WARNING

The court hearing this matter directs that the following notice should 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.

(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.

(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.

Court File No.: C11985/17 Date: May 13, 2024 Ontario Court of Justice

Between:

Children’s Aid Society of Toronto, Applicant Julia O’Byrne, for the Applicant

- and –

R.R., A.M. and F.R., Respondents The Respondents, R.R. and A.M. acting in person The Respondent, F.R., not participating at the trial

Fatma Khalid, on behalf of the Office of the Children’s Lawyer, for the subject children

Heard: May 6-8, 2024

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This was the trial of a three-times amended status review application brought by the Children’s Aid Society of Toronto (the society) regarding the subject children, M, who is 7 years old and MM, who is 5 years old (the children).

[2] The society is seeking an order that the children be placed in its extended society care. The society’s primary protection concern is the long history of family violence by the respondent A.F. (the father) towards the respondent R.R. (the mother). The society’s position is that the mother has been unable to extricate herself from this abusive relationship, is unable to protect the children from being exposed to this abuse, that she is secretive and dishonest about the abuse, lacks insight into the impact of the family violence on the children and prioritizes her relationship with the father to the needs of the children.

[3] The mother seeks an order placing the children in her custody pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (the Act), or in the alternative, in her care and custody, subject to terms of society supervision. If either of these orders are made, the mother seeks an order that the father have reasonable and generous access with the children.

[4] The mother’s position is that the children are at no risk of harm. She says that any domestic violence is overstated by the society and is only due to the society frustrating the father’s ability to see the children. She blames the society for ripping her family apart for no reason.

[5] The father supports the mother’s claim and positions.

[6] The Office of the Children’s Lawyer (the OCL), on behalf of the children, informed the court that the children wish to live with the mother. It did not take a position on the children’s placement.

[7] The society seeks an order that the children’s access to the mother be in its discretion with respect to duration, frequency, location and level of supervision, a minimum of four times each year. It asks that the children be made the access holders and the mother be made the access recipient.

[8] The society seeks an order that the father have no access to the children.

[9] The parents ask for as much access with the children as possible if the children are placed in extended society care. They ask to be made both access holders and access recipients.

[10] The respondent F.R. (the maternal grandfather) is a former caregiver for the children. He did not participate in the trial and did not oppose the society’s request to place the children in extended society care.

[11] The maternal grandfather entered into an access agreement (the agreement) with the society prior to the trial. The agreement is that he have access with the children a minimum of six times each year, with supervision in the society’s discretion. The agreement provides that the maternal grandfather and the children will be made both access holders and access recipients.

[12] The society filed a Statement of Agreed Facts it signed along with the maternal grandfather to support this agreement. The mother and the father did not sign it. The parties were advised at the trial management conference that the court was not bound by this agreement. It endorsed that the maternal grandfather was welcome to participate in all, or part of this trial. [1]

[13] The OCL submitted that the mother should have 12 visits each year with the children if an extended society care order is made. The OCL asked that the mother and the children be made both access holders and access recipients.

[14] The OCL submitted that the father should have four supervised visits each year with the children, with the children being the access holders and the father being the access recipient.

[15] The OCL supported the access agreement reached between the society and the maternal grandfather.

[16] M has been the subject of child protection court proceedings since December 4, 2017. The society became involved after the father was charged, and eventually convicted of assaulting the mother. M was found to be a child in need of protection on October 25, 2018, pursuant to clause 74 (2) (h) of the Act (risk of emotional harm) by Justice Carolyn Jones.

[17] MM has been the subject of child protection court proceedings since August 14, 2019. She was found to be a child in need of protection on November 28, 2019, pursuant to clauses 74 (2) (b) of the Act (risk of physical harm) and (h) (risk of emotional harm) by Justice Debra Paulseth.

[18] The children have been in the care of the society most recently since August 23, 2023. The parents currently have supervised access visits with the children at the society’s office.

[19] The society called the children’s foster mother and five of its workers as witnesses at the trial. Two society family service workers have primarily worked with this family – Claudia Spirito and Monica Macchiusi. The society also filed police records, a Request to Admit uncontentious facts setting out the court history since September 7, 2021, and multiple Statements of Agreed Facts reached on previous protection applications and status review applications regarding the children.

[20] The parents both testified. They did not call other witnesses.

[21] The central theme in this case was the history and extent of family violence by the father towards the mother, the mother’s inability to protect the children from being exposed to the family violence, how the family violence has impacted the children and the risk family violence poses to the children. [2]

[22] The issues for the court to determine are:

a) Is a protection order necessary to protect the children in the future? b) If so, what disposition order is in the children’s best interests? c) What access orders are in the children’s best interests? And, if the children are placed with the society in extended society care, who should be the access holders and who should be the access recipients?

Part Two – Procedural and Evidentiary Issues

[23] The parents were unrepresented at trial. They had counsel when these trial dates were set. However, they dismissed their counsel at a combined trial management conference and settlement conference held on April 5, 2024. Justice Paulseth endorsed that the trial was peremptory.

[24] The parents sought an adjournment of the trial the week before it was scheduled to begin. This request was denied by Justice Paulseth on May 2, 2024. [3]

[25] The court was mindful of its obligation to assist self-represented litigants. [4] It is this court’s view that this obligation to assist is enhanced in child protection cases where the stakes for families are so high. See: Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 369, per Justice Debra Paulseth.

[26] The court provided the following procedural assistance to the parents:

a) It spent additional time explaining the trial procedure. b) It provided the parents with the Ontario Court of Justice Guide to Conducting Trials for Self-Represented Litigants. c) It took additional time during the trial to explain legal terminology and the basis for its evidentiary rulings. d) It explained the legal impact of someone being made an access holder, as opposed to being made an access recipient. e) It assisted the parents, when they were struggling, in formulating their questions in cross-examination. f) The parents were given the choice of having the court question them during their direct evidence to obtain important background information and to address the society’s protection concerns. They both asked the court to do this. They both were able to provide any other evidence they wanted the court to receive. They filed multiple exhibits at trial. The court made copies for the other parties. g) The court took an active role in screening the admissibility of the society’s evidence It struck several pieces of evidence and limited the purposes for which other evidence could be used.

[27] The society sought to rely on police records pursuant to section 35 of the Ontario Evidence Act. This section provides for the admission of business records as a statutory hearsay exception.

[28] The court went through each document the society sought to introduce as a business record and made oral rulings on what documents were and were not admissible.

[29] The court ruled that the father’s criminal record history and criminal release orders were proper business records and admissible.

[30] The court also ruled that most of the police occurrence reports filed by the society were admissible. The court took the approach recently set out by Justice L. Bale in Children and Family Services for York Region v. B.T. and R.S., 2024 ONSC 2179 where she wrote at paragraph 175:

Evidence Act notices were served by the Society and police occurrence reports were filed in evidence. For purposes of the information contained within the police records, I rely upon them only in accordance with the following principles:

a. Police records, including both criminal offence records and occurrence reports, are generally admissible as business records under s. 35 of the Evidence Act, as a record of the act, transaction, occurrence or event;

b. Police records, including both criminal offence records and occurrence reports are presumed to be reliable as they are:

i. typically made in usual and ordinary course of policing and/or the administration of criminal justice; and

ii. typically recorded at the time of the event or within a reasonable time thereafter;

c. The first-hand observations of police officers, as recorded within the police records and reports, are generally admissible;

d. The comments of the parties, as recorded in police records may be admitted as statements against interest;

e. Section 35 of the Evidence Act is not intended to permit the admission of otherwise inadmissible evidence;

f. Third-party statements recorded within the police records are not admissible for the truth of their contents;

g. Opinion evidence recorded within the police records or occurrence reports is not admissible;

h. Information that is not relevant to the issues for determination is not admissible. The probative value of the evidence must outweigh any prejudice to its introduction; and

i. The presumption of reliability of police records may be rebutted: Children’s Aid Society of Toronto v. L.(L.) 2010 ONCJ 48.

[31] The court excluded police synopses that were not prepared at the same time of the recorded events or within a reasonable time thereafter. [5] It excluded a prosecution summary for the same reason. In one police record, the author of the record referred to the father having made telephone calls to the mother from jail without setting out the source of that knowledge. [6] These were not admissible business records. See: Children’s Aid Society of Toronto v. L. (L.), supra; Catholic Children's Aid Society of Toronto v. L. (Jean) and R. (Willard) (No. 3), [2003] O.J. No. 1722 (Ont. C.J.); Children and Family Services for York Region v. B.T. and R.S., supra.

[32] The court excluded statements made by the society’s adoption worker about the experiences of her and her colleagues. It only admitted the statements of her personal experiences.

[33] The court conducted two separate voir dires on the admissibility of children’s statements made to Ms. Spirito and Ms. Macchiusi. The court made oral rulings about what statements could be admitted for the truth of their contents [7] ,what statements could be admitted for other purposes than the truth of their contents, including the children’s state of mind, and what statements were inadmissible. [8]

[34] The court found that statements made by MM when she was 3 years old did not achieve threshold reliability and excluded them.

[35] The court also ruled that statements made by the father’s daughter from another relationship were inadmissible for the truth of their contents as they did not achieve threshold necessity – she could have been called as a witness. The father’s daughter is now 20 years old. The court admitted her statements for the sole purpose of explaining why the society investigated her allegations.

Part Three – Credibility and Reliability

[36] The court found the evidence of the society workers to be both credible and reliable.

[37] The society workers provided balanced evidence. They set out the parents’ strengths and didn’t minimize the children’s relationship with the parents.

[38] The society workers all provided their evidence in a calm and straight-forward manner. They answered questions directly. They had kept contemporaneous and detailed notes of events.

[39] The parents were neither credible nor reliable witnesses.

[40] The parents sometimes directly contradicted each other. The mother told the police during their investigation of a family violence complaint in March 2024 that the father had lived with her since January 2024. At trial, she acknowledged that the father had been living with her at that time. When asked at trial about this statement, the mother said, “I didn’t have the children with me, I don’t see what the issue is” (despite the father being subject to a criminal release condition to have no contact with her at the time and despite her acknowledging she was aware of that condition).

[41] The father had a different story. He claimed that he never lived with the mother during 2024 and did not breach his criminal release order.

[42] The parents’ evidence was sometimes internally inconsistent. They frequently changed their evidence when confronted with evidence of their prior statements and admissions.

[43] The parents’ evidence was frequently contradicted by police records and Statements of Agreed Facts that had been filed in support of prior court orders.

[44] When faced with many statements she had previously agreed to in these Statements of Agreed Facts, the mother either claimed she didn’t remember the incidents, said “no comment” or claimed what she had agreed to was false. The court finds that the facts the mother previously agreed to were more accurate than her evidence at trial. [9]

[45] The father claimed he only committed one act of family violence – when he was convicted of assaulting the mother in 2017. However, the police records revealed multiple instances of family violence and criminal court involvement regarding the parties since then.

[46] The parents often presented implausible evidence to deny allegations made by the society. When M gave Ms. Spirito a detailed report of the father living in their home in November 2021, contrary to his probation order, the father claimed M might have been referring to the maternal grandfather. He then said M had an active imagination. However, it was evident from the entirety of M’s statements to Ms. Spirito that M was speaking about the father.

[47] The parents became avoidant and defensive when asked difficult questions or confronted with contradictions in their evidence. They would often say “no comment”. This was the father’s answer when he was asked about the present nature of his relationship with the mother. The parents often tried to deflect questions by claiming the society was responsible for all of their problems. For instance, when the mother was asked if the father had slapped her in the face, she answered, “our whole problem is the society”. [10]

[48] The parents minimized the family violence by the father and the children’s exposure to it. The mother disavowed many statements she had made to society workers over the years expressing her fear of the father, his control over her and her desire to leave him. Instead, she blamed the society for the family violence.

[49] It became evident during the trial that the parents have frequently been together during 2024 (and in previous years) and the father has been communicating with the children in violation of the father’s criminal release terms and family court orders. The parents were observed during the trial by the society going on the bus together and walking away from the court together during the lunch hour. The father said, “I don’t control the bus schedules”.

[50] The evidence established that the parents have frequently lied to the society and the police about their contact and the father’s unauthorized contact with the children.

[51] Where the parents’ evidence conflicted with the evidence of the society workers, or with the police records admitted into evidence, the court preferred the evidence presented by the society.

Part Four – Facts

4.1 Introduction

[52] The court will provide considerable detail in this section. The court is doing this to show:

a) The long pattern of family violence by the father to the mother. b) The parents’ dysfunctional relationship. c) The mother’s attempts and inability to extricate herself from her relationship with the father. d) The mother’s alcohol use. e) The parents’ secrecy and deception. f) The multiple placements and instability experienced by the children due to their parents’ conduct. g) The efforts made by the society and the court to keep the children with their family.

4.2 The Respondents

[53] The mother is 29 years old. She was born in Canada. She finished high school and completed one semester of college.

[54] The mother has no other children. She has worked in the past in retail and property management jobs. She is presently unemployed and in receipt of public assistance.

[55] The father is 46 years old. He was born in Guyana and came to Canada in 1981. He became a Canadian citizen in 1985. He completed a university degree. He said he is presently self-employed operating an exporting business.

[56] The father previously had a six-year common law relationship. He has two children from that relationship. Those children are ages 20 and 18. They do not live with him.

[57] The maternal grandfather is in his 60’s. He was born in Guyana and lives in Toronto with his wife and a daughter (the maternal aunt). The maternal grandfather’s wife has serious health issues. He is her caregiver.

[58] The parents met in 2015 and were married in February 2016 in Toronto.

4.3 2017 to 2019

[59] The society first became involved with the parents in June 2017 after the father violently assaulted the mother. The police occurrence report indicates that the father slapped the mother on her face approximately 20 times. He then pushed the mother to the floor and began kicking her against a wall. The father was arrested and charged with assault. M was present during this incident.

[60] The father pled guilty to assaulting the mother.

[61] The mother and M moved in with the maternal grandparents after the assault.

[62] The father was released from jail on October 28, 2017. Following his release from jail, the mother spent every day with the father, leaving M in the care of her parents.

[63] In early December 2017, the society believed the maternal grandfather was no longer in a position to provide care for M and M was brought to a place of safety on December 4, 2017.

[64] The society issued a protection application on December 8, 2017. M remained in the care of the society until January 22, 2018, when she was placed in the temporary care and custody of the maternal grandfather, subject to society supervision. [11]

[65] On October 25, 2018, Justice Jones found M to be a child in need of protection and made an order placing M in the care and custody of the maternal grandfather, subject to society supervision, for six months. The father’s access to M was to be in the society’s discretion.

[66] The court continued this placement on two subsequent status review applications.

[67] MM was born in April 2019. She lived at first with the parents, who worked voluntarily with the society.

[68] In August 2019, the society learned about another family violence incident between the parents. The father was throwing out all of the mother’s and the children’s clothes. The father told the mother that he had burned MM’s birth certificate and he gave her the ashes. The father then pushed the mother to the ground and damaged her glasses. The children witnessed this incident. The mother took the children and returned to the maternal grandparents’ home.

[69] The mother advised the society that she could no longer remain with the father because he was controlling and verbally abusive.

[70] The father was charged and convicted of assaulting the mother. He was sentenced to 14 days in jail intermittent and probation. [12]

[71] On August 14, 2019, the society issued a protection application regarding MM. She was placed in the temporary care and custody of the maternal grandfather on August 26, 2019.

[72] On November 28, 2019, on consent, Justice Paulseth found MM to be a child in need of protection. She made an order placing MM in the care and custody of the maternal grandfather, subject to society supervision, for six months. The father’s access to MM was ordered to be in the society’s discretion, including the level of supervision.

4.4 2020 and 2021

[73] On April 24, 2020, the father told Ms. Spirito that he had been seeing the children all the time despite the court order requiring his access to be supervised by the society. He said that one time the mother brought M to his apartment to spend time with him while she went shopping. He also informed the society that he was regularly seeing the mother.

[74] On May 15, 2020, Ms. Spirito called the father to set up video calls with the children. The father advised her that he no longer wanted to see the children, that the society could keep them and he wanted to distance himself from the society. He said he would not participate in the child protection proceedings.

[75] Ms. Spirito spoke to the mother about what the father had said, including that she had brought M to see him on M’s birthday. The mother told Ms. Spirito that the father had said this because he wanted to get her in trouble. She said he was angry at her for leaving him. She acknowledged she had made a bad decision letting him see the children outside of the society’s supervision but she had been manipulated by him. She said she was tired of being “tormented” by the father.

[76] The mother subsequently satisfied the society she had separated from the father. The father left Canada in 2020 and stayed in Guyana for about one year.

[77] The children remained in the sole care and custody of the maternal grandfather until September 29, 2020.

[78] On September 29, 2020, on a status review application regarding both children, the children were placed in the joint care of the mother and the maternal grandfather. The children spent Monday to Friday with the mother and one or two nights on the weekend with the maternal grandfather. The order provided that access between the father and the children was in the society’s discretion. [13]

[79] The last final order in this case was made by Justice Paulseth on September 7, 2021 on a status review application. On consent, the children were placed in the care and custody of the mother, subject to society supervision for six months. In the Statement of Agreed Facts in support of this order (Tab 10 of the Trial Record), it was set out that the mother’s apartment was clean and well-maintained. It was agreed that the mother and maternal grandfather were getting along well and supporting each other. The mother was regularly attending counseling to address the family violence issues, her emotional regulation and anxiety. It was set out that the father had not seen the children in over one year.

[80] The court ordered access for the maternal grandfather a minimum of two overnights each week. The court also ordered that the father’s access shall be in the society’s discretion with regard to frequency, location and duration and there shall be no visits until he first meets with the society worker.

[81] One of the supervision terms was that the mother shall not permit the father to have any contact with the children without the prior written approval of the society.

[82] The mother advised Ms. Spirito the same day that the father was back in Toronto.

[83] Ms. Spirito met with the father on October 1, 2021. He told her he would not attend visits at the society’s office. He claimed to have married someone else in Guyana and said he had no intention of reuniting with the mother. [14] The worker made it clear to the father he was not to attend the mother’s home and the father said he understood.

[84] The children’s placement with the mother quickly broke down.

[85] On November 1, 2021, the society received a report that the father had returned to the mother’s home and there had been family violence by the father against her.

[86] Ms. Spirito interviewed M who disclosed that the father comes to her home every day. She told Ms. Spirito that she had last seen him that morning. She said the father sleeps in the mother’s bed and sometimes between them. She said he sometimes drives her to school. She stated the night before that the father had “beat mommy”. She elaborated that he had hit the mother with his hand on her face and pushed her hard. She said her parents were yelling. She said she was scared and crying.

[87] The society also received reports from the maternal grandfather and the maternal grandmother that the father was spending time at the mother’s home.

[88] The parents denied the allegations. The father said he had only attended at M’s school to drop off another child. The mother gave Ms. Spirito another story. She said she thought it was okay for the father to take M to school because the contact wasn’t taking place in her home.

[89] The children were removed from the mother’s care on November 2, 2021. The maternal grandfather’s home was designated as a place of safety.

[90] On November 3, 2021, the mother told Ms. Spirito that the father had only come to her home one time.

[91] On November 8, 2021, Justice Paulseth made a temporary without prejudice order placing the children in the care and custody of the maternal grandfather, subject to society supervision.

[92] On December 29, 2021, the father told Ms. Macchiusi he had made a mistake and there would never be domestic violence again.

4.5 2022 and 2023

[93] On January 11, 2022, the parents told Ms. Macchiusi that the domestic violence had started five years before. The father was jealous because he thought the mother was with someone else. The parents told her that the last incident of domestic violence was when the father pushed the mother and her glasses broke in August 2019.

[94] The mother discussed previous injuries with Ms. Macchiusi on this occasion. She told her that one time she had a mark on her forehead and the society had thought the father had hit her, but it was caused by M throwing a wooden block at her head. She explained to Ms. Macchiusi that another time she was injured when a pet rabbit jumped across her and she tripped and needed to get stitches.

[95] The children remained in the care of the maternal grandfather until March 30, 2022 when M alleged that the maternal grandfather had been hitting her. The children were removed from the maternal grandfather’s care. They were placed in the care of R.K., as a place of safety. [15] On April 4, 2022, the children were placed by Justice Paulseth in the temporary care and custody of the society on a without prejudice basis, with a placement motion to be argued on April 11, 2022. The children remained with R.K.

[96] On April 11, 2022, prior to the return of the motion, R.K. advised the society she was unable to care for the children. The children were taken to a foster home that day. The temporary order placing the children in the care and custody of the society was continued by Justice Paulseth that day.

[97] The children remained in the society’s care and custody until September 13, 2022.

[98] On April 4, 2022, the mother advised Ms. Macchiusi that she had broken her shoulder and collarbone. The mother said that she and the father were getting a television out of storage and the bed headboard fell on her.

[99] In late May 2022, the society investigated reports that the father was assaulting the mother.

[100] On May 30, 2022, Ms. Macchiusi met with the mother. Ms. Macchiusi attested that the mother did not agree with or deny any of the assault allegations. She observed the mother with a swollen jaw. The mother said allergies were causing this.

[101] The mother expressed concern to Ms. Macchiusi about how the father would react to these allegations. She agreed the father was controlling. She told Ms. Macchiusi she cannot go anywhere else because “it will make it worse”. She said the father is present when she speaks to her counselor and that she can’t ask for help over the phone. She asked the worker how she can keep her safe. They discussed a safety plan.

[102] Ms. Macchiusi then spoke with the father who said he and the mother swear at each other a lot. He admitted being controlling at times. He admitted there had been domestic violence on more than one occasion. He denied breaking the mother’s collarbone.

[103] On August 4, 2022, the mother advised Ms. Macchiusi she was going to leave the father. She said “she wanted to break the cycle”. She told Ms. Macchiusi she wanted to change her locks at home. At trial, the mother testified she just felt like changing her locks – it had nothing to do with the father. This is very unlikely.

[104] In August 2022, the father returned to Guyana. He advised the court that he did this to facilitate the children being returned to the mother’s care.

[105] On September 13, 2022, on consent, Justice Paulseth placed the children in the temporary joint care of the mother and the maternal grandfather, subject to society supervision.

[106] On October 11, 2022, M told Ms. Macchiusi that she was scared when the father lived at their home but she still wants him to live with them.

[107] On May 3, 2023, M told Ms. Macchiusi that when the mother drinks big people juice (which Ms. Macchiusi interpreted as alcohol), her mother yells at her.

[108] Ms. Macchiusi then met with the mother. She observed a burn on the mother’s shoulder. The mother said she was burnt from a kettle.

[109] On May 11, 2023, the mother invited the father to M’s birthday party at her home. This was in violation of the family court order. The mother said at trial, “I made an exception”. The mother told Ms. Macchiusi that she and the father had both been drinking. She said she told the father to leave and he slapped her. She said his ring hit her nose when he slapped her and left a gash. Then, the father’s daughter’s boyfriend tried to get the father to leave and they started fighting. Neighbours called the police. When the police came to her home, the mother did not cooperate with them. She said at trial she doesn’t like the police. The father was arrested and charged with assault.

[110] The mother changed this story at trial. She said the father accidently injured her when she was trying to stop the fight between the two men and the father pushed her out of the way. The father said he did this to protect her.

[111] The father remained in jail until June 14, 2023. On March 7, 2024, the charges were withdrawn against him. The society filed the transcript of this court appearance. It set out that the mother had avoided the service of the summons on her. Given these circumstances, the crown decided not to proceed. The mother justified her actions claiming the May 2023 incident had been a misunderstanding.

[112] At a court appearance on July 18, 2023, amid ongoing concerns about the family violence, the mother told the court she was in agreement with the children only living with the maternal grandfather. The mother’s access was subsequently supervised by the society.

[113] On July 20, 2023, the father played an audiotape for Ms. Macchiusi where the mother was screaming at the maternal grandmother and threatening to kill her. She was also heard yelling at M. The father told Ms. Macchiusi that the mother had been drinking. At trial, the father claimed to have no memory of playing this tape for Ms. Macchiusi.

[114] On July 26, 2023, Ms. Macchiusi met with the mother to discuss the audiotape. The mother told her she was working with her therapist about why she gets so angry sometimes.

[115] On August 25, 2023, the children were brought to a place of safety after allegations were made that the maternal grandfather had hit the children with a flyswatter and had caused bruises on M. The father called the police when he observed the bruises on M’s back. He initially withheld the children from the society summer student supervising the visit. He eventually agreed to the children attending the society’s office where they were interviewed.

[116] On August 30, 2023, Justice Paulseth made a temporary without prejudice order placing the children in the care and custody of the society. The children have remained in its care since then.

[117] On September 5, 2023, the mother told Ms. Macchiusi she had gone three days without drinking. She said she had been drinking daily before and was trying to cut down to every 2-3 days.

[118] Starting in October 2023, the father went several weeks without seeing the children. He testified that he did not want to see the children at the society’s office.

[119] On November 21, 2023, Ms. Macchiusi met with the mother. Ms. Macchiusi observed that the mother’s left cheek was swollen. The mother claimed it wasn’t swollen.

[120] On five occasions in December 2023, the father waited in the society’s reception area when the mother and the children came out of their visits. This was in violation of the father’s criminal release terms.

4.6 2024

[121] On January 22, 2024, the society gave the parents a list of expectations, including an expectation that the parents not have contact with each other during visits. The parents did not comply with this expectation.

[122] On March 12, 2024, the mother was observed waiting for the father after his visit. She said she drove the father to the visit because the father had a broken foot. This was in violation of the father’s criminal release terms and the society’s direction that the parents were to have no contact with each other at visits.

[123] On March 14, 2024, a society worker observed that the mother had a swollen lip and cheek and was flinching in pain. The mother blamed this on her make-up.

[124] On March 15, 2024, the maternal grandfather called the police arising from an alleged incident of family violence by the father against the mother from the day before. The father was charged with assaulting the mother. This incident happened just one week after the previous assault charges from May 2023 had been withdrawn.

[125] On March 15, 2024, the mother told Ms. Macchiusi she did not want to go into detail about the father’s assault and that it was none of anybody’s business. She told her she did not want to go home until the locks were changed and that the father knows her every move.

[126] The mother confirmed at trial that on March 14, 2024 she had argued with the father, he had slapped her in the face and she had left to live with the maternal grandfather.

[127] The police observed marks under the mother’s right eye when they investigated the family violence incident on March 15, 2024. The mother continually told officers to get the father out of her house and that she had had enough of him. She told the police this had been an on-going cycle of abuse and that she has been through this with the police several times. She told the police that the father has been staying with her on and off, but most recently, had been staying with her since January 2024. The father was contacted by the police. He denied being in the mother’s home.

[128] The father avoided an outstanding warrant for his arrest arising from these charges for one month. The father claimed to have had no knowledge of the warrant. His evidence was not credible. The police and a society worker had contacted him about the charges. Further, the father stopped coming for visits after March 12, 2024 and would not respond to Ms. Macchiusi’s requests to contact her. The father provided an explanation (for the first time at trial) that he had suffered multiple bodily injuries, was doped up on Percocet and could not come to the visits. The more likely explanation is that he was avoiding arrest.

[129] These charges remain outstanding. The father has release conditions to have no contact with the mother, or to be within 100 meters of her except through a family court order or through counsel.

[130] On April 8, 2024, M told Ms. Macchiusi that when she used to live at home, her parents used to fight. She said, “daddy used to hit mommy and they used to scream and fight”. She said she told her parents to stop.

[131] The mother has consistently attended access. She attends once each week for three hours. The maternal grandfather often attends visits with her. The court will review the quality of the access visits in the access section later in this decision.

[132] The children have been in the care of the society cumulatively for over 13 months during the past five years.

Part Five – Disposition

5.1 Legal Considerations

[133] The society has brought this application pursuant to section 113 of the Act.

[134] The society filed, and the court considered, the society’s plan of care pursuant to section 100 of the Act. That plan is consistent with the position it took in this case.

[135] Section 114 of the Act provides that where a status review application is made under section 113, the court may, in the child’s best interests, vary or terminate the original order made under subsection 101 (1), make a further order under subsection 101 (1) or make an order under section 102 of the Act.

[136] Subsection 101 (1) of the Act provides that where a court finds that a child is in need of protection it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.

[137] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[138] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act, as set out in subsection 1 (1), which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1 (2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available. See: Children’s Aid Society of Toronto v. H.F., 2020 ONCJ 526, per Justice Roselyn Zisman.

[139] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or section 102 of the Act in the child’s best interests. These read as follows:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

Supervision order

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

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[140] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.

[141] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[142] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.

[143] In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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

(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.

[144] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a mother, provided that the standard used is not contrary to the child’s best interests. See: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

[145] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child’s needs and perspective. The time consideration, like all considerations in child protection matters, should be child focused. See: Children’s Aid Society of Toronto v. D.S..

[146] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of the child from their care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.).

[147] A parent’s repeated pattern of partnering with physically abusive partners, which has exposed a child to domestic violence, is a ground for a protection order. See: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6; Children’s Aid Society of Niagara v. M.B. and D.J., 2023 ONSC 592.

[148] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm. See: Children’s Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 (O.C.J.), aff’d 2005 43289 (ON SC), [2005] O.J. No. 4718 (S.C.), aff’d 2007 ONCA 474, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 462); Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, [2009] O.J. No. 5422, (Ont. C.A.).

[149] Failure to leave an abusive relationship may be a reason for placing the children in extended society care: See: CCAS v. I.B. et al., 2020 ONSC 5498, at para. 165; The Children’s Aid Society of Ottawa v. K.D., 2021 ONSC 7147.

[150] In Catholic Children’s Aid Society of Hamilton v. I.B., 2020 ONSC 5498, Justice L. Bale wrote the following about domestic violence:

Domestic Violence

162 The Ontario Legislature has recognized that domestic violence is a significant factor in determining the best interests of children, as reflected in paragraph 24(4) of the Children’s Law Reform Act. While the Child, Youth, and Family Services Act, specifically references violence against a child or spouse only in relation to the supervision of access, it is abundantly clear that consideration of whether a person has at any time committed violence or abuse against their spouse is a relevant consideration in child protection proceedings: Children’s Aid Society of Ottawa v. L.J., 2014 ONSC 1675 at para. 17.

163 Children of parents in abusive relationships have been found to be in need of protection by many courts, and the negative impact of children’s exposure to domestic violence is well-documented, including for example: insecure attachments, aggressive and antisocial behavior, poor academic performance, propensity for delinquency, peer violence, conflict and suicidality: Children’s Aid Society of Hamilton v. C.G. and S.B. 2013 ONSC 4972 at para. 157.

164 Domestic violence is not limited to physical assault: it embraces a range of behavior which includes mental and emotional abuse, with implications that spill-over to children. The environment in such households is frequently chaotic, volatile, escalating, charged and degrading and the exposure of children to such an environment on a pattern basis is devastating to their development: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2009 ONCJ 70 at para. 75.

165 In order to militate against such a finding the court may require evidence demonstrating that the abused parent understands the cycle of abuse and has broken the pattern, for example by seeking counselling, leaving the relationship and moving to a safe location. An abused parent’s continuing failure to leave an abusive relationship may well be a reason for placing the children in extended society care: Children’s Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 at para. 100, Children’s Aid Society of Ottawa v. E.L., 2019 ONSC 3724 at para. 94. The child’s opportunities for a permanent and stable placement should not await the time that might be required to establish that the risk to the child has been satisfactorily addressed: Children’s Aid Society of Toronto v. S.A.C., supra.

[151] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).

2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).

3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[152] Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[153] In Children’s Aid Society of Toronto v. S.B., 2014 ONCJ 518, this court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:

[112] The major protection issue is the mother’s ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

5.2 Continuing Need for a Protection Order

[154] The court finds that a protection order is necessary to protect the children in the future.

[155] The court makes the following findings of fact based on the evidence set out in Part 4 above:

a) The father has consistently perpetuated family violence against the mother. b) The family violence has been significant. c) The society and the court probably know only a portion of the family violence in the parents’ relationship as the parents are secretive and dishonest about this. The society has observed the mother with many injuries during interviews. Perhaps one or two of the mother’s explanations for these injuries might have been accepted. However, given the volume of her injuries, the pattern of family violence, the mother’s need to protect the father and her minimization of family violence, the more likely explanation is that some, if not all, of these injuries are a result of family violence perpetrated by her against the father. d) The family violence has not abated. The father was charged with assaulting the mother on March 15, 2024, only one week after his previous assault charge had been withdrawn. e) The children have been exposed to much of the family violence. f) M in particular has suffered emotional harm from this family violence. She expressed her distress at observing it to society workers. g) The children remain at risk of significant emotional and physical harm if they are exposed to the family violence between their parents. According to the mother, in May 2023 she suffered physical injuries when she intervened in a physical fight the father was having with another man. The children are at real risk of being similarly caught in the crossfire of physical confrontations. h) The father has a long-standing history of physical violence and a lack of emotional regulation. i) The children have endured significant instability due to the family violence. They have had six changes in placements since September 7, 2021. j) The mother has been unable or unwilling to extricate herself from her relationship with the father. k) The father frequently breaches criminal release terms and family court orders to stay away from the mother. The mother knowingly aids the father in breaching these orders even though they have been made for the protection of her and the children. l) The parents demonstrated no insight into the impact of the family violence on the children. m) The parents minimized the family violence. n) The parents externalized responsibility for the family violence. It is striking that the mother attributes the family violence to the society not giving the father adequate access with the children. o) The mother has prioritized her relationship with the father and his needs to the children’s best interests. p) The risks of the children’s exposure to family violence and suffering emotional and physical harm remain high. q) The mother has frequently used alcohol to cope with her stress. The evidence indicates that her emotional regulation breaks down when she is drinking. r) The risks to the children that led to them being placed in society care remain just as high today. The parents have not addressed the family violence issue in any meaningful way.

5.3 The Children

[156] The descriptions of the children by all the witnesses were consistent.

[157] M was described as a happy, healthy and loving child. She is playful. She loves gymnastics. She is sometimes shy at the start with strangers but warms up quickly. She was described as friendly and loyal.

[158] MM was described as a very outgoing and engaging child. She is bright and curious. She is sweet, affectionate and loving. She likes to dance.

[159] There was no dispute that the children have consistently stated that they want to live with the mother or with the maternal grandfather. They would like the father to live with them.

[160] The children love the parents and the maternal grandfather. They are excited to see them and to spend time with them.

[161] The court placed considerable weight on M’s statements to Ms. Spirito and Ms. Macchiusi for the following reasons:

a) Many of her statements were corroborated by police records and admissions made at the time by the mother. b) Her statements were very balanced. She expressed her concern about the family violence and also spoke about her love for her parents and her desire for the family to be together. c) Her statements about witnessing family violence were for the most part contemporaneous to events. d) She has a close and open relationship with both workers. e) The workers described her as being very forthcoming with them. f) The workers are professionals experienced in interviewing children. g) She was interviewed privately. h) The workers asked her open-ended questions. i) The workers made their notes of their interviews with her within 24 hours. j) The workers recorded their questions and her answers in quotes in their notes. k) There was no evidence that her statements were improperly influenced. l) There was no reason for her to fabricate her evidence. m) She was described as a mature child for her age.

5.4 Services Provided to the Family

[162] The parents claimed the society did nothing to assist the family. The evidence informed the court otherwise.

[163] The society attempted multiple combinations of placements to keep the children with their family. The mother was given multiple opportunities by the society and the case management judge to succeed. All of these placements broke down.

[164] The society has done the following for the children and the parents:

a) It connected the parents to programs to address the family violence and their relationship issues. b) It stayed in touch with the parents’ service providers to get updates and to determine how it could support the parents. The mother was involved with Humewood House, the Jean Tweed Centre, Woman’s Habitat and Rexdale Women’s Center. c) The father took the society’s Caring Dads program in 2018. d) The parents participated in the society’s Therapeutic Access Program in 2018. e) It connected the mother with Farah Family Solutions in 2022 for family violence counseling. The mother attended this counseling until December 2023. She has stopped. She told the court it is not useful. f) The father was referred to an individual counselor and attended for this counseling. g) From September 2022 until July 2023 the society provided the mother with financial assistance. h) During the same time, the society arranged for M to be transported to and from school by a school bus. i) It worked on safety planning with the mother. j) It provided the children with a Children’s Service Worker. k) It has arranged counseling for the children.

5.5 Community and Family Plan

[165] The society has met its obligation to explore alternate family and community plans for the children.

[166] The society supported the children being placed with the maternal grandfather. He has indicated he cannot plan for the children.

[167] The society temporarily placed the children with R.K. in April 2022. She withdrew her plan for the children.

[168] The society’s kinship department has been unable to find any other family or community placements.

[169] The parents have not proposed any other family or community placements.

5.6 The Plans of Care

[170] The society’s plan is to place the children in its extended society care and seek an adoptive home for them. It hopes to place the children together in a culturally compatible home.

[171] The mother’s plan is for the children to be placed in her care, preferably with a custody order pursuant to section 102 of the Act. She wants to have no further involvement with the society. She feels the society has torn her family apart.

[172] The mother has appropriate housing for the children. She knows the school in the area. In the past she has been able to meet basic needs of the children, such as feeding, hygiene and having M attend school.

[173] The father’s role in the mother’s plan was not well explained by the mother. She said she wants to co-parent the children with him and for him to have generous access. She did not want the court to place any restrictions on his access with the children.

[174] The mother said she has a good relationship with the maternal grandfather and the maternal aunt. She said she would arrange generous access between them and the children. She wants the children to have positive relationships with all her family members.

[175] The father supports the mother’s plan. He wants unrestricted access with the children.

5.7 Analysis

[176] The evidence is overwhelming that it is in the children’s best interests to be placed with the society in extended society care for the following reasons:

a) The risks of the children suffering physical or emotional harm if placed with the mother remain unacceptably high due to exposure to family violence. Much of the family violence has taken place in their presence. M, in particular, has been placed in the middle of her parents’ fights. b) The father has a long history of violence. His criminal record shows multiple charges and convictions for violence. He has perpetrated considerable violence against the mother in the presence of the children. He lacks emotional regulation and is easily angered. He is unlikely to change and is a danger to the mother and the children when he becomes upset. c) The mother has been unable or unwilling to extricate herself from this abusive relationship, even when it has been evident that the continuation of this relationship compromises her ability to parent the children. d) The mother has been unable or unwilling to protect the children from family violence. There is no reason to believe this will change. She has often refused to cooperate with police investigations and criminal prosecutions of the father. e) After seven years of the cycle of family violence, acknowledgement of the family violence by the mother and subsequent minimization of the family violence by her, it is unlikely this dynamic will change. f) The mother no longer acknowledges the extent of the family violence by the father. She has disengaged from family violence counseling with Ms. Farah, stating it was not useful for her. She feels she has a great relationship with the father. She believes everything will be fine if the society just leaves them alone. g) Previous placements with the mother alone, or with the mother and the maternal grandfather jointly, have failed. The mother has been unable to comply with supervision orders. The last placement with her on September 7, 2021 lasted less than two months. The society had trusted her to stay away from the father and she breached the supervision order by allowing him to see the children as soon as he returned from Guyana. She breached the society’s and the court’s trust in her. There is no evidentiary basis to trust her in the future. h) The parents have prioritized their own needs and relationship to the children’s needs. Children require caregivers who will place their interests first. i) The parents show no insight into the impact and risks of family violence on the children. Instead, they have chosen to externalize blame for the family violence on the society. This makes them poor candidates to change. j) The parties showed no insight into why the society was involved, aside from saying “domestic violence”. The mother said, “I still don’t understand what the concerns are”. k) The mother has been coping with her stress by consuming alcohol. Her emotional regulation has been compromised when she is drinking. She has admitted to having difficulties regulating her anger. To her credit, she is attending alcohol counseling. [16] l) The children have already endured considerable disruption and instability in their lives due to the dysfunction in the parents’ relationship. They have been subject to child protection proceedings for most of their lives. They have had six different placements since November 2021. They need permanency and stability. The mother cannot provide them with this. m) If the children were placed with the mother it is likely the placement would soon break down because of a repeat of the family violence and the children would be disrupted yet again. n) The society’s plan will best meet the children’s need for continuity and stability. o) The society’s plan to place the children for adoption will best meet their physical, mental and emotional needs. p) The society’s plan will best meet the children’s physical, mental and emotional level of development. q) The society’s plan will better address the children’s needs than the plan proposed by the mother. It is the only viable plan before the court.

[177] Even if the children were returned to the care of the mother, it would have to be pursuant to strict terms of supervision. For the court to make a supervision order, it would need to be confident that the mother would comply with the order. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196, [2004] O.J. No. 3889 (OCJ) and this court’s comments in Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227.

[178] The evidence informs the court that neither the father nor the mother would comply with supervision orders. They have frequently breached supervision orders regarding the father’s contact with the children. The father continues to breach criminal release conditions to have no contact with the mother. The mother facilitates this. The father’s criminal record shows frequent charges and convictions for failure to comply with court orders. This has become an entrenched behaviour.

[179] The parents deeply distrust authority. They have created a false narrative that the society is to blame for all their relationship issues. They are dishonest and deceptive and feel this is justified. The father is often verbally abusive and demeaning to society workers. The court has no confidence that the children can be adequately protected from these significant protection risks through a supervision order.

[180] The least disruptive alternative, consistent with the children’s best interests, is to place them with the society in extended society care.

Part Six – Access

6.1 Legal Considerations

[181] Subsection 105 (4) states that where the court makes an order that a child be in extended society care, any order for access is terminated.

[182] Subsection 105 (5) sets out that in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court may not order access to [ such ] a child unless it is satisfied that the order would be in the child’s best interests. The court is to consider the relevant best interests considerations set out in subsection 74 (3) of the Act.

[183] Subsection 105 (6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in extended society care. These are:

a) Whether the relationship 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] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 the Court of Appeal wrote the following:

a) The changes to the access test are significant (par. 47). b) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48). c) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities (par. 49). d) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49). e) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49). f) Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests (par. 49). g) The court should reference the best interest considerations in subsection 74 (3) of the Act in making its decision (par.53). h) The “presumption against access” to “Crown Wards” test no longer exists (par. 53). i) The changes to the access test are significant (par. 47). j) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48). k) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities (par. 49). l) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49). m) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49). n) Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests (par. 49). o) The court should reference the best interest considerations in subsection 74 (3) of the Act in making its decision (par.53). p) The “presumption against access” to “Crown Wards” test no longer exists (par. 53).

[185] The Ontario Court of Appeal in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, set out the following regarding extended society care access:

a) Case law preceding the implementation of the Act that provided a rigid definition of beneficial and meaningful is no longer applicable. This includes the requirement that access must be “significantly advantageous” for the child. b) In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future. This would include the prospect of an openness order. c) The child’s best interests clearly are not static. This is confirmed by the wording of subsection 74 (3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child’s development of a positive relationship; (iii) continuity in the child’s care and the possible effect on the child of disruption of that continuity; (iv) 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. d) There is simply nothing in the plain wording of the Act to suggest that access should be decided without reference to the future. e) The court can consider the future benefits to a child of having their medical and family history more readily available if an access order is made. f) The “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests. g) The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. h) A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies.

[186] The court concluded with these comments at paragraph 54 of its decision:

The CYFSA requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes.

[187] Subsection 74 (3) of the Act (set out above) sets out best interests factors for the court to consider in determining access. The court has considered these factors in making this decision.

[188] The phrase “impair the child’s future opportunity for adoption” means more than just impairing a child’s opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717; Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489; Children’s Aid Society of Toronto v. J.A.L., 2024 ONCJ 146.

[189] In Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, the court set out the following attributes of persons who may impair a child’s future opportunities for adoption:

[166] 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.

[167] 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.

[168] 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.

[169] 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.

[190] A fifth attribute was added by Justice Roselyn Zisman in Catholic Children’s Aid Society of Toronto v. A.P., 2019 ONCJ 631, being: a person with a mental health condition, substance abuse issues, transience or chaotic lifestyle. Persons with this background may be difficult to deal with and their personal issues may result in there being difficulty in making arrangements with them for contact and as a result dissuade adoptive parents.

[191] The attributes set out in A.F. and in A.P. were accepted and applied as appropriate considerations in an appeal decision in JFCS v. E.K.B., 2019 ONSC 6214.

[192] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters, or limited annual visits won’t, and will be ordered. See: Children’s Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children’s Aid Society of Toronto v. S.B., 2013 ONSC 7087; Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489; Children’s Aid Society of Toronto v. J.A.L., supra.

[193] The challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the child in their new adoptive home. See: Children’s Aid Society of Ottawa v. J.B., 2017 ONSC 1194.

[194] The distinction between who has been granted an access order (the access holder) and who is the person with respect to whom an access order has been granted (the access 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.

[195] Subsection 105 (7) of the Act recognizes the importance of the distinction between who is an access holder and who is an access recipient, by requiring such identification when making an access order to child who is placed in extended society care.

[196] The best interests consideration of impairment of the opportunity to be adopted takes on heightened importance when assessing whether a person should be made an access holder. The court might only order the person to be an access recipient (if access is ordered at all) if there is a concern that they might frustrate, delay or undermine the adoption process. See: Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, [2014] O.J. No. 2939 (OCJ); Catholic Children’s Aid Society of Toronto v. M.C., 2023 ONCJ 527; Catholic Children’s Aid Society of Toronto v. K.G., 2021 ONCJ 621; Children’s Aid Society of Toronto v. J.A.L., supra.

[197] The jurisprudence has established that there are qualitative differences in the amount of contact a party will have with the child before and after an extended society care order is made. The granting of an extended society care order means the end of any effort to return the child to the parent’s care. Part of the reason for access prior to an extended society care disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After an extended society care disposition, the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. See: Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866, affirmed on appeal, 2020 ONSC 4993; Children’s Aid Society of Algoma v. L.G., 2020 ONCJ 647; Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489: Children’s Aid Society of Toronto v. S.C. K.M., 2021 ONCJ 347; Family and Children’s Service v. B.S., 2019 ONSC 6577.

[198] In C.A.S. v. C.F., 2020 ONSC 3755, Justice Heather McGee discussed supervised access in the child protection context at paragraphs 32 to 34 as follows:

[32] Access is the right of a child. As stated by Justice Blishen in V.S.J. v. L. J.G., “there is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances.”

[33] A child’s right to access with a parent invites a further layer of complexity in a child protection proceeding. Court must engage in a careful balancing of the benefit of a parent’s care, the specific risk of harm to the child while in that parent’s care, and the measures in place for risk reduction.

[34] Supervised access is a critical tool in that engagement. Supervision provides a safer bridging period during which parental deficits can be assessed and whenever possible: repaired. Supervised access is clearly indicated when parenting judgement is impaired, there is a history of violence and other harmful behaviour directed toward the primary caregiver and/or evidence of abuse or neglect of the child.

[199] This court endorsed these principles in Catholic Children’s Aid Society of Toronto v. C.P.I., 2020 ONCJ 304.

6.2 Analysis

6.2.1 The Maternal Grandfather

[200] The agreement between the society and the maternal grandfather for his access with the children was filed with the court. The agreement was supported by a Statement of Agreed Facts as between the society and the maternal grandfather. These facts do not bind the parents.

[201] The OCL supported the court endorsing the agreement.

[202] The parents did not oppose the agreement. However, they do not want the maternal grandfather to have more access rights to the children than they have.

[203] The court is mandated to make orders in the children’s best interests. It is not bound by the agreement. However, courts wish to encourage parties to resolve child protection matters without litigation. Parenting orders are usually more sustainable and better for children when agreed to, as opposed to being imposed on the parties. Here, the maternal grandfather and the society were represented by senior counsel. In its application, the society sought a minimum of four annual in-person visits for the maternal grandfather. The parties negotiated that there will be a minimum of six in-person visits every year. This is a reasonable compromise and is in the children’s best interests given the following factors:

a) The maternal grandfather has been a primary or secondary caregiver for the children for a significant portion of their lives. b) The maternal grandfather and the children have a strong bond with each other. The children love him. c) The maternal grandfather’s visits with the children are positive. They are excited to spend time with him. d) The children’s relationship with the maternal grandfather is beneficial and meaningful for the children. e) The maternal grandfather supports the society’s plan to place the children in extended society care for the purpose of adoption. f) The maternal grandfather is cooperative with the society. g) The maternal grandfather is unlikely to undermine any adoption placement. h) The maternal grandfather is an important connection to the children’s maternal family and their cultural identity. i) Access with the maternal grandfather will ensure the children maintain their important relationships with the maternal grandmother and the maternal aunt. j) The terms of the agreement should not impair the children’s future opportunities to be adopted. k) Making the maternal grandfather an access holder will ensure the preservation of these important relationships for the children by permitting him to bring an openness application if the society serves a Notice of Intent to place the children for adoption.

[204] The court finds it is in the children’s best interests to incorporate the agreement into the final order.

6.2.2 The Mother

[205] The society seeks an order that the mother’s access with the children be in its discretion, including the need for supervision. It proposes that the mother have a minimum of four in-person visits each year.

[206] The mother seeks generous unsupervised access with the children including overnights.

[207] The OCL seeks a minimum of 12 visits between the mother and the children each year.

[208] The society workers set out many strengths of the mother in their evidence, including:

a) She and the children have a strong bond and attachment. b) She and the children are loving and affectionate with each other. c) She exercises her access consistently. d) She comes prepared for visits to make them special for the children. She brings appropriate foods and plans activities with the children. She brings clothing and toys for the children. e) She is actively engaged with the children during her access visits. f) She is patient with the children and able to calm them if they become upset. g) She was able to meet many of the children’s needs when they were in her care. They were clean, well-fed and M attended school regularly. h) She is a strong advocate for the children and asks society workers appropriate questions about their development.

[209] The parties all submitted that the children’s relationship with the mother is beneficial and meaningful for the children. The court agrees.

[210] The court considered that the children want to live with the mother and if they cannot, they want to spend as much time with her as possible.

[211] These positive attributes have to be balanced against the following concerns about the mother:

a) She cannot be trusted to keep the father away from the children. The children would be exposed to family violence that creates an unacceptable risk of physical and emotional harm for them. b) The mother continues to contact or engage with the father around access visits contrary to family court orders and criminal release terms for the father. She has breached court orders and has facilitated the father breaching court orders throughout this case. c) The mother asked the society for community visits with the children in late 2023. She was told by Ms. Macchiusi that she needed to demonstrate she would have no contact with the father for two or three visits. Despite the incentive of community access, the mother could not meet this simple expectation. d) She has made promises to the children about seeing the father that she cannot keep. e) The mother cannot be trusted to inform the society if the father tries to engage with her or the children. The mother does not trust the society. She made the following statements at trial: i) “We were separated because of the society”. ii) “My relationship with the father is not difficult. The society is the problem”. iii) “I’m tormented by the society, not by the father”. iv) “The domestic violence wouldn’t be ongoing if not for society being involved with my family”. v) “The society messed up my family, my children”. f) The mother was asked if she would support the children being placed for adoption if an extended society care order was made. She answered, “of course not”. She was then asked if she would support an adoption placement for the children. She answered no. This is an important consideration in determining if access with the mother, or the form of access with the mother, will impair the children’s future opportunities for adoption.

[212] Unless her access with the children is strictly regulated, the concerns about the mother, as set out in this decision, and her lack of support for any adoption placement may dissuade prospective adoptive parents from coming forward and impair the children’s future opportunities for adoption. This is a very relevant factor in this case.

[213] The court’s challenge is to make an access order that preserves the positive factors of the children’s relationship with the mother while not obstructing and delaying their opportunity to have a stable, secure and permanent home.

[214] The court will order that the mother’s access be fully supervised to ensure the protection of the children from family violence. It is not in the children’s best interests to make that a discretionary decision for the society.

[215] The children’s primary family relationship is with the mother. The society workers struggled with answering why the mother should have fewer in-person visits with the children than the maternal grandfather.

[216] The society’s adoption worker expressed her concern that too many family visits might discourage potential adoptive families from coming forward. This is a legitimate concern. The court finds that the frequency of access sought by the OCL (and more expansive access sought by the mother) would impair the children’s future opportunities for adoption and is not the best interests of the children.

[217] The court finds that the concern about too many family visits can be addressed by giving the society the discretion to have all, or some, of the maternal grandfather’s and mother’s visits together. They are presently doing this.

[218] The court finds that it is in the children’s best interests for the children to have a minimum of six in-person visits with the mother each year. The court will set out terms and conditions to ensure that these visits are positive and safe for the children. The mother will not be permitted to have any contact with the father around these visits.

[219] The court will not make the mother an access holder. She does not support any adoptive placement. She is hostile to the society and feels the children have been unjustifiably removed and kept from her. She is dishonest. She is essentially a proxy of the father at this stage. There is a risk that she will undermine or delay any adoption placement for the children if she is given the right to bring an openness application. Making her an access holder runs the risk of dissuading potential adoptive parents from becoming involved and creating instability for the children.

[220] The children will be made the holders of access to the mother. The mother will be the access recipient.

6.2.3 The Father

[221] The society seeks an order of no access between the children and the father.

[222] The father seeks an order for generous access to the children. He asks to be made an access holder. The mother supports this position.

[223] The OCL asks that the father have a minimum of four fully supervised in-person visits with the children each year. She asks that the children be the access holders and that the father be the access recipient.

[224] The society workers set out strengths of the father in their evidence including:

a) He loves the children and the children love him. b) He is affectionate with the children and they are affectionate with him. c) He praises the children. d) He brings treats and toys for the children to visits. e) He plays well with the children and he actively engages with them. f) The children are always excited to see him. g) The children ask when they can see him. h) He asks questions and makes recommendations about the children’s care.

[225] The parties agreed that the children’s relationship with the father is beneficial and meaningful for the children.

[226] However, there are significant concerns about the father’s access with the children that the court must consider in conducting its best interests analysis, including:

a) He has an extensive criminal record dating back to 2001. [17] He has several convictions for violent offences and breaches of court orders. His involvement with the criminal justice system is ongoing. He is facing charges that he assaulted the mother on March 14, 2024. It is very concerning that there is a new family violence incident when the father knew the eyes of the court would be on him for this trial. b) He has exposed the children to considerable family violence against the mother. c) He demonstrates no insight into the impact of the family violence on the mother and the children. He apologized at the outset of his testimony for the 2017 assault of the mother. He claimed that everything else “is allegations that flowed from this charge”. This ignores the reality of his subsequent conviction on September 3, 2019 for assaulting the mother and other charges for assaulting the mother, including the present charge. The father only paid lip service to acknowledging his history of family violence. When asked about his recent assault charge involving the mother, the father stated it has nothing to do with this case. d) He claimed that the children were suffering emotional harm from being kept from their parents. He would not acknowledge that he bore any responsibility for any emotional distress the children have. When asked about a comment M made that she was scared when the parents fought and how the fighting affected her, the father’s response was “no comment”. e) He has gone long periods of time without seeing the children. He has often disappeared from their lives without providing any explanations to them for his absence. This confuses the children. He has not had a consistent and stable relationship with the children. f) He often does not reply to communications from society workers about arranging visits with the children. g) At times, he has chosen not to see the children instead of seeing them at the society’s office. He has prioritized his own pride and interests to the children’s need to have a consistent relationship with him. h) He does not follow society direction not to attend at the society offices during the mother’s visits. He rationalizes that he has other business in the building and the society does not own the building. i) He has breached family court supervision orders to not contact the children without the society’s supervision. He has frequently breached criminal court orders to have no contact with the mother. j) He is often hostile and insulting to society workers. He has acted in this manner in front of the children. For instance, at his visit on September 26, 2023 he told the children that the society makes their lives miserable. He told the children that Ms. Macchiusi is not their friend. He has no insight into how this might be destabilizing for the children. k) On December 12, 2023, after a visit, the father spoke to a society access supervisor in a raised voice. He told her he objected to her watching him wave goodbye to the children. He said it bothers him and he fears for his life. He told her, “if it’s that she likes him, he’s not into white girls”. He told the worker, “the next time I will call the cops because I fear for my life”. l) He has generally been ungovernable by the courts and by the society. He justifies his breaches of orders because he feels he is being unfairly discriminated against. m) He remains hostile and disdainful of the society. He often yells at workers and tells them they don’t know how to do their jobs. n) The society’s adoption worker testified that she would need to disclose the father’s criminal record and history of family violence to prospective adoptive parents. She said that in her experience, prospective adoption parents do not want to be engaged with someone who might pose a risk to the children’s or their own physical safety. o) He was asked if he would support the children being adopted if they were placed in extended society care. He said no. He was then asked if he would support an actual adoptive placement. He said no.

[227] The court gave considerable consideration to endorsing the society’s position that the father have no access with the children because of these factors.

[228] The court finds that the access orders sought by the father and the OCL would impair the children’s future opportunities for adoption. This is a relevant factor in this case.

[229] The court considered the best interests factors set out in subsection 74 (3) of the Act, including the importance of continuity for the children and the risk of disruption to that continuity if access takes place. It considered the effects of delay in providing the children a permanent home if access is ordered and the risks of harm to the children of exposing the children to conflict from the father during access.

[230] The court considered that while the mother deserves her share of blame, the father has been the toxic figure at the centre of the children’s instability.

[231] However, the court finds that some access to the father is in the children’s best interests for the following reasons: [18]

a) The relationship with the father is beneficial and meaningful for the children. b) The children have expressed consistent views and preferences that they want to have access with their father. While they are young and their views are not determinative, this is an important best interests factor. c) Unlike the case with younger children, the children have a long and established relationship with the father. The court considered these emotional ties and the potential emotional risk of harm to the children of totally eliminating the father from their lives. It is important to them to know that the father loves them and has not abandoned them. d) The positive features of the father’s access with the children set out in paragraph 224 above. e) The father is their only connection to their paternal family. He is one-half of their identity. f) The father is a connection to their cultural and linguistic heritage. g) The children will have readier access to relevant medical information and their family history if they maintain some contact with the father.

[232] It is in the children’s best interests that the father’s access with them be very limited and carefully controlled to ameliorate the risks of access set out above.

[233] The court considered and rejected the idea of ordering a minimum number of in-person visits for the children with the father. The father has been too hostile to the society and inappropriate with the children at his in-person visits. His conduct is very challenging for the society to control. He does not feel bound by court orders or the directions of the society. He has been too inconsistent with his visits. This is at times confusing and destabilizing for the children.

[234] The court will order that the children’s access to the father be in the society’s discretion. It must be supervised at all times. At a minimum, the children shall have two video calls with the father every year. The society will have the discretion to terminate any video call if in its view, the father acts inappropriately. If the father misses two video calls, the society will have the discretion to suspend future video calls. There will also be an exchange of cards, photos and letters between the father and the children, a minimum of twice each year.

[235] The society’s adoption worker deposed that in her experience, prospective adoptive parents are more comfortable with this form of access when parents do not support an adoption plan for the children. The court finds that this access order is unlikely to impair the children’s future opportunities for adoption.

[236] The children shall be the access holders and the father shall be the access recipient.

Part Seven – Conclusion

[237] A final order shall go on the following terms:

a) The children shall be placed with the society in extended society care. b) Access by the children to the mother shall be fully supervised by the society or its professional designate. Supervision of her access should not be delegated to any of the mother’s family members. c) The frequency, duration and location of the mother’s access shall be in the society’s discretion, with a minimum of six in-person visits each year, with the following conditions: i) She shall have no contact with the father during any access visit. ii) She shall ensure the children have no contact with the father during any access visit. iii) She shall not inform the father of the time and date of any access visit. iv) She is not to come or leave any access visit with the father. v) She is not to speak negatively about the society or its workers to the children during visits. d) The society may suspend any access visit if the mother breaches any of these conditions. e) The children shall be the access holders and the mother shall be the access recipient. f) The children shall have access to the father in the society’s discretion. g) The father’s access shall be supervised by the society or by its professional designate. h) The children shall have a minimum of two video calls each year with the father. The society shall have full discretion to determine the dates, times and duration of these calls. It will also have the discretion to terminate any call if in its view the father acts inappropriately on the call. The father is not to disparage the society or its workers to the children during these calls. If the father misses two video calls, the society has the discretion to suspend any future video calls. i) In addition, the children and the father may exchange cards, letters and photos a minimum of twice each year. They are to be first delivered to the society who may vet them to determine if they are appropriate. j) The society has the discretion to determine the times, dates, location and frequency of any other access by the children to the father, in addition to the minimum access set out above. k) The children shall be the access holders and the father shall be the access recipient. l) The children shall have access with the maternal grandfather on the following terms and conditions: i) There shall be a minimum of six visits each year. ii) The society shall have discretion over the level of supervision and the supervisor, if any. The current plan is for the visits to be supervised by society workers. iii) The dates and times of the visits shall be in the society’s discretion. iv) The society shall have discretion over the location and length of the visits with the current plan being that the visits will take place at the society’s office and be three hours in length. v) The society will cover the cost of a taxi to transport the maternal grandfather to the visits. vi) When reviewing the access and considering whether to make any changes to the access plan, the society shall consider the children’s emotional and social well-being, including how they are doing during the visits, after the visits, at school and the foster home, and shall consider the children’s views and preferences. The society shall specifically consider whether to have a visit at another location (such as the maternal grandfather’s home) in extreme circumstances (such as the health of the maternal grandmother) if it is in the children’s best interests. m) The maternal grandfather and the children shall be the access holders and the access recipients. n) The society may require that all, or some, of the mother’s and maternal grandfather’s visits take place at the same time. This is the current plan. o) The maternal aunt may attend visits as long as the maternal grandfather or the mother informs the society in advance of the visit.

[238] The court realizes this decision is disappointing to the parents. The court was left with no doubt that they love the children very much and want what they feel is best for them. However, the totality of the evidence informed the court that the orders made are in the children’s best interests.

[239] The parents still have an important role with the children moving forward. It is really important that the parents support the children in their transition into a permanent placement. If they can succeed in that role, the children will have their best opportunity to reach their considerable potential.

[240] The court thanks counsel for their organized presentation of the case. It also thanks the parents for conducting themselves in a civil and respectful manner in very stressful circumstances for them.

Released: May 13, 2024

Justice Stanley B. Sherr

Footnotes

[1] The maternal grandfather was represented by counsel at the trial management conference. Counsel advised the court that neither she nor the maternal grandfather would be participating in the trial.

[2] The parties often used the term domestic violence. This term will be used interchangeably with family violence in this decision.

[3] The case had already been removed once from the prior trial sittings at the parents’ request.

[4] The Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council was endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23. These principles include the following:

• Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.
• Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
• Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
• Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.
• Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
• Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

[5] Subsection 35 (2) of the Evidence Act states:

Where business records admissible

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

[6] This record is in Tab 5 of the society’s Document Brief.

[7] The court applied the principles set out by the Supreme Court of Canada in R. v. Khelawon, 2005 SCC 20 and R. v. Bradshaw, 2017 SCC 35 in determining whether child statements being proffered for the truth of their contents achieved threshold reliability.

[8] The court commends counsel for the society for preparing a chart setting out the child statements the society sought to admit and the purpose for their admission. This chart was marked as Exhibit A at trial for the purpose of identification.

[9] The mother had counsel when she signed these Statements of Agreed Facts.

[10] The mother eventually acknowledged that the father had slapped her in the face.

[11] The facts in paragraphs 59-64 are set out in a Statement of Agreed Facts signed in October 2018 (Tab 5 of the Trial Record). This formed the basis for the final orders made on the original protection application regarding M.

[12] The facts in paragraphs 66-67 and 69-70 are set out in a Statement of Agreed Facts (Tab 6 of the Trial Record) to support the final order on the protection application regarding MM.

[13] The facts set out in paragraphs 73-78 are set out in the Statement of Agreed Facts dated September 29, 2020 (Tab 8 of the Trial Record).

[14] The mother also told Ms. Spirito that the father had married a woman in Guyana. At trial, the father denied telling Ms. Spirito he had married in Guyana. At one point he said he was in a relationship with a woman while he was in Guyana. He later said this was only a business relationship. Ms. Spirito described how the father showed her pictures of his new wife at their meeting. The court accepts Ms. Spirito’s evidence that the parents represented to her that the father had married in Guyana and that they were no longer in a relationship.

[15] The father described R.K. as his mother. She is not his biological mother but cared for him when he came to Canada. The father lives with her in Brampton.

[16] The court wants to emphasize this is a secondary protection concern. If it was the only concern, the court would not be placing the children in extended society care.

[17] The details of his criminal record are set out in Tab 1 of the society’s Document Brief.

[18] This list also involves a consideration of the best interests factors set out in subsection 74 (3) and 105 (6) of the Act.