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 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Court File No.: Sault Ste. Marie 97/15

Date: 2015-08-11

Between:

CHILDREN'S AID SOCIETY OF ALGOMA, Applicant

— AND —

A.K. and J.R., Respondents

Before: Justice R. Kwolek

Heard on: August 4, 2015

Reasons for Judgment released on: August 11, 2015

Counsel

J. Mealey — counsel for the applicant society

E. McCooeye — counsel for the respondent A.K.

J.R. — on his own behalf

D. Stone — counsel for the Office of the Children's Lawyer, legal representative for the children

KWOLEK J.:

Summary of Case

[1] This case deals with the temporary care and custody of two children N. and A. who are 11 and nine years of age respectively. The children were apprehended from the care of their mother on April 28, 2015. In their application, the Children's Aid Society is seeking society wardship for a period of six months. They are relying on the following sections of the Child and Family Services Act: sections 37(2)(b)(i) and (ii) and 37(2)(f) and (g). Those sections deal with a risk of physical harm of the children caused by the parents' failure to adequately care for, or being involved in a pattern of neglect in caring for the children, as well as a risk of emotional harm or allegations that the children have suffered emotional harm as a result of the parents' lack of care or neglect of care. The main issue in this case is the mother's mental health and how that impacts on her ability to care for the children and whether the children can be placed with her or other potential caregivers.

Summary of Facts

[2] Child protection authorities have been involved with this family on a number of occasions in the past. On July 3, 2007, the Edmonton City Police received a report that there was a two-year-old child left alone in a schoolyard playground. He was in a diaper with pink flip-flops and had a strong body odor. A community member was with the child for one-half an hour and no parent arrived to supervise. The mother was found and reported that the child sneaked out of the residence when "the mother passed out". It does not appear that the child was apprehended at the time and the Alberta child protection authorities were involved with the family from July until December 2007 when they closed their file.

[3] The local Children's Aid Society was also involved as a result of a complaint by a senior kindergarten teacher on January 14, 2011, that the child A. had been spanked. It was determined that such referral did not warrant a child protection investigation.

[4] A further report was received on December 2, 2011 at the same elementary school that both children had come to school without eating breakfast and had no food for lunch. It was reported the children would attend school in the same clothes for many days in a row and the children appeared dirty and unkempt. When a CAS worker arrived at the parents' home on December 7, 2011, the worker observed a strong odour of marijuana present, drug paraphernalia was found in the home, and the home was generally in a dirty and unsatisfactory state. The children were apprehended on that date but returned the next day to the care of the mother and father. The parents cleaned the home to a satisfactory state and agreed to sign a six-month family service agreement to address concerns including drug use, conditions of the home, past trauma of the mother, lack of food in the home and the father's anger management.

[5] On May 8, 2012 the principal of the elementary school where the children were attending, contacted the society to report bizarre behaviour of the mother. The mother attended the school for a meeting, was visibly upset, and stated she had "spoken with a lawyer in Toronto and was going to sue the referral source as the referral source had called on six other families". The mother when leaving the school yelled at the teacher.

[6] However, on July 8, 2012 the six-month family service agreement expired and their file was closed.

Most Recent Events

[7] The Society became re-involved with this family in April 2015, when they were contacted by Constable Trevor Pluss of the Sault Ste. Marie City Police Department. He had investigated complaints made by the mother the day before about the paternal aunt attending at the children's school to forcibly remove the children from the school. The mother had also contacted the school on the same date advising that the father had planted drugs in the children's backpacks.

[8] On the next day on April 28, 2015 Constable Pluss reported that he was contacted by the mother who indicated she had not slept all night; people were hiding beside the mother's house and videotaping the mother. The mother appeared paranoid, confused and was rambling and not making sense. As a result of the comments of the mother the officer contacted the Children's Aid Society.

[9] When the Society worker attended to speak to the mother, the mother advised that they were moving and that the mother was being followed and videotaped. She confirmed previous statements that she made to the police officer that the paternal aunt was trying to take the children and the father had planted marijuana in the children's pockets. She also made further statements that exhibited disturbed thought and paranoia.

[10] The mother appeared to be packing her belongings. There were several mattresses in the living area near the front door. There was insufficient food in the home to feed the mother and the children. The bedrooms upstairs did not appear to be used. There appeared to be at least three dogs and three cats in the home. There were six holes in the walls and the front door was broken. The mother and children appeared dirty and emitted a foul body odour.

[11] The children, when interviewed, seemed to support some of the comments made by the mother and repeated some of the claims, many of which were bizarre and did not make sense.

[12] Given the mental state of the mother and the inappropriate condition of the home, the children were apprehended from the care of the mother on April 28, 2015.

[13] The principal at the children's school confirmed that the children accessed the breakfast program every day and she would send the children home with food for the weekends. The family had very limited resources. Even prior to apprehension the children did well in school but have made many improvements since coming into care. The principal further advised that the mother generally seemed appropriate and would attend the school at the end of the day and walked the children home. The principal on Friday, April 24, 2015 noticed a change in the mother when the mother attended the school and appeared rattled. On Monday, April 27, 2015 the mother stated to school authorities that the father had planted drugs in the children's pockets and backpacks. On April 27, 2015 at approximately 11:30 a.m. the mother took the children home removing them from the school. This was the first time the mother had removed the children from school during the day.

[14] The mother was taken to Sault Area Hospitals on April 28, 2015 and was eventually seen by a physician. She was "formed" under the Mental Health Act and stayed as an involuntary patient at the hospital until her discharge on May 2, 2015. The mother did mention at that time that she wanted her children to be cared for by the maternal grandmother, C.R., who lived in Alberta.

[15] The father, J.R., called the society worker on April 29, 2015 indicating he was concerned about the safety and well-being of the children. The father reported that on Saturday, April 25, 2015 the mother "went all weird". The mother exhibited bizarre and paranoia behavior. The father admitted that the mother did use marijuana frequently and that he would, on occasion, also use marijuana. The father also confirmed he would be communicating with the maternal grandmother C.R. with respect to a potential plan to care for the children as the father did not have a residence and could not care for the children at that time.

[16] It is not disputed that the mother demonstrated irrational and bizarre behavior at the end of April 2015 and the children needed to be apprehended.

Events Since Apprehension

[17] The mother remained in the hospital until May 2, 2015 when, according to the mother she was discharged. The mother in her initial affidavit dated May 29, 2015 denied using drugs but claimed that the father did drugs. The mother alleged that she was the sole caregiver of the children and did not have much assistance from the father. Her initial affidavit dated May 29, 2015 was somewhat rambling. At tab six the mother filed her discharge medication summary showing that she was prescribed Lorazepam (Ativan), every hour, as required.

[18] The Society worker attended Sault Area Hospital on May 1, 2015 and was advised by the inpatient social worker that the psychiatrist Dr. Marshall had no concerns with the mother and it was just a "build-up of stress". The mother advised the Society worker that she would be attending Women in Crisis and was hoping to get the children back.

[19] The mother did meet with the child protection worker on May 11, 2015 inquiring what she needed to do to get her children back. A social worker at the Women in Crisis center confirmed on May 12, 2015 that staff continued to have concerns about the mother's mental health. The mother had been hearing voices and the mother would speak to these voices. The mother again met with the worker on May 15, 2015 and wanted to know exactly what she needed to do in order to get the children back. The mother attended on May 19, 2015 at the Society office unannounced. She once again requested to know what she needed to do to get the children returned to her. She had been told on previous occasions that the mother needed to get a full mental health assessment and address issues with her mental health and follow recommendations of her psychiatrist including any treatment plan.

[20] On May 20, 2015, the Society worker received a call from a psychiatric nurse who confirmed that the mother appeared to have some significant mental health issues and expressed some paranoid ideation.

[21] On May 28, 2015, the CAS worker was advised by an individual at Women in Crisis that when the mother was stressed she appears scattered. Staff at the shelter also confirmed that the mother had conversations with the paternal grandmother, which had been appropriate, and the grandmother appeared to be a support to the mother. It was also reported by a staff member that the mother functions well at Women in Crisis.

[22] On June 5, 2015, the psychiatric nurse at the hospital advised that there was no change in the mother's treatment plan and there was no concern that the mother would harm herself or the children and that she would be meeting with the mother that afternoon.

[23] On June 12, 2015, the mother met with the current CAS worker and the new worker who would be taking over the file. Once again the mother wanted to know what was expected of her to have the children returned to her care. She was advised that she needed to address the mental health issues as well as concerns about neglect of the children. At that meeting, the worker noted that the mother appeared "quite vacant, unemotional and spoke very slowly in a monotone voice."

[24] On June 16, 2015, the mother met with the CAS worker and advised that she was no longer required to meet with the psychiatrist. She indicated she continued to be interested in counseling services with the Canadian Mental Health Association but there was a waiting list. She advised that she was utilizing the support services at Women in Crisis.

[25] The worker met with the father on June 23, 2015 who advised that it was not his intention to take the children from their mother but wondered if it was a possibility that the children could be returned to him in the interim while the mother was bettering herself. He confirmed that the parties separated two years ago but they had been living together for financial reasons up until three days prior to the apprehension. He confirmed that he was aware that the mother planned to move to Alberta with the children. He was not against the mother's plans to relocate. He stated he was an alcoholic who has been sober for seven years; he believes he has anxiety problems; he has never hit the mother or the children; the holes in the walls are from him wanting to do renovations not from punching walls. He advised that the mother used approximately one gram of marijuana every day to calm herself down and he would buy it for her. He claimed he also used approximately a gram a week but he quit at the beginning of May 2015. He confirmed that the mother "is not much of a drinker" and that the mother used to shake a lot. He made a comment that the mother had been coming home with Subway cards since January 2015 saying "these are my clues".

[26] On June 25, 2015, the CAS worker was advised by a counselor at Women in Crisis that there were no current concerns for the mother's mental health. She also confirmed there was no indication the mother was presently engaging in the use of marijuana. On June 30, 2015, a second counselor at Women in Crisis advised that the mother has never shared anything that made sense regarding domestic violence. She also confirmed that the mother's behaviors have stabilized and she has few stresses at the Women in Crisis Centre.

[27] The worker met with the mother and a counselor at Women in Crisis on July 6, 2015. The mother confirmed she obtained a bachelor apartment with a cot for the child N. and a queen-sized bed for herself and the child A. The mother has been attending bi-weekly workshops on self-esteem at Women in Crisis. The mother appeared guarded about her mental health issues. On that date she indicated she does not hear voices but she does talk to God which she did not view as a mental health concern. On July 6, 2015, the mother presented as happy, smiling and upbeat. On that date she provided copies of her certificates of completion for the Triple P Positive Parenting Program including a seminar on raising resilient children; a seminar on the power of positive parenting; a seminar on raising confident, competent children. On further questioning by the worker, the mother confirmed that she used marijuana prior to apprehension and stated that the father bought it for her so that she would calm down. The worker felt the mother took no responsibility for her drug usage. However, the mother indicated that she had scheduled an intake with the addictions treatment clinic for July 8, 2015. On the same date, the crisis counselor who accompanied the mother confirmed the mother's mental health had stabilized and she was not exhibiting any mental health concerns. There was no indication the mother used marijuana while staying at Women in Crisis. The crisis worker did confirm that while the mother is awaiting counseling services to commence at the Canadian Mental Health Association, she can continue to access services at Women In Crisis while residing in her new residence.

[28] On July 13, 2015, the mother once again met with the Society worker who questioned her specifically about some of the bizarre statements that she had made at or about the time of apprehension. On that date, the mother did not appear to suffer from paranoia. The mother did not acknowledge or realize that her previous thought behavior had been bizarre but seemed to deflect blame for the statements that she had made on the children.

Access Visits

[29] The mother initially was granted supervised access visits with the children one day per week from 4 to 7 p.m. She has attended all the access visits available to her since they have commenced. The access visits went well. The mother was generally attentive to the children's needs and affectionate. She brought appropriate snacks to the children during the visits. The children appeared to enjoy the visits but the departures were particularly difficult for the mother and children. The mother appeared receptive to advice being given to her by the access workers. The mother was exercising telephone access as well with A. The first few phone calls had gone well but on May 22, 2015, the foster parent had to terminate the call because of some bizarre comments the mother made that the child was 50 percent blind and did not need glasses.

[30] On May 25, 2015, the access visit with the child A. went fairly well although the mother was quite quiet, appeared quite vacant and lacked emotion while talking to the child.

[31] On May 28, 2015, the mother's visit appeared to go well with the mother remaining close to the children and focusing and interacting with them. She was however very quiet during this visit. All three family members were crying prior to the end of the visit but the mother reassured the children. On July 9, 2015, the mother was approved to have unsupervised community access to the child A. and is apparently currently exercising some unsupervised access.

[32] The father exercised one supervised visit at the Society access center and has been regularly attending access visits at the paternal great-aunt's residence. The father has attended all visits available to him since access commenced on June 15, 2015. The children appeared to enjoy the access visits with their father, however, as with the mother, the departures were particularly difficult for the father and children.

The Children

[33] An affidavit was filed by a children's services worker for the Society. Both children seemed to be doing well in their respective foster homes with no significant behavioral or emotional issues. The younger child's report card had A's, B's and C's. She also inquired about living with her grandmother in Alberta. The older child N., prior to his admission into care, had issues with very poor body odor during this past year. Prior to his admission into care he was going to the breakfast program every day at school and he rarely had a lunch. He is a bright child with no learning needs.

[34] N. had expressed some views to the foster parents about adult concerns such as the child tax credit and appeared to voice some of the same concerns and paranoid ideation that his mother had. The foster mother indicated that the child appeared to be missing lots of social skills and had some overeating issues. He did not have any other extreme behaviors, only some fears and irrationalities. He had made significant improvements since he first came into care and is not nearly as fearful of things as he was upon placement. He was no longer afraid of the dark and does not need to have his bedroom door closed.

C.R. - The Maternal Grandmother

[35] It appears that immediately after apprehension and in May 2015 both the mother and maternal grandmother C.R. requested a kinship assessment. The maternal grandmother resides in Alberta and it was confirmed by the mother and father that the mother's plans were to move to Alberta to be closer to her mother and other supports even prior to apprehension.

[36] The society, in the affidavit of Kim Bauer dated July 16, 2015, at paragraph 49 states:

"should the grandmother be approved, the society believes this [mother living with the maternal grandmother with the children] could be an appropriate solution which would allow the children to live with her mother in a safe setting. The society would like to see the children start school in the fall in the care of the grandmother should the grandmother be approved."

[37] On July 13, 2015, the Alberta authorities indicated that the kinship assessment likely would not be completed until late September or early October 2015. They also advised that the grandmother's home could be set up as an emergency kin home if certain things such as a clean environmental safety assessment for caregivers, a clean criminal record and intervention check were completed.

[38] It appears that the mother's consistent plan, as expressed to the psychiatric nurse Diane Turco, as confirmed by the father of the children, and as confirmed by the most recent affidavit of the mother dated July 28, 2015 was that she move to Alberta prior to the beginning of the school year. The child A. inquired about moving to be with her grandmother.

[39] The mother has advised that her former spouse controls her bank account. The mother does not appear at this time to appreciate the true nature of her illness. She appears to lack insight as to the nature and extent of the illness although she has stabilized, has completed certain parenting programs, and has accessed supports from Women in Crisis. Her mother appears to be a good support but unfortunately direct evidence from the maternal grandmother herself is lacking as to the nature and extent of her support and whether or not she supports the plan that the mother and children reside with her in Alberta.

[40] Currently the mother's access to the children is very minimal. Her mental health has stabilized. She has attended regularly for visits and has cooperated and met with the CAS worker on a regular basis.

Legal Analysis

[41] The legal test for the court to apply on this motion is set out in subsections 51(2), (3), (3.1) and (3.2) of the Child and Family Services Act (the Act) which read as follows:

Custody during adjournment

51(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

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

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child and

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

[42] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the society has to meet.

[43] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[44] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. CCAS of Toronto v. J.O.1, 2012 ONCJ 269.

[45] Subsection 51(7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. Family and Children's Service v. R.O., [2006] O.J. No. 969 (OCJ).

[46] I am not ready today to return the children to the care of the mother. I am not satisfied, based on the information before me, that I can safely return the children to the mother under terms of supervision. I am similarly not satisfied that the children can be safely placed with the father at this time. There is very little information that we have about the father except for unfavourable comments from the mother.

[47] The reasons for my inability to return these children today are as follows:

1. The mother has recently been hospitalized as a result of her mental illness as an involuntary patient for exhibiting bizarre and paranoid behaviour;

2. The mother's delusional behaviour has impacted the children to such an extent that they had internalized such behaviour themselves;

3. There appeared to be a deteriorating situation since at least the start of the year relating to the children's hygiene, especially that of N.;

4. There appeared to be insufficient food in the household for several months and the children had to rely on food sent home and provided by the school. The children are not in school and will not have this support at the present time;

5. The mother's delusional behaviour and paranoid beliefs seem to have continued, although admittedly to a lesser extent, at least until the end of May, 2015;

6. Although the mother has had the residential and counselling support of the Women in Crisis Centre, she has now apparently moved out of that supportive environment to an apartment of her own.

7. The mother had been regularly using marijuana which impacted on her ability to care for the children for an extended period of time. I am not satisfied at this juncture that she will not revert to such use if the children are returned immediately to her.

8. The mother has had the children for very short periods of access and given the above factors it is important that the mother is able to cope with increased periods of contact with the children.

9. The mother's plan was to move to Alberta and I am not satisfied based on the evidence before me that that is a viable plan or that she has the resources available to her to make that move.

10. When the children were apprehended the home was in a state of disarray and although the mother was having difficulty maintaining the home in a proper state of cleanliness, she had three cats and three dogs in the home.

[48] I had expressed a recommendation, when I advised that I would not immediately deliver my decision, that the mother should be granted much more extensive access. The court would like to see whether or not the mother is able to tolerate greater periods of access. The court would like to see if the mother can maintain her mental stability for the next month. There does not appear to be a chronic longstanding history of serious mental issues although there are some historical concerns. The mother has historically experienced some difficulty in maintaining the home in a proper state and maintaining proper hygiene for the children. I would not like the mother to be overwhelmed with the return of the children only to have the children re-apprehended. I am not yet satisfied that the children are able to be returned safely to the mother at this time. I currently believe, due to the factors described above, that there are reasonable grounds to believe that there is a risk that the children are likely to suffer harm and that the children cannot be adequately protected by an order under 51(2)(a) or (b) of the Child and Family Services Act.

[49] The father apparently lived in the home with the mother and children until just before intervention and must bear some responsibility for his failure to act to improve the circumstances of the children. Based on the evidence before me, I am satisfied that the Society has similarly proven a risk of harm should the children be placed with the father and such risk cannot be ameliorated by the imposition of conditions.

[50] I have insufficient material before me to place the children with the maternal grandmother at this time.

[51] However, I see the mother as being well on her way to having the children returned to her care if she maintains her mental stability for the next month, even with increasing amounts of access, continues to attend access regularly, continues to access her supports, maintains her residence in a clean and hygienic state and meets regularly with, and cooperates with, the Society worker. Ideally if the mother and children are to move to Alberta such a move should, if possible, occur before the start of the school year. However, there is too much uncertainty, and too much of a risk as at the date the motion was argued, for this court to place the children with their mother in her care.

[52] The positive aspects of the mother's situation are as follows:

1. The mother's mental health has stabilized. The Women in Crisis Centre workers have confirmed their view of her stability since mid-June. However, even at that stage one worker from Women in Crisis expressed that the stability was in part attributable to the supportive environment at that location and the mother's lack of stressors.

2. The mother has attended regularly for meetings with the CAS worker and appears to have cooperated with the worker.

3. The mother has attended all access visits and the visits appear to have gone well. The mother has provided appropriate snacks at the visits.

4. There was no evidence that the mother was continuing to use illicit substances. This view was expressed by the Women In Crisis Centre where the mother resided for an extended period of time.

5. The children seem to enjoy the visits and appear to wish to return to the care of their mother or at the very least spend more time with her. Their behaviour has stabilized in care.

6. Although there appeared to be some historical evidence as to issues with respect to drug use by the mother, poor hygiene for the children and the mother's ability to care for the children on a limited budget prior to the end of April 2015, the children appeared to be doing well academically in school even prior to apprehension.

7. The mother's mental health issues have been described by health care professionals as related to stress. The medical information that has been provided to the court, although limited in nature, would support that the mother is able to function adequately in a supportive environment.

8. It would appear that the father now has accommodations and has stepped forward as a potential caregiver. Should Society investigations confirm that the children can be with him for significant periods of time, at the very least he can be a support for the mother in caring for the children.

9. The mother has since apprehension completed a number of parenting programmes.

[53] At this time, I shall make a further without prejudice order, with increased access to the mother. I would expect this access to increase on a graduated basis with a view to a return of the children to her by September 3, 2015 should her mental health continue to remain stable, and should no incidents occur which would give rise to serious protection concerns.

[54] There is very little information about the father and the role that he can play other than what I have described above. Currently I have the mother's version of the father's role in looking after the children, which version is coloured by the mother's mental health issues. The father did attend in court when the motion was argued. It was his intention to file an answer and plan of care and he has now done so. The visits with the father have gone well and it does appear that he has, at the very least, support from the paternal great aunt who attended in court with the father during the argument for temporary care and custody. If the mother's situation continues to deteriorate rather than improve, placement with him may be a potential option in the future.

Order

[55] On an interim without prejudice basis:

[56] I will order that the children remain in the temporary care of the Society, with the mother to have interim access, being a mix of supervised and unsupervised access, and including telephone access, in the discretion of the Society, at least three times per week for periods of at least five hours each. That access can be structured, if the society approves of the mother's accommodations, to include lengthier overnight visits.

[57] I would like to see the mother's access visits gradually increased further. I do not know if the mother's residence has been viewed by the Society. Her limited accommodation may be suitable for some overnight visits and even temporary accommodation if she intends on moving to Alberta or is in the process of finding more suitable accommodation in this area. I do not find her current accommodation, based on the limited information that has been provided to the court that it is a bachelor's apartment, with a bed and a cot, suitable as a permanent residence for the mother and children. Hopefully, my order, and these Reasons, may facilitate the mother in obtaining better accommodations, if needed.

[58] The conditions for access that will apply to the mother shall be the same terms as set out in the order of Justice Dunn dated May 4, 2015.

[59] With respect to access to the father, I propose at this time to continue access by the father to the children on the same terms and conditions as set out in the order of Justice Dunn dated May 4, 2015, paragraph 3. If the father's residence is satisfactory there appears to be no reason why the father's access should not be expanded with or without the involvement of the paternal great aunt.

[60] I propose to adjourn the application and motion at tab two until September 3, 2015 at 9:30 a.m. It would be my intention at that time to return the children to the care of the mother unless new information comes to light in the intervening period that such a return would not be appropriate.

[61] I order that any updating affidavits be filed by the Society no later than August 26, 2015 and by the parents and the OCL no later than August 28, 2015. The Society would have a limited right to respond in reply. Such affidavits should update the court as to the progress of the mother's and father's access, the mother's mental health and plans for the care of these children.

[62] If the parties are unable to consent to the order that I am proposing to make on September 3, 2015, then written submissions are to be prepared and provided to me no later than September 2 at 4:00 p.m. regarding temporary care and custody. Such submissions are to be limited as to an update of what has transpired since the last affidavits filed by the parties or based on new information that has come to light since our last court date. This is not an opportunity to rehash the arguments that were heard by me on August 4, 2015.

[63] I would expect either the Society or the mother, if the mother is still planning on moving to Alberta in the near future, to have information before the court from the maternal grandmother as to whether she is prepared to have the children and the mother reside with her in Alberta. I would like to have information made available to the court as to whether the grandmother has completed the necessary prerequisites to be accepted as a temporary or emergency kin home. Technically, that information may not be necessary if the order that I make on September 3, 2015 would be, as I currently intend, to place the children with the mother. However, this court is very concerned that more information from the grandmother including at least a letter from her, and preferably an affidavit, has not been provided to the court. The plan to seek the support of the maternal grandmother has been articulated since the end of April 2015. I am also mindful of the court's statutory obligation to consider placement of the children with kin, if placement with the parents is not possible.

[64] If there is a plan to move to Alberta, the court would like information as to how the family would travel to Alberta and what arrangements have been made or can be made for their transportation.

[65] If the mother's plan is not to move immediately to Alberta, I would like a structured plan set out by the mother as to how she intends to care for the children, where she intends to reside and the services she intends to use. I would expect her to continue to use outpatient counselling services available to her from WIC and to ensure that she is on a waiting list with CMHA as well as attending any medical appointments to maintain her mental health.

[66] I would also like the father to provide information in affidavit or affidavits, as to his plan to care for the children and what services and supports he intends to put in place to assist him in caring for the children either for extended access or for full-time care.

[67] The Society should use this intervening time to determine if they have any significant further evidence with respect to concerns they have with respect to the mother, the maternal grandmother or concerns with respect to the father's ability to care for these children on at least an extended access basis. The Society should also confirm whatever is needed to properly supervise this family if the mother and children do move to Alberta.

[68] In addition, hopefully, in the intervening time period, counsel for the children will also have an opportunity to review third party reports, meet with the children and have the OCL position before the courts.

[69] Additional terms and conditions, in addition to the conditions in the current order, (certain of the existing clauses will have to be amended or changed – see clauses (d), (f), (g), (h), (i); (j) shall be deleted; (c) shall be deleted and replaced by clause 4 below) that I propose to make in an order placing these children with the mother, assuming no serious intervening concerns arise with respect to the care of these children by the mother by September 3, 2015, are as follows: (I would ask counsel to prepare written submissions about whether any of these conditions should be deleted or varied or whether any further conditions are appropriate).

1. The mother shall reside with the children at such residence as will be approved of by the Society.

2. The mother shall only provide the father with access in accordance with the court order or as directed by the Society.

3. The children will attend school regularly.

4. The mother shall abstain from the consumption of alcohol or non-prescribed dosages of drugs during or within 24 hours of being in a caregiving role to the children.

5. The mother shall take medications and attend for such treatment as may be prescribed for her by her attending physician.

6. The mother shall ensure that the children's hygiene is maintained at a proper standard.

7. The mother shall sign all reasonable consents as may be requested by the Society for third party service providers, for herself or for the children, including physicians, counsellors, dentists and others to enable the Society to properly monitor the safety and well-being of the children, and the mother's mental health.

8. The mother shall ensure that the children attend all their scheduled and necessary medical, dental and counselling appointments.

9. The mother shall attend all reasonable programming and counselling for her mental and physical health and attend such parenting programmes as may be recommended to her by the Society.

10. The mother shall not have in her household any pets except with the prior approval of the Society.

[70] If there are any questions, counsel may address those queries at our next return date on August 12, 2015.

Released: August 11, 2015

Justice R. Kwolek, Ontario Court of Justice