Court File and Parties

Court File No.: ST. THOMAS 225/06 Date: 2013-08-12 Ontario Court of Justice

Between:

FAMILY & CHILDREN'S SERVICES OF ST. THOMAS AND ELGIN Applicant

— AND —

A.C., W.C., and S.C. Respondents

Before: Justice B. Tobin

Heard on: May 13 - 17 and June 24 - 25, 2013

Judgment released on: August 12, 2013

Counsel:

• J. Dittrich, for the Applicant
• A. Skuce, for the Respondent A.C.
• K. Orkin, for the Respondent S.C.

TOBIN J.:

JUDGMENT

1: INTRODUCTION

[1] Four young children have been in Society care under a temporary care and custody order for almost three years. The central issues in this case are whether the children are in need of protection and if so, must they be made Crown wards or can they be returned to the care of their mother under supervision.

2: THE PARTIES

[2] This is a child protection application brought by the Family & Children's Services of St. Thomas and Elgin ("Society") in connection with four children.

[3] The respondent A.C. Cummings, now known as A.P., is the mother of the four children.

[4] The respondent S.C., is the father of the four children and their parent, within the meaning of the Child and Family Services Act ("Act").

[5] The respondent W.C. is also a parent of the four children within the meaning of the Act.

[6] The respondents will be referred to by their first names, not out of disrespect, but for ease of reference and clarity.

3: ISSUES

[7] The issues to be determined in this case are:

1. Are the children in need of protection?
2. If the children are in need of protection, what is the proper disposition?

4: POSITION OF THE PARTIES

[8] In its amended application of April 13, 2011 the Society seeks a finding that four children are in need of protection under clauses 37(2)(a), (b) and (g) of the Act due to physical and emotional abuse as well as risk of physical abuse. The disposition sought by the Society is an order of Crown wardship without access.

[9] A.C. and S.C. participated in this case with the assistance of their respective counsel. They seek an order dismissing the Society's claim that the children are in need of protection. In the alternative, if the children are found to be in need of protection, they want the children placed in A.C.'s care subject to a supervision order. In the further alternative, S.C. asks that if the children are not placed with A.C. then they be placed with him subject to supervision.

[10] W.C. withdrew his Answer and Plan of Care with leave on March 15, 2012. He did not participate in this case and has had no contact with the Society concerning the children since that date.

5: STATUTORY FINDINGS

[11] Subsection 47(2) of the Act requires the court make statutory findings before determining whether a child is in need of protection.

[12] I make the following statutory findings as required by the Act:

(a) The children's names and ages; M.M.C. born […], 2002, J.M.C. born […], 2005, D.S.C. born […], 2006 and D.L.C. born […], 2006 (individually referred to by their initials and collectively as "the children").

(b) The children are not being raised in any religious faith.

(c) None of the children are Indian nor native persons.

(d) All four children were brought to a place of safety from within the County of Elgin.

6: BLENDED HEARING

[13] Subsection 50(2) of the Act provides that evidence relating only to disposition shall not be admitted into evidence before there has been a determination that the children are in need of protection. In this hearing, the parties consented to a blended hearing where all of the evidence was heard both as to finding and disposition. I will not consider disposition evidence in determining whether the children are in need of protection.

7: SOCIETY'S AFFIDAVIT EVIDENCE

[14] The Society filed 15 affidavits as part of its case. These affidavits constituted in part the affiant/witness' examination in-chief. These affidavits were provided to the respondents' counsel well in advance of the hearing by counsel for the Society. The contents of these affidavits were addressed at the trial management conference because of respondent counsels' complaints they contained a significant amount of hearsay evidence that should not be considered. As directed at the trial management conference, counsel for the respondent mother, A.C. Cummings ("A.C."), brought a motion returnable at the opening of the hearing in which he sought an order striking a great number of paragraphs contained in the affidavits.

[15] I have reviewed these affidavits closely and agree with counsel they contain a considerable amount of hearsay evidence (in addition to statements made by the children and addressed in a voir dire).

[16] The use of affidavits at a hearing is permitted under subrule 23(20) of the Family Law Rules. In child protection cases which involve a number of witnesses, the use of affidavits helps shorten the time needed for the hearing. This practice is consistence with the primary objective of the Family Law Rules. It is part of a process that allows cases to be dealt with justly and at the same time best utilizing valuable court time.

[17] Many of the affidavits filed by the Society contained evidence that was clearly hearsay, some double hearsay, inadmissible opinions or simply not relevant to the issues in this case. The Society included in many of the affidavits the statement, "[t]o the extent that I do not have personal knowledge of some of the matters hereinafter deposed to, I rely upon (a) the written record...and (b) information provided to me by third parties." While this evidence is admissible in a temporary care and custody hearing, it is not proper at the hearing. Repeating what others have stated, even for the purpose of giving context, does not make the statement admissible for its truth or the evidence of the witness more reliable.

[18] A number of days would have been required in this hearing had each affidavit been vetted paragraph by paragraph. I am mindful of the statements made by Justice McKinnon in Children's Aid Society of Ottawa v. W.(C.):

[25] The delivery of multiple, long affidavits which contained inadmissible hearsay and opinion evidence also contributed to delay. At least two days of sitting time were occupied over the course of the trial while counsel endeavoured to agree on redactions, presented argument and obtained rulings on admissibility. Limiting an affidavit to relevant points, assessing proportionality, and editing for hearsay and inadmissible opinions are tasks that should be undertaken by counsel. The social worker deponent of the affidavit is not legally trained. It is simply not acceptable that the "editing" of these affidavits is done during the court's sitting time.

[26] The danger to all children of delays in child protection proceedings has been highlighted by the Panel of Experts on Child Protection, headed by Justice Hatton, in their report "Protecting Vulnerable Children", issued in March 1998. The report explains at pp. 11 and 12:

Procedural and evidentiary requirements of the court process appear to cause significant delay in permanency planning for children. There is a compelling plea for the legal system to address, in a comprehensive way, the need for timely decision-making. This system should include effective caseflow management, efficient evidentiary procedures and a civil standard of proof.

When intervention and court action are required, there is a strong need for all of the participants in the justice system (including protection workers, service providers, assessors, lawyers, judges and administrators) to work together in a coordinated collaborative way to achieve the most fair, efficient and effective decision-making process for children and their caregivers.

[19] This pre-trial editing did not take place.

[20] I advised counsel at the outset that I would deal with each affidavit as the witness was called. Counsel did not make argument with each witness that was called. Even though argument was not made in respect of each affidavit as a witness was called, I remain mindful of my responsibility to act only on properly admissible evidence. I have not relied upon those paragraphs in the affidavits that contained inadmissible evidence.

8: ARE THE CHILDREN IN NEED OF PROTECTION?

8.1: Facts

8.1(a) Prior Proceedings: Admissibility of Orders and Statements of Agreed Facts

[21] The Trial Record contained orders made in earlier cases involving it, A.C., W.C. and S.C. as well as the Statements of Agreed Facts that were filed in connection with the granting of those orders.

[22] These orders and Statements of Agreed Facts disclose the Society first became involved with A.C. and S.C. in 2002 due to concerns raised by a paediatrician. Following an investigation, the concerns raised were not found to be substantiated. The Society was again involved with the respondents from June 2006 until December 2008. During this period of time, findings that the children were in need of protection were made as were disposition orders. In December 2008, the Society sought and the court allowed it to terminate its involvement with the respondents.

[23] The respondents submitted that evidence of facts or history of events that occurred prior to the termination order of Justice O'Dea dated December 4, 2008 should not be considered in this hearing. The respondents argued that this history is irrelevant to the issues raised in this case or in the alternative a consideration of the history is prejudicial to the respondents and far outweighs any probative value.

[24] This evidence was admitted for the reasons that follow.

[25] The Act allows the court to consider past conduct of a person toward any child if that person is caring for or has access to the child who is the subject of this proceeding: See CFSA s.51(a).

[26] The court may also consider any oral or written statement considered relevant to the proceeding: See CFSA s.51(b).

[27] What the Society seeks to have admitted are previous orders made in cases involving it and the respondents as well as Statements of Agreed Facts that were filed in connection with the granting of those orders. These documents are within the class of documents referred to in s. 51 of the Act.

[28] The respondents rely upon the case of Kawartha-Haliburton Children's Aid Society v. C.(D.) (2002) in support of their position. In that case the Society moved before trial for an order that certain reports and the transcripts be admitted as evidence in an upcoming child protection hearing. The documents were reports and transcripts relied upon at an earlier trial involving the respondent and the Society. In that earlier hearing, the judge ordered that an older sibling of the child who was the subject matter of the case be made a Crown ward without access. The Society relied upon s. 50(1) in seeking to have the documents admitted. The court denied the Society request. The court was concerned that to allow the admission of the same evidence that was relied upon in the previous hearing would be to invite re-litigation of many of the points previously raised. The court was also concerned about fair process. If the facts contained in the documents were admitted into evidence the respondent must be given the opportunity to cross-examine. The risk arose that a different conclusion from that made in the first hearing might be made on a particular point.

[29] The Kawartha case can be distinguished from this case. The concerns raised in the Kawartha case about re-litigation and fair process do not arise here. In the previous cases involving these respondents, the court determined that the children were in need of protection. These orders were based upon findings of fact contained in the Statements of Agreed Facts up to the time of that particular order, signed by A.C. and S.C.. In the case that is now before the court, there will be no re-litigation of the previous facts upon which findings were made. The respondents did not argue that those cases were wrongly decided or that the facts were wrongly found. Their concern was that those prior facts would colour, in a negative fashion, my view of them.

[30] I found that these documents were relevant to this proceeding. They give context to evidence tendered in relation to whether the children are in need of protection in this case. I am able to consider these orders and Statements of Agreed Facts to determine or measure whether there has been a change in the respondents' behaviours from the time when previous orders were made to the present. The probative value of admitting the evidence contained in these documents, as described above, is not outweighed by the prejudice as identified by the respondents.

8.1(b): Prior Proceedings: June 2006 – December 2008

[31] I considered the following facts derived from the orders and the Statements of Agreed Facts.

[32] In 2006 A.C. and W.C. were in a relationship.

[33] W.C. was known to the Society as a person who engaged in domestic violence, used drugs and whose mental health was unstable.

[34] By September 2006 W.C. had been incarcerated for 26 counts of assault against A.C., including for sexual assault, confinement and weapons charges. He was scheduled to be released from custody at the end of that month.

[35] While incarcerated and after his release A.C. and W.C. had contact. This contact occurred notwithstanding A.C.'s written agreement with the Society not to do so.

[36] In October 2006 S.C. broke into A.C.'s home and refused to leave. At the time he was on probation for assaulting A.C.. The children were in the home during that incident. S.C.'s attendance at the home was his third breach of probation.

[37] The children were apprehended from A.C. at the end of October 2006.

[38] By order of Justice O'Dea dated June 14, 2007 the children were found in need of protection under subclauses 37(2)(b) and (g) of the Act. The disposition ordered at that time was that all four children be placed in the care and custody of the Society for a period of four months. A.C. and S.C. were granted supervised access to the four children at the discretion of the Society.

[39] While this order was outstanding A.C. eventually became consistent in her attendance at access visits. She also cooperated with and attended with service providers.

[40] From July 2006 to September 2007 A.C. attended the Woman Abuse Transitional and Housing Support Program at Violence Against Women Services, Elgin County as well as attended nine individual sessions. A.C. participated with service providers in programs that would assist her parenting the children. S.C. exercised access and participated in anger management counselling.

[41] On November 15, 2007 Justice O'Dea granted an order returning the children D.S.C. and D.L.C. to the care of A.C. subject to Society supervision for a period of eight months upon terms and conditions including her not allowing W.C. to have access to the children. The order also provided that A.C. was to have access with M.M.C. and J.M.C. supervised at the discretion of the Society for a minimum of six hours per week. S.C.'s access was also to be a minimum six hours per week supervised by the Society and such supervision was at the discretion of the Society.

[42] M.M.C. and J.M.C. were returned to the care of A.C. on January 18, 2008. This occurred pursuant to the order of Justice Pockelle dated January 17, 2008. This order provided that the girls were to be returned subject to Society supervision for a period of six months subject to terms and conditions.

[43] On February 4, 2008 W.C. assaulted A.C.

[44] By order of Justice O'Dea dated July 10, 2008 the children were found to remain in need of protection pursuant to clauses 37(2)(b) and (g) of the Act. The children remained in the care of A.C. subject to Society supervision for a period of five months on terms and conditions. S.C. was granted access, a minimum of six hours per week supervised by the Society at its discretion. A.C. was not to allow W.C. into her home or access with the children without prior approval of the Society.

[45] In the Statement of Agreed Facts that was signed by A.C. and S.C. at the time of the granting of the July 10, 2008 order, it states that W.C. and A.C. continue to have contact and that there was conflict in their relationship. S.C. completed the Changing Ways Program and the P.E.G. Program which is a two-hour session provided by Addiction Services Thames Valley as a result of his issues with alcohol.

[46] On December 4, 2008 Justice O'Dea granted an order terminating the then outstanding supervision order. One of the bases for the supervision order being terminated was that A.C. was not having any contact with W.C..

[47] In the Society's Status Review Application, filed in relation to the request for a termination order, it pleaded that W.C. and A.C. had not had contact with each other and that A.C. expressed no interest in doing so. The Society also pleaded at para 72:

The Society respectfully submits that A.C. Pratt has met with the requirements of the July 2008 Supervision Order, has met the needs of her children, is protective of them and the children are no longer in need of Protection. The Society requests that the Order of July 10, 2008 be terminated.

8.1(c): The Children in A.C.'s care: July 2009 – 2010

A.C. and W.C. Reconcile

[48] On July 27, 2009 Christina Joliffe, an intake worker employed by the Society went to A.C.'s home. A.C. and W.C. were there. They told the worker that they had married and were living together. A.C. told the worker that she did not understand why the Society has concerns with W.C. living in her home.

[49] Having regard to W.C.'s history, the worker asked whether W.C. would leave the home voluntarily, and he did.

[50] The next day, the worker returned to A.C.'s home to speak with her. A.C. told the worker she could not guarantee that W.C. would not return home. She did not understand why the Society remained concerned about W.C..

[51] On the same day W.C. disclosed to the worker that he had been diagnosed with bi-polar disorder. He told the worker that he was taking his medication and that there had been no incidents of violence.

[52] On August 13, 2009 W.C. and A.C. agreed to work with the Society on a voluntary basis and enter into a written agreement. They acknowledged that there were outstanding concerns related to W.C.'s mental health and his history of domestic violence. They agreed to refrain from any form of verbal or physical violence toward each other or the children. The voluntary services agreement was signed on September 2, 2009. On that same day Jennifer Chamberlain became the Family Services Worker with carriage of the Society's responsibilities for the respondents and children.

The Broken Window Incident

[53] On October 5, 2009, Ms. Chamberlain received a report about an incident of violence that resulted in a broken window at A.C. and W.C.'s home. She investigated.

[54] Both A.C. and W.C. told the worker that the window was broken while they were away from the home. A.C. told the worker she was with her daughters at her mother's home and W.C. and the boys were at her brother's home. W.C.'s right hand was observed by the worker to be cut and scraped. He told the worker that his hand was cut as they were cleaning up the broken glass. A.C. reached out to put the glass in a bag and cut him.

[55] A.C. reported to the worker that she cleaned up the window, covered it with plywood, reported the incident to Housing and called the police.

[56] B.K. was a neighbour of A.C.. She lived in the same complex as A.C.. On the day the window was broken, she went to A.C.'s home. She did not see how the window was broken. What she did see was broken glass.

[57] J.M.C. stated that A.C. and W.C. were outside having a cigarette and W.C. was frustrated. She was able to identify that A.C. and W.C. were upset and that W.C. hit the window and then went for a walk in his sock feet to Uncle Mike's house. This latter statement is consistent with A.C. stating that W.C. had gone to her brother's. J.M.C. was able to describe that she and M.M.C. went upstairs and hid under a blanket, that they were scared. She was able to provide detail showing that her foot was trembling during the incident. They then went to the grandmother's home with their mother. This latter point is consistent with A.C.'s statement that she and the children were at her mother's. J.M.C.'s evidence is consistent with W.C. breaking the window.

[58] I have taken into account that J.M.C. originally stated the glass was broken when they got home from their grandmother's. The spontaneity of her further comments lends greater credibility to them.

[59] I also consider that by the end of October or early November A.C. and W.C. told the worker that they noted a change in W.C.'s behaviour if he forgets to take his medication. I find from this evidence that at the time of the broken window incident W.C. was experiencing changes in his mood. By November 11, 2009, he had left the family. A.C. advised the worker on a voice mail that he no longer wanted to live the family lifestyle.

[60] On November 18, 2009, W.C. came to A.C.'s home. S.C. was there at the time visiting with the children. This upset W.C.. He became aggressive and slapped A.C. across the face. The police were called and W.C. was arrested. A.C. informed the Society worker she would not continue her relationship with W.C.. As part of the criminal process, she would request that W.C. no longer be allowed to remain in Elgin County.

[61] I find that during the fall of 2009 W.C.'s behaviour became increasingly erratic and violent. I also find, on the balance of probability, that W.C. broke the window in anger and his actions and his interaction with A.C. that day scared the girls.

[62] In early January, 2010, W.C. was found guilty of the November 18, 2009 assault. His sentence included two years of probation which included a revocable non-association order with A.C..

[63] A.C.'s resolve to remain separate and apart from W.C. did not last very long.

[64] Contrary to the terms of the probation order, A.C. and W.C. met on January 12, 2010 and both were arrested for being in contact.

[65] On January 15, 2010, A.C. wrote a letter to W.C.'s probation officer requesting she be allowed to have phone contact with W.C.. She also wanted to be able to attend with him in person at marriage counselling beginning in the middle of February 2010. She wanted to address issues together with W.C. "in succeeding in our marriage."

[66] A.C. was advised by the Society worker that whatever arrangements she wanted to make with respect to contact with W.C., she was not to allow him to have contact with the children. Contrary to this instruction, A.C. arranged for W.C. to walk the children to and from school each day during the spring of 2010. When the Society worker found out this was occurring and addressed the matter with A.C., she agreed she would ensure there would be no further contact.

[67] I find it was made clear to A.C. by the Society worker that if she allowed W.C. into the family home or around the children she risked the Society acting to apprehend the children. His presence with the children would put them at risk of harm due to exposure to domestic violence.

8.1(d): A.C.'s Supervision of the Children

June 15, 2010

[68] In June 2010, the Society received a report from third parties regarding A.C.'s care of the children.

[69] On June 15, 2010, Constable John Lusby of the St. Thomas Police Service was dispatched to A.C.'s home. The reason for the dispatch was to investigate whether children were left unattended.

[70] The officer arrived at A.C.'s home at 10:55 a.m. Upon his arrival, he saw M.M.C. and J.M.C. outside. A.C. was not present.

[71] The officer learned from the girls that A.C. was in bed sleeping with D.L.C. and D.S.C..

[72] The girls went to get their mother and she came out a moment later. A.C. spoke with the officer. She said she had been out the night before, the children were cared for by their father and she returned home around midnight. She was up at 7:00 a.m. and then went back to bed.

[73] The officer observed, and I accept, the children appeared "okay." They had snacks and food. The girls were observed to be right in front of the unit and there was no traffic nearby. The officer "read her the riot act" about the children being left alone because they could be kidnapped. He told A.C. he would be reporting to the Children's Aid Society. The officer was aware A.C. had an open file with the Society because she told him.

June 19, 2010

[74] On June 19, 2010, a Society worker received a call that resulted in the worker requesting the St. Thomas Police attend at A.C.'s home for a wellness check. Constable Mark Vaughn and another officer were dispatched due to this report. Constable Vaughn understood the reason for the dispatch was that the children were in the care of their father and he was intoxicated. The officers arrived at A.C.'s home at 10:45 p.m. S.C. answered the officers' knock on the door and asked why he was there. Constable Vaughn also detected a strong odour of alcohol on S.C.'s breath and saw a number of beer cans. All four children were awake. The officer was concerned. S.C. was cooperative with the officers. A.C. returned home a short while later. Constable Vaughn observed A.C. to be fine and was cooperative. The officers left approximately 25 minutes after they arrived.

8.1(e): W.C. and A.C. Continue their Relationship

[75] During the spring and summer of 2010, A.C. and W.C. expressed to W.C.'s probation officer, Marcy Brown, their wish to resume cohabitation. They wanted to participate in relationship counselling.

[76] A.C. and W.C. sought permission from the Society and probation officer to resume cohabitation. This permission was consistently denied by both the Society and the probation officer because of the risk to the children from domestic violence.

[77] For the reasons to be set out below, the children were apprehended on October 28, 2010.

[78] Within days of the apprehension, W.C. and A.C. resumed their cohabitation. The probation officer approved the cohabitation as the children were no longer living in the home.

[79] A.C. and W.C. continued to cohabit until the summer of 2011. At that time, A.C. ended her relationship with W.C.. On September 14, 2011, A.C. asked the probation officer to have the non-association order go back into effect.

[80] On November 7, 2011, A.C.'s counsel wrote to probation services requesting permission for A.C. to have telephone and face to face contact in public with W.C.. She did not want him to attend at her residence as she did not want to jeopardize the access arrangements then in place, which allowed her to visit with her children in her home under the supervision of her mother.

8.2 The Apprehension

(i) D.S.C.'s Sore Wrist

[81] On October 28, 2010, D.S.C.'s teacher at Lockes Public School made a report to the Children's Aid Society. D.S.C. told the teacher that he had hurt his wrist, and when asked said that his mother pushed him down the stairs that morning. The teacher did not ask whether it was an accident. She then asked D.L.C. if anything had happened. He did not give the teacher any information. Following her consultation with a school administrator, she reported the information she had to the Children's Aid Society.

[82] On that same day, the Society worker, Jennifer Chamberlain, attended at the school to interview the children.

[83] When questioned about the sore wrist incident, D.S.C. stated to the child protection worker that, "my mom throwed me on the steps." He had been trying to get outside through the basement window. He told the worker that his mother was mad and yelled, "Get in your bed." D.S.C. also stated that, "Mommy hurt my wrist." D.S.C. also said his mother "always spanks me in the face" while pointing to his cheek.

[84] When D.L.C. was questioned by the worker regarding the wrist incident, he said to the child protection worker that his mother was mad and threw D.S.C. down the basement stairs because he was getting in trouble. D.L.C. also said, "Mommy always spanks us. She spanks me on my head," and then pointed to the top of his head.

[85] Both M.M.C. and J.M.C. told the worker they did not see what had happened that morning. J.M.C. stated that she heard thumping and her mother upset.

(ii) D.S.C.'s Head Injury

[86] While interviewing D.S.C. (that same day), the worker saw a scar on D.S.C.'s head. She asked how he got the scar on the top of his head. D.S.C. stated, "Mommy threwed me into the wall and that's how I got cut on my head." He also said this, "hurt my feelings." He told the worker that he went to the hospital and got staples for the cut in his head.

[87] When interviewed by the worker, D.L.C. stated that Stephen had thrown D.S.C. into the wall next to the closet.

[88] During her interview with the Society worker, J.M.C. stated that D.S.C. got the cut on his head after the mother pushed him into the wall next to the closet. The worker did not record whether J.M.C. observed this or was repeating what was told to her.

[89] M.M.C. was also interviewed and when asked about how D.S.C. got the scar on his head, she stated that he cracked his head open on the wall near the door, that her mother held D.S.C.'s arm during the incident and there was lots of blood. Again, the worker did not record whether M.M.C. saw this incident or was repeating what was told to her by somebody else.

[90] Entered into evidence on consent was the emergency hospital report of September 2, 2010. A.C. brought D.S.C. to the hospital at approximately 8:00 p.m. The hospital report notes that D.S.C. tripped and hit head on a doorframe. He had a 1.5 centimetre cut on the front of his scalp.

[91] The children were apprehended by Ms. Chamberlain on October 28, 2010 while at school. They were apprehended from the care of their mother and have remained in care since.

[92] A.C.'s evidence is that on September 2, 2010 D.S.C. tripped and fell into the wall causing the cut. Her evidence is that she did not push or otherwise cause the child to hit his head. This is what she told the Society worker when she was interviewed on October 28, 2010. She also denied hurting her son that morning.

[93] D.L.C. made an allegation of physical abuse against a foster parent, but after being questioned by a Society worker about it, agreed it was an accident. M.M.C. once claimed her stepfather came to her home with a gun. She called the police who came and took him away. This did not happen. J.M.C. also made an unsubstantiated complaint.

8.3: A.C.'s Alcohol Consumption

[94] B.K. testified, and I accept this evidence, that she would watch A.C.'s children from time to time. She described an incident when A.C. went to a bar but did not return when expected. She told B.K. that she was going for a drink with her husband at around five or six o'clock and would be there for about an hour. She did not return home for five hours. B.K. testified that A.C. was not drunk at the time. A.C. denied this happened.

[95] Following the apprehension, A.C. acknowledged to the then Society worker, Jennifer Lewis, that she "had hit the bottle pretty hard" after the children were apprehended the first time. In January 2011, she agreed to attend the Thames Valley Addiction Program or P.E.G. (Pre-contemplators Education Group) – a program for adults who do not recognize substance abuse as a problem. The Society provided A.C. with transportation to the P.E.G. program and by April she advised the worker that she did not believe she needed it.

8.4: January 3, 2003 – Police Call – Domestic Violence

[96] On January 3, 2003, Police Constable Louise Hardman was dispatched to A.C.'s house as a result of a 9-1-1 call. The police officer attended the home understanding that A.C. had a knife and was holding it against her partner J. H..

[97] Constable Hardman and her partner arrived at A.C.'s home and were met by both A.C. and J.H.. Both were calm. The constables advised they had received a 9-1-1 call. The officers were let into the residence by J.H. who said the call was a mistake, there was no knife. A.C. and J.H. were separated and Constable Hardman went with J.H.. He denied there was a knife. He was mistaken and in fact it was a lighter. What precipitated his call and belief there was a knife was that he and A.C. were arguing over who would drink the last can of beer. The officer observed that both had been drinking heavily.

9: LEGAL CONSIDERATIONS

[98] The Society seeks a finding that the children are in need of protection under clauses 37(2)(a), (b) and (g) of the Act. These clauses are as follows:

37(2) A child is in need of protection where,

(a) the child has suffered 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.

(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.

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

[99] Clause 37(2)(f) provides:

37(2) A child is in need of protection where,…

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

[100] Child protection proceedings are unlike ordinary civil litigation as the court can chose a flexible approach that would admit evidence arising at any time up to the date of court hearing, subject to disclosure to all parties, in considering whether a child is in need of protection: See Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W. This is applicable here as the children have been in care for almost three years and events relevant to the issue of the finding have continued to occur.

9.1: Clause 37(2)(a) – Physical Harm

[101] On the admissible evidence presented at this hearing, I am not able to find on the balance of probabilities that A.C. inflicted physical harm upon D.S.C. causing him to have a gash on his forehead or that she hurt his wrist, for these reasons:

1. The hospital report does not note that hospital staff were concerned the injury to D.S.C.'s head was as a result of A.C. causing the injury. The Society and police were not called because of that hospital attendance.

2. The weight to be given to the D.S.C.'s evidence is affected by his young age. With respect to the head injury incident, the length of time after the event the children were interviewed is also a factor that lessens the weight to be given to their evidence.

3. D.L.C. made statements about the foster parent hurting him that were subsequently acknowledged not to be true. M.M.C. and J.M.C. also make claims of being hurt that were not substantiated.

4. There is no evidence M.M.C. and J.M.C. observed what happened when D.S.C. hit his head against the wall. As well, neither girl saw what happened on the morning of October 28, 2010.

5. A.C. has been consistent in her denial of this abuse.

[102] I accept that on October 28, 2010 D.S.C.'s wrist was sore.

[103] I find that the Society has not met its onus in proving the children are in need of protection under clause 37(2)(a).

[104] It would be dangerous to rely solely on the children's evidence as presented to hold that on the balance of probability A.C. pushed D.S.C. into the wall on September 2, 2010 or caused him to hurt his wrist on October 28, 2010.

9.2: Clause 37(2)(b) – Risk of Physical Harm

[105] The risk of physical harm means real, not speculative, risk. The Society does not need to prove an intention to cause physical harm as a pre-requisite to a finding under this clause: See Children's Aid Society of Niagara Region v. P.(T.)

[106] I find that the children are in need of protection under clause 37(2)(b). There is a risk the children are likely to suffer physical harm inflicted by A.C. including as a result from her failure to supervise and protect the children and her pattern of neglect in protecting the children. The basis for this finding is as follows:

1. A.C. has a longstanding pattern of being involved in intimate relationships where there is domestic conflict and abuse. This has been the case in her relationships with S.C., W.C. and J.H., though there has been only one incident with J.H..

2. The children have been exposed to this domestic conflict and abuse. This was most poignantly described by J.M.C. when she demonstrated to the worker how her legs trembled during an incident of domestic violence. I accept the girls' evidence that they had been exposed. They may not have been in the room where the violence occurred, but they were in the house and were aware of it occurring on a number of occasions.

3. A.C. minimized the effects of domestic violence upon the children.

4. I find that A.C. has used physical discipline upon D.S.C. and D.L.C. by spanking them.

5. A.C. has allowed her consumption of alcohol to interfere with her care of the children. I accept B.K.'s evidence that the one hour drink at the bar turned into five or six hours. A.C. acknowledged to the Society worker that she has, in the past, drank to excess. Her alcohol consumption continues to pose a risk to her ability to care for the children. The January 3, 2013 incident demonstrates that this remains a risk factor.

6. A.C.'s ability to care for all four children has been taxed such that the children have been left unsupervised. This was the case when D.S.C. ingested an unknown quantity of Tylenol on March 11, 2010. This was also the case when Officer Lusby attended at her home.

7. A.C. showed poor judgment in allowing S.C. to care for the children when she knew he drank alcohol while they were in his care.

[107] Individually, each of these incidents – except for the domestic violence – would not be sufficient to support a finding. However, collectively they demonstrate on the balance of probabilities that these children have been at risk of likely suffering physical harm as contemplated under clause 37(2)(b).

9.3 Clause 37(2)(g) Emotional Harm

[108] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm: See Children's Aid Society of Toronto v. S.A.C. and Jewish Family & Children's Services v. K.R.

[109] By reason of A.C.'s propensity to involve herself in relationships where there is domestic violence and to which the children have been exposed and been made fearful, I find the children are at risk of emotional harm as contemplated by clause 37(2)(g).

10: DISPOSITION

[110] Is it in the best interests of the children to be returned to A.C. or S.C. with or without supervision or to be made wards of the Crown?

10.1: The Statutory Pathway

[111] The Act provides a statutory pathway that is to be followed in a child protection application: See L.(R.) v. Children's Aid Society of Metropolitan Toronto

[112] If the children remain in need of protection the Court must then determine if a court order is necessary to protect the children in the future: See CFSA ss. 57(1) and (9).

[113] For the reasons that follow, I am satisfied that the children remain in need of protection and an order is necessary to protect the children in the future.

[114] The next step is to consider which one of the orders under ss. 57(1), paras 1, 2, 3 or 4 or s. 57.1 should be made in the best interests of the children.

[115] It is necessary to consider the circumstances enumerated in ss. 37(3) of the Act when determining the children's best interests: See CFSA ss. 57(1).

[116] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.)

[117] The court must consider what efforts the Society or another Society or person has made to assist the children before the intervention under Part III of the Act: See CFSA ss. 57(2).

[118] Before making an order removing the children from the parents, the court must enquire into the least disruptive alternatives that would adequately protect the children: See CFSA ss. 57(3).

[119] If the children are to be removed from a parent's care, the court is to consider whether there are family or community placements before making a Society or Crown wardship order: See CFSA ss. 57(4).

[120] Subsection 57(1) of the Act is limited by section 70 of the Act, which provides that the court shall not make an order for Society wardship that results in a child being a Society ward for a period exceeding 12 months, if the child is less than six years old on the day the order is made, or a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless the time is extended as provided in subsection 70(4). This subsection of the Act gives the court discretion to extend the time periods above by six months, if it is in the children's best interests to do so. In this case, the children have been in care long past the statutory maximum.

[121] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the Society's removal of the child from their care and has developed some new ability as a parent: See Children's Aid Society of Toronto, v. Robin H. and Michael N.

11: PLANS OF CARE

[122] A.C.'s plan of care is to have the children reside with her in the home she and they lived in at the time of the apprehension. The children continue to have access with A.C. in this home.

[123] A.C.'s mother, Janet Shelley, will assist her with baby-sitting, rides and groceries, and as she can. Her mother works early in the mornings but would be available in the afternoons and on weekends.

[124] A.C. is also willing to cooperate with Society workers under terms of supervision. She is also prepared to participate in services as recommended to her.

[125] A.C. is prepared to have her partner, J.H., move from her home if the children are returned to her care. As the children do not have a relationship with J.H., she is prepared to introduce them to him in a measured fashion so as to take into account their sensibilities.

[126] S.C. supports A.C.'s plan that the children be returned to her. He also wants liberal access with the children.

[127] If the children are not returned to A.C.'s care, he requested the children be placed with him. I find that this alternate plan of S.C.'s is not a realistic one. He does not have his own premises. He resides with his grandmother at this time and his plan is to reside with two other individuals north of London. He does not have the financial resources to secure premises for himself and the children. His work schedule is such that he would require child care services. It would not be in the best interests of the children to place them in S.C.'s care under the plan he proposed.

[128] The Society's plan of care is to have the children made wards of the Crown without access to the respondents. Adoptive homes would be found for the children. In its Amended Plan of Care the Society states that it may seek a less intrusive order if the parents meet specific expectations. These expectations include cooperating with the Society by participating with service providers to address identified risks to the children, which she has.

12: THE CHILDREN

12.1: M.M.C.

[129] M.M.C. is now 11 years of age. She is described by her mother as fun-loving, caring, loves music and active. M.M.C. struggles in school and has the benefit of an Individual Education Plan. She does not exhibit behavioural concerns at school. A foster mother did report defiant behaviours in her home. M.M.C. was psychologically assessed by Dr. Rynard for the purpose of clarifying her "cognitive, academic and attentional" processes. The assessment report was dated June 16, 2011. It was prepared when M.M.C. was nine years of age. Respondents' counsel consented to the report being admitted into evidence, except for certain paragraphs in which Dr. Raynard repeated statements and conclusions made to him by third parties. I have not considered those objected to paragraphs. The report states that, at the time it was undertaken, M.M.C.'s psycho-educational assessment demonstrated that she was a girl with low average cognitive and academic ability. Her reading and writing skills were appropriately developed. She had some difficulties with spelling and struggled considerably with mathematics. Her verbal skills were significantly stronger than her perceptual reasoning skills. Her processing speed was low. The psychologist suggested that the pattern he identified was typical of a child with a non-verbal learning disability.

[130] While M.M.C. has been in care she has engaged in art therapy, as have her siblings.

12.2: J.M.C.

[131] J.M.C. is now eight years old. She is described by her mother as energetic with a sense of humour and lots of personality. Her child services worker has observed her and stated that J.M.C. appears to be aware of her emotions and is able to express them. While generally presenting few behavioural issues, she can be challenging in her behaviour when she is told "No." An Individual Education Plan is being prepared for her as she has had some struggles at school.

[132] The foster mother stated, and I accept, that J.M.C. has breathing problems when around people who are smoking.

12.3: D.S.C.

[133] D.S.C. is now seven years of age. He is described by his mother as the older twin, athletic, outgoing and loves to learn about nature and the outdoors. The Society's children's worker describes that he can have behavioural difficulties where he becomes angry and defiant. She has observed him to be easily frustrated. He has done well in school but struggles with social skills.

12.4: D.L.C.

[134] D.L.C. is also seven years old and is described by his mother as the baby of the family. He is athletic and has lots of energy.

[135] Those who have observed D.L.C. describe him as well-behaved. He does not like to be alone and is a timid child. He is bright and does well in school. No behavioural issues have been identified with respect to him. Socially, he is observed to have friends.

13: SERVICES OFFERED

[136] The court is required to hear from the parties as to the efforts the Society or other agency or person has made to assist the children before intervening under Part III of the Act: See CFSA, ss. 57(2).

[137] One of the functions of the Society is to provide guidance, counselling or other services to families for protecting children or for the prevention of circumstances requiring the protection of children: See CFSA clause 15(3)(c).

[138] At para. 7 of the Society's plan of care, it states that the following efforts have been made in the past to protect the children while in the care of the respondent(s): "Previous Supervision Orders; Voluntary Service Agreement."

[139] The level of detail provided by the Society in its plan of care is insufficient for me to find that it has met its mandate to provide services as required under the Act. Therefore following Ms. Lewis' examination by counsel, I asked her what steps have been taken in this regard. Her evidence was that she has called different agencies to find out what programs they offer and what services they would be willing to provide. The worker drove A.C. to counselling appointments. She offered to take or drive A.C. when she did not have a ride. The Society assisted A.C. by paying for locks for her house. The Society has offered financial assistance to provide food. The Society advocated for A.C. to be able to remain in the premises in which she has resided since the children were apprehended. The Society undertook a family group decision process. This is a process where a plan is developed for family members to help the children outside of the court process.

[140] Within its plan of care, the Society set forth services it expected A.C. to participate in. These included counselling for domestic violence and alcohol addiction assessment. A.C. did participate in these services.

[141] I find the Society met it obligations under the Act with respect to providing access to services.

14: PARENTING CAPACITY ASSESSMENT

[142] A parenting capacity assessment was ordered by Justice O'Dea. The parenting capacity assessment was undertaken by Dr. Dan T. Ashbourne, a psychologist and his report dated November 21,2012 was admitted in evidence. Dr. Ashbourne was not required to testify at the hearing, however also admitted into evidence was a transcript of an out-of-court cross-examination of Dr. Ashbourne which took place on April 17, 2013 regarding his parenting capacity assessment.

[143] As part of the parenting capacity assessment, Dr. Ashbourne was directed to assess the basic parenting capacity of each adult.

[144] It is the assessor's opinion that S.C. operates "...more as a playmate than in a parental capacity with the children....he does not have a good understanding of the emotional, social, academic or psychological needs of the children and seems to feel they are doing well, despite documentation to the contrary."

[145] As for A.C., the assessor's opinion in part is that she was able to stage her home and visits well. She was able to offer socially appropriate responses to parenting situations and talked of working hard to meet the children's need. The assessor's opinion is that A.C. over-estimates her abilities and capacity to follow through with good parenting practice. She is able to meet the children's basic "instrumental needs for food, shelter, structure and some safety...." The assessor further states in his report, "With regards to the children's social, emotional, academic and psychological needs, Ms. Cummings fares little better than does Mr. Collinson." He describes A.C. as having a limited education despite being a bright woman.

[146] The assessor was of the opinion that A.C. does not appear to appreciate what the impact of the children's extensive exposure to domestic violence has had on their development.

[147] The assessor also evaluated each child's attachment to the parents as well as the impact on each child of severing or maintaining ties. The assessor's opinion is that the children have limited attachment to S.C. in a parenting role. All of the children have extensive fears and appear to be anxiously attached to their mother. Neither A.C. nor S.C., according to the assessor, "hold the talents to support J.M.C. in her learning challenges."

[148] Severing the relationship with S.C. will be "...less of an issue for the boys given how long they have been in care and how little a role their father has played in their lives." This will hold true for M.M.C. and J.M.C. too, with regard to their father.

[149] With respect to A.C., the assessor stated, "[d]isrupting their relationship with their birth mother, however, will be more of a challenge for all of the children." In his cross-examination, Dr. Ashbourne stated it would be fair to say that for each of the children it would be a severe and traumatic experience for them to have their ties severed from their mother.

[150] The observations and opinions of the assessor regarding the effect domestic violence has had on A.C. and the children are consistent with the evidence admitted in this case. A.C.'s relationships with S.C. and W.C. devolved into ones of domestic violence with A.C. being abused in both. Her children were aware of the violence and all were adversely affected by it. In her current relationship with J.H., there has not been any evidence introduced at this hearing of A.C. experiencing the violence she did with S.C. and W.C.. The one incident reported to the police between A.C. and J.H. where there was conflict arose out of an excessive consumption of alcohol. However, it did not result in the physical and emotional violence A.C. experienced with her previous partners.

[151] The assessor provided placement recommendations in his report though not directed to in the parent capacity assessment order. Counsel for A.C. objected to these recommendations being considered. I did review them as they are related to the specific questions asked of him. One conclusion was that the children should not be placed with A.C. and S.C. as they could not provide the children with "…the living environment for the four children's optimal developments…"

15: BEST INTERESTS CONSIDERATIONS

[152] The Act, at s. 37(3), sets forth a number of considerations in determining best interests of the children.

[153] All four children have their individual needs as set out above. What all need is a plan that provides them with stability, safety and the opportunity to be loved and cared for. These children have been in care continuously for almost three years. Counsel did not explain why it took so long for the hearing of this case to be undertaken. The delay has not served these children well. They have had to live with the uncertainty of the placement for far too long.

[154] In June of 2012, M.M.C. and J.M.C. were placed with foster parents with a view to adopt. This placement broke down shortly before this hearing started.

[155] D.L.C. and D.S.C. were placed in a foster home with a view to have them adopted.

[156] All four children have bonded with their mother. She has exercised access faithfully. The access supervisors have noted that her access with the children is positive.

16: ASSESSMENT OF THE PLANS OF CARE

[157] I find that it is in the best interests of all four children that they be returned to the care of A.C. subject to terms of supervision for the following reasons.

[158] When determining whether an order of Crown wardship is an appropriate disposition, the issue is not whether the children will be better off with parents other than the natural parents. The issue is whether the children will receive a level of parenting care that is below the minimum standard tolerated by our community: See Sask. Minister of Social Services v. E.(S.) and Children's Aid Society of Toronto v. A.(N.) This is an important to bear in mind when assessing Dr. Ashbourne's conclusions and why his recommendation regarding placement is not being followed.

[159] Throughout her long involvement with the Society, A.C. has been able to meet their basic needs. She has maintained a suitable home. School attendance was not raised as an issue. Risk to the children arises from those factors set forth in finding the children being in need of protection.

[160] A.C. has demonstrated her willingness to have the children returned to her by attending access and making it a positive experience for the children. She has severed her relationship with W.C.. She has participated in anger management and domestic violence programs. She attended 22 domestic violence counselling sessions over an extended period of time ending April 2012. The sessions ended as it was stated that A.C. met her goals. A.C. remains able to have the children returned to her care in the home they resided in before the apprehension and where they have attended for access. I accept that A.C.'s mother is willing and able to provide support for her.

[161] The problems associated with A.C.'s plan of care can be dealt with through terms of supervision. I find A.C., as yet, does not sufficiently appreciate the effects domestic violence has had upon the children. A.C. does not appreciate that though they may not have been in the room where the violence occurred, they were in the home on many occasions and were aware of its happening. A.C., who is described as a bright woman and motivated to care for her children, can participate in counselling with her children to address this most important issue.

[162] W.C. is no longer a part of A.C.'s life. The relationship has been severed. Her new relationship is with J.H.. He does not have a relationship with the children and has not met them. Wisely, A.C. has not tried to have him participate in access visits to this point in time. In time, however, he can be introduced to the children in a positive way and lend some assistance to A.C..

[163] Alcohol consumption has led to problems in A.C.'s relationships and consequently has had adverse effects upon her ability to care for the children. She needs to abstain. Given her evidence that she does not drink excessively, there is no reason why she cannot choose to ensure she is able to meet the children's needs by abstaining from the consumption of alcohol.

[164] I have considered the fact the children have been out of A.C.'s care since October 28, 2010. This is a very long time for the children. However, the evidence does not disclose the children have lost their attachment with their mother or that they have so attached to their foster parents that the greater harm would be to remove them from those foster homes.

[165] While in the care of A.C., all four children will be together. This has not been the case nor will it be under the current foster care arrangements.

[166] I am satisfied A.C., with support including that of the Society, can meet the needs of the children that society expects of her.

[167] In R.(C.) v. Children's Aid Society of the District of Thunder Bay the court observed:

[2] It has been said that a judge is never confronted with a more serious issue than when the state seeks to take a person's life, her children, or her liberty in that order of priority.

[3] Now that capital punishment has been abolished:

"[18] A Crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T." per S.B. Sherr: Children's Aid Society of Toronto v. E.E.

[168] This is not a case where on the evidence the inevitable remedy - in the best interests of the children - is to permanently remove them from the care of their mother. In these circumstances, I find that a Crown wardship order even with some access would not be in the best interests of the four children.

17: ACCESS

[169] I find it is in the best interests of the children that their access with S.C. continue and that it be supervised. S.C.'s relationship with the children is one of a playmate as opposed to a parent. The supervised access he has had has been generally positive. He would benefit from parenting classes.

[170] S.C. does not have premises in which he can exercise access. Currently, he lives in an apartment with his grandmother and his evidence as testified was that he was moving north of London to share premises with two other persons. The evidence with respect to these premises does not satisfy me it would be an appropriate venue for access to take place. As the evidence of the parties is that S.C. and A.C. have a positive relationship at this time, access can continue in her home supervised by her and monitored by the Society.

18: ORDER

[171] For these reasons, an order shall issue as follows.

1) The children shall be placed in the care of A.C., subject to Society supervision for a period of 12 months upon the following terms and conditions:

(i) A.C. shall allow the society worker scheduled and unscheduled access to the home and children and shall allow the society worker to meet with the children privately;

(ii) A.C. shall not change the children's residence outside the County of Elgin without further order of the court;

(iii) A.C. shall ensure the Society is provided with up-to-date addresses and telephone numbers where she can be reached and shall notify the Society at least 14 days prior to any change of address or telephone number;

(iv) A.C. shall sign any and all release of information forms reasonably necessary to monitor the terms of the supervision order and plan of care;

(v) A.C. shall ensure that the children's basic needs are met at all times;

(vi) A.C. shall not keep or allow alcohol in her residence;

(vii) A.C. will not consume any alcohol while the children are in her care, or 24 hours before any period of time she resumes care of the children;

(viii) A.C. shall ensure that all babysitters or persons placed in a caregiving role to the children be pre-approved by the Society;

(ix) A.C. shall obtain Society pre-approval of all persons residing in her home, including J.H.;

(x) A.C. shall allow the children contact with J.H. only as approved by the Society. J.H. shall be introduced to the children gradually, leading to his attendance at A.C.'s home, on school week days from 7:30 a.m. until 9:00 a.m., while in the presence of A.C., to assist her in getting the children ready to go to school and between 5:00 p.m. and 8:00 p.m. in the presence of A.C. to help with dinner and evening routines – provided further, if there have been no incidents of abusive behaviour between them during the first four months of this supervision order, he may attend at other times as approved by the Society;

(xi) A.C. shall cooperate and ensure the attendance of herself and the children at any counselling deemed necessary by the Society and in particular counselling for her and the children to address the impact of domestic violence on her and on the children and their family and shall follow through with the recommendations made by such service providers. The Society shall provide assistance to A.C. and the children in securing an appropriate counsellor(s) and in transporting them to and from this counselling;

(xii) A.C. shall not expose the children to any domestic conflict;

(xiii) A.C. shall report any incidents of domestic violence between herself and her partner to the police and to the Society;

(xiv) A.C. will supervise all of the children, both inside and out of their home;

(xv) A.C. will not leave the children unattended inside or outside of their home;

(xvi) A.C. will meet all of the medical needs of the children;

(xvii) A.C. will meet the educational needs of the children, including understanding and responding appropriately to the unique learning disabilities of each child and will follow the recommendations of the children's school;

(xviii) A.C. shall ensure the children have no access with W.C.;

(xix) A.C. shall not physically discipline the children.

[172] S.C. shall have access with the children as arranged with the Society and all such access shall be supervised by A.C., or such other third party approved by the Society, and may be monitored by the Society. The location of the access shall be arranged by the Society, A.C. and S.C..

[173] W.C. shall not have any access with the children.

[174] As the children have been out of A.C.'s care since October 28, 2010, their transition back shall take place over a two to three week period. The transition should result in children being able to start school in the catchment area of A.C.'s residence.

[175] Should any of the supervision terms require clarification, arrangements may be made through the Trial Co-ordinator at St. Thomas for a telephone conference.

[176] For some time now, the Society's focus has been to plan for the children outside of the care of A.C.. I am confident the Society workers will act professionally and with compassion in supporting the successful return and reintegration of the children and that A.C. will avail herself of the help and support that will be provided.

Released: August 12, 2013

"original signed and released via e-mail"

Barry M. Tobin Justice