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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

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

Court Information

Court File No.: 282/11

Date: 2013-12-20

Ontario Court of Justice

Between:

The Children's Aid Society of the Regional Municipality of Waterloo

Applicant,

— AND —

L.W. — AND — I.R.

Respondents

Before: Justice M.A. McSorley

Heard on: April 23, 24, 25, 26, May 7, 8, 9 and 10, 2013

Reasons for Judgment released: December 20, 2013

Counsel:

• Mr. J. Boich — for the applicant Society
• Mr. G. Schafer — for the respondent mother, L.W.
• Mr. W. Wintar — for the respondent father, I.R.
• Mr. W. Brownell — OCL for the child R.M.E.W.

McSorley J.:

Introduction

[1] The matter before the court involved an amended protection application concerning three children, R.M.E.W. born […], 2000, A.R. born […], 2006 and Z.R. born […], 2008. The society sought an order that the children were in need of protection pursuant to s. 37(2) (b-i), (b-ii) and (g) of the CFSA. The findings were not in issue at the trial.

[2] With respect to disposition, the society initially sought a six months' supervision order placing the younger boys with their father and a six months' society wardship order for R.M.E.W.. R.M.E.W. was returned to her mother's care on July 31, 2012 on an interim basis and remained in her mother's care from that date forward. At the time of trial, the society indicated that it would be content that the mother have custody of R.M.E.W., given the amount of time she had lived with her mother without protection concerns. The society was also content that the boys remain in their father's care under a custody order, but indicated that if the boys were returned to the mother's care, a supervision order would be necessary.

Background

[3] The respondent L.W. is the mother of all three children. The respondent I.R. is the biological father of the two younger children and step father to the child, R.M.E.W. The biological father of R.M.E.W. is unknown. The mother also has an older child, C.W. born […], 1993 who was not part of these proceedings.

[4] The mother was involved with the Perth CAS as a child. She resided in several foster homes as well as group homes. According to her evidence, she spent most of her childhood in foster care. She indicated that her mother told her she was a difficult child. She was also placed at CPRI, a child psychiatric institution, for approximately one year and spent time at London Psychiatric Hospital when she was 13. She testified that her time in foster care was traumatizing and that she experienced verbal, sexual and psychological abuse. She noted that her time in foster care affected the manner in which she interacted with the society as an adult. She stated that she had no trust in the society because they were the people entrusted with her care as a child, and that they did a "pretty poor job of that."

[5] As a parent, she was involved with London Family and Children's Services regarding issues of domestic violence in her relationships, lack of appropriate supervision for the children in her home and physical assault on her daughter C.W. by her partner. The mother and her daughter moved to Huron County where she was again involved with the CAS regarding budget concerns and behaviour management of the child. Eventually the mother and her partner separated.

[6] From November 2001 to March 2002, the society was involved with the mother and father after an assault by the father on the mother in the presence of R.M.E.W.. During that period, the mother was also arrested for shoplifting, while her daughter was with her. The mother refused to work voluntarily with the society and the file was closed in 2002.

[7] Between July 29, 2004 and November 5, 2005, there were four investigations into issues including domestic conflict between the mother and father, lack of supervision, inappropriate physical discipline of the child C.W. and a mischief charge against the mother.

[8] Between April 16, 2007 and November 2008, there were six referrals regarding the family. These included adult conflict between the mother and father; the removal of marijuana plants from the mother's residence, and lack of supervision of R.M.E.W..

[9] In August 2007, the parents agreed to an order for joint custody of A.R. with principle residence with the mother. On March 20, 2009, a similar joint custody order was made regarding Z.R.. On March 18, 2010, the parties agreed to an order that the mother have sole custody of both boys, with access to the father.

[10] In September 2010, the society received two referrals regarding conflict between the mother and her neighbours in the presence of the children. The mother also contacted the society and indicated that she was struggling to manage R.M.E.W.'s behaviour. The mother entered into a voluntary service agreement, but continued to have difficulties with her neighbours.

[11] In December 2010, the mother advised the society she had a person living in the basement of her housing unit and although that person was also involved with the society, the mother did not anticipate any problems. By January 2011, the mother was involved in adult conflict with her downstairs roommate. The mother advised that she had become angry and destroyed numerous objects in the home. The police attended and the mother was charged with mischief and assault. Following her arrest, the boys resided with the father. She was eventually convicted of two counts of mischief under $5,000 as a result of a guilty plea and was sentenced to 15 months probation.

[12] Between December 2010 and June 2011 the boys were in the care of both parents, although the amount of time spent with the father is disputed.

[13] In May 2011, the maternal grandmother contacted the society indicating that the mother had left R.M.E.W. with her in order to attend at Grand River hospital to have her medications assessed for an adjustment. The mother left the hospital without having her medications assessed because there were no beds available for her. A safety plan was developed that the younger boys would stay with their father and R.M.E.W. would stay with her maternal grandmother.

[14] On June 27, 2011, R.M.E.W. was unable to enter the home upon her return from school. She went to the home of a friend and attempted to call her mother's cell phone. The mother did not answer the telephone and the message heard by R.M.E.W. was "Whoever gets this message, goodbye." R.M.E.W. advised her friend's father who contacted police. The police entered the mother's home through a second story window. A note was found on her bedroom door stating, "I'm sorry, God Bless". The police found the mother unconscious on her bed. They found three different prescription bottles and estimated that the mother had consumed approximately 100 pills. The bath tub was also filled with warm water, with two knives and a sharpening stone on the edge of the bathtub. The mother was taken to Grand River Hospital where her condition was treated and stablized.

[15] As a result of this incident, the children were apprehended. On June 29, 2011, an interim interim without prejudice order was made placing R.M.E.W. in the care of the society and placing the younger boys in the care of their father subject to supervision. As indicated, R.M.E.W. was returned to her mother's care on July 31, 2012 and the boys have remained in their father's care.

Position of the Parties

[16] The society's position was that the children were in need of protection when they were apprehended. None of the parties disputed that a protection finding should be made. With respect to disposition, the society was agreeable to a custody order of R.M.E.W. in favour of the mother, and a custody order of A.R. and Z.R. in favour of the father. In the event the court determined that A.R. and Z.R. should be returned to the mother, the society asked for a supervision order in order to monitor the mother's ability to care for the three children.

[17] The father's position was that the boys had resided with him for approximately three years, including a period after the custody order was made in favour of the mother and that it was in A.R. and Z.R.'s best interests to continue to do so under a custody order or supervision order.

[18] The mother's position was that she had "charge" of the children immediately prior to apprehension and as such the boys should be returned to her care. She argued that she suffered from situational crisis in June 2011 and that she never intended to give up custody or charge of the boys and that the father never intended to care for the children on a permanent basis. She acknowledged that if the court returned the boys to her care, a supervision order would be necessary.

[19] Mr. Brownell, OCL for R.M.E.W. agreed that R.M.E.W. should remain with her mother subject to a custody order. He took no position with respect to the boys.

Issues

[20] The following issues were before the court:

a) Are the children in need of protection?

b) Who had 'charge' of the children immediately before the intervention by the society?

c) What disposition order is in the best interests of the children?

The Law

[21] The society sought an order that the children were in need of protection pursuant to s. 37(2) (b-i) (b-ii) and (g) but indicated that they were content that a protection finding be made under s. 37(g).

[22] If the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders under s. 57 in the best interests of the child:

1. supervision with a parent or other party for at least 3 months but not more than 12 months;

2. society wardship for a period of not more than 12 months;

3. Crown wardship until the wardship is terminated under s.65.2 or expires under subsection 71(1); or

4. A combination of society wardship followed by supervision, with the cumulative period not exceeding 12 months.

[23] The court may also make a s. 57.1 custody order if such an order is in the best interests of the child.

[24] Subsection 57(3) indicates that the court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this part, unless the court is satisfied that alternatives that are less disruptive to the child would be inadequate to protect the child. Subsections 57(4) and (9) refer again to the person who had charge of the child immediately before intervention. (Emphasis mine) This last point became the focus of the mother's position.

[25] The court was provided with five cases on this issue. In J.M.S. v. F.J.M., a decision of the Superior Court of Justice, Divisional Court, the mother had agreed to Crown wardship for her "special needs" child because his upkeep was beyond her financial means. Despite the Crown wardship order she exercised regular access on weekends and holidays, provided him with clothing, toys and sports equipment, haircuts and personal items, did his laundry and attended his doctor and dental appointments. She brought a motion to change in which she asked for support for two children, including the child in care. The motions judge found that the son appeared "to be still physically and financially under the mother's 'charge' and ordered the father to pay support. The father appealed that decision to the Divisional Court.

[26] In his decision, Justice Meehan discussed the definitions of the words "charge" and "custody". According to Black's Law Dictionary charge was defined as "a person or thing entrusted to another's care…" Custody was defined as "the care and control of a thing or person." Justice Meehan held that the mother did not have charge or custody of her son and allowed the appeal from the previous order.

[27] In CAS of Ottawa v. H.C. and C.C., [2003] O.J. No. 5309; 127 A.C.W.S. (3d) 1159, the court also dealt with the issue of who had 'charge' of a child. In that case the child was residing with his father pursuant to an interim order made on consent. The father was arrested and held in jail for approximately 6 days, on criminal harassment and stalking charges. While the father was in jail, the child remained with his mother. The society had been notified of the charges and brought a protection proceeding seeking a six months supervision order with placement with the mother. The question regarding whose charge the child had been at the time of intervention arose at the interim motion.

[28] At paragraph 18 of the judgment, Blishen J. stated that the fact one parent has an order that the child reside with him or her is not determinative of the issue. She went on to say, however, that neither is the fact the child is with a particular person immediately before the society brings the matter to court, determinative. She found that it was necessary to examine closely all the facts in order to determine who had the ongoing care, custody and responsible possession of the child. She found that the child had been in the 'charge' of the father because he had resided with the father for two months prior to his arrest; the father had an interim custody order; and the care provided by the mother for one week was a 'temporary' situation.

[29] In the case of CAS of Toronto v. S.A., [2008] O.J. No. 3110, 2008 ONCJ 348; 170 A.C.W.S. (3) 354, Spence J. also dealt with the issue of 'charge' on an interim care and custody motion. In that case, the society and mother both argued that since the child had been in the charge of the mother immediately before intervention, the child should be returned to the mother and competing parental plans should not be considered.

[30] Although Spence J. found that the parents had joint charge of the child and then considered competing parenting plans in making his decision on interim care and custody, he did discuss the meaning of "charge". At paragraph 48, Spence J. noted that section 51 (2) of the act does not talk about returning the child to the person who had "custody" but rather, returning the child to the person who had "charge' of the child. He noted there could be many instances where one person had custody but another person had 'charge' of the child.

[31] In paragraph 49, Spence J. used an example where a mother with legal custody placed her child with an aunt because she was unable to care for the child for financial or medical reasons. Several months later, the society intervened. Spence J. opined that where the mother had consented to a change in the child's residence and where that new residence had been in place for several months, the person who had 'charge' of the child, was the aunt. He noted that it was the aunt who had the "authority and responsibility" over the child, having had that authority and responsibility conferred on her by the mother, notwithstanding that there had not been a formal custody order made in favour of the aunt.

[32] In CAS of London and Middlesex v. S.D., [2008] O.J. No. 3796, 300 D.L.R. (4th) 123, 2008 CarswellOnt 5739, 169 A.C.W.S. (3d) 586, Harper J. agreed with the reasoning of Spence J. noted above and stated that there must be evidence that a person has an active relationship with the child that includes care and responsibility and that it is something more that physical possession or limited incidents of care.

[33] Finally, in the case of Children's Aid Society of Ottawa v. J.M., [2010] O.J. No. 5646, 2010 ONSC 7119, the court dealt with the issue of 'charge' on an interim motion for care and custody of the children. Power J. noted that 'charge of a child suggests some established relationship, not something transient or temporary' and that the children being in their father's care for two months prior to apprehension was not equal to being in his charge. The court also found that 'a without prejudice' order has a dwindling shelf life and that children are not pieces of furniture who can be stored for a parent's convenience to rehabilitate his or her situation only to be taken out of storage once that parent feels he or she is ready to argue the interim motion. The court also found that the period of time the children had been in the care of their paternal grandparents (8 months) was a very long time in the lives of young children.

Analysis

[34] The issue of 'charge' was the focus of the mother's argument. She argued that she never intended for the boys to remain permanently in the care of the father and that prior to the apprehension, the evidence was that he too, did not intend to care for the boys permanently. The evidence regarding this issue came in the form of case notes of the previous family service worker, Deborah Lehman. Ms. Lehman was unable to give evidence due to her being away from work on long term disability. The parties agreed that her brief case notes for the period May 18, 2011 to July 7, 2011 could be entered into evidence, as Exhibit 6.

[35] The notes show that in May 2011, prior to the apprehension, the boys were residing with their father. This situation occurred with the consent of the mother, despite the fact that she had sole custody of both boys, pursuant to an order made on consent on March 18, 2010.

[36] However, as a result of the mother having difficulties with her neighbours in the summer of 2010, she sent the boys to live with their father from approximately September 5, 2010 to December 5, 2010. The boys then returned to their mother's care until January 23, 2011, when they were placed back with their father. The boys remained in their father's care until the beginning of March, 2011. They then moved back to the mother for a short time. Although none of the parties were sure of the date that the boys went back to their father's care, by Easter Monday, April 24, 2011, the boys were back with their father and remained there from that point forward.

[37] During the spring, the mother was experiencing difficulties with her medication that required Mr. R. to keep the boys in his care. The notes of Ms. Lehman dealt with this time period.

[38] On May 18, 2011, Ms. Lehman spoke to the father by telephone advising him that the mother needed to have her medication changed and further needed a period of stability before the boys could be returned to her care. Mr. R. was annoyed by this information and advised the worker that:, "this is bullshit", commenting that his having the boys was only supposed to be for one day and it had turned out longer. The mother relied on this note and the father's comments to show that he had no intention of maintaining charge of the boys on a permanent basis. It is noteworthy that Mr. R. had been concerned about the care the boys received from their mother in the past and had advised a counsellor at K-W Counselling in September 2008 that he was fully prepared to take care of his children on his own.

[39] Ms. Lehman's note goes on to say that the father advised the worker that the mother kept "putting the boys at risk and that the society did not care" and kept putting the boys back with her. This information suggests that Mr. R. was annoyed by the entire situation where the boys were being moved back and forth despite being at risk in the mother's care, not that he did not wish to maintain the boys. Despite his outburst, he agreed to keep the boys and consented to the worker coming to his home to visit with him and the boys one week later.

[40] Two days later, a similar conversation was held between Ms. Lehman and the father. The worker called the father as a result of learning that he had told the mother during a telephone conversation that he was 'sick of the boys and was sending them to CAS." Mr. R. acknowledged that he had the conversation with the mother, but explained that he had become angry because initially the mother said she would take the boys for the weekend and then changed her mind. According to the notes the father was calm and cooperative during the telephone conversation. He went on to tell the worker that his issue was not with the boys, but was with the mother's instability. While the mother asks the court to find that the statements made by the father indicated that he did not want to care for them, they also indicate that his frustration was with the mother's instability and the movement of the boys back and forth between them. Despite his comments, the father, at no time, refused to care for the boys.

[41] During the home visit on May 25, 2011, the father explained that he had told the mother during the telephone conversation noted above that he was going to put the boys in foster care, but that he had been reacting to the mother and was not upset with the boys. He also indicated that he had also advised the mother that he would be returning to court to obtain full custody of the boys. That statement does not suggest that the father did not want to care for the children. He noted that when the mother called him and advised that he had "won" and that he had "killed her", he felt guilty for causing emotional upset to her and tried to call her and tell her he would not go forward with a court proceeding. He was unable to contact her on this occasion. He went on to tell the worker that he was concerned about the mother's instability and her ability to parent the children and that he wanted structure and routine for the boys.

[42] During that same time period, another worker was involved with the mother. Mr. Aaron Delsaut was an after hours worker who was tasked with attending the mother's home on Sunday, May 22, 2011 to do a 'well being" check, because the mother had been struggling with mental health issues. The mother had been to hospital the Thursday before, feeling suicidal. When he arrived at the mother's home, he found her upset due to her having trouble with Grand River Hospital in getting help to balance her medication and upset with the father as a result of his telling her on the telephone that he was done taking care of the boys and was going to put them into care (incident noted above.) He noted in cross examination that she was in a state of crisis. He discussed a safety plan with the mother and with R.M.E.W.. When he left the home, there were no immediate concerns, the mother did not feel suicidal, and there was a safety plan in place. He indicated that he was satisfied the mother was seeking supports in the community.

[43] During cross examination by the father's lawyer, Mr. Delsaut indicated that there were no concerns regarding the boys because they were living with the father. The mother did not complain about the father's care of the children but was concerned that he would take advantage of the fact that she was working on her mental health issues to get custody. Mr. Delsaut noted that the boys were safe in the care of their father.

[44] During cross examination by the mother's lawyer, Mr. Delsaut advised that the mother had expressed annoyance with the society for not attending to check on the boys after the father had told her on the telephone that he was going to put the boys into foster care. He noted that there was no allegation of abuse or fear for their safety and no indication that the boys were at immediate risk of harm. From his point of view, the family service worker could follow up with the father as to why he made the statement to the mother, which in fact, she did.

[45] Mr. Delsaut noted that there was no need to apprehend R.M.E.W. at the time because she was older, familiar with her mother and her mother's moods and was capable of calling 911 if necessary. He testified that there were no physical signs of neglect or concerns about the state of the home.

[46] Mr. Delsaut noted that he had also been involved with the family on an earlier occasion in January 2008. He became involved when a referral was made to the society regarding an injury to R.M.E.W. caused by her mother with a thrown toy. During his interview R.M.E.W. indicated that she had hit her baby brother A.R. by mistake and that her mother was angry at her. Her mother was attempting to throw a toy sheep into the toy bin, but hit R.M.E.W. with it, slightly injuring her. Although R.M.E.W.'s information was that being hit with the toy sheep had been accidental, she did have a mark on her head that prompted the referral to the agency.

[47] During this interview, Mr. Delsaut also learned that the school principal found the mother difficult, angry and hard to deal with. She refused to sign R.M.E.W.'s IEP and was not utilizing the communication book. She did not ensure that R.M.E.W. was reading at home. According to the mother, she felt harassed by the school.

[48] Mr. Delsaut attended the home later that day. The mother, father, C.W. and A.R. were present. Mr. Delsaut noted that the residence was acceptable and that Mr. R. was cooperative with him. Mr. Delsaut discussed adult conflict with the parents and noted that they indicated they were considering counselling. He discussed the issues raised by the school about R.M.E.W.'s medications. At the end of the interview, it was agreed by the parents that they would take R.M.E.W. to a doctor and that a worker would follow up. Mr. Delsaut testified that the protection concerns did not warrant ongoing investigation or service, so the file was closed.

[49] After the May 2011 visit, the boys continued to reside with their father. Ms. Lehman attended an unscheduled home visit with the father on June 23, 2011. The father advised that the boys were fine and that he was managing their care without any concerns. He noted that he had the help of his parents. He indicated that he and the mother were talking again and that there would be no problems in having A.R. taken to his doctor for blood work. He further advised the worker that he would not be starting a custody application.

[50] Four days later, another after hours worker, Jana Tatton, was sent to investigate the referral regarding the mother's suicide attempt. She attended at the home where R.M.E.W. had gone after school when she could not get into her own home. R.M.E.W. advised Ms. Tatton of what had occurred when she called her mother and received the voice message saying goodbye. R.M.E.W. advised that her mother had been crying a lot. She said her mother took medication but did not know the reason for the medication. She thought that it was to help her mother sleep. R.M.E.W. indicated that her mother started taking the medication when her brothers went to live with their father. She said that her mother's sleeping during the day instead of looking after the boys was the reason the boys went to live with father. Ms. Tatton noted that R.M.E.W. presented as unkempt and that her clothes were too small for her.

[51] R.M.E.W. advised the worker that she got herself ready in the morning. She noted that she got herself dressed, made her own breakfast, took her ADHD and thyroid medication and packed her own lunch. She indicated that when she arrived home from school her mother was often sleeping and that she made her own supper, usually microwaving hot dogs or Kraft dinner.

[52] The worker explained that the mother was ill and needed to stay in hospital for a while and asked R.M.E.W. if there was someone she wanted to stay with. Initially, R.M.E.W. asked if she could stay with her friend and friend's father. Secondly she wanted to stay with her sister C.W.. She indicated she did not want to stay with the father because both he and his mother yelled at her. She also noted that her father yelled at the boys at times and put them in time outs. She stated that when the boys did not stay in time outs, he tied them to the chair with a belt, but she could not remember the last time she had seen this occur.

[53] Ms. Tatton indicated that the society was unable to approve R.M.E.W.'s friend's home at that time. Although R.M.E.W. wanted to stay with her older sister, she did not have a telephone number for her. R.M.E.W. and the worker attended at the mother's home, where the worker found the house to be dirty and unkempt. R.M.E.W. retrieved some personal items, her medications and her health card and was taken into foster care.

[54] Ms. Tatton testified that she spoke with Ms. W. later on June 28th and advised her that R.M.E.W. was in foster care. According to Ms. Tatton, Ms. W. did not ask about the boys. Ms. W. did ask Ms. Tatton if she would 'ever get her daughter back' but did not ask the same question about the boys.

[55] On June 29, 2011, an interim interim without prejudice order was made placing R.M.E.W. in the care of the society and placing the boys in the care of their father subject to supervision. On August 9, 2011, the interim interim order was made into an interim order. Although R.M.E.W.'s status changed on July 31, 2012 with an interim order placing her in the care of her mother subject to supervision, the boys' status remained the same up to and following the trial.

[56] The father testified that he and the mother lived together off and on. He noted that initially, he and the mother had joint custody of both boys pursuant to separate orders. However, in March 2010 a consent order was made granting sole custody of the boys to the mother. According to the father, following the sole custody order, he had the boys in his care regularly for access and for other times when the mother asked him to keep the boys with him.

[57] The father indicated that in the summer of 2010 the mother was having conflicts with her neighbours and asked the father to care for the boys. His evidence was that the boys came to live with him in mid August. The mother's evidence was that the boys went to live with their father in early September. Whatever the start date for the boys residing with their father, there was no dispute that they were with him for approximately three months in the latter part of 2010. The mother moved to a new home and the boys were returned to her care in or around December 5, 2010.

[58] Then on January 23, 2011 the mother was arrested due to conflict with her co-tenant. The father again took the boys into his care and maintained them until the mother found a new residence in March. According to the father, the boys lived with both parents, going back and forth between each residence from March 5, to April 24, 2011, However, after April 24, 2011, the boys remained with their father until the apprehension on June 27, 2011. Despite the parents' disagreement on the precise times that the boys lived with their father from September 2010 to June 27, 2011, it is evident that in the 42 weeks between September 5, 2010 and June 27, 2011, the boys were with their father for 28 weeks and with their mother for 14 weeks.

[59] The mother argued that the "intention" of the parties was of vital importance when determining in whose charge the children were at the time of intervention. Her position was that she never "intended" to place the children in the father's charge permanently and that he never intended to keep them. But the act does not speak about whose charge a parent intends the child to be in before intervention. It speaks of the "person who had charge" of the child. During the ten months prior to intervention, the boys were in their father's care for 66.6 % of the time, a period of more than six months. The mother had two separate periods of 7 weeks where the children were with her.

[60] The mother argued that the care provided by the father was temporary only, much like that provided by a caregiver or school. There is a significant difference between a day care entrusted with a child's care during working hours of a parent and a parent taking on the full time care of a child. In the first case, the day care is not responsible for the child full time and decisions related to the child's well being, health, education are not made by persons employed in those institutions. A parent who has the full time care of the child for weeks and months; who is constantly responsible for the child's well being, health, education, recreation, financial support and daily care, is the person who has charge of a child.

[61] During the time the boys were with their father, he was caring for them, financially supporting them, ensuring they attended school and met all of their needs. It is correct that the mother had an order for sole custody of the children. However, the case law is clear that a person can have custody of a child and not have charge of that child at the time of intervention.

[62] The court accepts the reasoning of Justice Meehan set out in J.M.S. v. F.J.M, and more particularly, his definitions of 'custody' being the care and control of a thing or person and 'charge' being a person or thing entrusted to another's care. Using that analysis, A.R. and Z.R. were in the custody of the mother, but in the charge of the father when intervention occurred in June 2011.

[63] The difference between custody and charge was also dealt with by Spence J. in CAS of Toronto v. S.A., in which he noted that there could be many instances where one person had custody but another person had charge of the child. He noted that the act did not talk about returning a child to the person who had 'custody' but rather returning the child to the person who had 'charge' of him or her. Similarly, the act does not talk about the parents' intention regarding 'charge', but deals with the factual reality of who had charge of the child(ren) prior to intervention.

[64] Harper J. expanded on the reasoning of Spence J. in CAS v. Middlesex v. S.D., where he stated that there must be evidence of an active relationship with the child that includes care and responsibility and is something more than physical possession or limited incidents of care.

[65] There is no question that the father has and had a relationship with the children and had the care and responsibility for the boys at the time of intervention. The care and responsibility that the father had was far more than a limited incident of care. Limited incidents of care would clearly apply to a babysitter, school or daycare. As indicated, the father's care was not that of a babysitter. At the time of intervention, it was the father who met all of the needs of the children, made all decisions about their care and well being, and and he had been doing so for an extended period of time.

[66] As in the case of CAS v. Toronto v. S.A., the mother had consented to a change in residence for the boys and had conferred on the father the authority and responsibility of every aspect of their care and it was the father who had the charge of the boys at the time of intervention. This was not a situation where the mother asked the father to take the boys for a day or a week or for a vacation period. On several occasions from September 2010, the mother placed the boys in their father's care, with no time limit set for their return. On each occasion the mother placed the boys with their father because she could not meet their needs for various reasons. It is correct that at times the father expressed frustration by the mother's instability and the constant change for the boys. But he made it known to her in May 2011, a month before her suicide attempt in June 2011, that he was prepared to seek a change to the custody order because of that instability. At that point, the mother knew that the father was prepared to keep the boys permanently. She took no steps to regain care of the boys and in fact by attempting suicide was prepared to leave the boys in his care permanently. Afterwards, her questions to the social worker were only about R.M.E.W.. The mother knew at that point that the boys were safe in their father's care and was agreeable to that situation.

[67] Further, after the mother's mental health crisis was over, she did not seek to change the interim interim without prejudice order of June 29, 2011. On August 9, 2011, less than two months after the interim interim order had been made, the order was made interim without any argument on the merits. The mother's acquiescence to the interim order created a lengthy and stable status quo for the children that the court cannot ignore.

[68] Based on the information above and the case law presented to the court, the court finds that it was the respondent father who had charge of A.R. and Z.R. immediately before intervention by the society and as such his plan must be given priority over the mother's plan pursuant to s. 57(3) of the Act. The court agrees with the reasoning by Power J. in the case of CAS of Ottawa v. J.M. that these boys could not be 'stored' with the father until the mother was ready to resume their care.

[69] The court is directed not to make an order removing the children from the care of the person who had charge of them immediately prior to intervention (in this case the father) unless the court is satisfied that alternatives that are less disruptive to the children would be inadequate to protect the children. Even in cases where there is no dispute about who had charge of the child(ren), the court may make an order that does remove the children from the person who had charge of them, if leaving the children in that person's care would be inadequate to protect them. If the court is satisfied that the children can be protected, with or without a supervision order, in the person's care who had charge of them immediately prior to intervention, the court cannot look to other options presented for the child. The section is mandatory in these circumstances. In order to ensure that the children can be adequately protected in the father's care, a review of the concerns raised and steps taken to mitigate those concerns must be undertaken.

[70] During the trial there were four document briefs (3 of the Society and 1 of the mother) and 25 exhibits filed. All were filed to support the history of the file and the concerns that had occurred over the years of involvement by the society with this family.

[71] Exhibit #1, (document brief #1) contained 451 pages related to the following:

a) counselling sessions undertaken by the mother and R.M.E.W. between October 26, 2011 and March 12, 2012;

b) Grand River Hospital records concerning the mother;

c) Probation records of the mother;

d) Patient records of Z.R. from Dr. Shelley Metcalfe;

e) Patient records of A.R. from Dr. Shelley Metcalfe; and

f) Patient records of R.M.E.W. from Dr. Shelley Metcalfe.

[72] The counselling undertaken with R.M.E.W. and her mother began with a referral from the society. The referral form indicated that R.M.E.W. was struggling with being in foster care, needed a safe environment to communicate her wants and desires to her mother without fear that her mother would try to harm herself and to rebuild the relationship between the mother and child. The counsellor worked first with R.M.E.W. alone between October 26, 2011 and January 16, 2012. She then met with the mother and eventually, mother and R.M.E.W. together.

[73] Initially, R.M.E.W. told the counsellor that she wanted to stay in foster care but was afraid to tell her mother because she was afraid her mother would hurt herself. One of her articulated reasons for remaining in foster care was that she was able to have a relationship with her grandmother and older sister. By January she was indicating a willingness to go home to her mother.

[74] In sessions with the mother, the counsellor discussed the problems the mother had had with her neighbours and her medications. The mother admitted to daily use of marijuana (which she subsequently quit). She discussed the difficulties changes in workers had caused her.

[75] At the conclusion of the counselling, the discharge summary indicated that the mother would likely continue to struggle with issues related to her mental health diagnosis, but that she had continued to attend the Dialectic Behaviour Therapy group to learn how to manage her emotions. Counselling was offered as a follow up to discuss any concerns L.W. and R.M.E.W. might have with a transition to the mother's home, along with other recommendations.

[76] The hospital records regarding the mother spanned a period of time from April 1991 when the mother attended hospital after having purposely cut her wrist with a razor blade to the suicide attempt in June 2011.

[77] The probation records show that as a result of the conflict with her housemate in January 2011 and her rendering of the police camera inoperable on her arrest, the mother was charged with Mischief under $5000 x 2. On November 29, 2011 she was given a suspended sentence and probation for 15 months. The probation records included information that in 2003 the mother had her licence suspended due to unpaid fines and that in 1997 she was convicted of mischief under $5000 for which she received a suspended sentence and probation for one year and assault, for which she received a $100 fine. The probation notes also included information about the Dialectic Behavioural Therapy program and confirmation that she was attending the sessions.

[78] The balance of the documents in Exhibit 1 related to the health care of the children. Z.R. was diagnosed with possible asthma and prescribed an inhaler that appeared to help. A.R. was also diagnosed with asthma as a result of a constant cold, especially in winter. In May 2011 A.R. was seen by Dr. Rosner with both parents present. Dr. Rosner indicated that A.R. was possibly ADHD but was too young to diagnose or medicate. She discussed consistent discipline and offered resources for parenting counselling. Dr. Rosner indicated that she would see A.R. in a year to determine if he needed medication.

[79] R.M.E.W.'s patient notes indicate that she was diagnosed with ADHD and hypothyroidism. Medication was prescribed for both of these conditions.

[80] Exhibit #2 (document brief #2) contained 422 pages of the following information:

a) K-W Counselling records of the father;

b) K-W Counselling records of the mother;

c) Waterloo Regional Homes for Mental Health records of the mother;

d) Huron Perth CAS records;

e) London and Middlesex CAS records;

f) Waterloo Regional Police records of the father; and

g) Waterloo Regional Police records of the mother

[81] According to the counselling notes related to the father, he attended counselling between December 2005 and April 2006 to improve his communication with the mother and to deal with anger management issues. Then between September 2008 and August 2009, he attended counselling for depression and to get assistance in making the relationship with the mother work. Both times the counselling was ended voluntarily by he father. It was noted following the counselling in August 2009 that he had achieved some progress.

[82] According to the counselling notes related to the mother, she attended counselling during several different time periods. From June 1998 to July 1998, the mother attended counselling with her partner Scott. The counselling ended when Scott moved away from the region. She attended again for one session between January 1999 and March 1999 regarding relationships. She ended that counselling when the parents got back together. However, between June 1999 and August 1999 the mother tried couples counselling again. That counselling ended when the parents had a fight and decided not to return.

[83] Between January 2000 and May 2000, the mother sought counselling to learn how to say 'no' to her partner. In March 2006 she attended one counselling session because she was depressed and anxious and needed to deal with her anger management issues. She ended counselling after the first session with no significant improvement on the issues. Between April 2007 and May 2007 the mother attended three sessions of counselling. She presented as weepy and had anger issues. Again she ended the counselling with no significant improvement. The longest period of time she was involved with K-W Counselling was between September 2008 to March 2010, to deal with self esteem and relationship issues. The closing note indicates that the mother made some progress on the self esteem issues and that she was no longer with the father, so did not need to deal any longer with the relationship issues.

[84] The parents attended two sessions of couples counselling together in December 2002. The mother presented with anger and aggression issues and the father presented with anxiety issues. The counselling was not continued.

[85] Throughout the time that the mother was attempting to get help through counselling, she was dealing with mental health issues including bi-polar disorder. The counselling notes give no indication that any of the counselling was of any use to the mother. However, after her suicide attempt in June 2011, the mother learned about Dialectic Behaviour Therapy. She participated in such a program through Waterloo Regional Homes for Mental Health from October 2011 to April 2012. According to the material, the mother attended weekly sessions for six months learning skills that focused on healthy coping strategies, including distress tolerance, interpersonal relationships, mindfulness and emotion regulation. Of the 22 sessions, the mother missed 4.

[86] In December 2011, a community support coordinator spoke with a worker from the society to discuss the mother's progress in the DBT program. The worker was told that the mother had been attending the group on a regular basis and participating in the group. The mother was completing her homework and sharing examples of skills she was trying at home. On January 16, 2012 the mother's probation officer was also told of the mother's consistent participation in the program and noted that she only missed a session when she was ill.

[87] The Huron-Perth CAS records dealt solely with the events in May 2011 when the mother was trying to have her medication adjusted and believed she needed to be in hospital. She asked her mother to take R.M.E.W.. Although the grandmother did take R.M.E.W. for a day, when the mother discharged herself against medical advice, the grandmother returned the child to the mother. Then when the mother wished to return to hospital for a week, the grandmother indicated she could not afford to keep R.M.E.W. for a week due to the cost of day care. Additionally, the grandmother was very concerned about the mother's possible aggression against her. The worker from Huron-Perth did safety planning with the grandmother in the event there was an argument with the mother.

[88] The London-Middlesex CAS records covered a much longer period of time, albeit, historical in nature. The records covered a time between July 1993 and April 1997 and primarily dealt with issues regarding the mother, C.W. and the mother's previous husband and his children. What was evident from the records was the mother's instability in her previous relationship.

[89] In July 1993, the mother made a referral to the CAS that her boyfriend, D.R., the father of two young boys was physically abusing them. When investigated, the boys could give no information about being hurt or punched and no marks were found on them. The father of the boys indicated that the mother (L.W.) had come after him with a piece of wood after the referral was made and that he looked into getting a peace bond against her.

[90] By October 1993, the parties were back together and the mother called police alleging that D.R. had slapped C.W.. Although the mother had not seen D.R. hit C.W. and there was no mark on the child, she called police to report the incident. When the society attended two weeks later, the mother was crying and angry that the society was investigating because she and D.R. had reconciled and she felt the CAS involvement was intrusive.

[91] In March 1995, the mother called the society to indicate that C.W. (age 2) was acting out and that she could not manage the child. She wanted the child to go into care for a short time while she dealt with personal issues. She indicated that she was frustrated and overwhelmed. Within a month the society had received a referral that the mother was screaming at the child and hitting her. Although the mother denied hitting the child, she did admit to screaming at her.

[92] By May 1995 the mother and D.R. were living together again and fighting with each other. Notwithstanding these difficulties, the mother and D.R. were married on May 5, 1995. They separated on July 31, 1995.

[93] By December 1995, the mother was telling the CAS that D.R. regularly threatened the boys in order to discipline them. D.R. eventually moved with the boys to St. Thomas. On January 22, 1996, a referral was received from a doctor and school that there were concerns that C.W. was being sexually abused by D.R.'s sons, aged 8 and 6. By February 1996, the mother and D.R. were back together and were asking that the boys be taken into care. The boys entered the care of the society under a temporary care agreement.

[94] In April 1996, the family moved to New Brunswick and then separated. The mother got custody of the two boys and then asked that they be taken into care again. She then left the area. According to the notes of the London Middlesex CAS the boys were the subject of Crown wardship proceedings in New Brunswick. It is unknown what happened to D.R.'s youngest children.

[95] The information contained in the notes of the London Middlesex CAS is not particularly helpful due to its historic nature. What it does show, however, is that the mother has been involved in relationships that have been unstable and frought with child protection concerns long before her involvement with Mr. R. and that historically there have been times when she was unable to care for her children.

[96] The criminal records of the father show involvement with police and the criminal justice system since 1995, including the following:

a) February 1995: police asked the father to leave his girlfriend's home, although no charges were laid.

b) August 1996: the father was found to be intoxicated and had entered a person's home thinking it was a hotel. No charges were laid.

c) October 1997: and again in February 1998 and November 1998, the father was charged with public intoxication.

d) October 1999: the father was arrested for trespassing.

e) July 2000: there was an incident between the father's dog and another person's dog, resulting in no charges.

f) December 2001: there was a verbal dispute between Mr. R. and Ms. W. The mother would not give the father his car keys. He punched the mother in the presence of R.M.E.W.. He was arrested and charged with assault. In April 2002 he received two years probation for his charge.

g) June 2008: the father was hit by another person over comments the father had made about the other person's girlfriend. Both parties had been drinking at the time.

h) In January 2013, the mother called police regarding some bruises she had seen on A.R., shown in the photograph entered as Exhibit #12. The father testified that he had seen the bruises and asked A.R. what had occurred. A.R. told his father that he had fallen, and the father did nothing further. The mother was more concerned about the bruises and called police to investigate.

[97] Most of the father's problems with the law arose out of alcohol abuse during the late 90's. The most serious charge was assault on the mother in 2001. The records show no further charges for the father after 2001, except when he was the victim of assault in 2008. The father admitted to historical use of marijuana but no recent or current use.

[98] The criminal records of the mother indicate a shorter history of police involvement, but more police involvement and charges than the father and more recent history of police involvement up to and including her suicide attempt in June 2011. The records show the following:

a) February 2002: the mother admitted to and was charged with using licence plates not authorized for use and permitting someone to drive her car without insurance.

b) September 2002: the mother was warned by police not to continue to harass another couple.

c) November 2003: police were called due to loud arguing.

d) September 2005: disturbance caused by the mother at her mother's home, including breaking a window, that required police intervention.

e) April 2007: police attended the mother's home and removed 4 marijuana plants being grown in a closet. The father had reported the presence of the plants, shortly after he and the mother separated. The mother claimed the plants belonged to the father and the father claimed they belonged to the mother. Even at trial, the parents testified that the plants belonged to the other and Exhibits 17, "Closet Cultivator" and 24: "Produce Guide for Buying Marijuana Growing Equipment" were introduced, with both parents claiming that the books and plants belonged to the other parent. No charges were laid against the mother when the plants were removed. The court finds that both parents were complicit in growing and harvesting the plants as both were well aware of their presence and neither did anything to destroy or remove them.

f) March 2009: police attended the mother's home due to the mother and her daughter having a loud argument about discipline.

g) May 2009: mother called the police because of an argument she had with the father on the telephone indicating that she did not want him to bring back the children as scheduled.

h) February 2010: records noted numerous police calls regarding difficulty between the mother and her daughter.

i) February 2010: mother called police to do a 'well being' check on her daughter C.W. who was pregnant, living with her boyfriend and his mother and was not able to be reached.

j) February 2010: the mother was warned about making annoying phone calls.

k) March 2010: mother called police due to a friend being in her home causing mischief.

l) October 2010: the mother was arrested for mischief under $5000, to which she admitted.

m) September 2010: the mother called police to report child abuse because her neighbour was berating and swearing at her children.

n) September 2010: the mother again called police about her neighbours indicating that they were saying bad things about her and ridiculing her children. She admitted that no threats had been made and no action was taken.

o) October 2010: the mother again complained about her neighbour, but no offence was observed by the officer.

p) November 2010: police were called due to a physical altercation between the mother and her neighbour. No charges were laid.

q) January 2011: the mother was charged with two counts of mischief under $5000 for destroying the property of a co-tenant and disabling the police camera at the police station during her interview there. She was convicted and fined $100 and placed on probation for 15 months.

r) February 2011: the mother accused another boyfriend of retaining a DVD player that belonged to her. The boyfriend advised police that he had told the mother where the DVD player was and to come and get it.

s) March 2011: the mother tried to convince the police that she had been the victim of theft by her former co-tenant, notwithstanding the fact that she had attended with police in February to obtain all of her personal property and made no comment about missing items at that time.

t) June 2011: the police were called to the mother's home due to her attempted suicide.

[99] In reviewing the records, it is apparent that the mother's police involvement is more recent and more concerning than is the father's.

[100] The other areas of concern raised by the mother about the father included his mental health issues, his physical health, his lack of employment and the resultant message that sends to the children, his poor judgment regarding what the children have seen on television, video games and choice of toys, and finally concerns regarding marks she has seen on the children.

[101] The mother's mental health issues have been long standing. While she did not minimize them, she believed that her escalating problems in 2011 leading to her suicide attempt were due entirely to being prescribed inappropriate medication. Although this may have been true in 2011, the mother's mental health has been a factor in many of her conflicts with boyfriends, neighbours and police over the years.

[102] With respect to the father, the records show that he was depressed as a teenager and young adult. He also was having a problem with alcohol abuse during that time. However, there are no recent indications or evidence that alcohol has been a problem for him or that he has suffered from any major depression affecting his ability to care for the children. The mother certainly did not worry about alcohol use or the father's depression when she continued to leave the boys with him for lengthy periods of time between August 2010 and June 2011.

[103] The mother raised the father's physical health as a concern. The father suffered from acute poliomyelitis when he was 1 ½ years old. At the time he was paralyzed in all four limbs, although functioning returned to both legs and his left arm. The father testified that he has weakness in his left shoulder and he is unable to use his right arm.

[104] In October 2001 Dr. Turnball of Hamilton reported to the father's family doctor that Mr. R. might have post poliomyelitis syndrome. The family doctor asked Dr. Hahn, a neurologist, to examine Mr. R. and provide an opinion. In her letter dated November 28, 2006, Dr. Hahn indicated that due to a change in function in the upper left limb, the question of "so called post-polio syndrome" had arisen. Her use of that particular phrase suggests that Dr. Hahn did not believe that such a diagnosis was appropriate. She did not diagnose post polio syndrome.

[105] Mr. R. testified that his disability does not interfere with his daily activities and that he is able to take care of the children despite his disability. He indicated that he had never known a life where he had two able arms and so had learned how to do things with one able arm. He noted he could cook, do laundry, clean and maintain a home, drive a car and look after himself and the children. There is no evidence that the father's physical health has affected his daily care of the children or has ever been or become a child protection concern.

[106] The mother also raised a concern about the message the father sends to his children by being unemployed and dependent on ODSP. The mother's evidence was that she has had part time work and is looking for full time work. Mr. R. is disabled by his polio. He is not merely refusing to work in order to obtain benefits. On the one hand the mother wishes to use his disability to say that he is not likely going to be able to care for the children due to increasing health problems and on the other hand insist that he should be employed full time because lots of people with disability are employed full time.

[107] The mother has been in receipt of social welfare at various times throughout her lifetime as are many people. Social welfare plans and disability support plans exist because there is a need for them to exist. So long as a parent is able to budget for his/her expenses while ensuring that the material needs of the children are met, being on social welfare is not a child protection concern. The father is legitimately entitled to ODSP and the court cannot fault him for using his ODSP to support his children.

[108] The mother argued that the children should be placed with her because the father exercises poor judgment in his care of the children. Examples were given of the children watching television shows such as the Walking Dead, (a drama about Zombies) Deadliest Warriors (a documentary on the History Channel), and 1000 Ways to Die; further allowing the children to play adult video games like Black Ops and Brink and allowing the children to play with Nerf guns.

[109] The father indicated that the children had walked in on his father when he was watching Walking Dead and his father allowed the boys to stay. The father spoke with the grandfather and asked him to ensure the boys did not see the program. With respect to 1000 Ways to Die and Deadliest Warriors, the father stated that he was watching these shows when the boys entered the room and that he immediately switched the channel. The father noted that his nephew had left some video games in the home for a short time, and that he found A.R. playing with one. He immediately took the game away and returned it to his nephew. He indicated that the boys have age appropriate video games.

[110] With respect to the Nerf guns the father testified that the children are not to shoot each other or animals and are only to shoot at targets. He had at one point made "guns" out of paper towel rolls and elastic that the boys would shoot. By the time the worker advised him of the mother's concerns the 'guns' were destroyed. In argument the mother raised the spectre of the Columbine High School shooting as a possible result of being able to play with Nerf guns. While not impossible, the court finds it quite a stretch to blame the multiple shootings with semi automatic weapons as having its genesis in sponge Nerf guns. The mother allows the children to play with 'age appropriate' Lego video games, such as Lego Batman. This game has cops and robbers, who are involved in "lego" gun fights. She testified however, that when one of the characters is shot in the game, he/she/it reconfigures after a few seconds and comes back to life. The court is unsure whether believing that the shooting of someone will result in their later coming back to life is any better than knowing when you shoot someone, they stay dead.

[111] The court accepts the father's evidence that he has not intentionally exposed the boys to any violence on television or in video games. When the boys have seen something they should not have, steps have been taken to ensure that it does not happen again. These are not child protection concerns. They are parenting concerns.

[112] The children are also exposed to loving, caring adults in their home. They attend school. Their moral upbringing is not just a function of television and video games. All parents today are faced with the explosion of multi-media and must do their best to counter balance it with good parenting. The mother suggests her parenting is better. But in reviewing the history of her life, her parenting has not always been better. She has had various relationships that involved children. She has no relationship with her adult daughter, but Mr. R. does. She virtually abandoned the children with whom she lived in New Brunswick. She strongly disputes the father's parenting ability, but has always turned to him to take the boys when she could not parent, even in the period before she was having issues with her medication.

[113] It is clear the mother loves her children and wants them to be with her. But she raises issues to distract the court with minutiae. For example, she called police to investigate bruises she saw on A.R. following his bath at her home. She had spoken to A.R. and he could not remember how he got the bruises and scratch. He did not indicate that anyone had caused the marks. He told her that he had not been in trouble and that no one spanked him. The mother testified that she was quite alarmed, despite the very minor nature of the marks. The mother called the after hours line of the CAS. When a worker there was told that A.R. did not know where the marks came from and that no one hits him, the intake worker advised that a worker would not be sent out that night, but that someone would come out the next day. There clearly was no emergency that required the attendance of an after hours worker.

[114] Despite this the mother called the police. In her evidence she stated that she wanted the police to send an undercover officer. Having regard to her numerous involvements with police over the years, one might think that she knew she could not just order up the type of officer who should respond to her call. In any event, four officers attended and spoke with A.R.. He told them nothing. When the police officers saw that they were causing A.R. to feel uneasy, they allowed him into the police car to put on the flashing lights. A.R.'s uneasiness continued when the matter was investigated by Karen Thompson on January 14, 2013. A.R. continued to say he could not remember where he got the marks and that he was tired of showing Ms. Thompson "his bum".

[115] The children have received injuries from time to time at their mother's home as well. They are active energetic little boys. She prefers that the father talk to her about any marks or injuries he notes on the boys after access, but that she will continue to report anything she believes should be reported. This apparently will happen whether the boys confirm any form of inappropriate behaviour on the part of their father or grandparents related to any mark or injury.

[116] Although Ms. Thompson attempted to teach the mother the difference between a legitimate concern and typical marks obtained by children in play, Ms. Thompson found she could not get through to the mother that forcing investigations on the children that were clearly unnecessary was emotionally harmful to them. Ms. Thompson also found that although the father would take the information given to him, discuss the concerns raised and make changes, the mother would often rationalize her behaviour and refuse to see any option other than her own.

[117] The court finds that the mother exercises poor judgment in her strong desire to have the children returned to her care. In this regard, she is placing her needs above those of the boys. They have been in their father's care intermittently since August 2010 and continually since the end of April 2011. They are settled, happy and healthy and the father is meeting all of their needs. The society has no concerns regarding protection issues and neither does the court. This matter needs to come to an end without any further changes in the boys' lives. The father had charge of them prior to intervention, they have remained with him since intervention and his plan has priority over the mother and meets their best interests as well as or better than the mother.

[118] Further the court has considered the criteria set out in s.37(3) of the Act, regarding the boys' best interests and makes the following findings:

1 & 2) The child's physical, mental and emotional needs and the appropriate care or treatment to meet those needs and the child's physical, mental and emotional level of development.

Both parents are capable of meeting the physical, mental and emotional needs of the children. It is the father who has been meeting those needs since August 2010.

3 & 4) The child's cultural background and religious upbringing

Were not factors raised in this case.

5) The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

The boys have a positive relationship with both their parents. The secure place as a family member has been far better in the father's care than the mother. For 10 months prior to her suicide attempt, the boys were moved back and forth between the parents in order that the mother could deal with her many difficulties with neighbours and co-tenants and police charges. The only home where they have not had to leave to be cared for by someone else is the father's home. They also have the love and security of their grandparents being in the home to assist with their care.

6) The child's relationships and emotional ties to a parent, sibling, relative, other members of the child's extended family or member of the child's community.

The boys are emotionally attached to both parents. In their mother's home, they have a relationship with their sister R.M.E.W., although due to the age difference they do not have much in common. At the father's home, the boys have a relationship with their grandparents. The boys are far more likely to have a relationship with their step sister C.W. as a result of being in their father's care, because C.W. does talk to the father, while her relationship with her mother is strained.

7) The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

A.R. and Z.R. have lived in their father's home exclusively since April 2011, a period of 2 ½ years and before that intermittently from August 2010. All of their needs have been met. The father has ensured that their medical and educational needs are met. They attend school in the neighbourhood and have friends in their neighbourhood. Neighbours testified that they see the children regularly. The children have regular visits with their mother that will continue after this order is made. For almost three years, the place where the boys call home is with the father. There is nothing in the evidence that would suggest a change in that life should be disturbed.

8) The merits of a plan for the child's care proposed by the society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

The father's plan is a continuation of what the boys have lived with for 2 ½ years. The mother's plan is to disrupt the boys and move them to her residence because she loves them and wants all her children together. There is no doubt the mother loves her children, but her desire to change the existing arrangement is to meet her needs, not those of the boys. There is no doubt about what the father can provide to the children, he has been doing so for quite some time. There are some doubts, albeit minor in nature that the mother could once again handle all three children. Moving them makes no sense and has no merit.

9) The child's views and wishes if they can be reasonably ascertained.

A.R. and Z.R. were not represented by counsel and their views and preferences are unknown. Having regard to their ages, their views and preferences would be given little weight even if known.

10) The effects on the child of delay in the disposition of the case.

This is not an issue because the children have been with the father for some time and no move is being contemplated by the court.

11) The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

As indicated above, there is a small risk that the mother would not be emotionally able to care for all three children, while there is no risk if the boys remain with their father, because he has shown an ability to care for them.

12) The degree of risk, if any, that justified the finding that the child is in need of protection.

Again, this is a minor point. However, it must be clear that the children were only found to be in need of protection due to the unstable mental health problems of the mother.

Order

[119] For the reasons above, the following order will issue as follows:

1. The names and dates of birth of the children are as follows:

   a) R.M.E.W. born […], 2000

   b) A.R. born […], 2006

   c) Z.R. born […], 2008

2. The religious faith in which the children are being raised is unknown.

3. The children are not Indian or native persons.

4. The location from which the children were removed is Waterloo Region.

5. The children are in need of protection pursuant to s. 37(2)(g) of the CFSA.

6. The child R.M.E.W. born […], 2000 shall be placed in the custody of her mother L.W. pursuant to s. 57.1.

7. The children A.R. born […], 2006 and Z.R. born […], 2008 shall be placed in the custody of their father, I.R. pursuant to s. 57.1.

8. The father shall have reasonable access to R.M.E.W. as arranged with the mother.

9. The mother shall have reasonable access to A.R. and Z.R. including at a minimum on alternate weekends and a sharing of holidays with the father, and such other times as the parents may agree.

10. If the parties need to change this order, they are to bring a motion to change under the Children's Law Reform Act where the mother will be shown as the applicant and the father will be shown as the respondent.

Released: December 20, 2013

Signed: M.A. McSorley