WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: 133/08

Date: 2012-08-02

Ontario Court of Justice

Between:

Chatham-Kent Children's Services, Applicant

— AND —

K.F., A.R., K.P., K.V., Respondents

Before: Justice Lucy Glenn

Heard on: October 24, 25, November 7, 8, 2011, March 23, 27, 28, 29, 30, June 25, 2012

Reasons for Judgment released on: August 2, 2012

Counsel:

• Patricia Corneil, for the applicant society
• Duane Jacobs, for the respondent/mother
• Colleen Johnson, for the Office of the Children's Lawyer, Legal representative for J.
• Judith Pascoe, for the Office of the Children's Lawyer, legal representative for S.

No appearance by or on behalf of A.R. and K.P., even though served with notice.

Service was dispensed with regarding K.V., who also did not appear.

Reasons for Judgment

Glenn J.:

Introduction

[1] This is a Child Protection application regarding two children, S. born in 1997 and J. born in 1999. J.'s father has had no involvement in his life and took no part in these proceedings. However, while S.'s father Mr. P. did file an answer, he did not take part in the trial. The mother of the children and their stepfather, Mr. R. (with whom the children were living at the time of intervention) filed a joint answer; however, the stepfather also did not take part in the trial. The only parent who engaged in the trial process was the mother. Both children were represented individually by an OCL. This application was commenced on May 6, 2008, and yet the trial did not actually start until October 24, 2011 and conclude until March 30, 2012. By June of 2012, before a decision was rendered, the Society brought a motion to reopen the case to introduce further evidence. For reasons given in that proceeding this motion was dismissed on June 25, 2012.

[2] While there was an agreement at the outset by all parties that S. should be made a Ward of the Crown with access to the mother there was no agreement as to the grounds of protection. Further, there was a dispute over the Society's position that this access should be supervised. Counsel for the mother and S. took the position that this should not be the case. Even though the Society had been disposed to facilitate access between S. and her natural father, her lawyer indicated that she had not seen him for two years and that she did not wish to have any further access with him.

[3] So far as J. was concerned, at the start of the trial the parties agreed that he would remain in the care of his mother for a period of six months under the supervision of the Society. However by the end of the trial, eight months later, the mother asked the Court to simply leave J. in her care and make no order to protect him in the future. As with S. there was no agreement as to the grounds for protection.

[4] Thus, the issues to be decided in this case are: grounds for protection regarding both children, whether or not S.'s access with her mother should be supervised, and whether or not there should be a continuing order for protection regarding J. under s. 57(9) of the Child and Family Services Act (R.S.O. 1990, c. C.11, as am.) hereinafter called the CFSA.

Background Information

[5] At trial, the mother explained that she had become pregnant with S. at age 19 and that her relationship with S.'s father came to an end because he abused her. J.'s natural father had taken no part in his life and indeed had only seen him on one occasion.

[6] The mother started her relationship with the stepfather when J. was an infant and S. was age two. She described S. as being a difficult child having challenging, defiant behaviours even at that very early age and claimed that these behaviours were more pronounced after access visits with her natural father. She and the children along with the stepfather moved to this jurisdiction in September of 2007. Before they moved, S. had been having sporadic access with her natural father, but after the move, she started demanding to see him after having gone several months without a visit. While the mother claimed that S.'s father always had an excuse for not seeing his daughter, he served her with a contempt motion for moving away and making access visits difficult.

The Society's Protection Concerns

[7] The Society first interviewed the children in December of 2007, after S. made concerning disclosures at school. She told workers that her mother and stepfather were locking J. in his room at night in order to stop him from stealing food and claimed that J. had urinated and defecated in his room because no one let him out to use the washroom. J. confirmed that he was stealing food because he was hungry and that he had been locked in his room at night to prevent him from doing so. Also of concern was the evidence that J. was chewing the window ledge in his room. Both children described being hungry and not being allowed to have snacks between meals and being grounded for weeks. J. claimed that he had been grounded for one month and S. for nine weeks. At the time J. was eight and S. was ten years old.

[8] Both children described being physical disciplined including being hit with a belt. S. went on to disclose a spanking by her stepfather ten months previously during which she had been cornered by him while he yelled and swore at her and called her names. She claimed that she had passed out during this incident. She expressed fear of the stepfather and of returning home. S. reported being so unhappy that she had tied a belt around her neck and had tried to kill herself. She also reported "accidently" cutting her wrists at school with her fingernails. Both children indicated that the mother and step-father did not want them to talk to the CAS.

[9] The allegations about J. soiling his bedroom were corroborated by a teacher who reported a conversation with the mother who told her that the stepfather had told J. that if he soiled his room again he would have to wear a diaper and sleep in the laundry room like a "dog".

[10] Society's initial contact with the mother and stepfather: When the Society went to the children's home they found locks on the refrigerator and on J.'s room. The mother and stepfather admitted locking J. in his bedroom because he was stealing food, however they did agree to remove the locks from J.'s bedroom. The mother also admitted to threatening the children with the use of a belt but denied ever doing so. Further, the step-father acknowledged threatening to send J. to school in a diaper to teach him a lesson.

[11] It was observed by workers that there was much conflict in the home, particularly between S. and her step-father who claimed that she would "push my buttons". Now that the Society was involved, the mother complained about their inability to discipline the children and that what the children needed was a "smack upside the head". They reported that S. had threatened to run away many times in the past but that they just told her that if she did, they would "kick her ass all the way home." Their approach to parenting appeared to be punitive and authoritarian in nature, and they spoke negatively in regard to the children, particularly S.; blaming her for the involvement of the Society in their lives.

[12] Essentially however, the mother and stepfather were dismissive of the seriousness of the allegations. It was clear that they believed the real problem to be S.'s attitude rather than any fault on their part. They accused her of lying, said that her talk of suicide was a bluff done for attention and that she was just being dramatic. The mother also suggested that S. had been angry lately because her biological father had put negative thoughts in her head.

[13] Although the Society was anxious to provide counselling services to the children and in particular to S., the mother and stepfather claimed that it wasn't needed. They made it clear that they felt the Society was intruding in their lives and that they were capable of looking after their problems without help from the Society. Repeatedly workers were met with verbal abuse and resistance particularly by the stepfather when these discussions took place.

[14] Commencement of the Protection Application: Early in May, 2008, this protection application was commenced after S. refused to return home from an access visit with her biological father, claiming that she was afraid to do so. The Haldimand-Norfolk Children's Aid Society investigated the matter and reported a number of concerns along the same lines described above. Once again, S. expressed her concern about returning home after making disclosures to the CAS.

[15] The Society's underlying protection concerns at that time related to S.'s mental health needs, the stepfather's expression of anger, the risk of emotional and physical harm to the children, and caregiver's resistance to intervention.

[16] At the first return of the proceeding before the Court, even though S. made clear to workers that she wished to remain in care, the children were returned to the mother and stepfather under the supervision of the Society with the express requirement that they ensure that the children immediately engage in mental health services. The Society of course, had been trying for several months to get them to voluntarily place the children into counselling without having to formally bring a protection application. It is noteworthy that at this time it was really S. who was presenting with mental health issues.

[17] During the months of May and June of 2008, a crisis counsellor was engaged by the Society to provide services to S.. Initially the mother expressed anger at the referral however she agreed to proceed after being reminded that this intervention was Court ordered. One of the initial telephone interviews between the counsellor and the mother took place with the stepfather loudly shouting objections in the background. Finally the counsellor was able to meet with S., although it could only be arranged at the child's home. During this meeting the mother and stepfather told the child that she should not say anything that could get them into trouble and suggested that it was her fault that they were in trouble with the CAS. There were raised voices and anger on their part, particularly by the stepfather.

[18] During this first meeting when the counsellor managed to meet privately with S. in her bedroom the child spoke of her own suicidal ideation. When the crisis worker told the mother and stepfather that S. was at risk of hurting herself and that she needed counselling once or twice per week they became upset, claimed counselling wasn't needed and the mother once again suggested S. was making all of this up to get attention.

[19] Based on this interference and resistance to the counselling process, by the next day, (May 16, 2008), the children were re-apprehended. However, five days later, after receiving assurances of cooperation from the mother and stepfather, the Court once again returned the children to them under supervision. Again the requirement remained that the mother and stepfather would immediately engage the children in mental health services.

[20] With the return of the children back home, the crisis intervention continued for S., however now she was angry and tight lipped because the counsellor had reported her suicidal thoughts. At this time, the stepfather reported that there was a lot of tension between him and S. and complained that now they didn't have authority to discipline her when she was misbehaving. The stepfather appeared under extreme stress and stated that S. wasn't taking responsibility for the CAS being involved with the family. He suggested that S. should be placed in residential treatment, although both he and the mother were persuaded to try counselling first.

The Stepfather's Verbal Abuse

[21] Not only did S. disclose that the stepfather had verbally abused her but the stepfather was clear in expressing his negative feeling about her to workers and blaming her for involving the Society. Further, his verbal abuse of Society workers speaks to his uncontrolled anger and own personality issues. What is equally informative is that the mother, who was often present during these outbursts, never showed any sign that such conduct was remotely inappropriate.

[22] Throughout his dealings with the Society, he readily acknowledged his own anger at S. for the disruption she created in his life by involving the Society and his difficulty in forgiving her for her accusations against him. He often presented as agitated, verbally abusive, confrontational, uncooperative and expressing strong feelings of anger and stress.

S.'s Various Placements

[23] During the early summer of 2008 (after being returned home after each of the two apprehensions) the relationship between S. and her stepfather remained highly conflicted. So, with the consent of all parties, she was placed for the month of July with her biological father and stepmother. However at the end of the month she refused to return home because of fears about her stepfather. Accordingly on August 7, 2008, the court now made a without prejudice order placing her in the temporary care of her natural father. By the end of September, 2008, however, this placement had broken down largely because of her conflict with her stepmother. On October 1, 2008, there was a further order placing her in the temporary care of the Society. She remained happily in care with her foster family until December 21, 2009 when, contrary to her strong wishes, she was now placed with her maternal grandparents. They, however, downplayed her behavioural issues and took her off her medication for ADHD. By April of 2010, this placement also had broken down because of her behaviours and once again she was brought back into the temporary care of the Society. Since she came back into care in April of 2010, she has remained in the same foster placement with a relative of her first foster family which has pleased her greatly.

S.'s Access with Her Family

[24] Given S.'s age, she has, over the last four years had some say over the visits she has had with her mother. Suffice to say that she does not wish to see her stepfather, although initially he was present with the mother during visits. In October of 2008 when S. was placed in the temporary care of the CAS, weekend access was ordered to her mother and natural father. On January 19, 2009 she requested that visits with her mother be stopped and on January 29, 2009 she also requested that all telephone calls with her mother be stopped. By February of 2009, at her request, access was reinstated with her mother; however by May of 2009 she had once again asked that her visits with her mother, father and grandparents be terminated. By May 27, 2009 the mother's access to S. was reduced to once every two weeks, subject to S.'s wishes with no access to her natural father. In fact S.'s father has had no contact with her since August of 2009.

[25] By the spring of 2011, S. was making it clear that she did not like "being watched" during supervised access visits and so in June of 2011 there were several unsupervised access visits with the mother. These came to an end within a month when she perceived that she was being pressured by her mother to return home. For about two weeks at the end of September of 2011 S. again cut off access with her mother saying that her mother was "dead to me". By the end of the trial, an access regime with the mother was operating again with visits of two hours every other week. This regime appeared to be going well, although, contrary to S.'s wishes, visits continued to be supervised.

Parental Capacity Assessment of the Mother

[26] Dr William G. Ross, C.Psych. completed a Parental Capacity Assessment of the mother on April 21 and 30 of 2010. It is quite apparent from that assessment that the mother believed that she and the step-father had been victimized by the Society and that they had not done anything wrong. Rather than recognizing that there were any problems in their home to be addressed, she appeared to project onto S.'s natural father the responsibility for creating the difficulty and to a lesser extent she blamed S. for putting forward the allegations of abuse. Dr. Ross noted her failure to recognize the very significant affective difficulty that her daughter was experiencing and her lack of awareness of the conflict her child had been going through when she came into contact with the stepfather during access visits. He also noted her total lack of understanding as to what may have brought her daughter to have made suicidal threats.

[27] Dr. Ross suggested that the mother tended to rely on repression and denial as a means to cope and that she was very resistant to gaining any degree of insight into the difficulty which she and her children faced. He suggested that as long as she persisted in defending herself and the stepfather and could not recognize that there were problems, she couldn't make meaningful change. He commented on her lack of concern about the stepfather's parenting ability and her lack of examination of the very significant anger that was blatantly apparent on his part and noted that her defensiveness and resistance to counselling suggested that she would not be able to make any changes to address her daughter's predicament.

Parental Capacity Assessment of the Stepfather

[28] Dr. William G. Ross C. Psych. also completed an assessment of the stepfather on April 21, 30 and May 6, 2010. It was clear from that assessment that the stepfather held S. responsible for the predicament the family found themselves in and that he did not accept any degree of responsibility for what had transpired. Dr. Ross found him to be a rigid disciplinarian who relied on defences such as denial and repression. These defences prevented him from gaining insight into the difficulties which he encountered, not the least of which was his longstanding anger.

[29] At trial Dr. Ross reported that the stepfather's anger was blatantly evident and that it could only partially be blamed on the physical pain which he suffered. Dr. Ross also suggested that the stepfather had very little ability to deal with any provocation and did not appear to recognize the role that he had played in the family difficulties.

S.'s Assessments

[30] On July 15, 2008 Dr. Jay J. McGrory, C. Psych. assessed the child, S.. This was completed soon after the application was commenced. At that time, he noted that she presented with fairly significant behavioural and emotional difficulties characterized by feelings of anxiety and depression. She acknowledged her past self-harm incidents and a previous wish to die. From his testing he noted signs indicative of ADHD but recognized that children who were in difficult family situations also often presented with ADHD symptoms.

[31] Dr. McGrory stated that in all likelihood, S. had been presenting with a difficult temperament from a young age. He opined that this child appeared to be more likely to be oppositional and aggressive from a young age and thus likely a more challenging child to parent in the long term. He also noted that the mother and stepfather appeared to be highly frustrated in their parenting role and in trying to meet S.'s complex emotional and behavioural needs and suggested that the mother appeared to be caught in the middle between the stepfather's frustration and resentment towards the child and her own relationship with her daughter. He stated:

"Essentially, what has unfolded and has become quite problematic is a 'vicious cycle' of negative interaction between parents and child. Each side is fuelling the other in an escalating battle. At the core are serious and significant blended family issues."

[32] He suggested that a full psychological assessment of the child be completed.

[33] On December 3, 2008, Dr. William G. Ross completed a Psychological Assessment of S.. He concluded that she suffered from Attention Deficit Hyperactivity Disorder, Primarily Inattentive Type as well as Major Depressive Disorder. Her cognitive profile at that time indicated that this was a child who functioned in the Borderline to Low average range of overall ability.

[34] In his evidence at trial, he stated that S. was a distressed and angry child primarily because she did not feel safe in the home of either parent because of their partners. She was not a little girl who could trust people and she had a very negative self-image stemming from feeling unsafe and not having parental figures that would protect her.

[35] In his report, Dr. Ross spoke of the child having a great deal of conflict with the spouses of each of her natural parents and he reported that there was much in the way of manipulation being expressed by the child (who was age eleven at the time) to create conflict in her natural father's relationship with his spouse in order to increase the likelihood that he would reconcile with her mother.

[36] It is noteworthy that the stepfather independently reported to Dr. Ross when he, himself was assessed that S. had "an agenda" to terminate the relationship between himself and the mother so that her biological parents could reconcile.

[37] In any case, Dr. Ross reported that the child believed that neither of her parents functioned adaptively since they each put the needs of their current partners above those of their children, particularly herself, and in an effort to cope, she resorted to an inappropriate and ineffective manipulative process to pit one parent against the other. He stated that the child recognized that she resorted to such means but, at the same time, she minimized her own influence on the predicament in which she currently found herself.

[38] At the same time he concluded that it was also apparent that she had been exposed to both physical and emotional abuse in her background, particularly during the time that she was in the care of her mother and stepfather.

[39] On May 1, 2009, Child Psychiatrist, Susan Dundas, M.D., F.R.C.P. (C) met with S. and completed a report in that regard. She acknowledged that S. continued to have significant ADHD-type symptoms. She stated that at this time this child had a very emotionally unstable presentation and that she really wanted to visit with her mother, but each time she would do so she would feel tremendous anger and rage towards her stepfather, which would lead to her feeling suicidal. She noted the child's extreme anger and upset at her stepfather. As a result, Dr. Dundas recommended at that time that S.'s access visits with her mother be supervised and that visits with her stepfather should be stopped. At trial, Dr. Dundas continued to recommend that S. have no contact with her stepfather.

[40] Dr. Dundas also saw S. on July 7, 2010, not long after her placement with her grandfather and step-grandmother had broken down. At that time, it was recommended that she go back on the medication that her grandparents had terminated and by May 19, 2011 when she was seen again by Dr. Dundas, it was noted that since being placed back on her medication for ADHD and also for depression and anxiety, there had been a significant improvement in her social interactions. She appeared to be happy living in her foster home and also felt positive about trying to improve her relationship with her mother while she remained in care.

[41] Dr. Louise Sas Ph.D., D. Psych. also assessed S. regarding the issue of the "necessity" of relying on her hearsay statements as opposed to her giving viva voce evidence at trial. In her report dated October 18, 2011 Dr. Sas concluded that S. was too emotionally fragile to withstand the pressure of testifying and undergoing cross-examination. She also concluded that this child was at risk of developing a major clinical depression and stated that S. presented as a young girl whose sense of self had been terribly wounded. She reported that S. had intrusive thoughts and flashbacks of past verbal abuse by her step-father and of his abusive and threatening behaviour towards her and her brother. S. also spoke to Dr. Sas of her mother's abusiveness and threats that she would be punished if she talked to the Society about what was going on. S. was distrustful of her mother and reported feeling betrayed and abandoned by her and regarded her as aligned with and controlled by her stepfather. This assessor reported that the problem with the mother-daughter relationship was that the mother remained committed to her relationship with the step-father who the child believed had abused her.

Therapy for S.

[42] Between August 1, 2007 and October 2010, S. was involved with a mental health counsellor. She spoke to her counsellor of being mistreated mostly by her stepfather. She claimed that she had been called names, been hit behind her head, had her mouth washed out with soap, and been confined to her room for long periods of time. She felt very unsafe and unsettled and was constantly in the midst of hyper-arousal conditions. As such she had a hard time monitoring and controlling her emotions. She had a sense of not being loved enough by her mother. She questioned why her mother was not protective of her and would not step in to stop her abuse. She was frightened of her stepfather and didn't know what to expect from him. She had a very negative self image and struggled with her guilt regarding her family.

[43] The counsellor suggested that kids who don't feel they can rely on adults to protect them then have to rely on manipulative behaviour for survival as a coping mechanism. The counsellor noted that when she stopped her access visits with her mother she relaxed and claimed she felt more like "a normal kid". Over time, the more stable she was the better she was able to function at school, in her foster home and with her friends. Also there was a decrease in her disruptive and manipulative behaviour. As she relaxed, her hyper-arousal declined and at one point she described herself as being wrapped in bubble wrap while living with her foster parents who clearly were supportive of her. As time and counselling went on she made progress. She did better at school and at following the rules at home. She also began to look forward to visits with her mother once her stepfather was no longer present.

S. Currently

[44] Towards the close of trial, S.'s foster mother provided evidence to suggest that S. was happily settled in the foster home. However, it was clear that S. was indeed a challenging child to parent. Her foster mother stated that S.'s mood swings were present and ongoing and that while teenage drama is usual, she would take it to the next level. She could be rude, bossy, defiant, and manipulative and would try extremely hard to push your "buttons". The foster mother spoke of S.'s intense mood fluctuations and in particular the dark moods that followed an incident where she refused to take her medication. At school she is designated as an exceptional student with behaviour problems and a learning disability.

[45] She described how upsetting it was for S. when her mother put pressure on her to return home and her resulting need to return to counselling when this happened. She also talked about how conflicted S. was over her own decision to consent to an order for Crown wardship. Ultimately her decision to do so resulted from the fact that her mother would not end her relationship with her stepfather.

[46] It was evident that this very experienced and skilled foster mother cared a great deal for S.. She has gone out of her way to advocate for her with service providers and to help smooth her rough edges so she can be more successful socially. In spite of S.'s challenging behaviours, she described her as being caring, loveable and having made a lot of progress since she was first placed in their home. Yet she claimed that it took all of her skills to manage S.'s behaviours. Most importantly however, this foster family is committed to providing a long-term placement for S.

Mother's New Living Arrangements

[47] In October of 2010, the mother obtained her own accommodation independent of the stepfather but still located only about four blocks from him. At trial she claimed that she did so because the Society had told her that there was no chance that she would get unsupervised access with S. if she was still living with the stepfather. Society workers had expressed concern that she did not have an abundance of food at her new home however, she explained that she continues in a relationship with the stepfather and that she and J. eat dinner at his home most nights and they also spend some over nights, holidays and weekends there as well. She was uncertain as to the future of their relationship, described herself as a caregiver for the stepfather and claimed that he was currently getting mental health counselling. But she maintained that she had no plans to resume living with him, even if she were unsuccessful in obtaining unsupervised access to S.. She also stated that even though S. might be made a Crown ward, in the future she would welcome her back to live with her with open arms.

Mother's Position at Trial

[48] At trial, the mother accepted little responsibility for any of the protection concerns but did suggest that if she bore responsibility for anything it was for not obtaining counselling for S. regarding her adjustment to the family's move in the fall of 2007 to our jurisdiction. She also blamed herself for not getting S.'s father "charged with abuse" so that she could have obtained a supervision order for his access with S.. Other than that, she deflected any blame as set out below.

[49] Regarding the allegations of abuse, she denied that either child was physically or emotionally abused. She acknowledged that they had spanked the children with an open hand. While she claimed at trial that they had not done so for several months prior to the time of intervention, this conflicted with the evidence of a worker who reported that the mother stated at that time that they had spanked J. three days previously. While she stated that they had never struck the children with a belt, she acknowledged that she had threatened to use one. She denied that the stepfather had beaten S. or that she herself had stood there and watched and done nothing about it. She claimed that S. was lying or exaggerating about the allegations of abuse and that if there were protection concerns regarding this child, it had to do with her mental health issues rather than any abuse on their part.

[50] Regarding S.'s threats of suicide, she appeared to pay no attention to her daughter's underlying distress and dismissed these threats by claiming that it would not have been possible for S. to hang herself in the manner as threatened. Further, she claimed that S. had told her that the threat was not serious but had just been made because her father didn't come for an access visit. She also stated that S. had told her that she was just scratching her wrists and that someone mistook it to be suicidal ideation. She suggested that S. had been a difficult child since she was two years old and had been making up stories for a long time. However S.'s suicide threats and her allegation of being hit with a belt were something new and were just made for attention and as an expression of frustration over not seeing her father.

[51] Regarding S.'s diagnosis of depression, which was referred to by Doctors Sas, McGrory and Ross, the mother stated that, in general she didn't agree with any of the assessments and that S. was just depressed because she had been taken into care. She also blamed S.'s father for her depression.

[52] Regarding the conflict in the home, she suggested that many of the allegations were based on S.'s lies and claimed that S. had told her that if they had just driven her to have visits with her father, she wouldn't have made these allegations. She also suggested that S.'s issues were caused by her personality and to some extent it was also the fault of her biological father.

[53] Regarding the name calling, the mother also denied absolutely that the stepfather ever swore at or called the children names, although she acknowledged that they would have heard such language being directed at other targets.

[54] Regarding the allegations of the stepfather having anger problems, she also denied that this was the case. However, she claimed that a degenerative spine condition caused him a great deal of pain and impacted negatively on his ability to control his anger. The mother testified that his biggest "trigger" was the CAS and acknowledged that he exhibited a great deal of anger to Dr. Ross and Society workers. She did agree however that he would yell when he was angry, but he never directly at the children. It is noteworthy the stepfather told a worker that if S. yelled at him, he would yell at her. On cross-examination, the mother did acknowledge that if a child were around that kind of anger it could be intimidating. But she excused a number of threats that he made to Society workers by claiming that "just because you say things doesn't mean you will do it."

[55] Regarding J.'s hunger issues, she testified that "he thought" he was hungry at night and was getting into the cupboards for food. During cross-examination, she acknowledged that the refrigerator would be locked for the night to keep J. out. Further, while they would lock him in his room at night, they would unlock J.'s bedroom door after he would fall asleep so that he only had the illusion that he was locked in his room. When it was suggested to her that an eight-year-old might be frightened to be locked in his room all night she contradicted herself by saying that he knew that the door wasn't locked through the whole night.

[56] Regarding J. defecating and urinating in his room she acknowledged that this had occurred, but claimed that he did so while he had been grounded and that he could have knocked on the door to be allowed to go to the bathroom. She also suggested that he did this because he was angry.

[57] Regarding J. chewing on the window ledge she acknowledged that he had done so, but stated that she had taken him to the paediatrician regarding this. Just what resulted from this consultation was not disclosed.

[58] Regarding the demeaning comments made to J., about wearing a diaper and being made to sleep in the laundry room like a dog, she claimed that this was only a figure of speech and was said in jest. Obviously the school teacher who heard these comments took them seriously enough to report them to the Society.

[59] Regarding the refusal of counselling services for the children, the mother stated that they didn't take the Society up on their offers of help because the Society should "go find families that seriously needed their help". While she wanted to arrange any counselling services that the children might need on her own through her family doctor, in fact there was no indication that she had taken any concrete steps to do so for S.

[60] Regarding her poor relationship with the Society, she suggested S. told falsehoods and that the Society "ran with her allegations like a dog with a bone". The mother stated that she didn't trust the Society because they intervened and tried to fix the alleged problems without proof that the allegations were true.

Reliability of the Children's Out of Court Statements

[61] While there was agreement by all parties that the "necessity" test had been met in terms of introducing the out of court statements of the children, the "reliability" of these statements was not conceded at the beginning of trial. S. and to some extent J. alleged that they were both physically struck with a belt and physically abused. S. claimed that when she was physically abused by her stepfather her mother did nothing to stop the abuse. However there is no corroboration of these allegations. In fact very little attention was paid to question of the reliability of these claims during the trial. Clearly there was no evidence of either of them having suffered physical injury or harm. While the level of anger and displeasure expressed by the stepfather towards S. might be consistent with her allegations, there is not enough evidence to conclude that the allegations of physical harm are reliable enough to be relied on.

[62] However, not only did S. (and to some extent J.) allege verbal and emotional abuse by the stepfather, but there is satisfactory corroborative evidence to conclude that these claims were reliable. It was clear that both the mother and the stepfather relied on threats of violence as a form of discipline. They admitted to locking J. in his room at night and making humiliating threats to him after he soiled his room. Further they were openly disdainful of S. in particular. When she reported her distress to others, they openly said she was lying, told her not to talk to the Society and blamed her when the society's intruded on their lives. Given this evidence, it is believable that they would have made threats of retaliation when she did tell the Society of her concerns. Further, given the explosive anger and excessive verbal tirades that the stepfather visited upon workers while the mother sat by without complaint, it is entirely believable that the same thing would happen with S. when she would "push his buttons". Even when S.'s level of fear of the stepfather and emotional distress reached the point that she began expressing suicidal ideation, rather than getting her help or attempting to address the underlying problems the mother and stepfather accused her of merely doing this for attention. Given the admissions of the mother and stepfather and the corroborative observations of Society workers, these accusatory out of court statements of the children are found to be reliable.

Finding of Protection Regarding S.

[63] There will be a finding that S. is in need of protection pursuant to s. 37 (2), (b)(i), (f) (f.1), of the CFSA.

The reasons for this finding are:

a. S. has exhibited oppositional and aggressive behaviours from a young age which have made her a more challenging child to parent. Soon after she was brought into care she was diagnosed as functioning at the Borderline to Low average range of overall ability and with suffering from ADHD and Major Depressive Disorder.

b. The mother and the stepfather were her primary caregivers until her apprehension and were highly frustrated in their parenting of her. They lacked the skills to parent this complicated child.

c. S. has attempted to be manipulative in order to handle her own problems. She has played a role in creating some of the conflict between herself and the spouses of each of her parents, possibly in an ill-conceived attempt to promote reconciliation between her parents. Because of the conflict she experienced in each parent's home, she felt unsafe and was distressed and angry with each of her parents who she believed had failed to protect her and to have placed their own interests ahead of hers.

d. To make matters worse, her stepfather was an angry, verbally abusive and rigid disciplinarian who has very little ability to deal with any provocation. His anger and verbal abuse appeared to be triggered to a great extent by S. herself. However he showed no recognition of the role that he played in the family difficulties and blamed S. for the Society's involvement with the family.

e. S. was verbally abused by the stepfather. Further the mother and stepfather subjected S. to threats of physical harm as a disciplinary tactic and to being told that she was lying and should not speak to the Society when she tried to complain about her abuse.

f. As suggested by Dr. McGrory, essentially, what unfolded was a vicious cycle of negative interaction between the parents and S. with each side fuelling the other in an escalating battle.

g. S. is not to be "blamed" for her role in these interactions. Rather, it must be understood that she was a complicated child with behavioural problems who was locked in conflict with a stepfather who had his own behavioural issues. The mother was caught in the middle and had to choose between protecting her daughter and protecting the stepfather. At a time when she needed to take steps to protect her daughter from this toxic situation, she failed to do so and tried instead to protect the stepfather. To this day she does not appear to understand that as long as she remains in a relationship with S.'s tormentor she will have trouble mending her relationship with her daughter.

h. The mother also failed to recognize that there were any problems in her home and to the extent that there were difficulties, she attributed responsibility to S.'s natural father and to a lesser extent to S. for alleging that she had been abused. Her response to these problems was to rely on repression and denial as a means to cope.

i. Further, she was resistant to gaining any degree of insight into the difficulties faced by S.. In particular she failed to recognize the anguish and emotional harm S. was experiencing as a result of the toxic dynamics with her stepfather and rather than obtaining counselling for her when she began to express suicidal ideation, she dismissed S.'s claims as lies and a bluff. Her entrenched defensiveness suggests that she would not be able to make any significant changes to address her daughter's problems.

Impact of Protection Concerns on J.

[64] It is noteworthy that in spite of evidence of the inappropriate discipline of J. by the mother and stepfather and his exposure to conflict in his home, he did not appear to suffer the same negative impact as S.. Even early on when he told workers of being grounded for a month he did not appear to be overly concerned. He is a very different child from S.. While the Society has been concerned about risks of emotional and physical abuse to him arising out of the parenting practices of the mother and stepfather, after four years of contact with the family, there is little, if any evidence to suggest that those concerns can be sustained.

[65] The workers who interviewed him soon after the initial allegations, described him as "happy", "healthy", "very relaxed", "fine" and "not upset like S.". J.'s teacher in 2008 described him as doing the best he could at his work, having regular attendance, respectful and very rarely angry or upset.

[66] Even in the summer of 2008, he was reporting to workers that he got along fine with the stepfather and indeed he was observed to interact with his mother and stepfather comfortably. The stepfather claimed that J. did not "press his buttons" the way that S. did. It was apparent that soon after the Society's intervention he was no longer locked in his room as a form of discipline. By November of 2008, the mother told the Society that a behaviour incentive program was working well for him. Further, the stepfather spoke positively about J. and reported that he had no confrontations with him.

[67] By October of 2008, counselling was commenced for J.. The counsellor found the mother to be pleasant and receptive. While J. engaged with the counsellor and appeared to enjoy the encounter, these voluntary services were concluded prematurely in January of 2009 at the request of the mother. At this point he was reporting to the worker that he liked school and that he had enough lunch.

[68] While there still appeared to be some ongoing conflict between the mother and stepfather at home, he denied that he was fearful of them and claimed that he liked living at home. Further, his school principal reported that there were no issues regarding J.. Positive reports continued regarding J. throughout 2010. He appeared happy, clean and respectful, claimed that nothing was worrying him but said that he missed his sister.

[69] At times, especially in 2009 and early 2010 the Society struggled to gain access to J. within his home as per the terms of the temporary supervision order. When they would come to meet with him, the parents would deny them entry. This occurred on at least five occasions. As time went on into 2010, the Society visits appeared to go more smoothly with the parents. On February 12, 2010, the family service worker met with J. at school. He denied being afraid of the stepfather and reported that he had been left alone with him five or six times in his life. He claimed that this made him happy because then he and the stepfather could "talk about stuff and laugh".

[70] On March 24, 2010, J. made an odd disclosure that his stepfather would get grumpy and throw furniture out the window. At trial, the mother claimed that he threw furniture around at the time of the apprehension but that it had happened while the children were at school. While this might be a concerning report, J. was reported as being somewhat amused by the situation and once again he reported not being afraid of the stepfather even when he was mad. On March 24, 2010 he reported never being hungry.

[71] On April 13, May 5, 11, 25, 31, June 3, 2010, he appeared happy and reported no concerns. The only issue noted by the Society during this time was that on occasion there was dirty laundry piled up in his room. Apparently, about two years ago, in June of 2010, the school reported to the Society that J. did not bring enough food for lunch, however, J. denied being hungry and claimed that he ate all his lunch at the first break which would leave him nothing for the second break. The mother appeared receptive to discussing how she would address this issue. Even though there has been the suggestion that J. has been prevented from having enough food back in 2008 there has been no indication that he has suffered ill health and there is no significant concern that this problem has persisted.

[72] In the summer of 2010, J. started to refuse private visits with the worker. At trial, the mother stated that J. wouldn't speak to Society workers because he wants them out of his life. She claimed that she does not tell him not to talk to the CAS, although he would be aware of her highly negative views of the Society. In spite of this there appeared not to be any significant concerns regarding him. Indeed, regular visits were made to the home where he was seen in the presence of his mother and frequently the mother was observed to be very appropriate in her care of this child. While the mother refused to sign consents to allow his school and doctor communicate with the Society there was no indication that he was not doing well at school or that he had health issues. It was April of 2011 before the worker could again speak privately with him, but even then all indications were that he was fine.

[73] In October of 2010, the mother and J. obtained her own apartment, independent of the stepfather, but they still went to visit him every day after school. This appeared to be important to J. since he considered him to be his "dad". They would usually stay until 8 or 9 at night. J. spent the Christmas break of 2010 with his stepfather and later in 2011 he reported that he slept at his mother's home during the week and with his "father" on the weekends. That fall his report card indicated that he had only missed one day of school and that he was doing well.

[74] A term of the existing interim supervision order which placed J. with his mother required that the stepfather not be left in a disciplinary role. There was no evidence that he ever did so, even though the child was left alone with him at times.

[75] At trial the Society worker suggested that her continuing protection concerns regarding J. related to the risk posed by the stepfather and lack of food. However she conceded that in the previous year, there was no suggestion of any inappropriate interaction between J. and the stepfather nor was there any evidence of nutritional inadequacy including inadequate lunches at school.

[76] During the trial, the mother acknowledged that she had purchased J. a BB gun last year for his 12th birthday. However she stated that when he threatened another child with a toy gun, she took the BB gun away. She described how J. threatened another child who had threatened to blow up and burn the stepfather's house. At first J. pointed a toy foam-shooting gun at the other child, and then suggested that he wanted to shoot the child with a paint ball gun. As a result he was suspended from school for one day and a police officer spoke to J. about the incident. In addition to taking away his BB gun the mother contacted the school to arrange counselling for J.. This response by the mother appears to have been entirely appropriate.

[77] She has not signed a release so that the Society could obtain particulars about the counselling because she wanted this to remain private for J.

[78] Even though it must be clear to J. that the mother is disdainful of the Society and would not likely encourage him to complain to them about mistreatment, there is no indication that he is not thriving in terms of his health, schooling or in general at home. His brush with the law when he made a threat appears to be well within the realm of typical twelve-year-old behaviour, and the response by the school, the mother and police seemed appropriate to fully address this conduct.

[79] There is no evidence to suggest that the stepfather has dealt with his aggression, however it was always S. with whom he had a conflicted relationship and who appeared to trigger his anger.

Protection Concerns Regarding J.

[80] There will be a finding that the child J. was in need of protection in late 2007 and early 2008 pursuant to s. 37 (2) (b)(i) & (g) of the CFSA.

[81] The reasons for these findings were as follows:

a. The mother and stepfather resorted to inappropriate discipline tactics regarding J. in 2007/2008 including threats of violence, excessively lengthy groundings, and confinement to his bedroom where he soiled his bedroom when he could not gain access to the bathroom.

b. When he asked for additional food, a lock was placed on the refrigerator and he was locked in his room at night. Further during this time frame he chewed on the window ledge of his room.

c. In 2007 or early 2008, the stepfather made inappropriate and demeaning threats to J. after he soiled his bedroom that he would be made to sleep in a laundry room like a dog and to send him to school in a diaper.

d. Since 2008, although J. may well have heard the verbal tirades of his stepfather, there is no evidence that he was the object of these outbursts nor that he has been distressed by them. Also, there is no indication that he has been the subject of any further inappropriate disciplinary actions on the part of the mother or the stepfather.

Disposition With Regards to S.

[82] Based on the consent of all parties, she will be made a Ward of the Crown with access to the mother and to her brother. Only the details regarding the access order must be addressed.

[83] At trial the mother claimed that ultimately she would like to have access with S. every other weekend unsupervised, but for now, she is in agreement with the current regime of a two-hour visit every other weekend. This amount of contact between S. and her mother appears to be working well. However both S. and her mother would like the visits to be unsupervised. It is understandable that S. would feel this way, given her age and her express distaste for being watched all the time.

[84] S.'s foster mother did express concern that if access were left entirely up to S., she would probably want overnight, unsupervised access. The problem with this is that the last time access was unsupervised the mother began talking to her about coming home. Even at trial, the mother spoke of essentially reintegrating S. back into her home through expanded access. The last time the mother engaged in this kind of discussion with S. it sent her into a downward emotional spiral and a need to return to counselling. The mother is still clearly aligned with the stepfather, which opens the door to much distress for S.. The longer the visit, the more time there could be during which challenges could be presented and power struggles engaged. Further, it could be a burden if S. were left to decide whether or not her access should be supervised and it might also allow her to use her discretion to hurt her mother. Clearly both S. and J. wish to continue to have contact with each other.

[85] In spite of all of this, S. will be 15 years old in a few weeks and one must recognize that the older she gets, the more control she will be able to exert over this issue. Given these factors, access between S. and her mother and brother will be as follows: The mother and J. will have access to S. as arranged by the Society and approved by S., and which may, until S. is sixteen years old, at the discretion of the Society, be supervised.

Disposition Regarding J.

[86] While there may have been protection concerns relating to J. in 2007 and 2008, there is not enough evidence to support a continuing supervision order regarding him. My conclusion in this regard is contrary to the submission of the Society. While the impact of the stepfather's parenting practices and the family dynamics that followed were devastating for S., it would appear that J. was left unscathed. Even though counsel for J. supported the Society in asking that this child be placed with his mother under a supervision order this appears to run contrary to the evidence of J.'s wishes. All indications are that he is tired of having the Society in his life.

[87] Except for the initial contacts with J. by the Society, he has never expressed concerns regarding his home life. As nasty as the stepfather has been with anyone connected with S. or the Society, J. appears to value their time together. Indeed, he refers to him as his "father".

[88] All indications are that he is well adjusted, doing well with his school work and generally prospering. There are no recent reports that he is not getting enough to eat or taking enough food to school for lunch. He is healthy and happy and wants the Society out of his life.

[89] Apart from the toy gun incident, everything has gone well at school. The mother's response to that episode was appropriate. Indeed the Society could not point to any recent protection concerns, except that J. after many meetings with workers had decided that he no longer wished to meet privately with them.

[90] While there may have been good reason in 2008 to be concerned about some ongoing risks of harm to J. as explained above, after four years of supervision, nothing has surfaced. The fact that the mother has put some distance between herself and the stepfather by obtaining her own accommodations, gives some added comfort, although it is clear that J. maintains a strong daily relationship with his stepfather by choice. It is even known that he spends time alone with him without any reported ill effects. Given this situation, I have no hesitation in finding that there should be an order regarding J. under s. 58(9) of the CFSA that he remains with his mother without there being any ongoing order of protection.

Final Order

[91] As such, Order to go that:

a. S. will be made a ward of the Crown and placed in the care of the Society with access to her mother and J. as arranged by the Society and approved by S., and which may, until S. is sixteen years old, at the discretion of the Society, be supervised.

b. J. will remain in the care of his mother without there being any ongoing order of protection.

Released: August 2, 2012

Signed: Justice Lucy Glenn