COURT FILE NO.: FC-98-685-12 DATE: 2017/02/22 ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF A. B. (DOB […], 2005) and E. B-H. (DOB […], 2010). …

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – J. B. (Respondent Mother) H.H. (Respondent Father of E. B-H.) F. F. (Respondent Father of A.B-F.) Respondents

COUNSEL: Alison Reed and Julie Daoust, for the Applicant Lisa Sharp and/or David Ang for the Respondent Mother Malina A. Feeley, The Children’s Lawyer

HEARD: October. 17-21, 2016, October. 24-25, 2016, November 21-25, 2016 with written submissions to follow and completed on December 20, 2016

REASONS for JUDGMENT

M. LINHARES DE SOUSA J.

INTRODUCTION

[1] The matter before the Court is an Amended Status Review Application filed by the Children’s Aid Society of Ottawa (“ the Society”), seeking an order of Crown Wardship for the two children that are the subject matter of this application. They are, A.B-F., born on […], 2005, currently 11 years old and E.B-H., born on […], 2010, currently 6 years old. At the commencement of the trial both children were in foster care for a total of 24 months.

[2] The mother of the children is J.B. Ms. B. is seeking the return of both children to her care.

[3] The biological father of A.B-F. is F.F., who has not been involved in the child’s life. Service on Mr. F. of notice of these proceedings has been dispensed with as all reasonable efforts have been made to locate him. He was not present nor did he participate in the trial.

[4] The biological father of E.B-H. is H.H. Mr. H. was involved in the life of E.B-H. and visited with him for a period of time after his apprehension. Mr. H. presented an Answer and Plan of Care to the Society’s Application. Mr. H. has now denied paternity of E.B-H. and on July 13, 2016 withdrew his Answer and Plan of Care to the Society’s Application. Nor has he visited E.B-H. nor participated in the legal proceedings since that time.

ISSUE FOR TRIAL

[5] The issue for trial is whether it is in the best interests of these children to be returned to the care of their mother, under a further Supervision Order or any Supervision Order or to be made Crown Wards for the purpose of adoption. As an integral part of the of the stated issue for trial, the question that must necessarily be examined is whether Ms. B.’s current circumstances and parenting capacity, including any progress which she has made in addressing the child protection concerns in this case, justify the return of the children to her care.

POSITION OF THE PARTIES AND OFFICE OF CHILDREN’S LAWYER (“OCL”)

[6] In this matter the Society takes the position that Ms. B. still lacks the capacity to parent A.B-F. and E.B-H. As a result, they submit, that it is in their best interests that they both be made Crown Wards for the purpose of adoption.

[7] Ms. B. takes the position that her current circumstances do justify the return of both children to her care with or without a Supervision Order, as the Court deems fit.

[8] In the alternative, Ms. B. seeks the return of A.B-F. to her care and ongoing access to E.B-H., in the event that the Court deems appropriate to make him a Crown Ward.

[9] At the beginning of the trial the OCL informed the court of A.B-F’s views and wishes as expressed by the child to her during their multiple meetings. What is clear from the submissions of the OCL is that in the early months of 2016, A.B-F. was expressing the wish to return home to her mother because she knew that her mother would miss her.

[10] By September 2016, A.B-F. was more ambivalent about returning home. A.B-F. expressed to her lawyer that she could not return home because her mother still had some big issues, such as yelling and screaming at them and not giving them the attention they needed and had not changed yet. At the same time A.B-F. was indicating that she did not think she could return home.

[11] By October, 2016, A.B-F. was expressing the clear wish not to return home because her mother has not changed. According to the OCL, A.B-F. expressed this with the knowledge that it would make her mother sad and that it would hurt her feelings but that it was the truth.

[12] With respect to access to her mother and siblings, older and younger, according to the OCL, A.B-F. has been very consistent throughout in her wish to see her mother from time to time or a few times a year if she were to be made a Crown Ward. A.B-F. indicated that access with her mother made her sad and disappointed when access with her mother was cancelled. A.B-F. also expressed the wish to continue seeing her brother E.B-H. and be adopted with him if possible.

FACTUAL BACKGROUND-INCLUDING FINDINGS OF FACTS

[13] The parties were able to agree to many of the relevant facts in this case. The extent of that agreement was put into a Statement of Agreed Facts, filed as exhibit # 1 at trial. It is appropriate at this juncture to recognise the following relevant facts, some of which were agreed to by the parties and some of which I find to be a facts based on the evidence presented at trial.

[14] Ms. B. is the mother of 6 children. They are, along with their current ages:

• B.B.(1), age 23;
• T.B., age 19;
• A.B. , age 18;
• B.B.(2), age 17;
• A.B-F. , age 11; and,
• E.B-H., age 6.

[15] A.B-F. and E.B-H. are, of course the subject of these proceedings.

[16] B.B.(1) was born to Ms. B. when she was 18 years old and living in New Brunswick. For a short period of time, Ms. B. cared for B.B.(1) with the help of her mother, Ms. M. B., who also lived in New Brunswick at the time. B.B.(1) was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and had behaviour issues at a very young age.

[17] Ms. B. admitted that the care of B.B.(1) as a child was a substantial challenge and that she required help in caring for him. Ms. B. further testified that the child protection services in New Brunswick was involved with her family and that one of the protection concerns was Ms. B. exercising bad judgment and leaving B.B.(1) with inappropriate caregivers when she needed a break from his care. The matter was resolved by B.B.(1) being placed in the legal custody of his maternal grandmother, Ms. M. B., who moved to Ottawa with her husband and B.B.(1) in 1995.

[18] Ms. B. agreed that throughout her life, she has enjoyed the support of her mother. One of the ways that Ms. M. B. has assisted Ms. B. is to provide child care for her children over the years. For example, Ms. M. B. accepted legal custody of B.B.(1) and gave him a home base. For her other children in Ms. B.’s care, she frequently invited them over and cared for them. There is no question that Ms. B. relied on her mother to help her care for the children.

[19] It is acknowledged, and the evidence supports the conclusion that Ms. M. B. is getting older and has serious health problems. Now she can only provide Ms. B. with very limited support for A.B-F. and E.B-H.

[20] B.B.(1) was effectively parented by his grandmother and grandfather and is now an adult. He continues to experience many challenges in his life. As he testified, he continues to take ADHD medication and is currently being treated by a psychiatrist. B.B.(1) also testified that while growing up he saw his mother regularly and felt that she was and is always a support to him in his life. B.B.(1) also testified to his love and the closeness he feels for the A.B-F. and E.B-H. with whom he has also spent a lot of time when they were in his mother’s care.

[21] After the departure of Ms. M. B. and her family for Ottawa in 1995, Ms. B. gave birth, prematurely, to her second child, T.B. in June of 1996. T.B. remained in the Neo-Natal unit after his birth and was apprehended by the child protection services of New Brunswick. Ms. B. testified that during that period with her mother living in Ottawa, her extended family did not give her the support she had hoped for and needed. Shortly after T.B.’s birth, Ms. B. moved to Ottawa, to join her mother. Ms. B. agreed to place T.B. for adoption. Today T.B. remains with his adoptive family in New Brunswick. T.B. is 18 years old and Ms. B. has never received any communication from T.B. Neither E.B-H. nor A.B-F. are aware of T.B.

[22] The child A.B. was Ms. B.’s third born child, born to her and to her then current partner, W.S. on October 29, 1997. The Society became involved with Ms. B. when she was pregnant with A.B. The child protection file on A.B. remained open from 1997 to 2004.

[23] As is stated in the Agreed Statement of Facts, the child A.B. was the subject of continuous child protection court orders from 1998 to 2002. This is largely due to domestic violence by W.S. against Ms. B. But it was also the Society’s view that the parents had difficulty understanding A.B.’s needs.

[24] A.B. was apprehended twice in her first two years of life. A.B. was initially in foster care for 4 months, from June to September, 1998. She was returned home to the care of her parents under a Supervision Order but taken into foster care again for 10 months from March to December, 1999.

[25] While the Society continued to be involved with her family, regarding the child A.B., Ms. B. gave birth to her fourth child whose father was also W.S., namely B.B.(2) who was born on March 10, 1999.

[26] B.B.(2) was apprehended shortly after his birth based on the Society’s concerns regarding A.B., who was in foster care at the time. B.B.(2) too became the subject of a Society wardship order. In July of 1999 the Society sought leave to withdraw the pending Status Review Application regarding B.B.(2) as Ms. B. and B.B.(2)’s father agreed to offer B.B.(2) for private adoption. Ms. B. was involved in the adoption process and as she testified she picked B.B.(2)’s adoptive family.

[27] B.B.(2) was adopted in an open adoption to a family that lives in Ontario. B.B.(2)’s adoptive mother has sent Ms. B. information about, including photographs of B.B.(2) about twice each year and keeps in touch with her. B.B.(2) is currently 17 years old. To date, there has not been any communication between B.B.(2) and Ms. B. Both A.B-F. and E.B-H. are unaware of this sibling.

[28] Ms. B. finally made the decision to separate from W.S., when A.B. was approximately 3 years old. The evidence showed that at around that same time, Ms. B. married J.H. This marriage did not last longer than 30 days according to the testimony of Ms. B.

[29] After Ms. B. separated from W.S., A.B. was returned to the care of Ms. B. under a series of continuous supervision orders, all on consent, from 2000 to 2002 as set out in the Agreed Statement of Facts, paragraph 32.

[30] After January 2002, Ms. B. was no longer subject to a Supervision order but the Society remained involved with Ms. B. and A.B. on a voluntary basis until December of 2004.

[31] At some time point in 2003, Ms. B. began a common law relationship with Mr. F. which lasted for about 5 years. Mr. F. is the biological father of A.B-F. Like many of the mother’s other partners, Mr. F. had a serious drinking problem and he became verbally and physically abusive towards Ms. B. The Ottawa police were involved on several occasions to remove Mr. F. from their home. The relationship between Ms. B. and Mr. F. ended when A.B-F. was about 3 years old or in approximately 2008. Mr. F. did not have ongoing access to A.B-F. and hence he has not been involved in her life.

[32] After Mr. F., Ms. B. began a common law relationship with H.H., who is E.B-H.’s biological father, in approximately 2010.

[33] Like some of her older half siblings, A.B. had some very special needs. She was diagnosed with developmental delay, Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder resulting in severe behavioural issues. The evidence also supports the finding that A.B. could be violent and lash out at things and persons very unpredictably. A.B.’s behaviour issues became obvious at home, at daycare and in the early years at grade school.

[34] The evidence also supports the finding that try as hard as she might, Ms. B. was not up to the challenge of meeting A.B.’s very special needs and to parenting that child appropriately. And this despite the assistance she sought at that time from such programs as Cross-Roads and parenting courses at Bethany Hope. This finding of fact does not in any way impugn or throw into question the love and affection Ms. B. genuinely feels for her daughter A.B.

[35] While in the care of Ms. B., A.B. attended the M.[…] education unit of the Robert Smart Centre. Mr. Ron Kuelz was a Child and Youth Counsellor with that Centre and worked with A.B. at the M.[…] school for two school terms in 2009 and 2010. D.H. was a teacher who worked with A.B. at the M.[…] school during that same time period. Contrary to the testimony of Ms. B., both the evidence of Ron Kuelz and Matthew D.H overwhelmingly leads one to the conclusion, that Ms. B. not only neglected A.B.’s hygiene, did not work co-operatively with the school in A.B.’s best interests to reinforce the school program but also lacked insight into how her behaviour and treatment of A.B. impacted on her daughter’s severe behaviour.

[36] So concerned were the M.[…] education team working with A.B., that Mr. D.Hauthored a letter to the Society, written in the fall of A.B.’s second year at the school, filed as exhibit # 11 at the trial. That letter details certain behaviours of Ms. B. towards the school and her daughter, the persistent neglected hygiene condition of A.B. and the emotional and psychological abuse towards A.B. by her mother as A.B.’s educators perceived the situation.

[37] In 2010 the Society opened its file on the family again when Ms. B. acknowledged that she was struggling to manage A.B.’s behaviour. Since that time the child protection file has remained open dealing not only with A.B. but also A.B-F. and E.B-H.

[38] When A.B. was about 14 years old and still displaying difficult behaviour, Ms. B. voluntarily placed A.B. in the care of the Society, by way of a series of temporary care agreements, to see if the structure of a specialized group home could help A.B. improve her behaviour issues. Under the voluntary care agreements, A.B. was in care from September, 2011 to June 2012. This was followed by a period of time when A.B. was returned to the care of her mother, from June, 2012 to October 2012.

[39] However, in October 2012, Ms. B. requested that the Society remove A.B. from her home due to escalating behaviours, including physical violence towards Ms. B. and the Society worker at the time, Ms. Jessica Henry, which led Ms. B. to call the police to have A.B. removed from her home. As a result, A.B. was placed once again in the care of the Society pursuant to a third temporary care agreement which lasted from October, 2012 to January, 2013.

[40] In January of 2013, the Society commenced a child protection application with respect to A.B. seeking an order for Crown Wardship. On March 20, 2013 Justice Polowin granted a Crown Wardship with access order on consent of Ms. B. and A.B. There is no question that this was a difficult decision for Ms. B. A.B. was approximately 16 years old at the time.

[41] Subsequent to the order making A.B. a Crown Ward, Ms. B. continued to have some access to A.B., including telephone access. In her testimony in chief Ms. B. testified her access to A.B., after she became a Crown Ward, was diminished and that it was the Society worker who limited or suspended her access to her daughter. On cross-examination, Ms. B. conceded that it was she, herself, who ended visits with A.B. multiple times, sometimes for weeks on end, because of A.B.’s out of control behaviour in her home and to protect the two younger children in the home, A.B-F. and E.B-H. Ms. B. frequently called the police to deal with A.B.’s out of control behaviour.

[42] On November 11, 2015, A.B. disclosed to the Society that she had been sexually abused by her step-father, H.H., between the ages of about 11 and 14 years. Ms. B. was immediately informed of this disclosure.

[43] In the spring of 2016, A.B. who was 18 years age left the Society foster care arrangement made for her and chose to move back into Ms. B.’s home with her boyfriend W.S.. Ms. B. accepted this move and she and her current partner, D.B., tried to provide A.B. with support, in the form of food, shelter, and in organizing her medical care. Ms. B.’s partner D.B. paid for A.B.’s medication, fitness membership and other expenses. A.B.’s boyfriend, W.S.., testified at trial and confirmed how much support Ms. B. gave him and A.B. for the month in which they resided in Ms. B.’s home. In turn, W.S. has supported Ms. B. and helps her in any way he can.

[44] Ms. B. also testified that during this period she attempted to have A.B. engage in counselling for the sexual abuse she received from Mr. H. at the Eastern Ottawa Resource Centre, but without success (See exhibit # 28).

[45] The evidence revealed that after approximately one month, because of some out of control behaviour on A.B.’s part, such as self-harming behaviour and the making of threats of violence against other individuals in the home, Ms. B. once again called the police to her home as a response to her daughter’s out of control behaviour.

[46] Police Constable Patrick Lafreniere testified that he was one of the police officers dispatched to Ms. B.’s home on March 25, 2016, to facilitate A.B.’s departure from that home. His police report was filed as exhibit # 14.

[47] Subsequently, A.B. moved into her own home. A.B. and her boyfriend W.S.. now share an apartment in Ottawa and in a supported living environment for persons with disabilities.

[48] The evidence also revealed that Ms. B. continues to have an ongoing relationship with A.B. and her boyfriend, W.S.. Ms. B. also includes A.B. and W.S.in special family events when access with A.B-F. and E.B-H. takes place in the community. Thanksgiving dinner at the Swiss Chalet which took place on October 8, 2016 is one such example. From the observation notes made by the Child Youth Councillor (“CYC”) who supervised that visit (see Exhibit # 20 c), interacting with A.B. still presents notable stress to Ms. B. and their relationship continues to be problematic.

[49] For short periods of time, interactions between A.B. and A.B-F. appeared to be positive.

[50] Ms. B. remained in her common law relationship with H.H. for about five and one half years. The household consisted of Ms. B., Mr. H., A.B. when she was not in care as described earlier, A.B-F. and E.B-H. Mr. H. cared for both children, A.B-F. and E.B-H., as a father. A.B-F. called him “Daddy” although he was not her biological father. In April of 2014 Mr. H. physically hurt A.B-F., who was then 8 years old. According to Ms. Stard, the Society caseworker assigned to Ms. B. and her family, testified that the Society verified that Mr. H. hurt A.B-F. I accept this evidence. Mr. H. was arrested in the home under some pretty dramatic police circumstances, with A.B-F. in the home. He was charged with assault against A.B-F. and then prohibited from being in the family home.

[51] According to Ms. Stard, in discussions with her after this dramatic arrest of Mr. H., Ms. B. expressed some doubt about the veracity of A.B-F. revelations about Mr. H’s physical assault. Furthermore Ms. B. wanted to have Mr. H. continuing to reside in the home and to send A.B-F. and E.B-H. to the home of her mother for the duration which is what she did for a period of time.

[52] It was the evidence of Ms. Stard that it was for that reason that the Society conducted a home study of Ms. M. B.’s home where B.B.(1), who was now an adult continued to live. For various reasons, stated in Ms. Stard’s evidence, the home was found not to be appropriate. As a result the two children A.B-F. and E.B-H. were apprehended for the first time in May 2014.

[53] When questioned about disbelieving her daughter A.B-F. when she revealed that Mr. H. had hurt her, Ms. B. denied that she ever disbelieved her daughter. Ms. B.’s evidence was, rather, that she was shocked and did not know who to believe, because Mr. H. was denying he hurt A.B-F. and A.B-F. was saying that Mr. H. hurt her.

[54] I find this evidence curious, and ingenuous for a number of reasons. The evidence showed that in affidavit material sworn by her for the child protection court proceeding arising out of the first apprehension of the children in May of 2014, Ms. B. clearly expressed doubt about the veracity of A.B-F. assault disclosure against Mr. H. Ms. B. also expressed in that same affidavit material that Mr. H. was never abusive to her or the children in the home and that she had not ever seen him hit the children. This in conjunction with the fact that when Mr. H. was released pending the trial of the assault charges, Ms. B. wanted and permitted Mr. H. to return to the home for a period of time knowing that this would inevitably mean that the children, or at least A.B-F., because of Mr. H. release conditions, could not return to her care in the home. This is also very consistent with the testimony of Ms. Stard that Ms. B. never discussed with her Mr. H.’s abusive conduct or incidents of domestic violence while cohabiting with Mr. H. until after Ms. B.’s final separation from Mr. H.

[55] It is difficult to reconcile these facts with the fact that in her examination in chief and in her cross-examination at the trial Ms. B. agreed that Mr. H. did have a drinking problem and was emotionally, physically and verbally abusive. The police were called a number of times because of the domestic arguments between them that seemed to justify police involvement. Ms. B. testified that she frequently would take the children to stay with her mother so that they could be spared the domestic conflict in her home during her cohabitation with Mr. H.

[56] In the face of this evidence I find that unfortunately, at that time Ms. B. chose to continue her relationship with Mr. H. even though it may have been contributing to her inability to have A.B-F. and E.B-H. be in her care in the immediate aftermath of the assault allegations.

[57] Approximately one and half months after the May, 2014 apprehension, there was a contested care and custody motion. As a result, Justice Blishen ordered that A.B-F. and E.B-H. be returned to the care of their mother pursuant to an interim supervision order. 16 conditions were attached to the interim supervision order. The condition relating to Mr. H. read: “Ms. B. will not permit Mr. H. to attend her home, or to have any access to the children unless it is approved in advance by the Society or in accordance with an Order of the Superior Court.” (See Trial Record tab 5)

[58] This interim order became a final one on consent of all of the parties on October 27, 2014 for three months. A.B-F. and E.B-H. were found to be in need of protection pursuant to s. 37(2)(b)(i) namely that “there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child”) and pursuant to s. 37(2)(b)(ii), namely, or a “pattern of neglect in caring for, providing for, supervising or protecting the child” of the Child and Family Service Act (“CFSA”).

[59] This final order contained some 21 conditions, relating to both Ms. B. and Mr. H. who were still in a relationship. The final order once again restricted Mr. H.’s presence in the home and access to the children, “unless it is approved in advance by the Society or in accordance with an order of the Superior Court” (conditions 15 and 20). There was also a restriction on to what extent and for how many children Ms. B. could rely on her mother, Ms. M. B. to provide her with respite care from the children for her (condition 17 and 18). (See Trial Record tab 6).

[60] Prior to the expiration of the 3 month Supervision order, the children were apprehended again on December 14, 2014 and they have remained in care since that time. Initially, A.B-F. and E.B-H. were placed in the same foster home. On April 15, 2016 A.B-F. was placed in a separate foster home.

[61] This second apprehension was as a result of an incident that may or may not have taken place in the maternal grandmother’s home or that may or may not have taken place while E.B-H. was in the sole care of Mr. H. in a taxi while driving E.B-H. home from staying at his grandmother’s home overnight. The evidence on how exactly E.B-H. got hurt with an injury to his mouth that was bleeding and resulted in a serious swollen lip the next morning was and remains conflicting. What cannot be disputed and was admitted by Ms. B. was that E.B-H. was injured while she was in breach of conditions of the Supervision order in place and to which she had consented. Ms. B. admitted that it was a mistake on her part. In her evidence, Ms. B. identified the conditions of the Supervision order as the problem as there were just too many conditions to live with.

[62] On December 17, 2014 there was a consent, without prejudice temporary order made to keep the children in the care and custody of the Society. In that same order, both Ms. B. and Mr. H. were granted multiple weekly visits with the children with the possibility of increasing the frequency of those visits. Shortly after, Ms. B. and Mr. H. commenced joint visits with A.B-F. and E.B-H.

[63] On March 31 2015 Justice Kershman ordered that there be an assessment of Ms. B., Mr. H. and the two children, A.B-F. and E.B-H. pursuant to s. 54 of the CFSA to be conducted by Dr. Abe Worenklein on the consent of the parties. Dr. Worenklein was directed by the Court to address the following questions:

• The parenting capabilities of the participants in the child’s plan of care, including those attributes, skills and abilities most relevant to child protection concerns;
• Whether or not Mr. H. and/or Ms. B. have any psychiatric, psychological or other disorder or condition that may impact upon his or her ability to care for the child/children;
• The nature of the children’s attachment to a proposed participant(s) in the child’s plan of care and possible effects on the child of continuing or severing the relationship;
• The psychological functioning and developmental needs of the child/children (if any) including vulnerabilities and special needs;
• The current and potential abilities of the parents to meet the needs of the child/children, including an evaluation of the relationship between Mr. H., Ms. B. and the children; and
• The need for and the likelihood of success of clinical interventions for observed problems.

(see Trial Record, tab 8)

[64] It was only in March 2015, that Ms. B. finally broke off her relationship with Mr. H. The cause of the final rupture, on Ms. B.’s own evidence, was related to a very personal and painful revelation. Ms. B. discovered that Mr. H. was having sex with a young woman, named Ms. D. and aged 28, living in their home and who acted as an assistant to Ms. B. in the care of the children and the home. Ms. D. was a friend of Ms. B.’s oldest son B.B.(1).

[65] After their separation, Ms. B. and Mr. H. began visiting the children separately, until Mr. H. terminated his visits in July of 2016.

[66] By the time Dr. Worenklein commenced his assessment of the parties, Ms. B. and Mr. H. were separated and Mr. H. had provided his own plan of care for his biological son E.B-H. Nonetheless, Mr. H. was at that time already expressing his doubts about the paternity of the child E.B-H. according to the report of Dr. Worenklein. As indicated earlier, Mr. H. made the decision to be out of E.B-H.’s life on July 13, 2016.

[67] Shortly after her break up from Mr. H., Ms. B. began dating an old friend called R. whom she referred to as her fiancé. According to Ms. Stard, in April or May of 2015, Ms. B. wished to have R. be part of her visits with the children. Ms. Stard prohibited this from happening because according to Ms. Stard, she felt it was too soon to introduce a new person into the children’s lives. Ms. Stard later found out that R. ran into the mother “by chance” during an access visit between the mother and the children in the community. Ms. B. dated R. for about 4 months.

[68] Dr. Worenklein’s report was completed and dated September 10, 2015 and filed with the Court. (See Trial Record, tab 9)

[69] In July or August of 2015, Ms. B. began a relationship with D.B. while he rented a room in her home. They currently live together and are engaged to be married. Ms. B. sees Mr. D.B. as part of her Plan of Care for the children should the children be returned to her, as does Mr. D.B.. Acknowledging that her mother’s assistance to her is now very limited, Ms. B. testified that she feels Mr. D.B.’s support to her is enough to permit her to care for the children. In Ms. B.’s view, the children would not be spending overnights at her mother’s home any more.

[70] At the Society’s insistence and contrary to Ms. B.’s wishes, Mr. D.B.’s participation in Ms. B.’s visits with the children was delayed until the beginning of 2016. After that time Mr. D.B. began to gradually increase his attendance at the visits with Ms. B., to the point where he regularly joins her in these visits, actively interacts with the children and provides support for Ms. B. during her visits with the children.

[71] In October of 2015, the Society amended its Status Review application with respect to A.B-F. and E.B-H. to one seeking an order for Crown Wardship which was contested by Ms. B.

[72] In April of 2016, the Society argued a summary judgment motion pursuant to Rule 16 of the Family Law Rules in favour of a Crown Wardship order for the purpose of adoption without a trial, which was also contested by Ms. B.

[73] On May 5, 2016, Justice MacKinnon refused the Society’s summary judgment motion, providing her reasons for the refusal in a detailed endorsement. (See Trial Record tab. 10). The matter then proceeded to trial with confirmed trial dates commencing on October 17, 2016. But not before an access motion was set in this matter on July 13, 2016 to settle differences between the parties relating to Ms. B.’s ongoing access to A.B-F. and E.B-H. leading up to the commencement of the trial.

[74] With respect to the issue of access, the parties were able to reach an agreement, and Justice Doyle issued an order detailing the frequency, terms and who was to be present at the visits. That order can be found at tab 13 of the Trial Record. It is a generous access order, including separate visits with A.B-F. and E.B-H. and joint family visits with them; visits with not only at the Society offices but also regular monthly visits in the community; the attendance of named extended family members and Ms. B.’s partner, Mr. D.B.; the possibility of special events family visits, such as Thanksgiving; and an agreement on certain conditions that would permit make-up visits for missed visits outside of Ms. B.’s control; visits to be positive, and guaranteed to happen and the expectations imposed on both the Society,

7. The Society agrees to provide Ms. B. with: (a) Support and encouragement for her access visits; (b) Time to take a break, as needed during the visits; (c) Feedback on parenting, including what she is doing well, as well as ideas for problem areas, after the visits have taken place; and (d) Suggestions for community resources for Ms. B.

As well as on Ms. B.,

6. The Respondent mother shall cooperate fully with the following access objectives for all planned visits, as follows: (a) Ms. B. shall attend access visits when she is feeling well and in a positive mood. She shall call the Society’s access telephone line by 1 pm on the day of each visit to confirm that she is going to attend the visit. (b) Ms. B. shall cancel a visit by calling the Society’s access telephone line by 1 pm on the day of each visit if she is not feeling well enough to have a good visit; should Ms. B. contact the Society and threaten to cancel an access visit, that visit will not proceed. (c) Ms. B. shall continue to be on time for all of her visits. (d) Ms. B. shall focus on interacting with her children and having a positive experience with them. If the children act up during the visits, Ms. B. will be expected to deal with their behaviours in an appropriate way. (e) Ms. B. shall be permitted to take photos of the children with her phone, and she shall wait until the visit is over to make phone calls or text message other people. (f) Ms. B. shall signal the CYC during the visit if she is feeling anxious and needs to take a break; Ms. B. agreed to keep breaks under 10 minutes wherever possible. Ms. B. shall inform the CYC if she is feeling unwell or anxious during a visit, and understands that the visit can be ended early if necessary. (g) Ms. B. shall give feedback to the CYC, discuss any issues or concerns before or after the visit, when the children are not present.

[75] There were also counselling and medical care provisions for Ms. B. included in the consent order as well as a recognition that her family members, “specifically D.B. and B.B.(1) could be asked by Ms. B. to support her in achieving the access objectives.

[76] With some needed changes along the way, this effectively has been the access order in place since July of 2016.

PROTECTION CONCERNS IDENTIFIED BY THE SOCIETY

[77] When A.B-F. and E.B-H. were first apprehended on April 22, 2014, the immediate reason for that apprehension was the physical assault perpetrated on A.B-F. by her step father H.H. That apprehension resulted in a final order, finding that the children were in need of protection and for a Supervision order to Ms. B. with one of the conditions being protection of the children from Mr. H. whose contact with the children would be monitored by the Society.

[78] When A.B-F. and E.B-H. were apprehended the second time on December 14, 2014 the immediate cause was again a physical injury, this time to the child E.B-H., under circumstances that strongly pointed to Mr. H. once again being the perpetrator of the injury to the child, and under circumstances of a breach of the supervision order meant to protect the children from such harm. Ms. B. herself recognised that the second apprehension was as a result of her breaching the conditions of the supervision order to which she was subject.

[79] But apart from the strong evidence of risk of physical harm to the children while in the care of Ms. B.’s and the mother’s inability to protect them from her partner and physical harm, as being one of the protection concerns identified by the Society, there were other protection concerns identified .

[80] Tamara Lynn Stard, was the Society family case worker and began working with Ms. B. and her family in December, 2012. When Ms. Megan Sutton took over from Ms. Stard as the Society family case worker in the spring of 2013, Ms. Stard continued to act as the Society child care worker for the child A.B., who had become a Crown Ward in May of 2013. She continued in this role until the spring of 2016, at which point A.B. was an adult and A.B-F. and E.B-H. were in foster care.

[81] Ms. Stard testified that a red flag for protection concerns for A.B-F. and E.B-H. was Ms. B.’s inconsistent and deficient parenting of A.B. According to Ms. Stard this included, the mother’s decision to cut off all contact with A.B. when her conduct was difficult to manage, the frequent calling of the police to deal with A.B.’s behaviour and her lack of cooperation with the individuals who cared for A.B.

[82] According to Ms. Stard, Ms. B. clearly struggled in managing A.B.’s behaviour and some to that struggle began to show itself as A.B-F. and E.B-H. also began to demonstrate difficult and defiant behaviour both at home and at school. Ms. Stard had a serious concern about Ms. B.’s parenting capacity, and her ability to meet her children’s needs and to manage her children in her home without substantial support either by way of a male partner, her mother, even her oldest son B.B.(1) or other in individuals who may be living in the home, such as Mary Davies. Ms. Stard testified that she received reports from the children’s schools and the community about Ms. B.’s parenting of A.B-F. and E.B-H. The lack of consistent good hygiene for the children, as reported by the children’s school and the state of the home also became a protection concern for Ms. Stard.

[83] Ms. Stard’s experience in working with Ms. B. was that she seemed overwhelmed, called her frequently, usually with complaints about her children’s behaviour from A.B. to A.B-F. and E.B-H. and in a state of anger, harshness and upset. According to Ms. Stard, Ms. B. did share with her that the she was suffering from anxiety and panic attacks which would be triggered by the stress of her children’s challenging behaviour.

[84] Ms. Stard also found that in her dealings with Ms. B. she did not find her receptive to her suggested strategies of how to deal with A.B. and her other children especially as home structure and routine were concerned. Nor did she find her cooperative with the Society and other suggested services proposed by Ms. Stard. Ms. Stard also expressed a concern about Ms. B.’s, almost default dependence on medicating the children so as to control their behaviour. Ms. Stard testified that she suspected that Ms. B. was overmedicating the children in order to control their behaviour.

[85] When Ms. Sutton took over from Ms. Stard as the Society case worker in May of 2013, she identified the protection concerns of the Society existing at that time as being the neglect of the emotional and physical needs of the children including the basic hygiene of the children.

[86] According to Ms. Sutton, since she began her work with Ms. B.’s family in early 2013, she has not observed any notable progress in Ms. B.’s ability to parent A.B-F. and E.B-H. According to Ms. Sutton, Ms. B. still gives priority to her own needs or her own sensitivities, instead of those relating to the children. Furthermore, to Ms. Sutton’s observation, Ms. B. still requires an extra-ordinary amount of support and help from other individuals, be it her mother, her current partner, her older son B.B.(1) or others in order to parent the children and manage their behaviour or deal with things that may arise dealing with the children. In her testimony, Ms. Sutton gave concrete examples of these observations, all of which supported her conclusions.

SERVICES RECOMMENDED BY THE SOCIETY

[87] In view of these protection concerns, Ms. Stard recommended a number of services to Ms. B. Ms. Stard recommended counselling for both the child A.B-F. and Ms. B. According to Ms. Stard, Ms. B. never followed through with counselling for A.B-F., even though it was available at A.B-F’s school, until after the first apprehension.

[88] Ms. B. denies that she did not seek out counselling for A.B-F. Counselling for A.B-F. was started by there was an issue with the counsellor. Ms. B. does not deny that she did not permit A.B-F. to be seen by her school social worker for counselling because of a trust issue she had with the Society. During the time between the two apprehension of the children, Ms. B. sought to have A.B-F. admitted to a Crossroads Children’ Centre. However, by the time A.B-F. was accepted to that program, after a number of attempts to communicate with Ms. B. in April, 2015, A.B-F. had already been apprehended for the second time (See exhibit # 32). The evidence is that while A.B-F. was in the care of Ms. B., there was never a sustained period of time when A.B-F. was receiving counselling with respect to her special needs and disruptive family circumstances.

[89] With respect to her own counselling, Ms. B. informed Ms. Stard that she was getting services and seeing a psychiatrist to get medication and to help her deal with her anxiety and was seeing a counsellor weekly. According to Ms. Stard, Ms. B. expressed her desire to get anger management counselling. On cross-examination, Ms. Stard testified that through her discussions with Ms. B., she was made aware of the fact that Ms. B. had already taken an anger management course, and participated in an anxiety group with Elizabeth Fry and had taken a parenting course at the parent resource centre.

[90] It was Ms. Stard’s evidence that when the children were returned to Ms. B.’s care after the first apprehension, both Ms. B. and Mr. H. were offered parenting courses. Ms. B. did not attend because it was too far to travel. It was at this time that Ms. B. arranged for Ms. D. to live in her home and to assist her with the parenting of the children.

[91] Ms. Stard also referred Ms. B. to a CHEO “hands on” parenting program, called Caution Parent Learning Program. Ms. B. was admitted but took a dislike to the worker assigned to her in the program and so, against Ms. Stard’s advice, terminated the program and had to go on a long waiting list to get into the program again.

[92] Christa Janes was the worker assigned to work in Ms. B.’s home for the Caution Parent Learning Program. She testified that she worked with Ms. B. in her home for two blocks of time, namely November 2011 to the end of 2012 (some 30 in-home sessions of 1 to 2 hours each) and then again from May 2014 until December 2015( some 17 in-home sessions of 1 to 2 hours).

[93] According to Ms. Janes she understood her objectives to be assisting Ms. B. develop child focused routines, parent child interactions, child management, areas of concern identified by the Society with the latter identified by Ms. B. This related to the two daughters, A.B. who was in Society care at the time and scheduled to come home and A.B-F. and E.B-H. who were in the care of Ms. B.

[94] With respect to E.B-H., Ms. Janes testified that during the first period of time she worked with Ms. B., E.B-H. was seldom in the home except for two in-home sessions or for short periods of time and she understood that he was being cared for largely by Ms. B.’s mother. Ms. Janes also observed a more privileged treatment of E.B-H. to that of A.B-F. by Ms. B. when he was in the home. Furthermore, based on discussions she had with Ms. B., it appeared that Ms. B. relied heavily on her mother to care for E.B-H., A.B-F. and A.B. on a regular basis for weekend respites, for bouts of child illness, to go to doctor appointments and as discipline, if they misbehaved.

[95] When assessing her overall work with Ms. B., Ms. Janes’ evidence was that in certain areas, Ms. B. was receptive and capable of integrating some parenting practices. Developing a mealtime routine for the children was one such area, although relying heavily on the help of Mr. H. When Mr. H. was not home or was delayed at work, according to Ms. Janes, Ms. B. seemed to have more difficulty in meeting the children’s needs by herself.

[96] Another area Ms. Janes worked on with Ms. B. was to focus on the positive in the children’s behaviour by “praising” rather than focusing on the negative behaviour. She also attempted to have the mother respond in a calm way to the children’s misbehaviour rather becoming upset, and engage in screaming and yelling. According to Ms. Janes, Ms. B. seemed to understand these strategies but had difficulty applying them consistently and frequently defaulted to screaming and yelling and making threats to the children to get them to behave.

[97] Ms. Janes also identified certain consistent problematic conduct on the part of Ms. B. if she determined that she did not like what Ms. Janes was modeling or doing in her home. That was that Ms. B. would become angry with her, ask her to leave her home and cancel subsequent sessions with her. Ms. B. herself recognised she did this and acknowledged that she should not have done that.

[98] Ms. Janes terminated her work with Ms. B. after approximately one year when A.B. was back in care. Ms. B. did not think she had a need to continue. Her termination report, dated April 30, 2013, was filed as exhibit # 16 at trial.

[99] In reading that report there is no question that Ms. B. seemed to understand what was expected of her. She was able to apply some of the strategies taught and modeled by Ms. Janes and even recognised their benefits in the response of the children. However, to Ms. Janes’ observation, Ms. B. actively resisted some of suggestions and failed to consistently follow through on many of them. Ms. B.’s frequent method of coping with her stress in dealing with the children continued to be sending her children to her mother’s home when they were engaging in difficult behaviour.

[100] When Ms. Janes returned to work with Ms. B. the second time in June 2014, it was Ms. B. who called her to begin her services. Both A.B-F. and E.B-H. had been returned to Ms. B.’s care after the first apprehension. According to Ms. Janes, Ms. B. expressed to her her hope that Mr. H. could be returned to the home. At that time, as well, Ms. B. had arranged for a mother’s helper to live in the home, namely Ms. Mary Davies.

[101] During this second period, Ms. Jane testified that she had approximately 17 sessions in the mother’s home. The focus of her work was again, parent child interactions, during good behaviour and bad behaviour, home routines around meals, preparation for school and bed time routines.

[102] To Ms. Janes’ observation, when she was in the home, it was Ms. D. who did all of the cooking for the family, all of the bathing of the children and all of the transporting of the children, if they had to be somewhere. Ms. Janes recommended that Ms. B. at least do the bathing of the children herself, but this suggestion, to her observation, was ignored by Ms. B. According to Ms. Janes, Ms. B. continued to show good meal time routine with the children.

[103] According to Ms. Janes, Ms. B. was, during the sessions, quite sedentary and frequently enough distracted by the use of her cell phone especially when she should have been engaged with the children who wanted to engage with her. Ms. Janes continued to notice a difference in how Ms. B. treated A.B-F. as opposed to how she treated E.B-H.

[104] Like before, Ms. Janes testified, Ms. B. could get angry at her if she did not agree with her suggestions and would ask Ms. Janes to leave her home, but that this occurred less frequently.

[105] Ms. Janes filed her termination letter, dated December, 17, 2014 at the end of the second block of time she spent with Ms. B., as exhibit # 17. That report demonstrates some progress made by Ms. B. in such things as positive reinforcements of the children’s good behaviours as well as in the consistency of some routines, especially meal routines. However, overall, there was little progress in the parent child relationship especially as it related to the child A.B-F. Furthermore, there are instances described in Ms. Janes’ report demonstrating some problematic and troubling treatment of A.B-F., ignoring her emotionally and requiring that she spend a lot of time in her room.

[106] According to Ms. Janes, Ms. B. continued to treat the children’s bad behaviour in an excited state or upset with a raised voice. And this even, with the understanding that she had with Ms. B. that Ms. B. could absent herself discreetly if she felt her anxiety was reaching intolerable proportions.

[107] According to Ms. Janes, Ms. B. continued to threaten the children with inappropriate consequences or threats such as the continued use of sending the children to her mother’s home as a disciplinary measure for difficult behaviour. Ms. Janes testified that she knew that the mother appeared well versed in a number of discipline strategies that she could use with the children. However, according to Ms. Janes, Ms. B. had difficulty applying the strategies and following through on them consistently, especially if she was upset.

[108] Regarding why she terminated her work with Ms. B., Ms. Janes testified that, given the length of time she had spent with Ms. B. and her family, the little progress or gain made, to her observation, and the continual prompting Ms. B. needed to consistently apply good and appropriate parenting, she decided to not continue working with Ms. B. and allocate resources elsewhere.

[109] For her part, Ms. B. spoke very positively of the assistance she received from Ms. Janes. Ms. B. testified that she felt that Ms. Janes treated her with respect and she enjoyed discussing things with her, which is why she wanted her to come back the second time. Ms. B. agreed that her own behaviour of asking Ms. Janes to leave her home when she had a disagreement with her was not acceptable and she attributed it to her anxiety disorder.

[110] Ms. Sutton testified that since she became the family case worker she has tried to help Ms. B. by firstly, devising the very detailed access order which is now in place on the consent of all parties. Secondly, she has participated in monthly access meetings, with Ms. B., her counsel and the access supervisors, where access is planned for with as few changes as possible so as to not create any added stress for Ms. B. She communicates with Ms. B. by e-mail and tries to give her as much notice as she can relating to any change in the access schedule. Ms. Sutton has also engaged supports for Ms. B. during her access, so that she could absent herself from access visits for short periods of time if she felt her anxiety level was elevated. Ms. Sutton also testified that extended family, such as Ms. B.’s current partner or son B.B.(1) are permitted to attend access to support and assist Ms. B. during the access to E.B-H. and A.B-F.

[111] Despite all of these efforts, It was Ms. Sutton’s view that Ms. B. continues to struggle with managing the children’s behaviour and interacting with the Society supervisors and workers during the access as revealed by the supervised access notes, often to the detriment of the children who observed and experienced their mother’s upset and uncontrolled anger.

[112] It was Ms. Sutton’s evidence that Ms. B. seems to require an extraordinary amount of support to manage and parent her children even for the short periods of access. It was Ms. Sutton’s view that despite all of the assistance the Society had given Ms. B., she has demonstrated very little progress in the problematic areas of her parenting and her high levels of anxiety continue to be an obstacle to her proper parenting of E.B-H. and A.B-F.

[113] It was the opinion of Ms. Sutton that Ms. B. continues to give priority to her own needs rather than the special needs of the children. Some examples she gave was Ms. B. not cooperating to meet Dr. Palframan regarding his assessment of A.B-F., Ms. B. refusing to provide the Society with A.B-F.’s birth certificate, Ms. B. refusing to change access to permit A.B-F. to attend a camp she wanted to attend and finally taking a holiday in September, of 2016 when it meant more missed access visits for the children when missed visits were a painful issue to A.B-F.

SPECIAL NEEDS OF A.B-F. AND E.B-H.

EARLY YEARS PRIOR TO APPREHENSIONS

[114] There is no question that both E.B-H. and A.B-F. are children with special needs, special needs that appeared very early on in their child hood both from the children’s child care givers, school and medical care givers.

[115] Dr. Huot is the pediatrician chosen by Ms. B. to treat her children from birth and he did so until December12, 2014 when two days later the children came into care. Dr. Huot’s medical records for both A.B-F. and E.B-H. were filed as exhibits # 9 and 10 at the trial.

[116] Dr. Huot diagnosed both A.B-F. and E.B-H. with Attention Deficit Hyperactivity Disorder (ADHD) at a very young age, 3 or 4 years. There may also have been some oppositional defiance behaviour identified on the part of A.B-F. Dr. Huot was aware from Ms. B., who called him frequently over the years, that the children demonstrated difficult behaviour both at daycare, school and home. Dr. Huot, in his treatment of A.B-F. and E.B-H., prescribed ADHD medication (Ritalin and others).

[117] In his testimony, Dr. Huot expressed some frustration with Ms. B. and her handling of both A.B-F. and E.B-H., as he observed it. Firstly, he stated that according to his records Ms. B. was seldom the person who brought the children to their appointments with him. It was usually her mother, Ms. M. B. Ms. B. also did not always make the appointments made for the children with his office. Dr. Huot’s medical records showed that both children’s immunisations were up to date (see exhibits # 29 for A.B-F. and 36 for E.B-H.).

[118] Dr. Huot also noted a marked difference in Ms. B.’s ability to be calm with the children as compared to her mother. According to Dr. Huot, Ms. B. tended to get upset, raise her voice and was unsuccessful in getting the children to listen to her. Whereas, Ms. M. B. seldom had difficulty getting the children to comply with her demands.

[119] Dr. Huot also testified that he frequently addressed this with Ms. B., namely that the parental handling of children with ADHD, and behavioural disorders, such as calmness, consistent parenting, and a focused strategy of behavioural modification was as important as the medication he prescribed for the children. Dr. Huot’s medical notes indicate that he recommended parenting courses and other counselling community services as early as 2011, to Ms. B., Ms. M. B., to Dr. Huot’s observation, seemed overwhelmed by her contribution to the care of her grandchildren.

[120] Dr. Huot’s perception of the mother’s response to this advice was to dismiss it and to pressure him for either more medication or different medication when Ms. B. perceived the prescribed medication to not be working. Dr. Huot also noted in his medical reports that Ms. B. expressed her displeasure with Dr. Huot when he would not grant the prescriptions she thought she needed for the children.

[121] Dr. Huot expressed his frustration with Ms. B. in a letter to the CAS dated July 17, 2014 and filed as exhibit #7.

[122] Ms. B. conceded that she disliked attending at Dr. Huot’s office and usually left it to her mother to take the children there. Her reason was that she felt judged by Dr. Huot and disrespected.

[123] Dr. Huot was not aware that Ms. B. was also taking A.B-F. to other doctors at the Sunshine Clinic where she saw three different doctors, Dr. Sethi, Dr. Arora and Dr. Elrefai and was prescribed medication for her ADHD as well as other ailments.

[124] The Sunshine medical clinic records are found at exhibits # 30 and July, 2013 appears to be the earliest appointment and April, 2014 appears to be the last appointment. On April 24, 2014 (page 29 of exhibit # 30) Dr. Arora wrote a medical report recognising Dr. Elrefai as A.B-F’s family doctor and that she had ADHD and was under treatment for that.

[125] There is no indication in those records of who was taking A.B-F. to those clinic appointments, but Ms. B. testified that she herself generally took A.B-F. although her mother might have gone a few times but not a lot. The Sunshine clinic notes do not seem to have received any records from Dr. Huot concerning his treatment of A.B-F. since birth and his diagnosis of her ADHD. The Clinic prescription notes appear to recognise a diagnosis for A.B-F. of “Hyperkinetic syndrome of childhood” or ADHD. Dr. Sethi testified that A.B-F. was not really her client and that she came in as a walk in clinic patient to have her medication refilled.

[126] There do not seem to be any separate medical notes from the Sunshine Clinic with respect to E.B-H. There do not appear to be any medical records indicating that he was ever taken to the clinic for examination or treatment. However, at page 28 of exhibit # 30 can be found a note written by Dr. Sethi, dated 25 August, 2014, that “Both A.B-F. and E.B-H. are in good health with normal weight and height.” Both children, at that time were in the care of Ms. B. under a temporary supervision order.

[127] In addition to her ADHD and other behavioural issues, the parties agree that A.B-F. continues to have a problem with incontinence, which is a medical condition that she is expected to grow out of. Other members of A.B-F’s family suffer from a similar ailment. Ms. B. never sought any specific medical treatment for her daughter’s condition. Ms. B.’s evidence was that she always took A.B-F.’s accidents in her stride, made no big deal about it and made sure that A.B-F. was always bathed properly.

[128] A.B-F.’s primary enuresis was recognised by a number of doctors who treated A.B-F. both before she came into care and after, but to date no specific treatment has been given to her.

[129] I am satisfied, on a preponderance of evidence, that Ms. B.’s assertions concerning how she dealt with A.B-F.’s enuresis and hygiene generally, is not supported by the evidence. There is ample evidence in the testimony of A.B-F.’s teachers at both the C.[…] school (Ms. B.2–grades 1 and 2) and S.[…]’s school (Ms. L.W.- grades 3 and 4), that A.B-F. frequently attended school in an unkempt manner. Both these teachers testified that, to their perception, the smell from A.B-F.’s enuresis and lack of bathing created social, emotional and well-being issues for A.B-F. with her peers that they tried to address with Ms. B. and ease at school through various methods.

[130] Ms. B.2 testified that while Ms. B. attended the school infrequently, she was in communication with her frequently by telephone. She testified that Ms. B. seemed to dwell on the negative aspects of A.B-F.’s behaviour and often referred to A.B-F. in a disparaging way.

[131] Ms. B.2 testified that she attempted to discuss parenting strategies with Ms. B. but did not find her very receptive to her suggestions or want to change what appeared to Ms. B.2 as a chaotic home life. Ms. B.2 also asked Ms. B. if she would see a community social worker but Ms. B. did not express any interest in pursuing this suggestion. Ms. B.’s evidence was that she had no memory of this. As far as she was concerned A.B-F. was always bathed, had clean clothes and hair which was always combed.

[132] Nor was this issue ever raised by the CAS to Ms. B.’s recollection. However, it is clear that Ms. Janes saw it as an issue during the two periods of time she worked with Ms. B. in her home. Ms. Stard also testified to her observations of the state of Ms. B.’s home during some of her visits, particularly one where she witnessed A.B-F. using a pail in the kitchen to urinate. Ms. B. gave an explanation of why she had such a pail in her kitchen.

[133] Ms. B.2. testified that the school developed an informal independent learning program (“IEP”) for A.B-F. and she seemed to do better, academically, in a highly structured environment.

[134] Ms. B.2 also produced A.B-F.’s attendance records from the school which showed a high absence level. These were filed as exhibit #12. Although denied by Ms. B., Ms. B.2. testified that Ms. B. informed her that she kept her daughter home from school as punishment for bad behaviour. Ms. B. did not deny this and indicated that she denied A.B-F. certain school outings as part of her reward chart approach to A.B-F.’s discipline.

[135] Ms. L.W. testified that she raised the issue of A.B-F.’s unkempt condition at school with Ms. B. and even gave her some shampoo and some used clothing for A.B-F. Ms. Leigh testified that Ms. B. appeared to receive her donations and suggestions well. Ms. B.’s evidence was that while she appreciated this gesture from Ms. L.W. she was insulted by it because it was like telling her that her daughter’s hair was dirty. It was Ms. L.W.’s testimony that things did improve for a while after her suggestions but were not sustained by Ms. B.

[136] She too indicated that Ms. B. seldom came to the school but that Ms. B. would be in communication with her by telephone almost daily regarding A.B-F. misbehaving and tantrums.

[137] To Ms. L.W.’s observation, A.B-F. continued to have academic problems and her homework was seldom completed. Socially A.B-F. continued to have problems mingling with her peers at school. Rather, she craved adult attention at the school but never discussed her home life with anyone. Ms. L.W. wrote a letter to the CAS concerning her experience with A.B-F. and Ms. B. when A.B-F. was in her school, filed as exhibit # 13 and dated December 15, 2014.

[138] For her part Ms. B. testified that she agrees she did not attend at A.B-F.’s schools when she was in her care often but was in communication with the school by telephone or e-mail. Ms. B. testified that at the Cambridge school, A.B-F. was doing well and she saw no reason to go to the school. With respect to St. Michael’s school she communicated by telephone or e-mail. Ms. B. had no knowledge of whether a socio-educational assessment of A.B-F. was ever done.

[139] Despite her ongoing academic and behavioural problems, it is clear that A.B-F. continued to progress through her early grade school and there were some successes. A.B-F’s report cards from kindergarten to grade 4 were filed as exhibit # 33. In grade 3, A.B-F. was in an Independent Learning program. Most of her marks in the early school years were in the Bs and Cs with a few notable As. Increasingly, in the later years her marks were in the Cs and Ds and there are references in those school reports to A.B-F.’s conflictual behaviour and to her absences from school. The various school awards and recognitions A.B-F. received were filed as exhibit # 35.

[140] A.B-F. completed her grade 4 (IEP) while she was in the foster home of Ms. Ploughman. Her report card for that year was also part of Exhibit #33 and shows her marks to be primarily in the Bs and Cs.

[141] With respect to E.B-H., his behavioural issues also surfaced at a very young age at daycare. He too was diagnosed with ADHD and prescribed medication by Dr. Huot. While one cannot conclude that E.B-H. essentially lived with his grandmother from a very young age until his apprehension, it is fair to conclude that he spent an inordinate amount of time being cared for by Ms. M. B. Ms. B., herself testified that E.B-H. was at her mother’s 3 to 4 times per week, on weekends, when she and her partner were in conflict and other times when Ms. B. was having medical treatment.

[142] Ms. B. accepted the substantial care E.B-H. received from her mother as natural, because of the love and affection between E.B-H. and her mother and he was the baby. Ms. B. explained in her evidence why this was. Nonetheless the end result is the same, that by the time E.B-H. was apprehended, there had been a lot of movement by E.B-H. in his care, travelling between his mother’s home and that of his grandmother, different households with different routines and different decision making.

[143] Dr. Huot’s medical notes are peppered with references to E.B-H.’s difficult behaviour at both day care and at school. While in his mother and grandmother’s care E.B-H. attended SS.1’s day care and the V.[…] Cooperative Preschool, located at A.[…] School.

[144] Like in the case of A.B-F., E.B-H.’s ADHD was treated with ADHD medication. There was evidence as well that E.B-H.’s grandmother dealt with E.B-H.’s difficult behaviour and his inability to sleep, on her own initiative by giving him Nyquil.

[145] Prior to his apprehension, other than the ADHD medication prescribed by Dr. Huot, there were not assessments or counselling sought for E.B-H.

AFTER THE APPREHENSIONS

[146] After both children were apprehended the first time, the CAS arranged for a psychiatric consultation with Dr. Palframan. Dr. Palframan began to work with the family after the first apprehension, in May of 2014, during their return home to the care of their mother under a Supervision order at the end of June, 2014, and after the second and final apprehension in December of 2014.

[147] The results of Dr. Palframan’s involvement with A.B-F. and E.B-H. are set out in a series of reports written by him at Exhibit 15 a to 15 g. Dr. Palframan also testified at the trial and his qualification as a consulting psychiatrist were not questioned.

[148] Dr. Palframan testified that his mandate in his consultation with respect to both A.B-F. and E.B-H. who had come into Society care was to determine whether the ADHD diagnosis for both children was correct, or whether their ADHD like behaviour was precipitated by something else.

[149] With respect to this mandate, there is no question that the Society case worker responsible for Ms. B. was questioning whether both children’s difficult behaviour was related to ADHD or to Ms. B.’s parenting of the two children. Dr. Palframan also testified that he met with Ms. B. and she reported to him that her view was that the ADHD medication A.B-F. had been prescribed was not working long term. Ms. B. identified to Dr. Palframan that she had, with A.B-F., tried Dexedrine, liquid Ritalin, regular Ritalin, long lasing Ritalin, Concerta and Clonidine.

[150] It would appear that this was the reason Dr. Palframan did not make an ADHD diagnosis for the children right away upon interviewing the children and determined that no ADHD medication should be tried, at least for the summer of 2014.

[151] In a July 3, 2014 assessment (exhibit #15b), Dr. Palframan found that,

A.B-F. simply did not demonstrate symptoms of ADHD either in the foster home, or during my visit with her which I tried to make pretty exciting. There were no clinical reason from what I have read and observed for this child to be on minor stimulant medication or sleeping medication because she slept well without medication during the 6 weeks in her foster home.

[152] In that same assessment, Dr. Palframan concluded that, with respect to E.B-H., was a “normally active 4 year old boy”, as reported by his daycare and foster mother with no reason, “to be on stimulant medication.”

[153] In a report dated July 7, 2014, Dr. Palframan recommended a parenting capacity evaluation be performed on Ms. B. and any partner she may be living with, who at the time would have been Mr. H. The issue of a parenting capacity assessment was contested by Ms. B. and became the subject of a S. 54 assessment motion brought by the Society before the court.

[154] Justice Kershman on March 31, 2015 ordered an assessment, pursuant to S. 54 of the CFSA to be done by Dr. Worenklein. The individuals to be assessed were Ms. B., Mr. H., E.B-H., A.B-F. and any other identified partners/spouses of either Ms. B. and Mr. H. and any other family member, with their consent, deemed necessary by the assessor.

[155] Justice Kershman’s order also specifically listed questions to be addressed by Dr. Worenklein as the following:

• The parenting capabilities of the participants in the child’s plan of care, including those attributes, skills and abilities most relevant to child protection concerns;
• Whether or not Mr. H. and/or Ms. B. have any psychiatric, psychological or other disorder or condition that may impact upon his or her ability to care for the child/children;
• The nature of the children’s attachment to a proposed participant(s) in the child’s plan of care and possible effects on the child of continuing or severing the relationship;
• The psychological functioning and development needs of the child/children (if any) including vulnerabilities and special needs;
• The current and potential abilities of the parents to meet the needs of the child/children, including an evaluation of the relationship between Mr. H., Ms. B. and the children; and
• The need for and likelihood of success of clinical interventions for observed problems.

[156] Based on subsequent events and additional information, such as a complete Connor’s 3 Teacher Assessment Report on A.B-F. and other teacher reporting, Ms. B.’s reports and his own observations, as explained by Dr. Palframan in his assessment dated October 23, 2014, he determined at that time that his “working diagnosis at this time is Attention Deficit Disorder with hyperactivity mixed type.” As a result he prescribed ADHD medication for A.B-F. (Methylphenidate in the Ritalin 20 mg SR form 1 pill in the morning and also possibly .2 mg of Clonidine every night to help her sleep). Dr. Palframan could not explain why the symptoms had been absent under different circumstances in the foster home in the past. Dr. Palframan in his report also recognised the uncertainty in A.B-F.’s family situation (Mr. H. was out of the home but Ms. B. hoping he would be able to return; new home assistant by Mary Davies). Dr. Palframan did not address E.B-H. in this report.

[157] Dr. Palframan produced another medical report on A.B-F. as a result of a meeting he had with Ms. B., requested by her regarding her need to have clarification regarding A.B-F.’s medical treatment while in her foster home. Both children were in the same foster home at that time and had been there since the last apprehension in December of 2014, some 16 months. The report is dated March 17, 2016. Dr. Palframan summed up his assessment of A.B-F. at that time as follows:

“I answered to the best of my ability Ms. B’s appropriate questions about the kind of medical care her daughter A.B-F. was receiving. The Children’s Aid has informed me that A.B-F. is using Methylphenphenidate to deal with ongoing ADHD symptoms. These symptoms are present in the school and have been partially remedied by the ADHD medication. In the past it was difficult to be certain about this diagnosis because A.B-F. was living under highly stressful circumstances, almost guaranteed to produce serious anxiety and this can exactly mimic ADHD symptoms. It may be that the current situation has settled things with A.B-F. to the point where ADHD medication is finally effective and the diagnosis is somewhat clarified.”

[158] There was a second report by Dr. Palframan, also dated March 17, 2016, as a result of a meeting he had with A.B-F. The reason for the consultation at that time was identified by Dr. Palframan as firstly, the difficulty that A.B-F.’s primary enuresis continued to cause her (exasperation, embarrassment and anger) and secondly, the “great difficulties in her relationship with her younger half-brother, E.B-H.” in the foster home, which Dr. Palframan perceived to be grounded in A.B-F.’s very real perception of E.B-H.’s favoured treatment while in the care of her mother and sometimes in the foster home. Dr. Palframan also identified some emotional difficulties A.B-F. was having resulting from problematic visits with her mother and her mother’s behaviour during the visits.

[159] In this medical report Dr. Palframan recommended a trial of therapy of anti-diuretic hormone to see if it would help with A.B-F.’s enuresis but left it up to A.B-F’s regular medical doctor, Dr. Benoit Robert. The evidence showed that A.B-F. was never prescribed any medication for her enuresis. It was the evidence of Ms. Stard that upon discussing the matter with Dr. Palframan he explained A.B-F.’s enuresis as an immature bladder, and so she took no further steps to deal with the issue.

[160] Dr. Palframan also concluded, given the emotion upset caused to A.B-F. by the dynamics between herself and E.B-H., “that in terms of long range planning that the usual rule of having siblings [be] in the same home together need not necessarily be applied to A.B-F. and her half-brother”.

[161] The factors justifying this conclusion, in the view of Dr. Palframan, included the facts that they were half-siblings, E.B-H. spending much time in the care of his grandmother while A.B-F. was more in the care of her mother, both of which he saw as would “contribute towards a reduced natural biological and behavioral tie between the 2 children”, and the “perceived favoritism which is painful to A.B-F. and has distorted their relationship.”

[162] The evidence showed that as a result of this recommendation and the continuation of difficult behaviour on the part of A.B-F. in the foster home that she shared with E.B-H., A.B-F. was moved to a different foster home in the spring of 2016 , that of N.J.. Ms. Stard, in explaining why A.B-F.’s foster home was moved, testified that the Society was of the view that in the foster home she shared with E.B-H., because of the demands of other children, A.B-F. was not receiving the individual attention she needed to thrive. Ms. Stard also testified that the Society has ensured that E.B-H. and A.B-F. continue to visit with each other which they both enjoy.

[163] With respect to E.B-H., after he came into care, the Society arranged for a full psychological assessment because of concerns about his development and his observed slowness in processing information. Ms. B. was asked to fill out a Connor’s report in aid of this assessment but according to the testimony of Ms. Stard, Ms. B. never did this and the foster mother and the school provided this report. In the foster home E.B-H. was reported to be capable of following through with simple one step instructions about 50 % of the time. School reports (at that time in a senior kindergarten program at Greely public School) indicated the following difficulties: lack of academic progress in all subject areas; difficulty being involved in class tasks although working hard and enjoying electronics and technology; lack of attention; craving adult attention; making few connections with his peers and demonstrating aggression towards his peers.

[164] E.B-H. underwent a number of tests and also had an interview with an occupational therapist. Dr. Rouillard made the following assessment of E.B-H.

Overall results of this assessment suggest an estimated intellectual functioning in the low end of the Borderline range compared to same-age peers. Results also show some delays in various areas of his development. Estimated delays of at least 2 years were found. Socially, E.B-H. is perceived as being quite immature and dependent on others around him and lacking social skills. As per his foster parents and the school, E.B-H. shows some signs of attention problems, as well as social problems in both environments.

In summary, E.B-H.’s current developmental profile associates to a slow learner with significant cognitive deficits in varied areas compared to same-age peers. Further, the presence of emotional/social adjustment difficulties are believed to be impacting negatively on his day-to-day functioning. Also, although signs of attention problems were present, they do not fully meet the criteria to confirm the presence of an Attention Deficit Disorder (ADHD). It is however recommended to continue to closely monitor and to provide additional support where need be.

Overall, E.B-H. is considered to be at risk of continued academic achievement problems.(See Exhibit # 5, Report dated February 16, 2016)

[165] At the end of her assessment, Dr. Rouillard made a long list of recommendations required to meet E.B-H.’s special needs, including continued medical monitoring, an individualised education program that would address all of his deficits, adult facilitation in social interactions with his same-age peers, the breakdown of tasks into small steps, regular reading opportunities, long term, “a structured and predictable environment” both at home and at school and a future psycho-educational re-assessment in 2 to 3 years’ time to monitor and address E.B-H.’s needs.

A.B-F. AND E.B-H. IN FOSTER CARE

[166] Until A.B-F.’s move to the foster home of Ms. N.J., both children were placed in the foster home of L.P. after both apprehensions. Both children were found to be in general good health when they were apprehended both times (See reports of Dr. Fellegi (good general health but some oral hygiene issues) filed as exhibits 22 and 23).

[167] Ms. L.P. testified at the trial to her experience with E.B-H. and A.B-F. when they came into her care.

[168] With respect to A.B-F., it was the evidence of Ms. L.P. that when A.B-F. came after the first apprehension, the first 6 weeks were good. Although Ms. L.P. found her to be “clingy” with her, A.B-F. generally got along well with the other children.

[169] However, shortly after and after the second apprehension A.B-F. began to demonstrate very problematic behaviour including little impulse control and notable tantrums after refusing to do something that would include kicking and crying and swearing. According to Ms. L.P. during these episodes A.B-F. could damage property and be aggressive with other children. Ms. L.P. found that A.B-F.’s behaviour tended to get worse on the days she usually visited with her family. Ms. L.P. found A.B-F. to be anxious on those days.

[170] With respect to A.B-F.’s hygiene, Ms. L.P. testified that when A.B-F. came into care she was not clean and had no underwear. Ms. L.P. later found out that A.B-F. did not know how to put on her underwear. With respect to urination, A.B-F. was capable of urinating at different places in the house.

[171] Ms. L.P. confirmed that A.B-F.’s enuresis was a source of embarrassment to her. She noted that A.B-F. would try to hide the signs of it. Ms. L.P. also found out that A.B-F. was also trying to hide the fact that she was drinking during the night.

[172] Ms. L.P. also found problematic the fact that A.B-F. and E.B-H. began to demonstrate very conflictual interactions. Ms. L.P. acknowledged a series of e-mails between herself and Ms. Stard, dating from February, 2015 to November, 2015 wherein Ms. L.P. outlines some of the difficult behaviour she was experiencing with A.B-F., and between A.B-F. and E.B-H. and discusses some possible solutions. Ms. L.P. also did not deny that at times she found A.B-F.’s misbehaviour extremely challenging. Furthermore, she testified that the incident during which her response to A.B-F.’s out of control behaviour was to use the word “ass” was not a good idea.

[173] Ms. L.P. testified that two things helped her with A.B-F. difficult behaviour around April of 2015. One was the help of a CYC in her home once a week to assist her with A.B-F. behaviour. The second was the resumption of the ADHD medication for A.B-F., nonetheless at a much reduced dose than she had been having when she first came into care. According to Ms. L.P. this medication was primarily to help A.B-F. focus on her school work. She did not see it as the remedy for A.B-F. difficult behaviour.

[174] Ms. L.P. testified that, commencing approximately in November 2015 she began to have some respite care on the weekends for A.B-F. where she would be the only child. According to Ms. L.P. this was accepted positively by A.B-F. who craved the individual attention it gave her. According to Ms. Ploughman, it also permitted her to dedicate more time to E.B-H.

[175] Ms. L.P. testified that her e-mail communication from Ms. B., after the first apprehension, was blocked. It was Ms. L.S.’s evidence that she found Ms. B.’s e-mails belligerent and accusatory. Conflicts arose over the sending of pictures and it was Ms. L.S.’s evidence that she sent both pictures and school report cards when asked. It was Ms. P L.S.’s evidence that she prefers Ms. B. not to attend the children’s events because she found her behaviour to be disruptive.

[176] Despite the added help, Ms. L.P. received in helping her care for A.B-F.. The Society made the decision, in March of 2016, to permanently move A.B-F. to another foster home where she would be the only child.

[177] N.J., A.B-F.’s current foster mother testified to her care of A.B-F. Ms. N.J. testified to having to teach A.B-F. how to bathe properly and to wash her hair when she first came to her home. Ms. N.J. testified that A.B-F.’s enuresis continues to be an issue but that she has trained A.B-F. on the routine of cleaning herself and disposing of her (“D”) diapers which according to Ms. N.J. she seems to have accepted. Ms. N.J. has raised A.B-F.’s enuresis with her doctor but no medication has been prescribed for it at this time. A.B-F. continues to take medication for ADHD.

[178] Ms. N.J. testified that getting A.B-F. to brush her teeth properly can still be a challenge but does it with her and A.B-F. seems to do better with that presence.

[179] With respect to her observations of A.B-F’s emotional wellbeing, Ms. N.J. testified that A.B-F. demonstrated to her low self-esteem and impulse control with the possibility of some aggression. Ms. N.J. testified that she specifically worked on her behavioural “melt downs” suggesting alternative ways to deal with her upset. According to Ms. N.J., since near the end of June 2016, she has seen a noted improvement in A.B-F. The child’s melt downs are less frequent and for a shorter duration.

[180] According to Ms. N.J., A.B-F. tends to be “moody” after visits with her mother. However, Ms. N.J. gives her some space and this tends to pass. A.B-F., according to Ms. N.J., speaks to her very little about the interactions she has with her mother. Ms. N.J. testified that A.B-F. has never said to her that she does not want to visit with her mother and is upset when such visits are cancelled.

[181] Ms. N.J. also observes A.B-F. to be an affectionate child who craves and wants the affection and hugs. According to Ms. N.J., A.B-F. needs to be reassured that she is loved, particularly as far as her brother E.B-H. is concerned who A.B-F. very definitely perceived to be the favoured child.

[182] With respect to E.B-H., Ms. N.J. saw that A.B-F. has a solid relationship with her brother, E.B-H., whom she loves and wants to see. To that end, Ms. N.J. has ensured that the two siblings do get together at such things as birthday parties. Ms. N.J. testified that she even invited A.B. to A.B-F.’s birthday party. Although it was the testimony of Ms. N.J. that A.B-F. seldom speaks of her brother, B.B.(1) or her sister A.B. According to Ms. N.J. A.B-F. does love her grandmother and speaks about her.

[183] At school, according to Ms. N.J., A.B-F. has also demonstrated progress and recently was very proud to have received an A in mathematics. Ms. N.J. is in communication with A.B-F.’s teacher frequently and is given to believe that A.B-F. has a positive attitude to school, has made a number of friends and is doing all of her school assignments.

[184] With respect to future care of A.B-F. Ms. N.J. and her spouse are not able to offer A.B-F. adoption as an option. According to Ms. N.J., if A.B-F. were to be made a Crown Ward then she could continue to live in her home. Ms. N.J. would respect all directions for access made to her for A.B-F.

[185] This evidence supports the finding that the movement of A.B-F. to the foster home of Ms. N.J. has been to A.B-F.’s benefit. On September 29, 2016, Dr. Palframan wrote another report after meeting with A.B-F., Ms. N.J. and Ms. Stard. Dr. Palframan noted the progress shown in A.B-F. on both the behaviour at home and at school, as well as in her school conduct. At school, over the last month, A.B-F. was noted to have made “excellent progress in school and behavioural problems appear to be virtually nonexistent.”…”she gets along better with the other children. A.B-F. says she has friends and she really likes school.”

[186] Dr. Palframan in his report of September 29, 2016 also noted the struggles A.B-F. continues to demonstrate as a result of her ADHD and recommended an adjustment to her medication to help with this. He also noted that A.B-F. could still pose some oppositional difficulties within her foster family. However, as reported by the foster mother her temper tantrums and sulking last a few minutes and A.B-F. appears to get herself under control fairly quickly.

[187] Dr. Palframan also noted that there was a marked improvement in A.B-F’s self-care necessitating less coaching to keep up with good standards of hygiene. A.B-F. still struggled with her primary enuresis.

[188] Dr. Palframan also reported on September 29, 2016 that A.B-F., although loyal to her mother, was finding visits with her disappointing especially when visits were cancelled by her mother. A.B-F. struggled with the uncertainty of her legal status. Dr. Palframan concludes his report with the words:

[189] “This situation of lack of permanent planning has gone on for several years with A.B-F., she has demonstrated that she can improve significantly given a stable home environment and such an environment should be the goal of the future planning.”

[190] Regarding E.B-H., Ms. L.P. testified that when E.B-H. first came into her care he was generally in good health but had terrible oral health that necessitated substantial oral surgery. She found him to be, for a child his age a bit lethargic and tired. According to Ms. Ploughman, E.B-H. had difficulty doing basic things asked of him. His delays also demonstrated themselves in school where in grade one he needed an independent education program to address his delays. His behaviour at school with the other students had to be closely watched because he can be aggressive with other students.

[191] According to Ms. Ploughman, E.B-H. has advanced in a number of fronts. He gets along better with his peers and is well liked by the other students. He loves to engage in certain activities such as swimming and trampoline.

[192] Ms. L.P. testified to the efforts made to have E.B-H. spend time with A.B-F. such as at birthday parties. According to Ms. L.P., E.B-H. seldom speaks of his mother but speaks of his grandmother and loves to see her.

[193] Ms. L.P. is not able to offer adoption to E.B-H. as an option. However, if E.B-H. is made a Crown Ward, it was Ms. L.S.’s evidence that E.B-H. is welcome to stay in her home as long as it may take to have him adopted. Ms. L.P. further testified that she would continue to facilitate E.B-H.’s access with his biological family if E.B-H. were to be made a Crown Ward with the right of access.

ACCESS

[194] Access with their biological family has taken various forms since A.B-F. and E.B-H. came into care. When Ms. B. was together with E.B-H.’s father, she and Mr. H. generally visited the children together.

[195] Once they separated, in March of 2015 then they began to visit separately with E.B-H. Mr. H. terminated his visits with A.B-F. These separate visits continued until Mr. H. made his decision to stop visiting with E.B-H. all together. Ms. B. then wanted her current partners to also visit with the children, it was not until the beginning of 2016 that Mr. D.B. began to visit the children with Ms. B. on a regular basis.

[196] Throughout, various members of the children’s extended family would also from time to time be present for the access visits, namely the children’s maternal grandparents and their older sibling B.B.(1). B.B.(1) at times visited in place of Ms. B. when she could not attend. Access was always supervised or semi supervised. Access generally took place at the Society offices with occasional visits in the community.

[197] Access was a source of conflict between Ms. B. and the Society regarding, when and where it should take place and who could attend. It was Ms. B.’s evidence that from the beginning her access visits with the children under the conditions imposed by the Society were frequently a source of anxiety and panic attacks for her. It was her evidence that just entering the Society building to exercise her access to A.B-F. and E.B-H. created within her anxiety and panic.

[198] As was mentioned early, in July of 2016, the parties reached a comprehensive agreement on a very detailed plan for access, inclusive of individual visits for each child, family visits and regular visits in the community. Regular monthly monitoring meetings became part of the plan to deal with any access changes and problems that might arise. Ms. B. was free to and at times had her counsel present at these meetings.

[199] The voluminous supervised access notes were unified in three bound volumes with the consent of counsel, and filed with the court as exhibit # 20 a, b and c. The exhibit included the supervised access observation notes from two distinct periods, from May to June, 2014 and from January, 2015 to October, 2016 when this trial began. In the course of the trial, a special Christmas, 2016 access order was granted by me to permit the access to take place in the home of the maternal grandmother under stipulated conditions (See my order dated November 25, 2016).

[200] In addition, 5 different witnesses were called who had been involved in supervising the visits between the children and Ms. B. and other family members since their first apprehension in 2014. Ms. Michela Ferguson supervised the majority of the access for two periods, from January to April, 2015 and from September to October, 2015. Ms. Ferguson testified that in the beginning visits were for two hours but reduced to one and a half hours because two hours were found to be too long for Ms. B. Ms. Ferguson also testified that in the beginning she supervised joint visits with Ms. B. and Mr. H. but they then began to have separate visits which she also supervised.

[201] Ms. Brittany Carter supervised the majority of the access from November, 2015 to April, 2016, twice per week for approximately one hour to one and one half hours. During this same period, Ms. Anita Wolfe replaced Ms. Brittany Carter when she could not attend. Ms. Anita Wolfe testified that she supervised some 17 visits during this period. Ms. Tarrah Pugh also supervised 7 access visits, now and again between May, 2015 and October 2016.

[202] Ms. Laura Kader testified that she supervised the majority of the access form July, 2016 to the commencement of the trial, which included 3 visits per week, one with one of the children then a family visit either in the Society offices or in the community.

[203] In the written submissions of counsel for the Society and for counsel for Ms. B., there appeared to be a disagreement as to the level of Ms. B.’s missed visits over the course of the access period covered. Having examined all of the supervised access notes, I conclude that the Society’s submissions on the extent of Ms. B.’s missed visits, the visits where she arrived late and left early are the more accurate. Over the course of the access period identified, I have to conclude there were a notable amount of missed visits by Ms. B. All of the reasons identified by Society counsel in their submissions for the reasons for the missed visits are supported by the testimony of the CYCs who supervised the visits and by the supervised access observations notes. Some of those reasons are as follows: refusing the room offered by the Society for access; refusing a visit because of who was assigned to supervise the access visit; not having called the access line to check-in when Ms. B. knew she had to check in; having high anxiety; refusing access on the same day as Mr. H. at one time but then at other times willingly speaking to him in the Society building; refusing to attend access because of a condition she had insisted on having with the Society; refusing to attend access with E.B-H. alone because A.B-F. was skiing; shortening an access visit because E.B-H. was not there; and choosing to go on vacation rather than attend access but somehow associating it with the fact that E.B-H. had gone on a holiday with his foster family (See exhibit #8).

[204] Nonetheless, clearly, there were more visits attended than missed visits. It is recognised that Ms. B. has continued to visit her children over this long period of time under what she would call trying circumstances. Ms. B. perceived that the Society access location and the Society supervision aggravated her anxiety and panic disorder.

[205] What is more important, however, are two things relating to the missed visits. The first is the effect Ms. B. missing her visits or having the visits terminate before they were able to begin or terminating visits early had on the children and on A.B-F. in particular. The second are the reasons for the missed visits.

[206] There is ample evidence to show that when visits with her mother were not able to happen, for whatever reason, A.B-F. was saddened, disappointed and at times angry. I find from the evidence that Ms. B. was aware of this. At times Ms. B. seemed to deal with missed visits in a child focused manner. Seeking out the advice of Tarrah Pugh as to how she could tell her children that visits would not take place during the course of the trial was one example of this another was Ms. B.’s willingness to allow A.B-F. to attend a foster family function when it conflicted with her access.

[207] However, at other times, and perhaps more often than not, Ms. B. did not seem to be able to control her anger or upset at the Society and its workers, in the interests of the children, which led to cancelling visits, aborting visits that were about to take place and creating upset scenes in front of the children that led to the early termination of the visits. All of the CYCs, except for Ms. Wolfe testified to being a witness to one and possibly more of these upsetting incidents during access, in the presence of one or both of the children, that resulted in a disruption of the access. These occurred not just at the Society location but also in the community.

[208] All 5 CYCs who supervised Ms. B.’s access with her children testified to their knowledge of Ms. B.’s suffering from anxiety and being subject to panic attacks. All testified that Ms. B. discussed this with them openly. They also testified that it was an accepted protocol that if Ms. B. felt like her anxiety level was getting too high she was free to leave the access room, go to the washroom and take a few moments to calm down before returning to the access rooms. All CYCs testified to observing Ms. B. doing this, for various periods of time, or requesting that they step into the access room from behind the screen in order to support her through an anxious period during access. Ms. Pugh, who had both professional and personal experience with anxiety and panic attacks testified that she never witnessed the mother have a panic attack but certainly saw her being anxious.

[209] A number of the CYCs testified that if Ms. B. had a member of the extended family with her or one of her partners, she relied on and needed their help during the visits and she tended to do better than if she were visiting with the children on her own. As Ms. Ferguson described it, it was like she needed another set of hands to carry out the tasks of the visit. When visiting on her own, according to some of the CYCs, Ms. B. tended to ask more often for assistance from the access supervisor. A number of CYCs testified that Ms. B. tended to be sedentary during the visits, giving directions to others and the children as to what should be done.

[210] In their observations of Ms. B. visiting with her children, all 5 CYCs provided similar evidence. All agreed that upon arrival, there was genuine affection between Ms. B. and her children with lots of hugs, kisses and comments about how much they missed each other. To the observation of all CYCs the children always appeared glad to see their mother and other extended family members who might be present. The children were particularly fond of the maternal grandparents and their brother B.B.(1) and were always happy to see them. The same genuine demonstration of affection occurred at the end of the visits.

[211] All CYCs testified that Ms. B. was always prepared for the visits. She had planned and brought with her activities to do with the children such as crafts or board games. Ms. B. also always provided either a meal or a substantial snack or both for the children during the visit. All CYCs agreed that special occasions, such as family birthdays, Halloween, Christmas, thanksgiving, Easter etc. were important to Ms. B. and she always did something special to mark these events with the children.

[212] All CYCs testified to observing what can be called “good” visits that Ms. B. had with her children and was capable of having with her children. Ms. B. could engage the children in conversation, showing an interest in their school, their life in foster care and their activities. She was able to appropriately redirect the children when required about their manners or behaviour towards her or each other. Ms. B. could praise and encourage the children in their activities. She was able to appropriately discipline the children when necessary. All five CYCs testified that the children’s behaviour during the visits could be somewhat challenging which tended to raise Ms. B.’s anxiety level and increase her need for a break.

[213] All CYCs identified some problematic aspects of Ms. B.’s access with A.B-F. and E.B-H. which demonstrated themselves from the beginning to the end of the access period covered by exhibits 20 a, b and c. While the evidence showed some positive development occurred over the time period, certain problems continued to persist and be observed over the whole period of access, including periods of upset where police were called by Ms. B.

[214] Ms. Ferguson testified that to her observation at a number of visits, Ms. B.’s choice of food and snacks was not the healthiest, with an overabundance of processed and sweet food. E.B-H., because of his dental issues was not to have sweet food. According to Ms. Ferguson when she identified this as a problem to the mother, there was some improvement in the quality of the meals and snacks for a time but it was not sustained.

[215] Ms. Ferguson also observed that Ms. B. at times engaged in adult and inappropriate conversation with the children such as details of her anxiety and referring to her anxiety medication as “candy”.

[216] Ms. Ferguson also noted that Ms. B. was frequently preoccupied with her cell phone which took away from her active interaction with and attention to the children. When Ms. B. was refused permission to include her current boyfriend in the visits, Ms. B. would have the children speak to her boyfriend on the cell phone during the visits and the children would, of course, not know who this person was. When Ms. Ferguson raised the issue of her excessive use of the cell phone during the visits, Ms. Ferguson testified that Ms. B.’s response was not positive. She became angry with her and refused to interact with her. Ms. B.’s evidence was that she needed her phone to feel secure.

[217] Finally Ms. Ferguson also observed that Ms. B. exercised differential treatment with E.B-H. and A.B-F. Ms. B. was more ready to respond to E.B-H.’s show of affection than that of A.B-F. and might brush A.B-F. off or be distracted and not really respond to her.

[218] Ms. Carter testified that to her observations of Ms. B.’s access visits, the meals and snacks which she brought for the children were often fast foods and unhealthy with few fruits and vegetables. It was Ms. Carter’s evidence that she discussed this with Ms. B. but that she, Ms. Carter did not notice any follow-through with her directions

[219] According to Ms. Carter she had to caution Ms. B. a number of times to refrain from discussing adult conversation with the children.

[220] Ms. Carter testified to two incidents during which Ms. B. became so upset that Ms. B. disrupted the visit for a period of time. The first was December 19, 2015 when Ms. B. became upset when E.B-H. was not at the visit because of an illness (foot, mouth and hand disease). A.B-F. was there and it took some coaxing and time to have Ms. B. return to the access room so she could have her visit with A.B-F. who was there. There is no question that Ms. B. later apologised to A.B-F. for this and told her how much she missed E.B-H.

[221] At a subsequent visit weeks later, Ms. Carter observed Ms. B. disrupt a visit with her children, on hearing from A.B-F. that A.B-F.’s foster mother had called her an “ass”. There was also an incident over A.B-F.’s foster mother cutting A.B-F.’s hair in a way Ms. B. did not like and Ms. B. had great difficulty in not making known to A.B-F. her displeasure. Ms. B. would not listen to the direction from Ms. Carter to deal with these issues after the visit but persisted in making the topic the focus of the visit, such as phoning her mother and telling A.B-F. to recount to her grandmother what had happened with her foster mother and on leaving the access room insinuated that she wanted to damage the supervisor’s property. All of this was in the presence of the children.

[222] During the visit on February 12, 2016, Ms. Carter observed another incident where Ms. B. got extremely upset with A.B-F. because she had informed her mother that she was missing some Winterlude fun because she had to come to the access visit. Ms. B. took great offence A.B-F.’s comment and called her “rude” when A.B-F. made reference to the mother’s missed visits. According to Ms. Carter., Ms. B. remained upset and terminated her visit a half hour early. To Ms. Carter’s observation, A.B-F. was extremely upset by her mother’s reaction. Ms. B.’s evidence was that she found her daughter’s statements “hurtful”.

[223] In one final incident testified to by Ms. Carter, in March 2016, the children were late arriving at the access visit because of bad behaviour in the car on the way to access. Ms. B. had an appointment after the access and could not extend the visit as offered by the Society. Ms. B.’s response to this situation was to become very upset and she eventually left before the children arrived. Once again, according to Ms. Carter, A.B-F.’s upset at the missed visits was obvious and A.B-F. seemed to think the visit was missed because of her.

[224] Ms. Kader testified that she too observed the mother to bring unhealthy meals and snacks. Ms. Kader raised this issue with her and Ms. B. told her that she was not aware of E.B-H.’s oral dental issues but that she would change the meals to provide healthier and less sweet products. Ms. Kader testified that Ms. B. responded positively to this suggestion and complied for a number of visits after their discussion. However, according to Ms. Kader the changes were not sustained.

[225] She also observed that the mother often chose the watching of a film with the children as an activity. Ms. Kader raised with the mother that this passive, non-interactive activity might be better replaced with activities that had mother and children interacting and engaging with each other such as games or story-telling and reading. Once again, according to Ms. Kader, Ms. B. began to organise different activities with the children but towards the latter part of her supervision period Ms. B. began relying on movies to occupy her time with the children.

[226] Ms. Kader testified that she observed Ms. B. discuss her anxiety and panic disorder symptoms and medication and parenting courses with E.B-H. Ms. Kader raised this issue with Ms. B. and suggested it was not appropriate to discuss such things with the children. Ms. B.’s response was that it was perfectly fine to discuss these topics, as well as topics of her parenting courses, with her children.

[227] Ms. Kader observed Ms. B. refuse to continue with a visit in August of 2016 when she was told she had not phoned in before the visit, which had been agreed to at one of the many access protocol meetings which Ms. B. had attended with her lawyer.

[228] On August 8, 2016, Ms. B. attended for a visit with E.B-H. alone but would not go into the access room without her partner D.B. even though E.B-H. was already there. Ms. B. continued to be so upset that the visit did not take place. According to Ms. Kader, E.B-H. was told that his mother was sick and could not visit with little observed reaction from him at being told this.

[229] Ms. Kader also supervised a family access visit on October 8, 2016 to celebrate Thanksgiving at the Swiss Chalet with the two children, her parents, B.B.(1) and A.B. and her partner. Mr. D.B. was not able to be there to help with the visit. In her evidence, Ms. Kader testified one hour into the visit Ms. B. became anxious. A.B. and her partner being late seemed to be a source of anxiety to her. According to Ms. Kader, shortly after the meal, Ms. B. absented herself from the visit because her mother felt unwell, leaving Ms. Kader to care for the children in her absence, even though Ms. B. was advised to stay with the children and make other arrangements to take her mother home. When Ms. B. returned some 20 minutes later to resume the visit at the Dollarama, Ms. B. then rushed the children through the Dollarama store and asked Ms. Kader to shorten the visit by a half hour because Ms. B. had run out of things to do with the children. While A.B-F.’s foster mother came quickly to get her when called, E.B-H.’s foster parent took slightly longer to get there. Nonetheless, Ms. B. left the access, leaving E.B-H. in the care of Ms. Kader until E.B-H.’s foster parents could come and retrieve him. Ms. B. did not deny that this visit was problematic and that she should have organised things better.

[230] Ms. Wolfe testified that she could identify many positive aspects of Ms. B.’s access visits with her children, such as her very affectionate greetings with the children, the fact that she always had meals for the children and the fact that Ms. B. could demonstrate positive and affectionate interaction with the children. To Ms. Wolfe’s observation, the meals and snacks were often on the non-nutritional side.

[231] However, it was Ms. Wolfe’s evidence that Ms. B. did not take any feedback from her easily and once Ms. B. felt she had a grievance arising out of the access, Ms. B. could not control her escalating aggressive and disrespectful behaviour towards the Society and its staff, in the presence of the children, to the point of total disruption to the access. For Ms. B., the issue needed resolving then and there, even though her children were there to visit with her.

[232] Ms. Wolfe testified that one example of this, among others, occurred on June 16, 2016 when Ms. B. took issue with Ms. Wolf inserting herself in Ms. B.’s interaction with the children and then following her into the bathroom to have her discuss it. Ms. Wolfe admitted that she made mistakes that day in the way she dealt with Ms. B. Nonetheless, the end result was that a Society visit, followed by a community visit, was disrupted for the children and Ms. B. threatening Ms. Wolfe and threatening to terminate future visits in the presence of the children.

[233] Ms. Wolfe also testified that she had to speak to Ms. B. about always watching movies with the children as an activity and suggested doing other things such as board games which required more interactions with the children.

[234] Ms. Wolfe indicated that Ms. B. was receptive to this suggestion some of the time.

[235] It was also Ms. Wolfe’s observation that Ms. B. tended to sit still during the access and had others, including the children, get things for her. Ms. Wolfe testified that at times Ms. B. appeared tired and inattentive to what the children were saying, such as the time she asked E.B-H. how his camp was multiple times. To Ms. Wolfe’s observation, while Ms. B. could be quite affectionate with the children, she would also at other times speak to them in angry and aggressive tones and at times yelled and screamed at them.

[236] Ms. Pugh, although she supervised the least number of visits, by far, between Ms. B. and her children, saw few problems when supervising Ms. B.’s access. Her observations were that Ms. B. was affectionate with her children, and she also disciplined the children appropriately. To Ms. Pugh’s observation Ms. B. could properly engage her children in activities.

[237] With respect to the food Ms. B. brought, Ms. Pugh generally found the food appropriate although the mother did from time to time resort to fast food.

[238] Ms. Pugh testified that she had no difficulty in her interactions with Ms. B. when she gave her feedback on the visits. In fact, Ms. B. often discussed with her and asked her how she did on the visits. Ms. B. would ask her advice on how to handle a certain situation or a certain topic with the children.

[239] Ms. Pugh did see Ms. B. absent herself from the access room when she became anxious and how often she did this depended on the day.

[240] Ms. Pugh testified that a few times she had to redirect Ms. B. to focus on the children when she was spending too much time engaging with Ms. Pugh. She also observed Ms. B. discussing her anxiety and the need for anxiety medication with the children. This was around September of 2016 shortly before the commencement of this trial.

[241] Since the beginning of 2016, Ms. B.’s partner, Mr. D.B. has accompanied Ms. B. to the access visit, usually on the family day visit once per week. The evidence showed that his role at the access visits is to do whatever will assist Ms. B. with the visits with the children. He transports her to the visits, helps carry and prepare the food and he engages the children in activities and takes the children to the bathroom. Mr. D.B. will also go and get Ms. B.’s medication, at her request, when she needs it. To Ms. Kader’s observation, this was always at the instructions and lead of Ms. B.

[242] It was Ms. Kader’s view that Mr. D.B. did not appear to have a moderating effect on Ms. B. If she got upset rather than try to calm her down, he would get upset to reinforce Ms. B.’s upset. Mr. D.B. was questioned about his participation in some of the troubling access incidents. He testified to Ms. B.’s upset regarding them but did not seem to have a lot of knowledge as to what caused them, other than what he seemed to have been told by Ms. B.

[243] Mr. D.B., in his testimony, testified that, as far as he is concerned, it was Ms. B. who decided what ultimately happens at the access visits because A.B-F. and E.B-H. are her children and he attempts to stay neutral. His evidence was that he is there to help the mother. Mr. D.B. foresaw that things would be different with a more active co-parenting on his part once the children returned to their mother’s care. Mr. D.B. testified that if the children were returned to the care of their mother under a supervision order to the Society, he would work with the Society worker and that he would not jump into something without knowing what going on.

[244] Ms. Stard testified that the expectations and goals for access were made very clear to Ms. B. and put in writing. As Ms. Sutton testified monthly access meetings with the Society workers, the CYCs, the Society counsel and Ms. B. and her counsel became part of the Society’s protocol in assisting Ms. B. deal with her anxiety relating to access. At these meeting, a monthly schedule of access would be set in accordance with the order of Justice Doyle July 13, 2016, changes to the access schedule would be discussed, and any past issues relating to access would be discussed by way of feedback. Goals and expectations for access would also be discussed and agreed to, such as the one testified to by Ms. Brittany Carter and filed as exhibit # 19 and which addressed such issues as the nature of the meals and snacks brought by Ms. B., the use of her cell phone, what could be discussed with the children and the nature of the communication between the mother and the Society workers and CYCs.

[245] It is evident from the evidence that when these monthly access meetings first began Ms. B. struggled to participate in them and to maintain her calm. She often had to leave the room and one time sat with her back to everyone. However, towards the end the evidence supported the conclusion that Ms. B. began to participate more calmly at these meetings. Ms. Pugh testified to one such meeting she attended on September 23, 2016 because the regular CYC could not attend. Ms. Pugh found Ms. B. to be calm, participating actively in the discussion and receptive to the feedback. Ms. B., according to Ms. Pugh, did not storm out and stayed to the end of the meeting. Ms. Pugh did not observe Ms. B. to be anxious or to be having a panic attack. The CYC supervisor Ms. Dube also confirmed this notable improvement in Ms. B.’s behaviour at these monthly access meetings between May and September of 2016. Although Ms. B. got upset at a recent meeting when the Society workers wanted to have a confidential discussion during the course of the monthly meeting. Nonetheless, according to Ms. Dube, despite all the time that has passed, Ms. B. still struggles to occupy all of the visit time she has with the children and she struggles to manage her anxiety and panic disorder so that her conduct and anxiety episodes remain unpredictable.

DR. WORENKLEIN’S REPORT AND UPDATE.

[246] In accordance with the court order of Justice Kershman dated March 31, 2015, Dr. Worenklein filed his assessment of Ms. B. and her children with the court and dated September 10, 2015, found at tab 15 of the Trial Record. Dr. Worenklein also testified at the trial. Dr. Worenklein’s report also included an assessment of Mr. H. which by the time of the trial was not relevant because Mr. H. had decided to be out of E.B-H.’s life.

[247] Dr. Worenklein testified to the methodology used by him in assessing the B. family, the interactive observations of Ms. B. with her children, his own interviews with the children, his extensive collateral contacts and his review of the case’s documents.

[248] Dr. Worenklein also conducted multiple and extensive psychometric personality testing on Ms. B. During his assessment of Ms. B., Dr. Worenklein found Ms. B. to be cooperative and responsive to all of his questions. The results of his psychological testing of Ms. B. can be found at pages 16 to 20 of his report, the details of which can be read there. It is not my intention to repeat these findings, suffice it to say that Dr. Worenklein found some of Ms. B.’s personality traits problematic to her parenting capacity and to her perceptions of her children and he testified to this. Dr. Worenklein, at page 24 of his report questioned Ms. B.’s insight and accurate perception of her parenting of A.B-F. and E.B-H. in her personal circumstances and interactions with the Society over the years. He saw Ms. B. attributing much of the difficulties to her current partners, such as Mr. H. According to Dr. Worenklein, Ms. B.’s perception of the causes of her difficulty was very different from what he was hearing about in the supervised access reportings and from other collaterals that had extensive contact with Ms. B. and her family.

[249] The multiple collateral sources consulted by Dr. Worenklein were requested to be seen by the parties and included Dr. Palframan, the children’s teachers, Ms. C.S. of the G[…] Elementary School, Ms. A.V., E.B-H.’s educator, Ms. S.H., E.B-H.’s learning specialist, Ms. B.’s medical care provider, the Sunshine Medical clinic, Ms. Ann Carson Pempier, clinical supervisor at the Catholic Family Services, Ms. Cathy Arsenault, coordinator of the Vanier Cooperative day care centre, Christa Janes of the Ottawa Child Treatment Centre, Mr. Bruno Crites, supervisor of the Overbrook Community Center, Dr. Wendy Stewart of the Elizabeth Fry Society of Ottawa, and the observation reports for the supervised access

[250] Dr. Worenklein observed Ms. B. interact with her children which included A.B-F. substantially confronting her mother about not saying good-bye at the last visit and demonstrating some jealous behaviour to Ms. B.’s treatment of E.B-H. to which Ms. B. responded by telling A.B-F. to stop whining. He did observe Ms. B. engage with the children in game playing (page 29 or the report dated September 10, 2015).

[251] Dr. Worenklein was aware of Ms. B.’s anxiety and panic disorder and the treatment she was receiving for it. He was aware that this anxiety and panic disorder at times demonstrated itself during the access visits. Dr. Worenklein did not see such a disorder, in and of itself, determinative of parenting capacity. Only when such a disorder interfered with and debilitates a parent’s capacity to properly care for their child did it become problematic. Dr. Worenklein also stated that taking medication for a general anxiety disorder without cognitive therapy would be useless.

[252] Dr. Worenklein also interviewed the children separately in their foster homes. Dr. Worenklein in observing the behaviour of the children while with him confirmed their special needs as identified by other professionals, already mentioned (pages 39 to 42 of the report dated September 10, 2015). Dr. Worenklein concluded that both children were in need of professional interventions to deal with their special needs.

[253] Of note in Dr. Worenklein’s assessment and which he found to be problematic was his identification of a very conflictual relationship between A.B-F. and her mother that was a source of emotional difficulty for A.B-F. Dr. Worenklein found A.B-F.’s anxiety level to be high as was her anger and depression levels. While he found A.B-F. to be very protective of her mother and at times saying she does not know why she does not live with her mother, he states at page 40 of his report:

I did have the opportunity to meet with A.B-F., who, at times, was somewhat evasive when asked questions about some of her responses. A.B-F. was provided with a report card where she had to grade her mother on certain parenting qualities a result of her evasiveness and her contradicting herself. She was clear that she did NOT believe that her mother understood her moods, that she was able to keep her secrets, that she helped her make her look her best, as well as screaming at her when she is angry. She also reported that her mother does not let her make her own decisions. However, she did report that her mother was able to explain her actual age, helps her look her best and listens to her problems as well as helps her buy things that she wants. At the same time, the undersigned did not have the sense that she was processing the questions but that she responded in a haphazard way at times.

[254] Dr. Worenklein also noted the progress both children had made since being in foster care. In fact, in his oral evidence on November 25, 2016, Dr. Worenklein testified that the 4 adults who live in her foster home give her a lot of attention which she loves, is good for her and from which she benefits. A.B-F. is happy in her current foster home.

[255] Dr. Worenklein’s conclusions and recommendations are found at pages 52 to 57. Dr. Worenklein raised questions about Ms. B.’s ability to follow through in a consistent manner, such as recommendations for treatment with respect to the children. At page 53 of his report Dr. Worenklein identified risk and protective factors and was not optimistic, in view of the history of child care and Ms. J. B’s current ability to provide adequate care to the children and to take responsibility for their well-being, the number of Society involvements and the lack of corrected behaviour. Dr. Worenklein was of the view that Ms. B. had not shown the requisite motivation to parent the children appropriately and to meet their special needs. He found that Ms. B. lacked insight into the extent and nature of the children’s special needs. Ms. B. lacked the follow-through required to meet the special needs of the children.

[256] Dr. Worenklein stated that both children because of their special needs required consistent positive parenting with active involvement in all aspects of the child’s life. At page 56 of his report dated September 10, 2015 Dr. Worenklein states:

….In fact, the children have difficulties academically emotionally and socially and there is a lack of emotional stability within the family in addition to difficulties for the parents to read a child’s cues or moods as well as a lack of insight in terms of what the children need. One as well needs to consider the difficulties that are suggested by the parents not being able to prioritize the children’s needs.”

[257] For all of those reasons Dr. Worenklein “strongly” recommended Crown Wardship.

[258] In reading the report of Dr. Worenklein dated September 10, 2015 it is obvious that he did not deal with one of his mandates, namely to explore the potential impact on the children of the severance of their relationship with their mother in the event of an order for Crown Wardship with a view to adoption. There is no question that the children enjoy an attachment to their mother.

[259] During the course of his questioning, Dr. Worenklein stated that he could not opine on this issue in view of the passage of over a year since he dealt with the family and wrote his report. According to Dr. Worenklein, in order to give a proper opinion about the impact of continuing or severing the children’s ties with the mother and the extended family, he would have to interview the children again and observe the relationship. Ultimately, according to Dr. Worenklein it would depend on whether the relationship between the child and parent was a positive and productive one to the child.

[260] In fact Dr. Worenklein even went further in stating that, given the passage of time and having had brought to his attention certain facts about what Ms. B. has done to deal with her personal and family circumstances, of which he was not aware, Dr. Worenklein was not willing at the trial to stand by and endorse on the stand his final conclusions and recommendations found in his assessment of September 10, 2015. If Ms. B. had demonstrated no change, then he would stand by his original recommendations.

[261] In the course of the trial, the parties were generally able to agree to the parameters of a follow-up evaluation of Ms. B. and the children to be conducted by Dr. Worenklein.

[262] His second report was dated November 21, 2016 and filed as exhibit # 44. Dr. Worenklein also testified again about the re-evaluation carried out by him. For the purposes of the re-evaluation, Dr. Worenklein once again observed Ms. B. interact with the children for two hours outside of the Society office and interviewed the children separately. His observations of Ms. B. interacting with the children are found at pages 4 to 5 of his report. The visit from his account was a good one although when cross-examined he found the mother to be stationary for a good part of the time during the visit.

[263] In the re-evaluation Dr. Worenklein had, Ms. B. again undergo some of the psycho-metric testing he used before, obtaining similar results as the previous tests. In particular, he noted possible deficits in self-knowledge, relationships that were not long lasting and when she finds herself in difficult situations lacks insight into her role in or contribution to the negative situations. Dr. Worenklein also noted that the psychological test results seemed to indicate that Ms. B. tended to anger easily and quickly and could also be happy or animated easily and quickly. When questioned about how these personality traits may impact on parenting, Dr. Worenklein stated that children with the special needs demonstrated by A.B-F. and E.B-H., require a great deal of patience in their parenting because of their challenging behaviours. According to Dr. Worenklein someone who angers or is animated easily, without the necessary filters would lack that patience and act impulsively with a negative effect on the children.

[264] Dr. Worenklein also found that Ms. B. demonstrated the traits of a dependent personality, who have to call on the help and support of others to make decisions and carry them out.

[265] When asked about his views on Ms. B. openly discussing her panic and anxiety disorders and treatment with the children, Dr. Worenklein stated that he did not find that advisable because children like A.B-F. and E.B-H. need substantial security and to know that the “parent” is in control of the situation. Dr. Worenklein also opined that breaks from access, in order to deal with episodes of anxiety, from a personal point of view should not be an issue. However, Dr. Worenklein examined it from the child’s perspective and found that at that emotional level it could become problematic and detrimental to the child.

[266] Dr. Worenklein reiterated again in more detail that anxiety and panic disorders can be treated with medication. In his cross examination by counsel for Ms. B., Dr. Worenklein repeated that he did not view an anxiety disorder as caused by one thing such as the Society or having access in the Society offices. The disorder, according to Dr. Worenklein is more generalised and may present problems to the mother in other contexts.

[267] However, according to Dr. Worenklein, cognitive behaviour therapy is also extremely important and useful for this disorder. Dr. Worenklein testified that cognitive behaviour therapy teaches the individual to identify the triggers of the anxiety episodes and to work through them and control them.

[268] Dr. Worenklein was made aware that Ms. B. had been receiving cognitive behaviour therapy from Dr. Spindler for almost two years but could not express an opinion of how successful future cognitive behaviour therapy would be for her. Dr. Worenklein agreed that he viewed Ms. B.’s counselling with Ms. McShaffry as a form of cognitive therapy for her. Dr. Worenklein did emphasise the importance of motivation in these matters.

[269] On Cross examination Dr. Worenklein was asked, that if the evidence showed that Ms. B. has demonstrated some improvements and positive changes in her anxiety control and in her dealings with the Society, would that predict success for the future. Dr. Worenklein testified that such a hypothetical would be a positive development, however, if the anxiety episodes still persist despite the application of the cognitive therapy, other strategies would have to be looked at.

[270] Dr. Worenklein requested the respective foster parents of the children to complete certain assessment tools for the children. E.B-H.’s special needs continued to be obvious. He scored high on emotional distress, social problems, defiant and aggressive behaviour, academic difficulties, language and math issues, hyperactivity and violence potential indicator.

[271] A.B-F.’s special needs also continued to be obvious. Dr. Worenklein observed a notable change in A.B-F.’s openness about her relationship with her mother. He stated at pages 7 and 8 of his report:

A.B-F. was quite unequivocal that she wants to see her mother but she does not believe that it would be best for her to live with her mother. She pointed out “it would not be good at home. She would be going back to yelling…”In contrast, she reported regarding her foster home, “I like it here and there are three other people here, I like the school I’m at. When I leave school, the teachers here to miss me”…In fact, it was reported that if she would go back to her mother’s home, “she is going to do the same thing again”. She expressed upset with her mother who “misses appointments often”. In fact, when asked if she could talk to anybody if something was bothering her, she would speak to her foster mother…. She furthermore was quite open with respect to her mother and was clear that her mother would scream at her when she is angry and that her mother did not let her make her own decisions. She furthermore did not believe that her mother would keep her secrets and that her mother did not make good meals. However, she was quite clear that she was very hurt by her mother and took it personally when her mother cancelled the visit.

[272] For the follow-up re-evaluation Dr. Worenklein also spoke to Ms. Shard for the Society. He also spoke to Ms. Dube, Supervisor of the Society supervised access program to be brought up to date on the supervised access that had taken place since his earlier report. From Ms. Dube he was informed of the problems that continued with respect to Ms. J. B’s supervised visits with her children, in particular the missed visits and why the visits that were terminated early, the disrupted visits and the continuing substantial support that Ms. B. required to get through her visits with the children. Improvement in the visits were also noted by Dr. Worenklein.

[273] Dr. Worenklein spoke to Ms. McSheffry of the Jewish Family Services and learned of the counselling Ms. B. started and continued with her in the New Ways Program. Dr. Worenklein learned from Ms. McSheffrey that Ms. B. was a willing and engaged participant in the program.

[274] Dr. Worenklein also spoke to the respective foster parents of the children. From Mr and Mrs. Ploughman, Dr. Worenklein learned that E.B-H.’s difficult behaviour, especially with his peers continues to be very challenging. E.B-H. continues to face some very difficult learning challenges but, as reported by his teacher at the G.[…] school, E.B-H. does much better in a very structured class routine. However, E.B-H. appears to be comfortable in his foster home. Ms. L.P. stated that E.B-H. needed “permanency”

[275] E.B-H.’s foster parents reported that E.B-H. continues to be happy after he sees his mother. However, at the same time visits with his mother were a source of anxiety for him when his mother would not show up at the visits such as the visit following the visit with Dr. Worenklein. Missed visits also seemed to coincide with very difficult behaviour by E.B-H., such as the stabbing of another foster child with a child’s scissors. E.B-H. loved to visit with his grandmother.

[276] Ms. L.P. reported that Ms. B. was not in agreement with E.B-H. going with his foster family on a vacation to Cuba, with the end result being that E.B-H. would have to stay in a temporary home, while his foster family was away.

[277] Ms. N.J. expressed concerns to Dr. Worenklein about A.B-F.’s disappointment and upset (she “loses it”) after her mother has missed visits with her or when the visits involve some conflict between A.B-F. and her mother.

[278] On the school front Ms. N.J. reported that A.B-F. has made tremendous progress in an IEP. Ms. N.J. indicated to Dr. Worenklein that A.B-F. is able to live in her home as long as is possible.

[279] In his conclusions and recommendations found at page 15 and 16 of his re-evaluation dated November 21, 2016, Dr. Worenklein expressed concern for the lack of consistency of visits between Ms. B. and the children and the negative affect this was having on both children but especially A.B-F. Dr. Worenklein would not express an opinion, in his oral evidence, about the number of visits or even the reason for the missed visits. To him, the effect of missed visits on the children was what was important.

[280] Dr. Worenklein noted that A.B-F. has expressed the clear wish not to live with her mother because of what has taken place. Although, A.B-F.’s wish to continue seeing her mother is equally clear.

[281] With respect to E.B-H., his need for interventions at home and at school are intense. Dr. Worenklein indicates that one has to consider, in the face of all of the evidence relating to Ms. B., whether she is able to provide the interventions needed and to sustain those interventions. It was the view of Dr. Worenklein that the children suffer from the lack of stability, predictability and continuity in their lives.

[282] With respect to access, Dr. Worenklein recommended that access between the children and their mother continue if an order of Crown Wardship is granted. Dr. Worenklein also recommended that the children receive regular interventions from a mental health professional to help them deal with all of their life’s experience.

[283] In the oral evidence given by Dr. Worenklein on November 25, 2016 regarding his re-evaluation, he focused on the parenting skills both E.B-H. and A.B-F. would need to thrive and to deal with their special needs.

[284] With respect to E.B-H., he needs parents who are available to deal with his issues and not be distracted by their own. According to Dr. Worenklein, a child like E.B-H. does not present difficult behaviour intentionally but because of emotional distress and low impulse control. E.B-H. needs parents who can give him consistent parenting with the same message over and over again. He cannot have a parent without patience, yells, screams or has a short fuse. Specifically, Dr. Worenklein testified that E.B-H. needs to go to school every day in the same structured routine; he needs to sleep in the same bed and have the same structured routine at home; he needs to have predictability; he needs to know who will care for him day after day. For reasons of modelling, E.B-H. needs a parent who can model for him calm and controlled resolution of conflict rather than resorting to angry outbursts and violence, or needlessly calling the police to resolve situations.

[285] Dr. Worenklein stated that the requirement for consistency for E.B-H. is needed now and today before his difficulties get worse. While the testing performed on E.B-H. is a snapshot of where he is today, E.B-H. is aware that he is in foster care, that his status is not stable and he can be anxious about this uncertainty. Dr. Worenklein saw E.B-H. as a child who needs to know where he is at and where he is going.

[286] According to Dr. Worenklein, A.B-F. too is experiencing social anxiety. She appears to lack a lot of confidence in her mother. When asked what would be the concerns for such a child when a parent cancels visits with them, Dr. Worenklein testified that such a child would interpret such a happening as a reflection of their lack of worth. Dr. Worenklein could not judge Ms. B.’s decision to take a holiday which resulted in notable a period of time without visits with the children. Dr. Worenklein accepted that Ms. B. would ultimately have to decide whether her need for a holiday had to be given greater priority than the needs of her children to see her. But the lack of visits do have a negative impact on the children. If Ms. B. is in such a state that the visits would not be good then she should take her holiday and, if not then the children’s needs should always come first.

[287] When questioned about Ms. B.’s concern that A.B-F. is not aware of the progress she has made in improving herself, Dr. Worenklein did not seem to consider that relevant to the wishes and preferences expressed by A.B-F. To Dr. Worenklein what was relevant was that A.B-F.’s views are based on her perception of what might happen if she returns to the care of her mother.

[288] Dr. Worenklein was also asked to give his views on certain negative episodes that took place during the access visits as noted by the access supervisors. With respect to Ms. B.’s very negative response to A.B-F.’s comment about missing Winterlude to come to the access visits, his evidence was that such a response by Ms. B. would trouble him very much as a child psychologist because of the erosion of trust A.B-F. would experience by that kind of response.

[289] According to Dr. Worenklein, the same can apply to a parent who did not care enough to ensure the personal hygiene of a child especially since the lack of hygiene was a source of social stress and anxiety for the child. Not allowing a child, who specifically asked, to sit beside you at a movie could also create a sense of lack of trust and rejection on the part of the child.

[290] When asked to comment on Ms. B.’s handling of the Oct. 8, 2016, Swiss Chalet Thanksgiving family outing, Dr. Worenklein testified that, from a child focused point of view, he found it troubling because the message given to the children might be that the mother being absent from their visit and the early termination of the visit is more important that being with them.

[291] Dr. Worenklein was asked to give his views on the question of children’s relationship with their mother in the event that a Crown Wardship order is made. His view was that the children should continue to have a relationship to their mother by way of visits if the visits are dependable and reliable. He was less clear on the frequency at which these visits should take place. He did indicate that if the children are preparing for adoption, multiple visits per week was probably not a good idea.

[292] With respect to visits between E.B-H. and A.B-F., Dr. Worenklein testified that from his observations of their interactions they played together for a period of time and played well together but not necessarily for the majority of the time. For the rest of the time the siblings engaged in their own separate activities. Dr. Worenklein would recommend that E.B-H. and A.B-F. be allowed to visit with each other alone without the mother’s presence, which would be in addition to any other visits they may enjoy with their mother.

[293] Dr. Worenklein saw the benefit of having access and its frequency specified in any order granted from the point of view of certainty for the children. He appeared agreeable to having visits for special occasions, such as, Christmas, Easter, Thanksgiving and birthdays and possibly holiday time. Dr. Worenklein was also of the view that the location of the visit should be picked with a view of making the visit the best quality time for the children as is possible.

SOCIETY’S PLAN OF CARE

[294] Ms. Shard testified that the Plan of Care of the Society put forward for A.B-F. and E.B-H. is adoption. The Society seeks to have the two children adopted together if that is possible. In the event that they cannot be placed for adoption in the same home then the Society would seek to find a homes for the children that accepts openness so that A.B-F. and E.B-H. could continue to see each other and even to continue to see their older sibling B.B.(1).

[295] With respect to openness as between the children and Ms. B., so that they could continue to visit with their mother, Ms. Shard was less certain. It is the position of the Society that, while visiting with their mother may be meaningful to the children, given all of the problems with Ms. B.’s behaviour, which have demonstrated themselves during the access visits as well as Ms. B.’s conflictual relationship with the Society, Ms. Shard was of the view that continuing access between Ms. B. and the children is not necessarily beneficial to the children. This is particularly so for A.B-F. who has been hurt by her mother’s many missed visits, differential treatment as between herself and her brother, and angry and out of control outbursts during access necessitating many aborted visits.

[296] Sharon Kollard, the Society adoption worker testified about the adoption process that would be followed for A.B-F. and E.B-H. if they were to be made Crown Wards. It was Ms. Kollard’s evidence that the adoption process could take anywhere from 6 months to 2 years. The Society would not proceed to a prospective adoption without the required preparedness of the family and the child or children in question, which can be quite extensive, involving professional assistance. This would also include engaging the family of origin in the prospective adoption to the extent it is reasonably possible.

[297] It was Ms. Kollard’s view that both A.B-F. and E.B-H. are very adoptable even keeping in mind the challenges of their special needs, about which Ms. Kollard had some knowledge. According to Ms. Kollard such parenting challenges have not been obstacles to finding adoptive families and to successful adoptions. Ms. Kollard gave some examples of cases in which she successfully placed children, both older and with very challenging special needs, in successful adoptions. While Ms. Kollard gave a number of children she had place for adoption she could not relate that number to the existing number of Crown Wards available for adoption.

[298] Ms. Kollard also did not see that the adoption of a sibling group of 2, such as A.B-F. and E.B-H., would present any difficulty to a successful adoption. According to Ms. Kollard a sibling group of more than 2 children tends to be far more challenging to finding an adoptive home. In Ms. Kollard’s experience breakdowns of adoptions, while they do occur, are rare. And even in those cases, Ms. Kollard testified, the Society was able to find a replacement adoptive family.

[299] Ms. Kollard testified that the Society now seeks adoptive parents who are willing to consider openness with the family of origin and in fact do not approve families for adoption unless they agree to openness. So that, even if E.B-H. and A.B-F. could not be adopted together, they would more than likely continue to see each other at a schedule in both their best interests. On cross-examination by counsel for Ms. B., Ms. Kollard could not be definitive regarding the frequency of contact that would take place between children who are placed for adoption and their family of origin. According to Ms. Kollard the frequency of visits would vary but that on average it might be 4 times per year. Pursuant to the CFSA all children over 7 years have to consent to their adoption so that a child the age of A.B-F. would have to consent to any adoption.

[300] Based on this evidence, there is a preponderance of evidence to indicate that both A.B-F. and E.B-H. are adoptable and that such adoptions would likely be successful.

MS. B.’S PLAN OF CARE

[301] Ms. B. accepts that she is the mother of 6 children and that 4 of these children she has had to either give the children up into the care of someone else or give them up as Crown Wards.

[302] Ms. B. has attributed the loss of these children to a number of reasons, such as her youth and immaturity, her choice of abusive partners and some overwhelming special needs of some of her children, such as the child A.B.

[303] Ms. B. has also identified her anxiety and panic disorder from which she suffers as having created tremendous personal challenges to her ability to parent her children, many of whom have demonstrated difficult behaviour.

[304] Nonetheless, it is Ms. B.’s evidence, that since she became aware of her underlining anxiety and panic disorder, she has sought out professional assistance to help her understand the disorder and to set out to appropriately manage it so that it does not interfere with her capacity to parent A.B-F. and E.B-H.

[305] It was Ms. B.’s evidence that about the time when her daughter A.B. was made a Crown Ward, she had a major panic attack in her home and had to be hospitalised. Since that time she has been hospitalised about 3 times for her panic disorder. These hospital records were filed as exhibits.

[306] The symptoms felt by Ms. B. when having a panic attack, she described as some or all of the following, shortness of breath, hot and cold flashes, dizzy spells, shaking, a tightening in her stomach or a stomach ache and chest pains, sweats and at times diarrhea or vomiting.

[307] In February, 2013, Ms. B. was diagnosed by Dr. Spindler, of the Ottawa Hospital, Civic Campus, with a “panic disorder and early agoraphobia”. She was given medication for her panic disorder. In addition Dr. Spindler indicated that she would “be taught relaxation therapy, breathing exercises and cognitive strategies in controlling panic disorder and early agoraphobia.” (exhibit # 37) Because of this disorder, according to Ms. B., Dr. Spindler tried to assist her to obtain a disability status (ODSP) but was unsuccessful in her applications.

[308] It was Ms. B.’s evidence that she was prescribed medication for her panic disorder and was under the treatment of Dr. Spindler for 2 years. In fact, it was a slightly shorter period as Dr. Spindler’s medical records show that towards the end of 2013 and the early part of 2014 there were a number of no shows to appointments and cancelled appointments with Ms. B.

[309] Nonetheless, by May 19, 2014, Ms. B. had made some notable progress in her treatment with Dr. Spindler that he wrote on May 19, 2014 that she had made “considerable progress in her therapy, i.e. she had progressed from experiencing panic attacks with intense anxiety accompanied by shortness of breath, chest pain, sweating, numbness and tingling in her extremities, and dizziness, several times daily to experiencing these symptoms only occasionally” (exhibit # 37). As a result Dr. Spindler was seeing Ms. B. less often (once per month instead of twice weekly visits and that he would continue to see her for “cognitive-behavioural therapy.”

[310] In July of 2014, there was some conflict with Dr. Spindler’s staff. Ms. B.’s file was closed and Dr. Spindler was retiring.

[311] Ms. B. testified that she then began to see Dr. Sethi for her panic disorder. It was also Ms. B.’s evidence that at that time “something snapped in her head” and she wondered why she was taking all this medication that Dr. Spindler was prescribing for her. In fact Dr. Spindler’s medical notes indicate that he had discussed with Ms. B. the addictive nature of the medication he had prescribed and he was attempting to reduce her medication in July of 2013.

[312] Ms. B. testified that she stopped going to Dr. Spindler because he retired.

[313] The medical records from the Sunshine Clinic where Dr. Sethi practised indicate that Dr. Sethi began treating Ms. B. for her panic disorder around February of 2015 and has continued until just before the commencement of trial in October of 2016. These records appear at Exhibit # 38 and seem to be medication refills. In August of 2016, letters appear from Ms. B.’s lawyer requesting that her medication be increased because of the increased stress she was under by the pending child protection trial. It was Ms. B.’s evidence that she has attempted to reduce her panic disorder medication various times but then a family crisis occurred such as the apprehension of the children and then she would have to increase her medication again. This was confirmed by the testimony of Dr. Sethi.

[314] Ms. B. testified that when she began to see Dr. Sethi for her panic disorder she informed him of her history and treatment with Dr. Spindler. It was Dr. Sethi’s evidence that in treating Ms. B., he was not aware of any other diagnosis that had been made for Ms. B. at the Ottawa Hospital, Civic Campus. Dr. Sethi had no recollection of seeing any past medical records on Ms. B.

[315] Dr. Sethi further testified that he made a referral to the Montfort Hospital so that Ms. B. could see a psychiatrist regarding her panic disorder. The medical records show that Ms. B. never attended the appointment date on this referral, the medical records showing a no show. Ms. B. attempted to explain that she did not miss this intentionally and that it had something to do with the date and other things that were happening in her life, which was not very convincing. Furthermore Dr. Sethi testified that when he questioned Ms. J. B about her failure to make this referral appointment she told him that she does not think she needs to see a psychiatrist.

[316] When asked with how, over the last 2 years, she has been coping with her anxiety disorder, Ms. B. testified that, apart from taking the anti- anxiety medication she is prescribed, she does the following things, individual counselling, goes to the gym every day for 2 hours, she listens to music on her I-phone, she goes for drives with her partner, D.B. and has talks with him, she has talks with her friends, such as Ms. M.F., who testified about her friendship with Ms. B., she has talks with her son B.B.(1) and her mother Ms. M. B. and she speaks to her tenants and her lawyer. Also because she was told by her doctor to do happy things she makes chocolate moulds to sell.

[317] With respect to seeking out resources to assist her with her parenting skills and her personal issues, Ms. B. was of the view that the Society did not assist her in obtaining the necessary resources to help her parent A.B-F. and E.B-H. and to help her deal with her anxiety disorder. In fact, counsel for Ms. B., in her final written submissions states that the Society worker, Ms. Stard “intentionally provoked Ms. B.’s anxiety”. None of this is supported by the evidence as a whole. In fact, the opposite is true. The evidence reveals that various Society workers involved with Ms. B. and her family frequently recommended parenting resources, personal counselling for herself, her partners and the children. For her own reasons, Ms. B. chose not to pursue these recommendations. Or having pursued them, Ms. B. chose to stop pursuing the services. With respect to assistance with her anxiety disorder, Ms. B. made it very clear to Ms. Shard that she was already receiving treatment for her disorder with Dr. Spindler.

[318] The evidence shows that from the time when Ms. B. was struggling with the parenting of her child A.B., she has participated in resources that were made available to her or recommended to her. Ms. B. testified to these in her evidence, as did the Society workers. Ms. B. participated in Cross-Roads where she was assisted with parenting strategies and discipline. She took parenting courses at Bethany Hope and the Pinecrest Queensway Health and Community Services. As has already been mentioned Ms. B. participated in the Caution Parent Learning Program with Ms. Crista Janes for two lengthy different periods in 2011 and 2012 and again in 2014 and 2015.

[319] Ms. B. took an anger management program with the Elizabeth Fry Society of Ottawa. Ms. B. took a Positive and Effective Parenting Program with the Elizabeth Fry Society of Ottawa. Ms. B. has also taken individual counselling sessions, focusing on her anxiety and anger. (See exhibit #40).

[320] More recently, Ms. B. has been in counselling at the Jewish Family Service Centre with Ms. Reina McSheffry focusing on a program entitled New Ways for Families Conflict Reduction Program. According to Ms. B., this program was the best parenting course she has ever taken, focusing on communication. According to Ms. B. she has learned to interact positively with the Society workers and her family. Ms. B. testified that she senses herself to be a new person and a much calmer person.

[321] Ms. McSheffry testified and explained the details and goals of her program New Ways. Ms. McSheffry testified that the program was normally intended for couples in high conflict with the underlying principles taught, through role playing, being, flexible thinking, managing emotions, moderating behaviour and self-checking. Ms. McSheffry testified that the program has never been given in a child protection context nor did it deal with protection issues relating to the children. However, given the amount of conflict that Ms. B. was having with the Society and its workers, she determined that Ms. B. could participate in a modified program.

[322] Ms. B. commenced the course in June of 2016, which included some 10 sessions, some follow-up sessions with future sessions booked. Ms. McSheffry found Ms. B. a willing and open participant. Ms. B. had no difficulty understanding the material.

[323] Ms. McSheffry testified that Ms. B. shared with her her family situation and her anxiety disorder. A couple of times Ms. McSheffry saw Ms. B. being upset but she never felt any aggression from her. It was Ms. McSheffry’s evidence that with the coping strategies, taught in her course, such as deep breathing exercises, muscle relaxation and peaceful thoughts, Ms. B. was able to become more calm and work herself out of the upset.

[324] Ms. McSheffry never observed Ms. B. interact with the children nor with any of the Society workers.

[325] There is no question that Ms. B. has learned to modify her behaviour in her monthly access meetings with the Society workers. Although still accompanied by her lawyer, she has shown herself capable of remaining calm, accepting negative feedback and engaging in discussions with the Society workers in the meetings and staying for the duration of those meetings. Nonetheless, as the recent September meeting showed, Ms. B. still struggles to control her anxiety disorder. As can be seen from some to the incidents during access, Ms. B. can still be overwhelmed by her anxiety and lack control of her words and conduct.

[326] It is Ms. B.’s position that she has made demonstrable and notable progress in the areas of parenting, managing and controlling her anger and her anxiety disorder so as to permit her to appropriately parent A.B-F. and E.B-H. which would be in their best interests She is asking the court to grant her the care of her two children under a supervision order to the Society if the court deems it necessary.

[327] The fundamental question to be determined here is whether Ms. B. has indeed made sustainable changes to her life and behaviour towards her children so as to justify the order she requests and would such an order be in the children’s best interests, given the history of this case and the time that has passed.

[328] Ms. B. does not deny that in the past she has had to rely on other people to assist her with the parenting of her children. In particular, these were her mother and her current partners at the time. She acknowledges, and the evidence was pretty clear on this, that the substantial help Ms. B. received and, apparently needed, in the past from her mother in parenting her children is no longer available to her because of her mother’s deteriorating health (Exhibit # 25).

[329] Nonetheless, it was the evidence of Ms. B. that she is in a new stable relationship with Mr. D.B. who provides her with both financial, emotional and hands on help in the parenting of her children. Ms. B. acknowledged that she has made very bad choices of partners in her past. But that she has learned from her bad choices of partners. Ms. B. testified that regardless of her partner, her children would come first.

[330] However, she felt that her new relationship with Mr. D.B. is different and this time she has made a good choice. According to Ms. B., Mr. D.B. purchased a new car for the family in the event of the children being returned to her care. Mr. D.B. frequently drives her to the access visits. He actively helps her around the house with both the cooking and laundry.

[331] The evidence showed that Mr. D.B. moved into Ms. B.’s home as a roomer in July of 2015. The relationship became romantic fairly quickly after that, the following month. Ms. B. wanted to have Mr. D.B. be able to attend with her access with the children and to include him in the family events and visits almost immediately. This became a source of conflict between her and the Society who did not permit such visits, concluding that it was too soon to introduce the children to a new partner, who Ms. B. by that time was referring to as her fiancé.

[332] Ms. B. was granted a Thanksgiving dinner visit with the children in her mother’s home, which the children would have liked because of their love and affection for their grandmother. However, when Mr. D.B. was not permitted to attend that Thanksgiving dinner, Ms. B. opted to have her Thanksgiving dinner with the children at the Society access centre. Given Ms. B.’s stated difficulty with exercising access at the Society offices, I find this decision on the part of Ms. B. puzzling. Furthermore, I fail to see how this decision was child focused and made with the children’s best interests in mind. A similar conflict relating to Mr. D.B.’s presence at access arose over the 2015 family Christmas dinner.

[333] Despite this Ms. B. made known to the children, who Mr. D.B. was, that gifts were purchased from him and arranged for them to speak to him on her cell phone during the visits to thank him for the gifts. By the early part of 2016, Mr. D.B. is accompanying Ms. B. to the supervised access visits during the family visits. There is no question that Mr. D.B. is extremely helpful to Ms. B. during the visits and that she relies on that help to make the visits run more smoothly.

[334] Mr. D.B. spoke very positively of Ms. B. as a “strong” and “giving” woman with a “big heart” and ready to help others. According to Mr. D.B. Ms. B. has been a great support to him while he dealt with his own family difficulties.

[335] Mr. D.B. supports Ms. B.’s efforts to have her children returned to her care. Mr. D.B. testified that he is ready to assist the mother in any way he can by his presence, via moral, emotional, financial and physical support. Mr. D.B. has even attended with Ms. B., for support, the monthly access meetings with the Society workers. His evidence was that A.B-F. and E.B-H. are now part of his life. Mr. D.B. has even gotten to know and has helped financially Ms. Bugler’s older children A.B. and B.B.(1) Mr. D.B. has discussed Ms. B.’s plan of care with her and he is prepared to co-parent the children with her should they be returned to her care.

[336] Mr. D.B. separated from his wife of 17 years in June of 2015 and was divorced in August of 2016. According to Ms. B. and Mr. D.B., it was a messy separation and divorce. Mr. D.B. is father of two teenage daughters. Although Mr. D.B. testified that he was a very active parent when his children were growing up, he now has no contact with his daughter. Nor does he provide any financial assistance to his biological children. According to Mr. D.B., the Society was never involved with his family. According to Ms. B. she encouraged Mr. D.B. to seek out personal counselling to deal with his pain and frustration relating to his previous family, which apparently he has done with the Catholic Family Services and found helpful.

[337] Mr. D.B. acknowledged in his testimony that Ms. B. can get very upset in her dealings with the Society workers and during access. He was present at some of the upsetting incidents during access described above. However, it was his evidence, that he has seen a notable change in Ms. B.’s conduct, more controlled and less frequent upsets since Ms. B. commenced her counselling with Ms. McSheffry. Mr. D.B. testified that he has witnessed Ms. B. use strategies at home to deal with her anxiety that she learned from Ms. McSheffry. According to Mr. D.B. the period of time leading up to the trial was particularly difficult for Ms. B.

[338] With respect to his attendance at the access visits, Mr. D.B. testified that the visits have gone well to his observation. He has only seen Ms. B. be affectionate with both children, and always prepared with activities and crafts which the children love. His observation of the food and snacks Ms. B. brings is that they are fine.

[339] Mr. D.B. testified that his relationship with Ms. B. is good and when they encounter adversity, their relationship appears to get stronger. Both Ms. B. and Mr. D.B. did not deny that they had a brief separation, according to Ms. B. for one day, in November of 2015. The cause of this separation, according to both of them, was the stress that Mr. D.B. was under because of his own marriage breakup.

[340] Mr. D.B. admitted, as was testified to by Ms. Shard, that during that brief separation, he called Ms. Shard at the Society leaving a voice mail, recounting that he and Ms. B. had broken up and that she had kicked him out of her house; that she would not return his engagement ring; that Ms. B. was volatile and a nasty person; that she had threatened to get some gang member friends to go after him and members of his family. According to Mr. D.B., he did this because he was mad at Ms. B. and he recognises that he should not have done it. He also said that Ms. B. did not really kick him out of the house. This hardly demonstrates controlled anger on Mr. D.B.’s part, with disproportionate potential consequences to the wellbeing of the B. family.

[341] In addition to the support of Mr. D.B., Ms. B. presented other witnesses at the trial who testified to the state of Ms. B.’s home as they observed it, which was in marked contrast to the observations of many of the professionals who were in Ms. B.’s home at various times in their work with her.

[342] It was evident from all of these witnesses, that Ms. B. enjoys some loyal friendships who are a source of support to her in her quest to have A.B-F. and E.B-H. returned to her care. Ms. M.F.is a friend of 4 or 5 years and met Ms. B. on Facebook. She has purchased cakes and snacks from Ms. B. Ms. M.F., has seen Ms. B. with her children and found the children to be well behaved and Ms. B. attentive to them. Ms. M.F., has also observed Ms. B. in an anxious upset and has helped her to calm down from it. She has accompanied Ms. B. to court for moral support.

[343] W.S.is A.B.’s partner. He testified to the help Ms. B. and her partner have given him and A.B. to get established once they left the care of the Society. W.S. met A.B-F. and E.B-H. for the first time at the October 8, 2016 Thanksgiving supper at the Swiss Chalet. W.S.is also very familiar with Ms. B.’s home and found it to be clean. According to W.S., Ms. B. served food from the 4 food groups that he learned about at school. W.S. has seen Ms. B. in an anxious upset and has tried to help her during those episodes. He has driven her places and has come to court with her to give her moral support.

[344] Mr. M. has been a roomer in Ms. B.’s home for 14 months. He knows Ms. B. to be nice and pleasant who can have bad days, especially relating to ongoing court proceedings. Mr. M. makes himself available to talk to the mother during these times. Mr. M. testified that Ms. B.’s home can be somewhat cluttered because of the mother’s business that she runs out of her house, but that otherwise the house is fine. Mr. M. was aware of the police being called to the house because of Ms. B.’s daughter, A.B.

[345] Ms. C.C. also testified on behalf of Ms. B. Ms. C.C. came to know Ms. B. when A.B-F. and her daughter were friends. She did not know E.B-H. Ms. C.C. has been in Ms. B.’s home and witnessed her interactions with A.B-F. which she found appropriate. Ms. C.C. had no difficulty with the state of Ms. B.’s home, which she testified could be unorganised when Ms. B. was making chocolates.

[346] Ms. C.C. has had occasion to see Ms. B. in an anxious upset. Ms. C.C. has even accompanied Ms. B. to her monthly access meeting for moral support. She has seen Ms. B. upset and anxious at these meetings but attempt to control the episodes with drinking water, listening to music and leaving the room for a few moments to be alone.

[347] Ms. B.’s oldest child, B.B.(1) was also called as a witness to testify on his mother’s behalf and to support her plan to have the children returned to her care. In his evidence he clearly was one of his mother’s greatest advocates. He testified that although he was brought up by his grandmother in her home, B.B.(1) always had a sense of Ms. B.’s presence in the family to help him and provide him with the support he needed. Special occasions organised by Ms. B. for birthdays, Halloween, thanksgiving, Easter and Christmas were especially mentioned by B.B.(1)

[348] B.B.(1)’s evidence about his feelings for and relationship with A.B-F. and E.B-H. cannot leave anyone with a doubt about the love B.B.(1) has for E.B-H. and A.B-F. The observations of his interaction with the children during the supervised access visits are positive. He assists his mother with the visits logistically and even replaced her when she could not attend. The children show affection towards him and he towards them. He is always actively involved with them during the visits.

[349] B.B.(1) was clearly involved in the children’s life growing up and played a very strong roll of the older brother to his younger siblings. He wishes to continue to see A.B-F. and E.B-H., whatever the final court decision is.

[350] B.B.(1) was also a frequent witness to his mother’s panic and anxiety attacks and had to take her to the hospital a number of times. To his observation, what seems to trigger them are unexpected changes or events in his mother’s life such as a cancelled order of chocolates. B.B.(1) has observed his mother cope with her anxiety by doing such things as going for a walk or listening to music, taking her medication and also her counselling at the Jewish Family Services Centre.

[351] The details of Ms. B.’s plan of care, as testified by her are the following. Ms. B. plans to move to the west end of Ottawa and she would qualify for a 3 bedroom house from Ottawa Housing if the children were returned to her care. She wants to move to a safer neighbourhood and further away from Mr. H. She plans to have all of the furniture and clothing the children need. The household would consist of her, Mr. D.B. and A.B-F. and E.B-H. She would ask her roomers to leave so she would have the space for the children. Ms. B. testified that she would care for the children and the time they spent with their grandmother would be visits only.

[352] Ms. B. testified that she has already looked into a school for A.B-F. in the school district to which she wishes to move. With respect to the special needs of A.B-F. and E.B-H., Ms. B. testified that she would be communicating with her children’s teachers; that she would attend parent-teacher meetings face to face; that she would get A.B-F. into the Crossroads program again; that she would be involved 100% in any IEP for A.B-F. and E.B-H.; that she would put the children in after school programs and summer camps and make sure thy swim since both of them love this activity. Ms. B. testified that she would continue to take the children to Dr. Sethi for their medical care. With respect to the children’s nutrition, Ms. B. testified that she would have lots of fruits and vegetables for the children and she would enroll in a food box program that would ensure this.

[353] Ms. B. testified that she now knows that both children need counselling and she would arrange this for them at the Jewish Family Services. Ms. B. testified that she recognises that A.B-F. in particular needs this because of the issues relating to Mr. H. According to Ms. B. E.B-H. needs this counselling too because of his apprehension and foster care experience. Ms. B. testified that she knows that the children’s hygiene has to be given attention and that the children need a structured routine and stability to do well. She described what that routine would be in her evidence. Their stability, according to Ms. B. would be that she would ensure that the children were clean, had a proper and clean home, counselling, proper medical and dental treatment and schooling.

[354] Ms. B. testified that to her perception she has a strong bond with both A.B-F. and E.B-H. They are affectionate with her and she with them. Ms. B. testified that the children also have a strong bond with their extended family, their grandparents and B.B.(1) According to Ms. B. this is especially so with respect to E.B-H. who has a very special relationship with B.B.(1), who cared for him when he was younger. With respect to the children’s relationship with A.B., Ms. B. saw this a more unstable because of A.B ’s instability.

[355] With respect to the possibility of the children remaining in their current foster homes until placed for adoption, Ms. B. acknowledged that her relationship with Ms. L.P. has been problematic and she admits that perhaps she was overly aggressive with Ms. Ploughman, but she was convinced that Ms. L.P. does not like her. Nonetheless, Ms. B. testified that she would attempt to work harmoniously with the family in order to continue seeing E.B-H.

[356] With respect to A.B-F.’s foster family, Ms. B. testified that she likes them. She knows that A.B-F. is safe there, well cared for and clean.

[357] In the event that the court chooses adoption as the plan of care that is in the best interests of the children, she would want an open adoption so that she could continue to see E.B-H. and A.B-F. as she did with her older child B.B.(2). Ms. B. testified that she would like to be involved in the choice of adoptive family for the children and to be able to communicate with them and receive information about the children, as she did with her older child, B.B.(2). This communication could be done by phone or electronically. Ms. B. testified that she would especially like to celebrate with the children special events such as birthdays, Halloween and Christmas. She would also like A.B-F. and E.B-H. to know that she tried to keep them in her care.

[358] For all of these reasons, it was Ms. B.’s evidence that she has indeed made sustained changes in her life so as to take back the care of both A.B-F. and E.B-H. as a viable plan that is in their best interests.

CHILDREN’S WISHES AND PREFERENCES

[359] The progression of A.B-F.’s wishes and preference in this matter was discussed earlier. A.B-F. throughout this trial has had Ms. Fealey, from the Office of the Children’s Lawyer, represent her interests. Ms. Fealey has participated fully in the trial on behalf of A.B-F. The wishes and preferences of A.B-F. as communicated to this court via her counsel, at A.B-F.’s request, is that A.B-F. does not oppose an order for Crown Wardship for the purpose of adoption. A.B-F. has made the “monumental” decision that she is unable to return to the care of her mother.

[360] If she were placed for adoption, A.B-F. would like to be placed for adoption with her brother E.B-H., if that were possible. However, if this is not possible and they were to be adopted separately, then she would like to continue visiting with her little brother. With respect to frequency, A.B-F. would like to visit with E.B-H. at least once weekly in addition to special holidays and family events

[361] With respect to visits with Ms. B., A.B-F. would like to have the visits with her mother continue on a once monthly basis and additional special holidays and events.

[362] A.B-F. would also like to have general, unspecified access to her grandmother and her older brother B.B.(1)

DISPOSITION

[363] While this decision is a long one, I was convinced that it was necessary to discuss the protracted history of this family and its long involvement with the child protection services both in this province and in New Brunswick because that history has some bearing in coming to a decision today on what is in the best interests of A.B-F. and E.B-H. This is not an easy case with a perfect solution for these children, who have now spent long periods of time out of the care of their mother, in Society care or under the supervision of the Society. The children came into care because of the finding that both A.B-F. and E.B-H. were in need of protection because of the risk that they would likely suffer physical harm caused by Ms. B.’s failure to adequately care for, provide for, supervise or protect the children as well as her pattern of neglect in caring for, providing for, supervising or protecting the children. In fact, both apprehensions of these children were preceeded by Ms. B.’s inability to protect the children from physical harm perpetrated on them by their mother’s chosen partner. The many reports from the community, the children’s schools, the children’s doctor, Dr. Huot and the parenting resources provided to or arranged for Ms. B. by the Society and community organisations indicates that the children were being harmed in other ways too.

[364] I agree with the Society in their submissions that the timelines provided for under the Child and Family Services Act (“CFSA”) to ensure permanency for these children have been expended. In fact, the evidence of Dr. Worenklein leads one to the conclusion that these two children, in addition to their respective special needs, are suffering now from the lack of permanency in their lives. Whatever plan of care is decided, what is in the best interests of the children is a plan of care that will provide the permanency the children need and that will carry with it the least risk of failure so as to not jeopardise that permanency and create again disruption in the lives of these children .

[365] Ms. B.’s parenting history reveals that she lost the care of four older children because she could not appropriately care for them. In the case of the child A.B., her special needs were overwhelming for Ms. B. Even as an adult, A.B.’s relationship with Ms. B. continues to be problematic and conflictual at times necessitating police involvement. A.B.’s out of control conduct in the B. family setting is a source of anxiety for Ms. B., as was witnessed in the family Thanksgiving dinner at the Swiss Chalet in October of 2016.

[366] No one can question the love Ms. B. has for all of her children. Where she has been able and where it was permitted, she has continued contact with some of these children who were lost to her. Some of that contact demonstrates a strong family loyalty and affection. Who can say that B.B.(1) does not have a strong sense of family loyalty and affection towards his mother and his younger siblings? The importance that Ms. B. gave to special family events such as birthdays, Halloween, Easter and Christmas has clearly contributed to that strong sense of family and was always a sources of joy and happiness for the children. But appropriate parenting, especially for children with very special needs, is more than special family events.

[367] The evidence presented in this case of Ms. B.’s parenting of her children, and in particular A.B-F. and E.B-H. shows that Ms. B. has faced multiple challenges in her parenting, both specific to herself and specific to the children. Ms. B. has identified some of these herself in her testimony.

[368] Dr. Worenklein testified to Ms. B.’s personality traits that involved little insight into her role in her difficult family situation, and an almost uncontrollable quickness to anger and quickness to be animated. Dr. Worenklein also testified that this personality trait can be problematic in parenting children who demonstrate difficult, uncontrolled and defiant behaviour.

[369] Ms. B. has also to cope with her anxiety and panic disorder as a real issue and persistent challenge in her life. Ms. B., on cross-examination, did not deny that when unchecked, her anxiety and panic disorder requires immediate withdrawal from the situation in order to manage. Ms. B. did not deny that when unchecked her anxiety and panic disorder can take the form of angry outburst and upset, verbal and physical aggressive and threatening behaviour on her part. This uncontrolled behaviour rooted in her anxiety and panic disorder, or even in some hurtful comment made by A.B-F., can be directed at the Society workers and supervisors, most often the target, as well as at the children.

[370] Ms. B. continues to need medication to deal with her anxiety and panic disorder, and also to increase the dosage of that medication depending on the stressors in her life. Ms. B. continues to need the medical services and recommendations of Dr. Sethi regarding the management of the anxiety and panic disorder. Ms. B. needs to have vacation time, away from the children, in order to deal with the stressors in her life.

[371] Ms. B. historically has needed substantial support from other family members to parent her children. Historically this support has been Ms. B.’s mother or her partners. Ms. M. B. can no longer assist her daughter in the care of her children. This leaves Ms. B. to rely on herself or on her current partner, Mr. D.B., to assist her with the care of the children. There is also her older son, B.B.(1). Ms. B. has a history of bad choices of partners, and more importantly, failing to protect her children from these abusive partners as well as disruption in the children’s home.

[372] Because of their special needs, both A.B-F. and E.B-H. require very demanding parenting, described by Dr. Worenklein as needing to be structured, consistent and predictable. The children’s special needs require intensive and continual professional interventions, that require parental commitment to carry out and follow through. They also require a parent who is willing to pursue and learn the parental skills needed and prepared to work harmoniously with the professional interventions in the best interests of the children.

[373] Dr. Worenklein testified that the children’s special needs are in the now and immediate. For that reason the appropriate parenting they need is also in the now and immediate. In other words, while one can agree that since the final apprehension of A.B-F. and E.B-H. in December of 2014, a little over two years ago, Ms. B. has made some progress in various aspects of her life that touch on her ability to parent A.B-F. and E.B-H., the proper formulation of the issue for this court is whether she has made the requisite progress to meet the special needs of A.B-F. and E.B-H. now, making her plan in the best interests of the children.

[374] Section 38(3) of the CFSA enumerates the circumstances, considered relevant, that the court shall take into consideration in making an order or determination that is in the best interests of the children. All parties are agreed that the test on these proceedings for any order is the “best interests of the children”. Those relevant circumstances are as follows and which I will apply to the facts of this case.

37(3)1. The child’s physical, mental, and emotional needs, and the appropriate care for treatment to meet those needs.

37(3)2. The child’s physical, mental and emotional level of development.

[375] I propose to deal with these two factors together because they are closely related and similar considerations apply. A.B-F. and E.B-H. are young children, both of whom demonstrate developmental delays and fragility and the details of which have already been discussed. There is no need to repeat that information again. It was well laid out in the testimony of Dr. Worenklein, Dr. Palframan and Dr. Rouillard. Suffice to say, that the special needs of both of these children require demanding parenting skills now. The details of the parenting skills, commitment and follow through required to appropriately parent A.B-F. and E.B-H. have also been laid out in the evidence and need not be repeated here.

[376] Leading up to the apprehensions, despite Ms. B.’s experience in parenting A.B. and despite the substantial resources Ms. B. had accessed or had available to her through the recommendations or suggestions of the Society workers at that date, the evidence is clear that Ms. B. was not able to provide the stability, predictability nor consistency A.B-F. and E.B-H. needed in a parent. One example of this is that Ms. B. knew for a long time that A.B-F. would benefit from counselling. As the evidence shows no sustained counselling for this child was ever put into place and Ms. B. refused the counselling at A.B-F.’s school because of a “trust” issue she had.

[377] Ms. B. was given solid assistance in her home for a substantial period of time in home organisation and in parenting strategies. Her progress, as Ms. Janes testified, was minimal. In fairness, there was some improvement in home organisation and in the following of some routines, particularly at meal time.

[378] The evidence of Ms. B.’s roomers, family members and friends, who have been in her home, is that they have always found her home clean and tidy. This is in marked contrast to the evidence of the Society workers and Ms. Janes. There is some evidence of continued clutter in her home, relating to her chocolate making, which was also a historical problem.

[379] Ms. B. was able to ensure that her children were enrolled in school and participated in community activities and camps. As the evidence shows, Ms. B.’s relationship with the children’s educators was, as with the Society workers, problematic and at times conflictual. The evidence shows that Ms. B. at times also relied on A.B-F.’s teachers to assist her in managing A.B-F.’s behaviour.

[380] The evidence supports the finding that Ms. B. continues to struggle with the difficult behaviour of her children and maintaining a consistent approach to it. Like her treatment of some of the Society workers, Ms. B. engaged in confrontations with Ms. Janes in her home and would ask her to leave.

[381] Ms. B. struggled to deal with A.B-F.’s hygiene and left it to others to carry out this parental task despite being advised to do otherwise. There is substantial evidence to show that the neglect shown in A.B-F.’s hygiene by Ms. B. has impacted on the child’s social and emotional well-being.

[382] Ms. B. was able to ensure that the children, while in her care, received regular medical attention. When apprehended, both children were in relatively good physical health and all of their immunisations were up to date. That was not the case with their oral dental care. Both children, and especially E.B-H., were in need of dental interventions when they were apprehended. The evidence showed that Ms. B.’s mother was the one who took the children, most of the time, to see their pediatrician Dr. Huot. Ms. B., for anxiety reasons, could not be present for some surgery A.B-F. had to undergo and sent her mother to be present.

[383] Ms. B. was not able to protect A.B-F. and E.B-H. from her abusive partner, Mr. H., which led to both apprehensions. Ms. B. admits that she has made bad choices in partners. The evidence shows that Ms. B. has given priority to her loyalty to her partners, such as Mr. H., over that of her children, in choosing not to believe her daughter and to believe Mr. H. relating to his physical abuse of A.B-F., when she was well aware of how abusive and disruptive Mr. H. could be in their family home. The evidence shows that she has failed to protect her children from her bad choice of partners because the evidence strongly suggests that it was Mr. H. that injured both A.B-F. and E.B-H. and even A.B. For a number of years Ms. B. chose to deal with Mr. H.’s abusive behaviour by taking the children out of their home to the care of her mother.

[384] Ms. B. testified that she has found a new stability in her current partner, Mr. D.B.. There is no evidence that Mr. D.B. is abusive. In fact, he has been very helpful to Ms. B. during access visits. He interacts well with the children. Mr. D.B. also testified that his personal support to Ms. B. takes up a lot of his time.

[385] Nonetheless, proof of the long term stability of Ms. B.’s relationship with Mr. D.B. has yet to be established, which can only be done by the passage of time, time that the immediate needs of the children may not have. Ms. B. and Mr. D.B. have already separated once, which Mr. D.B. did not handle well by reporting, incorrectly according to him, to the Society his displeasure with Ms. B. Ms. B., of course, cannot be held accountable for Mr. D.B.’s ill-advised behaviour. It does, however, show that Ms. B.’s personal life continues to be susceptible to uncertainty.

[386] On the emotional level, Ms. B. can clearly show affection to her children which is reciprocated by them. Unfortunately, the evidence revealed that Ms. B. engaged in preferential treatment of E.B-H., something which was acutely felt and perceived by A.B-F. From the supervised access evidence, Ms. B. has a number of times showed emotional insensitivity and inattention to A.B-F., which A.B-F. has keenly felt.

[387] The progress made by A.B-F. in her current foster home where she receives, as the only child in a household of adults, substantial attention to her, physical, mental and emotional needs is noteworthy. The permanency planning evidence presented by the Society addressed the issues of the children’s physical, mental and emotional needs. The adoption of A.B-F., as with the adoption of E.B-H., Ms. Kollard testified, would be a process of ensuring that they would be adopted by a family, either together or separately, who were capable of meeting all of children’s physical, mental and emotional needs.

[388] Since the apprehension of the children Ms. B. has continued to pursue parenting courses and personal counselling. She has had her period of treatment with Dr. Spindler, to help her deal with her anxiety and panic disorder. She has had the recommendation of Dr. Sethi to pursue psychiatric assistance with her anxiety and panic disorder, which she appears to have refused. She has followed her counselling with Ms. McShaffery.

[389] The evidence establishes that Ms. B., since pursuing counselling with Ms. McShaffery, has been able to modify her behaviour somewhat, for the better, in her dealings with the Society workers in her life. However, there is no evidence that Ms. B., when faced with the daily parenting challenges of A.B-F. and E.B-H., would be better able, given her own personal challenges and deficits, to provide them with the stable, consistent and predictable parenting they need. She has not been able to show herself doing it historically, nor currently, as some of the negative episodes which have occurred at the access visits show.

[390] The observation of the access supervisors is that Ms. B. continues to need a substantial amount of support from others during her access visits that run from one and half hours at the Society offices to three hours in the community . If Ms. B. attends the visits herself she frequently requires the access supervisors to be in the room or to care for the children while she absents herself to deal with her level of anxiety. If Mr. D.B. or B.B.(1) attend the visits with her, she relies on them to get her anxiety medication, assist with the activities and to organise the meals and snacks for the children.

[391] Ms. B.’s missed access visits have also been a source of emotional upset for the children. Ms. B. has been made fully aware of the impact this has had on her children. It has continued to be problematic, as Ms. B. requires short absences during her access visits or holidays to deal with her anxiety level.

[392] With respect to this reality in Ms. B.’s life, one must be reminded of Dr. Worenklein’s view that Ms. B. cannot be personally faulted if she truly requires that break to deal with her anxiety and the children cannot be given priority because of it. Nonetheless, from a child focused perspective, a missed visit is still a missed visit, with all of the personal rejection that accompanies it, especially in the case of A.B-F. who was sceptical when explanations were given to her for her mother’s missed visits.

37(3)5. The importance of the child’s development of the positive relationship with a parent and a secure place as a member of a family.

[393] There is no question that both A.B-F. and E.B-H. have an emotional relationship with their mother, as a parent. The evidence also showed that they have a strong sense of place in the B. extended family. They share a loving relationship with their grandmother and older brother, B.B.(1) Their relationship with A.B. is more unclear and they have no knowledge of their older siblings that were adopted.

[394] Despite this, the children have experienced much family disruption in their short lives. The children have not been in the care of their mother since their apprehension in December of 2014. The care that Ms. B. gave her children was fraught with deficient parenting that resulted in the apprehensions.

[395] A.B-F. and E.B-H. have had to adapt to their foster families who have been providing parental care since their apprehension. Based on all of the evidence, E.B-H. is doing well in his current foster home, despite all of his challenges. He has adapted to the change which bodes well for any necessary future change towards a more permanent plan and new parental relationship.

[396] In the case of A.B-F., she has had to adapt to a second foster home, which according to the evidence has been to her benefit.

[397] In the case of E.B-H., given how frequently he had been cared for by his grandmother before his apprehension, he not only had his relationship with his mother disrupted but also his relationship with his grandmother.

[398] Both children lost whatever semblance of a father figure existed when Mr. H. had to leave the family home after the first apprehension and again after Ms. B. finally separated from Mr. H. The children also lost the care of Mary Davies, to the extent that she was helping Ms. B. to care for the children before Ms. B. separated from Mr. H.

[399] While Ms. B. seemed to accept that it was natural for E.B-H. to continue to see Mr. H. as his biological father, she did not seem to see a similar need for A.B-F. Contrary to the suggestions of the Society worker, Ms. B. did not have any insight into the emotional difficulty, necessitating counselling, A.B-F. might be having dealing with this loss of a parent figure.

[400] There is strong evidence to indicate that, despite the emotional tie, A.B-F. has a problematic relationship with her mother. A.B-F.’s acute pain caused by her perception of her mother’s differential treatment of her younger brother, according to the professionals, has contributed to this problematic relationship and A.B-F.’s sense of lacking a secure place in her mother’s home. The other cause is A.B-F.’s disappointment, hurt and anger, with her mother’s missed visits.

[401] A.B-F. continues to perceive that her mother cannot meet her needs and has a lack of trust in her mother’s parenting capacity as well as her ability to change. Her expressed fear is that if she were to return to her mother’s care things would be the same as in the past prior to the apprehension.

[402] With the Society’s plan for adoption of these two children together in the same adoptive home, the sibling relationship would continue as they both adapted towards a new positive relationship with a parent and a secure place as a member of their new family. The plan for adoption would clearly mean another disruption of a parenting relationship which they both now enjoy in their respective foster homes. However this new disruption would be in the interests of ensuring a more permanent positive relationship with the adoptive parent and secure place in the new family.

37(3)6. The child’s relationship and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

[403] There is no question that both A.B-F. and E.B-H. have emotional ties to each other, to their mother, their maternal grandmother and to their older brother, B.B.(1) If the children were to be adopted either separately or together, these emotional ties would have to be addressed in the context of new developing emotional ties in the new permanent adoptive family.

[404] The Society addresses this emotional reality in the children’s lives, firstly by attempting to have A.B-F. and E.B-H. adopted together if at all possible and working towards openness in this case, in the selection of potential adoptive families. This issue can also be addressed by way of an order for access, as the Children’s lawyer has argued on behalf of A.B-F.

[405] Given the time that has passed, returning the children to their mother’s care, despite the emotional tie to their mother, will mean another change for these two children. They will have to once again adapt to their mother’s parenting. E.B-H. will not return to the substantial care he received from his grandmother. Mr. D.B. will be the new father figure in the children’s lives, a role, according to his own evidence, he has to date hesitated to embrace fully.

37(3)7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

[406] No one can quarrel with the proposition that continuity of care is in the children’s best interests. However, the continuity of their care by their mother was severed with the apprehensions. It is accepted that the parenting Ms. B. has to give the children if their special needs are to be met will have to be markedly different from the parenting she was providing prior to their apprehension. She herself, has testified to this. On the evidence there continues the possible risk that Ms. B. would once again be overwhelmed in the parenting required and be un able to continue to meet the special needs of A.B-F. and E.B-H.

[407] As counsel for the Society points out in its submissions, the timelines for these children has been exceeded. Another period of Society wardship is not an option in this case. Nor would such a further temporary order be in their best interests, as Dr. Worenklein testified, because they need a permanent plan now for their emotional and mental wellbeing.

[408] Whether an order for adoption or an order returning the children into the care of their mother under the supervision of the Society, is granted there will be an ultimate disruption in the continuity of the care the children in their current circumstances.

[409] Happily the evidence showed that both the foster family of E.B-H. and the foster family of A.B-F., while unable to offer the children adoption, are able to continue to care for both A.B-F. and E.B-H. for as long as necessary to finalise the matching of the children’s special needs with the adoptive family that will be able to meet those needs. In other words the children will not have to experience a disruption in the continuity of their care during the transition into permanency.

37(3)8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

[410] In the final analysis, on the facts of this case, the examination of this factor involves primarily two considerations. The first is the quality of the historical parenting and parent child relationship as compared to the change in parenting and parent child relationship that may have taken place. The second is an assessment of the risk of success or failure of the respective plans.

[411] It is clear from the evidence presented in this case, that while natural love and affection exist between the children and their mother and extended family, the children’s special needs, physical, mental and emotional needs were not being met by Ms. B. prior to their apprehension, as with the apprehension of her older children and those children she herself decided she could not care for. The parent child relationship was problematic prior to the apprehension and continues to be so, especially with the child A.B-F. E.B-H.’s special needs are even more complex and more intense than those of his sister.

[412] Ms. B. argues that the evidence she has presented proves that her plan shows a substantial and fundamental change in her parenting capacity to now meet her children’s special needs as outlined by the professionals. On the evidence, Ms. B. has demonstrated some positive change in the way she is dealing with her own personal challenges. But, she has clearly not pursued all of the resources available to her and continues to resist those she does not believe she needs, such as the recommendation of Dr. Sethi to pursue psychiatric treatment for her anxiety and panic disorder. She continues to show “fault lines” in her ability to deal with the Society and in the parenting of her children during the access visits that has her reverting to previous troubling conduct. She continues to struggle to deal with her children’s difficult behaviour when alone and continues to be greatly dependent on others to help her with the parenting.

[413] On the balance of probabilities I was not persuaded by all of the evidence that the necessary change, professed by Ms. B., has been proven. In my view, on the evidence, if the children are returned to their mother’s care there is still a notable and realistic likelihood that there would be a future breakdown because of Ms. B.’s inability to meet the children’s special needs. This potential likelihood would be yet another disruption in the lives of A.B-F. and E.B-H. and put them that much further from the permanency they need now.

[414] While adoptions too breakdown, the evidence shows that that is rare in light of the intense matching process that precedes the children being placed with an adoptive family. Adoption would provide both A.B-F. and E.B-H. with the permanency they need and which is in their best interests. I am also satisfied that they would receive the professional help required to assist them to deal with this next stage of their life and the loss of their biological family, as was recommended by Dr. Worenklein.

[415] Adoption in the same adoptive home will allow the children to keep alive their relationship as siblings and the emotional support that will give them and that they need. If adoption in the same home is not possible for the children then, I am confident, on the evidence, that openness is a real possibility in this case and will permit the siblings to have that continuing contact necessary for their emotional well-being. Furthermore, an access order will have to be considered in the best interests of the children.

[416] All of this leads to the conclusion that the merits of the Society’s plan outweigh those of the plan put forward by Ms. B., from the point of view of permanency, guarantees of having the special needs of the children met and best interests of the children.

37(3)9. The child’s views and wishes, if they can be reasonably ascertained.

[417] With respect to E.B-H., he is too young and immature in his development to express a preference in the same manner his older sister is able to do so. There is no question he enjoys his visits with his mother and returns her love and affection during these visits.

[418] He too, as reported by his foster mother, has demonstrated some upset in his conduct when the visits with his mother do not take place, for whatever reason. At the same time, as reported by the access supervisor, he has at times shown no emotion when informed that a visit with his mother would not go ahead.

[419] E.B-H. is always glad and happy to visit with his sister, A.B-F., grandmother and older brother, B.B.(1).

[420] A.B-F. is able to express her very strong views and preferences in this matter which has been discussed previously in the section entitled Children’s Wishes and Preferences. What is discussed there applies to this consideration.

[421] A.B-F.’s lawyer has, in great detail set out in her written submissions her client’s views and preference which I also found very helpful in considering this factor. A.B-F.’s wishes and preferences clearly accord with the Society’s plan for her.

37(3)10. The effects on the child of delay in the disposition of the case.

[422] Dr. Worenklein made it very clear that any further delay in the permanency planning for these children jeopardises their best interests. The plan chosen for them that is in their best interests must be the one that can better guarantee the most permanent plan for these two children.

37(3)11. The risk that the child may suffer harm through being removed from , kept away from, returned to or allowed to remain in the care of a parent.

[423] Given the emotional attachment both children have with their mother and their extended family, a decision to proceed with an adoption and the rupture that will create will clearly impact the two children. An order of supervision to their mother would not have that same emotional impact in the short run, until of course a future breakdown.

[424] In the expression of her views and preferences, A.B-F. has already accepted that she cannot return to the care of her mother. She already sees that removal from her mother’s care as having happened. Given her young age, she will clearly need professional interventions to assist her with the emotional impact of this fact and her “monumental” decision in this regard.

[425] E.B-H. too will need professional intervention to deal with the emotional impact of being permanently removed from the care of his mother. The uncertainty of his circumstances is contributing to E.B-H.’s anxiety, as Dr. Worenklein testified. Given the time E.B-H. has already spent in foster care and the progress he has made to date, there is a likelihood that this risk of emotional harm will be managed in his best interests. The benefits of the permanent plan for E.B-H.’s adoption, that will meet his special needs, far out outweigh the harm he will suffer in the process.

37(3)12.The degree of risk, if any, that justified the finding that the child is in need of protection.

[426] For the reasons already stated, I was not persuaded that the changes which Ms. B. has made since the children have been apprehended are sufficient to enable her to meet the special needs of A.B-F. and E.B-H. She continues to struggle with her own personal challenges which take up a significant amount of her energy and time. She is not able to put the children’s interests first in the face of her own overwhelming needs. Her plan, her new circumstances and her new relationship, on the evidence, continue to carry with them substantial risks for future breakdown if she also had the children, whose needs are also so demanding, in her care. The evidence shows that this is what brought the children into the care of the Society and led to the finding that they were in need of protection.

[427] If the children were to be returned to the care of their mother, a further supervision order to the Society would be required to protect the children. I was not persuaded, on the evidence, that Ms. B.’s conflictual and confrontational relationship with the Society and its workers would in any way change in the long term. The Society, Ms. B. has testified is a source of anxiety for her, although Dr. Worenklein questioned the specificity of this assertion.

[428] Based on all of the evidence, as outlined, and after examining the “best interests” factors as outlined in S. 37(3) of the CFSA and how they apply to the facts of this case, I come to the conclusion that the least intrusive order that will protect A.B-F. and E.B-H. and the order that is in their best interests is one for Crown Wardship with a plan for their adoption and I so order.

ACCESS

[429] The last consideration in this case is whether an access order should be made with respect to these children.

[430] With respect to access with their mother, the Society takes the view that there should be no access.

[431] Ms. B. seeks access to her children in the event a Crown Wardship order is made. Her request is for very generous and frequent access as outlined in her written submissions.

[432] As presented by her lawyer, A.B-F. has made known to this court that in the event of an order permitting her adoption, she would like to continue to have access to her brother E.B-H., her mother and her extended family, her grandmother and older brother, B.B.(1) Counsel for A.B-F. has submitted that this right of access be lodged with the child.

[433] It was Dr. Worenklein’s opinion that, firstly, there should be access between A.B-F. and E.B-H. If they are adopted together that will not be an issue. Dr. Worenklein also opined that there should be access between the children and their mother with certain conditions. The first is that the children not be forced to continue to experience the disappointments of missed visits. Visits with their mother should be dependable and reliable. For that reason, access should not be of the frequency that now exists, although Dr. Worenklein could not be more specific about the frequency of these visits. Secondly, Dr. Worenklein stated that access should take place in a location that will ensure the best visits possible with their mother, and not in a place that challenges Ms. B.’s anxiety control, such as at the Society offices.

[434] The legal test for an order of access in the circumstances of this case is not disputed. Sections 58 and 59 of the CFSA states that an order for access to children who have been made Crown Wards should only be made where the person seeking access has satisfied the Court, on the balance of probabilities, that:

• The relationship between the person and the child is beneficial and meaningful to the child, and,
• The ordered access will not impair the child’s future opportunities for adoption.

[435] With respect to the second prong of this test, with the implementation of the new openness provisions of the CFSA, this factor does not generally impede the granting of an access order for children to be placed for adoption as it once did. As pointed out in the case of Catholic Children’s Aid Society v. M. M. , [2012] O.J. 3240 (O CJ) , the court no longer has to choose between the security of an adoption placement and the prospect of a child having some contact with his biological family. The Society has presented evidence that it now generally encourages adoptive families to consider openness. The Society has also presented evidence that in seeking adoptive homes for A.B-F. and E.B-H. they will be searching for families that are willing to consider openness. For that reason I am not persuaded that an order for access in the circumstances of this case would impair the children’s future opportunities for adoption.

[436] The Society, in its submissions concedes that the access between Ms. B. and A.B-F. and E.B-H. is meaningful but argues that, given the difficulties played out during the access visits over the last two years, access cannot be found to be beneficial to the children. The Society did not argue that the relationship between A.B-F. and her brother E.B-H. was not beneficial and meaningful, in fact on the evidence it can be found to be so.

[437] With respect to the meaning of the word “beneficial”, not being defined in the CFSA, one must rely on its ordinary dictionary meaning. In the case of the Children’s Aid Society of the Niagara Region v. M.J . , [2004] O. J. No. 2872 (Ont. Sup Ct.-Family), Justice Quinn found the meaning of the word “beneficial” to be “advantageous”. He went on to find that a meaningful and beneficial relationship was one that was found to be significantly advantageous to a child.

[438] No one questioned the fact that, despite her parental deficiencies, Ms. B. loves her children. At the beginning of access and at the end of access she consistently demonstrated her love and affection for them. The children reciprocated that affection. The children are of an age where they will not quickly forget their mother. In the circumstances of this case, where children, such as A.B-F. and E.B-H. have experienced such disruption in their lives and have yet to go through the adaptation to the next stage of the process, towards permanency, I must conclude that the relationship between the children and the one person who has loved them all of their lives is a meaningful and beneficial one to them. It is for these reasons that I conclude that an order for access would be in the best interests of the children.

[439] In determining the specifics of an access order that would be in the best interests of the children, the challenge is finding the fine balance between what will preserve the meaningful and beneficial relationship in the best interests of the children and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the children in their new adoptive home. To that end, I make the following order with respect to access that will accompany the order of Crown Wardship.

[440] Regarding access between A.B-F. and E.B-H.

• A.B-F. shall be the holder of access; and
• There shall be access between A.B-F. and E.B-H. at a minimum of every two weeks at a location and duration in the discretion of the Society

[441] Regarding access between A.B-F. and E.B-H. and their mother,

• A.B-F. and E.B-H. shall, respectively hold this access and take place if the children wish it; and
• If the children so wish it and in addition to the access between themselves, there shall be access between A.B-F. and E.B-H. and their mother on their respective birthdays and on Ms. B.’s birthday. This access need not necessarily take place on the exact day of the birthdays. The location of the access shall be in the community and supervised in the discretion of the Society. The duration of the thrice yearly visits shall be in the discretion of the Society. During the thrice yearly visits, the following extended family members may attend, the maternal grandparents of the children and their older brother, B.B.(1). Mr. D.B. may also attend these visits if Ms. B. and Mr. D.B. continue in a relationship.

[442] Clearly, transition from the current access regime to the one provided in this order should be done gradually and sensitively in the best interests of the children and with the professional interventions recommended by both Dr. Worenklein and Dr. Palframan.

M. Linhares de Sousa J.

Released: February 22, 2017