WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court File and Parties

Court File No.: Halton 596/11

Date: 2013-10-04

Ontario Court of Justice

Between:

CHILDREN'S AID SOCIETY, REGION OF HALTON

Applicant,

— AND —

J.O. (Mother), G.O. (Father), Y.A. (Father of J.A.)

Respondents

Before: Justice Sheilagh O'Connell

Heard on: April 22, 23, 24, 25, 26, 29, 30, June 10, 11, 12, 13, and June 21, 2013

Judgment released: October 4, 2013

Counsel:

• Vanessa Kaljaste for the applicant society
• William Sullivan for the respondent mother, J.O.
• G.O., respondent father, on his own behalf
• Peter Tensuda, John V. Grant for the Office of the Children's Lawyer, legal representatives for the children

O'CONNELL J.:

1. Introduction

[1] The issue to be determined in this trial is whether the children, J.A., K.O. and D.O. ("the children") should be found in need of protection pursuant to section 37(2)(a) or subclause 37(2)(a)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, ("the Act").

[2] The Children's Aid Society, Region of Halton, ("the society"), apprehended all three children on December 15, 2011 after the oldest child made disclosures to a society worker and to the Halton Regional Police regarding physical harm caused by the parents. The two younger children were subsequently interviewed by the police and also made disclosures of physical harm by the parents.

[3] On December 20, 2011, the society commenced a child protection application seeking a finding that the children are in need of protection and an order that the children be made wards of the society for a period of seven months.

[4] At this stage in the protection application, the court's role is strictly to determine whether the children are in need of protection. If the court does not find that the children are in need of protection, then they are immediately returned to the persons having charge of them prior to the society's intervention, in this case, the parents. If the court makes a finding that the children are in need of protection, then the court must make a disposition order in the children's best interests.

[5] The parties have agreed that if a protection finding is made, then the disposition hearing will take place at a later date. They have also agreed that the evidence in this trial can form part of the evidence at the disposition hearing.

[6] The children have not returned to their parents' care since the apprehension in December of 2011. The two younger children are currently in the same foster home, although they were placed in the homes of kinship caregivers proposed by the parents on two occasions. Both kinship care placements broke down and the two younger children returned to foster care in February of 2013. The oldest child, J.A. has remained in society care since his apprehension and is currently residing in a group home.

The Society's Position

[7] The society submits that all three children made disclosures of serious abuse perpetrated upon them by their parents which support a finding of protection. At no time since the children made their disclosures have the children recanted. The society submits that the children's disclosures are credible. Although the oldest child has been in trouble with the youth criminal justice system and had been occasionally untruthful, his credibility with respect to the disclosures has not been undermined and there is no evidence that he has influenced his younger siblings to make false disclosures.

[8] The children's lawyers, through the Office of the Children's Lawyer, support the society's request to find the children in need of protection.

The Parents' Position

[9] The parents vigorously deny causing any physical or emotional harm to their children and submit that their oldest child made false allegations of abuse against them and influenced the younger children. They request that the society's protection application be dismissed and that the two younger be immediately returned to their care. They are not seeking the return of their oldest child to their care.

[10] The parents submit that the oldest child is a child affected by years of separation between himself and his mother and his other family members in Canada. When he arrived in Canada from Ghana as a young teenager, behavioral problems arose almost immediately as a result of his difficulty integrating into the family. The parents submit that the oldest child fabricated allegations against them because of his escalating difficulties both at home and at school and because he knew that the parents were considering sending him back to Ghana. They further submit that he had been influencing the younger children prior to their apprehension, causing them to make false or mistaken disclosures to the police based on a misapprehension of their parents' actions towards them.

[11] The parents submit that there has been a "rush to judgment" in this case from the outset, leading to the society accepting the children's initial statements to the police at the beginning of their investigation as the truth without further investigating and assessing the quality of that information on an ongoing basis, particularly as new information came to light.

Background

[12] The children are J.A., born [….., 1996], K.O., born [……, 2001] and D.O., born […, 2005]. They are now 17, 11, and 8 years old.

[13] The respondent, J.O. is the biological mother of all three children. The respondent, G.O. is the biological father of the two younger children, and he has also acted as a father to J.A.

[14] G.O. is a trained pharmacist and a registered member of the Ontario College of Pharmacists, having trained in both Ghana and Canada. J.O. is a personal support worker, and received her college and university education in both Ghana and Canada. G.O. immigrated to Canada from Ghana in 1997 and J.O. immigrated to Canada from Ghana in 1998. They are now Canadian citizens.

[15] The parents met in Canada at their church. They married on February 13, 2000 in Mississauga, Ontario and the two younger children, K.O. and D.O., were born and raised in Canada. The younger children have always resided in Canada with their parents until they were apprehended.

[16] The oldest child, J.A., did not come to Canada until 2009, and was born and raised in Ghana for the first thirteen years of his life. The mother states that he is the child of a previous marriage. She planned to sponsor J.A. after her arrival. J.A. was two years old when the mother left Ghana and he was raised by his maternal grandmother until she died in 2004. After his grandmother passed away, J.A. was cared for by different family friends and relatives until he was eventually placed in a boarding school in Ghana. He resided at the boarding school during the week and stayed with family friends on weekends.

[17] The mother's sponsorship of J.A. was eventually approved and J.A. arrived in Canada on September 18, 2009, more than a decade after his mother had left Ghana. J.A. joined his mother, his step-father, and his two younger half-siblings in their home in Burlington. J.A. was 13 years old at the time. He started school almost immediately after arriving in Canada and was enrolled in grade eight at the local school that the two younger children also attended.

[18] Shortly before this the trial commenced, it was the society's understanding that J.A. did not know his biological father, Y.A., who apparently died in Ghana in 2003. However, J.A. disclosed to a society worker and testified in this trial that G.O., the respondent father of his two younger siblings, is actually his biological father as well. J.O. states that he was told by his parents to keep this as a family "secret". The respondent parents deny this and state that this is another example of J.A.'s lies. The society has requested that G.O. participate in paternity testing, but he has declined to do so until the conclusion of this trial.

Events Leading to Apprehension

[19] On December 14, 2011, J.A. came into the guidance area of his high school and spoke to one of the teachers, in her office with the door closed. He told her that he had been locked out his house the previous night and that he had spent the night in the garage. He reported that he had lied to his parents about skipping a class and his parents told him to get a note from the school confirming that he was in attendance. When he was not able to get a note, he was locked out of the house. He stated that he was cold and hungry and that his little brother tried to bring his something to eat. In the morning when he knocked on the door, the other children were told not to let him in and his little brother was reprimanded for trying to sneak some food to him.

[20] J.A. further disclosed that his mother hits him and beats him regularly with a belt, leaving belt marks, and that both parents threaten to send him back to Africa. He further disclosed that the two younger children are also punished. He described a form of punishment used on the two younger children in which ginger was placed on their genitals, causing pain. During this part of the interview, the vice-principal was also present.

[21] The school reported J.A.'s statements to the society and child protection worker Ms Christine De Miranda attended the school to interview J.A. on the same day. According to Ms De Miranda, J.A. made similar disclosures to her regarding being left in the garage all night, the beatings, and the use of ginger on the two younger children as a form of punishment. Ms De Miranda, in consultation with the society's on-call supervisor, decided to involve the Halton Regional Police Child Sexual Assault Unit and later that evening, J.A. was interviewed by the police. During the course of that interview, J.A. made further disclosures of all three children being subjected to physical and emotional abuse, including being forced to drink urine and not getting enough food to eat. After the interview was completed, J.A. was taken to a group home and the decision was made to attend the parents' home and to remove the two younger children immediately.

[22] Ms De Miranda and members of the Halton Regional Police attended at the respondents' home in the early hours of December 15, 2011, shortly after midnight. The mother was present with the children and the father arrived shortly afterwards, returning home from work. Ms De Miranda and the police removed the two younger children. The children were placed in a foster home that night.

[23] The next morning, two younger children were interviewed separately by the police and both made disclosures which corroborated J.A.'s disclosures the day before, including the use of ginger as a form of punishment in their anal area, the use of a belt to hit J.A, and that J.A. had to sleep in the garage.

[24] As a result of these interviews, all three children remained in the care of the society and a protection application was commenced. On December 19, 2011, Honourable Madam Justice Roselyn Zisman made a temporary without prejudice order placing all three children in the care and custody of the society. On December 23, 2011, the children were examined individually by the SCAN (Suspected Child Abuse and Neglect) team at the Hospital for Sick Children on December 23, 2011. The examinations and reports were inconclusive that the children had experienced physical abuse.

[25] On December 19, 2011, based on the children's statements to the police and the society worker, the mother was charged by the Halton Regional Police Service with:

• seven counts of assault with a weapon
• two counts of Assault
• one count of failing to provide the necessities of life
• one count of administering a noxious substance
• one count of sexual assault with a weapon

[26] The father was also charged by the Halton Regional Police Service at the same time with the following charges:

• one count of assault
• one count of failing to provide the necessities of life
• one count of administering a noxious substance
• one count of uttering threats

[27] The parents were released on an undertaking given to a police officer on December 19, 2011. The terms of the undertaking prohibited the parents from communicating directly or indirectly with the children. There were none of the usual exceptions, such as "except in accordance with a family court order made after the date of the undertaking", or "except in the presence of a children's aid worker". On February 22, 2012, with the consent of the Crown, the undertaking was varied to provide that there be no direct or indirect communication with the children, "except in the presence of a CAS worker at a supervised CAS site."

[28] On March 8, 2012, pursuant to an Order of the Justice Zisman, the parents were granted temporary supervised access to all three children, to be exercised in the presence of a member of Children's Aid Society.

[29] The supervised access between the parents and the two younger children has continued since that court order, however, the parents have not exercised access to the oldest child, J.A. since May of 2012, with the exception of one brief visit in February of 2013 when J.A. was hospitalised.

[30] The preliminary inquiry regarding the criminal charges against the parents took place on January 15, 16, 17 and 18, 2013. All three children testified at the preliminary inquiry. The parents were committed to trial after the preliminary hearing on all charges, with the exception of the sexual assault with a weapon charge. The criminal trial is scheduled to proceed in October of 2013.

[31] This matter was scheduled to proceed to trial in February of 2013. However, counsel brought an application to adjourn the trial to the April sittings so that the transcripts of the preliminary hearing could be made available in this trial. As all counsel consented, and the children's evidence is crucial, the court granted the request for the adjournment.

The Law

[32] The society seeks a finding that the child is in need of protection pursuant to clause 37(2)(a)(ii) of the Act. This section reads as follows:

"37(2)(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,

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;" [Emphasis added.]

[33] The provision that "the child has suffered physical harm inflicted by the person having charge of the child" in Section 37(2)(a) is a distinct ground from that of section 37(2)(a)(ii) in which the physical harm is caused by or resulting from the person's "pattern of neglect in caring for, supervising or protecting a child." Both can give rise to a finding that the child is in need of protection. See Children's Aid Society of Algoma v. C.A., [2003] O.J. No. 5526 at paragraph 13.

[34] The society has the onus, on a balance of probabilities, to establish that the children have suffered physical harm. The standard of proof is the ordinary civil standard of balance of probabilities.

[35] It is not necessary for the society to prove an intention to cause the children harm before finding that the children are in need of protection. Physical harm caused by neglect or an error in judgment is still physical harm. However, where the finding of protection is alleged under section 37(2)(a)(ii), the actual physical harm must not be trifling. See Children's Aid Society of Niagara Region v. T.P. and R.G., [2003] O.J. No. 412, 35 R.F.L. (5th) 290, 120 A.C.W.S. (3d) 452.

[36] Inappropriate physical discipline of children can lead to a finding of physical harm or to a finding of a risk of physical harm or emotional harm. See Children's Aid Society of Toronto v. L.E., [2012] O.J. No. 3770; Children's Aid Society of Toronto v. D.M., [2009] O.J. No. 6406; Catholic Children's Aid Society of Toronto v. S.B., [2012] O.J. No. 4160.

[37] The use of physical discipline was discussed by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76. Although a criminal case, the court's comments about the use of physical discipline are applicable in child protection proceedings. The court states the following at paragraph 37:

"Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue .. Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable." [Emphasis added]

The Evidence

[38] In this trial, I heard evidence from society workers, the parents, the family doctor, family friends, school teachers, and the parents' church pastors and community members. In total, eighteen witnesses were called over a period of ten days.

[39] I also heard direct evidence from the children in this trial. Following a contested pre-trial motion on April 5, 2013, I ruled that the children shall be made available to be cross-examined on the transcripts from the preliminary hearing in the criminal proceedings against the parents, subject to the following safeguards:

1. The cross-examination of the children shall take place by way of closed circuit television, pursuant to section 18 of the Ontario Evidence Act;

2. A protective or support person shall be present with the children throughout their testimony pursuant to section 18 of the Ontario Evidence Act;

3. The mother and father shall not be permitted to directly cross-examine the children. All cross-examination of the children on behalf of both parents shall be conducted by the mother's lawyer, Mr. Sullivan.

[40] The society's case relies entirely on the children's statements to third parties and their evidence in this trial. There was no medical or eyewitness evidence corroborating the children's disclosures of physical harm by their parents. The SCAN reports, which were filed as exhibits in these proceedings, noted that there were multiple areas of scarring to multiple surfaces of the oldest child's body, and some scars and marks on the younger children. However, these scars and markings were not, in and of themselves, specific or conclusive that physical abuse had occurred.

[41] I had the opportunity to observe the videotaped interviews of all three children by the police after they were apprehended by the society. I also carefully reviewed the transcripts of those interviews. The children were also cross-examined by three different lawyers on their statements to the police: each of the parents' defence counsel at the preliminary hearing and the mother's counsel in this child protection hearing. I had the opportunity to read the transcripts of the children's cross-examination at the preliminary hearing. I also directly observed the children being cross-examined in this trial by the mother's counsel, on behalf of both parents.

The Police Interviews

[42] As noted earlier, all three children were interviewed separately by police on two different days. All three interviews were videotaped at the police station. The transcripts and videotapes were entered as exhibits in this trial.

J.A.'s Interview

[43] J.A. was interviewed by Detective Constable Derek Golba on the evening of December 14, 2011 at approximately 7:30 p.m. The interview was approximately two and one half hours in length. Detective Golba's partner, Detective Pritpal Nagra, and Ms De Miranda, observed the interview in a separate room through closed circuit television. At the time of the interview, J.A. was 15 years old.

[44] Detective Golba conducted the interview in civilian clothes. He explained that the interview was being recorded and that they were being observed. The officer explained the importance of telling the truth and presented in a sympathetic and reassuring manner. J.A. did not appear nervous and presented as quite talkative and comfortable with the officer. He was very articulate and appeared very intelligent. He was polite and cooperative. He clearly understood the questions being asked. He did not get emotional or tearful during the interview. At times, he looked very tired.

[45] Detective Golba started the interview by asking a number of questions about J.A's background and growing up in Ghana. J.A. described being raised by his grandmother until she died and then being cared for by a number of different caregivers, friends and family of his mother, changing schools frequently, until he was placed in a boarding school in Ghana. J.A stated that his parents had worked hard for a long time to get his papers to come to Canada and that they had spent a lot of money to get him to Canada. He stated that his mother would send food and clothing to him through friends travelling to Ghana. He remembered the exact date of his arrival in Canada. He stated that he arrived in Canada on Saturday September 18, 2009 and started school on the following Monday because he wanted to see what Canadian school was like. J.A. stated that he liked living in Canada.

[46] J.A. told the officer that he did not know his biological father and that G.O. was his step-father. He stated that although he had not met G.O. or his half-siblings before arriving in Canada, he spoke to them regularly on the telephone from Ghana.

[47] J.A. told the officer that because his mother struggled so much to get him to Canada, once he arrived, any small thing that he did wrong was a problem. He stated that although his relationship was good when he first arrived, it started to deteriorate quickly. He described a number of demands on him to do chores and look after the younger children as his parents left for work very early in the morning. He stated that his father worked very long hours and often did not get home until late. He made the following disclosures against his mother primarily, and both parents:

1. His mother beats him with a belt, a broomstick, her hands, her fists, a hanger, broom or comb when she is very angry with him;

2. Both parents beat him with a belt regularly causing physical scarring on his arms and body, which he showed the police officer. J.A. had a number of different marks and scars on his body which he stated were from his parents' beatings. He described one beating by his father with a belt and buckle for failing to hand in a school assignment, He stated that he was bleeding very heavily and now had a very large scar on his arm, which he showed to the police officer. He did not receive medical treatment for the wound.

3. His mother also beats his brother and sister with a belt and his father hits them and also uses a belt;

4. His mother grinds ginger and then puts it into his brother's bum and his sister's "private part" as a form of punishment. J.A. hears his brother and sister scream and ask her to stop. He also stated that he has seen his mother do this. When asked specifically by the officer is his mother was doing this for medicinal purposes, J.A. stated no and described it as a form of punishment. He stated that his mother will then tell his brother or sister to sit down and close their legs because it hurts more. She does not let them poo the ginger out right away. He recalled one incident approximately one month before the police interview in which his mother was angry at his sister for writing on the wall and used the ginger on her to punish her. J.A. stated that his mother never used the ginger on him, but when he was in Ghana, his grandmother did it to him once. He stated that ginger is used on children if they do bad stuff as a form of punishment in Ghana.

5. When his parents are really mad at him and they do not want to see him, they lock him outside and he stays in the garage. He is not allowed back into the house. His younger siblings check on him and try to give him food. The longest time that he was locked out was in the summer for approximately three days. This was the first time that it happened in the winter and he was very cold and felt numb. Usually, his father will let him back into the house when he gets home from work, but on this occasion he did not. He tried to sleep in his parents' car during the night. In the morning, he tried to get his little brother to open the door for him and give him his shoes. His feet felt numb when he was walking to school.

6. When his parents kick him out into the garage, if he needs to go to the washroom, he sometimes pees in a plastic water bottle, as he cannot use the toilet. His little brother discovered this and tried to copy him by also peeing in a bottle, and then hid the bottle in the basement. When discovered by his mother, his father called J.A. to the basement, confronted him and forced him to drink his brother's urine as punishment for causing his brother to copy him. His father threatened to beat him with a belt if he did not drink his brother's urine.

7. J.A. described an incident in which he states that his mother deliberately hit his head into a glass kitchen cabinet so hard, she caused the glass to crack, and his head to bleed;

8. J.A. stated that his mother and father have repeatedly told him that they were going to send him back to Ghana because he is being bad in Canada. J.A. stated that he did not want to go back to Ghana.

9. J.A. stated that he wished that he could live at home but not with what has been happening.

10. J.A. admitted to stealing an iPod from the home of his parents' friends shortly after arriving in Canada and admitted to lying to his parents about skipping class to study for a math test on the day before he was locked out of the house and spent the night in the garage.

K.O.'s Interview

[48] K.O was interviewed on December 15, 2011, by Detective Constable Pritpal Nagra. She was ten years old at the time. This interview was also conducted at the police station and started at approximately 12:55 p.m. It lasted approximately one and hour and forty minutes, with one five minute break.

[49] K.O. appeared quiet and apprehensive. At times, she became tearful and early on in the interview, she began to cry and stated that she missed her mother. She also became tearful when describing some of the incidents that occurred in the home. K.O. also presented as a very intelligent and articulate child, particularly for a child of her age. She had an excellent memory and clearly understood the questions that were asked. She explained the difference between a truth and a lie when asked by the officer. Even though she was apprehensive, she was polite and responsive throughout the interview.

[50] K.O. stated that her parents gave J.A. a party to welcome her older brother to Canada. It appeared to be an exciting time for the family. When asked to describe how things were at home, K.O. stated that sometimes J.A. does not do what he is supposed to do, and her mother gets really mad. She stated that J.A. sometimes lies and that "he likes lying a lot." She stated that J.A.'s school will call because he did not attend school or a school period and then would lie to their father about it when he came home. K.O. stated that J.A. stole someone's iPod in school shortly after he arrived and her parents started to get mad at him. She also stated that her mother thinks that J.A. is stealing money from her purse, so she had to put a lock on her door. When asked if there was anything else in going on in the house that is making her sad, she responded, "just my brother."

[51] However, later on in the interview, when asked a number of questions, K.O. made the following statements about her parents:

1. Sometimes if they do something really bad, she and her little brother get a spanking on the bum from her mother, not too much from her father. Her mother is mad when she is spanking her but then she "cools down". When her mother is finished spanking, she sends her to the basement. K.O. stated that she gets spanked about five times a week and that it hurts.

2. When asked how it makes her feel when her mother spanks her on the bum, K.O. started to cry and stated that she feels it was her fault because she wasn't doing what she was supposed to be doing.

3. Her father sometimes spanks her, but not that much and he "always cools down [her] mom;"

4. Her younger brother also gets spanked on the bum about ten times a month when he does something wrong;

5. Her father spanks her older brother because he knows better and he's the oldest. They also hit him on other parts of his body, like his legs or his thighs. She stated that she knew the difference between spanking and hitting, and explained that spanking was just on the bum but hitting was on different parts of the body like the back or the legs and thighs;

6. When asked how the hitting is done on her older brother, K.O. stated that her parents use their hands or a belt. K.O. started to cry at this point and stated the following, "my mom said that she would forget about him and shouldn't have brought him to Canada because he was actually bad, and I personally think that he is really mean to us, because when he came to Canada he was supposed to help us, but he never did." When asked how he was supposed to help them, K.O. explained that her mother was about to start work and she wanted J.A. to take care of her and her little brother, but he did not do this which upset her mother.

7. Her mother uses a leather belt to hit J.A. She will ask K.O. to go upstairs and get her the belt and bring it down when she is mad at J.A. Her mother would hit J.A. with the belt when she asks him a question and he does not answer her. K.O. described her mother holding the belt by the buckle and wrapping it around her hand and then demonstrated bringing her arm over her head and then hitting J.A. on the back and the thighs with the belt on more than one occasion.

8. After her mother finishes hitting J.A. with the belt, she tells him to "leave her presence".

9. Sometimes when her parents are really mad at her older brother, they tell him to just leave the house. Her brother would leave and sometimes go into the garage. In the summer, he left the house but did not stay in the garage. He was gone for three days and her father and her Uncle Kweku went looking for him.

10. K.O. recalled an incident in which J.A. stole money from his mother and that he got "beaten" for this and another incident where J.A. took CDs from the library and the father had slapped him and was really mad and told him to go to the garage.

11. The last time she saw her mother hit J.A. with a belt was at least a month ago because her mother said she "had enough of him" so she's just going "to forget about him".

12. Her brother stayed in the garage on the Monday night [before the apprehension]. When her mother went to the gym that evening, her little brother brought some food out for J.A. in the garage and they both brought him a blanket. They did not see him at all yesterday night.

13. She did not think that her mother was going to do anything else to J.A. because for the past few months her mother just forgets about him and doesn't even talk to him.

14. She knows her older brother pees in a bottle and her dad gets really mad about that. They found the bottle in the garage. She does not know why her brother pees in a bottle. Her parents made J.A. drink his own pee for peeing in the bottle. However, K.O. later stated that J.A. told her this, she did not see this directly. There was a second incident where she found pee in a bottle in the garage and when her father found out, he said that he "was going to make J.A. drink that pee too" but she had already dumped it out. This is why she believes it to be true.

15. In response to a question about how the glass was broken in the kitchen cabinet, K.O. stated that her mother accidentally hit J.O.'s head against the glass. She did not believe that was deliberate because her mother was not mad at him at the time, she was cooking and she turned around and her brother's head hit the cabinet.

[52] Office Nagra asked K.O. if there was anything else her parents do to her that makes her feel uncomfortable and K.O. responded "nothing." Shortly after that, the officer asked K.O. if she knew what a ginger root is. When K.O. said tentatively yes, the officer then asked her to tell him what happened with the ginger root. At this point in the interview, K.O. completely broke down and became very distraught. She started to cry and stated, "Oh my God J.. Why do you have to do this? Why do you have to separate our family like this?" K.O. was referring to her older brother in that statement.

[53] K.O. then made the following disclosures about the use of ginger root by her mother:

1. When her mom gets mad, she places the ginger root in their bum to make them feel the way their mother feels when they do something bad. It started when K.O was about seven years old.

2. Her mother will mash the ginger root and place it in their bum and then they have to go sit in a corner.

3. Her mother will do this when they so something bad, like not finishing homework, taking something without asking, or lying.

4. Her mother uses the ginger root as punishment at least once or twice a month. The last time that she used it on K.O. was when her mother thought that K.O. had written on newly painted walls. K.O. denied doing this and said that the writing had been there before, but her mother got mad and put the ginger in her bum.

5. Her mother does not say anything after she tells her that she is getting ginger in her bum. She takes K.O to the bathroom and tells her to pull down her pants and bend over and then puts the ginger in her bum, and then tells her to go and sit in the corner until she is allowed to poo it out.

6. K.O. stated that it makes her sad when her mother does this and she has questioned whether there was "an alternative way to do this". In a follow up question, K.O. clarified that she meant an "alternative way to punish me." She stated that it feels really spicy in her bum.

7. Her mother only does this to her and her little brother, not her older brother. The last time that she did this to her little brother was when he put orange marker on something in the house.

D.O.'s Interview

[54] D.O. was interviewed on December 15, 2011 at approximately 2:50 p.m. He was six years old. The interview lasted approximately one hour, with no breaks. D.O. looked ill during the interview. He was clearly not feeling well and was lying down on the couch in the interview room. He expressed feeling cold. He appeared apprehensive. D.O. also presented as a very intelligent child. He was articulate and responsive to the questions asked, despite obviously not feeling well. He clearly understood the difference between the truth and a lie. His answers for the most part were short and concise.

[55] When asked who he lives with at home, D.O. responded, "with my mom, my dad, and my sister." When Officer Nagra then asked if there was anybody else, D.O. replied, "That's it. There's my brother, but my brother was in the garage."

[56] Officer Nagra asked D.O. if his Mom ever got mad at him. D.O. responded yes. Officer Nagra asked D.O. what does his mother do, D.O. made the following disclosures:

1. Sometimes his mother hits him with the "hair part" of "a blue broom.. a long one" on his waist. His mother does this when he does not do what she says. She hits him "probably five times" and it makes him feel sad. When asked, "Does it hurt?", D.O. said "Yes."

2. Sometimes his mother "spanks" him on the bum with her hands. This makes him feel sad and mad and he cries. When asked, "Does it hurt?" D.O. said "Yes."

3. Sometimes his Mom "spanks" him "on the cheeks." When asked what kind of spank, D.O. responded "a soft spank."

4. Sometimes his Dad spanks him. Every time he spanks him, he only spanks him once and "hits [him] hard". When his Dad does this, sometimes his Dad says, 'you won't make it in life'.

5. When his Dad is mad at his brother, he does not hit him, he just talks to him.

6. He has seen his Mom get mad at his big brother when his Mom thought that he stole money from her and stole an iPod. When she is angry she says that they are going to take him back to Ghana.

7. Sometimes "she takes him out of the house and she says…wherever you're gonna live, go live there. Go, go ask the police and, you can go in the foster home."

8. Sometimes his older brother "doesn't go-he doesn't leave and he stays in the garage.

9. Before this police interview, he had not seen his brother for two days.

10. Sometimes his brother asks him to open the door for him but "my Mom said if we open the door for him we"ll -- we will stay outside too."

11. When asked which door, D.O. said "the garage door" because sometimes his big brother is in the garage.

12. Sometimes "[J.A.'s] hungry, and I eat my food and sometimes when I'm full then I give the rest to him."

13. Sometimes "[J.A.'s] really thirsty so I gets- so I get him water." Sometimes his brother is still hungry "so I just give him my sandwich for school, 'cause I don't like it."

14. In response to the question, "do you know what a ginger root is?", D.O. said, "Yes." In response to the question, "what can you tell me about that?", D.O. stated that. "Sometimes she gets mad at us and she- sometimes she puts it in our bum." When asked who, D.O. stated his Mom.

15. His Mom only uses ginger root on he and his sister, not his older brother.

16. D.O. stated that his mother does it when she gets mad at him and his sister. She has done it about ten times to him.

17. The last time it happened was when his mother thought that he had written on the wall and his Mom got mad at him.

18. When asked how his mother did this, D.O. explained that he and his mother go into the washroom, then he kneels down and pulls down his pants and underwear and she puts the ginger root in his bum.

19. Sometimes, if he and his sister do not take off their shorts or pants, his mother starts hitting them on the back.

20. D.O stated that he feels "sad and mad" when his mother puts ginger in his bum, that it hurts, and it makes him cry. He tells his mother that, "I won't do it again" when she is doing it, but "she says I'll keep on doing it."

21. D.O. stated that sometimes when you stand up, it does not hurt, so his mother makes him makes him sit on the floor "criss-cross apple sauce" because it hurts more [cross-legged as demonstrated in the video]. He states that he needs to "poo" to make the ginger come out.

22. When asked about peeing in a bottle, D.O. explained that his brother pees in a bottle when he needs to go pee at night and then he dumps the pee in the toilet the next morning. D.O. denied peeing in a bottle himself and stated that his parents got mad at J.A. for peeing in a bottle.

23. In response to a question about the glass cabinet incident, D.O. stated that his mother thought that J.A. had eaten the stew and he saw his mother push J.A. back causing his head to hit the glass cabinet.

The Children's Evidence at the Preliminary Hearing

[57] The children testified at the preliminary hearing. Transcripts of their evidence were filed as exhibits in this proceeding and the children were cross-examined on those transcripts in this trial. The children did not recant any of their disclosures under cross-examination at the preliminary hearing. There disclosures were consistent with what they had told the police during their interviews, despite being cross-examined by two separate defence counsel.

[58] J.A.'s cross-examination at the preliminary hearing by two defence counsel was very thorough and lengthy. He was cross-examined for two days. Defence counsel spent a considerable amount of time going through J.A.'s history of lying, stealing and behavioural problems.

[59] In carefully reviewing the transcripts, in my view, J.A. withstood cross-examination well, particularly for a young witness over such a lengthy period of time. His evidence regarding being beaten by a belt and other objects, being forced to stay in the garage overnight, the events leading to the apprehension and being forced to drink pee did not waver, despite a vigorous cross-examination. In response to questions about his history of lying to his parents, J.A. testified that he understood that he lied, but that he also understood that the fact that he lied to his parents is not cause for them to beat him.

[60] J.A. adamantly disagreed with the suggestions from defence counsel that his mother had never hit him with a belt, but rather hit the table beside him with the belt as a form of discipline. J.A. testified that his mother got the belt to beat him and that sometimes she would use the buckle end when she was really mad at him.

[61] J.A. admitted that in addition to 'peeing' in a bottle while he was in the garage overnight, he has also done this in his bedroom at night because he was too "lazy or tired" to go to the bathroom, and that he will then discard the urine in the toilet the next morning. He was adamant that when his father discovered the pee in the bottle, he was forced to drink it or get a beating. He also did not waver from his testimony that he was forced to sleep in the garage when his parents ordered him out of the home and that if he attempted to return, he would be beaten.

[62] There were some concerns with J.A.s evidence at the preliminary hearing. He denied telling his teachers at school that an accidental burn injury on his arm had been deliberately caused by his mother. It is not disputed that this injury was caused by a cooking incident at J.A.'s group home after he had been apprehended. His refused to acknowledge that he had lied to people at school about the cause of the injury. His evidence was contradicted by another witness at the preliminary hearing (a school teacher) who testified that J.A. told her and other school teachers that his mother had caused the injury, even though this could not have been true.

[63] K.O.'s cross-examination at the preliminary hearing was also thorough. In reviewing the transcripts, it is clear that she withstood cross-examination well. Her evidence was consistent with her statements in the police interview. In response to a number of different and leading questions about the use of ginger root to treat constipation, K.O. was consistent that the ginger root was used by her mother for punishment.

[64] In response to further suggestion by defence counsel at the preliminary hearing that her older brother was the one that told her that ginger root was used for punishment, the following exchange occurred:

"Q: K., I'm suggesting to you that J. is the one who told you that the ginger root is a, a punishment.

A: You're wrong.

Q: I'm wrong, okay.

A: Because…

Q: Yes?

A: …because when my mom, when she puts , when she says K. I'm going to put ginger in your bum, it's always for something that I've done wrong, and she says it, not my big brother.

Q: Okay. Then why, when the ginger root was first mentioned to you by the officer, did you have a, a, a, a, comment about, oh J., why are you tearing our family apart?

A: Because I was really sad and frustrated at that time. I really wanted to see my parents, so I just - maybe there would be someone who to blame. But in the end, there is no one. There is no one to blame.

Q: Okay. Have you talked to the, to, about this to other people, K.?

A: Yes.

Q: The…

A: Yes.

Q: …Children's aid workers and the kin parents and other people?

A: Yeah.

Q: Okay, all right. I'm going to suggest – I'm going to ask you, K., when back in 2011 and before that, you occasionally had problems with constipation, isn't' that correct?

A: No.

Q: No?

A: No.

Q: So if it says in some, the notes from the Children's Aid that you did suffer from occasional constipation, that's not true?

A: No, that, that wasn't me, that was my little brother.

Q: Well, I believe it was both of you, actually, had a problem with constipation.

A: No.

Q: No, okay. So if I suggest to you, that the reasons why your mom gave you ginger root the way she did was because you were suffering from constipation. It had nothing to do with you doing something wrong,…

A: No.

Q: …what would you have to say to that?

A: It was for, it was for punishment.

Q: And J. never told you that, that this was for punishment?

A: J. never told me, pardon?

Q: He never told you that this ginger root was for punishment?

A: No, he never told me that this was for punishment. No, yeah, he never told me that this was for punishment.

Q: He never told you that, all right. Okay. And I understand here, you've - let's go back to the - all right. So, so with respect to the ginger root, before I close off that area, you're telling me that you understood it to be a punishment?

A: Yes."

[65] D.O.'s cross-examination at the preliminary hearing was not lengthy. He was seven years old at the time. In reviewing the transcript, it appeared that at times, he appeared distracted and confused by the numerous questions put to him by defence counsel.

[66] However, he did not recant any of his previous disclosures to the police regarding his mother using a broom to hit him, his mother putting ginger root in his bum, or J.A. being locked in the garage. When asked if the ginger root was being used to treat constipation, D.O. did not know. When asked about the incident when J.A. was pushed and his head hit the glass cabinet, D.O. was less certain if his mother had pushed J.A. deliberately.

The Children's Evidence in This Trial

[67] In this trial, each child was examined and cross-examined separately while sitting in another room with a support person. They were observed through a closed circuit television. The children could see the lawyers examining them and the judge, but not their parents. Their voices could be heard clearly and they could be seen clearly. They each had a copy of the transcript of their evidence during the preliminary hearing.

[68] The lawyer for the mother cross-examined the children on behalf of both parents. He used a calm, non-aggressive, but firm style of questioning. He asked both leading and open-ended questions and was sometimes repetitive, until cautioned. He attempted to establish a relationship with all three children at the beginning of the examination. He discussed the importance of telling the truth with the children and established that they all understood the concept of truth and the importance of telling the truth. His cross-examination of all three children was very thorough.

[69] In this trial, J.A. was polite, cooperative and articulate during his examination and cross-examination. He appeared comfortable when answering the questions for the most part and did not appear upset, except on one occasion when he asked for a break. He withstood cross-examination well and did not get angry or hostile when confronted with difficult issues.

[70] J.A. testified that his parents had very high expectations for him, they spent a lot of money to get him to Canada and they were disappointed in him because he was not meeting their expectations. He testified that when things deteriorated, his mother was always mad at him and beat him often. He described one beating as "the bloody beat" in which he believed that his mother was beating him for thirty minutes causing him to bleed, which is what he had testified in the preliminary hearing, and what he told the police during his interview. He testified that his mother would beat him with anything that she could find.

[71] J.A. testified that while living in Ghana his grandmother, his uncle and other adults used a belt to hit him as discipline as well. He testified that when his parents did it here, it seemed normal to him. When asked why he then asked for help and reported what was happening to his teacher and the police, he testified that because "back home, if anything was wrong, they never kicked me out of the house. This did not seem normal to me." He testified that he was really cold when he was kicked out in December, it felt much worse than the time that he had been kicked out in the summer and it was more serious. He stated that he felt sad and angry and that he had to do something because he did not want to sleep in the garage another night.

[72] During his cross-examination in this trial, J.A. candidly admitted that he sometimes has a difficult time telling the truth. He recalled being questioned during the preliminary inquiry about a burn mark that he received while in foster care in which he apparently told people at school was caused by his mother. J.A. acknowledged receiving an accidental burn in the group home but initially denied lying about this to the child protection workers or to people at school. When pressed by mother's counsel, J.A. testified that he did not recall telling people at school that his mother had burned him over the Christmas holidays.

[73] J.A. stated that he lied to immigration officials and to the police during his interview when he stated that G.O. was his step-father. For the first time in this trial, he testified that G.O. is actually his biological father and that he was always told to say otherwise for immigration purposes. He testified that he was "one hundred percent" certain that G.O. was his biological father and that he was willing to undergo paternity testing.

[74] In this trial, J.A. was cross-examined at length about his history of lying and stealing, and the behavioural issues that he experienced at home and while in society care. He was also cross-examined at length about his involvement with the youth criminal justice system.

[75] J.A. admitted to stealing an iPhone from a friend while living with his parents. He admitted to stealing a cinnamon bun from the school cafeteria. He admitted to taking DVDs from the public library without using his library card and being subsequently banned from the library. Since coming into care, he admitted to being in conflict with the youth criminal justice system. He has been charged with possession of stolen property, forcible confinement (of a staff member in his group home). He has admitted to using marijuana since coming into care while being at the group home. He admitted to needing treatment. He admitted to taking an IPod that he found from a friend at school. He denied stealing it, but instead said that he "found it and took it", leading to a possession of stolen property charge. He denied forcibly confining the staff member and said that she over-reacted and exaggerated to the police.

[76] J.A. testified that he was extremely unhappy in the group home and that he would rather be at home than in the group home. He admitted that he threatened not to say anything at the preliminary inquiry unless he was placed in a foster home. He denied threatening to lie under oath to go back home in order to get out of the group home.

[77] When asked if he had contact with any of his old friends from high school, J.A. initially denied having any contact with them. However, when mother's counsel suggested that one of his former friends would be giving evidence at this trial to the contrary, J.A. changed his evidence and testified that he recalled having some Facebook contact over the past week before the trial.

[78] J.A. did not recant any of his disclosures to the police during his cross-examination in this trial. His evidence that he was forced to stay in the garage over night because he was not allowed into the home, about being beaten with a belt by his mother was consistent with his previous testimony at the preliminary hearing and his statements to the police. He was not shaken in cross-examination in these areas.

[79] K.O. was quiet and reserved during her examination. She listened carefully. She was composed and did not appear apprehensive, however, at one point she became tearful. She answered the questions put to her in an intelligent, logical and coherent manner.

[80] K.O. testified for the first time in this trial that her parents hit her with a belt and that her mother sometimes hit her back, arms and legs with the belt. She did not know why she did not tell the police officer about the use of a belt when pressed by mother's counsel during cross-examination. She said that there were red marks on her body that would last for one or two days. She disagreed with mother's counsel when he suggested that the marks would be seen by her teachers at school and when pressed, she testified that she did not know why she did not tell anyone at school.

[81] K.O. also testified that on a scale of one to ten, with ten being the most painful, the ginger root would hurt between "six and eight", depending on how much her mother used. She testified that she would tell her mother that it would hurt and that her mother would not respond.

[82] K.O. testified in cross-examination that she did not see J.A. or speak to him the morning or day before she was apprehended. She further testified that she had never seen his videotaped statement to the police or the transcript or his evidence in the preliminary hearing, nor has anyone told her about the contents.

[83] K.O. also testified that the incident involving the glass cabinet was an accident. She did not believe that her mother deliberately smashed J.A.'s head into the glass. She testified that J.A. had told her that this is what happened, but she believed that it was an accident.

[84] K.O. further testified that she recalled an occasion having a discussion with her older brother about what was happening in the home and that J.A. had said to her that "when stuff like this happens, children usually go into foster homes." She recalled talking about this on one occasion, although when pressed by mother's counsel in cross-examination, she said, "maybe twice". She further recalled that J.A. had watched a show on CNN with Anderson Cooper about a girl who had been beaten with a belt by her father. She recalled that J.A had discussed this show with her and that he thought the girl was exaggerating and that he got "worse than that."

[85] K.O. testified about J.A's history of stealing. She testified that he stole someone' IPod at school after he first arrived in Canada. She also testified about the incident when J.A. took a DVD from the public library and put it in his binder without checking it out. She testified that her father was really mad at her brother (her mother was away). K.O. became tearful at this point, particularly when pressed by mother's counsel about why she did not tell her father and whether J.A had told her not to tell her father. She recalled that the library had sent a letter to the home banning J.A. from the library.

[86] K.O. testified that she recalled her older brother coming to her room only on one occasion to talk. When pressed in cross-examination, she remained consistent that this only happened once and that she recalled that her mother did not want J.A. coming into her room. She testified that her mother told her to tell her if this occurred again and that her mother put a lock on her door.

[87] K.O. disagreed with the suggestions by mother's counsel in cross-examination that it was a "running joke" in the family started by J.A. that if the children did not eat everything on their plate, then J.A. said that they would "get ginger". She thought that she recalled some discussion at one dinner about ginger, but not that it was a 'running joke'.

[88] During this trial, when asked in cross-examination about why she broke down and said "Oh my God, J. why do you have to do this?" in response to the question by the police officer about ginger root, K.O. once again testified, as she did in the preliminary hearing, that she did not want to talk about the ginger root to the police. J.A. was the one who told the police officer and she blamed J.A. "because he was the one who told the police about what was happening in our family."

[89] D.A. also testified in this trial for the first time that his mother hit him with a belt on his arm. He could not remember how many times or whether she hit him anywhere else. He could not remember if this father had hit him with anything. He did not have a clear recollection of a number of incidents. He recalled the library incident when his brother took some DVDs and blamed it on him. He admitted to peeing on the carpet in his bedroom. He did not recant any of his disclosures.

[90] D.A. acknowledged in cross-examination that sometimes he gets stomach cramps when he eats homemade donuts prepared by his mother called "Bofro" because he likes them and he eats a lot of them. However, despite repeated suggestions by mother's counsel in cross-examination, D.A. testified that his mother has never given him ginger to treat his stomach cramps. D.A. also testified that he has never run away when his mother has given him "Pepto Bismol", when it was suggested by mother's counsel that he would not take the Pepto Bismol.

[91] In further cross-examination, when mother's counsel attempted to suggest that D.A.'s older brother was telling him about going to the police and getting a foster home, D.A. disagreed. When asked directly by mother's counsel where D.A. heard the information about going to the police as they will give you a place to sleep and a foster, home D.A. testified that his mother said this to his older brother. He heard her say this to his older brother in the living room of the family home because his older brother did something bad.

[92] D.A. denied being afraid of his older brother or that he felt threatened by him in any way. He did not remember any time when his older brother allegedly choked him. In response to a number of questions suggesting inappropriate sexual activity between the brothers initiated by J.A., D.O. presented as confused and initially testified that J.A. touched his penis, but then denied that this happened.

The Society's Witnesses

Christina De Miranda

[93] Ms De Miranda has been a child protection worker with the Halton Children's Aid Society since 2000. Previous to that, she was a psychiatric social worker. She has a Masters' degree in social work, a Masters' degree in education and Bachelor's degree in criminology.

[94] Ms De Miranda was the intake worker assigned after the school reported the oldest child's disclosures to the society. She attended J.A.'s school on December 14, 2011 and interviewed J.A. She testified that J.A. made the following disclosures to her, which was consistent with the report from the school:

1. J.A. reported that he had skipped a class because he had a test that he was not prepared for, but lied to his parents about his school attendance. His parents demanded that he get a note from the school and did not allow him back into the house the previous night.

2. Both younger children were home alone and told them that they were not allowed to let him into the house.

3. His mother returned home at approximately 6:30 p.m.

4. He stayed in the garage because it was too cold to be outside.

5. His father returned home from work at about 10:00 p.m. that evening and he was expecting that he would come out and talk to him and then allow him into the house.

6. This did not occur and J.A. went into his father's car to stay warm.

7. The father came out approximately one hour later and told him to get out of the car and lock the car door.

8. J.A. then tried to see if his mother's car was open and since it was, he got into it.

9. His mother came out very early the next morning and asked him to get out of the car and then she locked it.

10. He returned to the garage.

11. As J.A. wanted to attend school that morning he asked his brother to throw his shoes into the garage because he still had on his slipper when he was asked to leave the house the previous day.

[95] During Ms. De Miranda's interview with J.A. he disclosed that both of his parents have hit him and that his mother continues to do so regularly. He explained that his mother uses any kind of object available to her such as a comb, a broom, or a belt and that his father has hit him with a belt on two different occasions. J.A. showed Ms. De Miranda some on his forearm that he said were a result of the beatings. He further reported that his father used both the leather side and a buckle to beat him. J.A. also told her that on one occasion his mother became angry with him and pushed his head into a kitchen cabinet that had a glass door, cracking the glass. Ms De Miranda testified that she saw the broken glass door when she attended at the family home later that evening.

[96] J.A. reported that his mother also hit the two younger children that she can easily get upset with small incidents and he reported that when she is really angry with the two younger children she puts fresh ginger in their private parts and that this is very painful. J.A. reported to Ms De Miranda that when this is done he can hear the two younger children crying and screaming and apologizing to their mother.

[97] J.A. also reported that he is very afraid of being sent back to Ghana as his mother constantly threatens to do so. He told Ms De Miranda that he does not care about the beatings but he is terrified of the thought of going back to Ghana. J.A. also reported that he was very fearful of going home today as he was certain he would be beaten if allowed into the house or would be expected to stay in the garage overnight and he did not wish to repeat the experience.

[98] After speaking with J.A., she was concerned about all of the children's safety. She consulted with her supervisor and the society decided that the police had to be involved. Ms De Miranda testified that J.A did not want to go home and that he was afraid to go home.

[99] Ms DeMiranda escorted J.A. to the police station where he was then interviewed by Detective Golba that evening. Ms De Miranda testified that she observed the interview through a two way mirror and that J.A made the same, consistent disclosures to the police.

[100] J.A. was taken to a group home immediately after that interview. Ms DeMiranda then attended the family home with two police officers. They arrived at the home shortly after midnight.

[101] The mother was at the home with the three children. The father had not yet returned home from work. Ms DeMiranda testified that the mother was very distraught when they explained why they were there and that she was yelling and screaming, "J.A. has done it again, he lies, he lies." Ms DeMiranda testified that the mother did not engage in comforting the two younger children, but instead continued to yell very loudly, repeatedly blaming J.A. for what was happening to the family and calling him a liar.

[102] Ms DeMiranda described the two younger as polite and cooperative. Although confused, they came willingly and K.O. was very protective and motherly towards her younger brother, who had been ill that evening.

[103] The father arrived during the apprehension. Ms DeMiranda testified that the father was calm and engaged in looking for the children's homework and school agendas and other items to assist in transporting the children to foster care.

[104] Ms DeMiranda testified that the children stayed in a foster home that night. They did not stay in the same group home as J.A. Ms DeMiranda testified that the children had no contact with J.A. that night or the next day before they were interviewed by the police. Her evidence was not challenged on this point and it is not disputed that the younger children had no contact with J.A. after they were apprehended and before their police interview.

[105] The next day, Ms DeMiranda observed the police interviews of the two children through a two way mirror at the station. She testified that the children corroborated J.A.'s disclosures and their statements were very consistent with what J.A. had disclosed during his interviews the day before. Ms DeMiranda testified that the children were all believable, their stories were all consistent and corroborated each other, and that they had no contact with each other prior to the interviews.

[106] After the interviews, the two younger children remained in the foster home and J.A. remained in the group home. She testified that it was very difficult to find a foster home for the three children together, particularly given J.A.'s age.

[107] Ms DeMiranda testified that she had a very difficult working relationship with the parents. They met on only one occasion to go over the children's medical histories. She testified that the parents were either unwilling or unable to discuss with her what had happened. As a result, the society did not receive any information from the parents that would assist in re-assessing its view that the children were in need of protection. Given the very difficult relationship between Ms DeMiranda and the parents, the case was transferred to another child protection worker, Ms Anna Maria Lancia.

[108] Ms DeMiranda acknowledged in cross-examination that as she was the worker who apprehended the children, which was no doubt a traumatic experience, it is understandable that the parents may have a difficult time working with her or opening up to her.

[109] In cross-examination, Ms De Miranda further acknowledged that she did not have any specific training in cultural issues or cultural sensitivity training with families whose country of origin is Ghana or with any African country. She further acknowledged that she did not have any cultural understanding of the use of ginger in the Ghanaian culture. She acknowledged telling the mother to speak English during the apprehension when she began to speak to the children in an African dialect. She acknowledged that she did not understand the cultural significance of this direction to the mother. She testified that she did not know what the mother was saying to the children and this was only to ensure that the mother could not influence what the children would later say.

[110] Ms De Miranda also testified that after J.A. was apprehended, she received information that J.A. had disclosed to a school teacher after the school winter holiday that a recent and serious burn on his arm had been caused by his mother during a Christmas visit. It was later determined that the burn had been caused by an accident in the group home, as J.A. had no contact with his parents after he was apprehended and during the school winter holiday break that year.

[111] Ms DeMiranda did not interview J.A. about this new disclosure and the information received from the school, nor apparently did any other child protection worker, according to Ms DeMiranda.

Ms Anna Maria Lancia

[112] Ms. Lancia is a child protection worker with the Halton Children's Aid Society. She has worked with the Halton Children's Aid Society since 2007, prior to that she was a child protection worker in the Niagara Region since 1999. Ms. Lancia testified that the file was transferred to her in March of 2012 given the difficult working relationship between the parents and Ms De Miranda. Ms. Lancia testified that her first meeting with the parents was fine. The relationship has since significantly deteriorated. Ms. Lancia still maintains contact with the father but has no communication with the mother. Ms. Lancia described her relationship with the parents, particularly the mother, as being very abusive. She testified that she has been accused of racism and of repeatedly lying.

Ms Lisa Marie Thompson

[113] Ms. Thompson is a children and youth services worker with the Halton Children's Aid Society. She has been a worker with the society since 1999. Ms. Thompson was assigned the younger children's' worker on December 28, 2011. Ms. Thompson became the oldest child's worker in February of 2012 when he was placed in a foster home.

[114] Ms. Thompson has also supervised a number of the access visits between the parents and the children. The access commenced in March of 2012 and started out as one hour per week and expanded to two hours per week supervised by the Children's Aid Society. Both parents are always present, the father will communicate with Ms. Thompson however the mother will not speak to Ms. Thompson.

[115] Ms. Thompson testified that she supervised between seven and ten visits. She observed the visits between the parents and the two younger children to be positive and structured. The parents provide food, they then look at the children's school agenda and if the weather is good they will play outside.

[116] She testified that there is a lot of focus by the parents during the visits on the children's schooling. The children's academic progress, their school marks and school projects are very important to the parents. Ms. Thompson testified that there is also a lot of focus by the parents on the children's physical appearance.

[117] Ms. Thompson testified that the oldest child had only come to approximately four or five visits. Ms. Thompson observed that the visits between the oldest child and the mother in particular were very uncomfortable and very tense. She testified that the mother would not interact or communicate with the oldest child during the supervised visits.

[118] In February of 2013, J.A. was hospitalized. There was some concern that he may have had a heart attack, or possibly an anxiety attack. The parents were notified and both attended at the Joseph Brant hospital on February 22, 2013. Ms. Thompson remained in the hospital room with J.A. during the visit with the parents. The father came into the room to see J.A. and spoke to him and asked him how he was doing. The father stayed for approximately five minutes with his son. After the father left, the mother came into the hospital room. Ms. Thompson testified that the mother stayed at the end of the bed and just stood there. She did not say anything to her son and left after approximately thirty seconds. The father then returned to the room and asked his son how he was feeling and had some further conversation with him. Ms. Thompson stated that the mother did not interact with her son at all and that it was an uncomfortable and tense situation.

[119] Ms. Thompson testified that the parents have not presented a kin plan of care for the oldest son, only the two younger children. It is her understanding that the parents do not wish the oldest child to return home.

[120] Ms. Thompson stated that she does not have a lot of contact with the parents and that her relationship with the parents has been very difficult and strained from the beginning. Mediation has been set up between the society and the parents however the parents are not willing to move forward and establish a working relationship with the society.

[121] Ms. Thompson testified that the society still believes the children are in need of protection. Nothing has changed and no further information has come forward from the parents. The children have not recanted any of the statements they have made previously, nor have they changed the statements they made.

[122] Ms. Thompson acknowledged that the oldest child has had a challenging history in the youth criminal system since coming into care. He has been charged with theft, possession of stolen property as well as two counts of forcible confinement in August of 2012 against a staff member at the group home where he was residing. She described J.A. as being miserable at the group home and that he really wants to be in a foster family. J.A. has also been charged with breach of probation.

[123] Ms. Thompson was not the oldest child's worker at the time he made the allegation, in January of 2012, that his mother had burned him over the Christmas holidays. Ms. Thompson has no direct knowledge of that incident. It was her understanding that there has not been any further investigation by the society regarding this allegation. She has not discussed this with J.A.

[124] In addition to J.A.'s trouble with the youth criminal justice system, Ms. Thompson stated that he has engaged in some self-harming and other difficult behaviour at the group home.

[125] Ms. Thompson described J.A. as a very intelligent and likeable young man who has had a very difficult life. This has caused him to make some poor choices. She stated that he is very isolated and that he is currently having a very difficult time. In February of 2012, the society did find a foster home for J.A. in Georgetown Ontario however he was very unhappy in Georgetown. He missed his friends at his school in Burlington and he did not feel comfortable in Georgetown given the lack of diversity in that community.

[126] Ms. Thompson admitted in cross-examination that the foster mother also had concerns about the older child's placement there. According to Ms. Thompson's case notes, the foster mother relayed to Ms. Thompson her fear that J.A. would make up false allegations of abuse against the foster family.

[127] In Ms. Thompson's view, J.A. feels like he is disappointing people all of the time and he feels that his parents hate him. Ms. Thompson acknowledged that J.A. needs counselling and that the society has been attempting to arrange counselling and treatment for him through the Halton Trauma counselling agency, although there has been considerable delay in this process.

The Parents' Witnesses

Dr. Magdy Gibara

[128] Dr. Gibara is the family doctor. He has been the family doctor for D.O. since his birth, for K.O. since 2004 and for J.A. since February of 2010.

[129] Dr. Gibara testified that the mother and sometimes both parents regularly brought the children in for routine check-ups, immunizations, or illnesses. The children's vaccinations were always up to date. The mother routinely ensured that the children had their flu shots. When he had to treat the children for minor illnesses such as bronchitis, pink eye, ear infections, sinus infection, etc., the mother obtained the necessary prescriptions promptly and followed up with all of the necessary treatment promptly.

[130] Dr. Gibara testified that he never noticed any sign of physical, verbal, emotional, abuse or neglect by either parent towards the children. He has conducted full physical examinations on the younger children regularly. He is aware of his duty to report suspected abuse under the Act.

[131] Dr. Gibara's last medical appointment with D.O., the youngest child, was on November 29, 2010. His last appointment with K.O. was in March of 2009.

[132] Dr. Gibara first met J.A in February of 2010. He did not conduct a complete physical examination on J.A. He did not notice anything suspicious. He had no reason to suspect abuse. J.A.'s last visit was September 27, 2011 for his polio vaccine and booster shot.

[133] In cross-examination, Dr. Gibara testified that he did observe the scars on J.A.'s arms and legs, but they appeared old, not recent. He estimated that some scars appeared at least three months old.

[134] Dr. Gibara testified that on one or two occasions, he observed skin lesions on the younger children, which is usually the result of an infection or injury. He would ask what had happened and a satisfactory explanation was provided.

[135] Dr. Gibara testified that the mother was always present during all the children's medical appointments. She would remain with the children during the examinations.

[136] Dr. Gibara testified that neither parent raised the issue of constipation until April 19, 2013, a few days before this trial. At that time, the father attended his office and had a discussion regarding ginger root with him. The father explained to him that ginger root was a remedy from Ghana for constipation. Dr. Gibara has never prescribed anything for constipation for the children.

Dr. S.B.

[137] S.B. is a pharmacist. He is married with one child and lives in Brampton, Ontario. He has known the family since 2000. They met through mutual friends in the Ghanaian Canadian community.

[138] The relationship between the two families has grown from being acquaintances to being very close friends. The families would spend weekends and holidays and sleepovers together on a monthly basis. Typically the visits would be initiated by his wife and the families would spend some time over the weekend together praying, cooking, and sharing meals together. Both families are very religious, although they currently attend different churches.

[139] S.B. is the youngest child's godfather and he testified that he has a special role in the children's lives.

[140] On at least two or three occasions S.B. has been specifically asked by the parents to talk to the oldest child since he arrived from Ghana in 2009. S.B. testified that he spoke to the oldest child about the value of education, particularly in a country like Canada which will provide so many opportunities for him.

[141] S.B. testified that the oldest child initially told him of the challenges that he was experiencing in Canada, particularly in school and in completing his homework. S.B. met J.A. once before in July of 2008 on a trip to Ghana. He and his wife had gone out to visit family and the parents asked him to visit J.A. Both parents told him at the time that they were having difficulties keeping J.A. with families and that they had to keep moving him.

[142] When he met with J.A. in Ghana, S.B. sent greetings from his parents and told J.A. that his parents were working very hard to get him to come to Canada. S.B. testified that he learned of some of the behavioural difficulties that J.A. was experiencing while he was living in Ghana.

[143] The parents reported to S.B. that J.A. was watching pornography and they him to speak to J.A. about this. S.B. testified that he spoke to J.A. privately about this and about the need to stay away from this because it is not good for the mind and it is bad for small children. According to S.B., J.A. responded in a positive manner and seemed to understand his concerns.

[144] S.B. was also asked to speak to J.A. about his school work and his general academic performance. The parents were very concerned about J.A.'s grades and wanted him to spend more time doing homework and to wake up early to do homework. Once again S.B. took the opportunity to speak to J.A. about the parents' concerns privately.

[145] S.B. testified that on this occasion J.A. was very quiet and did not say anything. S.B. finally asked him what was wrong and J.A. responded, "I think my parents don't like me." "They are always on my back." J.A. then stated, "All I want to do is go back to Ghana. I just to want to go back to Ghana because I know my parents don't like me."

[146] S.B. did not see anything that was of concern with respect to the parents' care of the children. The children were always dressed well, they always looked well and they were well fed. S.B. testified that he observed the children many times in shorts and short sleeves and he did not notice any marks that would concern him.

[147] In cross-examination, S.B. denied having any knowledge that the parents were using corporal punishment with the children. He never observed them use corporal punishment. S.B. appeared very surprised to hear that the parents had admitted to using corporal punishment on the children.

[148] S.B. further testified that he did not know anything about the use of ginger root by the parents and that he was not aware that the parents were using ginger root to treat constipation or otherwise. S.B. seemed very surprised about this and stated that this has never been discussed with them. S.B. acknowledged that he would be concerned if the parents had used ginger root. He testified that as a pharmacist practicing in Canada, ginger root is not known here as a treatment method and it is not something that would be recommended.

Ms. M.M.C.

[149] M.M.C. is a student success teacher at J.A.'s former highschool. She is assigned to grade eight students who are going into grade nine who are identified as needing extra support and help. J.A. was identified as one of these students as he was new to Canada, experiencing a new language, social, cultural and transitional issues. M.M.C. testified J.A. was not identified for academic reasons. She testified that he was a hardworking and good student. M.M.C. would see J.A. approximately once a week. She stated that he was very friendly and appeared to like the friendship that was developing between them.

[150] On December 14, 2011, J.A. came into the guidance area and looked very different than he had on previous occasions. He asked her if he could speak to Ms. McPherson. M.M.C. asked if there was something that she could help him with. J.A. said, no, he needed to speak to Ms. McPherson because the students who are crying go into her office.

[151] Ms. McPherson was not available so M.M.C. met with J.A. M.M.C. testified that J.A. closed the door. He looked very serious and frightened. She testified that she had never seen him look like that before. He was not smiling and he was very intense.

[152] M.M.C. then went on to describe the disclosures that J.A. made to her on that day. As a result of those disclosures she contacted the children's aid society. These disclosures were consistent with what J.A. later told Ms DeMiranda and the police.

[153] M.M.C. stated that she was shocked by J.A.'s disclosures. In her view, he sounded desperate and he told her that he did not have anywhere to go.

[154] After J.A. came into care, M.M.C. she saw him daily. He would come into the guidance office every day and speak to her. M.M.C. testified that J.A. seemed in good spirits in the group home.

[155] M.M.C. stated that in the new year after the Christmas holidays J.A. came into the guidance area with a bandage on his left hand. M.M.C. asked him what happened. J.A. told her that he went home for Boxing Day dinner and that his mother got upset and threw gravy on him. M.M.C. testified that when J.A. told her this his demeanour was in stark contrast to his demeanour on the day he came into her office on December 14, 2011.

[156] M.M.C. did not ask J.A. any more questions about this because she was wondering how that could have been possible given that he was in the group home. She then called her vice principal and discussed this before reporting the matter to the children's aid society.

[157] M.M.C. later learned that the injury that J.A. sustained was actually self-inflicted in the group home. M.M.C. testified that she then began to second guess everything that J.A. told her after this incident occurred.

[158] M.M.C. acknowledged that J.A. can "embellish things" and likes to keep the conversation going if he thinks you are interested. However, she distinguished between an "embellishment" and "an outright lie".

Ms. J.O.

[159] J.O. is the principal of the H[…] Secondary School in Oakville, and was previously the vice principal of the secondary school where J.A. was grade nine and ten student. She testified that J.A. was an average student and that he had never been flagged as being a problem. She had very little direct contact with him.

[160] She recalled meeting with J.A.'s parents on a number of occasions as they had come in to speak to her regarding their academic concerns about J.A. She testified that the parents believed that J.A. was not applying himself and that they were concerned that he was not meeting their expectations. She discussed strategies with the parents regarding getting J.A. extra help and helping him to stay focused. She stated that the parents presented as being very concerned about J.A. and that he was not meeting their expectations.

[161] J.O. did not actually know J.A. by name until grade ten when he reported the incidents of abuse to M.M.C.. Ms J.O. met with J.A. on December 14, 2011 when he made his first disclosures. She stated that she had been a teacher for seventeen years and a vice principal for seven years and that she has interviewed and heard many students' stories. She testified that based on her experience with other students, and based on his consistency and demeanour, J.A. seemed credible.

[162] J.O. also recalled the disclosure regarding the injury to J.A.'s hand which occurred after the Christmas holidays. She did not speak to J.A. directly about this incident but she testified that two other teachers also told her that J.A. had indicated that he received the burns at home over the Christmas holidays. She encouraged M.M.C. to contact the children's aid society about the incident and it was her understanding that in fact, J.A. had sustained the injury while at the group home.

Mr. D.L.

[163] D.L. is the director of operations for the Royal Conservatory of Music. He is married to A.G., the former lawyer for the parents in this proceeding. He and his wife and their two children are family friends. They all attend the same church and they met approximately eight years ago at a church picnic. The met again at a church function in 2008, specifically an African fellowship barbeque hosted by the respondent parents in their home. Since then, they have become very close friends as their children are of similar age, they attend the same church, and they have a similar cultural background.

[164] D.L. saw the family every Sunday at church and afterwards. On some occasions the respondent parents would provide child care for their children to permit he and his wife to have a date night. The children also had swimming adjacent to each other on Saturday mornings.

[165] D.L. testified that he had a close relationship with the children and that the two younger children referred to him as 'uncle'. He described a very cordial relationship with J.A. and that they would have ordinary discussions about sports, school and other activities.

[166] D.L. testified that he has never seen the parents use corporate punishment on the children, although a slight spank would not surprise him. He stated that does not know a lot about the use of ginger root as a laxative or otherwise. From what he observed, the parents appeared to be very effective and he had no concerns about the children's welfare. He observed that the children were well-adjusted and responded well to the parents.

[167] He was aware that the oldest child had made allegations of abuse, but he was not aware of any allegations made by the younger children.

Mr. C.Y.

[168] C.Y. is also a close family friend whom the parents met through their church in 2007. He is actively involved in the church and is studying social work. He is originally from Ghana and has been a Canadian citizen since 1999.

[169] C.Y. usually sees the family every Sunday and the parents would invite him over after church. The children call him "uncle" and he would sometime play with them in the backyard or help them with their homework. He first met J.A. in 2009 and described him as a "normal kid".

[170] The parents asked C.Y. to speak with J.A. because they were concerned about his behaviour. He told J.A. to listen to his parents and had approximately five or six conversations with J.A., usually in the car after church. He testified that J.A. never disclosed to him any physical discipline by the parents. In cross-examination, he acknowledged that the parents were usually in the car on the occasions that he spoke to J.A.

[171] C.Y. testified that he understood that ginger is used to treat constipation in Ghana, although it was never used on him and he has never used it in this manner. He has never observed the parents use physical discipline on the children.

Mr. M.O.

[172] M.O. is also a very close family friend of the parents and has known the family since K.O.'s birth. He is married with two children, ages 10 and 7. He is employed by a pharmaceutical company and lives in Brampton.

[173] He stated that the families were very close and would usually see each other once a week, on the weekends. They have gone on picnics, barbeques, and other day trips together to Niagara Falls, and Marineland. They have sometimes had sleepovers at each other's homes if it is too late to drive home.

[174] M.O. first met J.A. at the airport and was at the party to welcome him to Canada. There were approximately forty to fifty people at the party. He described J.A. as "overwhelmed." The family tried to teach J.A. the rules in Canada. The parents asked him to speak to J.A.

[175] M.O. would speak to J.A. and try to give him advice about the pitfalls when coming to a new country, including how not to associate with bad people and how to focus on education. He stated that the mother expressed concerns about J.A. to him and that she was concerned about his schooling.

[176] M.O. has never seen the parents use corporal punishment on the children nor have the children ever disclosed this to him. He has never observed anything that would concern him about the parent's care of the children. He is aware of the allegations of abuse, including the use of ginger.

[177] M.O. testified that in Ghana, which is also his country of origin, ginger is used mostly for medicinal purposes such as to treat constipation. It is placed in the anal area and "it burns a little bit", but once you poo, it goes out. He recalled his grandmother using it.

[178] In cross-examination, M.O. testified that he did not know that the father admitted to spanking the children, but that would be acceptable. Anything beyond spanking was not acceptable.

[179] When asked if he recalled a time when the oldest child had been gone from the parents' home for three days, M.O. was initially evasive and stated that he did not recall this. However, he then recalled this incident and testified that on the third day of J.A.'s absence, he encouraged the parents to look for J.A. because he was concerned.

Ms C.D.

[180] C.D. testified with the assistance of a Twi interpreter. She testified that she is a very close friend of the mother from Ghana. She currently resides in the United States with her husband and three children. She has lived in the United States since 2002.

[181] C.D. testified that she has visited and stayed with the family in 2006 for approximately eight weeks, in 2007, for approximately seven weeks, in 2010 for approximately two weeks and in 2011 for approximately five months from May to September, 2011. On this last visit, her husband had lost his job and she came to Canada to look for work. Her children were staying with her mother in Ghana because she and her husband were having some financial difficulties.

[182] C.D. is an "aunty" to the children. When she stays with the family, she helps care for the children. On the last visit of five months, she would typically wake the children up for school, help the youngest children with their bath, prepare the meals and their lunch and braid K.O.'s hair. She testified that the mother would usually leave for work at 6:30 a.m. C.D. testified that she would also wake up the oldest child as he would sleep late.

[183] C.D. testified that she never observed the parents use a belt on the children, beat the children or use ginger on the children. She testified that the family is very close and that she observed the mother to be a good and caring.

[184] C.D. stated that sometimes the children misbehaved. For example, anytime that the youngest child was told to go to bed, he would come back downstairs. She testified that on those occasions, the mother would use her hand to push him back and tell him to go to bed. She would not beat him; she would just "push him with her hand."

[185] C.D. further testified that she would frequently bathe the younger children and she has never observed any marks or welts on their bodies or anything that would cause concern. She stated that she was very close to K.O. and that she spent most of her time with her. K.O. would help her with the cooking and other things. K.O. never confided with her about anything that was happening with the parents, which would not have been difficult for her to do.

[186] C.D. testified that during the last visit, she noticed a little change in J.A.'s behaviour. He would stay out and come home very late. He was not doing his homework. He would swallow big spoons of sugar. His mother would talk to him and tell him that this behaviour is not acceptable. In cross-examination, she denied saying that the mother would pick on J.A., but she explained that the mother wanted J.A. to live an "exemplary life" because in their culture, parents expect the oldest child to lead by example and to be good role models. She testified that when J.A. came, the parents would sit down and explain to him that, here, the culture is different; people have freedom. However, he should "stick to the culture he came from and be a good boy".

[187] C.D. also recalled the glass cabinet incident where J.A. alleged that his mother had pushed his head into the glass. She testified that on this occasion, the mother had cooked a meal and there were leftovers remaining. No one was supposed to eat the leftovers. When the mother came home, she saw that the food had been eaten. The mother asked C.D. if she had eaten it, to which she denied, and told her that J.A. had eaten it, despite C.D. cautioning him not to do. When the mother asked J.A. who had eaten the leftovers, J.A. lied and said that C.D. had done so.

[188] C.D. testified that the mother was very upset and was pointing her finger at J.A. and gesticulating towards him. As the mother was making these gestures, J.A. raised both of his hands, and one of his hands hit the glass cabinet. In cross-examination, C.D. was evasive and defensive when asked if the mother was very angry at J.A. during this incident. She would not answer the question and instead repeated that "obviously, the mother was upset."

[189] Despite what she described as a very close relationship with the mother, C.D. initially did not know who "Y.A." was when asked in cross-examination (J.A.'s alleged biological father). She did not know anything about him or anything about the events that led to the mother's separation from him.

[190] C.D. testified that ginger is used in Ghanaian culture for constipation. She testified that if a person is constipated, then the ginger is inserted in the anus to loosen the bowels. She testified that she has never used ginger to treat constipation, nor was this ever administered to her in Ghana. She further testified that she has never used it on her children.

F.Y.

[191] F.Y. is seventeen years old and a former class mate of J.A. He came to court with his mother. His family is also Ghanaian Canadian and his mother is a personal support worker. He is a student at J.A.'s former high school. He is not related to C.Y..

[192] He stated that he knew J.A. from school in grade nine and ten, until J.A. left the school at the end of grade ten. They were in the same group of friends. They would usually hang out in the atrium at lunch time.

[193] Mr. Y. testified that one day in grade ten after the Christmas break, J.A. told him and their friends that his parents were abusing him, making him sleep outside and making him "drink piss" and that he had told M.M.C. about this before Christmas. J.A. told them that he and his sister and brother had to leave the home.

[194] Mr. Y. testified that he and his friends were shocked. J.A. had never told him any of this before. He stated that they were close friends since grade 9 and he was "pretty sure" that he would have told him. Mr. Y. told his mother what J.A. had said and his mother did not believe him.

[195] Mr. Y. also stated that J.A. was "bragging" that his foster home was a mansion with a pool on the Lakeshore and that he was going to have a party to which they were all invited. The plan was to be picked up by J.A. on Friday after school and then they would stay the night and weekend. Mr. Y. told his mother that they were going on a school ski trip.

[196] Mr. Y. testified that "basically the whole school knew because we invited them." He and his friends waited for J.A. after school and he never showed up. They then took a taxi to the address that he had given them and the address did not exist. He stated that a whole bunch of school kids showed up looking for the address as well and there was no address. Mr. Y. testified that the taxi ride cost them $60.00 there and back.

[197] After that, according to Mr. Y., everyone called J.A. "a snake" and he and his friends stopped hanging out with him. Mr. Y. testified that he barely talked to him again. In cross-examination, Mr. Y. testified that a lot of people, including himself, were very upset and angry with J.A. and some wanted to "fight him".

[198] He further testified that one day afterwards, J.A. came to school with his arm in a bandage and told him that his mother had poured gravy on him. Mr. Y. stated that he confronted him in the library and asked "why are you lying?" and J.A. told him that "he was in too deep" and that if they found out that he was lying, then he would go to jail.

[199] Mr. Y. testified that sometimes J.A. will "randomly" message him on Facebook, and the last one he received was on April 20, 2013 (4/20 day). C.Y. stated that his mother was contacted by the parents' lawyer and that she told him that he had to testify in this trial.

Pastor Jeremy Bates

[200] Pastor Bates is a Reverend at the Glad Tidings Pentecostal Church in Burlington where the parents attend. He runs the youth program at the church, in addition to other responsibilities.

[201] Pastor Bates recalls meeting J.A. in 2011 when he started coming to the youth program. He has never met the two younger children. Pastor Bates described J.A. as "pleasant, relaxed, and forthcoming" during their initial contact. In one conversation, J.A. lied to him about being on the high school football team, which Pastor Bates found curious, but he did not confront him.

[202] During the fall of 2011, the mother approached him and told him that she was discouraged by J.A.'s behaviour, especially around lying and stealing. He found both parents to be deeply concerned about J.A.'s behaviour. They spoke to him on a number of occasions about their concerns and what they could do.

[203] Pastor Bates testified that J.A. was usually present when his parents were talking about him. He described J.A. as "quiet and subdued" during these discussions.

[204] At the parents' request, Pastor Bates met J.A. for lunch on a school day. He explained that his goal was to connect with J.A. and to help mentor him. The lunch occurred on November 23, 2011.

[205] Pastor Bates testified that during that lunch, J.A. talked at length about growing up in Ghana, his life at the boarding school, his transition to this culture. He described it as a "sweeping conversation" and that J.A. was "relaxed, talkative and congenial". Pastor Bates testified that J.A. never raised any child protection concerns with him.

[206] Pastor Bates became aware that J.A. and the other two children were brought into society care shortly afterwards. The parents contacted the church and were very distraught.

[207] Pastor Bates testified that he had no further contact with J.A. until he "randomly showed up" at the church youth program with a friend from the group home. J.A. came for about four to six weeks, however, in the last week an iPhone went missing during a basketball game. Pastor Bates testified that he asked J.A. about it and asked him to look into his bag, given his history. J.A. denied responsibility. There was nothing in his bag. A few days later, the iPhone had apparently been returned and the police were involved.

Pastor Cheryl Ettinger-Neal

[208] Pastor Ettinger-Neal is the Family Life Pastor at Glad Tidings Pentecostal Church. She has worked in that capacity since 2009. She has met both younger children as they were involved in the program. She described them as friendly and talkative children. She had no child protection concerns. There approximately two hundred children in the program, and on any given Sunday, there are approximately fifty to seventy-five children present. She had limited 'one and one' interaction with either child. She never had a private conversation with either child. Parents are not permitted in the children's program so she had limited interaction with the parents but would occasionally say hello. She is aware of the older brother's allegations, but not the younger children's allegations.

The Parents' Evidence

The Father

[209] The father's affidavit dated December 22, 2011 was entered as an exhibit in this trial and formed part of his examination in chief.

[210] Mr. O. is 44 years old. He was born and raised in Ghana and received his early education and training as a pharmacist there. He is highly educated. In Ghana, he was a clinical and community pharmacist. He immigrated to Canada in 1997 and re-trained in pharmacy for a number of years. He became a registered member of the Ontario College of Pharmacists in 2005 and he currently is the owner-operator of a pharmacy. Mr. O. described many early years of hard work in Canada doing pizza and newspaper delivery, and factory work while retraining and establishing his pharmaceutical practice.

[211] Mr. O. met the respondent mother in 1999 at the All Nations Full Gospel Church at a prayer group. They were married in 2000. He described many financial challenges when they first were married including the cost of sponsoring and caring for J.A. in Ghana. He was aware of the pressure on his wife to get J.A. to Canada and he tried to help in any way he could. He estimated that they spent approximately $100,000.00 to get J.A. to Canada.

[212] He described he and his wife as deeply religious and committed to Christian values. They have raised their children in the Christian faith, regularly attend church and follow the values of Christianity. The younger children went to church every Sunday and the younger children were enrolled in the Sunday school program.

[213] The father also testified about the importance of education and how they have worked very hard to instil the value of education in the children. The father testified that both he and his wife place a very strong emphasis on education,

[214] Mr. O. first met J.A. at the airport when he arrived in Canada in September of 2009. He testified that prior to his arrival he had received information from different caregivers regarding J.A.'s character and behaviour.

[215] According to Mr. O.'s evidence, J.A. suffered several traumatic incidents in Ghana. When J.A. was eight years old, he witnessed the death of his maternal grandmother, who suffered a heart attack. His grandmother had raised him since his mother had left. J.A. was then placed with an aunt, from whom he would receive regular beatings with a cane and be deprived of food. According to the father's evidence, some of the scars on J.A.'s body are a result of beatings from that aunt.

[216] Arrangements were then made to place J.A. in an international boarding school, at great expense to the parents. During school breaks and weekends, J.A. stayed with different caregivers but these arrangements broke down because of J.A.'s persistent lying and stealing.

[217] The father also gave evidence that behavioral issues with J.A. started almost immediately after he arrived in Canada and that both he and his wife realised that J.A. needed counselling as early as 2009. However, they took no steps to arrange for counselling.

[218] The father acknowledged in his evidence that this was a mistake, however, he testified that in his culture, the custom is to call on respectable citizens to talk to J.A. The parents arranged for S.B., M.O., C.Y., and Pastor Bates, among others, to talk to J.A. The father testified that in retrospect, he should have sought the assistance of a psychologist or a psychiatrist.

[219] The father gave a number of examples of J.A.'s behaviour that were deeply concerning to him. He described J.A. stealing money from his wife's purse, stealing money from his brother's piggy bank, stealing an IPod from a family friend, stealing a cinnamon bun from the school cafeteria.

[220] The father was extremely concerned when in December of 2010, he received a letter from the public library that J.A. had been caught attempting to steal six DVDs from the library. As a result of this incident, the library issued a trespass notice and J.A. was banned from the library for three months.

[221] The father testified that he was distraught after receiving the letter. He was also very concerned that J.A. had tried to involve the two younger children in the incident. The father described this as "the end of the world" for him particularly because the two younger children had been exposed, it occurred in the community, and therefore had been brought to the attention of authorities.

[222] The father also testified that the two younger children did not tell him what had happened that day. He believes that this is one example of the kind of influence that J.A. had over them or that they were afraid of him.

[223] The father also described discovering that J.A. was sneaking up at night and watching pornography on the parents' computer. He testified that this was "heartbreaking" and very disturbing and "the straw that broke the camel's back." He was very concerned that J.A. had exposed the younger children to this, particularly D.O.

[224] The parents also discovered that J.A. was skipping school. They were also very concerned about his academic performance. The father testified that they were unaware that he had been truant because J.A had changed the contact information so they were not receiving the school attendance calls.

[225] The father stated that in addition to getting a number of adults to talk to J.A., they also tried to talk to him on numerous occasions. The parents also met with the vice principal on at least three occasions, and they tried to arrange a tutor for him. The father also testified that he also arranged for him to go to the youth pizza night at the church. He would then pick J.A. afterwards and take him to Kelsey's', his favorite restaurant, so that they could have regular talks.

[226] The father acknowledged that both he and the mother used the threat of returning J.A. to Ghana to try to influence his behaviour. The father told J.A. that he did not see a good future for him here and that he was going to send him back to the boarding school in Ghana. In his view, it was much better for J.A. to go back to Ghana as they feared that J.A.'s behaviour would escalate and lead to a criminal record in Canada.

Father's Response to Allegations of Excessive Discipline and Use of Ginger

[227] The father testified that physical discipline is not "our main goal of disciplining" the children. He admitted to using corporal punishment on this children including J.A. He described spanking the children and using his hand on the children's bum. However, he testified that this force was never excessive and it was a last resort.

[228] The father admitting to spanking J.A. because of dishonest behaviour. He admitted to spanking J.A. on the bum with his hand because of his dishonest behaviours. He admitted that this was not appropriate but testified that he had only did this once to J.A.

[229] The father denied ever using a belt or any object on J.A. or the other children. He testified that he has never seen the mother use a belt or another object on the children. The father testified that J.A.'s description of being beaten by his mother with a belt for thirty minutes, which caused bleeding is "absolutely untrue."

[230] The father testified that ginger is used as a remedy for constipation in Ghana. He was never administered ginger as a child nor has he ever administered it to his own children. He has never observed his wife doing this but she would tell him when she was doing this. According to the father, this has only happened on approximately two occasions.

[231] The father acknowledged that as a pharmacist, he knows that there are other ways to treat constipation. He testified that the youngest child did not like taking oral medicine and would run away when they attempted to give it to him, so this was their only choice.

[232] The father brought a rubber syringe-like instrument to court and described that the ginger would be mashed up in a bit of water so that it would dissolve, then placed in the device and then inserted in the anus where it would be flushed in like an enema.

[233] In cross-examination, the father stated that the instrument that he had brought to court was actually purchased six weeks ago and not used on the children. He acknowledged that there was no mention of this in his affidavit when he described the use of ginger.

[234] The father testified that the reason that the children believed the ginger was used for punishment was because J.A. would tell them this. He testified that J.A. would say, "you better eat your veggies or ginger is going in your bum." This became a "running joke" in the family. The father testified that J.A. started the joke because his grandmother had used it on him and he had told the younger children about this.

[235] In cross-examination, the father was not able to explain why he deposed in his affidavit that it was he and the mother who would "jokingly say you better eat your vegetable or we may have to use the ginger root", and not J.A.

[236] The father denied forcing J.A. to sleep in the garage or locking him out of the house. The father testified that there have been incidents when issues arise at home and J.A. will try to avoid them. J.A. will then choose to go to the basement or the garage and stay there. He stated that when the parents have tried to discuss areas of concern with J.A., he would just stare at them and not respond. When this occurred, the father would tell J.A. to "leave my presence." J.A. would then leave the home rather than go to his room.

[237] The father described J.A. as being "fond of going outside" and that "he likes it". He stated that he had heard that J.A. would often run away in Ghana and he would run away in Canada as well.

[238] Regarding the events leading to the children's apprehension, the father testified that the parents received a call from the school advising that J.A. had been absent. When confronted, J.A. told the father that he was at school. The father told him to get a note from the teacher proving this. J.A. came back from school the next day without the note. The father told J.A. to go back to school to get the note.

[239] The father denied telling J.A. to sleep outside. He testified that J.A. did this on his own because he did not get the school note. In his affidavit, the father denied that J.A. had slept outside in the garage at all. His evidence at trial was inconsistent with this. He seemed to suggest that if J.A. was sleeping outside in the garage, it was by his own choice because he wanted to avoid his parents as he had lied to them and been absent from school.

[240] The father denied forcing J.A. to drink his own urine from a bottle. The father testified that they discovered that J.A. was peeing in bottles and glasses at night rather than going to the toilet. He testified that he found the bottle of urine in the basement and the garage. The father testified that when he confronted all of the children the first time, he told him that it was not appropriate, as the youngest child had been caught copying J.A. When it happened a second time in the garage, the father testified that he told J.A. and the other children that, "If I ever see you do this again, I will make you drink the pee."

[241] When asked about the younger children's statements to the police about excessive discipline, as well as their other disclosures, the father stated that the younger children were most likely lying to the police when they made these statements. When asked what the motivation would be to lie, the father testified that they were being influenced by J.A. The father also was critical of the police interview and stated that the police asked very leading questions.

The Mother's Evidence

[242] The mother testified with the assistance of a Twi interpreter. She adopted the father's affidavit sworn December 22, 2011 as her evidence as well.

[243] The mother is 41 years old. She immigrated to Canada from Ghana as a refugee in 1998. She became a Canadian citizen in 2003.

[244] The mother was educated in Ghana but because of personal circumstances, she did not complete her education. After she came to Canada, she took steps to upgrade her English then received college training and graduated as a personal support worker.

[245] The mother testified that she was raised by her parents until the age of six and then sent to live with her aunt and uncle. She lived with her uncle from six years old until he passed away in 1987. She described her uncle as her father. She testified that he and his wife did everything for her. While living with them, she was sent to an international boarding school. She would stay with her aunt and uncle on the weekends.

[246] At a very early age, the mother was betrothed to a friend of her biological father. After her uncle passed away, she was told by her father that this man wanted to marry her. He had paid for all of her school fees and gave her parents land to farm. The mother testified that she had no choice and she was married to him at the age of 19 years old. He was approximately 50 years old. This man was Y.A., J.A.'s father.

[247] The mother described the marriage as violent and coercive. She was 24 years old when J.A. was born. She tried to escape the marriage and was able to arrange a way to flee to Canada. The person who helped her told her that she had to leave her son. She left J.A. with her mother and fled, with the hope of arranging him to join her afterwards.

[248] The mother testified that after she left, her mother refused to tell anyone where she was, so Y.A. stopped providing support for J.A. and ex-communicated him. The mother started sending money to her mother to look after J.A. until he came to Canada. She later heard from her mother that Y.A. had died in 2004.

[249] The mother testified that she had been trying to sponsor J.A. since 2001. She retained three immigration consultants and gave them a lot of money until she final found a lawyer who helped her. When J.A. finally arrived, she had "tears of joy." She explained to J.A. that G.O. was his real father, not Y.A. She testified that she did not want him to know that Y.A. had rejected him.

[250] The mother described at length many of the same behavioural concerns as the father. She also testified that J.A. hit his younger siblings and tried to choke D.O. The mother testified that when she saw J.A. doing this, she had to smack J.A.'s back with her hand because she thought that he was going to kill D.O. This was the first time that this allegation was raised by either parent in this proceeding.

Response to Allegations of Excessive Discipline and Use of Ginger

[251] The mother admitted to spanking the children but she was adamant that she did not "beat" her children. She testified that she would sometimes give them a "gentle spank" as any caring responsible mother would do. She described this as an important way of correcting and "straightening" your children.

[252] The mother denied ever using a belt on the children, especially J.A. In response to K.O.'s evidence about the mother beating J.A. with a belt, the mother had the following explanation.

[253] The mother testified that one night at approximately 1:00 a.m., she caught J.A sleeping in K.O.'s bedroom in his underwear. Both children were sleeping in the same bed. The mother testified that she became scared and upset. She had earlier observed that J.A. was watching pornography. She ordered J.A. back to his room.

[254] The next day when J.A. came home from school, the mother sat down with him in the family room and asked him what he was doing in K.O.'s room. The mother testified that J.A. "just stood and looked at me."

[255] The mother testified that she was really upset. She then screamed to K.O., who was upstairs, to bring her a belt. After K.O. brought her the belt, she told her to leave. She then wrapped the belt around her hand and hit the belt repeatedly on the table beside J.A. while shouting at him, "You have to tell me the truth."

[256] In cross-examination, the mother described her action as swinging the belt up over her head and then banging it down hard on the table a number of times. It was a leather belt. She denied actually hitting J.A. with the belt. She testified that it was her belief that if J.A. saw the belt, "he would open up and tell me the truth."

[257] The mother testified that did not see this to be a threat and became angry when this was suggested to her in cross-examination. She testified that she did what every responsible mother would do in the situation.

[258] The mother testified that J.A. still refused to talk after this form of discipline, so she took him to the police station. She testified that when they arrived at the police station, J.A. finally agreed to talk. He admitted to watching pornography, but stated that he had not done anything with K.O.

[259] In cross-examination, the mother did not see that taking her son to the police station was a threatening action. She testified that she had taken J.A. to the police station on at least two occasions for bad behaviour. She explained that she had done this to make J.A. aware of the consequences of bad behaviour. This was her duty as a responsible parent.

[260] In response to D.O.'s evidence that his mother would hit him with a broom, the mother recalled one incident and had the following explanation. The mother had prepared food and put it on the table for D.O. and she told him to come and eat. D.O. was watching an educational DVD in the parents' office. The mother was sweeping the floor and after a time, she noticed that D.O. still had not come to the kitchen table. The mother testified that she went into the office and "used the broom to push his bum to come and sit at the table". She acknowledged that D.O. was crying.

[261] The mother denied using the ginger on the younger children as a form of punishment. She testified that when she was growing up in Ghana, it was used about four times on her to treat constipation. The mother explained that the children do not like swallowing medication and they run away if she tried. She prepares a home-made donut that they love called "boffo" and they eat a lot of it, causing constipation, especially the youngest child To treat the constipation, she will mash ginger, dissolve it in water, and "apply it to the bum". She takes them to the bathroom to administer it to their anal area.

[262] In cross-examination, the mother testified that she sometimes uses a syringe and she sometimes just applies it directly. She testified that she has administered the ginger to D.O. on approximately three occasions, twice with the syringe and once directly, and that she had administered to K.O. on two occasions, both times by applying it directly to her anus without the syringe. This contradicted the father's evidence on this issue.

[263] The mother acknowledged that the children would cry and that they did not like it. In cross-examination, the mother denied making the children sit on the floor for up to an hour after she administered the ginger root. She testified that the children would sit for a maximum of five minutes and that they would cry "for only two minutes".

[264] The mother refused to consider a non-painful or less intrusive method to treat constipation because she said her children do not like to take oral medicine. The mother testified that sometimes medication is uncomfortable, but necessary and that "even when they are immunized they have to be pampered with lollipops."

[265] The mother testified that the children thought that this was punishment because their older brother told them this and made them believe this. The mother described an incident when the children thought they were being punished with ginger for writing on the basement wall because J.A. said, "any time anyone writes on the wall--ginger." The mother said that everyone laughed, and "for fun" J.A. brought the ginger downstairs and showed the children. The mother testified that "this is something that we have fun with, especially if they are doing something they are not supposed to do."

[266] The mother denied that J.A. is locked out of the house. She testified that when J.A. does something bad and the parents wanted to "straighten him out and talk to him" he would go to the basement, the garage or his room. She testified that if he goes to the garage, he will then try to signal to the younger children to bring food to him. The mother acknowledged that she forbade the younger children to bring him food because it was not proper for J.A. to hide in the garage and then expect food.

[267] In cross-examination, the mother denied knowing that J.A. had stayed in the garage the previous night, even though she admitted to forbidding the younger children to give him food. She also admitted that she had not seen J.A. since the Monday or the early Tuesday of that week. When J.A. did not bring home the note from school, the mother testified that "he wanted to isolate himself and he would not talk with anyone". According to the mother, it was J.A.'s choice to either goes to his bedroom or the garage when this happened.

[268] The mother admitted to telling J.A. that if he did not change his way of life, then she would send him back to Ghana to a boarding school to "straighten him", "given how hard it was for him in Ghana." Despite being asked on two separate occasions by her own counsel, the mother did not acknowledge or see this as being harmful for J.A., but rather good for him. In cross-examination, the mother did not see this as a threat and continued to take the position that telling J.A. that he would be sent back to Ghana was the right thing to do as a parent.

[269] In cross-examination, the mother did not take any responsibility for what had happened to the family. When asked, she responded, "This proceeding is going on because of my son. We are well respected in the community. It is rather unfortunate that the two younger children have been dragged into this." She later stated that, looking back, her only regret was not recognising how J.A. was influencing and shaping the younger children by repeatedly telling them that they were being punished when they were not.

[270] The mother testified that her youngest child told her that J.A. was writing a book about parents who abuse their children. The mother testified that J.A. also told both children about a television show regarding parents who abuse their children. It was the mother's view that J.A. influenced and convinced the younger children that they were being abused in order to help his plan to go into foster care and avoid being sent back to Ghana.

Analysis and Findings

[271] For the reasons that follow, I have determined that the children should be found in need of protection. I find that the society has met its onus, on a balance of probabilities, that the children have been subjected to inappropriate physical discipline by the mother and the father.

[272] I also find, on a balance of probabilities, that the physical discipline used by the parents was not mild, but excessive and caused physical harm to the children, as defined by section 37(2)(a) and (ii) of the Act, or at a minimum, created a risk of physical harm to the child as defined in clause 37(2)(b) of the Act.

[273] Credibility was obviously a key issue in this trial. The society's case relies almost entirely on the children's evidence. I have very carefully considered the credibility and reliability of the children's evidence.

[274] J.A. has a history of lying and stealing. He has been in conflict with the youth criminal justice system. There are some aspects of his evidence in this trial that are concerning. J.A. lied about the burn injury to his hand when he was in society's care and told his teachers and friends that his mother had burned him with gravy. This was clearly impossible, as confirmed by the society and the group home where the burn actually occurred. In this trial, J.A. acknowledged in cross-examination that the burn occurred in the group home, but he initially denied and then "did not recall" telling people at school that his mother had caused it.

[275] It is very concerning that the society did not interview J.A. or follow up with him or third parties about this new allegation, as part of their ongoing duty to investigate and re-assess the protection concerns that led to their initial intervention. The court is at a loss to understand why this was not done.

[276] The court also found it difficult to accept that the "bloody beat" with the leather belt that J.A described actually lasted for thirty minutes although J.A. has maintained this. I was concerned about the reliability of the time period described by J.A. M.M.C., the school guidance counsellor, testified that J.A. sometimes "embellishes the truth" because he likes the attention.

[277] J.A.'s insistence in this trial that G.O. is his biological father is also concerning. If this is true, then J.A. lied to the police officer during his police interview. If it is not true, then there is a concern about the reliability of J.A.'s evidence, given how adamant that he was about this issue. It is unfortunate that the father did not agree to paternity testing as this issue could have been resolved very quickly. The court does not understand why the father would not agree to the paternity testing.

[278] According to the evidence of F.Y., J.A. lied to his school friends when he told them that his new foster home was a mansion with a pool. He also apparently lied about having a party and invited them all to an address that did not exist.

[279] I was concerned that this incident was never put to J.A. in cross-examination, nor did the society re-call J.A. in reply to this evidence or other evidence given by Mr. Y. regarding his conversation at school after J.A. was apprehended. J.A. was never given an opportunity to explain his side of the story, if there was one. The amount of weight I can give to C.Y.'s evidence given these concerns is questionable.

[280] Even if I accept F.Y.'s evidence, the fact that J.A. lied to impress his school friends does not mean that I must reject all of his evidence. J.A. was deeply troubled at that time, having just been removed and separated from his family and placed in a group home. The events described by Mr. Y. may explain why J.A. lied about the injury to his arm when he returned to school after the Christmas holidays. J.A. was able to engage F.Y. in conversation despite Mr. Y.'s evidence that he was so angry and upset with J.A. after he lied about the party that he "barely talked to him again".

[281] Despite the above concerns, I was able to carefully observe J.A. while he testified and during his videotaped police interview. When testifying about the incidents that took place at home prior to his apprehension, I find that J.A.'s evidence of being repeatedly hit with a belt by the parents, the use of ginger as punishment on the younger children, and being forced to sleep outside in the garage overnight was consistent, credible and reliable.

[282] J.A. made these disclosures consistently to his school guidance counsellor, a child protection worker, and a police officer, all persons in authority. He has now been vigorously cross-examined by three separate lawyers regarding these disclosures in two separate proceedings. He has not been shaken in cross-examination regarding the core child protection concerns regarding excessive and harmful discipline. His evidence on these issues was persuasive.

[283] J.A. has not recanted any of his disclosures. Contrary to his parents' submissions, J.A. has suffered a great deal in coming forward to persons in authority regarding what was happening in his home. He has been separated from his family and his parents do not want him to return to their care. He is "miserable" in the group home, according to Lisa Thompson, and the society has yet to find a suitable placement for him.

[284] Furthermore, and very compelling, the oldest child's evidence regarding the excessive discipline that was being used in the home was consistently corroborated by the two younger children. The two younger children had no motivation to lie. There has been no evidence adduced that the two younger children are manipulative, deceitful or have a history of lying. Their disclosures have been made to different persons in authority, and they have been cross-examined now in two separate proceedings. The younger children's disclosures regarding the extreme discipline that they and J.A. experienced have been remarkably consistent and credible. I agree with the society's submissions that it would be highly unusual for children of these ages to repeatedly fabricate false allegations of abuse.

[285] There was no opportunity for any of the children to collaborate and tailor their respective stories prior to their police interviews. The evidence establishes and it was not disputed at the conclusion of the trial that the younger children did not see their brother that morning or at all during the day and evening before they were removed from the home. They were then placed in a foster home, not the group home where the older brother was placed. They had no contact with their brother after being placed in care and prior to their police interviews. The children all described the same experiences of what was happening in their home to the police, albeit in language appropriate to their age.

[286] The parents' submission that the older brother influenced the younger children to corroborate his false allegations or somehow influenced them to be falsely convinced that they were being abused is simply not borne out by the evidence.

[287] K.O. was very upset with her older brother for telling the police what was going on in the home. She spontaneously burst into tears and accused J.O. of "trying to separate their family" when it became apparent that he had disclosed the use of ginger as punishment to the police. She was also candidly described her older brother as someone who likes to lie and who gets in trouble. When K.O. described how her mother hits J.O. with a belt, she seemed to suggest that it was his fault for being "mean" and not helping the family as he was supposed to do when her mother brought him to Canada.

[288] Further, when asked about the 'glass cabinet' incident by the police, K.O. disagreed with her older brother's view of what had occurred. She believed that it was an accident and that her mother did not mean to push his head into the glass, contrary to what J.A. has maintained. In cross-examination in this trial, K.O. maintained this view, even though she was aware that J.A. believed otherwise, based on what he had told her. This does evidence does not support the parents' position that K.O. is being influenced by her older brother to corroborate false allegations.

[289] Notwithstanding her view of her older brother as someone who lies and gets in trouble, K.O. corroborated much of what J.A. described going on in the home.

[290] I reject counsel's submission that K.O. burst into tears during the police interview because she was upset that J.O. was fabricating stories to separate the family. If that were the case, then she would have told the officer this, particularly given the negative view of him that she had already expressed to the officer. I find that K.O. was upset because she knew what her parents were doing was wrong and that the family was going to be separated as result of J.A.'s disclosures. K.O. then went on to truthfully corroborate much of what J.A. had already described.

[291] As well, K.O. has been cross-examined by both defence counsel and mother's counsel in two separate proceedings regarding her reaction to the police officer's question about ginger root. When asked repeatedly why she responded in this manner to the officer's question, she consistently testified that she blamed J.A. because he was the one who told the police about what was happening in the family. Her response disproves the parents' claim that she was being influenced by J.A. given her unhappiness with him for telling the police about the abuse.

[292] Further, there is no evidence to support the parents' claim in this trial that the children were fearful of J.A. because he had engaged in sexually inappropriate behaviour with them. I give very little if no weight to the parents' suggestion that J.A. was sexually abusing the children, causing them to be afraid of him and to be somehow under his influence to make false allegations of abuse against the parents. There is no evidence to support these very serious allegations and it is reasonable to expect that the parents would have reported this to the appropriate authorities if true. The children have never reported to anyone that J.A. has sexually abused them nor have they ever expressed fear of J.A., despite being asked this a number of times by counsel.

Use of Ginger as Punishment

[293] I further reject that the children misunderstood that their mother was really using the ginger to treat constipation and that they were somehow influenced by J.A. to mistakenly believe that their mother was using the ginger for punishment.

[294] I had the opportunity to carefully observe K.O. give evidence during this trial and to read the transcripts of her cross-examination at the preliminary hearing. I found her to be a credible and reliable witness. She is a very intelligent child. She has consistently and repeatedly testified that the ginger root was used as punishment and she clearly understood the difference between punishment and medical treatment.

[295] In reply to a number of leading questions and suggestions by both defence counsel at the preliminary hearing that her mother used the ginger root to help her with constipation, not punishment, K.O. described that the ginger root was used by her mother to punish her when she did something bad. She gave a number of examples of how it was used to correct her 'bad behaviour', both to the police and in the preliminary hearing.

[296] During this trial, K.O. testified and was cross-examined for approximately two hours by mother's counsel. She presented in a forthright and credible manner and again she withstood cross-examination well without her credibility being diminished. She further testified that "on a scale of one to ten", the ginger hurt between "six to eight", depending on how much her mother used. She testified that she would tell her mother that it hurt, and her mother would not say anything in response.

[297] K.O. and D.O. both gave clear and specific examples of when the ginger was used, and on each of the occasions described, they had done something "bad", that their mother thought required corrective discipline. They consistently maintained this while being cross-examined by three different lawyers on two separate proceedings. D.O. also presented as a very intelligent child. They clearly knew when they were being disciplined by their mother. The evidence is undisputed that the experience caused the children pain and made them cry.

[298] I further do not accept the parents' testimony that the younger children started to believe that receiving the ginger root was punishment, rather than medical treatment because the oldest child started a "running joke" in the family that if they did not do what they were told, then they would get ginger in their bum. In cross-examination, it was pointed out that this directly contradicts the father's sworn affidavit evidence, adopted by the mother, that it was the parent, not the oldest child, who would joke with the children that if they misbehaved, then they would get ginger in their bum.

[299] I fail to see why either parent would joke about this in the context of telling the children to "do what they are told" unless, at a minimum, this was a negative and punitive experience for the children. Further, although K.O. remembers talking about the ginger being used as punishment with her older brother, she denied that it was "a running joke" or that her brother would joke about it.

[300] Even if I accepted that the ginger root was used by the mother to treat constipation, I respectfully disagree with counsel's submission that this was a necessary but painful medical treatment, similar to an injection or vaccination. Both parents acknowledged in their testimony that there are a number of other painless alternatives to treat constipation. The father is a registered pharmacist and he acknowledged that he has never recommended ginger root in the anus to treat constipation.

[301] None of the parents' witnesses, many of whom are members of the Canadian Ghanaian community, administer ginger root in this manner to treat their children's constipation. S.B., a close friend of the parents, appeared surprised when asked in cross-examination about the use of ginger root and did not know that the parents were doing this.

[302] The mother testified that she knew that using the ginger root in this manner on the children caused them pain and made them cry, yet she continued to use it. This was a deliberate act that caused the children unnecessary pain, given the available medical alternatives. It was also no doubt a degrading and humiliating experience for the children.

[303] In order to support a finding that the children are in need of protection, the court does not need to find that the parent intended to inflict harm on the children as a form of punishment under section 37(2)(a) or (ii) of the Act. The society only needs to prove causation by act, omission or pattern. It is not necessary to prove intention. Physical harm caused by an error in judgment is still physical harm. See Children's Aid Society of Niagara v. P.T. (2003), 35 R.F.L. (5th) 290.

[304] However, notwithstanding the above legal threshold, I do not accept the mother's evidence that she used the ginger root to treat constipation. K.O. and D.O. clearly and consistently described it as a form of punishment, that it was intended to be painful and made them cry. I find that their disclosures were credible and reliable.

Excessive Discipline by the Parents

[305] Even though the parents denied using the ginger for punishment, or hitting their children with a belt, locking the oldest child out of the house, or forcing him to drink his urine, they admitted to the following during their examination:

a. Both parents admitted to corporal punishment. The father admitted to spanking J.A. on the bum even when he was a teenager. The mother admitted to using a broom to "push" the youngest child when he had not come to the table, making him cry. The mother admitted to hitting J.A on the back when she thought he was harming the youngest child.

b. The mother admitted to banging a leather belt, repeatedly and with force, on the table adjacent to the oldest child a number of times as a form of corrective discipline, but not actually hitting his body with the belt. She described her actions as swinging the belt up over her head and then banging it down hard on the table beside him repeatedly. She did not see anything wrong with this;

c. Both parents admitted to threatening to make the oldest child drink his own urine if he urinates in a bottle again.

d. The mother admitted to taking the oldest child to the police on two occasions as a way of correcting him and compelling him to "tell the truth".

e. Both parents admitted to telling the oldest child that he is being sent back to Ghana unless he changes his ways.

f. Both parents admit to being aware that the oldest child was staying in the garage on a number of occasions, and being away from the house, including for a period of time that exceeded one day.

[306] The mother's testimony that she did not hit J.A. with a belt, but rather hit the table beside him as a way of correcting his behaviour is directly contradicted by J.A. and K.O.'s evidence and is simply not credible. K.O. testified that although she was not in the room when this incident occurred, every time she heard the belt hit something, she would then hear J.A. scream. J.A. categorically disagreed with this description of what occurred, as suggested to him a number of times in cross-examination. He consistently maintained that his mother "got the belt to beat me." The children's evidence regarding this incident was credible and persuasive. The mother's testimony regarding this incident was simply not credible.

[307] It was also very concerning that mother saw nothing wrong with this conduct, even if I accept her evidence that she was repeatedly hit the table adjacent to J.A. with the belt, not him, and then drove him to the police station afterwards. The mother expressed no remorse or concern about these actions. She was defiant and hostile when questioned if this was appropriate discipline. She sincerely believed that this was what a responsible and caring mother would do.

Failure to Provide Adequate Care

[308] I also find, on a balance of probabilities that both parents banished J.A. from the house. They knew that he was in the garage, and they did not want him to return to the house. Even if the door between the house and the garage was not locked, J.A. was clearly not welcome inside of the home when his parents were angry with his behaviour. J.A. was afraid to return to the house and be subjected to another beating. All three children talked about J.A. being banished to the garage or being told to "leave [their parents'] presence" when he did something bad. The parents admitted to telling J.A. to leave their presence when he was not responding to their lectures.

[309] In response to an open-ended question by the police officer at the beginning of his interview, D.O. spontaneously, and without any prompting, described his parents, his sister and himself as living in his home and his older brother living in the garage. He also described trying to give food and water to his brother when he was in the garage, but that he would get into trouble.

[310] J.A. consistently testified that his father would usually let him back into the house when he returned home late from work however, on the night before the apprehension, his father did not do this. I find as a fact that on the night before J.A. approached his school teacher for help, J.A. was left in the garage or outside all night.

[311] I do not accept the mother's evidence that J.A. chose to stay in the garage, particularly overnight in the winter, without heat, food or access to a toilet and a warm shower. This is not credible. Even if I accepted this to be true, then a responsible parent would have insisted that J.A. return to the house and sleep inside on a cold winter's night.

[312] I further do not accept that the mother did not know that J.A. was in the garage on the night before the apprehension, particularly when she testified that she forbade the younger children to give J.A. food because he was 'choosing' to remain in the garage.

[313] Further, the mother's evidence that J.A has never been gone from the house for three days and her denial that the parents did not care or try to look for him is directly contradicted by the evidence of M.O., her own witness, when he testified that on the third day of J.A.'s absence during the summer, he encouraged the parents to look for J.A. because he was concerned.

[314] K.A. also testified in this trial that when J.A. was in the garage, the younger children had to lock the door as their mother told them to. She further testified that her parents were not really concerned when J.A. had been gone for a number of days in the summer and that the only reason they looked for J.A. on the third day was because their uncle had told her parents on the third day that they needed to find him. Her evidence was credible and was corroborated by the evidence of M.O. referred to above.

Glass Cabinet Incident

[315] I am not persuaded on a balance of probabilities that the mother deliberately smashed J.A.'s head into the glass cabinet, although no doubt something occurred. The evidence regarding this event was contradictory. K.A. thought that what had occurred on this occasion was an accident. However, C.D. testified that the mother was extremely upset and angry with J.A. for eating the food that she had prepared for dinner. It is possible that, in anger and frustration, the mother pushed J.A. causing him to fall into the cabinet.

Forcing J.A. to Drink Urine

[316] The father admitted to threatening to make J.A. drink his own urine if he urinated in a bottle again. K.O. told the police that J.A. told her that their father had made him drink the pee in the bottle and that she heard her father say that he was going to make "J.A. drink that pee too" when she found the bottle in the garage.

[317] It is difficult to determine what exactly transpired although, at a minimum, it is very concerning that the father threatened to make J.A. drink his own urine. I observed that during the father's testimony, he did not appear at all concerned about this threat to his son and viewed this as appropriate parenting.

The Parent's Witnesses

[318] I gave little weight to much of the evidence of the parents' close friends. With the exception of C.D., none of these individuals lived with the family and they usually saw them on weekends or at church. I had concerns with C.D.'s evidence. She was clearly protective of the parents. I did not understand her role in the family. She testified that she was a close friend of the mother from Ghana yet she did not seem to know much about the mother's personal history. Her description of her role while she lived with the family was more akin to a caregiver for the children while the parents worked, rather than a friend.

[319] It is notable that Dr. Gibara testified in cross-examination that neither parent raised the issue that the younger children were suffering from constipation with him until April 19, 2013, a few days before this trial. This was surprising given the parents evidence throughout this trial that the younger children, particularly D.O. had problems with constipation and stomach cramps and that ginger was the only available treatment alternative.

[320] It is also very concerning that it was not until a few days before this trial that the father attended the doctor's office and discussed the parents' use of ginger root to treat constipation. This appeared to be a last minute attempt by the father to bolster the parents' case.

[321] Dr. Gibara's evidence regarding the disclosures of physical harm was not helpful as the last time that he met the younger children was in 2009 and 2010 respectively, more than one to two years before the children's apprehension. Further, Dr. Gibara testified that the mother was always present during all the children's medical appointments and would remain with them during their examinations leaving no ability for the doctor to speak to the children privately. However, it is notable that Dr. Gibara testified that he did observe the scars on J.A.'s arms and legs, but they appeared old, not recent, when he examined him in 2010 and 2011. He estimated that some scars appeared to be three months old.

Conclusion

[322] Throughout her evidence, the mother presented in a defiant, angry, and hostile manner, particularly when she was being cross-examined. She expressed no remorse, nor did she accept that her methods of disciplining the children were abusive or harmful. The mother blamed her oldest son for almost everything. She did not accept any responsibility for her actions.

[323] The father was not angry or defiant when he testified. It was my assessment that he left the majority of the physical discipline to the mother given his long hours of employment. He did not administer the ginger root to the children. Nevertheless, although, as K.O. described, he sometimes tried to "cool the mother down", he did not intervene or stop the mother when she physically disciplined the children and I find that he also used the belt to discipline the children, in particular J.A.

[324] There are positive aspects of the respondent's parenting. The parents provided a structured household routine with chores, Kumon, extra-curricular activities, church, Sunday school, swimming lessons, and family outings for the children. Both parents place a very strong emphasis on education and the importance of a good education for their children. It was clear that the younger children in particular did well academically and their parents had high expectations of them.

[325] Both parents testified that they always tell the children that "Education is everything. If you have it, no one can take it from you." The mother testified that she always tells the children that with education, "the sky is the limit. The parents also have a lovely home which they proudly maintain. The children were always well groomed and well dressed.

[326] The parents are also very hard working people. As immigrants to Canada who came with very little, they have worked extremely hard to build very successful lives here and to build a good home for their children. They are also very involved with their church and clearly have a strong support network of friends from their church and community, a number of them who testified in this trial. Until the children were apprehended, they have never been involved in the criminal justice system. They do not drink alcohol, or use any form of drug.

[327] The parents are intelligent and well-educated. They were very respectful of the court process and participated fully in the process.

[328] It was apparent that this has been an extremely difficult experience for the parents. They do not see themselves as abusive. They see themselves as good parents doing whatever is necessary to raise their children to become good citizens, and they both sincerely believe that corporal punishment and strict, corrective discipline is a necessary part of raising children. The mother in particular stated the following at the conclusion of her direct examination,

"I will let your Honour know that I don't beat my children. As a caring responsible mother, I know that if you don't straighten up your children, they will be in trouble in the future, so a little spank on the bum to straighten them is necessary…. If I see them do something scary, I will give them a gentle spank... I want everyone to know that it's a way of straightening your children."

[329] However, I find that the mother greatly minimized her methods of physically disciplining the children and she did not tell the truth about her use of ginger and the belt to punish the children. The mother does not accept that her method of discipline is harmful.

[330] The parents' attempts to correct or "straighten" the children through physical discipline amounted to excessive physical force and physical harm. It has been well recognized by the Supreme Court of Canada that this is not acceptable. The court stated unequivocally, although in the criminal context, that "corporal punishment" using objects such as rulers or belts will not be reasonable and is physically and emotional harmful to children. The court further stated that corporal punishment of teenagers is harmful under any circumstances.

[331] It is possible that the parents' methods of discipline may be rooted in cultural practices and their own experience of growing up in Ghana. As indicated before, there are some positive aspects of their parenting. The court hopes that the parents will work with the society or other professionals in learning alternative methods of discipline and better parenting techniques. The physical discipline that the parents used is not acceptable or reasonable in any circumstances.

[332] During this trial, the parents spent an enormous amount of time and energy attempting to demonize J.A. and to hold him solely responsible for what has happened to their family. I found this to a very disturbing aspect of this trial.

[333] Although not serving to determine the issue before me in this trial, I wish to make the following observations. The parents had very unrealistic expectations for J.A. when he first arrived in Canada. The parents failed to adequately support J.A.'s transition and integration into their family and Canadian society. They acknowledge now that they did not recognise the level of support and understanding that J.A. would need when arriving at the age of thirteen to a new family in a new country with a different language, education system, and culture, and as a child who had experienced trauma.

[334] Indeed, J.A. arrived on a Saturday and started in a new school the following Monday, two days after his arrival. When J.A. failed to meet the parents' unrealistically high expectations, their reaction, particularly the mother's, was excessively harsh and unsympathetic.

[335] In my view, Ms Thompson's assessment that J.A. felt that he was always disappointing people, especially his parents, was poignantly accurate. The message that J.A. appeared to consistently receive from his parents was how much money they spent to get him to Canada and how disappointed they were in him after his arrival. J.A. waited for more than ten years to be re-united with his mother and to become a part of a family. One can only imagine how he felt when he was rejected shortly after his arrival for not meeting her expectations. It is very sad and indeed concerning that the parents are now only seeking the return of their two younger children and do not want J.A. returned to their care.

Order

[336] This Court makes the following order:

1. The children are found to be in need of protection pursuant to section 37(2)(a)(ii) and 37(2)(b) of the Act.

[337] As stated at the outset of these reasons, this decision is only about whether the children are in need of protection. It is not about whether the children should be returned home or what placement order is in their best interests. Counsel should schedule a case conference regarding the issue of disposition at the earliest available hearing date.

[338] Finally, I wish to thank all counsel for their thorough representation and their professional conduct throughout this trial.

Released: October 4, 2013

Signed: "Justice Sheilagh O'Connell"