counselling and has the ability to self-regulate and engage with service providers more than the father did.

[117] Letters from Dr. Roberts, the children's doctor while they were residing in Alberta, were provided to Dr. Harris in cross-examination, confirming that the parents had ensured that the three older children attended their medical appointments. Dr. Harris acknowledged that there were many examples of the parents involving third-party services providers from time to time, but that it was the sustainability of their engagement with services that is the challenge. Even though the mother was more amenable to accepting services than the father, Dr. Harris did not believe this means she would follow through, as she had conversations with the mother about being overwhelmed with too many appointments for the children.

[118] Dr. Harris also indicated that it was not just the father who rejected services. At times, neither parent was home when the public health nurse attended for appointments. As the parents were a couple, it is difficult to determine exactly who was not accepting assistance from service providers but in the end the family did not accept the service.

4. The High Needs of the Children

[119] Dr. Harris indicated that even over time and with services and medication, T.H. and Z.H. will continue to present parenting challenges and there will be a lot of parenting required to address their needs.

[120] Dr. Harris' assessment dated September 2019 was based on all 4 children being returned to the care of the parents, when at trial the parents were only seeking a return of the 2 older children to the mother alone. In her testimony, Dr. Harris confirmed that her opinion, while it may be potentially easier to supervise 2 children compared to 4 children in an access visit, the risks associated with providing the instrumental care to 2 as opposed to 4 children may not be lessened. Dr. Harris noted that even before Z.E.H.'s birth, the parents struggled with having three children in their care.

[121] In cross-examination, Dr. Harris was asked if the risk would be reduced if the children were only returned to the care of the mother alone. Dr. Harris was clear that parenting the children separately was not addressed in her assessment as that was not the plan put forward by the parents when the assessment was being completed in the summer of 2019. Dr. Harris noted that the parents' relationship had been strong for many years and they are quite supportive of each other. Dr. Harris would question the nature of their separation and there was a difference between a physical and emotional separation. Dr. Harris' concern was that even if the parents were physically separated, the father could still exert influence over the mother.

[122] Dr. Harris acknowledged that if the mother was parenting only the two older children on her own, with a lot of support, that would reduce some risk factors. However, the typical supervision order where the Society was checking in from time to time and ordering that the mother engage with collaterals would, in her opinion, not be enough. Dr. Harris indicated that the risks of the day-to-day parenting challenges of T.H. and Z.H. would not be mitigated by the Society monitoring their access to developmental services.

[123] Dr. Harris concluded that the parents are not able to meet the needs of the children currently and over the long-term and that the high needs of the children are beyond the capacity of the parents. The parents have been resistant to clinical intervention. Even daily check-ins would not be sufficient to mitigate the risks given the high needs of the children. In Dr. Harris' opinion, any intervention offered to the parents is unlikely to be successful.

Best Interest Test

[124] The best interest factors in s. 74(3) of the CYFSA must be considered when determining what the appropriate disposition is for these children. The children's views and wishes and recognizing the importance of and preserving their indigenous culture and connection to their community are mandatory considerations on the forefront of the best interest analysis under the CYFSA. The best interest factors for Indigenous children under s. 10(3) of Bill C-92 must also be considered, most of which are similar to the factors under the CYFSA, with some differences which I will highlight.

The Children's Views: [s.74(3)(a) CYFSA; s. 10(3)(e) Bill C-92]

[125] As the children are only 5 and 4 years old, their views and wishes cannot be ascertained. On several occasions, the child, Z.H. said during access visits that he "wanted to go home", and it was unclear if he was referencing the foster home or his parents' home. Z.H. has told his mother that he wants to go back to the foster home as he missed the foster mother but has also told his mother that, "I want to go to your home".

[126] Both T.H. and Z.H. are attached to their foster parents, particularly their foster mother, as described below. It is also clear that the children love their parents and are excited to see them in access visits.

The Importance of the Children's Metis Heritage and Preserving Their Cultural Identity: [s. 74(3)(b) CYFSA; s. 9, s.10(3)(a),(d) Bill C-92]

[127] The father indicates that he has Metis heritage from his paternal side of the family but has no status. He advised Dr. Harris that he knows little about his culture other than commenting that "we are all one race, and nobody owns anything". Samantha Cressman, the Metis Resource Worker, provided information to Dr. Harris that she did not have any files or services provided for the children and to her knowledge the children do not have any interaction at this time with Metis Nation of Ontario Healing and Wellness Branch programs.

[128] Since being placed in care, the Society has made efforts to foster the children's Metis culture. In December 2018, the children attended the "Christmas feast" that is held by the Metis Nation. Since May 2019, all four children have been placed together in a culturally matched home through Eagles Nest foster agency that integrates and promotes indigenous culture, and with foster parents who are of Metis heritage. The foster mother testified that they bring the children to pow wows and other indigenous events, and their family will continue to encourage a connect with the children's Metis culture.

The Children's Needs and Level of Development and the Care They Require: [s. 74(3)(c)(i)(ii) CYFSA; s. 10(3)(b) Bill C-92]

[129] The children were initially residing in two separate foster homes, but the younger children moved into the older children's foster placement in or about August 2018. In May 2019, the children moved to their present foster placement. The children's service worker, Lani Landale, indicates that the children have settled well into their present foster home.

[130] The foster mother, A.E., testified. She describes the children as very active, and they fight for the foster parents' attention. All of the children struggle with food insecurity and do not know when to stop eating and must be watched carefully for choking as they put so much food in their mouths.

T.H.

[131] When T.H. entered foster care, he had numerous delays and was not toilet trained. He was also overweight. At 3 ½ years of age, he was over 75 pounds.

[132] When T.H. was first placed in his present foster home, he could not brush his teeth, did not know how to wipe his bottom, and could not shower independently. Within 3 months, T.H. was showing improvements in all of these adaptive skills.

[133] Records from Dr. Mitchell relating to T.H. were filed. T.H. has been followed in the pediatric clinic with Dr. Mitchell since 2018 and Dr. Mitchell sees T.H. approximately every 3 months. A report from May 2018 indicated that T.H. had delays in his speech and social skills. In August 2018, Dr. Mitchell noted that T.H. had slimmed down, was showing improvement in his speech and was slowly making gains in his development. By May 2019, T.H. was still making gains in his development.

[134] When T.H. first entered foster care, he had to have extensive dental surgery as outlined above. T.H.'s dental decay affected his speech due to having to remove some of his teeth. T.H. struggles to speak, stutters and it is difficult to understand him. Dr. Mitchell referred him to the small talk program in November 2018. T.H. also has motor coordination problems. He started working with a speech pathologist and occupational therapist in September 2019.

[135] It is noteworthy that T.H. has had no cavities since he was placed in care.

[136] T.H. is very social but he struggles with personal boundaries and has a tendency to stare at the private body parts of others. He has a tendency to be dramatic and overexaggerate small mishaps.

[137] His foster mother, A.C. indicates that T.H. has difficulty expressing his feelings. When first placed with them, T.H. had outbursts brought on by minor issues that could last minutes to half an hour, which now have reduced in frequency.

[138] After May 2019, T.H. was followed by pediatrician Dr. D'Souza. In a letter dated December 6, 2019, Dr. D'Souza indicated that he has been concerned about T.H as he struggles to sleep and will frequently wake during the night for reassurance. Dr. D'Souza noted that there is an "inherent sadness" about T.H. and made a referral for play therapy for T.H.

Z.H.

[139] Z.H. is hyperactive, impulsive and requires frequent redirection. Z.H. is described by his foster mother as very active and moves around "non-stop". He struggles to regulate his emotions and has intense tantrums. His foster mother reports that he has violent tendencies with animals and has "mashed" their family cat into the ground, has hit and tried to strangle the cat and has kicked the family's 12-year-old dog. Z.H.'s teachers report that he can't settle and is impulsive. Due to his impulsivity, his pediatrician prescribed a small dose of Clondine.

[140] Z.H. has a learning disability, and his speech is described as "broken" as he does not speak in full sentences. He has a difficult time retaining information, and the foster mother works with him at home on his letters and numbers.

[141] Z.H. tends to overeat and will continue to eat until an adult tells him to stop or the food is gone. The foster mother also describes Z.H. "cuddly" and will do things to try to make you happy.

[142] The boys' pediatrician, Dr. D'Souza, has made referrals for them for an attachment consultation and education services through CPRI.

C.H. and Z.E.H.

[143] Although the two youngest children were not the subject of this trial, it is important to note the following:

• The child, C.H. seemed to over eat when he was placed in foster care, like his two older brothers.

• In October 2017, C.H.'s pediatrician indicated that C.H. had a history of failure to thrive as a result of poor weight gain due to insufficient caloric intake. However, after 1 ½ months in foster care, C.H. was growing appropriately and his development was progressing.

• C.H. has torticollis (when the head becomes persistently turned to one side) and plagiocephaly (flat head) and low muscle tone.

• C.H. was also noted to have delayed speech after being placed in care, and a referral was made to the Developmental Resource Institute.

• In general, Z.E.H. has no developmental issues.

[144] In Dr. Harris' opinion, some of the difficulties experienced by the children are the result of neglect while in the parents' care, which was also the opinion of Dr. Mitchell. The parents acknowledged delays in seeking treatment and cancelling medical appointments.

[145] The children will require many appointments and follow-up for several years. As Dr. Harris indicated, historically the parents have not been able to meet the demands of their high needs children and have rejected involvement of treatment professionals. These children require a highly skilled, organized, and well-resourced caregiver in a home with a high degree of supervision, structure and routine. The present foster parents obtain respite for 48 hours once a month as a break due to the children's high needs.

Merits of the Respective Plans for the Children, Including Care in Accordance with the Customs of the Indigenous Group to Which the Child Belongs [s. 74(3)(c)(viii) CYFSA; s. 10(3)(f) Bill C-92]

[146] The parents' Answers seek a return of the children to their joint care subject to society supervision. During the parenting assessment completed in the summer, 2019, the parents' plan was still to have all 4 children returned to their care, acknowledging that they would require a larger home to accommodate all of the children and they would eventually like to live in Brantford.

[147] Until the trial, the parents have always put forward to workers, to Dr. Harris and to the court that they were presenting a plan to parent the children together.

[148] This plan changed during the trial. In her opening statement, the mother's counsel indicated that the mother's short-term plan is to reside alone with the children at Optimism Place, a shelter in Stratford until she can find her own residence. However, the mother had not looked into this option, and agreed that there could be a waiting list for the shelter. In cross-examination, the mother then acknowledged that she did not want to go to Optimism Place as she has a home in Stratford to reside in and it would be up to the father to leave the home. The mother suggested that she would temporarily move to Brantford with the boys as her doctor and dentist are in Brantford, but no plan regarding where she would reside. In reality, the mother's plan is very unclear.

[149] The father's plan to separate from the mother is only temporary and eventually he wanted to be reunited with his family. The mother agreed in cross-examination that she did not believe that the father would ever go to counselling or parenting programs. Therefore, there is no indication that the situation would change once the father moves back into the home.

[150] The Society's plan is to have the children remain in their present placement, where they have been since May 2019 and is a culturally matched home. The foster mother testified that she and her husband are willing to have all 4 children long-term, but as an in-care placement so that they can continue to receive services through the agency due to the high needs of the children. The foster mother is able to stay at home with the children.

[151] Customary care is not supported by the Metis culture so this is not a permanency plan for the children at this time.

[152] Section 10(3)(f) of Bill C-92 directs that the court must consider plans that are in accordance with the customs or traditions of the indigenous group to which the child belongs, which both plans could forward provide. However, there is evidence of the foster parents supporting the children's Metis culture, and no evidence that the parents have supported the children's Metis culture in the past.

Continuity of Care, a Positive Relationship with Parents and Siblings and Disruption of Continuity [s. 74(3)(c)(v)(vi)(vii); CYFSA]

[153] T.H. and Z.H. were in the care of their parents for their first 3 and 2 years of their lives respectively. However, they have been out of their parents' care for over 2 years at the time of trial, and in their present placement for almost a year.

[154] T.H. and Z.H. have a positive relationship with their parents and clearly love them. However, they also have a positive relationship with their foster parents. T.H. is attached to the foster mother and has separation anxiety when the foster mother leaves the house. At times Z.H. resists coming to access visits with his parents and towards the end of the visit states that he "misses A" (the foster mother).

[155] Ms. Landale, the children's service worker, observed that the children are attached to the foster mother. The children are better behaved with the foster parents than with their parents; they listen to the foster mother, follow her directions and things are less chaotic in the foster home.

[156] The children have always been with their siblings except for approximately 8 months when they were in separate foster homes. The Society's plan is to have the siblings remain together, whereas the parents' plan is to separate T.H. and Z.H. from their younger siblings.

[157] Similarly, section 10(c) of Bill C-92 directs the court to consider "the nature and strength of the child's relationship with his or her parent, the care provider, and any member of his or her family who plays an important role in his her or life". The definition of "care provider" under Bill C-92, includes a person who has primary responsibility for providing the day-to-day care of an indigenous child, other than the child's parent, including in accordance with the custody or traditions of the indigenous group, community or people to which the child belongs. The present foster parents fit this definition. [see M.L. and D.L. v. B.T., D.C. and Dilico Anishinabek Family Care]

The Effects on the Children of Delay in Disposition in the Case: [s. 74(3)(c)(ix), CYFSA]

[158] The father requested that the court give the parents a second chance and at trial said that he was now willing to work with the Society and obtain counselling and asked for a further 90 days to prove that he can do it. Section 122 of the Act outlines maximum times lines for in care orders to be made for children, being 12 months if the child is younger than 6 years old or 24 months if the child is over 6, which have long expired. The CFYSA directs that the court must now consider permanency planning for the children.

Domestic Violence: [s. 10(3)(g) Bill C-92]

[159] Section 10(3)(g) of Bill C-92 directs that when considering what order is in the best interests of the child, the court must consider any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child. There is no similar provision under the best interest test in s. 74(3) of the CYFSA.

[160] While in the care of their parents, T.H. and Z.H. were exposed to domestic violence between the parents. The father has acknowledged at least being verbally abusive to the mother and in the past being physically abusive. When the father gets into a "mood" the mother cannot even be in the same room as he is, and it is clear he exhibits controlling behavior over the mother. Neither parent either separately or together have done any significant counselling to deal with the conflict in their relationship. The eventual plan is for the parents to be together residing with the children, and there is no evidence that the parents' relationship or the father's controlling behaviour would change should the children be returned to their care.

Conclusion on Placement

[161] Considering the provisions of both the Child, Youth and Family Services Act, and Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families, the best option is to have these children returned to the care of a parent, but only if that is in the best interests of the children [s. 101 CYFSA; s. 16(1)(a) Bill C-92]. Both Acts make it clear that the primary or paramount consideration is what is in the best interests of the children.

[162] Both s. 74(3)(c)(x) of the CYFSA and s. 10(3)(h) of Bill C-92 direct the court to consider similar principles of the degree of risk of harm of returning the children to their parents, and measures that are relevant to the safety, security and well-being of the children.

[163] I cannot find that it is in the best interests of T.H. and Z.H. to place them with the mother alone, which was the plan put forward at trial. This plan will still place the children at risk of harm. The mother acknowledges that she has not been able to protect the children from the influence that the father had over her. She underfed C.H. as requested by the father causing C.H.'s failure to thrive. She moved from Alberta to Ontario with the three older children at the request of the father without any plan of where they would live. This move interrupted medical care for C.H. and dental care for T.H. It is not clear that a temporary physical separation of the parents will alleviate the concern of the control that the father has over the mother's decisions.

[164] There is no evidence of improvement with the parents since the children were placed in the care of the Society in December 2017. The parents have not accessed the services required to resolve the protection concerns and the father interfered with the mother's attempts to engage in services. The father was clear with workers and with Dr. Harris that he was fine and did not require any counselling or parenting assistance. The father has never dealt with his past trauma issues, which came to a head the day before trial when he was hospitalized due to his anxiety and it was recommended again that he attend for counselling to deal with his past issues.

[165] Access visits continue to be a challenge, even visits with the mother alone, and the father has attempted to undermine the mother's parenting during visits. Although Dr. Harris observed many positive interactions between the children and the parents, she also expressed concerns. She noted that:

• Many times a worker had to intervene to ensure the safety of the children, and the father specifically required redirection on several occasions. The mother was more observant. During one visit, Dr. Harris herself had to intervene as C.H. was wandering away and close to the road.

• The parents struggled to follow-through when required to address behaviours.

[166] At trial, the father indicated that the night before he testified he did some reflection, and he was now willing to move out so that the children could be returned to the mother. He agreed that he had not met the Society's expectations for services. The father testified that it was "all on him" and he was the one who cancelled appointments and he is to blame for that. He acknowledged that he did not attend for parenting programs as he is stubborn, selfish and thinking of himself. He is now prepared to separate temporarily to "fix what the court wants him to fix" and to have supervised access. However, the father had no clear plan of where he would reside if not with the mother and would need time to find separate accommodations.

[167] Further, the mother's residential plan for the children on her own was not clear.

[168] There are concerns with the last-minute plan to have the children returned only to the care of the mother given the control and influence the father has over her and this plan is only temporary. I find that this last-minute temporary plan is not a true plan of separation.

[169] The father has advised the mother that he does not require counselling. The mother does not believe that the father would ever go to counselling or parenting programs. Therefore, I cannot see how giving the father more time to "prove himself" to the court will resolve the protection concerns.

[170] Dr. Harris testified that the parents have significant cognitive delays and would need extensive, even "live-in support" to be able to parent the children. Neither parent has a strong support system. With respect to the mother, her mother passed away and she does not have a close relationship with her father. She last spoke with her father on the phone two years ago. The mother has a contentious relationship with her only sibling, her older sister Michelle, and has not seen her in over two years. The mother has not identified any friends as supports to the Society. The mother acknowledged that neighbours and friends have distanced themselves because of the father's moods.

[171] The father is also not close to his family. His birth parents have not been to Ontario to see the children. He has not seen his two brothers in years. He briefly resided with this step-sister in Brantford but she did drugs and was not a support for him.

[172] The father's friend Jason testified at trial. He has known the father for 21 years and they first met when they resided together in Alberta. Jason now resides in Kitchener. Jason has had regular contact with the parents since they resided in Milverton in 2017. Although Jason seems to be a good friend and emotional support for the father, there was no evidence of what support he could provide to the mother should the children be returned to her care. Jason himself has 4 children, none of whom are in his care.

[173] Given the parents' lack of cooperation with services, and Dr. Harris' opinion that even daily check-ins would not be sufficient to mitigate the risks of having the children placed in the care of the parents or even with the mother alone, I do not find that terms of supervision could adequately protect the children.

[174] The second best option for these children is to place them with a member of their family or community [s.101(4), (5), CYFSA; s. 16(1) Bill C-92].

[175] Kinship options were explored by the Society.

[176] The paternal grandfather initially indicated a desire to put forth a plan for the children. However, due to the grandfather's extensive history with child protection agencies, the Society could not support this plan. The parents agreed that this would not be an appropriate plan for the children.

[177] The paternal grandmother resides in Alberta and indicated to Dr. Harris that she wanted to relocate to Brantford in order to provide the parents with support. However, there were concerns raised by the Society and the mother herself regarding whether her support would be helpful. This plan had not been assessed as the grandmother continues to reside in Alberta.

[178] The maternal aunt, Michelle, expressed that she wanted an ongoing relationship with the children but could not put forward a plan. The aunt continues to have community visits with the children. At trial, the family service worker Ms. Middegaal, indicated that Michelle has now put forward a plan for the children to be placed in her care, but Ms. Middegaal only met with Michelle the day before the trial commenced, and the kinship assessment has just begun. If this kinship assessment is successful the Society may place the children with Michelle. However, the father was not supportive of a placement with Michelle. The mother had not seen her sister for at least 2 years although she resides only 45 minutes away, and Michelle has never met the father. Dr. Harris could not comment on whether a plan for the maternal aunt to be the "live in support" required to assist the parents was viable as at the time of the assessment, Michelle had withdrawn her plan.

[179] The third best option is for the children to be placed in a home with a person who is member of their Metis community [s. 101 (5) CYFSA; s. 16(1)(c) Bill C-92]. Being of Metis heritage and having the children in their care for almost a year at the time of trial, the foster parents have become "care providers" as defined under the federal FNIM legislation that the court must consider under the best interest test in s. 10(3). The children have made significant gains in the care of the foster parents, continue to do well in their care and are attached to the foster parents. This plan ensures that the children can continue to be placed with their siblings, and that they have cultural continuity, which are also considerations under s. 9(2) and s. 16(2) of Bill C-92.

[180] Both parents indicated that if the children are placed in extended care of the society, they would want them to remain in their present placement. The father indicated at trial that he would be "honoured" if their present foster parents would obtain custody of the children, as he believes that they are taking good care of the children now and trusts them.

[181] Given the length of time the children have been in care, and the best interests tests in both the CYFSA and Bill C-92, I find that it is in the best interests of T.H. and Z.H. that they be placed in the extended care of the Society, as the Society's plan is for the children to remain in their present placement.

Access

[182] Should the children be placed in extended care, both parents want ongoing access with the children, and more than the minimum of 3 times a year as proposed by the Society. The Society was seeking a similar access order as obtained on consent on December 30, 2019 regarding the two younger children: that the children have a minimum of 3 face-to-face visits each year with the parents, subject to the children's wishes, with the children being access holders and the parents being access recipients, and with sibling access with all siblings being access holders and recipients.

The Law

[183] The CYFSA provides that when making an order for extended care, a court shall not make an order for access unless the court is satisfied that the order would be in the child's best interests, taking into consideration the factors in s.74(3). [s.105(5)]. Under s.105(6), in making a determination for access to a child in extended care, the court shall consider as part of its determination of whether an access order would be in the child's best interests:

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

(b) If the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

[184] Section 105(7) requires the court, when making an access order to a child in extended care, to specify who is an access holder and who is an access recipient.

[185] Section 17 of Bill C-92 indicates with respect to indigenous children, if the child is not placed with a member of his or her family, to the extent that doing so is consistent with the best interests of the child, the child's attachment and emotional ties to member of his or her family are to be promoted.

[186] The Ontario Court of Appeal in Kawartha-Haliburton Children's Aid Society v. M.W. confirmed that the new test for access under the CYFSA to a child in extended society care under s. 105(5) represents a significant shift in the approach to access for children in extended care. There is no longer a presumption against access to children in extended care. Justice Shore in The Children's Aid Society of Toronto v. J.G. held that the approach to access to a child in extended Society care is different under the CYFSA as opposed to the former CFSA in that:

• Under the CYFSA, the burden is no longer on the person seeking access to establish that the relationship is beneficial and meaningful to the child. Instead the court must undertake a best interest analysis, which must include a consideration of whether the relationship is meaningful and beneficial to the child and consider impairment to future adoption opportunities.

• The existence of a meaningful and beneficial relationship is no longer a prerequisite but must form part of the broader analysis of the best interests of the child.

• It is no longer the case that a parent who puts forth no evidence will not gain access.

• However, there is also no presumption that just because an access seeker is the parent of the child that the relationship is beneficial and meaningful.

• Further the definition of "beneficial and meaningful" has not changed from the pre-CYFSA caselaw; only that "beneficial and meaningful" is not the sole focus but must the considered in the context of the best interests of the child.

• The court's consideration is with respect to the existing relationship, not a future relationship. A court cannot speculate on whether a parent is going to be able to resolve their shortcomings and develop a more meaningful relationship.

[187] In Jewish Family and Child Service of Greater Toronto v. K.B. Justice Sager stated that the new access test should be given a liberal and flexible interpretation, writing as follows:

• The starting point of this analysis must be an acknowledgment that the CYFSA provides that an existing access order is automatically terminated if the final disposition is an order placing the child in extended society care unless the party seeking access can demonstrate that ongoing contact is in the child's best interests.

• With the enactment of the CYFSA on April 30, 2018, came a new test for the court to apply when a party requests access to a child placed in extended society care. The test under the predecessor legislation was quite rigid and difficult for a parent to meet as they were required to demonstrate that their relationship with the child is beneficial and meaningful to the child, and that an order for access will not impair the child's future opportunities for adoption. Under the CYFSA, the court must consider as part of the best interests analysis whether the relationship between the person seeking access and the child is beneficial and meaningful. The court is no longer required to find that the relationship is beneficial and meaningful before granting an order for access to a child placed in extended society care. The court must also consider, if relevant, whether an order for access may impair the child's future opportunities to be adopted. These are additional mandatory considerations to the best interest test.

• The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all.

• As the best interest analysis involves a consideration of what could be numerous factors, there cannot be a hard and fast rule as to how much weight a court must give any one factor including whether the relationship between the party seeking access and the child is beneficial and meaningful to the child. That must be determined on a case by case basis, by weighing all the relevant factors against the particular needs of the child before the court. This is a significant departure from the rigid test in the predecessor legislation.

• For some children who are the subject of an order of extended society care, a relationship with a parent may be in their best interests for a myriad of reasons. Some of those reasons would not have been sufficient to demonstrate a beneficial and meaningful relationship under the predecessor legislation to the CYFSA. The court ought not be confined to a one-dimensional definition of beneficial and meaningful under the CYFSA, as to do so would be to potentially ignore the variety of needs children have as a result of being removed from their parents' care, both at the date of the order and in the future. For this reason, the test was altered in a significant way to one of best interests.

[188] There is an emphasis under the CYFSA on the child's views. The fact that the child is so young does not detract from considering that he speaks through his attachment to a parent.

[189] In considering whether access would impair adoption opportunities, the court in Children's Aid Society of Toronto v. A.F., set out the following factors:

• The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

• The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

• The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

• The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

Analysis on Access

[190] In general, the mother has always been consistent in her attendance at access. The father has not always been consistent, but more consistent recently.

[191] All of the workers who supervised access visits indicated that there were positive interactions between the children and the parents, and it was clear that the children love their parents and are excited to see them. The foster mother testified that the two older boys have a good relationship with their parents.

[192] As the parents are not the primary caregivers for the two older children, Dr. Harris did not believe that an attachment had been maintained between T.H., Z.H. and their parents. The parents lack many of the preconditions for a secure attachment to be made such as their ability to co-regulate emotions of the children, being emotionally available to the children, providing comfort during illness and injury, creating predictability in routines and structures and providing competent and consistent instrumental care.

[193] However, Dr. Harris believes that there is a positive relationship between the children and their parents. The children love their parents. The children are excited to see their parents each week: they run and hug them and hug at the end of the visit. T.H. has spontaneously told both parents that he loves them during the visit and will ask for a hug. At the end of one visit, Z.H. commented that he "wanted to stay. I want (mom and dad) to visit me again".

[194] Dr. Harris witnessed many lovely moments of parent-child interaction during the visits she observed. Both parents praise the children and show patience. They were calm and emotionally regulated during the visit. The parents were affectionate with the children, saying "I love you" and giving hugs. The parents were child-focused in their play, followed the children's lead, and engaged with the children at their level.

[195] Dr. Harris observed a strong connection between the two older children and their parents and found "it was evident that T.H. and Z.H. shared a bond with their parents". In Dr. Harris' opinion, there is a meaningful relationship between the children and their parents, and this connection could become stronger if positive visits are maintained. Dr. Harris also found that there was an importance for the children of maintaining some level of connection with their parents, particularly given their Metis heritage and the importance of the cultural connection.

[196] Dr. Harris could not say definitively that the relationship between the children and their parents was beneficial to them. If the parents undermine a permanent placement for the children contact may not be beneficial. Dr. Harris also indicated that severing the children's relationship with their parents would not be an attachment disruption for them, but they would experience grief and loss.

[197] The present plan is not for the foster parents to adopt. However, the court would still be concerned if ongoing access would interfere with the children's permanency. Should the older children also be placed in extended care, the foster parents are willing to facilitate contact with the parents once a month and can envision access occurring in the community for a few hours. The foster mother felt comfortable being able to arrange access with the parents, but she has only met the parents on a few occasions and could not comment on her relationship with them.

[198] The foster mother was, however, concerned that if the children were in extended care, the parents may not see them as "the parents", and this is partly why they would need the support of the Society. Dr. Harris indicated that with ongoing access between the children and the parents, there could be risks such as the parents' undermining the placement or making the children feel unsafe where they are living as these children need stability in a placement given their developmental challenges and trauma. The concern with the father is that given his past experience being in the care of the Society, he lacks trust and is worried that history will repeat itself. For example, when the father tells the children to "make sure they are not hurting you" in care, it disrupts the children's feeling of safety in their placement. Dr. Harris did not believe that at this time the father's trust issues interfered with the meaningful relationship the children had with him. In the end, Dr. Harris felt that the benefits of maintaining a relationship with the father, and their cultural connection outweighed any risk of undermining the placement.

[199] There is evidence that the parents would not impair the children's permanent placement. Both parents are supportive of a continuing placement with the foster parents. The father indicated that he would not cause them any conflict.

[200] While any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the CYFSA, access is to be ordered for a child if it is in her overall best interests.

[201] I find that it is in the best interests of the children to have ongoing access with their parents, considering the meaningful relationship they have with their parents, and the parents' support of their foster placement. An order for ongoing access will ensure that the children's emotional ties to their parents are promoted as directed by Bill C-92. The question is the frequency of face-to-face contact, and if the parents should also be holders of access.

[202] The Society proposed that the children be access holders in this case, as that was done for the younger siblings C.H. and Z.E.H., and it would ensure that an openness application may be brought as the Office of the Children's Lawyer is more proactive to bring such applications than at times parents are. However, the Society was not opposed to the parents also being holders. The parents argue that they should also be holders of access.

[203] The distinction between who is an access holder and recipient has now become a critical consideration because only the access holder has the right to bring an openness application if served with a Notice of Intent to place a child for adoption. The access recipient only has the right to be given notice of the Society's Notice of Intent to place a child for adoption.

[204] As the older two children were in their parents' care for the first 3 ½ and 2 ½ years of their life, they arguably have a stronger relationship with their parents than the younger two children. Although there was some concern with the father's volatility and mistrust of the Society, at this time, the parents are supportive of the present placement for the children. The parents have reduced the litigation in this case by consenting to final extended care orders for the two younger children.

[205] I believe that the test for access pursuant s. 105(5) and (6) has been met for both the parents and the children, so that both can be access holders.

[206] As to the frequency of access, although the final order for the two younger children dated December 30, 2019 indicates that access to be a minimum of three face-to-face visits each year, subject to the children's best interests and responsible wishes, the foster parents have been maintaining visits on a monthly basis. At trial, the foster mother committed to maintaining monthly visits for all of the children with the parents, and if they adopt would support an openness agreement of contact a minimum of three times a year. As the children are very young and their circumstances will change over time, the order should not mandate monthly visits, but should be flexible to meet the ongoing needs and wishes of the children.

Final Order

[207] For all of these reasons, there shall be a final order as follows:

1. The children, T.H. d.o.b.: […] 2014 and Z.H. d.o.b.: […] 2015 shall be placed in the extended care of the Huron-Perth Children's Aid Society.

2. The children, T.H. and Z.H. shall have access to the respondents, A.C. and J.S.-H., such access to be a minimum of three face-to-face visits each year, subject to the children's best interests and responsible wishes. Both the children, T.H. and Z.H. and the respondents A.C. and J.S.-H. shall be access holders and recipients.

3. The children, T.H. born […], 2014 and Z.H. born […], 2015, shall have a right of access to each other, and to their siblings C.H. born […], 2017 and Z.E.H. born […], 2018, with all of the children being access holders and recipients.

Released: May 25, 2020

Signed: Justice K.S. Neill

Footnotes

[1] Catholic Children's Aid Society of Toronto v. C.M. [1994] 83 (S.C.C.)

[2] Children's Aid Society of Algoma v. P.C.-F. 2017 ONCJ 899, [2017] O.J. No. 6875.

[3] Children's Aid Society, Region of Halton v. J.B. 2018 ONCJ 884, [2018] O.J. No. 6760 (Ont.C.J.)

[4] M.L. & D.L. v. B.T., D.C. & Dilico Anishinabek Family Care [2020] O.J. No. 989 (Ont.C.J.)

[5] Kawartha-Haliburton Children's Aid Society v. M.W. 2019 ONCA 316, [2019] O.J. No. 2029 (Ont.C.A.)

[6] Kawartha-Haliburton Children's Aid Society v. M.W. 2019 ONCA 316, [2019] O.J. No. 2029 (Ont.C.A.)

[7] Children's Aid Society of Toronto v. J.G. 2020 ONSC 1135, [2020] O.J. No. 728 (Ont.S.C.)

[8] Jewish Family and Child Service of Greater Toronto v. K.B., 2018 ONCJ 650, 2018 O.J. No. 4918 (Ont.C.J.)

[9] Catholic Children's Aid Society of Toronto v. R.H. 2018 ONCJ 854, [2018] O.J. No. 6405 (Ont.C.J.)

[10] Children's Aid Society of Toronto v. A.F., 2015 ONCJ 678 (Ont.C.J.)

[11] Kawartha-Haliburton Children's Aid Society v. M.W. 2019 ONCA 316, [2019] O.J. No. 2029 (Ont.C.A.)

[12] Children's Aid Society of Toronto v. K.A., 2014 ONCJ 304