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.

ONTARIO COURT OF JUSTICE

Date: July 15, 2015

Court File No.: C25788/04

BETWEEN:

Children's Aid Society of Toronto

Applicant,

— AND —

R.B-H. and B.A.

Respondents

Before: Justice Roselyn Zisman

Heard on: November 17-19, 2014, December 12, 2014, January 26-30, 2015, March 27, 2015, April 1, 2015 and June 1-3, 2015

Reasons for Judgment released on: July 15, 2015

Counsel:

Martha Chamberlain — counsel for the applicant society

Raymond Sharpe — counsel for the respondent B.A.

Keyshawn Hyacinth — counsel for the respondent R.B-H.

Zisman J.

1. Introduction

[1] This is a status review application wherein the Children's Aid Society of Toronto ("the society") seeks an order of crown wardship without access for four young children, C.M. born […], 2009 ("C."), M.M. born […], 2010 ("M.") I.M. born […], 2011 ("I.") and J.B-H. born […], 2013 ("J.")

[2] The Respondent A.B. ("the father") seeks a return of the children to his custody pursuant to a section 57.1 of the Child and Family Services Act ("CFSA") or in the alternative, an order that the children be placed in his care subject to the supervision of the society for 6 months.

[3] The Respondent R.B-H. ("the mother") seeks access. The mother was noted in default but at the commencement of the trial, she retained counsel who sought to have limited participation in the trial by being permitted to cross-examine witnesses and call evidence on the narrow issue of the mother's access. He submitted that he would not cause any delay in the trial. In view of the serious consequences of the trial, he was granted leave to participate in the trial for this limited purpose.

[4] The issues to be determined at this trial are:

(i) Is there a continued finding of need of protection and if so, is state intervention necessary?

(ii) What order is in the children's best interests? Return to father with either a section 57.1 order or pursuant to a supervision order with or without access to the mother or an order for crown wardship?

(iii) If the children are made crown wards, should there be ongoing access to both the father and mother?

2. Litigation History

[5] The mother gave birth prematurely to J. in the lobby of a hotel. The mother and child were rushed to the hospital. Due to her traumatic birth J. was kept in the hospital. She was apprehended on […], 2013.

[6] At the first court attendance on […], 2013, on a temporary without prejudice basis, J. was placed in the care of the society and the other children were placed in the care and custody of the mother and T.D. T.D. was the mother's boyfriend and the mother advised the society that he was J.'s father.

[7] On April 5, 2013, the children in the care of the mother were apprehended. At the time of the apprehension the father was also present.

[8] On April 10, 2013 on a temporary without prejudice basis, an order was made placing the children in the care of the society with access in the discretion of the society.

[9] Paternity testing confirmed that the father, not T.D., was the biological father of J.

[10] The parents and T.D. were given several extensions to serve and file an Answer and Plan of Care but failed to do so. All of the respondents were noted in default.

[11] On October 23, 2013 Justice Jones refused a further extension for the parents to file their responding materials and held that both parents continued to be noted in default. The parents advised the court that they intended to reconcile. The society was permitted to proceed with its claims in the amended Protection Application that sought an order that all of the children be made society wards for 6 months.

[12] The children were found to be in need of protection pursuant to sections 37 (2) (a), (b), (g) and (h) and made wards of the society for 5 months. There were findings that all of the children had exceptional needs, that the three eldest children were significantly delayed in all areas of their development and that they showed signs of social and emotional difficulties and needed a stable and stimulating environment. The children were found to need urgent intervention due to neglect and deprivation. The baby J.'s hair strand was positive for cocaine, the mother admitted using street drugs while pregnant, the mother's urine screens were positive for marihuana, antidepressants and opiates and the father's hair test result was positive for cocaine and marihuana.

[13] The Status Review Application was before the court on March 18, 2014. The parents were given several extensions to serve and file their Answers and Plans of Care. The father served and filed his Answer and Plan of Care, the mother did not file any responding materials. On July 22, 2014 the mother was noted in default. She advised that she was not planning for the children at this time but supported the father's plan.

[14] On October 8, 2014, Justice Jones dismissed the father's motion to have the children placed in his care. A temporary order was made for the father to exercise access to all of the children in the discretion of the society and supervised in its discretion; such access to occur a minimum of 3 hours per week, subject to the children's schedule and treatment needs and to continue for so long as the father was consistent in attending and such access remained positive for the children.

[15] After several further attendances the matter was set for trial. The society filed affidavits of the family service worker, the child service worker, the family support worker and a case aide who were also available for examination and cross-examination. The society also filed a Notice to Rely of the Reports of Practitioners namely, reports of the children's various doctors and treatment providers. The society made the doctors available for cross-examination and also called Dr. Cohen who examined the children after their apprehension and provides ongoing medical care. The foster mothers for the children and the adoption worker and adoption supervisor also testified. The father filed his affidavit, supplemented his affidavit with oral evidence, and filed affidavits of several supporting witnesses and several relatives and community members also testified on his behalf. The mother also filed an affidavit and supplemented her affidavit with oral evidence.

[16] As the society prepared its trial affidavits on the assumption that only the father was a party to the trial, it was permitted to lead further evidence and file a further affidavit with respect to the mother's request for access.

[17] Although the father acknowledges that he spoke and understood English, he requested and was provided with an interpreter for the purposes of his testimony. Some of his witnesses also required interpreters. Due to various scheduling problems, unavailability of father's counsel and issues with obtaining properly qualified interpreters the trial did not proceed on consecutive days. Unfortunately, this increased the length of the trial as during the interlude some updating evidence needed to be called.

3. Preliminary Matters

3.1 Drug Testing

[18] From the time of the apprehension there were concerns about drug use particularly with respect to the mother and to a lesser extent the father. The society relied on the results of urine and hair tests but also the admissions by the mother that she used cocaine in the early stages of her pregnancy when she was not aware she was pregnant with J. and the father's admission that he occasionally smoked marijuana but denied the use of cocaine.

[19] During the first week of the trial, Joey Gareri who was the manager of the Motherrisk clinic at the Hospital for Sick Children testified regarding the interpretations of the various test results of the parents and the children.

[20] However, shortly thereafter the laboratory was closed and there is an ongoing provincial inquiry regarding the reliability of the testing procedures. As a result I advised counsel that I would not consider the test results in this proceeding.

[21] Further, I agree with the observations of the family service worker, Farzana Jiraj that it is not the use of drugs that is the issue in child protection cases but rather if there is a risk of harm to children or if children are safe because of a parent's use of drugs.

3.2 Credibility Issues

[22] Generally, I found the society witnesses to be credible. Their affidavits and oral testimony are based on notes that were made at the time of the observations and interactions with the parents which I find enhance their reliability as opposed to the vague recollections of the father or the mother. In some instances, the society also sent the parents letters summarizing events or expectations that also corroborated their evidence. I find that the society workers provided balanced evidence regarding the positive features of the father and mother and also of their challenges. Although I do have some concerns about the planning decisions made by the society which I will detail in my review of the evidence.

[23] I found the father's oral evidence to the rambling, contradictory, inconsistent with his own testimony and inconsistent with his affidavit filed in this trial and with his previous affidavits. At times he was evasive or simply did not answer questions in particular when the issue related to his role in parenting the children and his relationship with the mother. I found when confronted, the father would state that the workers did not understand him or he did not understand the workers. Where there is a conflict between the father's evidence and that of the workers, I accept the evidence of the society workers as more reliable. I will review the difficulties with the father's evidence in detail in my review of the evidence.

[24] With respect to mother's evidence, it is clear that she wishes ongoing contact with her children and the only method of achieving that goal is to support the father and assume full responsibility for the neglect of the children. I have assessed her evidence in this context. Where there is a conflict between her evidence and the evidence of the society workers, I accept the evidence of the society workers as being more credible. I have also considered that the mother has had many difficulties and has mental health issues that impact on her recollection of various periods of time.

[25] There were also conflicts between the father's and the mother's evidence. As I found neither the mother nor father credible witnesses it is difficult to assess which of their versions of various events was more credible. Most of the conflicts in their evidence relate to issues or timing of events that are not crucial to the determinations that I must make.

4. Applicable Legal Considerations

[26] In any analysis, first and foremost, there must be consideration of the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purposes, sections 1 (1) and (2) the CFSA are also designed to support the autonomy and integrity of the family unit and to recognize that, whenever possible, children's services should be provided in a manner that respects the children's need for continuity of care and for stable family relationships.

[27] Sections 2 (2.2) and 57 (3) of the CFSA requires the court to consider the least disruptive alternative that will adequately protect the child.

[28] As this is a status review application, there has already been a finding that the children are in need of protection pursuant to s. 37(2) (a), (b), (g) and (h) of the CFSA.

[29] It is well-settled law that the court must now evaluate whether there is a continued need for state intervention to protect the children and consider what disposition would be in their best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent's parenting ability. [1]

[30] Section 70 of the CFSA limits the available options for disposition and is a statutory recognition that permanency planning is of paramount importance for children. The section limits the cumulative time in care for children under the age of 6 years to only 12 months.

[31] Given those time limitations and the fact that at the time of the commencement of the trial all of the children had been in the society's care for approximately 20 months, the only options available to the court at this time, if there is a finding that the children continue to be in need of protection, are:

a) To return the children to the care of their father pursuant to section 57.1 or return the children to the father with or without an order of supervision; or

b) To order that the children be made wards of the crown wards with or without access.

[32] In submissions, counsel for the father stated that if the court was of the view that the children needed a period of transition before being placed in their father's care that the court, pursuant to section 70 (4) of the CFSA, could extend the time by 6 months if it finds that it is in the children's best interests to do so.

[33] The test is not "beyond a reasonable doubt" or "are the parents completely hopeless". The test is on a balance of probabilities. As no one can predict the future with certainty, the court must decide whether or not the children's best interests are more likely to best be served by being raised by their father or being made crown wards.

[34] Section 37 (3) of the CFSA lists a number of factors to be considered in determining the "best interests" as follows:

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.

[35] In this case, the father emphasizes the cultural and religious background of the children as Somali Muslims and that their heritage can only be protected by being placed in his care.

[36] Section 15 (3) (c) of the CFSA requires that the society attempt to provide services to assist the family before a child is removed from the home. The society is required to, among other things provide guidance, counselling and other services to families for protecting the children or for the prevention of circumstances requiring the protection of children.

[37] Section 56 (d) (i) of the CFSA requires that the society must describe their efforts to ensure the child's protection while in the parents' care. Prior to making an order that would remove the child from the care of either parent, pursuant to section 57 (2) of the of the CFSA the court is required to ask what efforts the Society made to assist the child before intervention. As already mentioned, section 57 (3) states that the court should make the least disruptive order that will adequately protect the child.

[38] While the child's best interests are always the primary consideration, these provisions ensure that removal of the child is viewed as a last resort and that where possible, families are provided the support and skills they require to parent their children in the home safely and effectively.

[39] Once a child has been made a Crown ward, section 59 (2) of the CFSA provides a statutory presumption against access unless the person claiming access can satisfy the court that the relationship between the person and the child is beneficial and meaningful to the child and that the ordered access will not impair the child's future opportunities for a permanent and stable placement.

[40] The Society took the position that given the complex needs of these children that there should be no order as to access as it might be a barrier to their future opportunity to be adopted.

[41] In reaching my decision I have considered and applied these principles. I have also considered that a crown warship order is the most profound order that a court can make. The order should only be made "with the highest degree of caution, and only and the basis of compelling evidence, and only after a careful examination of possible alternative remedies." [2]

5. Summary and Analysis of the Relevant Evidence

5.1 Background of the Parents

[42] It was submitted by counsel for the father that the society focused on the mother past history and the facts leading up to the apprehension and that the focus should be on what the father has done now to improve his ability to parent the children. I do not agree with this submission. In order to determine if there is an ongoing need for a finding that the children are in need of protection and to evaluate the father's ability to parent it is necessary to consider the background of the parents, their relationship and the events leading up to the apprehension of the children. The father's understanding of the children's needs, his judgement and insight regarding the mother and her ability to parent are important considerations in determining if the father has the necessary understanding, judgment and insight to now parent these children.

[43] The father was born on […], 1973 in Somalia. He left Somalia in 1985 and moved to Kenya and then in 1989 he lived in several different countries in Europe until he immigrated to Canada in 1993.

[44] The mother was born on […], 1988. She had a tragic childhood and was subjected to intolerable levels of neglect and abuse. She was in foster care as a child but did poorly and exposed herself to dangerous situations. When the mother was only 14 years old she became pregnant and her daughter A. was born on […], 2004 at the time the mother was only 15 years old. A. was apprehended and both the mother and child resided at Massey House where she and the child were provided with support and services and they were doing quite well.

[45] The mother began a relationship with the father, who was 31 years old, sometime in 2004. The mother was only 14 years old but the father testified that he thought she was 16 years old. The father was not the biological father of A. The mother left Massey House shortly after and moved in with the father despite the fact this jeopardized her ability to care for A. The mother's life spiralled downwards thereafter.

[46] The father provided several different versions of the nature of the relationship between himself and the mother. The father never expressed any concerns about the age difference between himself and the mother other than trying in his testimony to change the nature of their relationship.

[47] In the decision of Justice Sherr made on December 6, 2006, making the child A. a crown ward for the purposes of adoption, he states that the mother alleged she began a sexual relationship with the father after A. was born in […] 2004. The father in his sworn affidavit filed at that trial [3] confirmed this; however, when he was cross-examined during that trial he contradicted that statement and testified that he first became intimate with the mother in November 2005. In this trial, he deposed that he started to date the mother in 2007 and they were married on March 16, 2008. In cross-examination, he denied that he was intimate with the mother until they were married. He testified that he was misunderstood and that when he had deposed that he began a "romantic" relationship with the mother he only meant they were dating. He then testified that when he deposed that the mother lived with him since 2005, he only meant that he was helping her. I do not accept the father's evidence and find that the father began an intimate relationship with the mother when she was only 14 years old and he was 31 years old.

[48] There are also different versions of the lifestyles of both the father and mother during this time. The mother initially alleged that when she met the father he was a drug dealer. This was denied by the father. Although he admitted that he was convicted of trafficking in cocaine in 2001 and spent about 2 1/2 months in jail, the father testified that he was not guilty and only pleaded guilty on the advice of his counsel.

[49] The father was aware that the mother had been convicted in 2001 of possession for the purpose of trafficking. He testified that he was not aware the mother was using drugs until after J. was born and he was very sure she was not using drugs before.

[50] The father initially testified that when he met the mother he was aware she was working as a prostitute; after a lunch break on the same day he continued his testimony but changed it and said that he was not aware and then he changed his evidence again and said he only became aware in 2004 she worked as a prostitute which of course would have been when they began their relationship.

[51] The father testified that despite the fact A. was made a crown ward, he had no concerns about the mother's parenting. He testified that he had not read Justice Sherr's decision but when shown his affidavit sworn October 20, 2013 where he refers to the decision he then testified that he read it but does now not recall it.

[52] He testified that the mother wanted children and she was a good parent. He also testified that he did not agree that A. should have been made a crown ward. It was his opinion that A. should have been placed in the care of himself and the mother.

[53] The father testified that when C. was born she was hospitalized for a month and that the mother would go to the hospital to breast feed her and he had no concerns with the mother's care.

[54] The father also testified that he had no concerns with the mother having another child within 17 months and then 10 months later another child. He testified that he had no concerns with the mother's ability to care for these 3 young children.

[55] During these years, the father testified that he was self-employed at a local flea market. He worked on week-days from about noon to 10:00 p.m. and he would be in and out of the house during the weekdays and on week-ends he worked from 8:00 a.m. to 9:00 p.m. It was his job to financially provide for the family and the mother's job to care for the children. The father testified that he helped the mother with the household chores, feeding and bathing the children. He would get up at night with the children and in the morning also.

[56] The father deposed that in about December 2012 when the mother was pregnant with J. he noticed that she began to act strangely. He thought this was related to her pregnancy. Although the mother fed and clothed the children, she would frequently want to leave the home and tell him she was going to the store even at night.

[57] The father deposed that he began to stay home for longer periods of time and he was not working for the majority of the time and that as of December 2012 he was the primary caregiver. The mother would stay out for up to 6 hours a day, sometimes overnight from 2-3 nights to up to 3-4 nights a week and tell him she was at the hospital. But then he testified that both he and the mother were the caregivers. He also changed his evidence to state that he noticed something wrong with the mother in October 2012 when she told him she was pregnant and then changed his evidence back to December 2012 and then again back to October 2012. The mother deposed that she did not know she was even pregnant with J. until January 2013.

[58] The family service worker deposed that the father told her he found the children alone. In cross-examination the father denied he said that and that the family service worker may have misunderstood him. Then he changed his evidence again and admitted he told the family service worker this.

[59] The father also agreed he told the family service worker that the mother had been working in the sex trade since 2010, that she was going out with T.D. (who the mother alleged was the biological father of J.) and that T.D. was giving the mother oxycodone.

[60] Although the father deposed and testified that he had no concerns about the mother's care of the children before the apprehension he then testified that she was acting bizarrely. He testified that he constantly reminded the mother to take C. to the dentist, to get M.'s eyes checked and to sign the children up for daycare and school.

[61] Although the father's evidence was convoluted and contradictory, I draw the conclusion that he spent a great deal of time caring for the children from at least October or December 2012 and although he expressed no concerns about the care of the mother he was aware that the mother was acting strangely, leaving the children alone, staying away for extended periods of time, using drugs and not meeting the needs of the children.

5.2 Events Leading to the Apprehension

[62] The mother gave birth to J. on […], 2013 in a hotel room in the presence of T.D. J. was born premature at 30 weeks with a significant loss of blood. She was diagnosed with respiratory distress syndrome, low blood, cardiac murmur, anemia, feeding intolerance and apnea of prematurity. She was in the hospital for about 2 months. The father deposed that as he was caring for the other children, he never attended at the hospital. But then he testified that he visited at least 2 times, and then his evidence became totally disjointed about when he went to the hospital, when the mother went and the mother's problems with feeding J.

[63] The father testified that he cared for the children full-time from February to March 2013 and then he said that he primarily cared for the children from February to April. He testified that the mother was acting strangely and many times she was not there and then changed his evidence and testified that he did not see her acting strangely. He stated that the mother would be gone 2-3 hours a day and then 6-7 hours a day and she would say that she was going to the hospital.

[64] In cross-examination the father had to be asked several times, as he would not respond, if based on his observations of the children he had any concern about them, he finally stated that the mother was a good parent; the children's needs were being met. The father then testified that he later found out that the mother neglected them but he did not notice as he saw the children were fine, eating and not in pain.

[65] Farzana Jirraj, the family service worker attended at the home on March 18, 2013 and met the mother. The family service worker noted concerns about C.'s speech and M.'s health needs as having gastro-intestinal issues, spinal issues and his eyes appeared crossed. The apartment was basically well maintained but with minimal toys, books and other items for the children. The mother claimed that she was following up on the children's health needs and regularly attending the hospital to see J. which the family service worker later found out was not true.

[66] The family service worker again attended at the family home on March 19, 2013 after being advised J.'s hair tested positive for cocaine. The family service worker noted a smell of smoke and feces. The mother agreed to be tested and a tester arrived and the urine screen was positive for opiates and marijuana. The mother provided a disjointed version of her drug use. She admitted that she eaten brownies laced with marijuana, taken Percocet for which she had a prescription and been at a party with celebrities early in her pregnancy where she thought someone spiked her drink and then she admitted to snorting cocaine.

[67] Due to concerns about the mother's substance abuse, her mixed stories and the vulnerability of the children in the home, the mother was advised the society would not be permitting the baby to return home and would be seeking a supervision order for the other children.

[68] On March 28, 2013 the society began a Protection Application regarding all of the children. On a without prejudice basis, J. was placed in the temporary care of the society and the other children were placed in the care of mother and T.D. subject to terms of supervision. Justice Sherr endorsed as follows: "Due to risk concerns set out in society's materials, the society should closely monitor the oldest three children, and not hesitate to bring the children into care if the parents do not comply with supervision terms."

[69] At court on that day, the family service worker asked the mother where A.B. was who she was told was the father of only of the 3 older children. The mother told her that he was in Somalia and or Tanzania. When asked who was taking care of the children while she was at court the mother stated that they were with respite workers but provided only vague details.

[70] The family service worker attempted to arrange to see the other children over the next several days and due to her inability to see the children and other concerning behaviour by the mother she attended unannounced at the home on April 5, 2014. When no one answered and as the family service worker had information that led her to believe the mother and children were in the home, the family service worker arranged for the police to assist her in gaining entrance to the apartment.

[71] Shortly after 10:45 a.m. the family service worker again knocked on the door and no one answered, the police gained entrance and the mother was standing at the entrance. The home had a strong stench of urine, feces, rotting food and smoke in the air. There were cigarette butts all around the house.

[72] M. was in his crib, half-dressed, soaked in urine and staring at the ceiling. I. was naked in her crib, her soaking wet diaper and wet clothes were left in her crib.

[73] C. was playing in her room on her own and wearing a princess dress. Her sheets were off her bed and there were no blankets on her bed. There was a strong smell of an undetermined nature and smears of food or feces on her wall.

[74] The police brought a man out of one of the rooms who identified himself as A.B., the father of the children. The family service worker was occupied with removing the children and had minimal discussions with the father and left her business card with him.

[75] When the family service worker told the mother she had concerns about the children and where they had been over the last week and the state of the home, the mother smirked and told her to do what she needed to do. The mother's eyes appeared glassy and dilated.

[76] The children were apprehended and the family service worker left the home. At the society office the family service worker observed that M. was not to be able to walk or respond. I. could not sit up and did not walk or say much. C. was observed to approach staff freely and hoard toys in the playroom.

[77] The foster mother of C., I., and M. described the state of the children when they came to her home, like "you just picked them out of a garbage bag". She thought they might be deaf because they were so unresponsive.

[78] The father deposed that he was not aware the society had been involved with the mother or that the family service worker had come to the home before the children were apprehended. He explained that on the day of the apprehension, he had woken up earlier, fed the children and went back to bed so he was sleeping and did not hear them knocking. He denied the family service worker left her business card. He was angry and confused. He left the home and did not return until April 18th, 2013.

[79] The father testified that he was not aware of how to contact the society and the mother told him not to worry that the children would be returned. When he returned home he saw the court documents with the society's telephone number but did not call the family service worker until April 22nd as he was angry with the mother.

[80] On April 23, 2013 the mother and the father met with the family service worker and Donna Steele the child service worker. The mother appeared to be under the influence of some substance; she could not focus or walk straight. She admitted to the use of street drugs, smoking marijuana daily and using it in the home, leaving the children alone during the day and night, working in the sex trade, that she heard voices and generally that she needed help and was sorry for failing her family and her religion as a Muslim. The father during this meeting stated that he had noticed concerns about the mother since December 2012 and had reduced his hours working at the flea market significantly. His main concerns were about the mother's honesty, her carelessness with the children and that she stole money from him and that someone has also stolen his identity.

5.3 Needs of the Children

[81] Dr. Cohen, a paediatrician who has worked for the society for 26 years, examined the children upon their admission into care. Generally children are fearful and cry upon admission into care. She noted that these children did not cry at all, showed no fear, no reaction at all, no stranger anxiety and had a flat affect. She felt that they were neglected and worried about what should be done to help them. She made a referral to SCAN at the Hospital for Sick Children, to Grandview Children's Treatment Centre ("Grandview") for services and to a developmental paediatrician. She would have expected parents to notice these delays or at least bring them to the attention of a doctor.

[82] With respect to the children's immunizations, based on the information received by the society, all of the children were behind in their immunizations. C. was last seen at 18 months, M. at 6 months, and I. at 4 months. The father deposed that he would drive the mother to the children's doctor's appointments and that he relied on her and then he testified that she lied about taking the children to the doctor and that he now realizes that he should not have relied on her. The father did not agree that the last time C. was seen by a doctor was in December 2010 as he recalls doctor's appointments in 2011 and 2012 and that the children were up to date on their needles. The father did not produce any further medical information that the children were seen the doctor more often or were more up to date on their immunizations than reported by the society. The father also testified that he noticed that when the doctor asked questions the mother answered. The father then tried to clarify his answer by testifying that he heard the mother talking to the doctor on the telephone. This of course makes no sense and I query if the father's evidence was truthful about only driving the mother to the medical appointments.

[83] C. was assessed by Dr. Shouldice at the Hospital for Sick Children shortly after her admission into care. She was 3 years and 10 months old. She was extremely difficult to understand, had limited expressive language, delayed school readiness skills, possible delays in motor skills. She was not yet toilet trained and her teeth were visibly discoloured and her front teeth were chipped or broken. Recommendations were made for a hearing test, speech and language assessment and treatment, occupational therapy assessment and that she attend an integrated preschool and have dental intervention.

[84] C. required dental treatment for 13 out of her 20 teeth; she needed 4 extractions, caps on 2 teeth and 7 fillings for cavities. There was no evidence of any dental disorder. Her hearing was tested. She needed tubes in her ears due to the fluid in her ears that can affect speech. She had to have her tonsils and adenoids removed.

[85] Dr. Hunt is a developmental paediatrician and the director of Grandview. C. was referred to Grandview and re-assessed several months later and it was noted that she progressed well in foster care. C.'s language skills were assessed as being moderately to severely delayed. Her low muscle tone could be related to her lack of physical activities or related to a lack of proper nutrition or both. But based on all of her delays Dr. Hunt considered C. to be at risk so they needed to do everything possible for her.

[86] C. received occupational therapy, physiotherapy, and speech and language therapy. She began to attend a specialized day care and the foster mother received training to be able to help C. improve her skills.

[87] Dr. Hunt last saw C. in July 2014 and she was doing well and made a significant recovery. Dr. Hunt testified that C. needs to continue to be monitored to ensure that her development continues to be strong. She needs to be monitored in senior kindergarten and Grade 1 to ensure she does not fall behind as children with language delays could have trouble reading. She needs to be read to and exposed to print materials.

[88] C.'s foster mother described how excited C. was when she gave her a toothbrush. At this time, the foster mother testified that all of C.'s skills have improved but she continues to be very fragile and even now she is still hard to understand. She is being assessed to determine if she requires another block of therapy. She was described as a loveable child that worries about everyone. She would hide sweets and take things from the daycare, but she is better now. She is very clingy and struggles with her confidence. C. is not currently enrolled in any activities on the advice of the foster mother's resource worker so she can adjust to school.

[89] The child service worker testified that C. had to be kept back in nursery school as she was not ready for senior kindergarten but is now attending school and has extra help in school and in the foster home. A referral has been made to an agency to deal with for C.'s emotional needs and a referral has also been made for a psychological assessment.

[90] M. was assessed at Hospital for Sick Children by Dr. Shouldice shortly after his admission into care. At the time he was 29 months old and demonstrated significant delays in all areas of his development. He was not yet walking, he had poor fine motor skills, he was not speaking and his eyes were crossed. He was also referred to Grandview for speech and language assessment and intervention, occupational therapy, physiotherapy and a feeding assessment. He was referred for a hearing test and to an ophthalmologist.

[91] Dr. Shouldice testified that M. was subsequently diagnosed with a chromosome 5 deletion and a brain stem abnormality that partially explains some of his development delays. But when Dr. Shouldice saw him three months later, he made more significant gains in care than she expected which suggest there is also an environmental component to his delays.

[92] M.'s foster mother described him initially as being very flat, almost as if he was dead. He could not even swallow water and if you gave him a cookie he did not know what to do with it. However, within a month in her home, he was able to drink from a cup and he learnt to stand.

[93] M. was also assessed by Dr. Hunt at Grandview several months after his admission. His communication and play skills were severely delayed as were his gross and fine motor skills but Dr. Hunt also noted that he had already made significant gains in care. He was admitted to Grandview's preschool speech and language program and to their occupational and physiotherapy program.

[94] M. began to use a walker in December 2013 and by January 2014 was able to walk independently with orthotics. M. also required tubes in his ears due to the fluid in his ears. He has glasses and his vision is now corrected but he may need surgery in the future.

[95] M. is currently attending junior kindergarten at a specialized school through Grandview where he continues to receive all of his therapy. He was last assessed in July 2014 and although significantly gains were noted he is still severely delayed in comprehensive and expressive language and delayed in his motor skills that may in part be related to his language delays.

[96] The foster mother testified that M.'s likes anything to do with technology and is very good at figuring things out. But that she is concerned that he likes to spend too much time with "screens" and so he needs to be forced to go outside, to socialize and to be pushed to overcome his fears and try new tasks.

[97] Dr. Hunt testified that the goal for M. is to have functional skills. He is attending Grandview's specialized school and obtains occupational therapy and physiotherapy once a week and speech and language assistance twice a week. His caregivers are expected to follow through with his programs at home and it is critical that there is contact between his caregivers and the school. He will always have issues and his caregiver needs to be able to advocate for him, be very assertive and to practice with him as he needs multiple time and repetition to be able to learn new things.

[98] Dr. Hunt testified that it is generally recommended to limit children to 2 hours or less of screen time that includes computers and television except for specialized learning using an Ipad. M. wants to use the computer and he needs to be regulated to do other things. It is hoped that he will be able to acquire some communication and some speech but it will not be traditional speech and his caregiver will need to learn another way to communicate with him. He can remain in Grandview school as long as he continues to live in the Durham region up to Grade 1 and then he will be transitioned into his home school. His brain stem development will also have to be monitored as it affects his motor skills with respect to balance, coordination and there may be safety issues as he is not good at walking on uneven surfaces.

[99] I. was also assessed shortly after admission into care by Dr. Shouldice at the Hospital for Sick Children. She was 18 1/2 months old and was noted to have significant delays in her motor and language development. She was not able to stand or take a few steps independently and was only making sounds and had no words. She was also referred to Grandview for occupational therapy, physiotherapy, speech and language assessment and a feeding consultation. A specialized daycare or preschool was recommended as was a hearing test.

[100] I. was also assessed several months later at Grandview by Dr. Hunt. She had also made some gains while in foster care with respect to her feeding and her self-help skills. She was assessed as being delayed in her fine and gross motor skills but making some progress. She was assessed as being moderately delayed in her play skills and severely delayed in her language skills. She was admitted into Grandview's preschool speech and language program and into their occupational therapy and physiotherapy program.

[101] Dr. Shouldice testified that I. also had genetic testing and she has an abnormal chromosome 17 but this is not known to be connected to developmental delays. She was unable to determine which part of I.'s development was related to genetics or her environment. Dr. Shouldice testified that I. will have to be closely monitored and receive interventions.

[102] The foster mother described I. as initially terrorizing her siblings but that they are now able to play together. She described I. as high energy, smart, independent and eager to learn. She is concerned because she is bossy and gets sick more than the other children.

[103] I. also needed to have tubes inserted into her ears due to fluid in her ears and she had her tonsils removed.

[104] Dr. Hunt testified that she assessed I. again in July 2014 and her development was within the broad range of normal which suggests her environment may have been the cause of her positive changes. Although Dr. Hunt expects I. to have a normal development she is still at risk due to her early life. Her caregiver needs to be a strong advocate so she obtains a good education and engages in extra-curricular activities. There needs to be follow up with respect to her reading and language skills and to be vigilant to monitor her genetic chromosome or to determine if there are any new developments. I. missed an opportunity for early interventions but she was now caught up and Dr. Hunt was optimistic about her future.

[105] J. was assessed by Dr. Macdonald at Grandview in September 2013 at her chronological age of 6 months but 3 ½ months developmental age and was doing quite well. Her language skills were assessed as developing within her corrected age but possible play delay was noted. Ongoing monitoring due to concerns about her for hearing and vision were recommended. Although her motor skills were progressing there was concern about her inconsistent muscle tone. It was possible that she had some type of brain damage due to her loss of blood at birth and the signs of low muscle tone could be a sign of cerebral palsy. I. will have to be closely monitored as it was too soon for any diagnosis to be made. I. was admitted to the Grandview preschool speech and language, occupational therapy and physiotherapy programs.

[106] Dr. MacDonald assessed J. again in April and October 2014 and she continues to be delayed. At 18 ½ months developmental age she was still not able to feed herself and was essentially non-verbal. Her best outcome could be that she is fully functional and will have good co-ordination but Dr. MacDonald suspects she won't be able to do this. At worst, J. may have cerebral palsy and may need braces to walk or could have cognitive delays.

[107] Dr. MacDonald testified that J. will need a caregiver that monitors how she is doing, does home exercises for her lower legs and follows up with a home program regarding her sitting, motor skills, feeding and her speech and language program. A caregiver will have to be able to know how to respond and work with her therapists and anticipate what she wants and needs. J. will have multiple doctor and therapy visits many times a year. She requires a caregiver that is very pro-active, involved, aware and wanting to teach and learn about her developmental process.

[108] J. is placed in a separate foster home than her siblings. Her foster mother described that she is working very hard on teaching her to walk and hopes that a walker will help her. She is able to sit and crawl but at 2 years old she still has no words. She is attending preschool for half a day and is happier and more social now. She continues to receive occupational therapy and physiotherapy three times a week. J. is still globally delayed and the foster mother along with her therapists at Grandview and the preschool are working very hard to improve her skills.

[109] In cross-examination, Dr. MacDonald was asked about whether or not the causes for delays were genetic or environmental and she opined that J.'s possible signs of cerebral palsy were likely genetic but were still being assessed. However, in response to my question, Dr. MacDonald stated that regardless of the cause of delay early intervention was important.

[110] Dr. Cohen pointed out that J. had a lot of "insults" at birth and she considered this to be an environmental factor because of the circumstances of her birth.

[111] In cross-examination, Dr. Cohen, Dr. Hunt and Dr. Shouldice were questioned about the genetic factor in C., M., and I.'s delays and they all opined that there were often multiple factors relating to delays including genetics, environmental causes and neglect. However, it was Dr. Hunt's opinion that since C. and I. improved in care and are no longer presenting with delays, it is less likely that there was a genetic cause. It is possible that because of all of the therapy they received that this affected their biological development. M. is different than his sisters as Dr. Hunt was fairly certain his delays related to his genetic factors and medical issues.

[112] Dr. Shouldice testified that I.'s development was noticeably below what was expected for a child of her age, M.'s delays and appearance were significant and noticeable as was C.'s language delay and the appearance of her teeth. Dr. Shouldice testified that if these children were with other children of the same age she would expected parents to see the differences.

[113] Dr. Shouldice testified that the caregiver of these three children, C., M., and I., all of whom were assessed with global delays, needs to be diligent, recognize individual needs and respond and seek out appropriate interventions, learn and grow as each child's needs change and be an organized parent so as to be able to get the children to where they need to go.

[114] Dr. Hunt in answer to my question testified that generally early stimulation and supportive environments provide better outcomes for children.

[115] Dr. Cohen, who has continued to monitor the children, testified that she noted a remarkable improvement in the children since they were admitted into care and that children require nurturing attentive caregivers and that their future development will depend on the ability of their caregiver to follow through with interventions.

[116] Dr. Cohen also explained that whenever she sees children with speech delays she refers them for a hearing test and if it is normal then she refers that to an ear, nose and throat specialist. All of the children had fluid in their ears and needed tubes but the cause of the fluid was unknown and if left untreated can affect their speech development.

[117] The foster mother for C., M., and I. testified that she cares for the children with the help of her husband and she has a resource worker and that although the children have improved caring for them requires a great deal of work and it has not become easier. She testified that it is necessary to watch them all of the time even though they are now more independent.

[118] I have outlined the children's presentation on admission into care, their progress and their ongoing needs in detail as the ability of the father to understand and attend to their ongoing needs is the pivotal issue for this trial.

[119] Based on all of the evidence, I find that all of the children are at risk and have special needs that will continue to be closely monitored. I also find that based on the presentation of the children at the time of apprehension, any parent should have been aware that their physical and developmental needs were being neglected and that they were significantly behind those of children at the same age and stage of development.

5.4 Access

[120] From April 2013 to September 2013, both parents' attendance at access visits was inconsistent and both parents missed most of the visits in August. During this time period the parents sometimes attended together and sometimes separately. The father did not explain why he was not visiting the children consistently during this time period.

[121] From September to October 2013, the parents attended together. The society discovered that the mother was charged with assaulting the father with a weapon on June 28, 2013 and her release terms required her to abstain from any contact, communication or association with the father. Neither parent had advised the society about this bail term.

[122] In cross-examination, the father testified that he only found out about the mother's bail terms in August. When the father's cross-examination continued the next day, he testified that he only found out about the mother's bail terms sometime from August to October and then he stated he did not recall when he found out and then he stated that he did not attend visits with the mother until the no contact order was changed. I do not accept the father's evidence on this issue and find that he was aware the mother was not to have contact with him. I also note that in the father's Answer and Plan of Care dated September 2013 and in court at that time, he stated that he wanted to reconcile with the mother and work on their relationship and this may be the reason they were having visits together. He also agreed that he asked that the mother's bail terms be changed so they could visit the children together.

[123] From October 2013 to March 2014, the society required that the parents have separate visits due to the mother's bail terms. The father attended consistently and the mother continued to be inconsistent.

[124] A review of the various affidavits of the workers who supervised the visits and based on their testimony, I find that the father and mother had some difficulties managing the children's behaviour during their one hour visit. There were instances of the children throwing things, slapping each other, grapping toys and engaging in unsafe behaviours. The mother when she was present spent time writing in the communication book and as a result ignored the children. The father brought food and both parents did the instrumental tasks of feeding and changing the children. On at least three separate occasions the parents needed to be reminded that M. was not to be seated in a "w" position and that when he sat he needed to sit cross legged to build the strength on his hips and legs. There were positive aspects to the visits with the children greeting the parents and the parents being affectionate and interacting with the children.

[125] On January 29, 2014 the society workers met to review the access visits. It was agreed that generally the father was able to manage the children for the one hour visits but he needed a family support worker for the educational component of the access visits to teach him behavioural management, education about the children's needs and parenting strategies. It was agreed that the father's access would be increased from 1 to 2 hours.

[126] A further meeting was held with the father and his support workers from Regent Park who advised that they had met with the father to review the children's needs from the various assessments and that the father was beginning to understand that he needed help in dealing with his four children with their various needs. Donna Steele, the child service worker, explained the various tools that he could bring to the access visits to assist with the children's development.

[127] From April 2014 to June 5, 2014 both parents attended the visits consistently and together.

[128] On June 5, 2014 the father told the family service worker he preferred the visits to be together with the mother. The service team agreed as the visits were busy and chaotic and it was helpful to have both parents present. The father alleges that it was the society workers who encouraged him the have his visits together with the mother and that he only reluctantly agreed and then the society used the joint visits against him to allege that he and the mother had reconciled. He further alleges that this is an example of the society attempting to set him up as the society would never approve a plan that involved the mother. I do not accept the father's evidence on this issue check endorsement as he was never been clear regarding his ongoing relationship with the mother during this time.

[129] From June to mid-August 2014 the visits continued to be joint and both parents and were consistent.

[130] From September to November 2014 the visits became separate again and the times were changed as the children, except J., were beginning school and specialized daycare. The father's attendance was consistent and the mother was fairly consistent.

[131] On October 28, 2014, the father's motion for the children to be returned to his care was heard. Although the children were not returned to the father's care, his access was increased to 3 hours weekly.

[132] As of December 2014 the mother's access became very inconsistent and except for one visit in January 2015 she has not exercised access to the children.

[133] As of December 2014, the father's access has continued to be consistent. He has brought a support helper Lul Urur to the visits and with her help, the visits and they have been more organized and less chaotic.

[134] Erin Rose a case aide supervised the visits from September 2013 to February 2014 and then Teerandai Narian-Turner took over the role and supervised from February to September 2014. These workers were cross-examined as was Iffeh Hazlett a family service worker who supervised two visits in December 2014.

[135] In summary, the father was basically able to meet the instrumental needs of the children. Although he required some help with organizing someone watching the children while he took one child to the washroom or while he prepared a meal, this was related to the physical set up of the access facilities and the lack of another person to help with four young children. This improved when he had Ms Urur present to help him.

[136] Many of the visits were positive or portions of the visits were positive. The father is on time and except for several months after the apprehension has been consistent in attending his access visits. He brings food, activities and interacts with the children, playing music and dancing with them and being able to pay attention to all of the children. He is able to sometimes follow direction about bringing healthy foods and at times following direction about behaviour management of the children.

[137] However, more often the visits were generally quite chaotic. I do not accept the father's evidence that he blamed the facilities for some of his problems in managing the children. I accept the evidence of the child service worker that the foster mother is able to manage the behaviour of the 3 children in her care in a smaller space than the access room used by the father. The father was able, if he chose to take the children to the kitchen or outdoors.

[138] Based on the evidence I accept, he father had trouble managing the children's behaviour and using appropriate parenting strategies. There were many examples of him threatening, cajoling, bribing or just ignoring the bad behaviour. There were also many examples of simply letting M. in particular play on his computer as a way of placating him which is a concern based on his development needs to limit his screen time. The father would question the direction of the workers regarding feeding the children healthy food, restricting sweets and limiting the amount of snacking. According to the society workers the father's improvements were quite minimal and never progressed to the point of unsupervised access.

[139] Even during the recent visits, the father did not take direction well. Both Amina Warfa and Lul Urur, who are the father's supports, were present at a visit on December 23, 2014. When the child service worker asked Ms Warfa to ask the father and Ms Urur, who were speaking Somali during the access visit, to speak English, the father refused, raised his voice and said that the children understood. He then began to speak English to the children as he realized the children could not understand Somali.

[140] It was submitted the Ms Steele was more critical in her assessment of the father's abilities during the access visits and that the evidence of the other workers should be preferred. I do not accept this assessment of her evidence. Although there were some variations in the evidence of the society witnesses with respect to their assessment of the father's access visits and on the ability of the father to co-operate with the workers, this is understandable as each visit is not the same. Also as the child service worker Ms Steele had the most continuity and contact with the children and was in the best position to understand their needs and would be examining the father's interactions in that context. I find that there were no significant overall differences in Ms Steele's observations and that of the other workers who supervised the father's access.

[141] With respect to the mother's visits, Ms Narian-Turner testified that she was only assigned to supervise and assist the father. She supervised only about 5 visits that the mother attended and she did not agree that the mother could meet the instrumental needs of the children as generally she observed the father did these tasks such as feeding and changing the children before the mother arrived. Ms Steele also supervised a few of the mother's visits and it was her observations that she could not manage their instrumental needs.

[142] Ms Jivraj also had limited observations of the mother but she observed that the mother was initially excited to see the children and actively engaged them and then became distant and less responsive. She was able to take them to the washroom, wash their faces, feed them and read to them but would then disconnect. Even during an hour visit she would ask to play a movie and often takes pictures and videos of the children. C. is always excited to see her mother.

[143] The mother's lack of consistently visiting the children makes it difficult to assess her current parenting abilities.

[144] According to the foster mother for C., M., and I. the children do not talk about their access visits and if the visits are cancelled, the children do not appear to be very disappointed.

[145] There was a great deal of evidence regarding the society's policy about the father being able to bring a third party to the visits as it was clear that two people were necessary to manage and meet the needs of the children during the visits.

[146] Shortly after the children were apprehended the family service worker and the child service worker met with the father and spoke to him about the expectations for the visits, the importance of attending the visits and he was asked for any family members who could support him. The family service worker advised the father that she would not permit new people to be introduced to the children in access visits as the children reacted to strangers and that she would need to meet with anyone he was proposing to bring to the visits. It was the policy of the society that only people who were planning would be permitted to attend visits.

[147] The father alleged that he had been asking the workers if he could bring someone to the visits and the society refused and it was not until the trial that he found out that the society's policy was not to allow anyone to come to the visits unless the society workers had met with them and they were part of a plan. I do not accept the father's evidence on this issue as based on the society workers testimony, which is bolstered by their notes, the father was advised as soon as he met with the society workers to let them know if he had any family or community member who could assist him and if so, they should contact the society. I find that he father has continually tried to blame the society for his own shortcomings.

[148] The family service worker deposed that at the court attendance on September 16, 2013 the father advised the court that he had people to help him care for the children and she asked that he provide her with their names so she could assess them.

[149] The family service worker expected the father to call her and arrange a meeting if he was proposing anyone that would be assisting him. It was not until November 5, 2014 [4] that the society received a letter proposing that Lul Urur would be a support to the father and that she was part of his plan to care for the children. The father asked if the society would meet with Ms Urur and Amina Warfa and the meeting was arranged for December 23, 2014. On that day both Ms Urur and Ms Warfa were permitted to attend the visit. Both Ms Warfa and Ms Urur helped the father and the visit went well. Ms Urur has continued to attend visits since that date and the quality of the visits has improved.

[150] I find it significant that it was only during this trial that the father was able to develop a plan and find a support person who was committed to coming to the visits. I find that there was no impediment by the society that prevented the father from doing so earlier.

[151] I agree with the observations of the society workers that in some cases access is the biggest part of a case but in this case it is a small part because of the high medical and special needs of these children.

5.5 Services Provided for the Father

[152] The father submitted that the society did not treat him fairly, that they prejudged him and that he was never told what he needed to do in order to have the children returned to his care.

[153] The family service worker and child service worker met with the father as soon as he contacted them and arranged for visits with the children and advised him of their expectations. At the time there were concerns about his drug use and the exposure of the children to drugs and therefore there were expectations about hair strand testing which I have not considered in this trial.

[154] The father was provided with a referral to Family Services Association and to a program for father's called Dad's Connections Group. Although the father deposed that he found this group on his own, I do not accept his evidence on this point either as since the birth of these children the father has never been pro-active in obtaining services on his own either the children or himself.

[155] The family service worker also provided the father with a letter supporting him obtaining appropriate housing.

[156] The father deposed that after the children were apprehended he approached the Somali Community Centre and requested support and he was referred to the Regent Park Community Health Services ("Regent Park") and began to attend meetings in August or September 2013 with Teresa Thorton and Sheri Chan. He has attended once or twice a week from August 2013 to April 2014. They helped him understand the needs of the children and spoke to the society and attended meetings with him.

[157] The society received a call from Sherry Chan on October 16, 2013 inquiring about the society's expectations of the father. The expectations were outlined regarding the father attending parenting classes, obtaining a mental health assessment, personal counselling and regular hair screens. The society committed to arranging a family group conference once the father provided the society with the names of his support people.

[158] In November 2013, the family service worker received a call from the father's Iman, Abu Mohammed advising her that he may have two families to present plans and a meeting was arranged. The worker was asked by Ms Chan, on behalf of the father, not to disclose to the Iman anything about the father or mother's history. The family service worker explained that she would need a consent from the father to speak to any of his supports and that any potential supports would have to understand the family's situation if they were to be able to help. Subsequently, the family service worker did meet with the proposed caregiver, Khadra Dirie but she was offering her services only as a foster home and not as a permanent plan for the children. The society was not prepared to move the children from their current foster homes to another foster home due to their high needs.

[159] In the fall of 2013 there appeared to be a break-down between the father and the society. A meeting was arranged in December 2013 to address the father's concerns as he was asking for a change of both workers and that as he had moved that his case be transferred to another society branch office. The father and his support workers from the Regent Park attended the meeting as well as society workers and the society supervisor. The father wanted a new family service worker and a new child service worker who recognized that he knows his children's needs and that he was involved with the children prior to their apprehension. It was explained that when the society first became involved with the mother they were unaware of his whereabouts or his role. It was explained that the society intended to continue to focus on a permanent plan for the children but they would concurrently look to a reunification plan with the father and other permanent options for the children. It was also explained that the society was worried that the father did not have the supports to care for his children who had a number of special needs. The father agreed not to pursue his request for a change of workers or a change of society branches.

[160] The family service worker sent a detailed letter outlining what had been discussed and agreed upon at the meeting. The society agreed to keep the father fully informed of the children's needs and the father was expected to attend the Plan of Care meetings where he would have the opportunity to meet with the foster care providers. The father agreed that it would not be beneficial to move the children into another foster home unless this was a permanent placement. It was confirmed that the society and foster care providers would continue to take direction from the father and mother regarding the children's cultural and religious needs and the foster care providers were open to meet and take direction from the Mosque as directed by the parents. The society agreed to make a referral to the therapeutic access program ("TAP") for the father. The father was requested to bring forward any family, friends or community members who could provide long term care for the children.

[161] A further meeting was held on January 20, 2014 with the father and his supports from Regent Park along with the father's Iman, his cousin and Ms Dirie and her husband who were being proposed as caregivers. The focus of the father and his community supports was on moving the children to a Muslim foster home. The Iman and the father's cousin agreed that they would find people to support the father with his children.

[162] At a meeting held on January 23, 2014 with the father who confirmed he completed the Dad's Connection program. He stated that he learnt a lot and that he realized that he should have been home more and not trusted the mother with everything and that he should have been more involved. He proposed a woman named Fariya Ali to help him with the children. But the father never followed up with respect to Ms Ali and she is not part of his current plan.

[163] On January 27, 2014 the father, society workers and a support worker from Regent Park met again. Shannon Deacon was also present to discuss the father's potential involvement in the TAP program. It was agreed that the father's access would be increased and that the workers would discuss with the access supervisors what needed to happen at the access visits and the goals of the visits. It was also agreed that the father would continue to seek supports through the Mosque to help him with the children and the society workers would continue to support the father as needed.

[164] The evidence of the family service worker was not particularly clear as to why the society did not proceed with the TAP program for the father. She gave a very generalized explanation about there being too many risks and barriers and concerns about the father's connection to the mother. She also clarified that the TAP program is used when there is a reunification plan but if this is correct then she did not explain why the society proposed the program initially. She also testified that the family support workers who supervised most of the visits were providing the same assistance that would have been provided through the TAP program. But if this is correct then again she did not explain why the program was initially recommended.

[165] At another meeting held on February 24, 2014, the workers again explained to the father, his supports from Regent Park, the Iman, his cousin, Mohamed Jama, and other community supports that the society would only consider a solid plan for the father to care for the children with supports in his home and outside of the home or a family would need to come forward with a permanent plan in the hopes of adopting the children. Mr. Jama agreed to provide some additional names to assist the father in planning for the children.

[166] A family group conference meeting was finally arranged for and held on May 10, 2014. The father had many community members at the meeting. At the commencement of the meeting the society announced that they were no longer supporting a plan placing the children with the father and with him having a support person living with him or any plan and that included the father. Left with this ultimatum, the father and his supports proposed that his niece Basra Elmi would move from Ottawa to care for the children on a permanent basis and that that the father would move out of the home.

[167] According to the society, a referral was made for a kinship assessment and Ms Elmi was not approved. According to Naima Adan-Ismael, who was in attendance at the meeting as a support for the father, Ms Elmi was prepared to help the father but withdrew as she was not prepared to take on the sole responsibility of parenting the children. I find this to be the most plausible explanation. I reject the father's evidence that he was tricked by the society in proposing Ms Elmi as a caregiver as initially the father presented her as someone who would live with him and assist him in caring for the children.

[168] The society provided no explanation for the change in their position that they would not consider any plan that involved the father living in the home with the children. The change in position undermined the society's position that it was assisting the father in access visits and concurrently evaluating his plan for the children to be placed in his care. Nor was there any precipitating event that would have explained the society's sudden change in position. It is understandable that the father's community supports felt disrespected and ambushed at the meeting.

[169] The society invited the father to attend the various Plan of Care meetings, doctor's appointments and J.'s physiotherapy appointment. The father attended most of the Plan of Care meetings and J.' physiotherapy appointment.

[170] The father attended some medical appointments with Dr. Cohen. I do not accept the father's evidence that he was not invited to the various medical appointments with the children's other doctors. The child service worker clarified that the father was invited to all appointments when a society worker was present and would only not be invited if only the foster parent was present.

[171] The father was invited but did not attend the branch planning meeting when the society determined that it would change its position to seek crown wardship.

[172] The father with the assistance of his supports has arranged for the following services:

a) supportive counselling and advocacy from the Regent Park Community Centre;

b) he competed the Dad's Connection program and the Beyond the Basics Parenting program; although he completed the Incredible Years program he only attended 8 of 13 classes; and

c) he connected with supports from the Somali community.

5.6 Cultural and Religious Considerations

[173] The father is from Somalia and is Muslim. The mother is of mixed heritage, white, Italian, native and she converted to the Muslim religion after she married the father. The father was quite isolated and not connected to the Somali community prior to the children's apprehension. The father testified that after the children were apprehended he became more religious.

[174] Several of the father's supporting witnesses testified that the society needed to understand the father's conduct prior the apprehension in the context of their cultural norms namely, that it is considered the mother's responsibility to take care of the children and the father's responsibility to provide financially for the family. However, none of the father's witnesses were aware that the father had been the primary caretaker of the children for many months before the apprehension and that he was not acting in the traditional male role. When the involvement of the father in the care of the children was brought to the attention of several of his witnesses they testified that even if the father did this, he was not prepared for the role. However, the father never said this in his evidence.

[175] The family service worker testified that she is Muslim herself though not Somalian and that she understands the cultural issues. At each Plan of Care meeting one of the topics to be discussed is culture and the father could raise any concerns he had or call her.

[176] The society workers inquired of the father about any restrictions or requirements for the children and he only requested that they should not be fed pork and should not be taken to church.

[177] The society workers asked the father many times about how they could meet the cultural needs of the children such as providing them with stories, books, music, prayers. The father did not provide anything that the foster parents could share with the children. The father and members of his community met several times and the priority of members of the father's community was to move the children to a Muslim foster home which the society declined as the children were settled in their respective foster homes and had many services in place.

[178] The father was aware that the foster parents of C., M., and I., occasionally took the children to a children's activity group in their Church. In total the children have attended these groups only about 4-5 times in the entire time the children have been in care. The father was aware the children occasionally attended this group as it raised at the Plan of Care meetings and the father never raised this as an issue of concern until recently. The father also became upset at a visit because C. said something that sounded like "halleluiah" and that she became upset because the father did not believe in Christmas.

[179] The family service worker and child service worker asked the father many times to teach the children prayers, bring religious books or tell them stories about their heritage as this would be a special gift for the children from the father but he never did this. Regarding teaching them prayers he said there was no time during the visits. However, recently when Ms Urur came for visits she prays during the visit and C. has joined her. Ms Urur was teaching the children some Somali words and the alphabet. During the recent visits, the father brought some religions books and both Ms Urur and the father read to the children.

[180] The father confirmed the statement in his affidavit that the society did not value the importance of maintain the children's culture and religion as they refused his request to move the children to a Muslim foster home and that his community helped him find Khadra Dirie who was an approved foster parent and was Muslim. But the father then agreed that he had met with the workers and the doctor and accepted their advice that in view of the children's special needs and the services that had been put in place it was not in the children's best interests to move them to another foster home.

[181] The father is now requesting that the children attend an Islamic school. The family service worker testified that the society was not considering moving C. to an Islamic school in view of her special needs and that she is just adjusting to school but did inquire about a week-end program but was told that the society should wait until C. is more settled in school.

[182] I find that the society encouraged the father to share his culture and religion with the children and he did not actively pursue this opportunity. The society's decision not to move the children to a Muslim foster home was appropriate in view of the significant needs of the children. I find that the father's concerns about the society not respecting the cultural and religious needs of the children have only been presented as a major issue and criticism of the society during this trial and were not pursued by the father during the entire time the children have been in care.

5.7 Father's Judgement and Insight

[183] As the ability of the father to recognize and address the challenges of the children is a vital issue in this case, I will review some of the relevant evidence on this issue.

[184] The initial concern relates to the father's belief that the mother was a good parent to the children and was meeting all of their needs. Although the father at various times in both his statements to the society workers and in his testimony waivered and stated that he is now aware the mother neglected the children's needs, nevertheless he never took any responsibility for the children's neglect. At its highest he testified that he told the mother to take care of the children's needs.

[185] The father also testified that he was the primary caregiver for the children from October or December 2013 and between this time and the apprehension in April 2013, the father did not take any steps to try to address the children's challenges. Either he did not recognize their needs or was negligent in not addressing those needs.

[186] When questioned about what he should have done to meet the children's needs, the father was unresponsive. Father's counsel continued to interrupt society counsel when she attempted to pursue this line of questioning. Counsel for the society then pursued the issue by asking whether or not he considered such things as taking C. to the dentist or finding out why M. was not walking, his only response was that he was watching the children, he had his own problems because he was the subject of identity theft and he depended on the mother.

[187] On the day of the apprehension, the father testified that he had attended to the children that morning, fed and changed them and then he went back to sleep. The police and society workers were at the home after 10:45 a.m. and the father testified that he was sleeping so soundly apparently that he did not hear them knocking. I question the judgment of any parent that would leave such young children in their rooms alone and in the state they were found in. If the father was still relying on the mother then again I question his judgment.

[188] With respect to the condition of C.'s teeth, all of the society workers, the foster mother and the doctors who examined her commented on her front teeth being broken, her teeth being discoloured and having cavities. It was only Dr. Cohen who testified that she had to look inside C.'s mouth to see her dental problems. I reject this evidence and draw the conclusion that Dr. Cohen misunderstood the question as in view of the state of C.'s teeth as described by Dr. Cohen herself, the condition of her teeth must have been obvious. Even if not, any parent that was assisting C. in brushing her teeth would have noticed the condition of her teeth and should have known that she needed dental work. I accept the evidence of the society worker that when questioned, the father simply said that they were C.'s baby teeth and would fall out.

[189] I accept the evidence of the society witnesses that the children's delays in speaking, walking and other skills was so far below what would have been expected of other children their ages, that the father should have recognized their challenges and sought out assistance for them.

[190] The father testified that he has understood the needs of the children since at least August 2013. But after listening to days of the medical evidence, foster parents' evidence and the evidence of the social worker and presumably reading the medical reports that were filed, his only comment was that the children need speech and language, to go to programs, C. needs to go the dentist, doctor and school, M. needs to walk and talk and that M. and J. are doing better. He testified that they need to go to school and will continue attending Grandview. His evidence was unclear as to whether he meant the children were attending school or just therapy at Grandview. In either scenario his evidence was incorrect, as C. and I. are not attending the school at Grandview only M. attends and if the children are placed with him, M. will not be able to continue attending the school or obtain therapy at Grandview as the father lives outside of their catchment area.

[191] Despite the father's evidence that he could meet all of the children's needs and perhaps sensing that his answers were vague and lacking any depth, he then testified that Ms Warfa knows more about the children and she will help him with all of their needs and show him what he needs to do.

[192] He then went on to testify that the society was hard on him and he blamed the society because they did not tell him what the children needed and wouldn't let him go to the doctor's appointments. In answers to questions in cross-examination, the father continued to give vague answers that showed little insight or understanding of the needs of the children.

[193] The father in cross-examination confirmed the statement in his affidavit that the society was blaming him for the children's global delays though the society was aware that the delays were the result of genetic and congenital issues and that there was no medical evidence of neglect. Despite sitting through the trial, where the medical evidence was clear that although there may be a genetic component to M.'s delays the fact that the children all improved in foster care was evidence that there was an environmental component to their delays. He also made this statement despite having been meeting with his counsellors from Regent Park once or twice a week for over a year to help him understand the needs of the children and the society's concerns.

[194] When asked to explain what he learnt from the programs he had attended, he could not explain anything specific. Again his answers were vague and unfocused.

[195] In December 2014, when the father and Ms Urur met with the society workers and he was asked to explain each child's needs. The father only said they like to play, enjoying dressing up and are involved with speech and language therapy. It was the society workers who needed to explain the needs of the children.

[196] The father deposed that he could take care of the children on his own and that he only brought Ms Urur to the access visits "to alleviate the society's concerns." He then confirmed this statement in his testimony.

[197] The society expresses concerns that the father never asked any questions about the children during any of the medical appointments he attended or at the Plan of Care meetings. Although Dr. Cohen confirmed that the father asked several times why the children were always getting colds when he met with her, he did not ask any other questions. The father also asked the society workers why the children were always sick and why they were late for visits, but he never asked any questions that show he had any appreciation of the ongoing needs of these children. The father deposed that he listened to what the professional said about the children and they explained things well so there was no need to ask questions. However, when he testified he blamed the child service worker interrupted him when he asked questions at the appointments with Dr. Cohen and blamed the society for not allowing him to attend appointments.

[198] Amina Warfa and Naima Adan-Ismael are both professionals who work in the Somali community. They testified that the society and the court need to consider the cultural context and that males in their community would not usually be in this role and would not be accustomed to asking questions. But the father never testified that he was afraid or unaccustomed to asking questions.

[199] While I appreciate that there is a cultural context to this case, the father is requesting that the children be placed in his care and is putting forward a plan that he will be the children's primary caregiver and his passivity in asking questions about his children is an area of concern.

6. The Society's Plan

[200] The society's plan is for the children to be adopted. The children have been in care beyond the statutory timelines and the children require a permanent placement that will meet all of their special needs. The children require a caregiver that is pro-active in recognizing and meeting the children's needs and ensuring that the progress they have made is sustained.

[201] Allison Hannah, the adoption worker, acknowledged that these children would be hard to place. In addition to their special needs, in particular M. and J.'s needs, they are a sibling group which makes placing them all together a challenge. The society's policy is to place children in racially and culturally matched homes. There are also fewer non-white adoptive families so it is harder to place non-white children. The society currently has some non-white prospective adoptive families but no Muslim or Somali families.

[202] The adoption worker also testified that she has placed over 90% of the children who were available for adoption in racially matched home. But although she has placed Muslim children she has never placed a sibling group of four children. She is not aware of any families that would consider adopting these children and it would be necessary to look beyond the society's list of available adoptive families to agencies that are more specialized in placing children with special needs, large sibling groups and older children.

[203] The adoption worker acknowledged that it may not be possible to place all of these children together as their challenges may be difficult for one family. The society would then look for families that were open to maintaining sibling contact. It was her view that if there was also an order that the children have access to their parents it would be another barrier to their ability to be adopted.

[204] There were statistics attached to Ms Hannah's affidavit but as these were prepared by her supervisor counsel objected to their admission. As a result Wilma Burke, the supervisor of the society's adoption department was called to testify.

[205] Ms Burke confirmed that her department tries to place siblings together and to provide a cultural match for the children. The Ministry does not require the society to prepare any detailed statistics about the type of children placed for adoption, she prepares her own statistics for court purposes so that the court has a more accurate understanding of the children placed for adoption and the prospective adoptive families. She testified that there are not a lot of Muslim children available for adoption and she has been very successful in placing Muslim children. Generally, the society has a high rate of success placing children and almost all of the children with no access orders had been placed for adoption.

[206] Ms Burke explained the most current statistics she prepared indicated in 2013 the society had placed 68 children and of those 42 were non-white children and 40 were 2 years or older. The statistics also indicated that 62 children were racially matched. All of the children had risk factors but there were only 11 sibling groups of 2 children.

[207] Ms Burke also confirmed that in her experience the addition of an access order would impact on the ability of these children to be adopted especially in view of the other obstacles to their adoption.

[208] The foster mother of C., M., and I., testified that she and her husband might be interested in adopting C. and I. should they became available for adoption. They were not considering adopting M. in view of his high needs but would be prepared to provide long term foster care. The foster mother of J. testified that it is not her intention to adopt J. but is prepared to provide ongoing care until a permanent placement becomes available.

7. The Father's Plan

[209] The father's plan is for the children to be placed in his care, pursuant to a section 57.1 of the CFSA order that is, without any need for the society to supervise him as he can meet the needs of the children. But if there is a supervision order he will comply with the terms.

[210] The positive aspects of the father's plan is as follows:

a) The father has obtained a three bedroom apartment and his accommodations are appropriate for the children;

b) The father will be home full-time as he is not working and is in receipt of Ontario Works;

c) The father has a car and is able to drive the children to any of their appointments;

d) The father appears to have ended his relationship with the mother and is not prepared to permit her any access at this time;

e) The father has reached out to his community for assistance;

f) Lul Urur belongs to the same clan as the father and lives in the same apartment building. She is willing to help the father care for the children and cook meals every day and at any time. She is willing to do this even if he is not able to pay her;

g) Several other members of the Somali community testified that they are willing to help with respite care of the children and with driving the children to their appointments;

h) Naima Adan-Ismael is a community activist in the Somali community and her work includes advocating for children to be placed in culturally appropriate homes. She will be able to provide support in driving the children, for respite care one overnight a week and can also assist in obtaining resources for the father and the children; and

i) Amina Warfa is a social worker who works in the Somali community and is a vital part of the father's plan. She has worked with the father since January 2014 and it was her role to help bridge the gap between the father and the children's aid society and to provide the society with a cultural context. If the children are returned to the father's care, she will assist him with parenting education for children with developmental delays, assist with finding resources for the children such as daycare, school, doctors, speech and language therapy and with any other professionals that are needed. She can also visit the father at home to see how he is doing with the children. She is very supportive of the father and feels he understands the needs of the children and is able to parent them and he has many supports in the community.

[211] The negative aspects of the father's plan are:

a) The plan relies on the father as the primary caregiver who will determine what assistance he requires from Ms Urur and his other supports;

b) The father testified that he may need help if he needs to go out shopping, or help with cooking or to comb the children's hair;

c) The father felt he was able to meet the needs of the children because C. and I. have improved greatly, M. can now count to 10 and J. who is 2 years old is starting to walk and the children sleep through the night. Also as the foster parents testified that it was easy to care for the children he will also be able to do so. It is important to note that neither foster mother testified that it was easy to take care for these children;

d) Until recently none of the father's supports had ever met the children and had a limited understanding of the neglect of these children when they were apprehended or the father's role in permitting that neglect;

e) The father in the past has been unable to advocate for the children or ensure their basic needs were being met. The father since the apprehension has not shown any understanding of the complex physical, behavioural, social, emotional or developmental needs of the children;

f) Despite attending access for almost two years and completing 3 different parenting programs, there has not been a significant improvement in the quality of the father's access except with respect to his ability to meet the physical needs of the children during access such as feeding and changing the children;

g) Despite stating the he will not allow the mother access until she gets assistance for her mental health issues, his perception of the mother's abilities to care for the children in the past and of the mother's stability have been seriously flawed. This then raises the concern about his ability to properly assess when and if the mtoehr will be able to exercise access to the children;

h) The father has not been open and honest with the society in the past and blames the society for removing the children and it is questionable if he will be able to be candid with them and seek assistance if the children are placed in his care;

i) The father does not feel that he needs assistance except for the most basic tasks; and

j) The father has demonstrated resistance in taking directions from not just the society workers but from his own supports.

[212] Society counsel submitted that this is really Ms Warfa and Ms Adan-Ismael's plan and counsel for the father took great exception to this comment as being condescending. However, it is clear and I find as a fact that it is Ms Warfa and Ms Adan-Ismael who have developed the father's plan and found supports for the father in the community and that it will be up to them to find the necessary resources for the children as I find that father would be incapable of doing so.

8. Analysis

8.1 Is There a Continued Need for a Finding of Need for Protection and if so, is State Intervention Required?

[213] As this is a Status Review application it is necessary to assess the evidence to determine there is a continued need for a finding of a need of protection due to concerns that the children remain at risk of physical and emotional harm and that they suffer developmental delays that if not remedied could seriously impair their future development. Since the children have remained in care, all of their physical needs have been met. They have received medical and dental interventions, and they received intensive speech, occupational and physiotherapy. All of the needs that the mother and father neglected have been addressed.

[214] However, all of the children remain vulnerable due to their early neglect. C. and I. need to be monitored so that the gains they have made will not be lost. M. will always need support and interventions and will also need to be monitored and assisted so he can make the most gains he is capable of making. J.'s needs are not yet fully understood but it is likely that she too will have challenges in her life and will need supports and various interventions.

[215] Based on the evidence and findings made, I find that the children continue to be at risk of physical harm due to concerns that the father would neglect the children and not appreciate their needs. It is clear that the father's inability to protect or appreciate the state of neglect that these children were in at the time of apprehension puts them at risk if placed in his care.

[216] I find that the father's attempts to place the sole blame for the children's neglect on the mother was an attempt to divert blame from his own responsibly for the neglect these children suffered while in his care. Although at times during his evidence he stated that he now knows he should have done more and not trusted or relied on the mother, he then quickly reverted back to his evidence that the mother was a good parent. The father never sincerely accepted any responsibility for his role in the neglect these children suffered. The father's failure to accept responsibility, appreciate his role and the implications of the neglect of the children makes it almost impossible to ensure that history will not repeat itself without this realization on his part.

[217] The father's evidence indicated such a basic lack of understanding of the needs of the children that there is a concern that he would not properly supervise them, putting them at risk of actual harm as he has only a superficial understanding of their limitations and frailties. Due to his lack of ability to manage the children's behaviour in even supervised access visits, there is a concern that he would use inappropriate discipline, resort to yelling at the children, or simply allow the children to do what they wanted and thereby put them at risk of harm. All of these behaviours by the father were observed in his supervised access visits.

[218] With respect to the risk of emotional harm, at the time of apprehension C., M., and I. showed signs of emotional and social difficulties. At this stage there are concerns that C. requires emotional support and she has been referred for psychological assessment and counselling. Based on the evidence and findings made, for the same reasons I find that all of the children are also at risk of emotional harm due to concerns about the impact of their inconsistent and neglectful parenting on the children's emotional and social needs.

[219] Based on the extensive global delays of the children at the time of apprehension, they will all require ongoing supports and monitoring to ensure their developmental needs are met.

[220] There is overwhelming evidence that all of the children continue to be in need of protection pursuant to sections 37 (a), (b), (g) and (h) of the CFSA and that intervention is needed.

8.3 What Order is in the Children's Best Interests?

[221] Counsel for the father submitted that the father's plan needs to be considered as not just the father parenting but with all of his supports inside and outside the home. As was submitted, "it takes a village to raise a child". I was greatly impressed with the father's supports in the Somali community. It is truly unfortunate for these children that the father did not reach out to those supports when the children were first born. It is unfortunate for these children the father lacked the insight and judgment about the mother that they became pregnant and had all of the children so quickly without any thought to the mother's parenting limitations. It is unfortunate for these children that the father chose not to closely monitor their care and seemed to be oblivious to their lack of development.

[222] It is submitted that the risks that arose when they children were apprehended are now mitigated because the father has reached out to his community and they are now aware of the assistance he needs to care for the children. It is submitted that the father now understands the needs of the children and will follow through with obtaining the support they need.

[223] However, the father who testified before this court is not the same person described by Ms Warfa and Ms Adan-Ismael. When examined by his counsel and during cross-examination, the father's evidence was vague and contradictory as he blamed everyone else for the neglect of the children; he could not understand why the society did not simply place the children with him as it was his opinion that they were only apprehended because of concerns related to the mother's drug use. He was totally unable to accept any responsibility for the state of the children when they were apprehended. He showed a total lack of any insight regarding the needs of his children. In reading his affidavit, it is as if the person who swore the affidavit was not the same person who testified before the court.

[224] The dilemma is that although the father's supports in his community are outstanding and will assist him when and if he asks for such assistance, the father will be the person who will be the primary caregiver and he will be the one that needs to closely monitor and assess the needs of the children. He does not present as someone who can advocate for the children, work closely with the school and therapists, work with the children daily on their school work and their therapy or even ensure that the children's day to day needs are being met.

[225] In reviewing the evidence of the father's visits, I find that the father can meet the physical needs of the children during those visits. However, his visits never progressed to the point where the father was able to recognize the behavioural, social and emotional needs of the children. I find that the father's visits have improved once Ms Urur was introduced as a helper and there has been some progress in the nature of the visits and the father's abilities.

[226] However, as the father has never accepted that he needs any help there is a concern that he cannot accept that he needs help, what confidence can a court have that he will ask for that help? Also, the father was unable to even find anyone to help him until December of 2014 that is, after the children had been in care for close to two years. Despite Ms Urur living in his apartment building and being from his community and from his own clan he needed someone else to find her. The father has not presented any evidence that he can problem solve on his own and although his community supports have rallied to help him, the father is presenting himself as the caregiver and the issue of the father's ability to problem solve on his own is troubling.

[227] I have considered the fact that Ms Urur testified that she can help the father every day and that perhaps with her help the children's needs would be met. But Ms Urur's evidence was also troubling as she had an extremely simplistic understanding of the children's complex needs. I find that she could assist the father in ensuring the children's physical needs were met, but she would not be able to meet the more subtle needs of the children or ensure that they were meeting their developmental milestones. Most concerning is that she would simply follow the father's directions and assist him when he asked and do what he asked of her. I find that she would not intervene or tell the father what the children needed.

[228] I have also considered that Ms Warfa is willing to visit the home and advocate for the children and ensure they obtain the supports they need. But ultimately if the father is the caregiver it is left to him to again request help. There was also the recent incident during an access visit that the father became angry at Ms Warfa and initially refused to follow her directions and again this raises the concern that if the father does not agree with a suggestion made by someone that he will not listen or follow that direction. The father has also been selective in the information he shared with Ms Warfa and his other supports and therefore there is a valid concern that he will not be honest and forthcoming with respect to any difficulties he may have in caring for the children.

[229] Although the father completed parenting courses and had many supports explaining the children's needs to him and advocating for him with the society, he has not been able to explain the needs of the children, ask appropriate questions or act in manner that indicates he is able to understand or meet those needs. It was most revealing that despite sitting through this trial, during his testimony it was as if he had not heard a word of the evidence regarding the needs of his children. The most he could articulate is that they needed "speech and language" and I was left with some uncertainly if he even understood what that meant or if he was just picking up some words used by the society witnesses.

[230] One of the most concerning issues is the father's total lack of candour in testifying. The father attempted to use the excuse, when there were any issues regarding the society, that the workers must have misunderstood him and that he did not know he could have requested an interpreter. However, I note the father has been in Canada for over 20 years, he did not indicate that he needed an interpreter for his counselling sessions at Regent Park or for the parenting classes he attended. He had the benefit of an interpreter when he testified during this trial and yet his testimony was so vague and contradictory it appeared that whenever the contradictions in his evidence was pointed out, he just made something up and blamed everyone else. Although I have outlined many of the problems with the father's evidence I have only touched the surface of the concerns with his evidence.

[231] I find that the concerns with the father being the primary caregiver of these children could not be met with a supervision order. Although I accept that for the most part the father was co-operative and polite with the society workers and he complied with their basic expectations, he has made too little progress in too long a time. The children's needs are too complex for a parent that can only meet their physical needs and that it is left to others in the community to ensure the children's other needs are recognized and met. These children need a caregiver that is a strong advocate and is astute in seeing and meeting their changing needs. All of these children all suffered such neglect that they deserve a parent that can ensure that they no longer suffer and that the gains they have made are sustained. The father is simply not that parent.

[232] I have noted above that in some respects the society could have done a better job in fulfilling its duty to assist the father. I am particularly concerned about the manner in which the society handled the family group conference and the lack of clarity regarding the father having the assistance of the Therapeutic Access Program. That concern cannot, however, result in a decision to place the children with the father if he is manifestly unable to care for them now. In this regard, I think it relevant to cite an observation of Justice D.J. Gordon, from Children's Aid Society of Hamilton v. E.O. and S.H., [5] in which he criticised the Society for failing to give the parents adequate assistance:

"Nevertheless, issues pertaining to services should not be left for trial. The Society and parents' counsel must review such matter early in the proceeding. Failing resolution, a motion would have been appropriate".

[233] In this case, if the father alleged that he was not receiving the services he required, or if he felt the society was not permitting him to bring support people to the access visits or if he felt the society was unfairly restricting his access, he could have and should have brought a motion before the court. I make the same observations regarding his evidence during this trial that his cultural and religious beliefs were not being respected by the society.

[234] I find that the best interests of these children require that they be made crown wards so that their complex needs will be met. I find that father is incapable of meeting those needs with either the supervision of the society or the assistance of his community.

8.3 Should Either Parent be Granted Access?

[235] As outlined, once children are made crown wards, there is a presumption against access and the onus shifts to the party seeking access to prove on a balance of probabilities that access would be beneficial and meaningful and not impair the possibility of adoption.

[236] Although there are certainly positive aspects to the father's visits and the children know the father and seem to enjoy the visits, the issue is whether or not those visits are "advantageous" and "significant" [6]. Based on the evidence of the foster parent for C., M., and I., the children do not talk about the visits and are not disappointed when they are cancelled. J. is too young to express any views about the access. Dr. Cohen testified that when these children were apprehended they did not show any particular upset at being removed from their parents.

[237] The mother's visits have been very inconsistent and she has now not seen the children for over four or five months as she was very ill and dealing with both her mental health issues and many physical problems. The children have now adjusted to not seeing the mother. Although C. is clearly attached to her mother and worries about her, the other children have not shown any particular attachment to the mother. There is also evidence of concerns about the quality of the mother's visits when she was exercising access.

[238] Based on the evidence I do not find that the access of either parent is of such a meaningful or beneficial nature that they have met the onus to rebut the presumption against access.

[239] Even if I had found that the evidence met the first prong of the test, there is evidence that an order of access would impair the possibility of the children being adopted.

[240] The father has been critical of the care the children are receiving in foster care and he does not accept that the children should not be returned to his care. It is therefore highly probable that he would not be accepting of any adoptive home.

[241] There is evidence in this case that I accept that the addition of an access order would further impair the possibility of these children being adopted. I have considered that there will be difficulties in placing these children for adoption and also the likelihood that they may not be placed together. However, putting any further obstacles in the way of the possibility of an adoption is not in these children's best interests. They can remain in in their current foster homes where all of their needs are being met and where they are doing very well. I am also concerned that if either parent was granted access they would undermine the current placements which would not be in their best interests.

[242] I accept the evidence of the society that they will undertake to find adoption homes that will permit access between the siblings.

9. Conclusion

[243] I accept that the father and mother love their children and that this will be a very difficult decision to accept.

[244] I also accept that the father has tried to do what he can to meet the needs of his children. However, to give the father even more time to improve his parenting skills is to deprive and delay the rights of these children to a permanent home that can meet their needs.

[245] The mother needs to resolve her many issues and to her credit she recognized that she was currently not in a position to parent the children.

[246] The order that is in the children's best interests of the children is that they be made crown wards for the purpose of adoption.

[247] Order as follows:

1. The children, C.M. born […], 2009, M.M. born […], 2010, I.M. born […], 2011 and J.B-H. born […], 2013 are found to be in continued need of protection pursuant to sections 37 (2) (a), (b), (g) and (h) of the Child and Family Services Act.

2. The children, C.M. born […], 2009, M.M. born […], 2010, I.M. born […], 2011 and J.B-H. born […], 2013 are made crown wards with no access to the Respondents.

Released: July 15, 2015

Signed: "Justice Roselyn Zisman"

Footnotes

[1] Catholic Children's Aid Society v. Metropolitan Toronto and the Official Guardian v. M. (C)., [1994] 2 S.C.R. 165

[2] Children's Aid Society of Hamilton v. M.A.M., D.L., and M.M. [2003] O.J. No. 1274 (Ont.Fam.Ct.) at para. 12

[3] Affidavit sworn November 13, 2006 filed at Exhibit 41 on this trial

[4] Letter filed as Exhibit 6

[5] at para. 198.

[6] As explained in detail in the decision of Justice Quinn in Children's Aid Society of Niagara v. M.J., [2004] O.J. No. 2872 (SCJ)