Catholic Children’s Aid Society of Toronto v. A.M., 2024 ONCJ 607

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.

DATE: November 27, 2024

COURT FILE NO. C41591/21

ONTARIO COURT OF JUSTICE

B E T W E E N:

CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO MARSHALL MATIAS, for the APPLICANT

APPLICANT

• and – A.M., D.S. and S.T.

ANTHONY MACRI, for the RESPONDENT, A.M. HUGH EVANS, for the RESPONDENT, D.S. SHELDON WISENER, for the RESPONDENT, S.T.

RESPONDENTS LISA JOHNSON, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, for the children HEARD: NOVEMBER 20-21, 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 Catholic Children’s Aid Society of Toronto (the society) regarding the subject children E, who is 8 years old, and N, who is 6 years old (the children).

[2] The children were brought to a place of safety, from the care of their mother, the respondent A.M. (the mother) on July 10, 2021.

[3] The children remained in society care until they were placed in the joint care of their father, the respondent D.S. (the father), and his partner, the respondent S.T., on July 7, 2023. The father and S.T. have three children of their own, ages 8, 4 and 1.

[4] The father was charged with assaulting S.T. on January 15, 2024, and he left the home. All five children have lived with S.T. since then.

[5] The mother exercises supervised access with the children at the society’s office once each week for 90 minutes.

[6] The father exercises access with the children on alternate weekends, from Friday evening to Sunday.

[7] The society is seeking an order granting custody of the children to S.T., pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (the Act). It also seeks orders granting S.T. incidents of custody, including the right to obtain and renew government documentation for the children and to travel outside of Canada with the children, without the consent of the mother or the father.

[8] The society also seeks an order that the mother’s and father’s access with the children be in S.T.’s discretion, a minimum of once each week. It asks that S.T. have discretion as to the frequency, duration, location, and level of supervision for their access.

[9] S.T. agrees with the society’s position.

[10] The Office of the Children’s Lawyer, on behalf of the children (the OCL), supports the society’s position regarding custody and incidents of custody for the children.

[11] The father initially sought an order placing the children in his care and custody pursuant to section 102 of the Act. However, in closing submissions, he withdrew that claim and supported an order that S.T. be granted custody of the children.

[12] The father seeks to maintain his present alternate weekend access with the children.

[13] The mother seeks an order placing the children in her care and custody, pursuant to section 102 of the Act, or in the alternative, in her care and custody subject to terms of society supervision. If either of those orders are made, she is prepared to facilitate access for the father and S.T.

[14] In closing submissions, the mother submitted, for the first time, a further alternative claim for relief. She sought an order that the children be placed with S.T. pursuant to a six-month supervision order. This claim was opposed by the other parties and the OCL.

[15] The mother seeks generous access with the children, including unsupervised access on weekends and mid-week, if the children are placed with S.T. either under a custody order or pursuant to a supervision order.

[16] The OCL informed the court that the children are not seeking any changes to the present access arrangements, except that E would like to spend a little more time with her mother and father. E is concerned about the father not always being present during the access visits. E wants the adults to stop talking to her about her living arrangements and wants the father and her father’s cousin’s wife (A.T.), to stop telling her to say bad things about S.T. [1] The OCL told the court the children are happy being with S.T., the mother and the father. [2]

[17] The society called four of its workers and filed business records at trial. It filed two prior statements of agreed facts from the protection application and the first status review application regarding the children. It also filed the trial decision of Justice W. Kapurura, dated May 14, 2024, regarding the mother’s child K, who is 18 months years old (the K decision). See: Catholic Children’s Aid Society of Toronto v. A.M., 2024 ONCJ 235.

[18] The mother testified and filed affidavits from her father and sister. The father testified and called A.T. to testify.

[19] 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?

Part Two – History

2.1 The mother and the K decision

[20] The mother has four children. None of them are in her care.

[21] The mother lives on her own. She is in receipt of social assistance through the Ontario Disability Support Program (ODSP).

[22] The mother has an 11-year-old child who lives with that child’s father. The mother did not want to answer questions about that child at trial.

[23] The mother’s child K is the subject of a separate status review application that is being case managed at this court site by Justice Carolyn Jones. The society is seeking orders regarding K similar to those in this case. It is asking the court to grant K’s community caregiver (H.O.) custody of K pursuant to section 102 of the Act, with access to the mother and K’s father to be in H.O.’s discretion. [3] K has a different father than the children in this case.

[24] In the K decision, Justice Kapurura found K to be a child in need of protection pursuant to clause 74 (2) (b) of the Act (risk of physical harm). K was placed in the care and custody of H.O., subject to society supervision for six months. Justice Kapurura ordered that the mother have supervised access with K, a minimum of once every two weeks. The mother was required to call and confirm the visit at least 24 hours in advance.

[25] The mother acknowledged she has had serious mental health challenges in the last few years.

[26] On February 7, 2022, in support of the final order on the protection application regarding the children, the mother signed a statement of agreed facts agreeing to the following facts:

a) On July 10, 2021, police and paramedics attended her home as she was experiencing suicidal ideations. She reported that she had taken a knife and locked herself in the bathroom. She had thoughts of cutting herself but did not do so. As she was searching for a cord to harm herself, her children began to knock on the door. The presence of the children prompted her to call 911 for help. The mother and the children were taken to Michael Garron Hospital. The mother was placed on a Form 1, pursuant to the Mental Health Act.

b) While at the hospital, the mother reported that she did not have anyone who could assist her in caring for the children. E was 5 years old and N was 2 years old at the time.

c) The emergency department treating psychiatrist at Michael Garron Hospital reported that:

i. The mother had a mental health history but never addressed her issues.

ii. There were concerns about the mother’s parenting ability of the children.

iii. The mother acknowledged becoming frustrated with the children and that E makes “evil faces” which is bothersome”.

d) When a society worker attended at Michael Garron Hospital, the mother disclosed the following:

i. She was overwhelmed with managing and caring for the children.

ii. She does not have support to assist her or give her a break.

iii. She was estranged from her extended family, except for her father who would help her at times.

iv. She acknowledged having left the children home alone for up to two hours at a time, as she was unable to cope. She reported that she locked the doors and would walk out and stay away for a couple of hours to calm down and get a break, as she has no one to rely on.

v. The father had no interest in caring for the children. He had not seen the children since December 2020.

[27] The society filed three sets of records from the Centre for Addiction and Mental Health (CAMH) regarding the mother, arising from her attendances at its facility on December 29, 2022, January 23, 2023 and May 31, 2023.

[28] The December 29, 2022 records from CAMH state that:

a) The mother was agitated in the emergency department; banging on the walls and chairs, crying and screaming.

b) The mother said she wanted to “kill her baby” and “clarified she will hurt herself to make this happen”. When asked what baby she wanted to kill, she said, “the one inside her”.

c) She has “special powers” in that she has “special empathy powers” and she can “see through people”.

d) She thinks she hears voices of “a woman outside on the other side”.

e) She said she made a suicide attempt the year before and E was present at the time.

f) She was presenting with psychosis and was prescribed medication.

g) The mother’s assessment was Bipolar 1 Disorder, current or most recent episode manic: Severe.

h) The mother had prior psychiatric admissions at Sunnybrook Hospital in 2022 for suicidal ideation and emotional dysregulation.

[29] Justice Kapurura, in the K decision, found that the mother had limited insight into her mental health challenges. He wrote the following at paragraphs 42 and 43:

[42] The evidence supports the society’s position that the mother has mental health challenges for the following reasons:

i. In a letter dated August 3, 2023, her psychiatrist, Dr. Clark, wrote that she has a diagnosis of Bipolar 1.

ii. The psychiatrist was concerned about her having adequate support to control her emotions when she is feeling agitated by others, stating that she has the potential of becoming overwhelmed which might result in dysregulation of her emotions or mood.

iii. In her own evidence, she testified that she had experienced suicidal ideation a couple of weeks before the trial date. She stated that she had gone into depression after the society declined her request to attend the Jean Tweed program with the child. She stated that she wanted to hurt herself and called the 9-8-8 suicide crisis helpline and they were able to calm her down.

iv. She testified that she also had experienced suicidal ideation just a few days before the trial date. She stated that she was feeling lonely without the children in her care.

[43] The court finds that the mother is not compliant with her treatment plan for the following reasons:

i. On May 30, 2023, she told her society worker at the time, Ms. Brown, that she had not taken any medication while at the hospital and had also not taken any medications since being discharged from the hospital with the newborn baby.

ii. On October 11, 2023, she informed her family service worker, Ms. Allajbeu, that she does not take her medication for her mental health consistently as it makes her feel sleepy.

iii. On April 10, 2024, she told Ms. Allajbeu that she takes her medications ‘sometimes’.

iv. In her affidavit dated April 29, 2024, filed for this trial, she stated that she does not take her medication since it makes her feel uncomfortable.

v. At trial, she testified that she does not take her medication at all.

[30] Justice Kapurura made the following findings of fact at paragraphs 45 to 50 of his decision:

[45] The evidence supports the society’s position that the mother cannot independently meet the child’s needs without support. Her visits with the child continue to be supervised. Her psychiatrist also expressed concerns with respect to her ability to provide care to a child without adequate support.

[46] The mother does not have family or community support to help her in caring for the child.

[47] The mother’s mental health challenges have had an impact on her relationship with the child, and that of her other children. She has left her visits early after being upset. On September 12, 2023, she left about 20 minutes into her visit after being triggered by some people who owed her money. After terminating the visit early, her daughter, E, was upset and started crying.

[48] The mother has poor insight into how her actions, decisions, and emotional dysregulation during her access visits negatively impact her children.

[49] The mother’s mental health challenges have had a negative impact on her relationship with others, including her supports. H.O. testified that the last time she had communicated with the mother was in August 2023. Their relationship is not positive. H.O. also testified that she would want the mother’s visits to continue going through the society, and not to be arranged directly between her and the mother. The mother’s other children, E and N, are currently placed with another kith caregiver, ST. The mother testified that she does not have any communication with ST. Their relationship is also not positive. The mother described her current family services worker, Ms. Allajbeu, in very negative terms.

[50] The mother has, at various times, sent inappropriate and threatening messages to Ms. Allajbeu, including the following messages:

..Ur what is mixed in with my shit. …Go self reflect on your personal life and fuck off… …U should be fired cause you suck at being a social worker….fucking bitch….stay out of my space or I beat u up when I see u at my visit.

[31] Justice Kapurura made the following conclusions at paragraph 62 of his decision:

[62 ] The court finds the society has, on a balance of probabilities, established the risk of physical harm to the child if he were to be placed in the care and custody of the mother, for the following reasons:

a) Her mental health challenges are severe. She has had suicidal ideation as recently as a few days before this trial.

b) Her mental health challenges continue to impact her ability to parent her children. She has four children. None of the four children are in her care.

c) Her functioning has been impacted by her mental health. She has stopped attending visits and it is not clear when she will resume her visits.

d) Her visits remain supervised.

e) She has no insight into her mental health challenges.

f) She has failed to engage meaningfully with her psychiatrist and with supports to address her mental health challenges.

g) She does not have a support system.

h) The child is only 11 months old. He requires parental supervision on a full-time basis.

i) The child’s young age makes him more vulnerable to compromised parenting.

2.2 The father and S.T.

[32] The father has six children. He has the two children in this case with the mother. He has three children with S.T., and he has a two-year-old child with M.D. The parties in this case appeared to learn about his child with M.D. for the first time during his cross-examination. He did not mention his child or relationship with M.D. in his direct evidence. None of his other children know about this child.

[33] The father has chosen not to see the three children he has with S.T. since January 2024.

[34] The father testified he has not seen the child he has with M.D. since January 2024. [4]

[35] The father works as a truck driver. He said that he started working full-time in July 2024, six days each week and that he grosses $1,800 every two weeks. [5] He does not pay child support for any of his children.

[36] The father testified he has lived with his cousin and A.T. since January 2024 in their two-bedroom apartment. He said he is looking for his own apartment.

[37] The father is facing multiple criminal charges related to S.T., including four assault charges, assault with a weapon, and forcible confinement. He has criminal release terms that prohibit him from contacting S.T.

[38] The father acknowledged he was in a relationship with M.D. until August 2024. On August 13, 2024, the father was charged with assaulting her. They are no longer in a relationship.

[39] The father did not know when the criminal trials regarding S.T. and M.D. will take place.

[40] S.T. is a stay-at-home mother for the five children in her care. She does not have any other children. Her mother assists her in caring for the five children on weekends.

[41] The father said he was very involved with the children until 2020, when he left to work in Saskatchewan. He said he did not learn that the children had been placed in the society’s care until January 2023. He then returned to Ontario and put forward a plan to care for them with S.T.

[42] The father acknowledged that he carried on simultaneous relationships with the mother and S.T., and later with S.T. and M.D. When asked if he was “playing all these women”, the father answered, “long story short, yah”.

2.3 Court history

[43] On July 15, 2021, a temporary order was made placing the children in the society’s care, with access to the mother in the society’s discretion.

[44] On February 28, 2022, on consent, Justice Jones found the children to be in need of protection pursuant to clause 74 (2) (n) of the Act. She made an order placing the children in interim society care for five months.

[45] On September 29, 2022, on a status review application, Justice Jones made another interim society care order for the children for three months and 10 days.

[46] On July 6, 2023, the society started its protection application regarding K and K was placed in the temporary care and custody of the mother, subject to society supervision.

[47] On August 3, 2023, K was placed in the temporary care and custody of H.O., subject to society supervision. K remains with H.O.

[48] On July 7, 2023, the children were placed in the temporary care and custody of the father and S.T., subject to society supervision.

[49] On January 4, 2024, the society issued its status review application regarding the children. It was last amended on October 9, 2024.

[50] On February 27, 2024, the children were placed in the temporary care and custody of S.T., subject to society supervision.

[51] On May 14, 2024, Justice Kapurura released the K decision.

[52] On September 26, 2024, the society issued its status review application regarding K.

Part Three – Disposition

3.1 Legal considerations

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

[54] 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.

[55] 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.

[56] 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.

[57] 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.

[58] 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.

[59] 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.

[60] 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.

[61] 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.

[62] 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.

[63] 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.

[64] 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.

[65] 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..

[66] 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.).

[67] 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.

3.2 Continuing need for a protection order

[68] No one disputed that a protection order is necessary to protect the children in the future. The present protection concerns are:

a) The mother’s long-standing and serious mental health challenges and the risk of emotional harm to the children of being exposed to her dysregulated behaviour.

b) The mother’s challenges in being consistently available for the children.

c) The mother’s lack of insight into the children’s needs.

d) The family violence by the father towards S.T. and the children’s exposure to the family violence.

e) The high level of conflict between the mother, the father, A.T. and S.T., and the risk of emotional harm to the children of being exposed to this conflict.

f) The mother and the father have been destabilizing the children’s placement with S.T., by telling them they will be returning to their care. The court also finds that the father and A.T. have been coaching the children to say negative things about S.T. to the society.

g) The children are distressed by the pressure being placed on them by the mother, the father and A.T.

h) The children require a stable and permanent placement. The mother and the father showed little insight into this at trial and focused on their own needs. There is a strong risk that they will destabilize the children unless a structured protection order is made.

3.3 The children

[69] Everyone described the children in glowing terms.

[70] E was described as a child who is outspoken and knows what she wants. She is very social and loving. She loves to play outdoors.

[71] N was also described as an open and loving child. He enjoys playing computer games and to draw.

[72] Both children are struggling academically. S.T. works closely with E’s teachers who have provided her with extra homework. S.T. spends considerable time with E on her school work. E has made progress with her reading and writing in S.T.’s care.

[73] Both children enjoy school. E has expressed that she really likes her school and does not want to change it.

[74] The children have a very close relationship with their siblings in S.T.’s home.

[75] Everyone agreed that the children are doing well in S.T.’s care. The father admitted she is doing a great job. There are no concerns about the quality of care that S.T. is providing for them. She takes the children to and from school. There are no issues with their school attendance.

[76] The society’s family service worker deposed that the children have made positive changes since they have been in S.T.’s care. The children are very settled in her care. They have a stable home with predictable routines. They feel safe with her. He described the placement with S.T. as 100% stable and said that he completely trusts S.T.’s judgment when it comes to the children.

[77] In July 2024, E told the society’s family service worker that A.T. had told her that she needs to make a big complaint about S.T. and to lie about S.T. so she can be removed from S.T.’s care. She said that she does not like when A.T. says this to her. The society worker commented that E appeared sad when telling him this.

[78] The children often observed the family violence by the father towards S.T. The society’s family service worker deposed that E said she was scared by the incident that led to the father’s arrest and was scared that something would happen to “mommy”, referring to S.T.

[79] The children are confused about why the father is refusing to see their half-siblings.

[80] The children are upset that they keep getting asked about their living arrangements. They feel under pressure.

[81] The children are happy living with S.T. and seek no change in their placement. E said she would like to see the mother and the father a little more. They have told the society that the father is often not home when they have their visits. They would like him to be there.

3.4 Services provided to the mother and the father

[82] Justice Kapurura found in the K decision that the society had made reasonable efforts to connect the mother with appropriate services to address her mental health and parenting challenges. [6] These are recent findings of fact. This court agrees with him.

[83] The society offered the father referrals to programs and counseling services. The father declined them. He told the society there is no issue with his parenting skills and he does not need to attend any programs.

3.5 Community and family plans

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

[85] The society first placed the child with the father and S.T., and subsequently with S.T. alone.

3.6 Assessment of the mother’s plan of care

3.6.1 The plan

[86] The mother asks that the children be placed in her care and custody pursuant to section 102 of the Act. In the alternative, she asks that the children be placed in her care and custody, subject to society supervision for six months.

[87] The mother said during the trial that she felt housing was the protection issue and she now has suitable housing for the children.

[88] The mother believes she has strong parenting skills and the children should be living with her.

[89] The mother feels she has addressed her mental health challenges. She said she takes two different medications for anxiety and depression. She deposed that the medications keep her calm. She said, “I don’t feel cuckoo anymore and like I am talking backwards”. She said she feels “healthy and confident”.

[90] The mother obtained a referral the day before the trial started from a family doctor to see a psychiatrist. She said “I honestly feel I don’t need it. If anything, I need a counselor for trauma”. She said she felt a psychiatrist is being pushed on her.

[91] The mother said she is planning to obtain a referral to see a therapist.

[92] The mother stated her family doctor is following her mental health. She said she is taking the medication the doctor has prescribed for her.

[93] The mother completed a six-hour addiction program in October 2024 at William Osler Health. She said she had been smoking weed three times a day since she was a teenager to cope. She testified that she has not smoked weed for three weeks. When asked if she will go to a more intensive addiction program, the mother said she is thinking about it.

[94] The mother also completed a Reproductive Life Stages program at Woman’s College Hospital and completed an Introduction to Healthcare program at Yorkdale Learning Centre.

[95] The mother said she will receive social assistance to financially support the children. She will also receive Canada Child Benefits.

[96] The mother described having a strong relationship with the children.

[97] The mother plans to keep the children in the same school this year. She recognized this was important to the children.

[98] The mother did not believe it would be a big transition for the children to go from 90 supervised minutes a week with her to living with her full-time, due to the children’s familiarity with her. She also has no concern about her ability to handle the pressure of caring full-time for the children.

[99] The mother said she has recently reconnected with her father and sister and now has their support. Her father and sister filed affidavits in support of her plan. They said they will provide parenting relief, ensure the mother’s mental health is stable, assist her with communicating with third parties, facilitate visits, assist her with court matters and assist her with access.

[100] The mother testified that she will facilitate alternate weekend access with the children for the father and access for S.T.

3.6.2 Justice Kapurura’s roadmap

[101] At paragraph 101 of the K decision, Justice Kapurura set out a useful roadmap for the mother, setting out what she needed to do to have K returned to her care. This court will reproduce that roadmap and comment on what the mother has done and what she has not done since then.

i. Meet with her psychiatrist, Dr. Clark, and discuss her treatment regime.

Progress: The mother has not done this.

ii. Discuss the issues and concerns raised in this decision with her psychiatrist.

Progress: The mother has not done this.

iii. Follow the treatment recommendations of her psychiatrist.

Progress: The mother has not met with a psychiatrist. She said she has complied with the treatment recommendations of her family doctor. She provided no documentary evidence supporting this.

iv. Discuss with her psychiatrist any side effects of her current medications.

Progress: The mother has not done this.

v. Discuss options for her CBT therapy with her psychiatrist.

Progress: The mother has not done this.

vi. Demonstrate sustained improvement in her mental health.

Progress: The mother has shown some very recent improvement in her mental health. She has presented well at visits since October 1, 2024. However, some recent concerns were noted about her emotional regulation.

On November 18, 2024, the society cancelled the mother’s visit for November 19, 2024, because she failed to confirm it. The mother sent the society’s family service worker an email on November 18, 2024. She was upset that the visit was cancelled.

The society access worker who cancelled the visit was sent abusive text messages from an unnamed sender the following day. She believes the mother sent them. The mother denied it at trial and sarcastically said, “the world is small, what a coincidence”. She said it was stupid for the worker to assume it was from her.

The language and content in the email sent to the family service worker and the texts sent to the society access worker were similar. For instance, in the November 18, 2024 email to the family service worker the mother wrote:

And my visit for tomorrow November 19 2024 is it canceled for real? Or is Sally just being a evil jealous case worker by canceling.

The texts sent to the society access worker the following day, include the following:

U big fat evil jealous bitch

Go the gym for once in ur life

So go to the gym ugly fat jealous bitch (sent two times).

When the society access worker responded and asked if it was the mother writing, the reply was:

Your wordy night mare

Your wordy nightmare.

The court finds that the mother sent these texts to the society worker. This conduct is a continuation of her long-standing inability to regulate her emotions, even when the trial was starting the next day. [7]

vii. Demonstrate insight into her mental health challenges and the impact that those challenges have had on her children.

Progress: Very little. The mother testified she calls a mental health worker when she gets stressed and she finds this very helpful.

The mother showed no meaningful insight at trial into her mental health issues. She saw no need for a psychiatrist. She showed no appreciation of how her mental health issues have affected the children.

viii. Attend all scheduled visits on time and stay for the full visit.

Progress : The mother chose to stop all visits with the children from March 26 to May 28, 2024. After missing several visits with the children, the mother advised the society on April 18, 2024 that she did not want to see them. She said she wanted the message passed on to the children that she wishes things could be different and that she just doesn’t want to see them. After seeing the children on May 28, 2024, she cancelled the next visit on June 4, 2024. She showed no insight at this trial into how her conduct affected the children.

Since June 11, 2024, the mother has been attending visits consistently and on time, with the exception of missing the November 19, 2024 visit because she failed to confirm it.

ix. Keep her cell phone away during her visits (to avoid external triggers) and focus on the children.

Progress: The society workers reported the mother has been focusing much better on the children since October 1, 2024.

x. Attend individual counseling to address any anger management issues and emotional regulation.

Progress: The mother has not done this.

xi. Work on her relationship with the two kith caregivers, and her family service worker.

Progress: H.O. and S.T. want no direct contact with the mother. [8] S.T. last had contact with the mother in 2021. S.T. testified that the mother came to her home in 2021 banging angrily on her door to see the father. [9] She feels the mother is very erratic. She does not want the mother to have her phone number.

The mother still has an uneasy relationship with society workers.

xii. Demonstrate an ability to be civil and communicate respectfully with others.

Progress: The mother is generally civil but has sent angry emails and texts to the society workers.

3.6.3 Why the children cannot be placed with the mother

[102] The mother has made some very recent progress. She is now coming to visits on time. Her visits are generally positive. Her emotional regulation at visits and her focus on the children has improved. Her visits are structured. She attended programs on her own initiative. She has recently reconnected with her family who are offering support. These are all positive steps and she is commended for them.

[103] However, the protection concerns about the mother are so profound that the children’s best interests dictate not only that the court not make an order placing them in her care, but that her access to them remain supervised.

[104] The mother has long-standing and severe mental health challenges. They cause her to be emotionally dysregulated and unable to parent children. She has had psychotic breaks, suicide attempts and frequent hospitalizations. The children were exposed to this and suffered emotional harm. They were at great risk. In 2022, E was so upset she placed a skipping rope around her neck and squeezed it. She told her foster parents that she did not want to feel pain any more. [10]

[105] The children led an unstable, chaotic and insecure life with the mother, who was an unreliable caregiver and unable to meet their needs. They have significant academic impairments. Only now are they starting to catch up academically and developmentally in a stable and secure home.

[106] The mother has not taken the required steps to meaningfully address her mental health issues on a long-term basis. She only obtained a referral to see a psychiatrist the day before the trial. She does not see the need for a psychiatrist.

[107] The mother showed little insight into her mental health challenges and the impact her mental health has had on the children. She minimized her issues. She denied having had suicidal feelings prior to the trial before Justice Kapurura, even though she testified having had them at that trial. [11] She disagreed with Justice Kapurura’s findings about her mental health. She claimed at this trial that she has been compliant with her medication for one year. She denied testifying at K’s trial in May 2024 that she had stopped taking her medication. [12] This lack of insight makes her a poor candidate to make meaningful long-lasting changes. The children cannot emotionally afford being with an unstable caregiver. There is a real risk that the mother’s mental health will unravel again without proper treatment.

[108] The mother stated she was frequently smoking weed to cope. She testified she has stopped for three weeks after taking a six-hour course. This is some progress. However, if the children were placed in her care, the mother would be faced with considerable new pressures. The court has little confidence that the mother has accessed the necessary supports to address this problem on a sustained basis. It is likely she will revert to using substances to cope. This is not a good recipe for stable parenting, given her mental health problems.

[109] The mother was focused on her own needs and not the children’s needs at trial. She showed little insight into the impact on either her or the children of removing them from a secure home and being placed with her full-time, after only having had supervised access with them for over three years. She was dismissive of any concern that this might pose challenges for her mental health.

[110] The mother also showed no insight into the impact on the children when she chose not to see them for two months this year and when she frequently missed or came late for visits. One society worker commented, “she takes no responsibility for the impact this has on the children”. The court agrees.

[111] The mother candidly admitted she has been talking to the children about coming to live with her. She says she talks to them about this when she gets to go outside at visits. She showed no understanding about how destabilizing this could be for the children.

[112] The support of the mother’s sister and father is very recent. They only came forward to the society in October 2024. They have had a challenging relationship with the mother in the past. The mother said she presently has an “OK relationship with her sister, not so great with her dad, it’s OK”. While the mother’s sister’s and father’s support is encouraging, it remains to be seen whether the mother will sustain her relationships with them.

[113] The mother did not provide a concrete or realistic plan to care for the children. Her plan is not in the children’s best interests.

3.7 Placement with S.T.

[114] The court finds it is in the children’s best interests to place them with S.T. for the following reasons:

a) She has provided the children with a stable, safe and secure home.

b) She is attuned to the children’s needs.

c) She is working very closely with the children’s teachers and helping them with homework.

d) She is closely attached to the children. She does not like being called their stepmother. She considers them to be her own children.

e) The children have a close relationship with her. They are happy and want to live with her.

f) The children have a close relationship with their half-siblings and want to live with them.

g) She has created routine and structure for all her children. Her description of a day in the life of the children showed she is very organized and child-focused. She ensures they go to school each day on time.

h) She is doing a remarkable job raising five children with no financial assistance from the mother or the father and navigating the challenges posed by them and this court proceeding.

i) She has been very cooperative with the society.

j) She has demonstrated unwavering commitment to the children.

k) She is the “safe parent” for the children.

[115] The court finds the plan to place the children with S.T.:

a) Best meets the children’s physical, mental and emotional needs.

b) Best meets the children’s physical, mental and emotional level of development.

c) Ensures the children’s cultural needs are met. S.T. shares their culture.

d) Best meets the children’s needs for a secure place as a member of a family.

e) Best meets the children’s needs for continuity of care.

f) Best ensures the children are not exposed to conflict.

g) Best ensures the children are protected from risk of harm.

3.8 Section 102 vs. supervision order

[116] In closing submissions, the mother raised an alternative argument that a six-month supervision order be made placing the children with S.T, instead of making a section 102 order.

[117] The mother submitted that the society has failed the family by not holding a Family Group Conference to meet with the family members to work on access issues. The mother submitted that the communication between the family members is poor and it is not in the children’s best interests to leave S.T., the father and her to their own devices to work out access. The mother proposed this conference one month before the trial and the society declined to hold it. At the conclusion of the evidence, the mother proposed adjourning the trial to permit such a conference to take place. The court did not grant the adjournment.

[118] The other parties and the OCL opposed the court making a further supervision order.

[119] The court finds it is in the children’s best interests to make a final custody order pursuant to section 102 of the Act and not make a supervision order for the following reasons:

a) The children have been out of the mother’s care and before the court for over three years. They need their futures to be determined now and not have them delayed any further.

b) The children have already been subject to too much chaos and instability from the mother and the father. They need to know they will have a stable, secure and long-term home.

c) The mother and the father both want the children to live with them. They have tried to destabilize the children’s placement with S.T. by placing pressure on the children to live with them. This pressure will continue if a supervision order is made, and as long as the mother and the father believe there is a chance the children will be placed with them. The children are adversely affected by this pressure.

d) There is a serious risk that a further supervision order will create more instability, uncertainty and exposure to conflict for the children. The mother and the father show little insight into the protection concerns. They minimize the concerns about themselves and externalize the blame onto others. The mother remains certain the children should be with her. This belief is unlikely to change. The father put forward a custody claim with absolutely no merit. He felt if he had proper housing the children should be with him. Although he withdrew his custody claim in closing submissions, there is a real possibility he would contest placement again on a status review application. It is highly likely there will be a series of trials until the children and K receive final placements. This is not in the children’s best interests.

e) This case has been before the court for a long time. The mother could have sought a Family Group Conference with the society long ago. She could have sought child protection mediation. She could have sought direction from the court if the society had refused those requests. She did not do any of this. Further delay is not in the children’s best interests.

[120] The court finds that granting S.T. a custody order, pursuant to section 102 of the Act, is the least disruptive order consistent with the children’s best interests.

[121] The court also finds it is in the children’s best interests to order the incidents of custody sought by the society. The court has no confidence that either the mother or the father will sign the necessary consents to permit S.T. to obtain or renew government documentation for the children or travel outside of Ontario with the children. It is not in the children’s best interests that S.T.’s ability to do this be obstructed.

Part Four – Access

4.1 Legal considerations

[122] Subsections 104 (1) and 105 (1) and (2) of the Act set out the court’s powers in relation to access. They read as follows:

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Access: where child removed from person in charge

105 (1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child’s best interests.

Access after custody order under s. 102

(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

[123] The best interests considerations are set out in subsection 74 (3) of the Act. The court is mandated to consider the children’s views and wishes, given due weight in accordance with their age and maturity, unless they cannot be reasonably ascertained.

[124] Courts should give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[125] In M.A. v. J.D., [2003] O.J. No. 2946 (OCJ), Justice Robert Spence wrote that the party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. Also see: Catholic Children’s Aid Society of Toronto v. C.P.I., 2020 ONCJ 304.

[126] 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.

[127] These principles were endorsed by this court in Catholic Children’s Aid Society of Toronto v. C.P.I., supra, and in Children’s Aid Society of Toronto v. R.R., 2024 ONCJ 233.

[128] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; K.M. v. J.R., 2022 ONSC 111; Family and Children’s Services of Lanark, Leeds and Grenville v. A.B., 2021 ONSC 5368.

[129] 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).

[130] 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.

[131] This court applied the family violence principles set out above in Barendregt v. Grebliunis and in McBennett v. Danis as important best interests factors for children in the child protection context in Children’s Aid Society of Toronto v. R.R., 2024 ONCJ 233.

[132] This follows a similar approach that was taken by Justice L. Bale in Catholic Children’s Aid Society of Hamilton v. I.B., 2020 ONSC 5498, where she 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.

4.2 The present access arrangements

[133] The mother has access with the children at the society office every Tuesday from 3:30 p.m. to 5 p.m.

[134] Until June 11, 2024, there were significant concerns about the mother’s consistency at access. She went periods not seeing the children. In April 2024, she told the society worker to tell the children that she didn’t want to see them and did not see them again until May 28, 2024. She was often late or did not confirm visits. At times, she would lose her temper in front of the children. At times, she was disengaged from the children or would walk out of visits.

[135] As stated above, the quality of the mother’s visits has improved since October 1, 2024. [13] Except for the one missed visit on November 19, 2024, the mother has been consistent on visits, she is better engaged with the children, and she is prepared for them. She brings food for the children. Her mood is good. Overall, the visits are positive. The children enjoy the visits and they look forward to seeing the mother.

[136] The mother struggles with emotional regulation. She is sometimes challenging for the society to work with. K’s caregiver will not deal with her. S.T. does not want her to have her telephone number.

[137] The visits with the father take place every other weekend from Friday to Sunday. A.T. or her husband conduct the exchanges at S.T.’s home.

[138] The visits with the father have not gone smoothly. There is hostility between the father and A.T. on one side and S.T. on the other. The communication between S.T. and A.T. is poor. [14] Many visits have been missed due to miscommunication.

[139] A bone of contention is that the children are frequently picked up late on Fridays and often returned to S.T. very late on Sundays. A.T. attributed this lateness to her work commitments, traffic, subway delays and the children’s desire to stay later. Her multiple excuses are not acceptable. The children should be exchanged on time.

[140] S.T. is not blameless in these communication issues. She has sometimes been rigid about exchange arrangements and visits have not taken place. She should be more understanding, if on rare occasions, due to circumstances out of his control, the children are exchanged late by the father.

[141] The society asks for access to be in S.T.’s sole discretion. It trusts her completely. S.T. agrees with this.

[142] The mother, the father and the OCL seek a more structured access order.

[143] It is in the children’s best interests to have access orders that accomplish the following:

a) Maintain the stability and security of the children’s placement with S.T.

b) Protect the children from conflict and family violence.

c) Protect S.T. from family violence.

d) Preserve the positive aspects of the relationship between the children and the mother and the children and the father.

e) Provide the children with the opportunity to have a positive relationship with the maternal family and the paternal family.

f) Ensure that the children can have stress-free time with S.T. and their half-siblings and participate in family activities and outings with them.

g) Provide a clear structure for minimum access with the children by the father and the mother.

[144] The challenge is to achieve these objectives without the society’s assistance. A section 102 order leaves S.T. alone to deal with the mother and the father, both of whom the court observed (and the evidence amply supported) have contentious personalities. The mother lashes out when she feels thwarted. Further, neither the mother nor the father want the children to live with S.T. There is a real risk that they will use access opportunities to undermine S.T. and destabilize the children’s placement with her.

[145] S.T. has undertaken a big task and she has done it well. She is raising five children as a single parent. In structuring the access order, the court needs to be sensitive to her challenges in doing this, while managing her relationships with the mother and the father.

[146] There needs to be structured minimum access for the children that is not in S.T.’s discretion, to ensure that the positive features of the mother’s and father’s relationship with the children are preserved. Any access over and above that access will be in S.T.’s discretion. She needs that discretion, as access may need to change as the mother’s mental health fluctuates, and as his parenting history informs the court, the father’s commitment to the children fluctuates.

[147] Further, it was apparent that S.T., for good reason, is fearful of the father. It is not in the children’s best interests that she has direct engagement with him.

4.3 The mother’s access

[148] The court finds it is in the children’s best interests to have supervised access with the mother. The protection concerns about the mother are too profound to order unsupervised access at this time. There is too big a risk that her mental health issues will recur and that her behaviour will be unregulated. There is also the risk that she will use unsupervised access to undermine the stability of the children’s placement with S.T.

[149] The court will order that the mother have supervised access through a professional access supervisor every other Saturday. The court will make a referral order to Access for Children in Ontario (APCO). [15] The maximum hours for visits at APCO are two hours. The mother shall pay any fees associated with the program as she is not paying any child support. [16]

[150] APCO has a waiting list. While she is on this waiting list, the mother may choose to have access with the children every other Saturday, for up to three hours, supervised by a private professional access supervisor, such as Renew Supervision Services or Brayden Supervision Services. She may also use a private professional access supervisor if APCO is closed, or even instead of APCO. This would extend her visits from two hours to three hours. The mother will pay any fees of the professional access supervisor. The court recognizes the mother is on ODSP. However, her sister and father deposed they will assist her. This is one way they can concretely help her – by paying for a private professional access supervisor until APCO can start the visits.

[151] The society asked that access take place a minimum of once each week. This is not in the children’s best interests. Once this order is made S.T. will no longer have the assistance of the society to transport the children for visits. The society’s position does not sufficiently take into account S.T.’s challenges in taking care of five children, and her logistical challenges in getting them to APCO, while also dealing with the father’s access. [17]

[152] The children, S.T., and the children’s half-siblings who live with them, also need time on weekends where they can spend family time together and participate together in activities and outings. S.T. will also be a better functioning parent if she does not have to deal with the stress attendant with access every weekend. The children will benefit from this.

[153] The mother’s access will take place on alternate weekends and on the same weekends as the father’s access.

[154] In closing submissions, S.T. indicated she planned to speak to the mother’s sister after the trial. If she feels confident about the sister, she hopes the sister will supervise access on Saturdays for three hours.

[155] S.T. will be given the discretion to approve the mother’s sister, or any other non-professional person to supervise the mother’s access. She will also have the discretion to increase the mother’s access.

4.4 The father’s access

[156] The father asks to maintain his existing access with the children of alternate weekends. The OCL supports this position. The children want to spend more time with the father. They enjoy their time with him. The OCL submitted that maintaining the frequency of these visits best meets the children’s need for continuity and connection with the father.

[157] S.T. said she wants the father to have access on Sundays for three hours. She agrees that A.T. or her husband can conduct the exchanges.

[158] It is hard to overstate how poor the father’s credibility was at trial. His evidence was often inconsistent. He was evasive and defensive.

[159] The father is a deceitful person. It appeared that everyone learned about his other family during his cross-examination. [18] He carried on a relationship with M.D. and had a child with her, while living with S.T. and the five children. He carried on relationships with the mother and S.T. at the same time, having multiple children with both of them. He told neither of them or the society about his child with M.D.

[160] The father had the temerity at trial to blame S.T. for their arguments because she was accusing him of having an affair. He was leaving the home every weekend and often during weeknights. He often left her alone to care for the five children. He was having an affair and kept it secret from S.T.

[161] The father earns a good income. However, he pays no child support for any of his children. [19] He said he has saved up $8,000 for a new apartment. When asked whether he had considered giving some of this money to S.T. for child support, he actually laughed and rejected the idea. He has convinced himself this money is for his children – albeit, on his terms.

[162] The children have complained that the father is often not present at visits – and he often leaves at night. The father accused the children of lying and claimed someone must have put them up to saying this. The father and A.T. gave inconsistent evidence on this topic. A.T. claimed the father has only had to work on two Saturdays. The father conceded he has worked on Saturdays on many weekends he is scheduled to see the children.

[163] Until August 2024, when he was charged by her with assault, the father was carrying on a relationship with M.D. The father claimed he only saw her during the daytime. The court does not find this believable. It is more likely he was spending weekend time with her when the children were supposed to be with him.

[164] The father gave nonsensical evidence about why he has chosen not to see the three children he has with S.T. He was able to explain he does not have room for them for overnight visits. He was unable to explain why he won’t have community access with them, even though the society has implored him to do this and has explained to him how painful and confusing this choice has been for all his children.

[165] S.T. provided evidence that the father accessed her credit card after the separation to make purchases. A Royal Bank investigation showed his name and driver’s license were used for these purchases. The father gave a convoluted explanation for this, blaming a friend (whose last name he claimed he did not know) for accessing his phone and using S.T.’s credit card, as her information was on it. He was not credible.

[166] The father claimed he was very involved with the children. However, the mother advised CAMH in December 2022 that the father had not seen the children since December 2020 when he moved to Saskatchewan. It is revealing about his relationship with the children that he did not know until January 2023 that they were in the society’s care. [20]

[167] It was also revealing that the father knew only one of his six children’s birthdates. He did not know the names of the children’s doctors, dentists or teachers. The society’s family service worker testified he did not know the name of the children’s school when he asked him to sign a consent in the fall of 2023.

[168] The court accepts S.T.’s evidence that the father provided her with very little parenting assistance and was frequently absent from the home.

[169] S.T. described in considerable and emotional detail the father’s prolonged assault on her on January 15, 2024 that resulted in his criminal charges. The father attacked her and punched her repeatedly while their baby was in her arms. She fell to the ground holding the baby and he continued to punch her. She said their 4-year-old child was screaming at the father to stop. The father took S.T.’s phone away from her when she tried to call the police. He blocked the door to prevent her from leaving the home. She testified she believed the father was going to kill her. She eventually escaped in her nightgown and barefoot, in the cold, and went to a neighbour’s home to call the police.

[170] The father blamed S.T. for the incident and claimed she attacked him. He admitted he hit her after she hit him. When asked whey he hit her instead of calling the police, he answered, “Why would I call the police?”. He admitted: taking S.T.’s phone away to prevent her from calling the police; trying to take the baby out of her arms, ostensibly to protect the child; and blocking her from leaving the home.

[171] S.T. said this was not the first time the father had physically assaulted her.

[172] S.T. described several instances of verbal abuse towards her by the father in the presence of the children.

[173] The father has been charged again with assault against an intimate partner. The father claims M.D. concocted the allegations.

[174] The court fully accepts S.T.’s evidence about the father’s family violence towards her. It finds that the father has committed physical violence and emotional and psychological violence against her. He has exercised coercive control against her through financial means by failing to provide her with any support. He has displayed controlling behaviour by returning the children from visits when he chooses to and not when ordered by the court.

[175] The father sees no need to take programs regarding intimate partner violence or anger management. The court disagrees with him. He could also benefit from a parenting course to learn how his inconsistent presence in his children’s lives emotionally impacts them.

[176] The court finds that A.T. is fully aligned with the father. She is protecting and covering up for the father. Her evidence that the father was always present at visits, with limited exceptions, was not credible. It was even contradicted by the father.

[177] The court finds the father is often not present during access. It appears that much of the father’s access time is for A.T.’s benefit.

[178] The court finds that the children are being picked up late and returned late, usually without a valid reason. The father and A.T. show little, if any, respect for the structure S.T. has established for all five children.

[179] S.T. testified the children have a routine where they go to bed between 8:00 and 8:30 p.m. It is important for them to have a structured routine and be rested given their academic challenges. Again, the father and A.T. do not respect this schedule. It would be understandable if the children went to bed a little later on weekends. However, the father is keeping the children up until 11:00 or 11:30 p.m., because he says he can’t say no to them. The court accepts S.T.’s evidence that the children are often very tired when they return from visits with the father.

[180] The sleeping arrangements at A.T.’s home are also not ideal. The children share a bed together. E is at an age where she doesn’t want to do this. The father sleeps on a pull-out mattress on the floor beside them, when he is there.

[181] The court further finds that both the father and A.T. have undermined the children’s placement with S.T. The children have been encouraged to lie about S.T. and make false allegations to the society about her. The father acknowledged telling the children they will live with him once he has his own apartment. He showed no insight into how destabilizing this is for the children.

[182] The court recognizes and has seriously considered that the children want to see the father more. However, the concerns set out above inform the court that the length of the present access is no longer in their best interests.

[183] The court will order the father’s access to take place on alternate Sundays. This will not interfere with the father’s Saturday work schedule and should improve the chance of him being present at visits. Day access will ensure the children’s schedule and routines are respected and that they are rested and prepared to attend school on Mondays. It will also reduce their exposure to the conflict that the father and A.T. have been exposing them to. Sunday access will also eliminate the exchange issues A.T. claims she has on Fridays, and reduce the children’s exposure to adult conflict arising from the problematic exchanges.

[184] The three hours for the father’s visits suggested by S.T. is too short given the positive features of the father’s relationship with the children. The access will be from 10 a.m. until 4 p.m.

[185] S.T. asked that visits be cancelled if the children are picked up more than 10 minutes late. That is too tight a time frame. However, the father and A.T. need a clear message from the court that parenting exchanges should take place on time. The visit will be cancelled if they are picked up more than 20 minutes late. The visit will not be extended for the father’s lateness.

[186] The court expects the father to return the children on time at the end of the visit. If he returns the children more than 20 minutes late, the mother will have the discretion to cancel his next visit.

[187] The court strongly considered eliminating A.T. as a person who can conduct access exchanges. She is a source of conflict and has emmeshed herself in these complicated family dynamics. The court considered requiring the father to hire a private professional access supervisor to conduct the exchanges. However, given his history of walking away from his children, the court does not want to place too many barriers on his access. The court will give A.T. the opportunity to conduct the exchanges responsibly. If she fails to do so, S.T. can bring a motion to change that term.

[188] The father is to have no direct communication with S.T. He may designate A.T., her husband or any other person S.T. agrees to, in writing, to communicate with her about the children.

[189] This order will be deemed to be an order pursuant to section 28 of the Children’s Law Reform Act. The court will use the language of that legislation regarding decision-making responsibility and parenting time in the body of this order so there is no confusion.

Part Five – Conclusion

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

a) Pursuant to section 102 of the Act, the children shall have their primary residence with S.T. She will have sole decision-making responsibility for the children. This includes, but is not limited to, the choice of the children’s doctors, service providers and schools.

b) S.T. may apply for or renew all government documentation for the children, including passports, health cards, and social insurance numbers, without the consent of the mother or the father.

c) S.T. may travel with the children outside of Canada, for vacation purposes, without the consent of the mother or the father.

d) The mother shall have parenting time with the children as follows:

i) Supervised parenting time on alternate Saturdays, by a professional supervised parenting time program, as soon as this can be arranged with the program.

ii) A referral will be made to APCO for supervised visits to take place on alternate Saturdays for two hours, as soon as APCO can facilitate the visits.

iii) Pending APCO starting the visits, the mother may have parenting time with the children on alternate Saturdays, for up to three hours, to be supervised by a private professional supervised parenting time program, such as Renew Supervision Services and Braydon Supervision Services. She may also choose to have her parenting time supervised on these terms by the private professional supervised parenting program, if APCO is closed, or even instead of exercising her parenting time at APCO.

iv) The mother shall pay any fees required by any professional supervised parenting program.

v) The mother, in her sole discretion, may also designate any non-professional person to supervise the mother’s parenting time, on alternate Saturdays, from 1 p.m. to 4 p.m.

vi) Such further and other parenting time, as S.T., in her sole discretion agrees to, including discretion over times, dates, frequency, the requirement for supervision, and who may supervise the visits.

e) The father shall have parenting time with the children as follows:

i) Starting on December 1, 2024, every other Sunday from 10 a.m. until 4 p.m.

ii) Such further and other parenting time as S.T., in her sole discretion, agrees to.

iii) The father is to have no direct contact with S.T. He may designate A.T., her husband or any other person S.T. agrees to, in writing, to communicate with her about the children.

iv) The parenting exchanges are to be conducted at S.T.’s home by A.T., her husband, or any other person agreed to, in writing, by S.T.

v) If the children are not picked up by 10:20 a.m., S.T. has the discretion to cancel that Sunday visit.

vi) If the children are not returned by 4:20 p.m., S.T. has the discretion to cancel the next Sunday visit.

f) The mother’s visits and the father’s visits shall take place on the same weekends. The mother’s visits will take place on Saturdays. The father’s visits shall take place on Sundays.

g) The society is to be served with any motion to change this order.

[191] The court wishes to emphasize to the mother and the father that this is a final custody order and the children will be living with S.T. on a long-term basis. It is no longer a temporary holding order while they work on their personal issues.

[192] The court encourages the mother and the father to take steps to work on their personal issues so they can be the best access parents they can be and play an important role in their children’s futures. The mother is taking some steps to do this. It is time the father does so as well.

[193] The court thanks all counsel for their very professional presentation of this case.

Released: November 27, 2024

Justice Stanley B. Sherr

Footnotes:

[1] The father resides with A.T. and her husband. [2] The parties agreed that the OCL could express the views and wishes of the children from the floor of the court. [3] Community caregivers are referred to as kith caregivers. [4] At another time he said he last saw this child in August 2024. [5] The father provided no proof of this income. He said he worked part-time prior to July 2024. [6] This is set out at paragraphs 73 to 76 of the K decision. [7] The court wants to be clear that even if the mother did not send these texts the result in this case would not be any different. This is one small piece of many pieces of evidence the court considered in reaching its conclusion. [8] The mother testified that H.O. does not want a relationship with her. [9] The mother said she apologized to S.T. for this incident. [10] This was set out in a statement of agreed facts signed by the mother on September 27, 2022. [11] See subparagraph iii of paragraph 42 of that decision. [12] See subparagraph v of paragraph 43 of that decision. [13] A society access worker said before October 1, 2024, the quality of the visits depended on the mother’s mood. When she was in a good mood, the visits were positive. When she was in a bad mood, she was disengaged and the children were disengaged from her. [14] The father’s criminal release terms prohibit him from contacting the mother. [15] This order will be attached to this decision. It will be given a new file number and style of cause. Any future motion to change will be brought in that file, pursuant to the Children’s Law Reform Act. S.T. and the mother should take this order to APCO and begin its intake process right away. [16] APCO has a sliding fee scale. Payments will be very modest as she is on ODSP. [17] Although S.T. has her mother’s assistance, who drives, that option might not always be available. [18] This evidence came out in increments during his cross-examination. He first claimed the assault charge related to a civilian. He was reluctant to identify the victim. H then said it was, “a girl who I saw years ago – we likely had a kid together”. He finally provided M.D.’s name. He hesitated in providing the child’s name, then identified her. He did not know her date of birth. He then said he last saw the child in January 2024. He eventually acknowledged he was carrying on a relationship with M.D. while he had a relationship with S.T. and this relationship continued until August 2024. [19] The father said he tried to drop off groceries and gifts on a couple of occasions with S.T. and she refused them. He never offered her any money for child support. [20] The children had been in the society’s care since July 10, 2021.