WARNING

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

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

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: 171/08

Date: 2014-09-24

Ontario Court of Justice

Parties

Between:

The Children's Aid Society of Haldimand and Norfolk

Applicant

– AND –

H.E.C. and R.R.

Respondents

Before: Justice L. P. Thibideau

Trial Heard in Simcoe on: April 9, 10, 11 and 12, 2013; May 29, 2013; November 25, 26, 27, 28, 2013; and April 7, 8, 9, 10 and 11, 2014

Reasons for Judgment dated: September 24, 2014

Counsel

P. James — for the Applicant

E. Montour — for R.R.

T. Simpson — for A.M.C., R.A.C. and B.M.C.

H. Silver — for A.R.C.

THIBIDEAU J.: (Written)

Introduction

[1] The trial of this status review application brought by the Children's Aid Society of Haldimand and Norfolk took place over 14 days between the 9th of April 2013 and the 11th of April 2014. Written submissions were provided by all participants at trial which did not include the mother H.E.C.. The children, the subject of this application are as follows:

• A.M.C. (A.M.C.) born […] 2000
• R.A.C. (R.A.C.) born […] 2003
• B.M.C. (B.M.C.) born […] 2005
• A.R.C. (A.R.C.) born […] 2008

[2] The Society involvement with the mother and father goes back to the 12th of September 2002. The significant orders and judgments of the court are as follows:

Prior Court Orders

1) Temporary consent order of the 22nd of December 2008 wherein the following was ordered:

a) all children returned to parental care under specified supervision terms addressing:

• i) physical discipline
• ii) threats to control behaviour
• iii) father's excess alcohol use, without an alcohol ban
• iv) parental conflict complete with a requirement to engage in relationship counselling
• v) smoke-free environment focusing on mother
• vi) maximum of two dogs in the home
• vii) engagement with the services offered by the Society
• viii) father to particularly follow through with addiction assessment and recommended treatment or counselling
• ix) parents to properly care for the dental needs of the children
• x) individual parent counselling to address life stresses and coping skills
• xi) demonstration of a stable home environment

2) Final summary judgment order of the 11th of February 2009 made statutory findings with respect to the children's particulars and the fact that they were in need of protection pursuant to section 37(2)(b)(i) and (ii), and (g) of the Act. The order made the temporary supervision order of the 22nd of December 2008 a final order for a six month period.

3) Temporary without prejudice order of 17th June 2009:

a) all children to remain in Society care with three weekly access visits for the parents, terms and conditions at discretion of the Society. This was the care order operating till trial.

4) Temporary order 16th September 2009:

a) father's access reduced to two hours weekly on consent.

5) Temporary order 30th September 2009:

a) mother's access reduced to two hours per week.

6) Temporary care and custody hearing order 11th January 2010 wherein court found the parents were not sufficiently engaged in services to safely return children to mother's care, it being ordered that all children remain in Society care with access to the parents, terms and conditions at the Society's discretion.

7) Temporary order of 7th February 2011 wherein mother's motion request for increased access was denied with the status quo to continue.

8) Temporary order of 7th March 2012 wherein the two girls, A.M.C. and R.A.C., were placed in the care of father, residing with his partner, R.C.. Significant supervision conditions attached were as follows:

a) no unauthorized access to mother or her current partner b) no access to mother at all to two boys on a without prejudice basis c) terms addressing father's alcohol abuse issue d) terms addressing proper child care e) follow through with services as recommended by Society workers.

9) Temporary order of the 21st of February 2013, following apprehension of the two girls from father's care wherein the children A.M.C. and R.A.C., were to remain in Society care with father access in the discretion of the Society, and with sibling access.

The Positions

Society Position

[3] The original Society position set out in its status review application of the 17th of June 2009 was for Society wardship for six months with discretionary access to the parents. On the 8th of April 2010 the Society amended its application to seek Crown wardship without access, for all four children.

[4] The Society position was informally amended at trial to seek Crown wardship for all four children, no parental access to the boys, B.M.C. and A.R.C., with father access only to the girls A.M.C. and R.A.C. in the discretion of the Society. No formal order of access was requested as between the two girls, although the Society took the position that they would use their best efforts to have informal contact among the siblings if possible. The Society seeks a formal access order for father and the two girls. No access for mother.

[5] The Society position with respect to access between the two boys is ambiguous and confusing. At page four of the Society's written submissions the following is stated:

"The Society continues to support contact among the children and will do so if an adoptive home is found for any of them, but the Society does not support a formal access order except in the case of the girls and Mr. R.R., and as between B.M.C. and A.R.C.."

At Paragraph 91 of those submissions the Society states:

"The Society submits that an access order affecting the boys, particularly access to a parent or to the girls, will interfere with the prospects of the boys being adopted and therefore the parties advocating for such access have not met the second prong of the test in section 59(2.1) of the CFSA."

Likewise at Paragraph 93 the Society states as follows:

"The Society submits that it is in the best interests of R.A.C. and A.M.C. to maintain the relationship with their father through an access order and that there should be no access order with respect to B.M.C. and A.R.C. in order to facilitate permanency for them through adoption."

In making the access decision for the boys there will be an assumption that the Society does not want any formal access order for them of any kind.

Mother's Position

[6] Mother's formal position is as per her answer and plan of care of the 9th of October 2010 for the children to reside with her and her partner, T.S.. However mother has not participated in the process for some time and in fact did not participate at trial with the result that the Society's case against her presented at trial went unanswered.

Father's Position

[7] Father formally responded to the original 16th of June 2009 status review application by answer and the plan of care dated 16th September 2009, requesting, without supporting reasons or actual plan of care, the children be returned to the care of mother, H.E.C., with whom he resided at that time. By answer and plan of care dated 11th June 2010 father responded to the Society's amended status review application with a more detailed plan of care and a request that the four children reside with him alone, having separated from mother by this time.

[8] At trial father's position was that the four children be returned to his care under Society supervision, in the home where he resides with his new partner R.C. and her biological son, D.H., and Ms. R.C.'s mother, G.C..

[9] Alternatively, if any child is made a Crown Ward father seeks a sibling access order between children in his care and any such Crown Ward. If all children are made Crown Wards, he seeks access to those children, failing which father seeks an openness order, which is not part of this proceeding.

OCL Position (T. Simpson representing A.M.C., R.A.C. and B.M.C.)

[10] Counsel for these children supports a different regime from all others proposed. The request is for an order that the children R.A.C. and B.M.C. be placed in father's care under Society supervision, and that the child A.M.C., continue to reside in foster care by way of a Crown wardship order. There is a request for a formal access order between siblings and between each sibling and father. No access order is requested with respect to mother.

[11] The fallback position is that one of these two children should be placed with father, the other being made a ward of the Crown, with access to father and access to siblings.

OCL Position (H. Silver representing A.R.C.)

[12] The request with respect to this child is that he be made a Crown ward with no access to either parent. There is a request that he have a formal sibling access order with respect to his brother B.M.C. (reciprocating order) and that there be no formal order, merely informal contact between him and his sisters.

Summary of Positions

[13] The result is that each participant at trial has a different view as to what the appropriate outcome should be, and requests a different order from the court with respect to disposition. All positions would require statutory findings pursuant to section 37 of the Act. The Society wishes a continuation of the findings already made in the final order of the 11th of February 2009. The remaining participants do not specifically address the statutory findings issue. The exception, contained in the written submissions of Ms. Silver at paragraph 121, is the implied statement that section 37(2)(b)(i) and (ii) apply, and that (g) does not apply.

Social History

Pre-separation Social History

[14] The social history can be divided into two parts, the history prior to the final separation of mother and father, and the period thereafter. Father states that the separation occurred in June of 2009.

[15] The final order under review was made on the 11th of February 2009 when the parents were residing together. The child care issues addressed in that order and the previous order of 22nd December 2008 were of varying duration. It cannot be contested, and is not in fact contested, that the obligations imposed on the parents in those orders addressed specific proven behaviours and attitudes negatively effecting acceptable child care.

[16] As early as 2002 father exhibited alcohol and drug facilitated anger towards mother with their one child A.M.C. present, involving assault and threatening resulting in criminal charges for assault and uttering threats. In 2006 father was charged with an alcohol and driving offence. Mother has made it known that father has a 10 year driving ban related to an alcohol driving offence.

[17] In 2008 a domestic violence investigation revealed an intoxicated father in conflict with mother resulting in further charges of assault and threatening. It was at this time that mother's issues became known, using physical discipline to control children's behaviour—wooden spoon, flyswatter. Addiction counselling for both was not being utilized. The full inventory of concerns were laid out in the orders made.

[18] Four months later on the 12th of June 2009 the apprehension of the children took place based on the parenting issues demonstrated by the parents in that short time period between the final order and the apprehension. These included significant dental needs for the three older children not being addressed at all, despite being severe and substantial, readily observable by a prudent parent. At this time mother was the primary caregiver.

[19] Weekly visits confirm that mother was at a loss to control dangerous and unacceptable child behaviour using non-violent methods. Services intended to assist with the day to day child care concerns were not taken up by mother, e.g. public health person visits, subsidized daycare. Other services like behaviour management worker assistance was being avoided. Essentially in June of 2009 all services offered were being terminated for lack of involvement.

[20] Direct parental supervision in and out of the residence was observed to be dangerously lacking. Multiple dogs and dog breeding, resulting in litters in the home, were contrary to the terms of the supervision order and a health threat to the children, with urinating puppies in the children's living area. This was connected with an habitually soiled and dirty home environment. The children themselves were often observed with dirt on their clothes and persons in a sub-standard home environment.

[21] Mother reported father as drinking daily, often to visible excess, with children describing him at times as sleepy, falling down, wobbly. His self-assessment was he had no drinking or drug issues and this impeded addiction counselling. His self report and the observations of him by mother and children were at odds.

[22] The family had three residences in the one year leading up to apprehension. Budgeting assistance, residence location assistance and subsidized daycare were all rejected by mother. According to her engagement with service providers was hampered by her diagnosed anxiety for which she was receiving medical treatment and medications, often resulting in her being unable to leave her residence.

[23] Essentially both parents were either in denial or avoiding engagement with services for all the issues itemized in the governing court order for supervision of their parenting of the four children. It is clear from the material that a substantial list of service providers were made available or suggested without any meaningful engagement or any engagement at all by the parents in 2009 leading up to the apprehension.

[24] The plan moving forward to address the observed parenting concerns while the children were in temporary care included the following:

1. anger management and addiction program for father
2. drug and alcohol testing for father
3. cessation of cigarette smoking in the home
4. parenting program and couples' counselling for both parents
5. dispersal of animals to other homes
6. obtaining permanent suitable housing
7. demonstrating engagement by both parents with service providers
8. Society to facilitate service provider referrals for the parents

[25] On the whole the Society plan at that time appeared reasonable and necessary.

Post-apprehension Social History

[26] The post-apprehension social histories presented by the Society and father are factually similar. However the interpretations differ significantly.

[27] The initial apprehension of all four children from biological mother and father took place in June of 2009. The children were placed together in the K. kinship home for about one-and-a-half years. Mother's assertions of unacceptable foster father behaviour in the home resulted in all children being removed in December of 2010 without verification of the allegations.

[28] The two girls were placed together with foster parents P. for about one year until placed with father and his new partner, R.C., in a home where her son and her mother also resided. The two girls remained with him from December of 2011 until the second apprehension from his home on the 19th of February 2013. Since then they have lived in separate foster homes—R.A.C. with a new foster family and A.M.C. returning to her previous foster home.

[29] After removal from the kinship placement the two boys were placed in separate foster homes for almost two years, until placed in the same E. foster home in May of 2011, where they continue to reside.

[30] Father places the time of his permanent separation from mother at the same time as the first four children apprehension in June of 2009.

[31] Access has varied over the years. There was separate mother and father access to begin with. Mother's access situation deteriorated, mostly involving non-attendance. By court order of the 7th of March 2012 her access to the two boys was terminated. Access to the two girls continued intermittently. In later 2012 formal access stopped. However she has had non-authorized contact with A.M.C. from time to time since.

[32] Father has been historically consistent regarding access to all the children, including extended access with the boys when the girls resided with him. Since the second apprehension of the girls in February of 2013 access has been regular, but less and supervised, including most recently in father's home. Both father and the Society focus on the time period between apprehension in 2009 and the present to put their cases—the conditions and circumstances of the four children, father and step-mother interaction with the four children, the family dynamic with respect to two blended families and the causes and affects of child behaviour and diagnosed illnesses.

[33] All of the circumstances and incidents regarding child behaviour and parental response are seen through the prism of parenting ability. When the biological parents were together with the children the issues concerning father were as follows:

1. excessive alcohol use or abuse
2. absentee parent
3. lack of parenting ability
4. home condition
5. domestic violence and discord

[34] Since father commenced his relationship with step-mother the Society concedes that some initial concerns are no longer present. Domestic violence is not an issue and there is a good continuing relationship track record. The home conditions are suitable for children to be present long term.

[35] The remaining issues partly stated and partly gleaned from the evidence before the court are now as follows:

1. father as secondary parent to step-mother like he was previously to mother
2. lack of parenting ability including different parenting styles, lack of accord between parents as to parenting procedures
3. father and step-mother's inability or unwillingness to learn and employ good parenting techniques for four children, each with behavioural issues, each demonstrating fragile components to their personality and behaviour.

[36] The Society has voiced concern with respect to the alcohol use history of father. The best evidence is that father's alcohol consumption is consistently substantial, some 24 beers more or less, per week. He has been observed on at least one occasion to have alcohol on his breath during an access visit. Since commencing his relationship with step-mother he does not consume alcohol in the presence of the children, requiring him to absent himself from the house on the family property in order to consume alcohol, leaving step-mother as the primary caregiver during those times. However there is no clear evidence that alcohol has directly or negatively affected his ability to parent otherwise.

[37] The alcohol situation historically has been such that a consensual alcohol safety plan was engaged early on and had to be implemented one time in the several years since father has separated from biological mother. Alcohol consumption by father is an issue that requires attention and monitoring but is not currently an obvious negative ingredient of father's observed parenting.

[38] The real focus of the Society's request for Crown wardship of all four children is the issue of inability to parent adequately.

[39] There was a great deal of evidence from both sides regarding access of all four children and parenting of the two girls while in father's care, for the time period between the first apprehension in 2009 and the apprehension of the girls from father's and step-mother's care in February of 2013. Each participant emphasizes this evidence to convince the court of the correctness of their respective positions. The result was much access detail and some access statistics were before the court.

[40] One access supervisor described a year's worth of access as consisting of 24 visits, one quarter of the visits being good or acceptable, and the rest characterized by chaos, inappropriate child behaviour, verbally and physically. Over time some individual issues arising from time to time were as follows:

1. A working woodstove in the home is a concern for the physical safety of the children
2. A bonfire fueled by gasoline made by the children without adult supervision
3. Four children on one trampoline without supervision
4. A.M.C. on a summer holiday stay of a month or so away from home, unauthorized, with an unacceptable caregiver in one of the two homes in which she stayed.

[41] Ultimately the events surrounding access can be characterized this way. The father and step-mother did not preempt the concerning behaviour, but there were genuine attempts to address the issues, some successful, some not.

[42] The quality of access cycled up and down. It is agreed the best visit was on the 10th of March 2012 with all four children in father's home when the girls resided there. This was a visit characterized by no evidence of alcohol use at all, activities preplanned by father and step-mother, with cooperative engaged children. This is contrasted with a visit on the 19th of January 2013, shortly before the second apprehension of the girls. A visit characterized by children yelling, screaming, fighting and hitting each other, with non-helpful inappropriate responses (verbal sarcasm) to quell the chaos from a father frustrated by the difficulty in restoring calm and civility.

[43] Father asserts that it was the opinion of at least one worker that there were no risk of harm concerns during access visits. On the whole of the evidence context it is more proper to say that while there was potential harm arising on access visits as recited, no actual physical harm came to any child on access.

[44] The ups and downs of access had three characteristics. Only a few were out of parental control, many were difficult and demanding, some were satisfactory or good.

[45] Step-mother, particularly when the girls were residing in father's home, reported father was not pulling his weight in sharing parental responsibilities and that they often disagreed on how to address parenting issues as they came up. The step-mother believed in the observance of rules and consistency of approach. She felt undermined by father's easier attitude, sometimes in direct contradiction of step-mother about how to proceed. The evidence for that time discloses a father more easily frustrated with poor child behaviour than step-mother. The result—step-mother felt overwhelmed and unsupported by father.

[46] Access quality has improved since the girls left father's care in early 2013 and has remained better than before, with shorter but supervised visits, which is the current access regime in father's home.

Services Provided

[47] Before the first apprehension the Society proposed and provided an intensive service plan. Frequent access was monitored and the parents mentored by access facilitators. Family service workers attended on schedules ranging from less frequent to weekly. In 2008 a large number of services were offered father and biological mother including:

1. alcohol program
2. family home visitors
3. public health worker
4. subsidized daycare
5. REACH counselling
6. on-site behaviour management worker

[48] None of these services were engaged by either parent, except biological mother did engage with REACH in personal counselling in 2009.

[49] Post-apprehension and post-parental separation father engaged in budget counselling a year or so after recommendation. He began but did not complete anger management counselling. The Beyond Basics childcare program was offered but not engaged.

[50] An organized CAAP assessment was cancelled because father failed to participate. Counselling regarding the integration of two families into one blended family was completed. The presence of a clinical access facilitator was accepted and not challenged by father and step-mother, who understandably, wanted more access, preferably not supervised.

[51] A crisis worker to deal with A.M.C.'s significant self-harm behaviour, begun while residing with father, was declined. Father did engage with Addiction Counselling in a program whereby self-report of the situation resulted in an assessment of no observable alcohol issue. The Society found the process to be lacking validity; father saw the result as confirming his belief he had no real alcohol issue.

[52] In any event an alcohol safety plan was agreed to—limit intake to an undefined acceptable level, and if exceeded, utilize agreed safety plan. There is no evidence this failed.

[53] In 2011-2012 father gave evidence that he engaged with other services as follows:

1. Banyon Community Services
2. Haldimand Norfolk REACH Services
3. Powerhouse Project
4. Family counselling

[54] However there is no evidence before the court as to what each service focused on, the participation rate and the assessed outcome. The documents filed by father provide numerous documents entitled "Resource Material" (tabs 18-26 inclusive in Exhibit 7 Document Brief of Exhibits of Respondent Father). But there is no independent evidence by any service provider, which is not the Society, as to how father or step-mother did in any engagement with any service provider to assess parenting ability and/or upgrade parenting ability. The exception is a certificate demonstrating that father completed the COPE Parenting Program at REACH in April of 2011.

[55] We are left with some non-detailed father's unsubstantiated comments about what he did and how he did it, and the evidence of the Society witnesses, regarding the outcome of engagement with Society provided programs or personnel. Father's assertion that he participated in five of six offered services may be true, but only the ones for which Society assessment is available show any outcomes. These were as follows:

1. engagement with access supervisors
2. substance abuse testing - positive for alcohol
3. family group conferencing with CAS personnel

[56] The result is that the evidence before the court as to parenting ability and any change in parenting ability comes from observed behaviour by others, self-report of own behaviour, and Society personnel assessment and Society filed documents.

The Children

[57] All children have lived with parents, a parent, or in foster care as previously set out.

A.M.C.

[58] A.M.C. was 13 years of age when the trial finished; she was eight years of age when first taken into care. In February 2013 A.M.C.'s child psychiatrist diagnosed her as having Generalized Anxiety Disorder. She is also assessed as being a non-situational intrinsic worrier. Her uncertain legal status and her uncertain living situation is a defined source of worry and anxiety.

[59] The doctor's professional opinion is that prescription medications and behavioural strategies are the best management techniques. The main focus is a three-pronged one:

1. Parenting by informed parental figures able to follow through defined cognitive and behavioural techniques with a caveat that this technique works better with younger children;

2. In the long term A.M.C. will require individual insight-oriented cognitive behavioural psychotherapy to learn anxiety management with cognitive reframing techniques to address her perpetual distortions of the world around her;

3. Continuation of a prescribed drug therapy plan with changes as required.

[60] There was informal opinion that while residing with father in 2012 A.M.C. suffered from depression and anxiety. It was at this time that she commenced self-harming activity by cutting, which she saw as a method of taking away her worries. This behaviour continued in foster care and is now a major focus for protection concerns and treatment. While in father's care her behaviour was described by step-mother as defiant and belligerent. She was described as often unresponsive to father, step-mother, and step-grandmother in their attempts to regulate her conduct and verbal conflict in the home.

[61] She has on one occasion since coming into foster care after apprehension from father's home drank what she believed to be a dangerous liquid to do self-harm. In the foster home there is a triple focus plan in place. The day to day living program consists of a firm, caring, consistent approach to her and her behaviour with preset rules and expectations. In addition there is a physical safety plan removing from her personal environment sharp objects and cleaning supplies. Finally a prescribed medication plan is in place and followed.

[62] Since coming into foster care and since the separation of the girls from the boys for access purposes, her behaviour on access visits has improved.

R.A.C.

[63] R.A.C. was 10 years of age when the trial ended; she was five years of age when first taken into care. Her pediatrician diagnosed her with Attention Deficit Hyperactivity Disorder in December of 2012. The underlying symptoms reported to the doctor for his assessment were a history of inattentive behaviours and hyperactivity at home and at school from at least six years of age. The observable conduct reported by step-mother directly to the doctor was difficulty with routine and anger management. She was easily distracted. For example she was not able to read for more than two minutes at one time. Other complaints were opposition and defiance to authority in the parental home. She transfers blame. She exhibited nocturnal enuresis—difficulty falling asleep and staying asleep. Her test scores for ADHD revealed she was well within the diagnosis range, not borderline. The professional opinion was that her ADHD contributes to significant and problematic disruptive behaviour as well as inattention to essential tasks, interfering with learning and social relationships. The management techniques recommended were as follows:

1. Consistent highly structure home routine and daily life management;

2. Positive reinforcement, external-behavioural modification;

3. Advocacy in the community for ADHD supports;

4. A regime of prescription medication properly followed; and

5. Proper ADHD attentive diet.

B.M.C.

[64] B.M.C. was nine years of age when the trial ended; he was four years of age when taken into care. B.M.C. is the child with the least amount of professional intervention. Unlike his siblings he has no diagnosed illness or disorder, although he required massive dental intervention when first taken into foster care. In the sibling group he is not an instigator of difficult behaviour.

[65] However, B.M.C. has exhibited intermittently over the three years of foster care melt-down behaviour to a significant degree. There is a positive correlation between access visits with father and family and behaviour categorized as hyperactive, with child upset and tantrums. He is described as oppositional and defiant, often with inappropriate language.

[66] It was observed that the February 2013 change in access visits with father from four children present to only two boys present improved his behaviour around access visits noticeably.

[67] The result is an extensive behaviour management technique list employed by the foster mother and passed on by her to father and step-mother. Over the second half of foster care, from 2012 to 2014, melt-downs have diminished, he is still excitable. He is in need of remedial help at school especially with respect to mathematics and reading, which foster mother attributes to lack of exposure at a younger age and not a lack of intelligence or ability. School behaviour has markedly improved. The foster mother attributes behaviour improvement to a concerted effort consisting of positive reinforcement as opposed to negative consequences like timeouts, phasing to minor negative consequences and the use of the 1-2-3 Magic Program for child behaviour. Verbal direction and reminders are useful, and emotional and verbal assurance is also employed.

[68] The school catch-up program for educational deficiencies is being supplemented in the foster home. In general the efforts at home and school have shown positive results, with more progress required.

A.R.C.

[69] A.R.C. was five-and-a-half years of age when the trial ended; he was less than a year old when first taken into care. A.R.C. was diagnosed by his pediatrician with ADHD some time prior to the 21st of March 2013 when his pediatrician informed A.R.C.'s school of the diagnosis. This was a response to a letter from his school principal concerned with his observed conduct at school. In March of 2013 that observed conduct was described as follows:

1. Inordinately affectionate and clingy with his J-K teacher physically and emotionally;

2. Use of sticker reward system to improve behaviour appeared helpful;

3. Use of explicit sexualized language;

4. Demonstrated verbal aggression at times, at times appropriate with peers;

5. Roller coaster emotions daily with mood determining language and conduct;

6. Classroom learning focused on structure and routine for him rather than actual academic learning; and

7. Generally non-observation of physical aggression.

[70] The foster mother's assessment was that the changes to access—two children at one time not four—has also been helpful for A.R.C..

The Legislation

[71] Pursuant to section 64(2)(b) of the Act the Society has brought the amended application before the court for judicial status review of the final order of the 11th of February 2009. That order confirmed an existing situation whereby all four children were returned to the care of the biological parents, H.E.C. and R.R., under specific terms of supervision by the Society for a period of six months. The Society has done so as required by section 64(2)(b) of the Act. This triggers consideration for purposes of disposition of three specific sections of the Act as follows:

Court may vary, etc.

Section 65(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

Order where child in need of protection

Section 57(1) Where 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 or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the Society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the Society.

Consecutive orders of Society wardship and supervision

4. That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

Court to inquire

Section 57(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the Society or another agency or person has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

Section 57(3) 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, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

Section 57(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for Society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

Idem: where child an Indian or a native person

Section 57(5) Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child's extended family;

(b) a member of the child's band or native community; or

(c) another Indian or native family.

Section 57(6) Repealed.

Idem

Section 57(7) When the court has dispensed with notice to a person under subsection 39(7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for Society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47(1) has been held upon notice to that person.

Terms and conditions of supervision order

Section 57(8) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on,

• (i) the child's parent,
• (ii) the person who will have care and custody of the child under the order,
• (iii) the child, and
• (iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the Society that will supervise the placement, but shall not require the Society to provide financial assistance or purchase any goods or services.

Where no court order necessary

Section 57(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

Expiry of Orders

Time limit

Section 70(1) Subject to subsections (3) and (4), the court shall not make an order for Society wardship under this Part that results in a child being a Society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for Society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for Society wardship.

Same

Section 70(2) In calculating the period referred to in subsection (1), time during which a child has been in a Society's care and custody under,

(a) an agreement made under subsection 29(1) or 30(1) (temporary care or special needs agreement); or

(b) a temporary order made under clause 51(2)(d), shall be counted.

Previous periods to be counted

Section 70(2.1) The period referred to in subsection (1) shall include any previous periods that the child was in a Society's care and custody as a Society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a Society's care and custody.

Idem

Section 70(3) Where the period referred to in subsection (1) or (4) expires and,

(a) an appeal of an order made under subsection 57(1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 65 (status review),

the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.

Six-month extension

Section 70(4) Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

[72] It is agreed that section 70 of the Act is operative because all children have been in Society care in excess of two years so that Society wardship is not a permitted disposition. On the facts of this case (no third-party placement option available) any of the children must be placed with a parent, with or without supervision, pursuant to section 57(1) 1., or be made a Crown ward under section 57(1) 3. with or without access.

[73] In considering the restricted options the Act prescribes a short substantive procedural checklist. Pursuant to section 57(2) the court must inquire into what efforts the Society or others have made to assist the child before making an order. It flows logically that this mandate applies to assistance for a parent as well, such assistance necessarily assisting the child.

[74] Pursuant to section 57(3) the orders available must be considered sequentially from least disruptive being considered and rejected to most disruptive being considered. In rejecting the less disruptive options the court must be satisfied that alternatives that are less disruptive are inadequate to protect the child. Thus a sequential rejection on a balance of probabilities test of all lesser options available to the court is required before the Crown wardship option is exercised.

[75] All of this is within the overriding context of the basic principles and fundamental precepts of the Act. The Act has enumerated purposes which govern the functional parts of the Act as follows:

Paramount purpose and other purposes

Paramount purpose

(1) 1. The paramount purpose of this Act is to promote the best interests, protection and well being of children.

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children's services should be provided in a manner that,

   • i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,
   • ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
   • iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
   • iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

[76] Where there is conflict between the Other Purposes of the Act and the Paramount Purpose of the Act, the Paramount Purpose must prevail.

[77] On the facts of this case certain other purposes are not relevant. There are no facts to support an issue with respect to cultural, religious and regional differences. There are no facts to support an issue with respect to Indian and native people entitlements.

[78] The Society seeks an order pursuant to specific protection concerns encompassed by section 37(2)(b)(i) and (ii) of the Act as follows:

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

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

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

[79] The court in deciding what order is in the children's best interests must take into account specific enumerated relevant circumstances of the case as follows:

Section 37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[80] Not all enumerated circumstances are necessarily relevant. That is a matter of fact. The enumerated circumstances are not necessarily co-equal. That is a matter of fact.

[81] Finally, if a Crown wardship order is made the court must address the issue of parental access, access to others, and sibling access. The position of the Society, the position of father, the position of each of the two lawyers representing different children all involve some form of access order in the event a Crown wardship order is made. Such an order is permissible under section 65 of the Act with respect to this status review matter, with the restriction contained in Section 59(2.1) of the Act as follows:

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

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

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

Discussion and Analysis

[82] The Society position of Crown wardship for all four children with access for father for the older girls and none for the younger boys is founded on a service provider-client relationship with the biological mother and father that began in 2006, when the three eldest children lived with the parents. The observed concerns were chiefly, domestic violence, marijuana and substance abuse affecting parenting, along with mother's anxiety issues. These and other unresolved issues led to the commencement of court proceedings in December of 2008. That process continues to now.

[83] However the social dynamic has changed significantly. The biological parents separated at about the time of the first apprehension in June of 2009 because of the same ongoing issues. The result of the separation was two-fold. Mother became disengaged from services and supports, finally becoming disengaged from her children. She has not participated in the court process or service process for years and has no plan of care to be considered.

[84] Father quickly entered into a relationship with a new partner and her immediate family. He did not disconnect from the Society. His new situation had improvements—better partner relationship, a suitable physical environment for the children, and reduced alcohol intake. Separate parental access with the children eventually became father access with all the children leading to a period of over one year when the two girls resided with father in a blended family environment. Access before and after this was substantially supervised for a dual purpose. To monitor parenting ability. To improve parenting ability. This dual purpose approach continued beyond the time the Society made the decision to seek Crown wardship by the amended status review application of the 8th of April 2010 now before the court. Despite this formal position the Society continued to take a dual approach, placing the two girls on extended access, eventually with court approval, for some 14 months from December 2011 to February 2013. The return of the two girls to Society care was also confirmed by a temporary without prejudice court order with access by the father to the children. This is the status quo that at the time of trial conclusion was in existence, also for a period of some 14 months.

[85] The lengthy history presented at trial shows two characteristics of the Society's involvement with this family.

[86] The court inquiry required by section 57(2) of the Act shows that the Society consistently made available, facilitated, or recommended a large number of services or assists for the children directly, and for father and step-mother. These included access facilitation over years to help with learning child behaviour management skills, arranging a full CAAP assessment, engaging a psychiatrist and pediatrician for one or more of the children to diagnose and treat major psychological and emotional behaviour disorders. There was specific focus on third-party service providers to assist the learning process for child management and to address the alcohol issues of father. Summed up, the Society position is that services engaged resulted in insufficient improvement, if any, for child behaviour management, and a black hole of uncertainty with respect to father's long-time significant detrimental association with alcohol.

[87] In argument the Society lists a variety of in-house and community services offered over a long period of time. That summary is accurate. The argument that multiple referrals continued to be made without results or completion is also accurate. As previously stated the statements of father regarding participation and success in community provided services is not supported by meaningful evidence before the court, except, father continued to engage with Society personnel, engaged in blended family counselling, and one other program. There is no evidence of open obstruction or disengagement with child and family service workers by father.

[88] The time period that the two girls resided with father is important. At this time the issues requiring Society involvement intensified. Society personnel focused on helping father and step-mother to learn child behaviour coping and management techniques. There were appropriate referrals to specific community helpers like Haldimand and Norfolk REACH. Parental acceptance and engagement was, as throughout, not dismissive, but lukewarm and not sufficient.

[89] The Society position and involvement with accompanying plan did not remain static or unresponsive to change. As the family scene changed so did the Society's approach. Father separated from a mother in crisis, a mother who had been the day to day primary caregiver for the children. He found a new more supportive, much less problematic partner with relatively better child care skills. The Society approved and arranged for in-home access with professional assistance, developed a plan reflective of improvements in father's situation, returned two of four children as a measured response to that improving situation. Similarly when recommended services were not engaged or not fully engaged, when child behaviour on supervised access involving all four children was more often than not, chaotic, with physical risks from time to time and the children displaying behaviour consistent with future diagnoses—in short, significant regression in circumstances—the two girls were removed from father's care but significant access in the home continued.

[90] A proper reading of the evidence discloses that the Society personnel were responsive to change, both good and bad, from the parental point of view. That responsiveness was characterized by a long term concerted effort to provide appropriate services.

[91] Father argues that those services provided directly by the Society were deficient, both in quantity and in quality. He argues that workers had non-consistent attitudes as to how father was to demonstrate his proper parenting ability and that different management approaches by different workers led to confusion by father as to how he was to proceed. In fact the overall management approach was consistent over a period of years. The issues were clearly identified. The service providers' solutions were offered. The monitoring of access with suggestions for change occurred. The consistent theme was for father to accept help from professionals to learn parenting skills, put them into observable practice with feedback from professionals, avoid parental conflict over parenting decisions, remain hands-on without delegating too much parenting authority to step-mother, monitor the four children constantly, and learn techniques to avoid parental frustration with problematic child behaviour. This was the program over the course.

[92] The examples of Society inconsistency argued by father show two things.

1. On the scene infrequent access decisions that went against the plan—e.g., giving in to a child's wish to have food or drink in an unacceptable location in the home—were minor in nature and a response to either a need for father-worker privacy or a rare de-escalation tool.

2. Father's argument fails to take into account the necessity that the Society approach be tailored to changing circumstances.

[93] Father's position that the alcohol abuse issue identified by the Society is over-emphasized is probably true, but without sufficient third-party assessment independent of the Society's suspicions and the father's assertions, there is insufficient evidence to make clear finding on that issue. It is not that there is no alcohol issue, clearly there is, open and notorious in the early years, less so in the later years, particularly when the two girls resided with him. Alcohol was not a fuel for domestic abuse as before, there was no repeat of loss of driving privileges (previous 10 year ban), but despite his protestations that he would quit drinking to get the kids back, he never quit daily drinking and still continues to consume alcohol on the higher end of the scale. There is no professional alcohol assessment other than a brief one time self-report assessment with a counsellor, so there is no definitive evidence or a professional opinion as to how his current significant alcohol use does, or does not, contribute to his propensity to be frustrated by difficult child behaviour, multiplied by four.

[94] However there is evidence his ongoing out of presence of children alcohol use likely contributed to ceding his parenting role to step-mother. It is clear that the continued alcohol use by father is a questionable part of his parenting, but it is not co-equal with parenting ability issues at all.

[95] It is problematic that the father had the opinion that the alcohol safety plan addressed the issue of his alcohol use or abuse. That is, in the event he was intoxicated to the extent his good parenting was compromised, a telephone call to a third-party service provider would make everything safe for the children. It would in the immediate sense, as it did the one time that option was used. But the proper solution involved more than a contingency plan. It required father to seek help to understand his historical alcohol history to avoid the issue as it related to parenting.

[96] The Society argument and father's argument view the family patterns related to the children, of residency of girls, and access to children, from 2009 to the second apprehension in 2013, very differently.

[97] The Society characterizes the sum total of father-multiple child interaction as chaotic, lacking consistency, lacking sufficient father involvement, lacking proper engagement with necessary service providers, not understanding the needs of four problematic children with reasonably similar, but not identical, difficult to parent behaviours.

[98] Father argues that the sum total of the evidence reveals a parent with a step-parent meeting the minimally acceptable standard for parenting, denying the characterization of father and his partner described by the Society. His access attendance was excellent over the years and continues to be so. He has never been openly hostile to Society involvement over years. The good domestic situation now has a long-term track record. Alcohol is consumed in moderation, and is not a poor parenting factor.

[99] It is clear the situation of each child, particularly the girls, has not been linear, not always going in the same direction. The 2009 apprehension showed that the kin placement was not particularly problematic regarding child behaviour. While there is little evidence on this over one and one half years of placement, the length of the placement and the lack of information supports the conclusion that the children behaved adequately in that placement. An allegation of inappropriate physical discipline in the home toward one child, made by mother, with the kin's refusal to cooperate in the Society investigation, might mean that there were some observable child behaviour issues. The evidence from this time has little weight. Since that kin placement the four children have never resided together. They did see each other together on access over a period of years, until the children's collective behaviour required that father see the boys and girls separately. The result is that the only observations of all four together have taken place in father's presence. The exception—one meeting in a foster home which the foster mother described as chaotic and uncontrollable, and not ever repeated.

[100] What is the true characterization of father's parenting abilities? He has shown a pattern over the years of taking a secondary role when under stress. This was particularly so when he was with the biological mother prior to June of 2009. But he has behaved similarly, to a lesser extent, with his new partner. Despite attempts to rewrite history at trial it is clear that step-mother over a meaningful period of time with the girls in residence felt overwhelmed, under supported by father, in conflict with him over parenting style, and suffering from anxiety and depression. Her relationship with the girls was difficult and often argumentative, more so with R.A.C. than A.M.C.. It is noteworthy that there is a direct correlation between the emotional and behavioural difficulties with each child and the amount of time spent in residence with father. It is noteworthy that A.M.C.'s bulimia and self-cutting behaviour began when residing with father and step-mother.

[101] Father argues that the assessments and beliefs of various Society workers were at times at odds with one another and confusing to father thereby affecting his parenting ability. There are two problems with this argument. If true, father is still left with the lack of parenting ability. It is implicit in father's argument that Society workers' inconsistency in involvement and approach should favor return of the children to him. This is not a contest to determine whether the Society or father is more culpable. The winner does not get the children. The issue to be decided is what is in the best interests of each of the four children, particularly with respect to future residence. At this stage, after more than five years from the commencement of the first application, the imperative issue is permanent placement of each child in a proper home environment containing the characteristics said to be necessary for their life progress detailed by the child psychologist and the pediatrician in written evidence before the court.

[102] If not true, father's progress or lack of progress, is related to his own ability to learn, internalize and then change positively, his parenting behaviour. The complaints about the confusing and contradictory attitudes and input to parents by various Society workers, is not a fair characterization of their involvement.

[103] It is argued that the term "chaos" in chaotic visits was never defined. But it is clear from notes and comments of father and step-mother they knew well, as any other person would, what was chaotic in the access visits. A large proportion of the 56 exhibits filed at trial were access notes and affidavit material related to parent-child interaction, clearly setting out a pattern of child conduct of potential physical danger—the wheelchair, the gasoline fire, the trampoline, the wood stove—more problematic child on child interaction and child on parent interaction, resulting in the conclusion that even in a supervised and mentoring environment there was an out-of-control attitude and interaction which frequently required supervisor intervention, with father withdrawn from parenting with a "do what you want" giving up in frustration attitude, and a step-mother feeling put upon, unfairly treated, especially by the girls, and a general lack of parental control.

[104] This scenario cycled up and down over months, and over single visits. The general conclusion to be reached is that, unsupervised, unaided, father and step-mother could not adequately parent these four children. The decision by the Society to separate each girl into a home without siblings, and to keep two connected boys from residence with their female siblings, demonstrates how hard it is to have even experienced foster parents cope adequately with the combined four children dynamic.

[105] That dynamic appears to be this. By history and learned behaviour, in the context of diagnosed issues for three of the four children, the stresses on day to day parenting are such that a high degree of consistent good parenting skill would be required to parent the four children in one home on a minimally acceptable standard.

[106] In this context chaos was not required to be defined, the father and step-mother were observing it regularly, and there was no failure of meeting of minds as to what that chaos consisted of among the various adult participants. There was no lack of understanding at the time of what constituted a good access visit, an in between visit and a chaotic visit.

[107] In that evidentiary context father's argument that he was confused and hampered in his parenting by confusing worker input is again rewriting history.

[108] Father argues that the Society workers' express primary concern was the chaotic nature of the visits. That primary concern then changed to management of children. All without answers as to how issues were to be addressed. In fact there should be no confusion. The chaotic nature of the visits was founded in the children's behaviours and lack of parental ability to manage.

[109] This single core issue was to be addressed by:

• acceptance of service providers like the crisis worker who was refused
• learning from access supervisor guidance and if necessary intervention to avoid moving from crisis to crisis
• parents acquiring skills to de-escalate situations by being proactive early rather than simply reactive after the fact.

[110] In fact these parenting skills unlearned, coupled with other issues like an overwhelmed step-mother and a father prone to parenting withdrawal under stress, resulted in a generally downward cycling of parent-child interaction and parenting situation in early 2013 when the girls were apprehended from father.

[111] The argument is made that the challenging and defiant to parents behaviour of the two girls was not unusual in a home with two preteen girls, getting used to a step-mother and step-sibling, whose authority was often child-challenged, particularly by an antagonizing R.A.C.. This could be characterized as normal. However it is the level and consistency of bad behaviour, coupled with the ongoing lack of adequate parenting response that separates the circumstances of this family from the "not unusual". After the fact evidence of diagnoses for three of the four children assist in understanding that dynamic.

[112] Father argues that if there was lengthy access to all four children, some of it not supervised, and the placement of the girls in residence with father was appropriate for a period in excess of one year, it should still be appropriate now under Society supervision. This argument is connected to the other argument that Society workers over time changed various expectations and concerns.

[113] This argument has to be seen in the context of the evidence as a whole. Over five years the family situation changed dramatically as previously set out, and not in a linear way. The Society position did not remain static or unchanged. That is true. But change occurred as a response to change in family circumstance. Improvement led to greater parent-child involvement, including residence with father. Deterioration led to less parent-child involvement, including termination of residence of children with father, and a more restricted access regime, although still generous and in father's home. It is in this context that the changes in concern and the changes in expectations must be seen. It is not only appropriate but necessary for the Society to fulfill its obligation to the children, and then the parents, in accord with the primary and secondary purposes of the Act that there be changed response to changed circumstance.

[114] On the evidence it is simply not true that the expectations were not clear and the indicators of how father and step-mother could meet those expectations were not clear. These were clear in each segmented circumstance, but as circumstances change so did the specific expectations and implementation strategies. The overall expectation remained the same, minimally adequate parenting of difficult children. This never changed until the apprehension of the two girls from father's care after almost four years of engagement without success. At that time the focus changed to continuation of relatively generous access to maintain the parent-child connection until a court imposed resolution.

[115] The argument that the Society minimized negative access factors not within parental control in assessing parenting is not made out. Those enumerated factors—number of people in household, small physical residence, varying ages of children, child behaviour connected to later diagnosed illness and conditions—were all part of the recognized family situation.

[116] In addition this argument fails to take into account that all of these factors were actually present and formed part of the family dynamic along with the parental issues of lack of father's support for step-mother, step-mother's emotional issues and anxiety, father's parenting withdrawal and the conflict in parenting styles between the two. The enumerated factors were not fictitious, but real. The Society did not minimize them as argued. Society workers were on scene for almost all access over the period of time involved. The crisis worker was offered but rejected. The history shows that the Society did not minimize the enumerated issues but recognized them as good parenting issues and responded appropriately.

Resolution

Findings

[117] This is a combined trial with respect to findings and resolution, where the findings sought on the status review by the Society have already been made in the order being reviewed. Nonetheless there is still an onus on the Society to present sufficient evidence to make out the findings case. All positions before the court, the least intrusive being father's, return of children under supervision, presuppose that some finding that these children are in need of protection will be made so that a requested order under section 57 of the Act will be made.

[118] The evidence is overwhelming that the facts and circumstances of the family after the final order of the 11th of February 2009, while different in many respects from the facts and circumstances leading up to that order, are sufficient to support the findings sought by the Society. Post-February 2009 to the present the focus has changed to the father's parenting and the focus has narrowed to two general issues—father's alcohol use and his general ability or inability to parent. The concerns are based on the evidence related to the parental ability to control and direct the collective chaotic lives of four children, all with significant behaviour issues and personal issues that make that task especially hard, particularly when they are together in one social environment. The evidence based on length of time of parenting, the parenting outcomes revealed in evidence and previously discussed, satisfy the criteria for both findings. There is a failure to adequately care for, supervise, and protect each child and that failure represents a pattern of neglect, creating a real risk that a child is likely to suffer physical harm from father's action or inaction.

[119] It should be made clear that there is no evidence of direct physical harm to the children by father in the traditional physical abuse sense. The harm is not inflicted by father in that way. However the harm is connected to father's inadequate childcare skills, and the inability over years to upgrade those skills sufficiently, creating a risk of physical harm. It is most easily seen in the self-harm behaviour of A.M.C., but it is present globally for the children. In everyday language that caring failure, the providing failure, the protection failure is the chaotic nature of day to day living in father's home to such an extent it requires state agency intervention to protect the children.

[120] The findings sought are made for each child pursuant to section 37(2)(b)(i) and (ii) of the Act.

Disposition

Primary Disposition

[121] The required disposition must be one of return to father under supervision or Crown wardship, with or without access in keeping with section 57 of the Act, as limited by section 70 of the Act. In making a disposition the least disruptive alternative is mandated.

[122] The circumstances of this case that must be taken into account are the relevant considerations set out in section 37(3) of the Act. Some are more relevant than others. Consideration 3.- cultural background, and Consideration 4.- Religious faith are not at all determinative on the facts of this case.

[123] Consideration 1.- The child's physical mental and emotional needs and the appropriate care or treatment to meet those needs. This consideration takes priority in determining the disposition. Since February of 2013 A.M.C. has been diagnosed with Generalized Anxiety Disorder, likely founded in situational life experiences. Until that time her parenting history was that she spent most of her life with biological mother and father, then in foster care, then in father's care. In December of 2012 she was diagnosed with ADHD. Beginning in father's care in 2012 she demonstrated symptoms of bulimia and self-harm activity including cutting. The cutting activity has continued in foster care. She is observed as being depressed at times, with low self-esteem and concern over her family and living situation, with separation issues. She has a regime of prescribed medications for the diagnosed issues.

[124] R.A.C. was diagnosed with ADHD in November of 2012. The concern is significant and problematic behaviour, interfering with essential tasks and causing difficulty with social relationships. She demonstrates negative instigating behaviour in sibling interaction and argumentative and provoking behaviour particularly with step-mother.

[125] B.M.C.'s situation is not as defined as the others. He has no formal diagnosis with respect to behaviour or illness. However he is viewed as someone with difficult to manage behaviour. He melts down frequently, demonstrating behaviour risky for himself and others physically. This behaviour is not age-appropriate for him and is particularly challenging to good parenting. He is oppositional, defiant, prone to using very inappropriate language with caregivers and others.

[126] A.R.C. was diagnosed with ADHD in March of 2013. He has significant behaviour issues in the foster home and at school. He exhibits as prone to meltdowns and being hyper active. He requires positive reinforcement and a special plan at school, focusing almost entirely on behaviour at the expense of academic progress.

[127] Plans developed by the Society, doctors, school personnel and third-party service providers are common for all. A need for care in a home environment that is positive with substantial behaviour monitoring and behavioural management, ranging from self-harm watch—A.M.C.—to day to day behaviour control—the boys. Coordination between various adults including home caregivers, school personnel and service providers is essential and needed long-term.

[128] Consideration 2.- Child's physical mental and emotional level of development. This issue is intertwined with the previous one. While there is no specific physical infirmity or traditional development issue for any child, all children have severe, ongoing mental and emotional issues as discussed. It is clear this is not minor or transitory for any of them. Rather intense on-going interventions will be required for the foreseeable future. It is important that each child develop a positive relationship with a parent or parental figure in a family environment.

Consideration 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.

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

[129] The relationship with biological mother has been non-existent for two years or so. The haphazard relationship between A.M.C. and mother appears non-positive with respect to A.M.C.'s emotional stability, evidenced by her reactions and comments to such mother interaction with her.

[130] The relationship with father has been ongoing since the first apprehension of all four children five years ago, including placement of the two girls with him for over a year, terminated by the second apprehension about a year-and-a-half ago. The difficulty is that father's abilities and children's needs are not a good match. Substantial continued involvement over years including in-home access to all children, girls residing with him, has not resulted in improvement of the children's circumstances.

[131] In fact, behaviour escalated eventually when the girls returned to father's care with home access to the boys, partly open, partly supervised. With justification, based upon deteriorating circumstance, the girls stopped residing at father's, access has been reduced in time and in number of children present at each access visit.

[132] This is not to say that behaviour and negative child interaction with siblings and others has markedly improved with these changes. It has not. But there is containment of the situation, implementation of professionally advised mechanisms and procedures implemented by skilled professional figures in foster care. With respect to interaction with father it is unfortunate but true that lesser interaction is correlated with improved interaction.

[133] It cannot be argued by father that the opportunities for development of positive relationships were not given. They were but the results or not positive. The result has been a change of focus from a plan centered on children being re-integrated into father's home to a plan focusing on some other non-father home placement. Each child has been in care for over five years, less time of the girls with father. For all, the boys especially, life memories and daily contact is with others than biological mother or father.

[134] The foster placements for all children have been relatively stable over the years despite the diagnoses and despite the behavioural issues. The status quo and the length of the status quo result in a distancing from parents, but not a break with father's emotional involvement with the children. This is true to a lesser extent with step-mother and her immediate family present in the home with father.

[135] 7.- The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. The issues with respect to positive parent relationship and relationships and emotional ties to parents and others is tied to the possible disruptive effect of any order made. The need for continuity is particular for these children. The child psychologist, pediatrician and others have all emphasized the need for positive continuity to improve life chances for each by putting in place procedures and programs to minimize negativity and disruption, all on a very high and long continuity level. Father's tendency to cede parenting, father and step-mother's fundamental differences on parenting technique, step-mother's anxious reaction to being put into the parenting role without adequate partner support and father's tendency to be frustrated by very challenging child behaviour all make the father's home unlikely to keep in place the positive home environment required and recommended for these four children.

[136] In fact professionals and foster parents have made the decision that even well trained and best intended parental figures cannot successfully cope with the four children together. The result is each girl is now separated from siblings, the boys being together because of emotional connection and need. All are carefully monitored to promote personal progress and to minimize distraction or problematic behaviour. At this point, with these considerations the only realistic continuity is really continuity of out of father's home care of the children in their separate environments.

[137] 8.- The merits of a plan for the child's care proposed by a Society, including 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 plan of care of the Society and father reflect the subjective view each has of the child's circumstances. The Society's view is more in keeping with an objective observer's understanding of each child's individual circumstances. A very lengthy attempt to reintegrate each child with father and step-mother has not been successful. The attempt to integrate the boys into the home was never realized because placement of the girls in the home was not sufficiently acceptable to go to the next level. This is so despite the fact that father generally wants to improve and parent his children and the fact that the father-step-mother relationship is generally superior to the father-biological mother relationship. This is also despite the fact that there has been a relatively good physical stability in the same home where blended families reside together.

[138] It cannot be said on the evidence that the Society has been obstructive or disinterested in family rehabilitation. Opportunities were given, professional help was enlisted, and a high degree of hands-on involvement was present. There simply was not success. The return of all four children to father would be a return to a deficient status quo, complicated by the fact that as time moves on the children are getting older, the severity of the issues appear to be increasing, particularly with respect to A.M.C..

[139] Father argues that the children's symptoms or behaviour difficulties have increased since all four came into care after the two girls were apprehended from father. But father was not able to demonstrate minimally adequate parenting in the late 2012 and early 2013 period with the girls in his home. Since then the profile of an adequate parent has been created, chiefly by the medical professionals, and father cannot meet this profile. Neither can any one foster parent family or caregiver. The Society recognizes the limits and the insufficiency of a one home placement even in its own system. The issue is this, if not all children to father, then what, if anything less is appropriate.

[140] 9.- The child's views and wishes, if they can be reasonably ascertained. For the three children capable of giving meaningful views those views have been relatively consistent.

[141] A.M.C. wishes to remain in foster care with continued contact with father and siblings. This is despite a low key campaign by father and step-mother to change her mind and reports from father that she was expressing a different view to him. This contradiction was resolved by firm evidence from A.M.C. herself that she was telling her father what he wanted to hear because she did not wish to hurt his feelings.

[142] R.A.C. wishes to return to father care and to continue contact with her siblings.

[143] B.M.C. simply wishes to reside with father.

[144] A.R.C. is now five years of age, with opinion and wishes that are not clear, because he is not sufficiently mature to understand the issue and convey his understanding to others. However all agree he is intimately connected with B.M.C. and his representative at trial formed the opinion that he wishes to remain in care with his brother.

[145] 10.- The effects on the child of delay in the disposition in the case. There is no dispute that the five years of court proceeding leading to trial is an unacceptable length of time to determine the outcome. The prime directive is positive stability characterized by continued engagement with service providers, intense monitoring, advocacy for ongoing and more community services, all in a secure and loving home environment. The delay concern is tempered by the changes in focus and approach as a direct result of changed circumstance over the years. But all agree finality is necessary now. The professional opinion is that lack of finality is counterproductive for the well-being of the children.

[146] 11.- The risk that the children may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. The harm here is substantially connected to the risk from non-final placement. For example, failed father placement or multiple foster home placements. It is also from a failure to promote and follow the best advice from the health care professionals and others with respect to best practices to address common issues of diagnosed conditions like ADHD, and chronic out-of-control behaviour, sibling dynamic, and life progress socially and academically. In addressing these considerations the specific personal characteristics of each child factor in. For example, the low esteem of A.M.C., the antagonizing behaviour of R.A.C., and the special relationship between the two boys. The risk factors here are the same as those related to the analysis of the two plans proposed, and the variously requested dispositions.

[147] 12.- The degree of risk, if any, that justified the finding that the child is in need of protection. The degree of risk in this case is narrowly connected to child behaviour, the child group dynamic, parental response to both, parental abilities to cope and the professional opinions as to how to respond to the children in a way that it is consistent and supportive. These children, in varying degrees, are at risk of continued problematic behaviour ranging from acutely self-destructive to longer term lack of life progress characterized by continued chaotic sibling interaction, significant difficulties with parental figure interaction and unnecessarily reduced school progress, much as recounted by observers and identified by the professionals. The risk of repetition without significant intervention is very substantial. These children can be characterized as children with special needs as identified at trial related to emotional and psychological well-being that manifested in single and sibling group behaviour.

Primary Determination Issue Case Law

[148] Only father submitted case law with respect to the primary disposition—placement—as opposed to the secondary disposition—whether or not there is access if Crown wardship is ordered.

[149] Catholic Children's Aid Society of Hamilton v. M.A.M. [2003] O.J. No. 1274 is cited for the proposition that in making a decision about parenting ability the court must take care to avoid judging the parents by a "middle class yardstick". That is, a yardstick that imposes an unrealistic and unfair middle class standard of child care upon a poor family of extremely limited potential. The real issue is whether, in light of their individual capabilities, the mother, the father will be able to eventually meet their parental responsibilities. Stayshyn, J. in that case also accepted the position that a court should not permanently sever the child-parental tie merely because Crown wardship without access, with adoption, as an end result, may offer the child greater opportunity to achieve potential.

[150] In that case the final disposition for both children at issue was Crown wardship with no access. It is clear from a reading of the case that Stayshyn, J. did consider and adhere to the propositions set out. But it is also clear that the determination was fact driven, with attention to all the enumerated sections of the Act, in considering what was in the best interests of the two children. The enumerated and statutory driven considerations remain the same, case to case, but the facts seen in reference to that statutory framework determines the outcome.

[151] In this case before this court the Society has not run afoul of these considerations in its assessment of the parenting ability of father and step-mother. Passing reference of no consequence was made to the fact that the parental home was extremely small, perhaps even difficult, for three adults, these four children, and a step-sibling of teenage years. Lack of personal financial resources had been addressed appropriately not simply pointing the father and step-mother in the direction of help and resources. Rather a large system of in-house and community-based services were suggested and made available over a period of years. However engagement was up to the parental figures and success in engagement depended on innate ability and willingness to engage, not some form of class or social bias.

[152] Finally the result to be achieved was not class driven. In the context of the evidence it is clear that some artificial elevation of standard of parenting ability and child behaviour was not the yardstick to determine minimally acceptable parenting and child behaviour circumstances for success.

[153] Much of the case law presented focused on the intellectual capabilities of the parent or parents.

See:

• Catholic Children's Aid Society of Hamilton v. M.A.M., supra
• Catholic Children's Aid Society of Hamilton v. L.H. and P.M., Pazaratz, J.
• Catholic Children's Aid Society of Hamilton v. L.H. (2008), 176 A.C.W.S. (3d) 785 (same children same parent following in time previous cited case)
• Family and Children's Services of Frontenac Lennox and Addington v. L.T. and R.S. 2013 ONSC 6512, 2013 ON SC 6512 (Robertson, J.) also cited as CAS v. L.T. and R.S. 2013 ON SC 6512

[154] The common theme in these cases is that the court must not equate low intelligence with inability to parent. Father's counsel argues that individual capabilities must be measured against the parents' ability to meet their parenting responsibilities. In Family and Children Services of Frontenac Lennox and Addington v. L.T. and R.S., supra, referring to Halsbury's Laws of Canada—low parental intelligence should not be taken as determinative in itself of a child's need of protection. The courts determine whether, in light of their individual capabilities, the parents are able to meet their parental responsibilities. Even if the answer to that question is no, then the court must decide whether, given the proper assistance and intervention, the parents can be provided with the tools necessary to care adequately for their child.

[155] This other consideration, low intelligence of a parent effecting parenting, is not a component of this case. There was no evidence adduced to show father or step-mother were of such low intelligence that parenting was negatively affected. It was not determinative in the thinking of the Society personnel in addressing the family issues. It was not even a significant component, among others, in the thinking of Society personnel.

[156] There was focus on the inability of father and step-mother to adequately control child and children's behaviour particularly when four were together, but also when two girls were residing in father's home. However that focus was based on observed parenting behaviour in relation to the observed child or children's physical and verbal behaviour, parenting ability to engage offered services, learn new parenting techniques and follow through on the ground. The result is that case law regarding parental mental capacity as a component of parenting is not factually relevant to this case.

[157] It is argued by father that The Catholic Children's Aid Society of Hamilton v. L.H. and P.M., supra also stands for the proposition that once parenting deficiencies are catalogued, the Society must give the parents a chance by offering an opportunity to parent and providing appropriate supports. In this case the deficiencies in parenting have been acknowledged by the Society to decrease in number over time and in new circumstances. The focus is now on only two issues, the primary one being inability to control child behaviour to such an extent that it effects each child's living circumstance to the point where intervention is required. There is documented negative child behaviour and parental figures that cannot cope with out-of-control collective behaviour over years to such an extent that with two exceptions—2 hours access per week unsupervised for a time, two girls living with father for a time—all parental contact with the children has been supervised over years and this continues now with even more restrictive access.

[158] The evidence shows this approach necessary and reasonable for child physical and emotional safety. In short the offering of a chance to parent has been a long patient process since 2009.

[159] Another factor now comes into play, referenced in The Catholic Children's Aid Society of Hamilton v. L.H. and P.M., supra, at paragraph 347, Hallis, J. in Catholic Children's Aid Society v. M.L. [1989] O.J. No. 659:

"The court recognizes that the Society's requirement to provide services is not an ongoing obligation to hold the hand of its clients and the court recognizes that the Society often operates under budgetary and staffing constraints but when such an obvious and specific problem exists with a particular client, the Society must provide an individually-appropriate service in order to satisfy its mandate."

[160] On the facts of our case it is clear that the cost of supplying services to this family by the Society has never been an issue. It is also clear that the history is that a genuine and reasonable effort has been made to supply the necessary services to address the issues over a long period of time.

[161] In The Catholic Children's Aid Society of Hamilton v. L.H. and P.M., supra there was one child for consideration. In this case there are four. There has been a conscious separating of the children's residences as discussed to lower the level of risk of harm and to promote each child's best interests. This is not like a one child issue where the future services required would be the same in parental care as in foster care. The Society plan, with separation of residence, will likely mean that there is a greater need for services not less, each child being serviced specifically and separately, with some necessary crossover. The Society's plan is not a money saver.

[162] Finally it is argued that the length of stay in foster care is not determinative of disposition. For instance there was an order for return to parental care where children had cycled in and out of parent care, kin care and Society care over years.

The Children's Aid Society of Ottawa v. J.H. and G.C..

[163] Likewise 540 days in foster care did not prevent return to a parent under supervision.

The Children's Aid Society v. L.T. and R.S., supra

[164] The length of time in care is not determinative one way or the other, the principle applies to both long-term and short-term care. But length of time in care is not irrelevant. It must be looked at in relation to other factors, which may be more important in the balance, such as stability of care, opportunities for services, and the emotional relationship between a child and a parent or caregiver. These and other fact driven considerations weighed together determine the outcome. The likelihood of achieving the stability required for these children is greater in Society care than father's care, an outcome that coincides with continued residence out of father's care.

The Primary Disposition

[165] Each of the four orders sought by father, the Society and two separate representatives of the children are different and mutually exclusive. This is unusual. All orders sought appear to be in compliance with the requirement that the status review order under section 65 and section 57 of the Act be based upon the required considerations under section 37. The differences in requested result are based in the different interpretations of the facts of this case.

[166] No party or advocate has argued that the core issue—a lack of parental control of child behaviour—is not capable of being the basis for a section 37(2) child protection concern. The facts of this case make out such a concern even though the more obvious elements of a failure to care, provide for, supervise or protect (e.g. improper alternative caregiver, abandonment, substance abuse leading to substandard care) are not present. The facts here are similar to the facts in L.M. v. Lavoris Children and Adults of Prescott-Russell 2014 CSON 2921, 2014 ON SC 2921 an openness proceeding in a case where the two children had previously been found to be in need of protection with a disposition of Crown wardship with access, based on the fact that under mother's care the children were simply out of control. The physical manifestations of that behaviour in that case being on the higher end of the scale than is this case being decided. A common element is behaviour that is detrimental to the child or others, including other children, within the meaning of the section 37 definition of harm including physical and emotional harm.

[167] The five-year long history of inability to control child behaviour, particularly in the group context, despite significant ongoing intervention and assistance meets the evidentiary test for the finding of the children being in need of protection triggering an appropriate disposition in the children's best interests. Each child is separate and distinct with individual issues in kind and degree, yet part of the group dynamic resulting in a disposition order.

A.M.C.

[168] A.M.C., along with her sister R.A.C., has been in parental care the longest, first with both biological parents, then with father and step-mother. She has the highest correlation between length of time in parental care and seriousness of negative circumstances. Her representative seeks Crown wardship with access to father and siblings.

[169] A.M.C. has Generalized Anxiety Disorder, and demonstrates low self-esteem. She is self-harming by cutting. She has attempted to drink bleach on one occasion. This behaviour began in father's care and continues in foster care. It is a primary ongoing concern requiring a detailed safety plan in whatever residence she resides. Some of this behaviour is tied to the unauthorized contact with biological mother which is likely to continue.

[170] A.M.C. is aware that father and step-mother do not support her decision to remain in foster care. Both have communicated to her their lack of support for this decision. The risk, if returned to father's care, is that a campaign to win her over to their point of view will make things worse for this particularly fragile child of almost 14 years of age. Close monitoring of her behaviour is required because A.M.C. continues to make poor choices. She has been sexually active without proper protection.

[171] The parenting that permitted her to be absent from home for a month in the summer of 2012 when 11 years of age is worrisome. The parents continue to defend what happened by asserting that the friend's home where A.M.C. was supposed to stay was at one time pre-approved by the Society. But that is not the parenting issue. More problematic is the fact that A.M.C. actually resided for a time at another residence with another friend, during this summer interval, apparently without the knowledge of father and step-mother, in a home where an adult capable of putting A.M.C. at risk resided. The question is, how could father and step-mother allow a situation to come to pass where they had insufficient contact with A.M.C. to know what was going on and where she was actually residing?

[172] A.M.C. has been consistent in her wish to remain in care over time. The kind of home recommended as part of the plan for recovery by Dr. Templeton for A.M.C. requires a level of positive parental input not previously demonstrated by father, who cedes parenting to step-mother, nor by a self-assessed overburdened step-mother. It requires insight into behaviour and an alertness to reduce risk of harm not found in father's home and not likely to be found in father's home in the future. The least disruptive alternative in these circumstances pursuant to section 37(3) of the Act is to leave A.M.C. in her current foster home by a Crown wardship order. This is the alternative most fitting for the needs of this child.

R.A.C.

[173] R.A.C.'s history of care and placement is the same as A.M.C.'s. Each has resided in formal foster care without other siblings, although she and her three siblings began foster care in a kin placement together and she and A.M.C. resided for a time with father, but without the boys in residence. Like A.M.C. her current placement is a single foster child in a foster home situation ongoing for well over a year.

[174] R.A.C. is a needy child. She is diagnosed with ADHD. In Dr. Norton's opinion her ADHD contributes to her significant and problematic behaviour, resulting in inattention to essential tasks, interference with learning and relationships. She requires a consistent highly structured home routine, positive reinforcement, behaviour modification and prescribed medications. She has exhibited the most consistent negative behaviour on access visits, in father's home with four children present.

[175] Her behaviour graph for some time has been downward. The parents argue that now that ADHD is the diagnosis the home life in father's home will be different. It is also argued by her representative that pre-diagnoses needs were different than post-diagnoses needs are now. This may be true but not in the way argued. The prescription drug regime for R.A.C. may assist parenting. But as R.A.C.'s representative acknowledges, a parent, father and step-mother, will first have to educate themselves about ADHD before they can successfully implement strategies, for example, avoiding response cost behaviour management and implementing positive reinforcement behaviour modification as already employed in the foster home.

[176] Again father's tendency to withdraw, step-mother's feelings of being overwhelmed and the fundamental difference in their parenting styles, leading to parenting conflict is not a good indicator of ability to change course and parent effectively. Returning R.A.C. to father's home is to experiment with new strategies with a high risk of failure. To keep her where she is is to continue the recommended program already started and showing some signs of stability and success.

[177] It can be argued that the return of R.A.C. as a single child to father's home, without the distraction of other children present and without the multi-child dynamic in the home, is possible. One child may be minimally acceptably parented where four cannot. However R.A.C. is also the child with the most problematic relationship with step-mother. She is antagonistic to and dismissive of step-mother. This is in combination with her fragility and behavioural issues. The best interest test, balancing the prescribed statutory considerations in section 37(3) require that she remain in foster care as a Crown ward.

B.M.C. and A.R.C.

[178] The situation with respect to these two boys is similar but not identical. Each has resided in foster care since 2009; each has had extensive access to father and step-mother over the years, involving A.M.C. and R.A.C. as well. However they no longer share four-sibling access. A.R.C. has the specific ADHD diagnosis, B.M.C. does not.

[179] Each is engaged with medical professionals with respect to their behaviour both at home and at school. Each presents as a difficult child in the home and school environments. The coordinated home-school plan is in place, focusing on positive reinforcement with careful monitoring, rather than a rewards-deprivation scheme. There is unanimous consensus that there is a deep attachment between the two which needs to be continued to enhance the chances for success for behaviour management. It is not the consensus that these two feed off each other resulting in the observed conduct, even though there are the usual rivalries between two male siblings of relatively similar age.

[180] Unlike the two girls, they have not been placed with father in the 2009-2014 period. The return to father's home would not be in the best interests of these children. They come as a pair and this in itself would be problematic for residence with father and step-mother. Behavioural concerns have been ongoing and the proposed plan of care will require more than short term solutions, more likely long term solutions. The nature of life in father's home as previously recounted, would be counter-productive to the plan going forward. That plan requires adult caregivers who are insightful, committed and patient. It requires adherence to the plan for the future. They are difficult to parent. Any parental figure will have to be a positive advocate in the community, a parent who is proactive not merely reactive.

[181] It can be argued that the children appear as difficult to parent, and have achieved little progress in foster care. So why not allow father and step-mother their chance.

[182] The various statutory criteria which are used to determine whether or not a child should remain in the parental home or be placed in permanent foster care, for adoption, is child focused, not parent focused. Based upon past history, based upon the number of years since the primary apprehension of all four children, based upon the time that father has had in order to improve parenting skills to a minimally acceptable level, it would be an experiment in the extreme to return either or both of these two children to father's care. The situation here is very similar to the situation in The Children's Aid Society of St. Thomas and Elgin County v. C.R., D.S., and D.B. (12 May 2014), 2014 ONCJ 245 (Ont. C.J.). While that decision was an interim decision in a status review hearing the principle is the same. Children out of control in parental home, creating chaos that adversely affected their emotional welfare and behaviour, not controllable by a parent, coupled with an assessment children needed a positive environment with clear predictable and calm routines led to the conclusion that even if this was possible in the parental home for a short period of time it was clear that it could not be maintained over the course led to the children remaining in care pending final decision.

[183] "In making the findings of fact, in arriving at the conclusions reached and making the disposition of orders, the overall scheme of the Act must be adhered to. The Child and Family Services Act attempts to balance the interests of the child with the importance of keeping the family unit intact, tempered by the fact that the protection of children cannot be neglected. This is the basis upon which the best interests of the child are to be considered, which best interests are, in the final analysis, paramount."

The Children's Aid Society of Haldimand Norfolk v. H.B., R.B., R.R., J.B., and the Six Nations Band, Simcoe Court File No. 135/96 and 86/01 (unreported) pp. 34-35.

[184] This analysis is in keeping with the paramount purpose and other purposes contained in section 1 of the Act and the statutory considerations in section 37(3) of the Act. For these two boys, the preservation of the status quo which has been in existence for B.M.C. since he was four years old, and for A.R.C. since he was less than one year old, is the appropriate disposition.

[185] A comment with respect to the position of the representative of the children, A.M.C., R.A.C. and B.M.C. is appropriate at this time. The primary position of that representative is that A.M.C. be made a Crown ward and that R.A.C. and B.M.C. be placed in father's care. Alternatively, if those two children cannot be placed in father's care then placement of one of the children with father, the remaining child being made a Crown ward. The difficulty of this "either/or" approach is that it does not focus on the children. Rather, it focuses on the ability of father to at least cope with one child in his care. This non-child centred focus fails to take into account the specific demonstrated needs of each child, the proposed programs and parenting to effectively deal with those needs, and the universally agreed need for the two boys to remain in the same home setting. It is unfortunate that a parent who has not demonstrated open hostility to Society intervention over the years, who has a genuine love for his children, and who had demonstrated domestic stability for several years, cannot have one or more of his children returned to his home. Those are positives to be weighed in the balance, however they are weighed in company with the specific needs of each child and how the needs will be addressed in a permanent way in the future.

[186] That balancing process results in all of the children remaining in the care of the Children's Aid Society by way of a Crown wardship order.

[187] For these reasons the children, A.M.C., born […], 2000, R.A.C., born […], 2003, B.M.C., born […], 2005 and A.R.C., born […] 2008, shall each be made wards of the Crown and placed in the care of the Children's Aid Society of Haldimand and Norfolk.

The Secondary Disposition – Access

[188] By virtue of section 48 of the Act the court may, in the child's best interest, make an access order when making an order under this part, such as Crown wardship.

[189] However by virtue of section 59(2.1) there is a statutory restriction placed upon the ability to make such an order.

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

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

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

[190] It is now trite law that that section of the Act creates a rebuttable presumption against access, thereby placing the onus on the person seeking access to convince the court on the balance of probabilities that access is both beneficial and meaningful. Those two terms now have a settled meaning as set out in The Children's Aid Society of Niagara Region v. M.J., [2004] O.J. No. 2872, paragraphs 45-46, wherein beneficial was equated with advantageous, and meaningful was equated with significant. The terms are conjunctive, not disjunctive; it is necessary that both circumstances be present, not just one.

[191] In addition the court must decide whether or not access will impair the child's future opportunities for adoption.

[192] The Society led significant evidence to have the court accede to the Society's request with respect to access by making an order for access between father and A.M.C. and R.A.C., but not making an access order with respect to father, B.M.C. and A.R.C., and no access at all to mother. No other participant in this proceeding objects to access between father and the two girls.

[193] The primary reason for the Society position is that an assessment of the situation of each of the girls reveals that adoption is not likely for them, because of a combination of their respective ages and their particular circumstances and history. In addition the Society concedes that there is a "clear bond between Mr. R.R. and R.A.C. and A.M.C.". The Society concedes that their relationship is meaningful to the girls and beneficial to them, at least in the sense that removal of the contact between each of the girls and father would be detrimental to them. Their history is supportive of this view. In addition while A.M.C. wishes to remain in foster care as a Crown ward she also wishes to have continued contact with father. R.A.C.'s preference is not foster care but rather return to father; the fallback position is continued contact. The evidence discloses that the more recent regime of access, boys separated from girls on access was less problematic for the participants in access. The girls have a clear, if difficult, memory of residing in father's home without the boys in residence. Such access also facilitates continued contact between A.M.C. and R.A.C., which no one argues is detrimental to either of them. In fact all appear to agree that the basic relationship between the two girls is on balance positive.

[194] With respect to the boys, B.M.C. and A.R.C., there are differing submissions. The Society argues that there should not be a formal order of access between father and the boys. It is argued their factual situation is different. The boys did not reside with father for any period of time after the initial apprehension in June of 2009. Virtually all of B.M.C.'s life memories involve life in foster care, and certainly all of A.R.C.'s life memories involve life in foster care. They are connected to each other more than they are connected to any other family member, including father. For the last years of foster care prior to conclusion of trial the boys have resided in the same foster home, with substantial access over the years to father and his partner, until recently in company with the girls. The Society has presented evidence about the positive nature of the adoptability of these boys, based upon their respective ages primarily, but also the fact that even children with issues such as these, can find adoptive placements.

[195] The representative for B.M.C. does not agree with these arguments. B.M.C.'s representative argues that the relationship between him and father is important, as it is to the remainder of the children. A review of access over the years indicates that the children have a close relationship, one with the other, the children genuinely liking each other, despite the behavioural issues and a tendency to "fight sometimes during visits".

[196] The representative for A.R.C. described the boys as best friends with each other, A.R.C.'s primary relationship with a family member is the one with B.M.C.. A sibling access order between these two is required. Loss of contact between A.R.C. and B.M.C. would result in a significant life loss for A.R.C., already subject to life losses. The representative has requested that there be an access order between B.M.C. and A.R.C., but no other access order for A.R.C. with respect to any other family member.

[197] There is sufficient evidence before the court to support the universal view that access should continue between father and A.M.C. and R.A.C.. The relationship between the two girls and father has been meaningful over the years, supported by substantial residence with him and step-mother after the initial apprehension, and significant meaningful access over the entire period of time when these two girls were out of father's care until trial. The relationship has also been beneficial in several senses. Father has not undertaken a campaign of undermining the elements of the plan of care related to services provided for the girls and the foster care placement of the girls. While his primary objective has been to have the children returned to his care this has not been accompanied by a negative campaign to defeat Society-sponsored services for these children. While access over the years has been difficult and chaotic with no marked improvement in parenting ability, nevertheless, the visits are seen positively by the children and are looked forward to by each of them.

[198] The representatives for each of the two boys support a formal order for continued contact after Crown wardship. B.M.C.'s representative supports a wider sibling access regime for him as well. A.R.C.'s representative does not.

[199] The Society acknowledges a bond between the boys, positive contact and relationship between the boys and the girls and a history of access over the years with father. The Society cannot differentiate between the quality and kind of contact between the boys and father and the girls and father presently. While supporting access between father and the girls the Society is not supportive of access between father and the boys, or any full sibling access order for the boys.

[200] There is only one difference in circumstance between the boys and the girls. The boys are suitable candidates for adoption, alone or together, the girls are markedly less so. The Society position, supported by the adoption workers' evidence at trial is that any access order will impair future opportunity for adoption within the meaning of section 59(2.1)(b) of the Act.

[201] It is unfortunate that no party led evidence about the sea change in attitude and available options caused by the 2006 changes to the Act with respect to Openness Agreements and Orders that permit continued contact between a birth parent and child after adoption. The Society position that birth parent-child contact is by nature counter-productive to the adoption process is in conformity with the pre-2006 regime, but may not be in conformity with the post-2006 regime. The efforts of adopted persons to find and connect to birth family members led to the 2006 amendments to the Act, breaking down the barriers to contact between pre and post-adoptive families. In short the new regime does not equate continued birth family contact as necessarily opposed to the adoption process and the success of that process. It does not necessarily equate to a shrinking of the prospective adoptive parent pool.

[202] It may be that prospective adoptive parents are now acclimatized to the new regime that birth family contact is not necessarily a no-go for prospective adoptive parents. Safeguards contained in the Openness legislation, now contained in the Act, may well make prospective adoptive parents comfortable with birth parent contact, especially when they are aware of a positive and meaningful relationship between a child and a birth parent, as here.

See J.A. v. J.B. 2011 ONCJ 726 for an overview analysis of the effect of Openness legislation on the adoption process.

[203] The necessary evidence in argument with respect to the new regime and how it might lessen the concern over adoptability of a child connected to a birth parent was not before the court and therefore consideration of this aspect of the access issue would be entering into the realm of speculation – not permitted. Even so there is the overriding issue, what is in the best interest of each of these children with respect to access, keeping in mind the section 59(2.1) considerations. The narrow issue is this—in this case does the section 59(2.1)(b) impairment of adoption opportunity trump the section 59(2.1)(a) beneficial and meaningful access considerations for parental access, for sibling access?

Parental Access

[204] The relationship of the boys with father is similar to, but not identical to, the relationship of father with the girls. The girls have life memories of distant and more recent residence with father. Both want continued contact with father, A.M.C. by access, R.A.C. by residence with father. The girls have little risk of emotional conflicts arising from an adoptive placement and possible termination of contact with father as a result.

[205] The boys have little or no memories of residence with a birth parent. B.M.C. wishes continued contact, A.R.C. is too young for a meaningful opinion. All contact with father over five years has been substantial access of six hours or so weekly, reducing down to less more recently. Contact with the girls is less now than it was for most of the post-apprehension five year period. Adoption, a real possibility, will likely result in internal personal conflict for one or both boys, particularly if they are adopted separately. The circumstances of these two boys are such that they can each be described as emotionally fragile.

[206] All of these circumstances result in the conclusion that the three considerations, beneficial relationship, meaningful relationship and whether or not there is an impairment for adoption, in this case require that there be no parental access order for the two boys.

Sibling Access

[207] The considerations for full sibling access between all four children, particularly boys with girls, are based on the same fact history with respect to life events and the nature and condition of each child. Based upon the fact that there will be father access with the girls, there is no reason to deny the girls access to each other. They will likely see each other on access with father. Section 59(2.1)(b) adoption consideration does not apply. The admitted circumstances that result in father access also makes A.M.C. - R.A.C. sibling access appropriate.

[208] The totality of evidence before the court reveals a gender divide re: sibling connection and interaction. The girls lived with father without the boys prior to the second apprehension. The girls will continue to have father contact whether or not the boys are adopted. There is at least a theoretical risk that full sibling access will result in the girls being a conduit for indirect contact between father and the boys, putting successful adoption at risk. The boys are clearly more attached to each other and dependent on each other than either is to the girls or the girls to them. Full sibling access may be meaningful for two sets of siblings who have not resided together for five years, with only access contact. But for the boys at least it is questionable and not proved on the balance of probabilities that such access is beneficial. Admittedly this is a mixing of the consideration of adoptability and the consideration of what is beneficial with respect to access. But there is no statutory or logical impediment to this mixed consideration of what is beneficial to the two boys.

[209] Accordingly an order that A.M.C. and R.A.C. have access with B.M.C. and A.R.C. is not in the best interests of B.M.C. and A.R.C.. The negatives outweigh the positives.

[210] However even considering adoption considerations, access between the two boys is in their respective best interests. The Society concedes in its argument that the two boys have a history of close personal connection and dependence and that the best future plan is that the connection be continued in the future. The Society's solution is to conditionally promise a continued informal, non-legally binding, interaction between the two boys. It is argued this is sufficient to minimize harm and to maximize the prospect for progress in dealing with severe existing difficulties in daily function for both.

[211] The Society position is not sufficient to optimize the positive prospects for management of behaviour, academic progress, and reduction in conflict in daily living sought for these two boys through professional intervention, medication and the programs of behavioural management now in place and required for the foreseeable future. The best medical and other professional opinion is that separation and non-contact would put at risk the plan going forward. They need each other.

[212] The Society position also ignores the remedies available in the future if brother access is not positive for any reason, including prospects for successful adoption. The access order shall be terminated if there is evidence that the access no longer is in the best interests of the children, section (59)(3)(a), or on the basis that criteria for Crown wardship access is no longer present, section (59)(3)(b). The access order can be terminated under section 65.1, Crown wardship status review, which includes access revision or termination under 65.2(2) all of which presupposes no adoption placement has taken place.

[213] Planning for an adoption is not impeded by an access order in existence (section 141.1.1(1)). The Society can take legal steps to address access when an adoption is more than merely theoretical. The process for notice and disposition prior to adoption placement is available to the Society under section 145.1.1(1) of the Act.

[214] The result is that while there is some delay during the notice period and possible ensuing litigation, the termination of an access order procedure is readily available to the Society if required. The balancing of these factors, centred on children's positive and necessary connection to each other and the interference with the adoption process, results in an access order between the two boys being necessary, beneficial and meaningful for each of them, without amounting to impairment of future opportunities for adoption. While there is inconvenience and some delay, there is no damaging or weakening of the future opportunities for adoption within the definition of the word impairment.

See definition of impairment, Canadian Oxford Dictionary, Second Edition, page 760.

[215] For these reasons the only access orders will be as follows:

1. The children A.M.C. and R.A.C. shall have access to the Respondent father under the supervision of the Society, with the Society determining the nature, duration and frequency of access, including whether it will be supervised or not.

2. The children A.M.C. and R.A.C. shall have access to one another under the supervision of the Society, with the Society determining the nature, duration and frequency of access, including whether it will be supervised or not.

3. The children B.M.C. and A.R.C., in the event that they no longer reside together, shall have access with each other under the supervision of the Society, with the Society determining the nature, duration and frequency of access, including whether it will be supervised or not.

Dated at Simcoe, Ontario

This 24th day of September 2014

The Honourable Justice L. P. Thibideau