Court File and Parties

COURT FILE NO.: C1542/12-02 DATE: October 11, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

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

BETWEEN: Children’s Aid Society of London and Middlesex Tim Price for the Society Applicant

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N.H. and S.M. Lawrence Blokker for N.H. Alla Kikinova for S.M. Respondents

HEARD: February 12, 13, 14, 15, 16, 20, 21, 22, 23, 26, 27, 28, 2018; March 1, 2, 21, 2018; April 6, 2018

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COURT FILE NO.: C1323/16-01

BETWEEN: Children’s Aid Society of London and Middlesex Tim Price for the Society Applicant

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T.P. and S.M. Patricia Miller for T.P. Alla Kikinova for S.M. Respondents

MITROW J.

Introduction

[1] This Crown wardship trial was completed while the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (“CFSA”) was still in force.

[2] Pursuant to the new successor legislation, the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), which came into force April 30, 2018, this protection case is to be decided under the CYFSA pursuant to the transition regulation. [1]

[3] There are two applications, both commenced in October 2016, that were tried together. The applicant in each case is the Children's Aid Society of London and Middlesex (“the Society”).

[4] Each application involves one child. The Society sought in each application, in respect of each child, an order finding that the child was in need of protection and an order of Crown wardship. The equivalent relief will be an order placing each child in extended society care. The Society seeks an order of extended society care to be able to place each child for adoption.

[5] The respondents, S.M. (“Mr. M.”), and N.H. (“Ms. H.”), are the mother and father of the child, D., age one at the time of trial (“D.”). D. was apprehended ... 2016, being the day after his birth.

[6] Mr. M. and the respondent, T.P. (“Ms. P.”), are the mother and father of the child, L., age two at the time of trial. L. was apprehended on October 24, 2016.

[7] The foster parents, with whom both children are placed, are represented by Mr. David Nash, who was present in court on some occasions but otherwise did not participate in the trial other than some brief submissions dealing primarily with his role in the matter.

[8] L. remains in Society care pursuant to a temporary without prejudice order dated October 28, 2016; D. remains in Society care pursuant to a temporary without prejudice order dated ... 2016.

[9] Ms. P. consents to a final order placing L. in extended Society care. Ms. H. consents to a final order placing D. in extended Society care.

[10] Mr. M. opposes the relief sought by the Society in respect of both children. He seeks an order placing both children in his care, subject to Society supervision and subject to terms and conditions.

[11] For reasons that follow, both children are placed in extended Society care, silent as to access, with the exception that both children have access to each other.

Overview

[12] The Society submits that Mr. M. is a risk to the children; that placing the children in his care would put them at risk of sexual harm. The Society relies on the evidence of a psychiatrist, Dr. Robert Dickey, who has diagnosed Mr. M. as suffering from pedohebephilia. The Society also relies on Mr. M.’s past history in relation to Mr. M.’s sexually inappropriate behaviours as a child and teenager, in respect of which he participated in group counselling as a child while in a residential facility.

[13] The Society further submits that there are a number of other concerns regarding Mr. M., including: ongoing emotional outbursts which have not been treated; extensive drug use, primarily marijuana, which inhibits his ability to parent; that Mr. M. will be unlikely to abide by the terms of any supervision order given his criminal convictions for non-compliance with orders and breaching conditions that were imposed on him by the Society prior to any court action; that Mr. M. is not capable of caring for two young children on his own; that Mr. M. has a chaotic lifestyle, characterized by frequent conflicts between Mr. M. and numerous intimate-relationship partners, including living with more than one intimate partner at the same time; and that Mr. M.’s lifestyle, including the condition of his home, is not conducive to parenting two young children.

[14] Mr. M. submits that, although he had issues of inappropriate sexual behaviour that occurred many years ago, that there is no evidence that in the intervening years he has harmed any child or adolescent. An important theory underpinning Mr. M.’s case is that he has “changed,” that he is no longer the person that he used to be. He submits that both children should be placed in his care pursuant to a supervision order subject to terms and conditions.

[15] Given the concessions made by both Ms. P. and Ms. H. regarding a protection finding and disposition, the evidence at trial, and these reasons, focus primarily on Mr. M. and the competing plans of care submitted by Mr. M. and the Society.

[16] Given the circumstances, it is necessary only to discuss briefly the backgrounds of Ms. H. and Ms. P.

N.H.

[17] Ms. H., age 25 at time of trial, was born in 1992 in New Brunswick. She moved from there to London, Ontario in 2011.

[18] It was Ms. H.’s evidence that she attended high school but dropped out in grade 9 due to bullying. Ms. H. did not achieve any high school credits.

[19] Ms. H.’s brother, mother and her son, D., reside in London; however, Ms. H. has family and relatives residing in New Brunswick and Nova Scotia.

[20] Ms. H. is in receipt of payments pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (“ODSP payments”). Ms. H. believes she was diagnosed with an intellectual disability.

[21] Ms. H. had another child, a daughter, born in 2012, who was apprehended by the Society and made a Crown ward pursuant to an order dated July 10, 2014.

[22] Although it is Ms. H.’s evidence that she lived with Mr. M. for almost four years, it would appear that their relationship was fraught with separations. There was a period of time when Ms. H. had her own residence but she still spent significant time at Mr. M.’s residence.

[23] Ms. H. testified that recently she had left Mr. M.’s residence; she stated that she could “not take it anymore” for reasons including the mice, bugs and cockroaches. The nature of her relationship with Mr. M. is described later in these reasons.

[24] It is Ms. H.’s desire that D. be adopted by her cousin in Nova Scotia. Ms. H. testified that she would relocate to Nova Scotia if D. went there, although at the moment she had no plan to move there. Ms. H. had supervised access subsequent to D.’s apprehension.

T.P.

[25] Ms. P. was born in 1994 and was age 23 at the time of trial. She is in receipt of ODSP benefits.

[26] She met Mr. M. in 2015 and lived with him in an on-and-off relationship. At the time of trial, she was living in a shelter as a result of an argument she had had with Mr. M.

[27] Ms. P. described why she agreed for L. to be made a Crown ward. It was Ms. P.’s evidence that L. currently has a stable, healthy environment with her foster parents.

[28] In contrast, Ms. P. testified that she did not have a stable environment, that she did not have a stable home and that she was in and out of relationships.

[29] Ms. P. described taking some parenting courses on her own. She recalled one course that she did on her own prior to L.’s birth and took some courses after L.’s birth.

[30] Ms. P. had supervised access to L. following L.’s apprehension.

Evidence of Keri Newbigging and Melinda Nethercott

(i) Keri Newbigging

[31] Keri Newbigging (“Ms. Newbigging”) was called as a witness by the Society. Ms. Newbigging provided some valuable evidence as to the role of an adult protection services worker and a community integration worker.

[32] Ms. Newbigging is an independently contracted community integration worker. She works for Family Services Thames Valley. Ms. Newbigging assists Mr. M. in her role as a community integration worker.

[33] Mr. M. has been in receipt of ODSP payments for a number of years.

[34] Ms. Newbigging explained that a person must be an adult with a developmental disability in order to qualify for funding to receive the services of a community integration worker or an adult protection services worker. The funding application is made to Development Services Ontario (“DSO”). Ms. Newbigging described DSO as a branch of the Ministry of Community and Social Services. The actual funding is provided by the Ministry. An individual must undergo a psychological assessment to verify a developmental disability; after that process, documents, including an application, are submitted to DSO to determine an individual’s needs and goals.

[35] An individual approved for funding, for the most part, has a choice in the selection of a services provider.

[36] Ms. Newbigging described the type of supports available through an adult protection services worker and a community integration worker. The former was described as more of an administrative role; it was intended to be for a shorter term, for example, to assist an individual through a “crisis.” The role of a community integration worker was of a more long-term nature; the duties of a community integration worker could include assisting the individual within the community, helping the individual at home and assisting the individual with daily living, appointments and budgeting.

[37] Ms. Newbigging met with Mr. M. in May 2015. His goals at that time were to maintain housing, follow a budget, access his psychiatrist and follow up with his family doctor around asthma testing.

[38] Since the birth of his children, Ms. Newbigging accompanied Mr. M. to access local foodbanks and she assisted him in removing clutter from his home. She also accompanied him to various appointments, including Society worker appointments. Ms. Newbigging’s attendance at appointments helped Mr. M. to focus on his goals and behaviours. Ms. Newbigging indicated that at times Mr. M. required support “to reframe situations and scenarios to find productive resolutions to the ongoing crisis in his life” (see letter from Ms. Newbigging dated July 10, 2017).

[39] Ms. Newbigging testified that her services provided to Mr. M. are self-accessed, meaning that Mr. M. chooses when and where he requires support and the extent of support that he requires.

[40] Although there was ample evidence during trial that Mr. M. experienced difficulty managing financially, for example, requiring him to attend at foodbanks, it was Ms. Newbigging’s evidence that Mr. M. elected not to engage her assistance regarding budgeting. Importantly, Ms. Newbigging testified that Mr. M. failed to recognize the problems he was having due to lack of budgeting.

[41] Ms. Newbigging accompanied Mr. M. to his appointment to Toronto to see Dr. Dickey in May 2017. When asked during cross-examination by Ms. H.’s counsel to comment on Mr. M.’s demeanor, Ms. Newbigging described that he was anxious, loud and likely to swear and that she would have to interject and redirect Mr. M. to control his language. It was Ms. Newbigging’s evidence that Mr. M.’s behaviour was not different on the return trip after the appointment with Dr. Dickey.

[42] Ms. Newbigging confirmed during cross-examination by Ms. P.’s counsel that Mr. M. permitted a number of people to live in his residence. It was her unchallenged evidence that Mr. M. did not use good judgment when selecting those people

[43] Ms. Newbigging’s observation of Mr. M.’s poor screening of his boarders was corroborated by Mr. M. during his evidence in-chief. When asked how he finds roommates, Mr. M. testified that he would normally post an ad on Kijiji; that he would then meet them first and look at their demeanor, including how they talk. Beyond that superficial process, Mr. M.’s screening process was non-existent.

[44] An issue in this trial, and a common thread in the evidence, relates to Mr. M.’s volatility and his inability to control emotional outbursts.

[45] Ms. Newbigging described witnessing Mr. M. becoming angry and frustrated; he would shout and escalate quickly.

[46] Ms. Newbigging agreed during cross-examination that Mr. M. behaves impulsively and it was her view that he does not recognize his impulsivity.

[47] Another common theme in this proceeding was the state of Mr. M.’s residence. Ms. Newbigging told Ms. P.’s counsel during cross-examination that she did not believe that the home environment was safe. She described it as very cluttered, having a body odour smell and a smell of stale cigarettes.

[48] During that same cross-examination, Ms. Newbigging was referred to the statement in her letter that Mr. M. requires some support to find productive solutions “to the on-going crisis in his life.” When asked about this statement, it was Ms. Newbigging’s evidence that Mr. M.’s life has ongoing crises and that he is not learning skills to manage these crises.

[49] The evidence of Ms. Newbigging corroborates dysfunctional aspects of Mr. M.’s lifestyle and his lack of insight. I found Ms. Newbigging’s evidence to be credible and reliable.

(ii) Melinda Nethercott

[50] Melinda Nethercott was called as a witness by Ms. P. Ms. Nethercott indicated that, although her legal surname is Downing, that she uses the surname “Nethercott.” For convenience, I will refer to this witness as Ms. Nethercott.

[51] Ms. Nethercott worked with Mr. M. in her role as an adult protective services worker for a period of approximately two years from September 2012 to August 2014.

[52] Her initial involvement with Mr. M. related to assisting him regarding some criminal charges.

[53] When L. was born in […] 2016, Ms. Nethercott became involved with Ms. P. in her role as an adult protection services worker. There was a period after August 2014, when Ms. Nethercott’s role as an adult protection services worker for Mr. M. had ended, but she would at times “cover” if Mr. M.’s primary worker was not there.

[54] It is evident that Ms. Nethercott has had substantial involvement and has been around Mr. M. for a number of years during the time that she was his adult protection services worker and later assuming that same role for Ms. P. I found that Ms. Nethercott, in her evidence, was balanced, credible and reliable.

[55] Ms. Nethercott corroborated, through her observations, the evidence of other witnesses as to the general chaotic nature of Mr. M.’s ongoing intimate partner relationships, with different partners coming and going on a not infrequent basis.

[56] Ms. Nethercott too corroborated Mr. M.’s volatile nature. A graphic portion of Ms. Nethercott’s evidence in relation to Mr. M.’s behaviour occurred during cross-examination by Mr. M.’s counsel. Ms. Nethercott referred to her observations of Mr. M.’s impulsivity and how he would start yelling and screaming. She referred to his conduct as “startling.”

[57] Ms. Nethercott testified as to a personal observation of an occurrence around the time that L. was five to six months of age. It was Ms. Nethercott’s testimony that she had attended at Mr. M.’s residence with the intent of having a form signed by Ms. P. Ms. Nethercott observed Ms. P., Mr. M. and the child L. outside on the front lawn. Ms. Nethercott testified that, while outside, that Mr. M. began to explain something that a neighbor had done; Mr. M. then escalated very quickly, he was yelling; the yelling was very loud and he was swearing. Ms. Nethercott described Mr. M.’s escalation as going from “zero to one hundred.” Ms. Nethercott then observed Mr. M. walk up and down the sidewalk; he had no shirt, and no shoes or socks on (it was summer). When the sudden escalation occurred, Mr. M.’s loud voice and swearing startled the child. Ms. P. went inside the house with the child. Later, Mr. M. continued pacing on the sidewalk, but he was not verbal. Ms. Nethercott attempted to speak with Mr. M. but was not successful and thereafter she left.

[58] The disturbing nature of this incident was that Mr. M.’s verbal outburst was sudden, unprovoked, explosive and in the child’s presence. It was Ms. P. who acted to shield the child by going into the house with her. The question may be asked as to who would have protected the child if Mr. M. had been the sole caregiving parent at the time.

[59] During her evidence in-chief, Ms. Nethercott was asked whether she had observed qualities in Mr. M. that made her believe that he would be able to successfully parent a child. Ms. Nethercott responded that Mr. M. means well, that he has a generous heart; however, his impulsivity and his inability to regulate his emotions and make consistent, safe decisions are very impaired.

[60] Given that Ms. Nethercott’s involvement with Mr. M. spanned a number of years, this observation is reliable and probative evidence based on first-hand experience.

[61] It was also Ms. Nethercott’s evidence during examination in-chief that when Ms. P. was pregnant that Ms. Nethercott contacted the Society to express concerns, including Mr. M.’s potential risk to young children, the chaotic home environment, people coming and going, and unknown people in the home. Ms. Nethercott testified that she called the Children's Aid Society as part of her disclosure duty given her concerns regarding L.’s pending birth.

[62] One of the documents that had to be submitted to DSO with Mr. M.’s application was a document titled “supports intensity scale.”

[63] The purpose of this document was to set out the types of supports that Mr. M. requires in various categories. Both Ms. Nethercott and Ms. Newbigging gave detailed evidence as to the process involved in completing the supports intensity scale. None of this evidence was challenged by any credible evidence.

[64] I accept that the form was completed with Mr. M.’s participation at the meeting. Ms. Nethercott was also present with Mr. M. at this meeting.

[65] The supports intensity scale listed various behaviours and the supports that were needed. In relation to “prevention of tantrums or emotional outbursts,” the highest level of support was needed by Mr. M., namely “extensive support.” Extensive support is defined in the document as providing regular assistance to manage the medical condition or behaviour.

[66] Despite any evidence by Mr. M. to the contrary, I accept the evidence of Ms. Newbigging and Ms. Nethercott that Mr. M. was an active participant in responding to the level of assistance that he required in all of the categories listed in the supports intensity scale.

[67] Although Ms. Nethercott did testify that generally after impulsive behaviour, that Mr. M. would apologize, there was nothing in the evidence of Ms. Nethercott, or the evidence of other witnesses on this issue, to suggest that any meaningful steps had been taken by Mr. M. to address this behaviour.

[68] The ongoing frequency, extent and level of Mr. M.’s impulsivity, whether he apologizes or not, raises a serious concern as to the effect that that conduct would have on the two young children that Mr. M. proposes should be placed in his care.

Evidence of Dr. Robert Dickey

[69] In May 2017, Dr. Robert Dickey, a psychiatrist, assessed Mr. M. at the Society’s request and with Mr. M.’s consent.

[70] After a voir dire, Dr. Dickey was qualified as an expert to give opinion evidence in the area of psychiatry, including the assessment and treatment of persons with sexual disorders and/or conditions characterized by abnormal sexual desires, and the risk such persons may pose. Dr. Dickey is a consultant psychiatrist at the Centre for Behaviour Health Sciences, and for Parole Services, Correctional Services Canada. Dr. Dickey also is a director of the Northern Ontario Sexual Behaviours Program at Thunder Bay Regional Hospital.

[71] Pursuant to a procedural order made at trial, Dr. Dickey’s evidence in-chief proceeded on the basis of identifying and filing as exhibits his two medical reports and an assessment note regarding Mr. M.

[72] The report prepared as a result of the recent assessment is dated May 30, 2017 (“the current report”). Dr. Dickey had assessed Mr. M. when he was in his teens and provided an assessment dated June 21, 2001 (“the first report”) that was forwarded to a child protection worker at the children’s aid society in the jurisdiction where Mr. M. was residing at the time.

[73] Mr. M. was referred by a physician to Dr. Dickey for a consultation and Dr. Dickey provided a brief two-page assessment note dated September 23, 2003.

[74] After the filing of Dr. Dickey’s two reports and the assessment note, the cross-examination of Dr. Dickey proceeded. Only Mr. M.’s counsel elected to cross-examine Dr. Dickey.

[75] As part of the current assessment in May 2017, Mr. M. participated in phallometric testing. Dr. Dickey opined that the result of the phallometric testing “... was consistent with a sexual preference for immature persons; more specifically, on this examination, very young adolescents (which would be characterized as Hebephilia)” (page 4).

[76] It was Dr. Dickey’s opinion that Mr. M. suffered from no mental illness, nor could Dr. Dickey detect any affective disturbance.

[77] The opinions and recommendations as stated by Dr. Dickey included the following at page 5:

From a sexological viewpoint, I do not believe that Mr. M. should, in the foreseeable future, be granted unsupervised access to children, both pubescent and prepubescent. I believe that he continues to have difficulties with impulse and anger control and this, in combination with the deviant sexual preference involving children, would make his having unsupervised access to the same, of concern.

In my opinion Mr. M. suffers from Pedohebephilia. I believe the concerns around children, both very early pubescent and prepubescent, as well as his previous phallometric results, would be consistent with his overall sexological diagnosis.

[78] When Dr. Dickey assessed Mr. M. in 2001, the purpose of the assessment was to ascertain the risk of Mr. M. for sexually inappropriate behaviour in the community at large (page 1 first report).

[79] The report described Mr. M.’s considerable history of inappropriate and mostly unwanted sexual behaviour while in the community and while he was in his mother’s care.

[80] At the time of the first report, Mr. M. was in the care of a children’s aid society (not the applicant).

[81] The first report confirmed that phallometric testing was conducted. Dr. Dickey concluded at that time:

From a sexological perspective, Mr. M. suffers from Pedohebephilia. This is a deviant sexual preference in which the preferred stimulus for achieving erotic arousal and gratification is the fantasy of, or physical interaction with, the prepubescent or early pubescent child. The etiology of this disorder is unknown; the course is lifelong.

[82] Dr. Dickey has an impressive curriculum vitae and significant experience and expertise in assessing and treating persons with sexual disorders. Dr. Dickey, according to his curriculum vitae (which was not challenged), has been involved in over 30 homicide cases, he has conducted in excess of 3,000 fitness assessments, he has conducted a large number of risk assessments concerning sexual and violent offenders and he has been qualified at all levels of court in Ontario “on several hundred occasions.”

[83] Although counsel for Mr. M. conducted an able cross-examination of Mr. M., I find that this did not call into question Dr. Dickey’s diagnosis. I accept Dr. Dickey’s evidence that Mr. M. suffers from pedohebephilia and I accept Dr. Dickey’s opinion that, from a sexological viewpoint, that Mr. M. should not be allowed unsupervised access to pubescent and prepubescent children.

[84] There was cross-examination of Dr. Dickey regarding the apparent conflict between the first report and the assessment note as to whether Mr. M. had a history of “diaperism.” Although in his current report, Dr. Dickey “noted” a history of “diaperistic proclivities,” I accept Dr. Dickey’s evidence that the “diaperism” was not central to his assessment.

[85] Dr. Dickey was challenged during cross-examination, but unsuccessfully in my view, as to his choice of a checklist to arrive at a score for Mr. M.

[86] Another area of cross-examination related to the assessment of risk that Mr. M. posed for children. It was put to Dr. Dickey that there was no evidence that Mr. M. had acted on his sexual desires regarding children for many years and therefore this should be a mitigating factor regarding risk assessment. Although Dr. Dickey testified that Mr. M. “deserves a lot of credit” for not having been involved with children given his background, that still “it remains somewhat of a concern.”

[87] During cross-examination, Dr. Dickey confirmed that pedophilia is a lifelong condition that can be treated but not ablated. I accept that evidence. Also, as noted earlier, Dr. Dickey stated in his first report that pedohebephilia is lifelong.

[88] Dr. Dickey agreed that Lupron is a medication that can reduce sex drive.

[89] While Dr. Dickey did agree that, in relation to controlling Mr. M.’s impulsive behaviour, that this could “possibly” include taking Lupron to reduce his sex drive, Dr. Dickey explained that this would depend on Mr. M.’s attitude and how he sees his problem.

[90] Dr. Dickey acknowledged that many years ago Mr. M. had been prescribed Lupron; however, regarding his current assessment, Dr. Dickey testified that he did not canvass with Mr. M. whether such medication should be prescribed because, according to Dr. Dickey, Mr. M. did not say that he had a problem.

[91] When Dr. Dickey was asked during cross-examination whether he would be surprised to learn that Mr. M. recently had asked for the prescription and had taken a Lupron injection voluntarily, Dr. Dickey, in response, asked whether he was now being given new information and testified that he did not know whether it would surprise him as he would have to see the context and see the patient.

[92] In re-examination, Dr. Dickey explained that Lupron does not eliminate a person’s sex drive and that a person taking Lupron still is able to be sexually aroused. I accept that evidence.

Mr. M. – Background

[93] Mr. M. was born in 1986. The information regarding Mr. M.’s childhood was supplemented by historical documents filed as exhibits at trial on consent; these documents included reports from two psychologists and a progress note from CPRI (now Child and Parent Resource Institute).

[94] The evidence, sadly, demonstrates that Mr. M. had a difficult childhood. He described himself as an only child, raised by his mother. He was apprehended from his mother by a children’s aid society.

[95] It was suggested to Mr. M. that he became a Crown ward at age 13; Mr. M. agreed that he was a Crown ward but he was not sure of the date.

[96] Mr. M. testified that he felt that his mother was an unfit parent.

[97] The progress note was in relation to Mr. M.’s participation in the “Group for Adolescents with Sexually-Inappropriate Behaviours.” Mr. M. was accepted into this group at CPRI for the spring of 1998, shortly following his admission into the boys’ unit at CPRI. Mr. M. would have turned age 12 in 1998.

[98] The progress note was authored by a psychometrist, who was Mr. M.’s group facilitator.

[99] The group was for adolescents who exhibited sexually-intrusive behaviours. The course was a ten-week group encounter. Mr. M. was accepted into this group based on information received from Mr. M.’s mother and his social worker regarding occurrences described as sexually inappropriate behaviour in relation to younger children.

[100] The contents of the group program examined topics such as acceptable and unacceptable sexual behaviours, impact on victims, types of sexually inappropriate behaviours, problem-solving approaches and identifying risk factors and developing individual relapse prevention plans.

[101] Although Mr. M. was described as having exhibited extremely immature and disruptive behaviour during the first five sessions of the group, modifications were implemented, which resulted in marked improved behaviour and participation from Mr. M.

[102] At the conclusion of the ten-week program, Mr. M. was noted to have acknowledged his need for continuing supports to avoid any further sexually inappropriate behaviours and Mr. M. had identified his children's aid society social worker as a person who he could trust and work with.

[103] Recommendations from Mr. M.’s participation in the group included: very close supervision for Mr. M. to ensure that he is not left alone without adult monitoring when in the presence of younger children; and that Mr. M. continue his work in understanding his sexually inappropriate behaviour to establish self-control over his impulses.

[104] Mr. M. was noted as having learning difficulties and a recommendation included the importance of presenting material to Mr. M. so that it can be in a fashion to be comprehended by him.

[105] On February 2, 2000, when Mr. M. was age 13, a psychology assessment report was prepared by Dr. L. Stewart, a psychologist. This assessment was prepared at CPRI. Mr. M. had been referred to CPRI for residential treatment due to difficulties including threats of violence, sexual thoughts and behaviour, attention problems and aggressive tendencies and oppositional defiant behaviours.

[106] This assessment report noted that Mr. M. has difficulties in community outings and that he will scream and yell. This assessment noted that a meeting was held with the social worker, Mr. M. and his mother, to discuss presenting problems.

[107] Mr. M. is described as acknowledging that he has thoughts of a sexual nature regarding small or younger children. The report described that Mr. M. is constantly supervised, even at school, and that he used the staff washroom for the safety of other children.

[108] A number of tests were administered by Dr. Stewart as listed in the assessment report.

[109] Dr. Stewart concluded that Mr. M. at that time was functioning within the deficient range (second percentile) and that there was significant discrepancy between his verbal and performance abilities. Mr. M. was assessed to be functioning “several grades behind what is expected for a child of his age” (page 7). Dr. Stewart concluded that the results from the psychological assessment suggested that Mr. M. is an individual meeting the criteria for a youth with developmental disabilities. Dr. Stewart further opined that these difficulties were complicated by “several socioemotional behavioural difficulties, sexually inappropriate behaviours and aggressive tendencies” (page 8).

[110] Dr. Stewart made a number of recommendations that included: treatment for inappropriate sexual behaviour; and anger management given Mr. M.’s continued use of threats of violence and aggressive tendencies.

[111] During trial, Mr. M. did not seek to challenge the accuracy or contents of the historical reports filed on consent, including the progress note and Dr. Stewart’s psychology assessment. Rather, it was his position that he had changed: that he was no longer the person he used to be.

[112] Although the psychology assessment and progress note are dated, the impression of Mr. M. that emerges is that of a troubled youth with a number of issues, including sexualized behaviour, aggression and labile emotions.

[113] Even though Dr. Stewart assessed Mr. M. as having developmental disabilities at age 13, no expert reports were tendered at trial providing any subsequent assessment as to the level at which Mr. M. functions.

[114] At trial, Mr. M. presented his case on the basis that there was nothing related to his level of functioning that precluded him from raising two young children on his own, the implication being that he was sufficiently high functioning to achieve this goal.

[115] Although Mr. M., as discussed in more detail below, was quite evasive at trial regarding any past history of inappropriate sexual behaviour, Mr. M. did make some admissions to Society witnesses.

[116] For example, Mr. M. told Society worker Allison Martin (“Ms. Martin”) that he “has a past” but that he had “changed so much.” However, Mr. M. was more direct with Society worker Nancey Vanderhoeven (“Ms. Vanderhoeven”) when he told Ms. Vanderhoeven that during his childhood he did things that were wrong in relation to “sexual stuff,” however, he then told Ms. Vanderhoeven that he had been immature, had emotional issues and that now he is an adult and has received help.

[117] Statements made by Mr. M. to others or during his testimony that minimize his past on the basis that he now has improved are deserving of no weight given the numerous issues discussed below in relation to Mr. M.’s credibility.

[118] Mr. M. filed a medical report from his treating psychiatrist, Dr. Julie Richard, dated February 8, 2016. Dr. Richard’s letter indicates that Mr. M. has been a patient in her practice for about a year and that she sees him infrequently. He is prescribed medication at bedtime for agitation and sleep.

[119] Dr. Richard indicated Mr. M. carries a diagnosis of fetal alcohol syndrome.

[120] Dr. Richard further opined:

Other diagnoses have been questioned for Mr. M. in the past, however I do feel that all of his psychiatric and behavioural difficulties, which are longstanding since childhood, can be explained by the fetal alcohol syndrome, which has widespread neuropsychiatric effects.

[121] A chaperone agreement was signed during June 2016 by Mr. M., Ms. P. and the Society.

[122] The chaperone agreement is very detailed and explicit as to the reason for the chaperone agreement and Mr. M.’s underlying behaviour. In this agreement, Ms. P. confirms having been informed of Mr. M.’s history of sexual offending, including deviant thoughts, feelings and behaviours; the agreement notes that Mr. M. has engaged young children under the age of eight when he was a youth; the agreement goes on to contain other details of Mr. M.’s past sexualized behaviour and the risk that he poses.

[123] During his evidence in-chief, Mr. M. was asked to read out loud a paragraph in the chaperone agreement that dealt with Ms. P.’s agreement to supervise Mr. M. at all times with the child L. Mr. M. had no difficulty reading that paragraph.

[124] However, when Mr. M. was asked during his evidence in-chief whether he remembered signing the chaperone agreement, he responded “kind of” and then claimed he did not remember what it said and that he just signed it so L. could stay and that he did not really read it. I reject Mr. M.’s evidence entirely that he had failed to read or was not aware of the contents of the chaperone agreement when he signed it. I find that he was well aware of its contents and that he did not dispute the accuracy of the background details summarizing his past behaviour.

[125] The reasons below canvass in more detail why Mr. M. is not a credible witness.

Evidence of Mr. M.

[126] Despite Mr. M. being in receipt of ODSP and having the assistance of a community integration worker, as discussed earlier, it would be a serious mistake to underestimate Mr. M.’s resolve, and the devious conduct that he will resort to in portraying himself as a person capable of raising two children.

[127] Mr. M., I find, was most savvy. Although he was able to recall some events easily from his childhood and teenage years, he steered clear mostly, or tried to, from answering questions posed to him about his sexual past. He knew how to deflect those questions – he would “forget,” he would “not remember.” Mr. M. referred to a head injury he had sustained in a motor vehicle accident when he was a teenager but there was no medical evidence tendered to verify that this had an impact on his memory. Certainly there was no mention of it in Dr. Richard’s letter. Near the conclusion of Mr. M.’s evidence – this was during his re-examination – Mr. M. testified that he did not know why he had difficulties remembering things. Given the somewhat selective nature of Mr. M.’s memory lapses, and lack of corroborating medical evidence, it is difficult to believe his claim that he did not remember; rather it is much more likely that he did not want to answer the questions.

[128] Much of Mr. M.’s testimony is not worthy of belief. Mr. M. and the truth are strangers. He has lied to the Society; he has not always been truthful in the witness box; if Mr. M. was confronted with a document he had signed that impacted him adversely, then he would cleverly resort to a most dubious or improbable explanation that he was rushed, or under pressure, or that he just signed the document without reading it.

[129] Mr. M. had occasion to sign various documents, including his pleadings. He also signed affidavits, two of which were filed as exhibits at trial. There was no evidence at trial tendered by Mr. M. that he was unable to read and understand the documents that he had signed during the course of the two protection proceedings.

[130] Mr. M. on his own evidence is, in effect, an operator of what appears to be a boarding house. He rents the whole house and pays $1,050 per month rent. There are five rooms available for rent that Mr. M. sublets to boarders. Although not all of the rooms are always rented, the evidence at trial indicated that there was a steady parade of boarders; some of whom were of dubious character, as Mr. M. complained regarding damage to property and items being stolen.

[131] If finances were tight, Mr. M. would pick up some quick cash at a local pawn shop by dropping off one of his many cellphones. Mr. M. testified that he has a property management business through which he does odd jobs. He claims that all of his business and rental income is reported to the authorities who issue his monthly ODSP cheque; however, no records were provided by Mr. M. to substantiate what he reported to authorities.

[132] Mr. M. lied to Ms. H. on more than one occasion, telling her that he was informed by a Society social worker that when D. was born that he would come home with Mr. M. I accept the evidence of Society witnesses that no such statements were made to Mr. M. by any Society social worker.

[133] Very soon after his phallometric testing with Dr. Dickey in May 2017, Mr. M. told Society worker Ms. Vanderhoeven that he had seen the test results and that he had “passed.”

[134] I accept Ms. Vanderhoeven’s evidence that: Mr. M. then demanded that access occur at his home (at the time the access was being supervised at the Society premises); that Mr. M. told Ms. Vanderhoeven that he had spoken with Ms. Vanderhoeven’s supervisor, who had agreed to in-home access; and that Mr. M. became angry, saying that he knew that he had passed the assessment and then he accused the Society of keeping his children from him.

[135] None of the information given by Mr. M. to Ms. Vanderhoeven was true; put less charitably, Mr. M. lied to Ms. Vanderhoeven. Dr. Dickey was still working on the assessment report at the time. During Mr. M.’s cross-examination by Society counsel, the court learned that during the phallometric testing procedure that Mr. M. had looked at the computer screen – which caused him to opine that he had “passed” the test.

[136] Mr. M.’s penchant to mislead and lie was evident on October 24, 2016 when L. was apprehended.

[137] As a result of information received from Ms. P.’s stepfather that L. had been left in Mr. M.’s care without Ms. P. being present, police attended at Mr. M.’s residence with a Society worker to verify if L. was alone with Mr. M. Mr. M. was observed to be locking the door and leaving the home when police and the Society worker arrived.

[138] Mr. M. stated that he was on his way to meet Ms. P. and L. downtown. The police and the worker observed the inside of the house with Mr. M.’s agreement. A man and a woman were present in the living room. There were stairs observed that led to an upper level but Mr. M. reported that the upper level was rented to a male named K.W. and that he and Ms. P. did not have access to his unit.

[139] However, while police and the Society worker were walking around outside the premises, Ms. P. was observed to arrive in a cab. She did not have L. with her. Ms. P. reported that she had left L. in Mr. M.’s care.

[140] Mr. M., now caught in a lie, shifted his story. He stated that Mr. T.P., who was one of the persons observed in the living room, had been watching L. Mr. M. added that he (Mr. M.) just got home and forgot that L. was home.

[141] After being asked where L. was, Mr. M. went up the stairs to where the boarder was supposed to be staying, with the Society worker and the police following. Mr. M. walked directly to L. in her crib and said “I forgot you were there.” Mr. M. did indicate at one point that it slipped his mind that L. was there.

[142] As a consequence of the false information that Mr. M. gave to the police, he was charged with intent to mislead a police officer contrary to s. 140(2) of the Criminal Code. In August 2017, Mr. M. entered a plea of guilty; he was convicted and fined; this is verified by a certified copy of the information.

[143] The foregoing facts as to Mr. M.’s conduct are not disputed. They are contained in a document titled “Facts Admitted by the Respondent, [S.M.].”

[144] This incident underscores why Mr. M. is not credible and cannot be believed; however, this occurrence also is a clarion warning that Mr. M. can be devious and will concoct lies, including lying to police and a Society worker, if he thinks he can get away with it.

[145] L. was apprehended. She had been left by Ms. P. in Mr. M.’s care in breach of the chaperone agreement. The deliberate behaviour of Mr. M. on this occasion, including his lies to the police and the Society worker was egregious.

[146] This and other misrepresentations made by Mr. M. were not innocent or accidental; they were deliberate and calculated – designed to achieve Mr. M.’s stated goal of having both children placed in his care.

[147] I find that it is unwise in relation to any material disputed facts to rely on any evidence from Mr. M. unless that evidence is corroborated by other reliable evidence.

[148] The evidence establishes that Mr. M.’s personal life in relation to his intimate partner relationships is anything but stable. For a number of years leading up to trial, the evidence demonstrated that there were many periods of time that Mr. M. lived with Ms. P. and Ms. H. at the same time. He fluctuated back and forth between Ms. P. and Ms. H. as to which woman was his current girlfriend. These living arrangements spawned ongoing conflict and arguments. On occasions, Ms. P. or Ms. H. would leave the residence only to return later.

[149] When L. was born, Ms. P. and L. went to stay with Ms. P.’s family in Exeter, Ontario for approximately two weeks. During this time, Mr. M. readily agreed that he had sexual relations with Ms. H. After the two week period, Ms. P. returned to live with Mr. M., bringing L. with her.

[150] Soon after Ms. P. returned from Exeter with L. to live with Mr. M., Ms. P.’s younger sister came to stay at their residence. It was agreed that she would be one of the chaperones to supervise Mr. M.’s contact with L. At this time, the Society was involved and required an adult person to be present at all times when L. was in Mr. M.’s presence. There is no dispute on the evidence that Mr. M. quickly engaged in sexual relations with Ms. P.’s sister, following which Ms. P.’s sister soon left the residence and was no longer a chaperone.

[151] In the summer of 2016, another woman, Ms. B. (who testified at trial), came to stay at Mr. M.’s residence for a while. She was a friend of his, who had two children at that time and was apparently separated from the children’s father. Mr. M. quickly engaged in a sexual relationship with Ms. B. She then had a child in the spring of 2017 and Mr. M. testified at trial that he wondered whether that child might be his but apparently he satisfied himself that such was likely not the case.

[152] I deal with Ms. P.’s evidence regarding the treatment of her by Mr. M. While Ms. P. had some difficulty during her testimony in recalling whether certain meetings or events occurred, Ms. P. had good overall recall regarding her own interactions with Mr. M. and also observing Mr. M.’s interactions with L. She described his engagement with L. in positive terms.

[153] Ms. P. portrayed Mr. M. as very controlling of her. She was told by Mr. M. who she can talk to on the phone and where she can and cannot go. Ms. P. was directed by Mr. M. which friends she can talk to or communicate with on Facebook. Ms. P. testified that when Mr. M. was angry, his voice would escalate and that he would scream and swear. Ms. P. testified that Mr. M. was upset with her for leaving his residence at the time of trial; that he had been sending her messages via text or Facebook threatening to burn her things, including her sentimental items received from her grandparents and also threatening to take away her access to L.

[154] Ms. P. was not shaken in any way as to her evidence regarding Mr. M.’s controlling and abusive behaviour towards her. I accept that evidence and prefer it over any evidence to the contrary, including evidence from Mr. M. and Ms. B. (Ms. B.’s credibility is dealt with later in these reasons.)

[155] In relation to Ms. H., it was her evidence that she moved out of Mr. M.’s residence recently because she got tired of the way he was treating her. She described Mr. M. as always wanting another female, even while Ms. H. and Mr. M. were in a relationship.

[156] Ms. H. echoed the testimony of Ms. P. and described Mr. M. as being controlling; that he would not allow her to go out on her own unless he was with her.

[157] Ms. H. testified as to Mr. M.’s emotional outbursts and described him as having temper tantrums like a child. Ms. H. further described that Mr. M. put his hand around her throat on one occasion and that Mr. M. tackled her to the ground on a number of occasions, usually while they were arguing.

[158] According to Ms. H., there was an occasion when she told Mr. M. that she was going to a shelter; in turn, Mr. M. took the things that she would need, like her shoes and clothes, and he hid them.

[159] I accept Ms. H.’s evidence regarding Mr. M.’s abusive and controlling conduct towards her and I prefer it over any evidence to the contrary, including evidence from Mr. M.

[160] Mr. M., during his testimony, was prone to drifting into introspection, explaining how he had changed for the better. None of these episodes of self-analysis was convincing or deserving of any weight.

[161] One noteworthy example was Mr. M.’s cross-examination by Ms. H.’s counsel. Mr. M. acknowledged his earlier admission that it was a mistake and not “very family focused” for him to have engaged in sexual relations with Ms. H. during the brief period of time following L.’s birth that Ms. P. and L. were staying in Exeter.

[162] When asked to explain when he came to the realization that his conduct was not family focused, Mr. M. stated that it would have been during February 2016, during the second or third visit with L., when he “saw the look in T.’s [Ms. P.’s] eyes,” which caused Mr. M. to think about L. and that it was wrong of him to have behaved the way that he did.

[163] However, that evidence of Mr. M.’s newly found family focus was exposed to be little more than puffery when the cross-examiner pointed out to Mr. M. that soon thereafter he had sex with Ms. P.’s sister and later that summer that he had sex with Ms. B., leaving Mr. M. looking quite vulnerable in the witness stand, unable to articulate any meaningful response to the obvious repudiation of his self-proclaimed transformation to family-focused conduct.

[164] Mr. M. admitted that in 2005 he was charged with sexual assault. Mr. M. agreed that he was age 19 at the time and he recalled that the female complainant was age 17.

[165] During cross-examination by Society counsel, it was suggested to Mr. M. that the allegation was that he had grabbed the complainant by her breasts.

[166] Consistent with other suggestions made to Mr. M. during this trial as to examples of his alleged inappropriate sexual behaviour, Mr. M. drifted into “obfuscation mode” – that is, pretending he could not remember.

[167] Although there was no evidence at trial as to the details of this assault, I find not credible Mr. M.’s denial that he could not remember what the allegations were. He testified that although he “honestly” could not remember the allegations, that he knew he “definitely” did not do it.

[168] There is no dispute, and Mr. M. agrees, that he did plead guilty to assault and not sexual assault in relation to this female complainant. Mr. M. claimed during cross-examination that he entered a guilty plea to assault “to get it over and dealt with,” while at the same time suggesting that he “pled down” because the victim could not be located; Mr. M. confirmed that his criminal lawyer told him that the complainant could not be found.

[169] Further, it was Mr. M.’s testimony during cross-examination that he did not commit any offence in relation to this female complainant and that he entered a guilty plea “to get the hell out of jail because I was going nuts.” [2]

[170] Mr. M.’s evidence that he pled guilty, while at the same time acknowledging that the complainant could not be found, makes little sense and further adds to his lack of credibility.

[171] What is known about that incident (with corroboration from Mr. M.’s criminal record filed at trial on consent) is that: Mr. M. assaulted a female teenager; he was found guilty; he was also convicted at the same time of failing to comply with a probation order; and the sentence included a suspended sentence and 18 months probation on each count.

[172] I reject entirely any suggestion from Mr. M. that he committed no offence and just wanted to enter a guilty plea to get out of jail. This is nothing more than Mr. M.’s tendency in this trial to deny evidence that is compelling and damaging to him by resorting to unconvincing denials.

[173] Similarly, Mr. M. gave equally unbelievable testimony in relation to his two convictions in October 2014 for uttering threats, saying that the only threat he made was to call children’s aid because he witnessed two adults smoking “weed” in the car while two children were in the back seat.

[174] Even when convicted of criminal offences, Mr. M., rather than acknowledging the convictions, and accepting responsibility and atoning for his conduct, in essence “doubles down” claiming he did nothing wrong.

[175] Mr. M. had made a statement to Society worker Ms. Martin, describing himself in the past as having “helped out teenage girls.” Ms. H. corroborated this evidence, testifying that Mr. M. would bring females off the street to stay with them.

[176] During cross-examination by Society counsel, Mr. M. was evasive in the extreme as to his involvement with these girls. He minimized any interaction he may have had with them, claiming he was quite busy working at times and not home that much anyway. When asked what assistance he gave to these girls, Mr. M. testified that if they had a question, he would try to answer it to the best of his ability.

[177] On further cross-examination, Mr. M. acknowledged that he and Ms. H. were street parents, that they took in teenage females to prevent them from going down the wrong path. Mr. M. then was pressed about a police investigation in 2016 regarding a young female named Jessica who stayed at his residence. Mr. M. recalled this investigation and testified correctly that no charges were laid; he recalled the police talking to him but claimed that he had no recollection as to what the police told him the allegations were. It was the “I don’t remember” defense. He testified that he had no recollection of this female’s name, even when the name “Jessica” was suggested to him during cross-examination.

[178] However, it was Ms. Vanderhoeven’s evidence, which I accept, that Mr. M. had told her that he was aware of a claim being made against him by a person named “Jessica.” Eventually Mr. M. did agree in cross-examination that he was warned by police “to stop helping minors.”

[179] Mr. M.’s memory lapses in relation to the police investigation regarding Jessica were contrived and not credible.

[180] It was patently obvious that Mr. M. was not comfortable with a line of questioning directed at coaxing an explanation from him as to why he was recruiting teenage girls and how was it that he “helped” them. The evidence of Ms. H., which I accept, as to Mr. M. bringing young females in off the street, takes on a very sinister element when viewed through the lens of Dr. Dickey’s testimony.

[181] During his evidence in-chief, Mr. M. was asked whether he used “unprescribed drugs.” It was his evidence that he only uses “weed” and that is to sleep at night. Then he added that he uses it two to three times per day.

[182] Mr. M. explained during cross-examination by Society counsel that his marijuana use had changed and that it was more than a week, maybe two weeks now, that he has stopped using marijuana.

[183] Given the extensive evidence in this trial from numerous other witnesses, including Ms. H. and Ms. P., regarding Mr. M.’s regular ongoing use of marijuana, I find it hard to believe, and quite improbable, that Mr. M. has now allegedly quit using marijuana. For example, Ms. H. confirmed that during the years that she was with Mr. M. that he smoked “pot” on a daily basis.

[184] Ms. H., during her cross-examination by Ms. P.’s counsel, explained the three different ways that Mr. M. would take marijuana, including a bong and a device that she described as a “pisser,” which she explained consisted of a two litre bottle with the top cut off and a smaller bottle inside.

[185] When asked how many times a day she observed Mr. M. getting high, Ms. H.’s evidence was that it was “probably more than five.”

[186] There was also corroborating evidence from Society workers as to observations of drug paraphernalia at his home. Society worker Stacey Case (“Ms. Case”) attended at Mr. M.’s residence on September 28, 2017, along with her supervisor, on an unannounced basis in response to some information the Society had received regarding a small child allegedly being inadequately supervised at that address.

[187] I accept Ms. Case’s evidence that, with Mr. M.’s permission, that she completed a walkthrough of the residence along with her supervisor. Ms. Case observed the residence to be in complete disarray, with clothing, dishes, drug paraphernalia and garbage strewn throughout.

[188] During cross-examination by Ms. H.’s counsel, Mr. M. testified that when he was 17 years old that he was introduced to marijuana by his father. He was unable to confirm precisely when he started his heavy use of marijuana but he did agree during that cross-examination that he was smoking marijuana on a daily basis “way before” arriving in London in 2012.

[189] Mr. M. downplayed any effects on him of his daily marijuana use during the eight months or so that L. was in his and Ms. P.’s care in 2016.

[190] During cross-examination by Society counsel, Mr. M. denied that he had cared for L. after he had smoked marijuana. Mr. M. reasoned that he was not under the influence of marijuana while caring for L. because he would smoke the marijuana after L. was in bed.

[191] It was then pointed out to Mr. M. that he also smokes marijuana in the morning when he gets up. Mr. M. then gave the following somewhat bizarre testimony: [3]

Q. But you smoke marijuana in the morning when you get up. A. Yeah, and I'd have a coffee to get it out of my system real quick to wake up. Q. So you did smoke marijuana in the morning? A. Mm-hmm. Q. Yes? A. Yes. Q. And then you would take the lead in caring for L. And so I understand, your evidence is that "I can smoke marijuana and drink a coffee and that removes it from my system"? A. Not entirely, but it does get it pretty well out of your blood stream almost. It does take a while for blood to circulate, but.

[192] There was no probative evidence at trial verifying the science supporting Mr. M.’s evidence.

[193] Mr. M., during cross-examination by Ms. H.’s counsel, confirmed his evidence in-chief that he uses marijuana to help him sleep at night. Mr. M. then was asked why does he take it in the morning when he first gets up.

[194] Mr. M. was not responsive to the question, answering that he has not been taking it in the morning, that he has been waiting until night because he was trying to wean himself off the marijuana completely. As indicated earlier, I reject any evidence from Mr. M. that allegedly he has been either not using or reducing his marijuana use.

[195] Mr. M. then gave the following evidence: [4]

Q. That doesn't answer my question. If you were using it to help you sleep, why did you take it first thing in the morning? A. To be honest, it was - my brain was running fast and it was going all over the place and I wanted it to slow down so I could actually think properly.

[196] Given Mr. M.’s heavy use of marijuana, multiple times per day, I have no confidence that Mr. M. will, or can, comply with any condition in a court order requiring Mr. M. not to use marijuana while in a caregiving role for his children.

[197] Mr. M. admitted during cross-examination by Society counsel that he used “meth” but said that this occurred just after L. was apprehended. Mr. M. tried to explain this use of meth with a lame and quite unbelievable excuse that it was given to him by a “friend” that he had just met, and that Mr. M. did not know at the time that it was meth.

[198] In giving evidence that he had used meth, Mr. M. likely overlooked the fact that the day before he had testified in-chief that the only unprescribed drug that he had used was marijuana.

[199] Mr. M. portrayed his use of meth as an isolated occasion just after L. was apprehended, but I find such is not the case. Society worker Michelle Hashem (“Ms. Hashem”) testified that in August 2017 (being approximately ten months after L. was apprehended), that she had called Mr. M. in response to a voice mail message that he had left for her. During that conversation, it was Ms. Hashem’s evidence that Mr. M. told her that he could not remember why he called because he was on “meth.” I accept Ms. Hashem’s evidence.

[200] Mr. M.’s drug use is not confined to marijuana and is a serious issue which has not been addressed by Mr. M. I find that Mr. M.’s use of marijuana is longstanding, daily, frequent and pervasive and presents a real risk to any child whose care is entrusted to Mr. M.

[201] Mr. M. agreed during cross-examination by Society counsel that he had devoted a lot of time to get ready for his children to come home. He was pressed specifically for details. Mr. M.’s answers inspired no confidence that he was prepared, even remotely, to have two children placed in his care.

[202] He testified that he had done a lot of thinking – which included realizing what must be done. When asked what had to be done, Mr. M. stated that, to make sure the children were safe, that he went on “the Lupron needle.” Mr. M.’s evidence that the children would be safer if he took this medication is not corroborated by any credible evidence at trial. Dr. Dickey made no recommendation to place Mr. M. on Lupron. Further, as Dr. Dickey testified, Lupron does not eliminate a person’s sex drive and that a person is still capable of sexual arousal.

[203] In relation to the state of readiness of his home, Mr. M. mentioned replacing some carpeting. Mr. M. then added that he was taking all old furniture to the dump “tomorrow.” Further, Mr. M. explained that “tomorrow” he was going to buy “an ozone three machine” because “there’s somehow cockroaches in the house, but we’re gonna get rid of it.” [5]

[204] Mr. M. explained that windows need to be sealed so no air flow can get through. He added that this machine kills “every and any living thing in the area”; this would be “rodents, bugs, anything.” [6]

[205] The preponderance of evidence at trial from many witnesses corroborated that usually Mr. M.’s home was cluttered, unclean, unsafe at times and infested.

[206] When asked whether L. would go to daycare, Mr. M. said “yes” but he had done nothing further about selecting a daycare other than looking at the Salvation Army’s website in July 2017.

[207] Some context is germane. Both children were apprehended during October 2016 and this cross-examination of Mr. M. as to his lack of readiness for the children to be placed in his care was in early March 2018, on the fourteenth day of trial.

[208] A relevant factor in assessing Mr. M.’s ability to parent requires a consideration of his criminal record. Mr. M. signed his pleadings (answer and plan of care) in both applications. In each answer, immediately above his signature, is a statement that he does not have any criminal convictions. Such is not the case, as confirmed by his criminal record filed at trial.

[209] Between 2004 to 2014, Mr. M. has numerous convictions, including: assault convictions in each of 2005, 2010 and 2012; a conviction in 2011 for uttering threats and two convictions in 2014 for uttering threats; and a conviction for resisting arrest in 2012.

[210] Given the evidence at trial as to Mr. M.’s inability to regulate his anger and emotional outbursts, these criminal convictions are worrisome and raise legitimate concerns that Mr. M.’s anger and volatility may culminate in criminal behaviour.

[211] A key component of Mr. M.’s plan of care is his willingness, expressed at trial, to abide by any terms and conditions that may be part of a supervision order. However, Mr. M.’s criminal record demonstrates a proclivity towards breaching court-imposed conditions. Specifically, Mr. M.’s convictions include: in 2004, fail to comply with conditions; in 2005 and 2011, fail to comply with probation order; and in each of 2012 and 2014, fail to comply with undertaking.

[212] During the time in 2016 that L. lived with Mr. M. and Ms. P. prior to apprehension, Mr. M. freely admitted during cross-examination by Society counsel that Ms. P. had left L. in Mr. M.’s care on 42 separate occasions, even though Mr. M. and Ms. P. had agreed with the Society that Ms. P. had to supervise all contact between Mr. M. and L., and that if Ms. P. went out, then she had to take L. with her.

[213] The above demonstrates that Mr. M. has little respect for court orders or contractual obligations. Mr. M., despite his evidence to the contrary, at best cannot be trusted to comply with court-ordered conditions and, at worst he may be ungovernable. I find on the evidence that there exists a significant probability that Mr. M. will not abide by terms and conditions imposed as part of a supervision order and, further, that he will resort to subterfuge to conceal any non-compliance.

[214] A brief word about M.B’s (“Ms. B.”) testimony.

[215] I place no weight on Ms. B.’s testimony praising Mr. M. as a father and his care of L. Ms. B. was aligned with Mr. M. She was forced to admit during cross-examination by Society counsel that she had lied when testifying earlier that she had followed a Society social worker’s direction not to leave Mr. M. alone with her children. Ms. B.’s testimony as to the date that her youngest child was conceived, given during her cross-examination by Ms. P.’s counsel, bordered on the nonsensical.

[216] Ms. B.’s evidence regarding Mr. M.’s parenting abilities is suspect; I find it to be neither credible nor reliable.

Statutory Findings and Protection Findings

(i) Statutory Findings

[217] Pursuant to s. 90(2), I make the statutory findings described below.

[218] In relation to L., I find:

a) her name is L.F.L.M., born in 2016; b) L. is not a First Nations, Inuk or Métis child; and c) the child was brought to a place of safety after apprehension in London.

[219] In relation to D., I find:

a) his name is D.T.J.M., born in 2016; b) D. is not a First Nations, Inuk or Métis child; and c) the child was brought to a place of safety after apprehension in London.

[220] No birth certificate was filed for D. Unfortunately, the spelling of D.’s correct name, including his first name, was inconsistent between the pleadings, exhibits, orders and trial affidavits. The finding regarding his name is based on Ms. H.’s unchallenged evidence in-chief.

(ii) Protection Findings

[221] All parties agreed that a finding should be made for both children pursuant to s. 37(2)(b)(i) of the CFSA. The corresponding provision in the CYFSA has the same wording and is found in s. 74(2)(b)(i):

74(2)(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child ...

[222] I agree that the evidence amply supports a protection finding for both children pursuant to s. 74(2)(b)(i).

[223] The Society also sought a protection finding pursuant to s. 37(2)(d) of the CFSA. [7]

[224] This was based on the potential risk of sexual harm posed by Mr. M. This finding was opposed by Mr. M.

[225] The provisions in the CYFSA that correspond to subsections 37(2)(c) and (d) of the CFSA are now contained in subsections 74(2)(c) and (d) of the CYFSA:

74(2) A child is in need of protection where, (c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child; (d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c);

[226] The wording is not identical. The CFSA in s. 37(2)(d) referred to a child at risk of being “sexually molested or sexually exploited,” while the CYFSA refers to the risk of a child being “sexually abused or sexually exploited.”

[227] I am satisfied on the evidence that a protection finding should be made pursuant to s. 74(2)(d) of the CYFSA.

[228] The onus lies on the Society to prove the “risk” referred to in s. 74(2)(d). I adopt the discussion by Blishen J. in Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (S.C.J.), at para. 8 as to the meaning of “risk”:

8 The term "risk" is now left unmodified. The Concise Oxford Dictionary includes as a definition of risk "the possibility that something unpleasant might happen". Black's Law Dictionary (7th edition), 1999 defines risk as "the chance of injury, damage, or loss". Thus, a risk of undefined proportions involves a chance or a possibility. However, in my view, this chance or possibility must be real and not just speculative.

[229] In the case at bar, the chance or possibility of risk in relation to s. 74(2)(d) is real and not speculative.

[230] Mr. M. as a child and youth had a history of sexualized conduct. His diagnosis of pedohebephilia from many years ago was confirmed by Dr. Dickey in May 2017. Mr. M. has very limited, if any, insight into his diagnosis. He has taken no treatment in recent years and, importantly, no treatment recommendations were suggested by Dr. Dickey for reasons explained in his testimony as discussed earlier in these reasons. Also, Mr. M.’s untreated impulsivity, and his lack of insight regarding this issue, add to the risk.

[231] Further, Ms. P., who was aware of, and understood, her role in the chaperone agreement to protect L. by never leaving her with Mr. M., breached her obligation multiple times for reasons including her naïve belief expressed during cross-examination by Society counsel that she did not believe the information about Mr. M.’s past and wanted to give him the benefit of the doubt. Ms. P. placed L. at risk by abandoning her responsibilities under the chaperone agreement.

[232] I find that:

a) L. is a child in need of protection pursuant to s. 74(2)(b)(i) and s. 74(2)(d) of the CYFSA; b) D. is a child in need of protection pursuant to s. 74(2)(b)(i) and s. 74(2)(d) of the CYFSA.

Disposition

[233] When making a disposition pursuant to s. 101 of the CYFSA, the court is required to do so in the child’s best interests.

[234] The relevant portions of s. 74(3), which set out the factors that a court is to consider when making a determination in a child’s best interests, are as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[235] Both children were in the same foster home at the time of trial. The Society plan was for L. to be adopted by the foster parents and for D. to be placed for adoption with Ms. H.’s cousin in Nova Scotia.

[236] Clause (viii) (of s. 74(3)(c)), requiring an assessment of the merits of placing the children for adoption versus placing the children with a parent – the father – is a central consideration. This also engages clauses (x) and (xi) – risk of harm if the children are placed with Mr. M. and the degree of risk – which are important considerations on the facts.

[237] Mr. M.’s love for his children and his genuine desire to parent is not at issue.

[238] Given the length of time that the children have been in care, interim society care is not an option: s. 122(1)(a) CYFSA.

[239] Considering first clause (viii), if the children are to be placed with Mr. M. pursuant to a supervision order, then that is a plan that must be grounded in a sense of reality and that has a reasonable prospect of success. The plan cannot amount to an experiment.

[240] Mr. M.’s plan lacks an air of reality, has no identifiable prospect of success and would be little more than an experiment with near certainty of failure.

[241] Although the evidence suggested that L. met her milestones during the time that she was living with Mr. M. and Ms. P., this placement was approved by the Society on the basis that Ms. P. (following her sister’s quick departure) was required to supervise Mr. M. at all times. That condition was breached multiple times; also, there was breach of the requirement that no other adults were to be in the house except as approved by the Society.

[242] Mr. M., at trial, identified no persons who could give him ongoing regular support, or perhaps reside with him, to assist in the care of the children. Mr. M. was determined and confident in his own abilities to parent both children on his own.

[243] Many reliable witnesses spoke to Mr. M.’s chronic lack of insight. At best, Mr. M.’s belief that he was capable of parenting two young children on his own was naïve and facile. Mr. M. has serious unresolved issues regarding ongoing emotional dysregulation. That could, and in the past did, cause him to drift into criminal conduct.

[244] Mr. M.’s chronic reliance on marijuana, his fantasies as to how coffee counteracts marijuana and his failure to admit or understand how that can impact his parenting presents a real risk to the children.

[245] Mr. M. leads a dysfunctional lifestyle with numerous intimate partner relationships fraught with chaos, strife, conflict, arguments and abusive conduct. Mr. M.’s ability as a potential caregiver to shield his children from this drama is minimal to non-existent.

[246] The frequent chaotic state of his home environment, including clutter, infestation and drug paraphernalia, as attested to by various witnesses, together with the cockroach infestation sought to be eliminated by an “ozone three machine” during trial depicts a disorganized individual who would not inspire any realistic expectation of being able to provide a consistent stable, clean and safe home environment for two young children. Safety also would be compromised by the likelihood that Mr. M. would introduce boarders into the home despite any directive from the Society or a court order to the contrary. Mr. M.’s uncorroborated evidence that he was planning to move to a new safer location with the children was belied by the fact that he had done little, if anything, to seek new accommodation and that he was apparently preparing his current and self-admitted cockroach-infested residence as a place to house the children.

[247] On an ongoing basis, in order to manage his own self-care, Mr. M. utilizes the assistance of a community integration worker. Placing two young children in Mr. M.’s care raises serious concerns that Mr. M. would be overwhelmed.

[248] Mr. M. is an individual who has demonstrated that he does not respect conditions imposed on him by court orders. As discussed earlier, he will likely breach terms and conditions of any supervision order. Also, Mr. M. has lied to Society workers in the past and the evidentiary record portends that he would continue to do so.

[249] Mr. M., despite both children being in Society care for one and a half years as at the time of trial, took little concrete demonstrable action to prepare for the children to be placed in his care as demonstrated during his cross-examination by Society counsel.

[250] Further, Mr. M.’s untreated emotional volatility has been long-standing.

[251] The foregoing issues, apart from any evidence from Dr. Dickey and ignoring Mr. M.’s sexual history, on their own present a constellation of factors that would contraindicate the placement of the children with Mr. M.

[252] Regarding clauses (i) and (ii), there was no evidence to suggest that the children have any health issues or special needs.

[253] There were no issues raised relevant to clauses (iii) and (iv). Regarding clauses (v) and (vi), the Society plan would terminate any parent-child relationship and would separate the children who are half-siblings. Mr. M. did understandably express a concern about separating the children. However, on the evidence, the weight to be attributed to other factors would be greater than the weight to be attributed to clauses (v) and (vi). However, in relation to D. and considering clause (vi), the plan for D. would preserve his family relationships on the mother’s side.

[254] Regarding clause (vii), continuity of care, the child L. would remain with the foster parents. Although the plan for D.’s adoption would disrupt his current placement, there was no evidence at trial to suggest that D. would not be able to integrate successfully with his proposed adoptive kin. Further, it was Ms. H.’s evidence that her intention was to move Nova Scotia to be near D. should he be placed there for adoption.

[255] Regarding clause (ix), further delay is not in the best interests of either child.

[256] In regard to clauses (x) and (xi), the degree of risk in relation to Mr. M. was palpable and worrisome, even without considering Mr. M.’s sexual history and diagnosis. The addition of Dr. Dickey’s diagnosis, in the context of Mr. M.’s sexual history, measurably increases the degree and extent of risk and introduces a real risk of sexual harm.

[257] I do acknowledge Mr. M.’s submission that for many years he has not acted on his impulses and there is no evidence that he has inflicted sexual harm on children. However, it is also the case that there is no medical or other credible evidence that Mr. M. has taken any specific steps, in the context of treatment, to manage or control the risk posed by Dr. Dickey’s diagnosis. Taking “Lupron needles” is Mr. M.’s own idea. Dr. Dickey made no such recommendation and it was Dr. Dickey’s evidence that Mr. M.’s diagnosis is lifelong and that Lupron does not eliminate sexual arousal.

[258] Mr. M.’s limited insight regarding Dr. Dickey’s diagnosis was displayed during cross-examination by Society counsel when Mr. M. stated: “Again, Dr. Dickey’s a dick 'cause I’m tired of his attitude.” [8]

[259] Similarly, there was no evidence at trial to suggest that Mr. M. had taken any meaningful steps or treatment to address his emotional volatility.

[260] I accept Mr. M.’s reliance on Catholic Children’s Aid Society of Hamilton v. M.(M.A.), [2003] O.J. No. 1274, at para. 12, as to the profound nature of a Crown wardship order (now extended society care):

12 I note that a Crown Wardship order is probably the most profound order that a court can make. Cases are virtually unanimous in postulating that there is no order that any judge can possibly make that so profoundly affects the lives of the people involved. Thus, " to take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies " (Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J.) (1996), 23 R.F.L. (4th) 79 (Ont. Div. Ct.)). I have, in my deliberations, carefully reflected on these considerations.

[their emphasis]

[261] In all the circumstances, I find that it is in the best interests of each child to be placed in extended society care.

Access

[262] Where a child is placed in extended society care, the CYFSA now provides that no access order shall be made or varied unless the court is satisfied that it would be in a child’s best interests to do so.

[263] Subsections 105(5) and (6) state:

When court may order access to child in extended society care 105(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test (6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5), (a) whether the relationship between the person and the child is beneficial and meaningful to the child; and (b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[264] The requirement for the relationship to be “beneficial and meaningful” was also contained in s. 59(2.1)(a) of the CFSA. In my view, the discussion in Children's Aid Society of Niagara Region v. C.(J.), [2007] O.J. No. 1058 (Ont. Div. Ct.), at para. 29, regarding the meaning of “beneficial and meaningful” under the previous s. 59(2.1)(a) would apply to s. 105(6)(a) of the CYFSA.

[265] The reference to best interests requires that a court “shall consider” the factors set out in s. 74(3) and the additional factors in s. 105(6)(a) and (b), but in relation to (b), only if the court considers it relevant. When considering best interests, the legislation does not ascribe greater weight to the factors in s. 105(6) as compared to the factors in s. 74(3): see Family and Children’s Services of Guelph & Wellington County v. A.I.S., 2018 ONCJ 410, at paras. 58-59.

[266] Ms. P. seeks access to L.; Ms. H. seeks access to D.; Mr. M. seeks access to both children. The Society submission during closing argument was that the order should be silent as to access for all the respondents. However, all parties support access between the two children.

[267] Ms. P. has access to L. once weekly, supervised by the Society. Initially, she had missed attending a number of supervised access visits when they were in Strathroy.

[268] The brief evidence regarding Ms. P.’s visits suggests that the visits were enjoyable and that Ms. P. communicated appropriately with the foster mother at access exchanges. On the evidence, and taking into account that L. was living with Ms. P., and later Ms. P. and Mr. M. prior to apprehension, I do not find that the relationship between Ms. P. and L. rises to the level of being meaningful and beneficial for L.

[269] Ms. Vanderhoeven’s affidavit comprising her evidence in-chief indicated that L. was placed in the same foster home as D. on April 6, 2017.

[270] Ms. P. testified that the foster mother was aware that Ms. P. was supporting L. being adopted by that foster family. It was Ms. P.’s expectation that, given her relationship with the foster mother, that Ms. P. would continue to have some relationship with L. following an adoption.

[271] In relation to the factors in s. 74(3), Ms. P. admitted that she had no stable housing and that she was in and out of relationships. Ms. P. indicated specifically that she wanted L. to remain in her current stable environment, which would provide continuity and would relate to clause (vii) in s. 74(3)(c). I find that access would undermine L.’s stability while in foster care pursuant to an order of extended society care.

[272] I am not satisfied that access to Ms. P. would be in L.’s best interests.

[273] In relation to Ms. H.’s request for access to D., she currently has supervised access by the Society weekly for 1.5 hours.

[274] Ms. H. had some difficulty initially attending access visits. She testified as to not getting up on time or not having enough bus tickets.

[275] The brief evidence regarding her supervised access visits suggest that the visits were positive, except for Ms. H.’s evidence that at the end of a visit D. was more interested to go to his foster mother than engaging in a goodbye with Ms. H. On the evidence, I would not characterize the relationship between Ms. H. and D. as being meaningful and beneficial for D.

[276] In considering D.’s best interests, I have taken into account that the proposed adoption is to take place in Nova Scotia. There is no evidence either way to suggest whether an access order would impair the prospects of such an adoption.

[277] However, even if there was evidence that an access order would not impair prospects of adoption in Nova Scotia, that factor would be outweighed by other factors militating against an access order.

[278] Ms. H. spoke of her positive relationship with the current foster mother and Ms. H. anticipates a positive relationship with her cousin if D. is placed for adoption in Nova Scotia.

[279] D. requires stability while in extended society care and this would be undermined by an access order.

[280] I find that access by Ms. H. to D. would not be in D.’s best interests.

[281] In relation to Mr. M.’s request for access, the considerations in relation to risk are significant when assessing the factors in s. 74(3)(c).

[282] Mr. M. currently has weekly supervised access by the Society for two hours with both children together.

[283] While the evidence of Mr. Steven Simons (“Mr. Simons”), an access supervisor called by Mr. M., was positive as to Mr. M.’s interaction with the children, there were noted concerns regarding aspects of Mr. M.’s behaviour.

[284] Mr. M. consistently failed to follow Mr. Simons’ directive not to use his cellphone during access. Mr. M. was engaged, at times, in responding to electronic messages received on his cellphone. It was Mr. Simons’ evidence that Mr. M.’s conduct in this regard continued from visit to visit, despite Mr. Simons’ repeated requests to the contrary.

[285] Mr. Simons testified that there were two occasions when Mr. M. failed to give the child up to the female access supervisor. On those occasions, Mr. Simons was contacted and he attended to receive the child from Mr. M. He testified that this happened once for each child. In observing Mr. M.’s refusal to turn over the child, Mr. Simons described Mr. M. as appearing agitated.

[286] Mr. Simons explained that he was requested to intervene because, although he was not supervising access during the time of those events, Mr. Simons believed that Mr. M. trusted him and would be more likely to cooperate.

[287] On another occasion, Mr. Simons described a visit where Mr. M. and Ms. H. had a joint supervised visit with D.

[288] Following the visit with D. at the medical clinic on the second floor, Mr. M., Ms. P. and Ms. H. were present at the same time. Mr. Simons indicated that on that occasion, when Mr. M. left the building, that he and Ms. P. left together and that Mr. Simons heard them arguing as Mr. M. and Ms. P. drove off on his “e-bike.” Mr. Simons described Mr. M. and Ms. P. as yelling at each other. Mr. Simons noted that Mr. M. left with Ms. P., although he had been there to have a joint visit with Ms. H. for D.

[289] Even during supervised access visits, Mr. M.’s focus drifted from his children to his cellphone and he precipitated two incidents in refusing to relinquish the children.

[290] Throughout the course of the trial, Mr. M. displayed a limited to non-existent understanding of what it means to act in the best interests of the children notwithstanding his completion of a parenting course.

[291] The evidence does not support a finding that Mr. M.’s relationship with L. and D. is beneficial and meaningful for each child. I make this finding taking into account the time that L. lived with Mr. M. and Ms. P. prior to apprehension.

[292] Both children require stability in being placed with an adoptive family; access would undermine the stability of each child’s placement with foster families while in extended care.

[293] I find that it is not in the best interests of L. and D. to order access in favour of Mr. M.

[294] The final order in relation to all three respondents shall be silent as to access.

[295] It is noted that s. 185(2) of the CYFSA imposes an obligation on the Society to consider the benefits of openness:

185(2) Where a society begins planning for the adoption of a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the society shall consider the benefits of an openness order or openness agreement in respect of the child.

[296] Regarding inter-sibling access, I am satisfied that that order should be granted. There was ample evidence from various witnesses that the children have a warm and loving relationship with each other. At the time of trial, they continued to reside in the same foster home.

[297] I find that L. and D. each has a beneficial and meaningful relationship with the other.

[298] In relation to the inter-sibling access, there was no evidence to suggest that such an order would impair adoption of either child.

[299] I find that inter-sibling access is in the best interests of both children.

Final Orders

[300] I make the following final order with respect to the child L.:

1. Protection findings and statutory findings are made as set out earlier in these reasons.
2. L. is placed in extended society care with the Children's Aid Society of London and Middlesex.
3. If L. and D. are not living together, then L. shall have reasonable access to D., and D. shall have reasonable access to L., as determined by the Society. L. and D. are each an access holder and an access recipient.

[301] I make the following final order with respect to the child D.:

1. Protection findings and statutory findings are made as set out earlier in these reasons.
2. D. is placed in extended society care with the Children's Aid Society of London and Middlesex.
3. If D. and L. are not living together, then D. shall have reasonable access to L., and L. shall have reasonable access to D., as determined by the Society. D. and L. are each an access holder and an access recipient.

“Justice Victor Mitrow” Justice Victor Mitrow

Released: October 11, 2018

COURT FILE NO.: C1542/12-02 DATE: October 11, 2018 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEE N: Children’s Aid Society of London and Middlesex Applicant - and - N.H. and S.M. Respondents REASONS FOR JUDGMENT

MITROW J.

COURT FILE NO.: C1323/16-01 DATE: October 11, 2018 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEE N: Children’s Aid Society of London and Middlesex Applicant - and - T.P. and S.M. Respondents REASONS FOR JUDGMENT MITROW J. Released: October 11, 2018

[1] Ontario Regulation 157/18; s. 11(1): A proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act.

[2] Transcript March 1, 2018, page 99

[3] Transcript, page 146, March 2, 2018

[4] Transcript, page 179, March 2, 2018

[5] Transcript, page 145, March 2, 2018

[6] Transcript, page 145, March 2, 2018

[7] Subsections 37(2)(c) and (d) of the CFSA provided as follows: A child is in need of protection where, … (c) the child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child; and (d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c).

[8] Transcript, page 103, March 1, 2018