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.

(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.

(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 Information

Court File No.: Toronto C49699/09

Date: 2012-11-26

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto, Applicant

— AND —

T.B., mother, and S.B., father, Respondents

Before: Justice Geraldine Waldman

Heard on: September 19, 20, 21, 24, 25, 27, October 1, 2, 3, 24, 2012

Reasons for Judgment released on: November 26, 2012

Counsel

Marshall Matias — for the applicant society

T.B. — mother, on her own behalf

Andrea Solomos — for the respondent father

Gilead Kay — for the Office of the Children's Lawyer, legal representative for the child H.B.

Lauren B. Israel — for the Office of the Children's Lawyer, legal representative for the other children

WALDMAN J.:

Introduction

[1] This trial concerns the five children of the B. Family: H.B., born […], 2001; S.B., born […], 2005; C.B., born […], 2007; B.B., born […], 2009; and E.B., born […], 2011. The oldest four children were apprehended from their home and school on February 15, 2011. Mother was pregnant with E.B. at the time of the apprehension of the four older children. E.B. was apprehended from the hospital on or about July 16, 2011. The four older children were previously found to be children in need of protection pursuant to section 37(2)(b) of the Child and Family Services Act (CFSA) on August 23, 2010, and were placed in the care and custody of their parents, subject to the supervision of the CCAS, with terms of supervision that included father obtaining treatment for alcoholism and the parents cooperating with the Society and allowing scheduled and unscheduled visits.

[2] According to the Society, the parents did not abide by the terms of supervision. The Society obtained an order placing the children in its interim care and custody on February 15, 2011. The four older children were taken into care as a consequence of that order. This is an amended Status Review Application brought by the Society in which it is seeking orders of Crown wardship for these children with no order as to access by the parents. This is an amended protection application for the child E.B., in which the Society is seeking a finding that E.B. is a child in need of protection pursuant to section 37(2)(b) of the CFSA and a finding of Crown wardship with no order for access to the parents. The parties all agreed that both cases will be heard together and that, in E.B.'s case, the hearing will proceed as one hearing, with the evidence that relates only to the finding used to support the finding and the evidence that relates only to the disposition to be used to support the disposition.

Mother's Lack of Counsel

[3] Mother had two lawyers through this litigation. Her second lawyer was her counsel through the Trial Management conference and through the proximate preparation for trial. Mother brought a motion a few days before trial in which she sought an order adjourning the trial because she wanted to retain new counsel. Justice Curtis refused to grant the adjournment. Mother's counsel appeared at the first day of trial and advised the court that mother did not wish him to act for her. Mother verified that she did not wish that lawyer to act as her counsel. I advised her that the case would proceed with or without counsel given the ages of the children and the length of time that they had been in care. I directed counsel to remain for the balance of the day to allow mother to understand fully what the trial process involved. She instructed her counsel not to participate in the trial. At the end of the day, mother confirmed that she did not want counsel and that she wanted to represent herself. The parents are planning together and it was clear each day that mother and father had worked together to prepare mother's questions and evidence. Father had counsel throughout, who, while only father's counsel, effectively put forward the parents' joint case.

Background

[4] The Society first became involved with this family in July 2006. Constable Sean McClorey of the Toronto Police Services testified that he answered a call on June 5, 2006, about a person who had located a child wandering the street alone. This person had found H.B. wandering on the street at about 4:30 p.m. H.B. was able to give her name and the school that she attended and the officer was able to find out her address through the school. The officer took H.B. home and found mother in one of the upstairs bedrooms of the apartment with the baby, S.B.. It was his observation that mother was asleep, although mother denies this. Mother in her evidence acknowledged this incident and explained that it was her routine to go upstairs to care for S.B., leaving H.B. downstairs alone, but that H.B. had never left the apartment before. She testified that she was upstairs nursing S.B. and that this generally took 40 to 45 minutes. H.B. would be alone downstairs when she did this and would watch television or get food and go to her room. Constable McClorey observed that the apartment was very untidy, describing it as looking "almost ransacked" with things scattered about.

[5] Constable McClorey testified that he responded to a similar call the next day about a child found alone in the playground that was located behind mother's apartment. He went to the playground and found H.B. with other officers who had responded to the same call. The constable remained with H.B. until she was taken to 54 Division. H.B. remained in foster care overnight and returned home on June 7, 2006.

[6] The parents' response to these incidents was to put a more secure lock on the apartment door to prevent H.B. from opening it and leaving the apartment.

[7] Teresa Cash, a family service worker for the CCAS, (evidence in chief in affidavit dated July 24, 2012 and filed as Exhibit 5) became involved with the family in June 2006, as a result of another incident involving H.B. being assaulted by another child at school and as follow-up relating to the incidents earlier in June referred to above, involving H.B. being found alone on the street. The worker met with mother on June 26, 2006. She observed that the apartment was appropriately clean and tidy. Ms. Cash testified that the Society was concerned not only that the child was found wandering the streets but also that she was not being properly supervised in the home, with H.B. left unsupervised while mother slept or cared for S.B.. According to the worker, the parents were uncooperative and did not want to be involved with the Society. The parents, according to the worker, minimized the problem and said repeatedly that they did not understand why the Society needed to be involved with their family, and that they had solved the problem by installing a safety lock on the front door. The Society asked the parents to sign a voluntary service agreement and they refused. The Society therefore commenced an application at the court at 311 Jarvis Street in which they sought an order of supervision.

[8] The second Society worker, Juliana Ogbonna, (evidence in chief in affidavit sworn August 20, 2012 and filed as Exhibit 7) who assumed carriage of the file in February 2007, testified that, while there were some meetings between the worker and the parents, the parents were uncooperative, made arranging meetings difficult, did not follow through with referrals and continued to be very negative about the Society's involvement. She testified that, when she met with H.B., the child told the worker that she was having nightmares and that she had been having nightmares for some time. The worker recommended that H.B. go for counselling and directed the parents to Aisling. Ms. Ogbonna testified that, after she told the parents about H.B.'s disclosure of her nightmares, H.B. refused to speak with the worker and the worker believed that the parents had told H.B. not to talk with her. According to the evidence of the worker, the concerns at that point were:

• the incidents when H.B. was found wandering and the parents' lack of understanding about appropriate supervision of a small child;
• poor school performance, frequent lateness to school and lack of completion of assignments;
• parents' lack of cooperation with the Society; and
• failure to follow through with counselling for H.B.

[9] The worker continued to try to work with the family. It is her evidence that, notwithstanding her efforts, she was only able to arrange two appointments with the family in ten months. In October 2007, the worker was able to speak to the family doctor, the school and H.B.. She determined that the child was doing better at school at that point. The doctor had no significant concerns. The parents had not followed through with arranging counselling for H.B. and had not shown any interest in addressing any of the concerns of the Society. She also noted that, given the parents' attitude and lack of cooperation, the Society was unable to offer any services to the family. The decision was made, given all of the above, to withdraw the application.

[10] The Society became involved with the family again in September 2009. According to the evidence of the Society worker Cindy Ross, (evidence in chief in her affidavit sworn August 27, 2012 and filed as Exhibit 6) she was contacted by the police on September 11, 2009, with respect to a disturbance call involving father and H.B.. Andrew Roe, a security guard employed at the Hudson Bay Centre at 2 Bloor Street East, testified that he was called to the food court on September 10, 2009, at 8:50 p.m., to address an incident involving an intoxicated man and an angry child. Mr. Roe testified that he received information that the child had been left unattended at a table in the food court for about one hour. He found father, who was intoxicated, trying to get H.B. to leave with him and H.B. refusing to go because her father was intoxicated. The incident continued with father getting loud and aggressive and trying to punch Mr. Roe. Father was arrested and, in the course of being removed, fell and injured himself, requiring an ambulance to take him to the hospital for treatment. Father admits this incident but, according to his evidence, while he did leave H.B. unattended in the food court, it was for a shorter period of time while he drank the alcohol which he had purchased in the mall with H.B. in the washroom in the food court and had his eye on H.B. while doing so.

[11] The Society spoke with mother and H.B. and again became involved with the family as a result of this incident and the information the workers received from H.B. and her parents. Ms. Ross testified that H.B. told the worker that she had been left in charge of her younger siblings when her mother went out shopping. Both parents admitted that father had an issue with alcohol. Father acknowledged that he was an "acute alcoholic" and mother told the worker that father had a drinking problem, that his drinking was unpredictable and that he went out to drink because mother would not let him drink at home. They both agreed that his drinking presented a difficulty to the family financially and caused additional stress because father was often not present to assist in the care of the children. Ms. Ross also noted that S.B. was not registered in school although she was four years old and that S.B. was still in pull-ups. There were no issues reported with C.B. and B.B.. The Society determined that further involvement with the family was required.

[12] The file was transferred to Melissa De Castro in October 2009 (evidence in chief in affidavit sworn September 7, 2012 and filed as Exhibit 9). Despite various efforts, the first family member Ms. De Castro met, with the exception of a brief conversation with father, was H.B., whom she met at school on December 8, 2009. According to Ms. De Castro's evidence, she attended the home for a scheduled meeting on October 27, 2009, and for a meeting scheduled at the request of mother on November 12, 2009, and that on both dates no one answered the door. Ms. De Castro also attended at the home on October 30, 2009, and December 29, 2009, for unscheduled meetings and received no answer at the door.

[13] Ms. De Castro sent a letter to the family on November 18, 2009, requesting that the parents contact her and did not receive a reply. The Society commenced a protection application, in which it sought an order of supervision with the first return date being January 12, 2010. Ms. De Castro left a message on December 23, 2009, and again on January 6, 2010, asking the parents to contact her and informing the parents of the court date. Notwithstanding the worker's efforts, the parents did not contact her, she was unable to meet with the parents and was unable to serve the parents with the court documents. She therefore sent the Court documents to the parents by courier. The documents were returned because the courier was unable to deliver them. The parents therefore were not served with the documents prior to the January 12, 2010, court date. The judge on that date ordered the parents to attend on the next date. The worker left a copy of this order at the parents' home and mailed a copy to their address.

[14] It is Ms. De Castro evidence that she attended at the home on five occasions between December 2009 and March 2010. No one answered the door and no one contacted her, even though she left her card each time. She also telephoned the home about ten times, leaving messages requesting a return telephone call but was not contacted. No one attended court on the next court date being March 30, 2010. The worker left a message with the family on April 9, 2010, advising them of the next court date of April 15, 2010.

[15] Father did attend court on April 15, 2010. Father denied receiving any of Ms. De Castro's calls, cards or messages and told Ms. De Castro that the family had not been at home any of the times that she had come to the house, even when the appointments had been arranged in advance. Father agreed to an interim supervision order. The terms of supervision required, among other conditions, that the parents meet with the worker every two weeks. Ms. De Castro was able to meet with the family on April 20, 2010. The apartment was appropriate and there were no concerns with the children. She was able to meet with them again for the period May to September. The parents did not file an Answer or Plan of Care and Justice Curtis made a finding that the children were in need of protection pursuant to section 37(2)(b) of the CFSA, based on Ms. De Castro's affidavit evidence on August 23, 2010.

[16] The family began to refuse to cooperate after the September visit. Ms. De Castro found no one at home when she attended for the scheduled visit on October 25, 2010. On November 3, 2010, father left the worker a message advising that he would be filing a complaint against her and seeking a new worker. Ms. De Castro left a message for the parents to call and arrange an appointment on December 2, 2010, and sent them a letter dated December 8, 2010, again requesting a meeting and cautioning that, if the parents did not cooperate, the Society would bring a motion to have the children brought into care. The parents responded by sending a fax in which they repeated their complaint and requested that the Society immediately close their file. It was their position that the case had gone on for too long, that they had complied with the Society's requests and they considered the ongoing involvement of the Society harassing and unnecessary.

[17] The worker, notwithstanding her efforts and the terms of supervision, was not able to meet with the family after September 2010. She was also unable to speak with H.B., who refused to talk with the worker at school. It is Ms. De Castro's evidence that she believed that H.B.'s parents had told her not to speak to the worker.

[18] As a consequence of this lack of cooperation, the Society was unable to determine whether the risks which had been identified were being addressed. The Society brought a motion seeking an order that the children be placed in its care. On February 15, 2011, Justice Curtis made a temporary order placing the children in the care and custody of the CCAS.

[19] At the time of the apprehension the concerns of the Society were:

• father's alcoholism: while father had said that he would receive treatment for his alcoholism, he had not followed through with the referrals and the Society was unable to verify steps that he had taken;
• concerns about the supervision of the children, given the history and the events at the Hudson's Bay Centre;
• concerns about H.B.'s school attendance;
• concerns that, while H.B. required counselling, no services had been provided for H.B.; and
• the parents' lack of cooperation and the fact that the parents had done nothing to address the Society's concerns.

The Apprehension

[20] H.B. was apprehended from school on February 15, 2011, without incident.

[21] The remaining three children were at home. The worker arranged for support from the police. When she and the police arrived at around 1:50 p.m., they found the children – then ages five, three and one year eight months – in the house with no adult present. The emergency task force was contacted to allow the Society to enter the house and take the children. Constable Tompras of the Toronto Police Services testified that he responded with the ETF unit at the B. home on February 15, 2011. It is his evidence that, when he arrived, the children were in the house and the house was locked. The unit entered the house through the main door and found the younger two children on the first floor. The officer found S.B. locked in a separate room on the second floor. The door was secured with an L-shaped bracket with a screw into the door holding the door closed. The officer found S.B. alone in that room with a potty three-quarters full of urine. It was the officer's evidence that the house smelled of urine and feces and that there was garbage all over. A series of pictures taken that day immediately after the children were handed over to the CCAS was identified by the officer and filed as an exhibit 4. The pictures show the Christmas tree and Christmas decorations still up, clothes strewn all over, one of the children's beds with a bare mattress, toys and items all over the floor and under the beds in one of the children's room, and boxes and bags stacked around and on the floor. The officer described the children as appearing dirty.

[22] According to the evidence of Melissa De Castro, the family service worker at the time of the apprehension, B.B. was wearing a soiled diaper and no pants when she was given to the worker by the police officer. Ms. De Castro described B.B. as appearing lethargic. She did not cry, and appeared to be weak and floppy. C.B. was described as having dried mucous around his mouth and nose. All three children smelled of urine and feces.

[23] Ms. J.M., S.B. and H.B.'s foster mother, testified that S.B. smelled so badly of urine when she arrived at the foster home on February 15 that, even though she arrived at dinnertime, S.B. had to be bathed before she could eat dinner. S.B. had very wet pants and she had a red rash in the shape of her underwear on her bottom. Feces appeared to be caked on her bottom. Her hair was knotted and messy.

[24] According to Ms. J.M., H.B.'s hair was knotted, greasy and appeared dirty. She did not look clean but was not as dirty as S.B.. Her clothes were ill-fitting.

[25] The parents do not deny that the children had been left alone in the house on February 15, 2011. Both parents were charged criminally and father entered a plea of guilty to the charge of failing to provide the necessities of life and was sentenced to 30 days in jail to be served intermittently and a period of probation. Mother was found not guilty after a trial. It was her evidence at the criminal trial and again in this trial that she left the children with father when she left for her doctor's appointment and that she was surprised when father arrived at the doctor's office. It is mother's evidence that, when she saw father, she told him to go home immediately and that she was then called in to see the doctor. She testified that, when she came out of the doctor's office, she saw father waiting for her and that they left the doctor's office together.

[26] Father in his evidence explained that Mother was pregnant with E.B. on February 15 and had been very sick with this pregnancy. She had, in fact, "fainted" earlier in the day. Mother had a doctor's appointment that afternoon. She left for the doctor but father was very concerned about her ability to get to the doctor on her own and about her health. He therefore decided to go to the medical appointment and left the children when he left for the appointment. He secured C.B. in his stroller. He left B.B. in her playpen. He was worried about the stairs and he therefore locked S.B. in her room. It was his evidence that he told S.B. that he was leaving and that he left her playing in her room.

[27] The parents do admit that the apartment was messier than usual because mother was ill and unable to care for the children or apartment, leaving father with all of the responsibilities. However, it is their evidence that the apartment was not as messy as shown in the pictures and that much of the mess was the result of the search by the ETF unit when they went through the apartment.

[28] The four children have remained in the care of the Society since the apprehension. H.B. and S.B. have remained in one foster home and C.B. and B.B. have remained together and have been in two foster placements since the apprehension.

[29] E.B. was apprehended at birth from the hospital. The apprehension was based on the circumstances of the apprehension of the other children and the terms of the parents' bail which bail included a term that the parents not be in the company of any children under the age of 16 unless supervised by the Society. E.B. has been in the care of the Society since her apprehension and has been in a separate foster home.

[30] The issues at the time of the apprehension were:

• the events of February 15, 2011, where the younger three children were left unattended in the apartment for at least two hours; and
• the unsanitary and unsafe condition of the apartment and the dirty appearance of the three younger children when they were apprehended.
• the outstanding criminal charges and the bail terms.
• father's alcohol consumption based on the events in the mall and on his and mother's disclosures about his drinking;
• H.B. and S.B.'s chronic lateness at school;
• the parents' lack of co-operation with the Society and failure to abide by the terms of supervision, including many cancelled visits and failing to make themselves available for meetings, and their hostility towards the Society;
• failure to follow up with services and, in particular, addiction counselling for father;

Access Visits

[31] The parents have one access visit a week with all of the children together, fully supervised at the Society's office. They also have two additional visits each week with E.B., also fully supervised at the Society's office. It is the evidence of the worker's and access supervisors that they observed consistent problems with the access visits and the access supervisors have serious concerns about the parents' response to the children during access visits. According to the evidence of the access supervisors, the visits overall were not a positive experience for the children. According to the evidence, there were serious issues about the parents' lack of judgment and lack of insight into the impact of their conduct on the children.

[32] The various access supervisors noted that mother was not emotionally engaged in the visits and that generally the only emotion that she displayed was anger. They observed that both parents were very negative during the visits and consistently put the children in the middle of the dispute with the Society. They observed particular concerns about mother's interaction with S.B.. It is the evidence of the Society witnesses that the parents refused to accept any suggestions from the various supervisors and, as a result, there was no improvement observed during the whole period in which the children were in the care of the Society. Ms. Charlemagne, the current family service worker observed that the parents badgered the children with negativity. As a consequence, the visits have remained fully supervised.

[33] The access supervisors do acknowledge positives about the visits. With the exception of recent visits with E.B., the parents attend regularly but are often late. They come with nutritious and often home-prepared food and appropriate activities for the children. The children greet their parents with hugs and kisses. The children know their parents and their siblings. It was the general observation of the access supervisors that mother focused on the instrumental care issues with the children. It was also the general observation of the access supervisors that father interacts with the children and is described as loving in both his interactions and his words.

[34] I note that the parents have more recently been less consistent with their visits with E.B.. It is Ms. Charlemagne's evidence (evidence in chief in affidavit sworn September 7, 2012 and filed as Exhibit 3) that, since January 2012, mother has been increasingly late for access visits with E.B. or has missed visits. At the time of the trial, the parents had not been at the visits with E.B. alone since August 31, 2012.

[35] Deanne Riber, a social service assistant employed by the Society, observed 55 of the about 144 access visits. Her observations of the visits are set out in her affidavit sworn August 29, 2012, and filed as Exhibit 1. She listed her concerns about the access visits as follows:

• failure to address and predict safety concerns;
• failure to address the emotional needs of the children;
• failure to appropriately interact and discipline the children;
• failure to appropriately understand the cues provided by the children;
• inappropriate expectations of the children's abilities given their ages;
• parents sending mixed messages to the children;
• mother engaging the children in a hostile, aggressive, rejecting and critical disposition;
• lack of child-management skills; and
• parents' lack of acceptance of responsibility.

[36] Ms. Riber, in her evidence, testified that she observed that father would pay individual attention to each child, engage in play with them, talk to each child about how they were doing and was affectionate towards them. She noted, however, that father "consistently made comments to the children that were obvious to anyone would make the children feel guilty." On a visit right after Halloween, she heard father tell the children that he did not have any fun on Halloween because the children were not home. He told the children on other occasions that their being in care was not normal and that he and mother wanted them home. He told the children to pray that they would all come home.

[37] Ms. Riber, in her evidence, observed that mother was uncooperative and argued with every suggestion that Ms. Riber made. She observed that mother was more involved in the children's instrumental care and that she did not interact with the children. She observed that mother appeared to favour H.B. and that mother treated H.B. as a peer. It was Ms Riber's evidence that mother generally had a flat affect. She described mother as often being "not present" in the visit. She observed that mother would not connect emotionally with the children. For example, when one of them smiled at her, she did not smile back. She observed that mother seemed able to focus on only one child at a time and that mother became overwhelmed when the children were seeking her attention. She observed that mother was not affectionate with the children, was rarely observed kissing the children and, when she did engage in physical contact, it was "distant," such as pressing her check against a child's hair for a few seconds. Ms. Riber testified that on many occasions mother verbally and physically denied and ignored S.B.'s attempts at physical affection. It was also her evidence that mother was insensitive to the children's needs. She noted specifically an incident during which mother told S.B. that her glasses were ugly.

[38] It is Ms. Riber's evidence that H.B. is "quite 'parentified' and that her parents rely on her to help them with the other children." It is her evidence that H.B. feels caught in the middle between her parents and the Society and that H.B. finds this stressful. She observed that the parents would talk to H.B. about the Society and that they continued to do so even when asked to stop and even when H.B. became distressed during the visits. They continued to do so after H.B. asked them to stop. It is her evidence that a S.B. "presents as a sweet child who is looking for constant physical affection from her parents." She observed that S.B. tried to get her mother's attention and that her mother ignored her. She observed that, when mother criticized S.B. about her eyeglasses and haircut, father did not protect S.B.

[39] Ms. Riber, in her cross-examination, acknowledged that the access observation notes contained many positives about the parents' access visits with the children. She testified that father was very vocal in telling the children he loved them, that he and the children exchange hugs and kisses and that there is a lot of mutual affection between father and the children. She also testified that father was able to use his time well and spend time with each child. It was her evidence that, while there were positives, there were persistent and consistent concerns which were present through the visits. Ms. Riber acknowledged that there were times when mother, in particular, acted outside of these concerns – for example, by showing affection to the children and interacting positively with them – but that these were events and were not consistent.

[40] It is Ms. Riber's evidence that the parents were significantly late (10 to 90 minutes) for 54 of 134 visits.

[41] Bridget Charlemagne, the family service worker since May 2011, in her evidence had similar observations. She testified that the family had strengths. The children knew their parents and siblings. She observed that father interacts with the children and acts in a loving way towards them. She observed that mother brought nutritious homemade food. She observed that mother was able to meet the children's instrumental needs. It was also her evidence that mother's affect during access visits was "flat," that she did not appear engaged or animated during access visits and that she did not make eye contact. It was her observation that the emotion mother did show during access visits was anger and that she made no effort to hide her anger from the children. Ms. Charlemagne also observed that S.B. often sought mother's attention and that "mother pushes her away." She observed that mother ignores C.B. and that "he doesn't even try to get mother's attention. He plays on his own or seeks attention from dad." She also observed S.B. cry during access visits and observed that mother comforted her only some of the time. Ms. Charlemagne also observed that the parents badgered the children and were "emotionally coercive" around the issue of wanting to come home and that H.B. was the focus of this badgering. H.B., in fact, wrote a letter, annexed to Diane Riber's affidavit of August 29, 2012, as Exhibit B, which states in H.B.'s handwriting, "This is to my parents. H.B. feels caught in between because she doesn't want to be the bad guy like she does not want to choose sides or anything." She does go on to state that her first choice would be to go home.

[42] It was the evidence of the workers who supervised the access visits that the parents had a hostile attitude towards the Society, did not accept advice or suggestions and largely did not change their behaviour, conduct or parenting over the period of the Society's involvement with this family, notwithstanding the discussion and suggestions made by the Society about the visits. The parents did complete two parenting courses but the access supervisors did not see any change in their behaviour or parenting as a result of these parenting courses.

Parents' Evidence

[43] Father is 46 years old. He was born in Quebec and has two brothers and a sister. Father completed high school and has one year of college. He and mother have been married since 1992. He has worked on and off throughout the period of the Society's involvement with the children. He was not employed for the period from 2008 until October 2011, when he began working part time. He has been working full time since June 2012 at Scotiabank. He works from 3:00 p.m. to 11:00 p.m. and earns $34,4000.00 plus benefits. Father has been the financial support of the family since the children were born. Mother has remained at home to care for the children.

[44] Father gave detailed evidence about all the specific incidents raised by the Society, offering his version of the events. He denies not being cooperative with the Society and testified that they always returned the workers' calls and denies missing appointments. He testified that he and mother complained about the worker in 2010 because the worker constantly disturbed H.B. at school and that H.B. told him that the worker had asked H.B. where the children get needles which frightened and upset her. It is his evidence that the access visits went well and that any issues in the visits were the result of the inadequate and dirty facilities provided by the Society. He denies badgering the children about coming home but rather testified that the children wanted to come home and he was giving them support and hope.

[45] I have serious issues with father's credibility. His explanation for leaving the children on February 15, 2010, is not believable. The explanation and sequence of events as presented by the father in his evidence are not reasonable. It is also significant that this explanation was only offered just before the criminal trial and not immediately after the apprehension. I also do not accept his evidence that the Society did not contact the parents and that the parents did not intentionally make themselves unavailable to the Society. His explanations of the worker's interaction with H.B., the access visits and the relationship between the parents and the Society as well as his explanations for the other concerns of the Society are self serving, full of excuses and dismissive of the Society's concerns. Even when acknowledging an issue he minimizes the concern- for example, the lock on S.B.'s door was only a tiny L-shaped bracket. S.B. really was comfortable about being locked in the room, he ensured that the children would be safe while he was out and they were alone by strapping C.B. in his stroller and leaving B.B. in her playpen. I conclude, given father's evidence, that he in fact stands by his choice of leaving the children to be with mother at the medical appointment. He did acknowledge responsibility by entering a plea of guilty but there is nothing in his evidence that suggests that he actually understands the significant safety concern.

[46] Mother is 41 years old and has a high school education. She was born in Toronto and her parents and two sisters continue to live in Toronto. Mother's evidence was less detailed than father's. Mother denies being uncooperative with the Society. She testified that she was very cooperative and "I would say that I was happy to address their concerns." She denies involvement in father's leaving the children unattended on February 15, 2010. She denied that H.B. was late for school as frequently as alleged and insists that the school records are inaccurate. She denies any problems with the access visits, describing them as going well. Mother in her evidence showed no insight into the concerns raised by the society. She minimized problems, did not show any understanding of why things like H.B.'s chronic lateness for school were concerns or how the various concerns of the Society impacted on the children. Mother takes no responsibility for any of the concerns of the Society and blames others- lateness because H.B. eats slowly, H.B. for wandering off, father for leaving the children unattended. She was very engaged in proving that neither she nor father had done anything to justify the Society's involvement with the family. She did not show any insight into the issues or concerns of the Society.

Father's Alcoholism

[47] It is conceded by the Society that father did stop drinking alcohol after the incident in September 2009 and that excessive use of alcohol is no longer an issue.

Evidence of School Attendance and Lateness

[48] P.M., the attendance secretary at […]School, the school H.B. and S.B. attended at the time of the apprehension, testified about the children's attendance record at school. It is her evidence that she was responsible for recording each child's attendance based on the attendance record brought to the office each morning and afternoon from the classroom. If a child is late for school, the child is required to come to her office to obtain a note to allow them to enter class and the absent entry is changed to a late. She also contacts the parents of absent students. She provided the attendance records for the children as follows (school year has 194 days):

• School year October 2004 to June 2005, H.B. was absent 52 times and late 5 times. (JK p.m.).
• School year September 2005 to June 2006, H.B. was absent 51 times and late 64 times.
• School year September 2006 to June 2007, H.B. was absent 39 mornings and late 106 mornings and absent 19 afternoons and late 1 afternoon.
• School year September 2007 until June 2008, H.B. was absent 48 mornings and late 120 mornings. She was absent 17 afternoons and not late at all.
• School year September 2008 until June 2009, H.B. was absent 13 mornings and late 112 mornings. She was absent 6 afternoons and late twice in the afternoon.
• School year September 2009 until June 2010, H.B. was absent 25 mornings and late 75 mornings. She was absent 6 afternoons and late 2 afternoons. S.B. was absent 12 afternoons and late 2 afternoons.
• School year September 2010 to February 17, 2011, H.B. was absent 24 times and late 32 times in the morning and absent 6 times and late 2 times in the afternoon.
• School year September 2010 to February 2011, S.B. was absent 29 times in the morning and late 12 times. She was absent 11 times and late 4 times in the afternoon.

[49] It is Ms. P.M.'s evidence that, for one or two years, H.B. had the worst attendance record of any student at the school. She testified that, "It got to the point that I knew their telephone number off by heart." Ms. P.M. did not agree that there were mistakes in the attendance record and that H.B. was marked absent or late incorrectly.

[50] It was the parents' position that the records of the school were inaccurate and that H.B. would arrive in class on time and be marked absent or late even though she was there and that H.B., in fact, complained to mother about this. Mother testified that H.B. was sometimes on time and marked late or that H.B. would come in five minutes late and would have been marked absent and that the record was not corrected. Mother testified that H.B. told her that she saw the records in the office and that, when mother tried to have the records corrected, the school refused. It is her evidence that the absences and lateness for both girls is exaggerated. It was also the parents' evidence that the children were so late for school because S.B. often soiled herself at night and needed to be showered in the morning and because H.B. was a slow eater. There was some improvement in lateness when H.B. began attending the breakfast club at school.

[51] I accept P.M.'s evidence as accurately reflecting the children's absences and lateness and do not accept the parents' evidence that the records are inaccurate. It is Ms. P.M.'s job to collect accurate and maintain accurate records of attendance and lateness at school. She did so for all of the children at the school.

[52] According to the evidence of J.M., H.B. and S.B.'s foster mother, H.B. is very bright but at first she had an attitude problem and did not complete her work to the best of her ability. According to the foster mother, her school performance has improved.

[53] It was Ms. J.M.'s evidence that, when S.B. came into care, she was behind in school and had to be put back into Junior Kindergarten rather than entering Senior Kindergarten, which would have been age-appropriate. She has required a lot of additional tutoring and extra support at home and still requires special help in reading, spelling and printing.

[54] According to the evidence of the Society, the parents were frequently late for access visits, sometimes a few minutes late and sometimes very late. This was a persistent problem which the parents did not remedy through the entire period of the Society's involvement with this family. The reasons offered – TTC delays, stopping to buy food – were inadequate and showed poor planning and organization.

[55] The parents were late for court almost every day of the trial. They were particularly late on the first and last days of the trial. On the first day of trial, they were about one hour late. They offered as an explanation that mother was trying to sort out her legal representation. On the last day of evidence, the parents were more than one hour late. The court could not proceed because mother was the witness being cross-examined. When asked for an explanation, the parents told the court that they had to move their belongings from the motel into storage and they had to do this that morning before court.

[56] The parents' chronic lateness was noted by the school, the access supervisors, Dr. Davis, the children's doctors and the court.

Children's Health Care Needs

[57] The children's regular doctor, Dr. Davis, provided a letter setting out all of the appointments she had with the B. children over her many years of caring for this family. I note that the children were generally taken to the doctor as infants for their well-baby visits but there were gaps in care, particularly for the older children. According to the letter from Dr. Davis dated June 16, 2011, which the parties all agreed could be relied on as evidence of medical appointments, H.B. did not see Dr. Davis from March 12, 2001 until June 6, 2006. H.B. was referred to an ophthalmologist on June 20, 2006. Dr. Davis notes that on the visit of October 5, 2006 she determined that H.B. had not been taken to that appointment. She never received a report from the ophthalmologist to confirm that H.B. had been seen. Dr. Davis in her letter of June 16, 2011, noted that she had not seen H.B. as a patient since October 2007. S.B. saw Dr. Davis regularly through 2005, 2006 and 2007. Dr. Davis saw S.B. on June 7, 2007, and there then was a gap until September 10, 2010. The first note of issues relating to toilet training for S.B. is February 1, 2011. Dr. Davis saw C.B. regularly from December 31, 2007 until October 9, 2009. She saw him again on March 10, 2010. Dr. Davis saw B.B. regularly for her immunization during 2010. Dr. Davis noted her observations over 11 years: that the children are clean and appropriately dressed and that there have been no signs of abuse. She noted that the family is chronically late for appointments or misses them altogether and that the parents have missed referral appointments that her office has made for the children.

[58] Both parents testified that S.B. was difficult to toilet train and that she had issues with bowel movements, resulting in her soiling herself often. This issue was identified as the reason that she was not initially enrolled in junior kindergarten and as one of the explanations for the frequent lateness at school. Mother had to shower and clean S.B. in the mornings. This concern was present when S.B. came into care and had to be addressed by the foster mother. In fact, it is Ms. J.M.'s evidence that S.B.'s bowel problems were an issue, that S.B. had serious issues with her bowels when she came into care resulting in her becoming extremely constipated and which required medical intervention. She had "leakage," which caused her to soil her underwear. She did not always connect the sensation of needing to go to the bathroom and would sometimes complain of a pain in her stomach. It is the foster mother's evidence that this has improved but continues to be a problem off and on.

[59] The first note of any discussion about this with the doctor occurred just before the apprehension and specifically on February 1, 2011. S.B. also had strabismus or a turned-in eye when she came into care, which required surgery. Dr. Davis had noted this and had referred S.B. to an ophthalmologist. The family missed this specialist appointment for S.B.. A note from Dr. Davis addressed to mother, dated February 14, 2011, and filed as Exhibit 27, states, "We have been unable to reach you by telephone," and gives the date for an appointment with the ophthalmologist for S.B. and asks mother to contact the paediatrician for an appointment. The parents testified that they had, in fact, acted on the bowel issues with S.B. with another doctor, a walk-in paediatrician but did not have a name and were unable to provide any detail. I do not accept this evidence, given the lack of verification, including the parents' being unable to provide the name of the doctor or give any specifics as to what the doctor's recommendations were.

[60] Mother did provide evidence that H.B. had received dental care in 2007 and 2009, which evidence is filed as Exhibit 24. There are a series of treatments in September and October 2007, a treatment plan dated September 2007 with appointments noted for January 2008, but it is unclear whether this treatment was completed. There were further appointments in September, October and November 2009. There are no further appointments. There is no evidence that S.B. had seen a dentist.

[61] H.B. required extensive orthodonture when she came into care. The foster mother described H.B.'s teeth as very bad, requiring retainers and now full braces.

Improper Supervision and Leaving the Children Unattended

[62] There are three examples of inadequate supervision or leaving the children unattended: the 2006 incident, the mall incident and the apprehension on February 15, 2011. Ms. J.M. testified about many statements made by S.B. about being left alone in the apartment. Ms. J.M. was able to identify three specific incidents described by S.B. two of which are other than the incidents referred to above:

• S.B. described being locked in the room with H.B.. They heard a big bang and were scared. There was a pink telephone in the room and they tried to call their neighbour with the telephone. Father finally came home.
• the second incident was similar to the first, with the two of them locked in the room and C.B. and B.B. downstairs. They again heard a big bang. They were concerned that C.B. had gotten out of his stroller and were worried about B.B.
• the third incident was the day of the apprehension.

[63] According to Ms. J.M., S.B. talked about being locked in the room often and freely and would say things like, "When I was in the room by myself, I would make up songs."

[64] Ms. J.M. also testified that H.B. would try to get S.B. not to talk about being left alone and would accuse S.B. of lying. She believed, based on her observations of the girls, that H.B. was being told things by her parents and that she was being used by her parents to communicate with S.B. about not making these disclosures. H.B. did make one disclosure about being left to care for S.B. when mother was in the hospital giving birth to C.B.. H.B. told Ms. J.M. that her mother had shown her how to make S.B.'s food and how to change her diaper. H.B. also acknowledged to Ms. J.M. that they had been locked in the room and said that this happened more to S.B. because she (H.B.) was at school. She told Ms J.M. about one night being left with S.B. in the hotel room when father did not come back.

[65] I have considered the evidence relating to the children being left unsupervised by their parents. I conclude that February 15, 2011, was not an isolated incident. I find, based on a review of the evidence and using the test of a balance of probabilities, that the children were left unsupervised by their parents on other occasions. I base this conclusion on the following:

• The three younger children were left unattended for more than two hours on the date of the apprehension. For reasons already given I have rejected the parents' version of the events of that day.
• Mother did not properly supervise H.B. in 2006 when she was able to leave the apartment on two consecutive days and wander the streets alone. As already discussed, the parents saw the problem as being H.B.'s ability to open the apartment door and get out to the street and not as their own inadequate supervision of H.B.
• Father left H.B. unattended when he went to the bathroom in the mall to drink alcohol.
• According to the evidence, S.B. has talked about being locked in the room and left alone many times.
• H.B. also talked about a night when mother was in hospital giving birth to C.B., when she and S.B. were left in a hotel room alone. While this is denied by father for reasons given, I do not accept his version of these events.

[66] The three specific incidents referenced above are in themselves examples of very poor judgment on the part of the parents or one of them. They have occurred over a period of about five years and with the issue of appropriate supervision having been raised by the Society with this family in 2006-07. Each incident put the child or children at serious risk of harm. The risk to these children is even more significant given this court's finding that the children were left unattended on other occasions.

Not Being Responsive to Children's Needs

[67] Mother was observed to be unable to respond to the children's emotional needs. She was observed ignoring S.B.'s overtures for affection. She did not comfort S.B. consistently when she cried. C.B. was observed not to even try to engage mother. Mother was observed to have a flat affect, not to engage emotionally with the children and not to show the children affection.

[68] The parents have consistently put H.B. in the middle of their dispute with the Society. Prior to the apprehension, H.B. refused to talk with the Society worker. Since the apprehension, the various access supervisors and the foster mother have observed that H.B. takes responsibility for protecting her parents, even trying to manage S.B.'s disclosures about what happened at home prior to the apprehension. The extent to which H.B. has been caught in the middle between the Society and her parents is exemplified by the letter that she wrote which is referred to above. This has caused stress for this child.

[69] The parents have, on many occasions during the access visits, talked directly to the children about how difficult it is for them not to have the children with them, have made statements about the children coming home and have made promises of toys when the children come home. They also have, on many occasions during the access visits, become angry and upset with the Society and workers in front of the children. This is upsetting to the children, puts them in the middle of the dispute between the family and Society and interferes with their ability to feel comfortable and happy in their placement.

[70] The parents have been very insensitive to S.B.'s feelings during access visits. S.B. was told that her glasses were ugly and that mother did not like her haircut. S.B. has been observed trying to get her mother's attention and affection and being ignored or pushed away. It was observed that her mother did not consistently comfort her when she cried during access visits. Ms. Sharma, S.B.'s child care worker, testified that S.B. believed that her mother did not like her as much as she liked the others.

[71] While father was more engaged with the children during the access visits, he was very negative and critical of the Society and engaged the children in this dispute and made the children feel badly about being in care. He did not protect S.B. when mother was inappropriate to her. He consistently put mother ahead of the children, including leaving the younger children unattended on February15, 2011, because he was worried about mother and wanted to be with her at her medical appointment.

Parents' Attitude, Lack of Insight, Inability to Problem-Solve and Inability to Change

[72] The parents have consistently minimized concerns and offered explanations and excuses, many of which blame the children. For example, H.B. is late for school because she is a slow eater and S.B. needs a shower in the morning. Given these issues, a reasonable response would be to start getting the children ready earlier rather than to continue to be late almost every day. Even at the trial, the parents did not accept responsibility for this, blaming the children and accusing the school of marking H.B. absent when she was present and exaggerating the problem. Given the parents' position and attitude they are far less likely to take any steps to address these concerns.

[73] H.B.'s chronic lateness for school continued over many years with very little change or improvement. I note that the only effort made to address this issue was the period in which H.B. was enrolled in the breakfast club.

[74] The issue of lack of supervision is also a pattern of behaviour: Mother does not supervise H.B. appropriately in 2006; father leaves H.B. unattended in the food court in 2009; parents leave the children unattended in February 2011. While father did acknowledge that he ought not to have left the children alone in February 2011, he offered a lengthy explanation about mother's health and his concerns for her. The only remedial step taken by the parents around this issue was to put a better lock on the door in 2006 so H.B. could not get out of the apartment. There is nothing in the parents' evidence which shows any insight into the dangers to the children of this lack of supervision.

[75] The parents have not cooperated with the Society. They did not make themselves available for meetings when the Society became involved in 2006-2007, did not follow up with any recommendations and made it clear that they were not interested in the Society's being involved with their family. This pattern was repeated in 2009-2010, resulting in, first, the supervision order and, then, the order that the children be brought into care. An order of supervision is therefore not a choice for this family.

[76] The parents have not taken responsibility for their situation. They blame the Society for taking their children without proper reason and the school for incorrectly marking the attendance for H.B.. They have consistently complained about the Society. They have not accepted suggestions about parenting issues. Both parents' evidence was full of denials, explanations and excuses. While they did complete two parenting courses, there is no evidence that there was any change in the access visits or the parents' behaviour or parenting as a result of these courses.

Finding Re E.B.

[77] The case relating to E.B. proceeded as a blended hearing with all of the evidence relating to finding and disposition being presented to the court together. When considering the finding, I have relied only on evidence that relates to the finding.

[78] The first step is to determine whether the evidence on a balance of probabilities supports a finding that the child is in need of protection. The Society is seeking a finding that the child is in need of protection pursuant to section 37(2)(b)(i) and (ii) of the CFSA.

(2) A child is in need of protection where,

(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, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

[79] I am satisfied that the evidence supports the conclusion that E.B. was a child in need of protection at the time of her apprehension by reason of the following:

• E.B. was born about five months after the apprehension of the other children and the issues which gave rise to the apprehension continued to be of serious concern when E.B. was born. In particular, the judgment of one or both parents – leaving the three children unattended in the apartment – created a serious risk of harm for the baby E.B.
• The concerns which supported the finding that the other children were in need of protection that had been made by Justice Curtis in August 2010 continued at the time of E.B.'s apprehension and therefore there was the risk that the baby E.B. would suffer harm if she were residing with her parents. These risks are discussed in more detail in paragraph 118 to 123of this decision.
• Both mother and father had been charged criminally as a result of the events of February 15, 2011. The criminal charges remained outstanding when E.B. was apprehended and both parents had terms of bail restricting their contact with their children.

[80] The parties agree that the particulars of name, age, date of birth, sex, religion, parents and non native are as set out in the Application.

[81] I find therefore that E.B. is a child in need of protection according to section 37(2)(b)(i) and (ii) of the CFSA.

Disposition for All Five Children

[82] Once the finding is made, the legislation provides an evidentiary path or steps which must be considered in a disposition hearing. These were considered by Justice Perkins in the case C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376.

[83] The court must consider section 57 of the CFSA and determine whether the disposition which is in the child's best interests is the return to a party with or without supervision. Section 57(3) of the CFSA requires the court to look at less disruptive alternatives to removing the child from the care of the person who had charge of the child immediately before the intervention, unless the court finds that these alternatives would be inadequate to protect the child. Section 57(4) requires the court to look at community placements including family members before deciding to place a child in care.

[84] If the court finds that the above is not in the child's best interests, then the court must decide whether a period of Society wardship or an order for Crown wardship is in the child's best interests. Subsection 57(1) of the Act is limited by section 70, which provides that the court shall not make an order that results in a child aged younger than age six being a Society ward for a period exceeding twelve months and a child over age six being a Society ward for a period exceeding twenty-four months. This section informs the court as to what order it can make in cases in which the statutory time limits have been exceeded.

[85] Section 70(4) of the Act allows for a single extension of the allowable period for Society wardship by a further six months, if such an extension is found to be in the child's best interests.

[86] If an order of Crown wardship is made, the court must consider section 59(2.1)(a) of the Act to determine whether an order of access should be made.

[87] The court must determine the appropriate disposition, having regard to the criteria set out in section 37(3) of the Child and Family Services Act and based on the child's perspective. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., 2 S.C.R. 165. The court must assess the extent to which the degree of risk which existed at the time of the apprehension continues to exist today. It then must weigh all of the factors and consider the plans proposed by the Society and the parents.

[88] An order for Crown wardship is one of the most serious orders this court can make. It is well-settled law that a judge must exercise the power to take a child permanently away from parents only with the highest degree of caution and only on the basis of compelling evidence and after an examination of possible remedies. Children's Aid Society of Hamilton Wentworth v. G(J), (1997) 23 RFL 4th 79.

E.B.

[89] E.B. has been in the care of the Society since birth and has been in a single foster home. She has access to her parents as part of the family on Mondays and has a further two other visits a week with her parents, supervised at the Society office. She is a happy, healthy child who has reached her appropriate developmental milestones. E.B. is very attached to her foster parents. She does know her parents and responds to them appropriately during access visits. Mother spends a lot of the access visit meeting E.B.'s instrumental needs. She tried to breastfeed until events required her to stop.

[90] The parents have not been consistent in their visits with E.B.. At the end of the trial, the parents had not come to the visits with E.B. since August 31, 2012.

[91] E.B. has been in care for more than 12 months. Therefore, the only dispositions available to the court are Crown wardship or the return to her family.

C.B. and B.B.

[92] C.B. and B.B. have been in care since their apprehension on February 15, 2011. They have been together since the apprehension and have been in two foster homes. There was no evidence of serious concerns when these children came into care.

[93] Barbara Easwaran, C.B.'s children's services worker, describes him as shy and sensitive child who cries easily. C.B. is described as a quiet and reserved child by the access supervisors. During access visits, he generally plays independently or with S.B.. It was observed that he rarely sought affection from his mother. C.B. has done well in care. He is enrolled in Senior Kindergarten this year. He was a little behind when he began Junior Kindergarten in the last school year but there are no serious educational or developmental concerns noted in the evidence.

[94] C.B. and S.B. have a close relationship and, according to the access supervisors, they spend a lot of time interacting during the access visits. C.B. also has a close relationship with his sister B.B. although, according to the observation of Barbara Easwaran, he and B.B. fight a lot.

[95] B.B. is described as an active child who is vocal about getting what she needs. She is described by Barbara Easwaran, her children's services worker, as stubborn. According to the evidence, B.B. had temper tantrums when she came into care, which included her banging her head against the crib. The foster mother, with the support of the Society, has been working on this issue and, according to Ms. Easwaran, this has improved, although it remains an issue. She observed that B.B. has done well in care, has appeared to mature, and is developing her language skills.

[96] B.B. is very attached to C.B.

[97] Ms. Easwaran also acknowledged that both children have a close bond with their parents.

[98] Both children have expressed the wish to return home to their parents.

[99] C.B. will be five in […] and B.B. is three years old. Given these children's ages and the length of time that they have been in care, the only dispositions available to the court are Crown wardship or returning the children to their parents.

S.B.

[100] S.B. had significant issues with her bowels when she came into care. She also had strabismus which required eye surgery. S.B. was very behind in school, was put back into Junior Kindergarten from Senior Kindergarten and required additional tutoring support. When she came into care, she did not know her alphabet or numbers and could not hold a pencil. According to Paja Sharma, H.B. and S.B.'s children services worker, while S.B. and H.B. do fight, S.B. looks up to H.B.. Their foster mother, J.M., describes S.B. as adoring her sister. S.B. very much enjoys her time with her other siblings.

[101] S.B. has made many statements about life at home including statements about being left alone and about H.B.'s assuming a lot of responsibility for her and her younger siblings. She is also the child who has had the most negative interactions with her mother during access visits and is the child who has expressed the feeling of not being loved as much by her mother as the other siblings.

[102] S.B. has expressed very positive feelings about her foster placement. She has done well in care and appears to be happy. She has stated, however, that she wants to go home but if she can't go home that she wants a forever home.

H.B.

[103] H.B., who was ten when she came into care, is the most verbal of the children. She was not conscientious about her schoolwork when she came into care but has improved. H.B. required extensive orthodonture when she came into care and now has braces. She is very attached to her parents and has been consistent in her wish to return home. She is very protective of her parents, has made excuses for them to the children's services worker and has been angry with S.B. when S.B. made statements about being left alone at home. Given the statements made by both H.B. and S.B., I conclude that H.B. was expected to assume a lot of responsibility for her younger siblings when they lived with her parents.

[104] H.B. can be mean to S.B. and they have been observed to fight a lot.

[105] H.B. has also been clear that she feels caught between her parents and the Society. She expressed this specifically to Ms. Sharma and asked Ms. Sharma to tell her parents that she does not want to be in the middle. She also wrote her parents a letter telling them this.

[106] While H.B. has been consistent in her position that she wants to go home, she is also happy at the foster placement. She has talked to Ms. Sharma about her many activities, has made friends in school and is general doing well.

Society's Plan

[107] E.B.: The Society is seeking an order of Crown wardship with no order for access and plans on seeking an adoptive home for E.B.. According to the worker, E.B.'s current foster parents have expressed the wish to adopt her. Based on the evidence, there is no issue about E.B.'s adoptability.

[108] S.B., B.B. and C.B.: The Society's plan for these children is to find an adoptive home with the first choice being to keep them all together. If the Society is unable to find such a home and they are adopted separately, then the Society agrees that there should be an order granting the children access to each other. The issue of access to H.B. is somewhat more complex because of concerns about H.B. interfering with the adoptive placement. Based on the evidence, the children are all adoptable.

[109] H.B.: The Society is seeking an order for Crown wardship with an order providing that H.B. have access to her parents. H.B. could remain in her current foster placement.

Parents' Plan

[110] The parents are seeking the return of all of the children. However, the details of their plan are vague. They have addressed the issue of leaving the children unattended by saying that they will use babysitters possibly through agencies and family. Mother admits that she has not been involved with her family regularly. Aunt S.O. and Uncle D.O. did put forward a plan to care for the children which was not approved. No one from her family came to court or indicated in any way that they would be willing and available to help. Father's family has never met the children.

[111] The parents lost their previous apartment because of rent arrears. They had resided in a motel for a period of time. On the last day of evidence they told the court that they had moved out of the motel. In their evidence at trial, they told the court that they had located an apartment and that the landlord was waiting for the rent deposit. While it is not in evidence, the parents told me when making submissions that they now have a new apartment and I accept this information. The parents testified that the children would attend local schools and were able to provide names of such schools.

[112] Father is working from 3:00 p.m. to 11:00 p.m., which means that mother will have the full responsibility for all of the children after school, in the evenings and at bedtime.

[113] They have testified that they will have a routine, will be more punctual and will involve the children in more activities. The plan, while containing many such statements, does not provide any details as to how the parents will address the issues raised by the Society.

Analysis

[114] The Society has been involved with this family, with a hiatus, since 2006. The issues which were raised by Ms. Ogbonna in 2006-2007 as the concerns of the Society continued to be the concerns of the Society (along with others including issues relating to health care and parenting) when they again became involved in 2009 and at the time of the apprehension in 2011:

• lack of understanding about appropriate levels of supervision for children and leaving children unattended or unsupervised;
• poor school performance, frequent lateness to school and lack of completion of assignments;
• parents' lack of cooperation with the Society and failure to follow through with counselling for H.B.

[115] These concerns are persistent and the parents have not take steps to address them or develop an understanding of the Society's concern, notwithstanding the Society's efforts to engage with them in 2006-2007 and in 2009-2010 up to the apprehension.

[116] These parents are isolated with very little support from friends, family or community. Father's family has never met any of the children. Mother has family close by with whom she has some involvement but, based on the evidence, I conclude that their involvement with her family is limited. The closest person is her sister, Aunt S., but, while she is known to the children, I conclude, given the evidence, that she is not someone that these parents have relied on in the past for support. It is noteworthy that even though the parents have included their family as part of their plan for the care of the children, no one came to court to say that they would babysit or that they would be available to offer any help.

[117] It is also noteworthy that the only support person who came to testify was Reverend duCharme, who met the parents after the apprehension and saw them only a few times.

[118] I conclude, having reviewed the evidence that the parents were overwhelmed by the responsibilities of caring for the then four children with them at the time of the apprehension. The house was messy and dirty as observed by the various police officers and shown in the pictures filed as Exhibit 4 even assuming some of the disarray was caused by the police. The children were dirty when they were apprehended. The children's healthcare was not consistent and they missed a specialist appointment for H.B. in 2006and for S.B.. S.B.'s bowel issues and eyes were not attended to as they should have been. H.B. was chronically late for school. When S.B. came into care, she was very behind for her age and stage, educationally, not knowing her letters and numbers, which is suggestive of a lack of stimulation and attention; she had to put back into junior kindergarten. H.B. assumed a lot of responsibility for the care of her siblings. She told the foster mother and her worker that she bathed S.B. in the morning because her mother was busy with the baby. Both she and S.B. told the foster mother and their worker about H.B. caring for the children. She was observed to be "parentified." The parents were observed by the various access supervisors to have difficulties managing the children for the short time during access visits.

[119] H.B.'s chronic lateness at school, the parents' frequent lateness for access visits and their lateness for court during the trial are the consequence of poor judgment, inability to establish appropriate priorities, poor problem-solving and lack of child focus. This lateness to court during the trial again exemplifies the parents' lack of ability to prioritize, organize and problem-solve. It is noteworthy that the parents could not consistently be on time for the access visits or for court when they knew that they were being evaluated and expected to put their best foot forward and when they did not have the responsibility for any children.

[120] Mother has limited ability to connect with the children emotionally. I accept the evidence of Ms. Riber and Ms. Charlemagne that her affect is flat during the access visits and she had to be encouraged to be more animated with the children. She was observed not responding to S.B.'s efforts to get her attention and affection. Ms. Charlemagne observed that mother appears to ignore C.B. and that he does not even try to get her attention, playing on his own or with S.B. and looking to his father for attention. Ms. Riber also observed that mother was not affectionate with the children, rarely kissed them and that, when she did touch them, she was "distant." The emotion mother most often displayed during access visits was anger.

[121] I conclude based on the evidence that both parents did not understand their children's emotional needs, were unable to put the children's needs ahead of their own, and put the children (and, in particular, H.B.) into the middle of their dispute with the Society as evidenced by the letter H.B. wrote them. I accept the evidence of the witnesses about the parents' parenting and interaction with the children during the access visits. The parents would engage in angry exchanges with the access supervisors during the visits and in front of the children. The parents spoke to the children often about coming home. S.B. told the foster mother after an access visit that she wanted to go home because her parents told her they had presents waiting for them. It is Ms. Charlemagne's evidence which I accept that the parents badgered the children at access with negativity – negative remarks about the Society, the foster homes and their circumstances. The workers expressed concern that H.B. was being used to put pressure on the other children and, in particular, on S.B. to say that they wanted to go home, to the point that H.B. complained to the worker and to her parents. Mother told S.B. that her glasses were ugly on one visit and that she did not like S.B.'s haircut on another visit. S.B. was clearly upset by these comments.

[122] The parents have been neglectful of their children's educational needs. S.B. was very far behind academically when she came into care. H.B. was chronically late for school. The parents have been neglectful of their children's health needs as demonstrated by the lack of attention to S.B.'s bowel and eye issues, lack of consistent medical care for the older children and lack of appropriate dental care for H.B. and no evidence of any dental visits for S.B. prior to her coming into care.

[123] The parents have no insight into these issues. They have consistently minimized the issues. They have offered explanations and excuses and blamed the children: "H.B. is a slow eater." They have consistently refused to engage with the Society workers in a positive way. This was the case in 2006-2007. They were so uncooperative with the Society after the 2009 opening, failing to comply with the terms of the interim supervision order, that Justice Curtis ordered the children brought into care. They have continued to have a hostile and angry attitude towards the society workers. They have chosen not to engage with the workers and have not taken advantage of the suggestions that the workers have made about the access visits. They continue to deny that they did anything wrong except for leaving the children that one time, for which they have offered an explanation.

[124] Father did stop drinking alcohol, which is a positive. The parents did take two parenting courses, which is also a positive. However, the access supervisors did not notice any change in their parenting as a result of the courses.

[125] Given the history, the parents' defensiveness and lack of acknowledgment and insight, their unwillingness to take advice and the lack of progress on most of the issues, it is unlikely that there will be change in the future.

[126] The parents do have strengths. They did attend the bulk of the access visits albeit often late. They brought nutritious and often home-cooked food. Father engaged with the children and was observed playing with them and talking to them. The parents have demonstrated a high level of love and commitment to the children.

[127] The law requires that, when making a decision about the future of these children, I consider their best interests having regard to the criteria set out in section 37(3) of the CFSA.

Best Interests of Child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child's physical, mental and emotional level of development.
3. The child's cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6. 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.
7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) .

[128] I have considered these as follows:

1. There was a high degree of risk at the time of the apprehension. The parents were neglectful of H.B. and S.B.'s health needs. Three young children were found unattended in their home. Leaving the children unattended put them at risk of physical harm. The parents did not meet H.B. and S.B.'s educational needs. The apartment was unsanitary, and dirty.

2. Returning the children to their parents would put the children's physical, emotional and developmental needs at risk The parents' have done almost nothing in the period in which these children have been in care to address the risks of harm that were present at the time of the apprehension. Father has stopped drinking alcohol which has addressed one concern of the Society. The parents have taken two parenting courses but there is no indication from the evidence of the access supervisors and the family and children's workers of any change in parenting as a result. The parents have not been co-operative with the Society workers and have refused any help. In fact, the parents continue to deny that there are any serious issues with their parenting and, quite frankly, appear not to understand why the children are in care. Therefore, the risk of harm except as related to father's alcohol consumption that existed at the time of the apprehension continues.

3. The parents' plan does not address the issues which give rise to the risk of harm for these children. The plan is vague and does not address the concerns raised by the Society including the concerns about their ability to meet the children's educational, emotional and health needs. For example, the parents have said that they will have appropriate babysitters but continue to have minimal contact with family and remain isolated. The parents state that they will get the children to school on time but were late almost every day of the trial. Mother's plan to address this issue was that she will have a routine, be better organized and do so time management. There is no evidence that the parents have done anything to make their parenting different other than father's drinking and nothing in the parent's plan to address the parenting concerns and issues.

4. The Society's plan of adoption for the four younger children and long-term foster care for H.B. is the plan which is most able to meet the children's physical, emotional, educational and developmental needs. It is the plan most able to provide the children with stability and a positive place in a family. According to the evidence, all of the children with the possible exception of H.B. are adoptable and the Society would try to have S.B., C.B. and B.B. remain together.

5. E.B. knows her parents and is happy to see them. However, she has been in care since birth and is very attached to her foster parents. Remaining with her current foster parents, which is a possibility because they are considering adoption, is the plan which represents continuity and a secure place in a home and family for this child. Placing her for adoption otherwise, if the current foster parents do not adopt is the plan which is most likely to guarantee her a secure place in a family that is able to meet her needs.

6. The children do not have any emotional ties to any extended family members, relatives or community. The parents have moved from the apartment in which they resided when the children were apprehended. If the children were returned to their parents, they would not be living in the same neighbourhood or attending the school they attended before the apprehension.

7. The children, with the exception of E.B. who has never lived with the family, are connected to each other. The Society's plan would allow them to maintain their relationship to each other.

8. C.B. and B.B. have said that they want to return home to their parents. While I must consider their wishes, I give their wishes little weight. They are both very young. The parents have put a lot of pressure on these children to have them want to return home. Both C.B. and B.B. have done very well in care.

9. S.B.'s position about returning to live with her parents has been more equivocal. She has expressed the wish to return home. She has been pressured about returning home by both her parents and H.B.. She has been the most vocal about the issues at home. She has done very well in care. She has expressed the feeling that her mother does not love her as much as the other children. I have considered her wishes within this context.

10. H.B. has been clear that she wishes to return home. She has been consistent in this wish except for a recent statement. Given her age, I must give her wishes serious consideration. She has done well in care, has improved at school, has made friends and engages in activities that she enjoys. Notwithstanding her desire to return home, she is happy in her foster placement. She can remain in her current foster placement if she is made a Crown ward. If she is made a ward of the Crown she could continue to maintain a relationship with her parents through access visits.

Option for S.B. and H.B.

[129] S.B. and H.B. are over six years of age and have been in care about twenty months. There is, therefore, a three-to-four-month opportunity for a further period of Society wardship given the 24-month period set out in section 70(1) of the CFSA. The 24-month period set out in the legislation is a maximum. There is no requirement that it be exhausted before the court makes an order for Crown wardship. The question is whether anything positive would come of this further delay in determining the children's future. (CAS Toronto v. C.F., 2012 ONCJ 123 Spence J.) There has been no change in the period that these children have been in care except for father addressing his alcohol consumption. The parents have not put forward anything that would allow the court to conclude that anything will be different for H.B. and S.B. if they are made Society wards for three months and the issue of Crown wardship is then addressed.

Least Intrusive Alternative - Possibility of a Supervision Order

[130] The parents have not been cooperative with the Society during this current involvement. They were not cooperative with the Society when the Society was involved with them in 2006-2007. The parents did not honour the terms of supervision made by Justice Curtis and the children were ordered into care as a result. I find that, given this history, the parents cannot be relied upon to honour terms of supervision. I also find, given the issues, that there are not terms of supervision which would adequately address the risks of harm if the children were to be returned to their parents.

Kin or Community Placement

[131] There is no kin or community placement proposed or available for these children.

Services Provided by the Society

[132] I accept the evidence of the Society workers that the parents have been uncooperative with them. They have refused to accept the help and suggestions of the various access supervisors who attempted to work with them. They have not acknowledged the validity of any of the concerns raised by the Society. Given these circumstances I find that the Society made its best efforts to provide services to this family.

Adoptability

[133] According to the evidence of Lina Wattie, the Society adoption worker, H.B. is not adoptable now. However, it is her opinion that the other four children are adoptable and that there is a possibility that C.B., B.B. and S.B. could be placed together.

Extension of Time, Section 70(4)

[134] Section 70(4) allows the court to extend the period of 12 months or 24 months of society wardship set out in section 70(1) as appropriate given the children's respective ages by a period of up to six months, if it is the child's best interests to do so.

[135] Given the evidence, I am satisfied that a further extension of six months for any of the children is not in their best interests. I find, given the evidence, that there is no possibility that the parents will take such steps as are necessary in that period to be able to have the children return to them. Give the children's ages and the length of time that they have been in care, this would represent a further delay which is not in these children's best interests.

Conclusion Re Disposition

[136] Having considered the evidence taken as a whole, and the findings of fact made on a balance of probabilities and using the criteria set out in paragraph 37(3) of the CFSA, I find that the least intrusive disposition that is in the children's best interests is an order that the children be made wards of the Crown and that they be placed in the care and custody of the CCAS.

Access

[137] The statute provides as follows:

Section 59 (2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[138] The sections of the Child and Family Services Act relating to adoption of children who have been made Crown wards with an order for access by the biological parent have recently been amended. These amendments allow the Society to look for an adoptive placement and, if same is found, require the Society to give notice of the proposed adoption to the party who has access. The amendments then create a process for determining whether the party having access should continue to have contact with the child post adoption and, if so, what contact.

[139] 145.1.1 (1) This section applies where,

(a) a society intends to place a child who is a Crown ward for adoption; and

(b) an order under Part III (Child Protection) has been made respecting a person's access to the child or the child's access to another person.

Notice

(2) In the circumstances described in subsection (1), the society shall give notice to the following persons:

1. The person who has been granted an access order.
2. The person with respect to whom an access order has been granted.

Right to apply for openness order:

(3) The society shall include in the notice the following information:

1. Notice that the society intends to place the child for adoption.
2. Notice that the access order terminates upon placement for adoption.
3. In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received.
4. In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received.

[140] The recent amendments to the CFSA create new considerations when addressing the issue of access and new dynamics in the adoption process. These new considerations must be addressed when considering the test in Section 59(2.1).

[141] The onus to rebut the presumption against access to a Crown ward is on the parents. Children's Aid Society of Toronto v. D.P.. The parents have the onus of establishing both portions of the test in subsection 59 (2.1) of the Act. This is a very difficult test for parents to meet. Where a Crown wardship order has been made, there is no obligation on the Society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Children's Aid Society of the Niagara Region v. J.C..

[142] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J. where he said:

(45) What is a "beneficial and meaningful" relationship in clause 59(2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous." A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

Re E.B.

[143] E.B. knows her parents, is comfortable with them and responds positively to them. However, given her age and the fact that she was apprehended at birth, I cannot conclude that the parents have met the test of meaningful and beneficial as defined by the CFSA. She is adoptable and, in fact, will probably be adopted by her foster parents with whom she has resided since birth and with whom she is very bonded. As well, while E.B. does know her siblings, she never lived with them and has had limited contact, once a week for most weeks. I find, then, that the parents have not met the test of meaningful and beneficial. There shall be no order as to access to the parents. I am not prepared in these circumstances to order sibling access. Certainly, this is a circumstance in which an openness agreement or arrangement allowing for some sibling access would be appropriate but I am satisfied that this ought to be done voluntarily if it is to occur.

Re C.B. and B.B.

[144] C.B. and B.B. know their parents and act in a loving manner towards them. They have been in care for twenty months and in that time their contact with their parents has been once per week, supervised, at the Society's office. Given the issues raised about the quality of the access visits, I find that the parents have not met the test of "beneficial and meaningful." C.B. and B.B. do have a strong connection to their siblings and they should continue to have contact with each other and with S.B. if the Society cannot find an adoptive home willing to take all three children. They should also continue to have some contact with H.B.. The sibling access would not impair their ability to be placed for adoption. The access to S.B. should be at least once a month and, if B.B. and C.B. are not together, they should have access to each other at least once per month with an in-person visit. The access to H.B. should be at the Society's discretion, having regard to the concerns that H.B. will undermine their placement and adoption placement if one is found.

Re S.B.

[145] The issue of S.B.'s access is more complex because she is older, because her relationship with her parents is more complicated and because she lives in the same foster home as H.B., with whom S.B. also has a complicated relationship. While there have been issues with S.B.'s access to her parents, it is difficult to imagine that H.B. could continue to see their parents if S.B. did not also see them. The concept of meaningful and beneficial is contextual and must take into account all of the circumstances. Ongoing contact with her parents would be advantageous to S.B. and significant to her under these circumstances. Given S.B.'s age, her relationship with H.B., the fact that she lives in the same foster home as H.B., her wishes, and her relationship with her parents, I find that access to her parents is meaningful and beneficial for S.B.. Given S.B.'s age and all of the circumstances, including the protection concerns and the parents conduct, I find that an order for access would not impair S.B.'s ability to be adopted. I am therefore ordering that S.B. have access to her parents. If she were to be moved from her current foster placement, this issue may need to be re-examined. The access is to be at the discretion of the Society as to frequency, level of supervision and duration. I recommend that S.B. and H.B. have opportunities to see their parents individually as well as together. S.B. is very close to her siblings and she should have access to C.B. and B.B. at least once per month. If S.B. and H.B. are no longer residing together, either because of a change in foster placement or because S.B. is placed for adoption, then S.B. should have access to H.B. at the discretion of the Society. I note that S.B. is doing well at her current placement and in her current school and I am not recommending a change for S.B. unless it is to an adoptive home.

Re H.B.

[146] H.B. is the most connected to her parents. It is her wish to go home and, if she cannot go home, to spend more time with her parents. She is very aligned with them. In her case, the access visits are beneficial and meaningful. Given the position of the adoption worker that H.B. is not adoptable now then the access would not impair her ability to be adopted. Given her age, the nature of the relationship with her parents and her wishes, I am ordering that H.B. continue to have access to her parents. She should have the opportunity to have individual time with her parents without S.B., as well as an opportunity to visit with her parents and S.B. together. I do not think that constant supervision is required when H.B. visits her parents alone but I leave the issue of frequency and level of supervision to the Society. H.B. should also have access to C.B. and B.B. and S.B. if they are no longer residing together but such access should be at the discretion of the Society, having regard to H.B.'s behaviour and whether her behaviour undermines the placement of the other children.

Order

• E.B. is found to be a child in need of protection pursuant to section 37(2)(b) of the CFSA.

• All five children are made wards of the Crown and placed in the care and custody of the CCAS.

• S.B., B.B. and C.B. shall have access to each other if they are not living together at the discretion of the Society, but at least once per month.

• H.B. shall have access to B.B. and C.B. and they to her at the discretion of the Society.

• S.B. shall have access to H.B. and H.B. to S.B. if they are not living together at the discretion of the Society.

• S.B. shall have access to father and mother and father and mother shall have access to S.B. at the discretion of the Society.

• H.B. shall have access to her mother and father and mother and father to H.B. at the discretion of the Society.

• There shall be no order for access to parents for the children E.B., B.B. and C.B.

Released: November 26, 2012

Signed: "Justice Geraldine Waldman"