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: March 10, 2015

COURT FILE No.: Belleville, Ontario 332/10

Citation: Highland Shores Children's Aid Society v. A.M., 2015 ONCJ 602

BETWEEN:

Highland Shores Children’s Aid Society,

Applicant,

— AND —

A.M, C.L. ( father of L) , M.U. ( father of C),

Respondents.

Before Justice E. Deluzio

Heard on October 29, 2014; November 5, 7, 14, 18, 21 2014; December 10, 2014; January 20, 26, 30, 2015; February 5, 12, 25, 26, 2015; March 5, 6, 2015.

Reasons for Judgment released on March 10, 2015

Linda Fagbenro .................................................................. counsel for the applicant Society

Jeffrey J. Vandekleut ......................................................... counsel for the respondent, A.M

Isaac Feuer ……………………………………….. counsel for the respondent, M.U.

Heather Smith McGurk............................... counsel for the Office of the Children’s Lawyer,

legal representative for the child, C

Deluzio J.:

[1] This is an original protection application for the child C, DOB […], 2008 and a Status Review application for the child L, DOB […], 2010. The Highland Shores Children’s Aid Society seeks an order of Crown Wardship, no access, for L, and a Supervision Order, for C, with C remaining in his father’s care, and having supervised access with Ms A.M..

[2] The biological mother of both children is A.M. C’s biological father is M.U.

[3] L’s biological father is C.L. Mr L has exercised minimal access with L. He participated for the first few days of trial and then he stopped coming to court. His lawyer Mr. Lamain was removed as his solicitor of record.

[4] C lives with his father M.U. pursuant to an interim supervision order. He has resided in the primary care of his father since November 2012.

[5] This is a Status Review application for L. L was found in need of protection on September 20, 2012. He lived with his mother pursuant to a supervision order until he was apprehended from his mother’s care on March 21, 2013. He was two years and four months old at the time. He has remained in the temporary care and custody of the Society since that date and lives with a foster family. He has had three placement changes since his apprehension and there is no plan for permanency with his current foster parents.

[6] Ms A.M. agrees to a finding that L continues to be in need of protection. She wants L returned to her care, pursuant to a six month supervision order.

[7] This is an original protection application for C. The parties consent to a finding that C is in need of protection. Mr U also consents to a six month supervision order with C remaining in his care. Ms A.M. agrees that C should remain with his father, but she wants regular unsupervised access with C. She agrees to a six month supervision order for C.

[8] The Children’s Lawyer, Ms Smith McGurk, acts for C only. She supports the position of the Society and Mr U that C remain in Mr U’s care subject to the supervision of the Society. C and L have a close sibling relationship. She is advocating for ongoing access between C and L, should L be made a Crown Ward.

[9] During the trial Ms Smith McGurk provided evidence to the court that C, who is in Grade 1, has been late 40 times this year, and has been suspended from school multiple times. Although Mr U is being supervised by the Society this evidence was not provided by the Society. This evidence is of concern because C’s school attendance in Junior Kindergarten was an issue in the domestic court in November 2012 when C was removed from Ms A.M.’s primary care, and placed in his father’s care during the week. The Society must closely monitor C’s school attendance to ensure that his educational needs are being met in his father’s care.

[10] Mr U admits to daily marijuana use and has been on the methadone program for years. He has a criminal record for drug and violent offences, but he has had no involvement in the criminal justice system since C has been in his primary care. He is compliant on the methadone program and receives his carries. There is evidence that he has allowed C to play violent, inappropriate video games and has been more of a “buddy” than a parent to C but he is working on these things. He is cooperative with the Society.

[11] The Society’s position is that an order of Crown Wardship for L is in L’s best interests and there is no less disruptive placement within L’s extended family that would protect L. L is in his third foster placement since his apprehension in March 2013. He has been in care for almost two years, well beyond the statutory limits for a child under the age of 5. The Society argues that L needs a permanent placement now and that Ms A.M. is still not capable of providing L with a safe, stable and loving home environment.

[12] The Society argues that the children would be at risk of emotional and physical harm in Ms A.M.’s care because Ms A.M. is emotionally volatile, has failed to follow through with recommended services, is uncooperative and aggressive with Society workers, has repeatedly exposed her children to conflictual and unhealthy relationships, and uses marijuana. The Society argues that Ms A.M. is non-compliant with Society conditions, court conditions and probation conditions and therefore the Society would be unable to protect L if he was returned to Ms A.M.’s care pursuant to a supervision order.

CAS INVOLVEMENT PRIOR TO L’S APPREHENSION

[13] Before L was apprehended in March 2013, Ms A.M. was supervised by the Society either voluntarily, or court ordered, for almost three years, starting in July 2010, when C was 20 months old, and Ms A.M. was pregnant with L.

[14] Lisa Mascherin was the Society worker assigned to work with Ms A.M. from July 2010 until May 2012. The Society started a protection application and obtained an interim supervision order in August 2010, due to the Society’s concerns about conflict between Ms A.M. and Mr U, Mr U’s criminal lifestyle including drug use and drug trafficking, and concerns about Ms A.M.’s partner, C.L. Ms Mascherin testified that she withdrew the protection application a year later in August 2011, because Ms A.M. was cooperative and willing to work on a voluntary basis with the Society.

[15] On May 24, 2012 the Society initiated a second protection application dealing with L only, based primarily on concerns about Mr L’s serious history of violence and criminal behavior. Although Ms A.M. had agreed not to give Mr L unsupervised access with L, the Society found out that Ms A.M. was having contact with Mr L and had left L in Mr L’s care. Ms Mascherin testified that she apprehended L from Mr L’s home, but she returned L to Ms A.M.’s care the same day. Ms Mascherin explained that she immediately returned L to his mother’s care because Ms A.M. appeared to take the Society’s intervention seriously, she was willing to work with the Society and she agreed not to allow any further unsupervised contact between Mr L and L.

[16] The Society obtained an interim order that L remain in Ms A.M.’s care subject to Society supervision and on the condition that Mr L’s access with L be supervised. On September 20, 2012 Ms A.M. consented to an Order finding that L was in Need of Protection, with L remaining in her care subject to a 6 month supervision order, and requiring that Mr L’s access with L be in the Society’s discretion and supervised by the Society.

[17] During the time that she supervised Ms A.M., Ms Mascherin’s protection concerns included Ms A.M.’s drug use and financial instability, her chaotic relationships, criminal activity and poor family support. Ms Mascherin testified that while she supervised Ms A.M., Ms A.M. and Mr U were not living together, but they were in conflict and there were several domestic incidents between them. Ms A.M. and Mr U were charged with assaulting each other and Ms A.M. was placed on probation. Ms A.M. was also charged with shoplifting and several breach of probation charges. Ms A.M. was smoking marijuana daily but she was open with the Society about her marijuana use. Ms Mascherin testified that Ms A.M.’s marijuana use was not of significant concern to the Society, and there was no evidence that it impacted Ms A.M.’s parenting.

[18] Ms Mascherin described her working relationship with Mr U as positive. She said he was honest about his criminal lifestyle and drug issues. She said Mr U had strong family supports and he was having access with C, supervised by his family.

[19] Ms Mascherin described her working relationship as having its “ups and downs” but said she was able to work with Ms A.M. and she could not recall Ms A.M. ever making a formal request for a new worker while she was supervising: “ I think we had a pretty good understanding of sort of our working relationship, but you know , that was sort of my issue with her. Like whenever I couldn’t help her with something or whenever something didn’t go in Ms A.M.’s favour, she would flip out on me. She would call me names. She would send me text messages. It was just – it would go from zero to ten. And so it was sort of a continue to try and keep at it and work with her as much as I could, because she had some really good qualities and she, you know, spoke really well to her kids a lot of the times that I observed, so I saw some positive things there that I was trying to continue to work with her on, so- but it was difficult at times, for sure…..and I believe that she like asked for a new worker quite a lot when I was involved, but you know, we had that, I , like we had that relationship where, you know, if things kind of calmed down then we usually got over whatever she had an issue with or we ended up helping her with whatever we could… “

[20] Ms Mascherin testified throughout the entire time that she supervised Ms A.M. she had no concerns about Ms A.M.’s parenting abilities, and was satisfied that the children were well cared for, and meeting all of their milestones. She said that Ms A.M. provided healthy food and had good parenting skills.: “ I was surprised sometimes by the food that she’d even have for the kids. Like she’d have little, you know, sweet peppers and like I just didn’t see that a lot with a lot of my clients, there were definitely some positives. She spoke really well to the kids. You know, they always had lots of toys and they were always in the living room and like with, around us. Like it was – she had a lot of – she had some good qualities to taking care of her kids”.

[21] Ms Mascherin started working with Ms A.M. 6 months before L was born and continued her involvement until L was 18 months old. C was 18 months old when she first became involved and 3 ½ when she stopped working with Ms A.M.. Ms Mascherin never saw any evidence of the children being neglected or harmed as a result of mom’s marijuana use. She did not describe any observations of Ms A.M. becoming emotionally volatile in the presence of the children. She described both children as well adjusted and meeting all their milestones. She said that C wasn’t always well behaved but observed that both boys listened to their mother and responded to her direction. She said both boys were attached to their mother and she never had any concerns about either child’s behavior. Ms Mascherin testified that the children’s medical needs were met, except that Ms A.M. had difficulty following through with the boys’ vaccination schedules and needed help from Society workers to get the children to their appointments. The court heard evidence that C was born with a cleft lip that required surgery and multiple medical appointments in Toronto. Ms A.M. ensured that all of C’s medical needs were met, with no involvement or support from Mr U at that time. Ms Mascherin left on maternity leave in May 2012 necessitating a change of workers.

[22] There is evidence that Ms A.M. was not fully compliant with the services offered by the Society while Ms Mascherin was the supervising worker. The family support worker program was offered to Ms A.M. between January 31, 2011 and April 28, 2011, but Ms A.M. completed only two home visits due to cancelling or being unavailable for appointments and she did not successfully complete this program. In her closing summary the family support worker, Patricia Sweet, writes that “A.M. demonstrated many positive parenting techniques, however the constant state of chaos made it difficult for her to organize her obligations. She often missed scheduled appointments with her doctor, her Ontario Works worker, and myself. I feel that A.M. has many positive attributes, however her lack of commitment, and her young age, seem to act as a barrier for growth.” With respect to A.M.’s parenting skills, Ms Sweet writes that she witnessed A.M. to be “positive and caring towards both children” and observed that “A.M. demonstrated positive parenting skills throughout this contract. She presented as someone who has a good knowledge of child development and demonstrated positive language when communicating with her children. She was patient with C when he was disobedient and was able to redirect C when the need occurred. She provided many age appropriate stimulating toys, as well as equipment for both children. C and L were always clean and well dressed”.

[23] Ms Sweet noted that C was exhibiting difficult behaviours and that A.M. identified that C would not listen to her and was asking for strategies to improve his behaviour. At trial the Society relied on Ms A.M.’s failure to complete the family support program as evidence of her inability to work with the Society, but I note that even though Ms A.M. did not complete the program, the Society withdrew its protection application on August 9, 2011 on the basis that Ms A.M. was cooperative and willing to work voluntarily with the Society.

[24] Angela Boyles was the assigned protection worker from July 2012 to February 2013. Ms Boyles said that she found Ms A.M. cooperative when she was attending the home monthly. She noted that Ms A.M. made many requests of the Society for financial assistance and grocery vouchers. Ms A.M. asked Ms Boyles for help to sign C up for school but then she did this on her own. Ms Boyles said she found Ms A.M. relatively calm at times and at other times she appeared angry and under stress. She testified that Ms A.M.’s stress increased when Mr U applied for custody of C and especially after C was placed in Mr U’s primary care during the week.

[25] Ms Boyles testified that she was aware that Ms A.M. was smoking marijuana almost daily while the children were in her care. She said that Ms A.M. was open and honest about her marijuana use. Ms Boyles described an incident when she arrived at Ms A.M.’s apartment to pick her up for an appointment and she found a bong on the counter and a zip lock bag half full of marijuana. Ms Boyles testified that she instructed Ms A.M. to keep her marijuana out of reach of the children. Ms Boyles did not express any concern about Ms A.M.’s marijuana use having a negative impact on her ability to parent.

[26] Ms Boyles testified that when she was supervising Ms A.M. she saw L in his mother’s care at least monthly, and sometimes more often because Ms A.M. made many requests for rides, vouchers, etc. and she had no concerns about Ms A.M.’s parenting of L. She said that L did not exhibit any behavioural issues. He was doing well, was able to play independently, was meeting all his milestones and was relatively calm and quiet when playing with his toys. She testified that C’s behaviour was challenging at times but she observed Ms A.M. to be able to address C’s acting out behaviours appropriately. Ms Boyles observed positive interaction between Ms A.M. and both of the children and saw that Ms A.M. was attentive to the children’s needs even when waiting in the doctor’s waiting room for their immunizations.

[27] Ms Boyles testified that during the time she supervised she was able to work with Ms A.M.. Ms Boyles testified that when she first began working with Ms A.M. she was doing well, and except for requesting financial support Ms A.M. was managing the children. She described Ms A.M. as appropriate with the children, and working cooperatively with the Society.

[28] Ms Boyles’ protection concerns increased when Ms A.M. moved in with M.D.. Ms Boyles was concerned about reports of domestic violence between Ms A.M. and Mr. M.D.. She said that on one occasion C didn’t want to leave school because he didn’t want to see Mr. M.D.. Mr U started family court proceedings, seeking custody of C because he didn’t want C around Mr. M.D..

THE DOMESTIC COURT ACTION BETWEEN MS M AND MR U

[29] In August 2012, Mr U started a domestic court variation application seeking custody of C. Ms A.M. failed to file a response to Mr U’s application and the matter was scheduled for an uncontested hearing on November 16, 2012. Ms A.M. testified that she was expecting Angela Boyles to pick her up and drive her to the court hearing, but Ms Boyles didn’t pick her up. She arrived in court after the hearing had started. Ms Boyles testified at the hearing. Justice Malcolm’s endorsement dated November 16, 2012 indicates that Ms A.M. arrived at court one hour late, while the hearing was in progress. Mr U’s evidence was that C was already staying with him during the week and with Ms A.M. on weekends, and Ms Boyles’ evidence was that she had no concerns about Mr U’s care of C. At trial Ms A.M. testified that in November 2012 Mr U had started exercising more regular access with C but she says C was in her primary care. Mr U testified that he applied for custody of C because he didn’t want C around M.D..

[30] The matter was adjourned several times while Ms A.M. attempted to retain counsel, with the temporary order remaining in place. A conference was held on December 18, 2012 and Justice Malcolm made a further order maintaining the status quo. In her endorsement Justice Malcolm noted that although Ms A.M. had been C’s primary caregiver before Mr U started his court action, C had been spending more time with Mr U. The worker, Ms Boyles, had filed a letter with the court, supporting C remaining in the primary care of his father due to concerns about Ms A.M.’s emotional stability and concerns about Ms A.M.’s new living arrangements with M.D.. Justice Malcolm also noted in her endorsement that Ms A.M. was asking for a week about parenting arrangement and she was prepared to consider this once the Society investigated Ms A.M.’s new living arrangement with Mr. M.D. and once Ms A.M. was able to demonstrate that she could work voluntarily with the Society. On the next date, February 26, 2013, the CAS advised the court that it was planning to commence protection proceedings. A few weeks later protection proceedings were commenced and the domestic proceedings were stayed.

[31] Ms Boyles testified that while she was the supervising worker she had no plan to apprehend the children and had a good working relationship with Ms A.M.. She said Ms A.M. was angry with her until after the domestic court made the order placing C in Mr U’s care during the week. Ms Boyles testified at trial that she answered questions posed by Mr U’s lawyer and didn’t tell Justice Malcolm about Ms A.M.’s parenting strengths because she wasn’t asked. Ms Boyles left on maternity leave in late February 2013 and the file was transferred to Dawn Atkins.

THE APPREHENSION OF L- MARCH 21, 2013

[32] Dawn Atkins became Ms A.M.’s third Society worker in February 2013 when Angela Boyles left on a maternity leave. Ms Atkins says she didn’t talk to Angela Boyles when the file was transferred because Ms Boyles was on maternity leave.

[33] Ms Atkins’ first meeting with Ms A.M. occurred on March 19, 2013, at the Society office. L was apprehended two days later, on March 21, 2013.

[34] Ms Atkins asked Ms A.M. to meet with her because she was concerned about reports of domestic violence by Mr. M.D., and reports that M.D. was spanking C. C was in his father’s care during the week and with Ms A.M. on weekends. Ms A.M. went to the meeting with her friend, T.S.. Ms Atkins told Ms A.M. that L was not safe in the home with Mr. M.D. and that Ms A.M. would have to leave the relationship. Ms Atkins told Ms A.M. that she would have to find an alternative place to live such as “Three Oaks, Youth Hab, or Ms T.S.’ house temporarily” until the Society’s concerns could be addressed. Ms A.M. denied that Mr. M.D. was violent and said she was not leaving Mr. M.D.. She rejected all three options as “unacceptable”. Ms A.M. testified that even though she told Ms Atkins she didn’t want to leave M.D., she did spend that night with L at T.S.’s home.

[35] The next day, a second meeting with Ms Atkins was held at the office of Ms A.M.’s counsel, Mr. Vandekleut. Ms A.M. arrived at the meeting with Mr. M.D. and L. Ms A.M. admits telling Ms Atkins that she didn’t want to leave Mr. M.D. because they had just moved into a new place together and she didn’t want to uproot L. However, after Ms Atkins left the meeting, Mr. Vandekleut told Ms A.M. that if she didn’t leave M.D. the Society would apprehend L. Ms A.M. testified that she left Vandekleut’s office and went to T.S.’s home. She said she spent several hundred dollars purchasing toiletries and other supplies for herself and L so that they could stay with Ms T.S.. Ms A.M. says she texted Ms Atkins and told her that she and L were with T.S..

[36] The next day, March 21, 2013, Ms Atkins obtained a warrant to apprehend L. The warrant specified the address of the residence Ms A.M. shared with Mr. M.D.. But when the Society went to execute the warrant Ms A.M. was not there. The Society workers then went to Ms T.S.’s residence. They knew they could find Ms A.M. and L there because Ms A.M. had told Ms Atkins she would be staying there.

[37] During cross examination Ms Atkins’ defended the Society’s decision to apprehend L, even though at the time of the apprehension Ms A.M. and L were not in Mr. M.D.’s residence. Ms Atkins admits that she told Ms A.M. that Ms T.S.’ residence was one of three options she could exercise, but she insisted that she also told Ms A.M. she would have to “pre-approve Ms T.S.’ residence as a place of safety before Ms A.M. moved in there. This evidence is inconsistent with Ms Atkins’ affidavit sworn March 25, 2013 in support of the apprehension motion. In her affidavit at paragraph 71 Ms Atkins does not say she told Ms A.M. she would have to “pre-approve Ms T.S.’ residence: “I advised Ms. A.M. that, based on the information the Society received, and the children’s disclosure, that L was not safe in the home, and an alternate place, such as Three Oaks, Youth Hab, or Ms T.S.’ home temporarily, until a time when concerns could be appropriately addressed. Ms A.M. stated all those options were not acceptable”. In her Information sworn March 21, 2013, for the Apprehension Warrant, Ms Atkins makes no mention at all of her meeting with Ms A.M. on March 19, 2013 and March 20, 2013 and does not mention that Ms A.M. sent her texts, telling her that she and L were staying with T.S..

[38] During her testimony, and in response to questions from the Court, Ms Atkins admitted that when she found Ms A.M. and L at Ms T.S.’ residence she didn’t explore any other options with Ms A.M.. She didn’t explain to Ms A.M. that she did not actually approve of Ms T.S.’ residence. She said she would not have apprehended L if Ms A.M. had been in a shelter with him, and when it was suggested to her by the Court that she could have given Ms A.M. the opportunity to leave Ms T.S.’ residence with L and go to the shelter, her response was that this was “worker oversight on her part”, and she said “yeah, you know I can’t go back and change things, when you say it like that, yes, in hindsight, that would have been a better option. However that wasn’t the direction I was given”.

[39] It is not clear from the evidence whether Ms A.M. was prepared to permanently end her relationship with M.D. at that point, but it appears that, despite her protestations to Ms Atkins to the contrary during their meetings on March 19th and 20th, she did follow Ms Atkins’ direction and had moved out with L. I note that the apprehension warrant authorized the Society to apprehend L from the residence Ms A.M. shared with Mr. M.D. on J[…] road. When Ms Atkins didn’t find Ms A.M. at the J[…] Road residence she went to Ms T.S.’ residence. She knew where to look because she had suggested Ms T.S.’ residence as a temporary option for Ms A.M. and because Ms A.M. had told her she would be there. Even if, as she testified, she had told Ms A.M. that Ms T.S.’ residence would have to be “pre-approved”, this was at worst, a misunderstanding. Ms Atkins could have clarified this with Ms A.M.. She could have talked to her about going to the Three Oaks Shelter, with L. Ms A.M. had attended two meetings with Ms Atkins in the two previous days. She may have disagreed with Ms Atkins about the need to leave Mr. M.D., but she was not with Mr. M.D. when L was apprehended.

[40] There is no evidence that L was at imminent risk of harm in his mother’s care at Ms T.S.’ home. Ms Atkins testified that she had her warrant and didn’t need to reassess the situation when she found Ms A.M. at Ms T.S.’ residence but she was wrong. She had an ongoing duty, despite having a warrant to apprehend, to continue to fully investigate and assess whether L was at imminent risk of harm in his mother’s care at Ms T.S. residence. She did not discharge this duty. Ms Atkins failed to give Ms A.M. an opportunity to go somewhere else with L. Ms Atkins did not give a reasonable explanation about why she could not have assessed Ms T.S. residence when she arrived to apprehend L. She did not even explain what was wrong with Ms T.S. residence or why it was not an appropriate place for Ms A.M. and L to stay on a temporary basis. Ms Atkins had been Ms A.M.’s worker for only a few weeks, and had met with her for the first time only two days before she apprehended L. Ms A.M. had been supervised by the Society, either voluntarily or by court order for three years prior to Ms Atkins being assigned as her worker. Ms Atkins knew where to find Ms A.M. because Ms A.M. texted her to tell her she was staying with T.S.. It is difficult to imagine a more difficult start to a worker/client relationship.

[41] On March 22, 2013, the day after L was apprehended, Ms A.M. met with Ms Atkins’ supervisor, Ms Ross, to ask what she needed to do to have L returned to her care. This was another opportunity, missed by the Society, to further investigate Ms A.M.’s plan, to reassess its position, and to assist Ms A.M. in obtaining an alternative residence that the Society could approve, so that she could have L returned to her care.

[42] On the first return date, March 26, 2013, the court set a temporary care hearing on April 26, 2013 and made a temporary order that L remain in the care of the Society subject to access by Ms A.M. “supervised by the Society or an approved third party, four times per week, and may be in the community. The Society has discretion to expand mom’s access”. Unfortunately, Ms A.M.’s counsel asked to be removed from the record a few weeks after the apprehension and Ms A.M. was without a lawyer. The temporary care hearing was adjourned several times so that she could retain counsel.

[43] The Society also brought a protection application seeking a supervision order for C. The first appearance on that application was March 28, 2013 and a temporary order was made, that C remain in his father’s care, with his access to Ms A.M. to be reasonable, and supervised by the Society or a third party approved by the Society.

THE ASSAULT

[44] On April 3, 2013, 13 days after L was apprehended, Ms A.M. was charged with assaulting Ms Atkins and her supervisor, Sonia Ross.

[45] The conflict between Ms A.M. and Ms Atkins started when Ms Atkins told Ms A.M. that she could not take the children out of the Society offices for her visit. The court order provided that Ms A.M. could have supervised access with L in the community, and in fact Ms A.M. had already had a community based access visit with L, supervised by another worker, Lana Mulcaster. There is conflicting evidence about whether Ms Atkins knew this visit had taken place. Ms Mulcaster says she told Ms Atkins about the visit. Ms Atkins says she wasn’t told. Ms A.M. didn’t want to have to exercise her access at the Society offices and couldn’t understand why Ms Atkins was refusing to allow community visits when she had already had a visit in the community. Ms A.M. became enraged, assaultive and threatening towards both Ms Atkins and her supervisor Ms Ross. Ms Ross says that Ms A.M. grabbed and poked at her arms and pushed her. Ms Atkins says Ms A.M. spit on her and threatened her. This happened in the outside play area, and L was present.

[46] Ms A.M. admits that her behaviour was inappropriate and wrong. She said that she had already had a visit with the boys at her mother’s home, supervised by another worker Lana Mulcaster. She believed that the next visit was supposed to be in her home. During the visit on April 3rd at the Society office she asked Dawn Atkins if she could take the boys for a walk or to a restaurant but Ms Atkins said she wasn’t allowed to leave the office with the boys. Ms Atkin told her she wouldn’t be having any community vists and that the visits would be monitored by the Society. The court order specified access 4 x per week and Ms A.M. asked Ms Atkins why she wasn’t seeing the boys 4 x a week. She admits she “escalated really fast”. She felt that Ms Atkins was “talking in circles” and she was arguing. She said she was extremely stressed and upset. Ms A.M. admits that she was out of control. She admits that she was so angry she spit on Ms Atkins and said to Ms Atkins that “ people have killed for less than what you have done to my family”. This incident happened in the outdoor play area with L close by.

[47] The police were called to the Society office and Ms A.M. was charged with assault and utter threats. She was released on conditions that restricted her contact with both Ms Ross and Ms Atkins.

[48] Later that same day, Ms A.M. asked for a meeting and she returned to the Society office and met with Ms Ross. Ms Ross testified that she was “impressed” that Ms A.M. was able to come back to the Society office that same day. Ms A.M. said she returned to the CAS office because she was concerned about how she would be able to work with the CAS to have L returned to her care,after the charges were laid. Ms A.M.’s release conditions limited the times when Ms A.M. could contact Ms Atkins. If she contacted Ms Atkins outside of these specified times, Ms A.M. could be charged with breach of her release conditions. In fact Ms Atkins did contact the police several times over the next few months to report that Ms A.M. was texting her outside work hours.

[49] Ms Ross testified that during the meeting that afternoon, Ms A.M. said she didn’t want to work with Ms Atkins and asked for a change of worker. Ms A.M. also wanted to know what she needed to do to have L returned to her care. Ms A.M. said she felt that Ms Atkins was responsible for L not being in her care and she didn’t want to work with her. Ms Ross testified that she denied Ms A.M.’s request for a new worker because she felt that both she and Ms Atkins could continue to be objective when dealing with Ms A.M., despite the fact that they had been assaulted and threatened by her, and were now witnesses in a criminal proceeding against Ms A.M..

[50] The day after the assault, on April 4, 2013, Ms Ross and Ms Atkins co-authored a letter to Ms A.M. that in my view supports Ms A.M.’s fear that her relationship with Ms Atkins, which started with L’s apprehension, was now damaged beyond repair. The letter, which was filed as an exhibit, has caused the court to be concerned about the ability of both Ms Atkins and Ms Ross to deal objectively and fairly with Ms A.M.. There is no question that Ms A.M.’s behaviour that day was out of control and unacceptable. But her actions must be viewed in context. I am impressed that Ms A.M. was able to calm down after her arrest and return to the Society office to try to get things back on track. Her return to the Society office that same day was another missed opportunity for the Society to further investigate, reassess its position, and try to move forward with Ms A.M. with the goal of returning L to her care. Instead Ms Ross refused Ms A.M.’s request and Ms Ross and Ms Atkins co-authored a letter that is harsh, dictatorial, and punitive in its tone and content, and unfortunately set the tone for Ms A.M.’s future working relationship with the Society.

[51] It is understandable that both Ms Ross and Ms Atkins were angry and frustrated with Ms A.M.. They had both been assaulted and threatened by her. During her testimony it was clear that Ms Ross is still shaken by what happened that day. But the letter itself is compelling evidence that a new worker should have been assigned.

[52] The letter confirms Ms A.M.’s request, on April 3, 2013, for a worker change, and the Society’s denial of this request. In the letter, Ms Ross and Ms Atkins write that Ms A.M. displayed similar behaviours towards previous workers but this isn’t true. The comments made by Ms Ross and Ms Atkins in their letter about Ms A.M. being unable to work with previous Society workers are simply not corroborated by the evidence at trial.

[53] Ms Atkins testified that she hadn’t even spoken with the previous worker, Angela Boyles, before taking over the file. Contrary to what Ms Ross’ letter says there is no evidence that Ms A.M. was ever physically aggressive or threatening towards her previous Society workers during the previous three years of CAS supervision. Neither Ms Mascherin nor Ms Boyles complained of verbally abusive or physically aggressive behaviour by Ms A.M. towards them. Both workers testified that they had “up and down” relationships with Ms A.M. but were able to work with her. She allowed workers to enter her home announced and unannounced. She depended on her workers to help her get to medical appointments with her children and she even asked for their assistance to provide transportation to get C to school.

[54] The letter outlines the restrictions to be imposed on Ms A.M. by the Society regarding her access and her contact with Ms Atkins. Under the heading “What you will do during access visits:” Ms Atkins and Ms Ross write: “ Ms Atkins had planned on working on a calendar of visits with you after the visit on April 3, 2013 however this was not possible given your behaviour. At this time we will book one visit at a time with you and we will assess your behaviour and your ability to interact positively with your child and staff. Visits will be supervised by two workers at all times, you will need to arrive on time and ready to have a positive and chid focused visit. Your visit will be considered cancelled if you do not attend within 15 minutes of the scheduled start time. We will not engage in parenting education or supportive teaching as you are not receptive to this. ( my emphasis ) You will attend for visits alone and if M.D. is your transportation he will stay outside of the office at all times and remain in the visitor parking lot. Your visits will be held inside the office only. There will be no outdoor visits until we are able to see you manage yourself positively. Should you have questions or concerns about L’s care, you will not bring these up during visits; you will call after your visit and leave a message for Ms Atkins as to what your concerns are. Ms Atkins will return your all at her earliest opportunity….”

[55] It is troubling that thirteen days after Ms A.M.’s child is apprehended by the Society, the Society tells Ms A.M., a young mother with limited extended family support, that the workers will not “engage in parenting education or supportive teaching” with her.

[56] Under the heading “Contact with Ms Atkins and Ms Ross”, Ms A.M. is advised that “Your contact with Ms Atkins and Ms Ross will be done within the Society’s work hours of 8:30 to 4:30. This includes contact via telephone, in person, email and texting. You will only attend at the Society offices if you are pre-invited to do so by Ms Atkins or Ms Ross”.

[57] There is no question that the Society should have changed workers for Ms A.M. after Ms A.M. was charged with assault.

[58] During their testimony, Ms Atkins’ and Ms Ross both referred to the Assault incident as evidence of Ms A.M.’s emotional instability. But having heard all of the trial evidence I view this incident as an isolated incident in the context of L’s recent apprehension and in response to Ms Atkins’ insistence that Ms A.M. had to exercise her access in the Society offices. There is no evidence of any other physically aggressive conduct by Ms A.M. towards Society workers. And there was no evidence of emotionally unstable behaviour by Ms A.M. prior to L’s apprehension, that placed either child at risk of emotional or physical harm or that caused either child to suffer emotional or physical harm.

[59] Ms A.M. had repeatedly asked for a new worker. She made three requests in writing through her solicitor requesting a change in workers and was denied each time. Three Society supervisors supported Ms Atkins’ determination to remain assigned as Ms A.M.’s family services worker: Sonia Ross, Kathleen Sonnenberg, and Cason Buikima.

[60] Ms Sonnenberg was Ms Atkins’ supervisor from April 29, 2013 until September 1, 2013. She resumed supervision on September 1, 2014. Ms Sonnnenberg testified that she relied mainly on input from Ms Ross and Ms Atkins and she supported Ms Atkins in her belief that she could work with Ms A.M., despite the outstanding assault charges. Under cross examination Ms Sonnenberg agreed that Ms A.M. has repeatedly and consistently asked for a change in workers.

[61] Ms Sonenberg testified that the Society was considering a change in workers to coincide with the birth of Ms A.M.’s new child in January 2015.

[62] At the court’s request, after several days of trial evidence, the Society agreed to hasten the process of assigning a new worker, and finally removed Ms Atkins from the file. The new worker, Kelly Lockwood, took over in mid November, 2-14.

[63] Cason Buikema supervised Dawn Atkins and Suzanne Carr from September 2013 until August 2014. On March 5, 2014 Ms A.M. called him to advise that she had pleaded guilty to assaulting Ms Atkins and wanted a new worker. Mr. Buikema testified that he denied Ms A.M.’s request for a new worker because he did not see a connection between Ms Atkins’ continued involvement as the reason why Ms A.M. wasn’t “moving forward”. Mr. Buikema pointed out that Ms A.M. had missed some visits and he had heard that Ms A.M. was having similar difficulties working with Suzanne Carr. However, Mr. Buikema acknowledged that Ms A.M. had never asked that Ms Carr be removed from the file. Mr. Buikema met with Ms Atkins and Ms A.M. at the Society office in June 2014 and Ms A.M. again requested a new worker. Mr. Buikema wrote a letter to Ms A.M. dated June 4, 2014, confirming his denial of her request for a new worker.

[64] Neither Ms Sonnenberg nor Mr. Buikema were able to recall or identify any parenting programs or parenting supports offered or suggested to Ms A.M. by the Society while they were supervising her file.

MS M’S ACCESS

[65] On April 26, 2013, following the assault, and based only on the Affidavits filed by the Society, the Society requested and the court ordered that the access order be amended, to an order of reasonable, supervised access, in the discretion of the Society. The evidence at trial establishes that from that point on, the Society exercised its discretion by using Ms A.M.’s access with her children in an attempt to control Ms A.M.’s behaviour, or punish her for non compliance with Society expectations, with little regard for whether the access they “allowed” was in the best interests of either child.

[66] Ms A.M. testified that after L was apprehended she stayed with M.D. until July 2013. She said that M.D. was becoming more violent because there were no kids in the house. He was abusing her physically and verbally “almost all the time”. She said he controlled their money and their car and sometimes took the car so she couldn’t get to her access visits. She asked the Society for help with transportation but they refused to help her.

[67] By May 2013 Ms A.M. was having 4 two hour visits per week, but the Society continued to require that the visits occur at the Society offices, under the supervision of Society workers. The Society’s insistence that Ms A.M.’s access remain at the Society’s offices, under worker supervision, was unreasonable and unfair. While Ms A.M.’s ongoing relationship with M.D. after L’s apprehension provided the Society with valid reason to protect L from exposure to domestic violence and excessive discipline by Mr. D, there is simply no evidence that Ms A.M. ever acted in a manner that was emotionally or physically harmful towards either child. Prior to L’s apprehension, Society workers, Lisa Mascherin and Angela Boyles observed Ms A.M. to be loving and appropriate with her children. Despite her sometimes chaotic lifestyle and poor choice of partners, both children were attached to their mother and thriving in her care.

KINSHIP CARE OPTIONS

[68] At trial the court heard evidence that both Ms A.M.’s mother, B.L., and her grandmother D.M., offered to supervise Ms A.M.’s access in their homes. Having heard their evidence I am satisfied that both women could have supervised Ms A.M.’s access. Both Ms A.M.iller and Ms B.L. had been extensively involved in assisting Ms A.M. with the care of her children and both women clearly love the boys. Ms B.L. has attended almost 90% of the access visits with Ms A.M., and D.M. has also attended many visits. I am satisfied based on their evidence, that the children would have been happy and comfortable spending time with their mother, in their homes. But the Society did not investigate or even assess these options.

[69] Ms B.L. testified she loves her daughter but admits that she and A.M. have had conflicts and disagreements. She fully supports A.M. and she loves her grandsons. She estimates that she has attended 90% of the access visits with A.M.. She testified that as soon as she found out about L’s apprehension she called the CAS. She asked why L wasn’t brought to her. She says she and A.M. weren’t getting along at that time because she didn’t approve of A.M.’s relationship with M.D. She had looked after L many times and had a close relationship with him. She couldn’t understand why L was in foster care and not with her. She talked to CAS supervisors and begged and pleaded to have L placed with her. She sent letters to the CAS and told the CAS they could come into her home and check on L every day. She just wanted them to bring him to her. Every time she tried to talk to Dawn Atkins about having L in her care Dawn said she wasn’t a party and the CAS wasn’t going to place L with her. She was asked to supervise sibling visits between L and C between June and August 2014 when the Society decided to give A.M. separate visits with each boy. As soon as the visits returned to shared visits she no longer had these extra visits with the boys in her home. She shared the Society’s concern about M.D. and did not approve of Ms A.M.’s relationship with him but she disagrees with the Society’s claim that L needed to be protected from A.M.. She disagrees that A.M. has “emotional regulation issues” that affect her ability to parent. She says A.M. has been emotional and hot tempered when she tries to work with the Society and in particular with Dawn Atkins. She has never seen A.M. become easily frustrated with the children.

[70] Ms B.L. testified that the kinship worker did attend her home once and they talked for half an hour. She said the worker told her she didn’t see any problem with Ms B.L.’s proposal to provide kinship care for L. Ms B.L. testified that she told the kinship worker that she understood the need to protect the boys from M.D., but she didn’t think the boys needed to be protected from their mother.

[71] Michele Whelan is a kinship worker. She testified that she started a kinship assessment of A.M.’s mother, B.L. in March 2013, shortly after L was apprehended. She says she did not complete her assessment of Ms B.L.. Ms Whelan testified that she was aware, when doing the assessment, that Ms B.L. had been very involved in L’s care prior to the apprehension. She knew that Ms B.L. regularly had L in her home on weekends and for overnights during the week.

[72] After completing only one interview with Ms B.L. the family services department withdrew its request for kinship assessment. Ms Whelan said she didn’t get very far in her assessment process. She said the kinship assessment stopped when the Society found out that Ms B.L. allowed A.M. to see C in her home when C was there on a visit that Ms B.L. arranged directly with Mr U.

[73] Ms Whelan testified that the direction to stop kinship assessment came from the supervisor Sonia Ross “in early april 2013”. The file was officially closed on April 26, 2013. She said the Society was concerned that Mrs. B.L. would not “strictly supervise” A.M.’s access with her children because she “did not fully appreciate Society’s protection concerns and would therefore not be able to adequately protect L”. The timing of the cancellation of the kinship assessment by Ms Ross, in “early April” coincides with the time of the assault incident on April 3rd and this is troubling, because it raises concerns about Ms Ross’ objectivity, just days after being assaulted and threatened by Ms A.M..

[74] Ms A.M.’s paternal grandmother, D.M., also submitted a plan of care for L. She proposed that both A.M. and L could live in her home. She also proposed that she could supervise A.M.’s access with her children. But the Society never visited her home or investigated her plan. I found D.M. to be a credible witness. I was impressed by her. She has a close relationship with A.M. and she is a good role model for her. She is 72 years old, and lives with her 77 year old husband J.M. in their home in Belleville. Mr. J.M. retired from the navy after 33 years of service. Mrs. D.M. worked for Paramed for 22 years, mainly with brain injury patients, and she currently works part time, providing palliative overnight care.

[75] The M.s don’t have criminal records and have never been involved with child welfare authorities. Mrs. D.M. testified that she was a support to A.M. before L was apprehended and has regularly attended access visits with A.M. to see L. She agrees that A.M. was a young mom who “had issues, but says that things became much worse after L was apprehended. She agrees that A.M. has anger management issues now, but says A.M. was not an angry person until after L was apprehended. She has helped A.M. with transportation and child care. She was there for A.M. right from the time the children were born. She drove A.M. and C to the Hospital for Sick Children several times when C was having his cleft lip repaired. She has looked after both boys overnight. Mrs. D.M. testified that A.M. was very good with the children prior to the apprehension. She prepared healthy meals, the kids were always dressed well, and A.M. always interacted with her children. She says that A.M. was always colouring with the boys, doing crafts, and reading to the boys. She has seen A.M. raise her voice or give a time out, but she has never seen A.M. spank her children. Mrs. D.M. described C as a bubbly happy boy who would not always do what he was told and says L was a happy child who always did everything his mommy said to do.

[76] Mrs. D.M. testified that she has tried to be supportive with A.M. since the boys were removed from her care. She has listened to her, helped her out financially and driven her where she needed to go. She has tried to have access with the boys in her home but has been refused. About a year ago she asked if she could take one of the boys up to see her husband and was told she needed a police check. She paid for a police check, asked again, and was denied. She was told that she was not approved because the Society worker thought she might take the boys to meet their mother somewhere. She proposed herself as a supervisor of A.M.’s access but this proposal was denied too. She dealt with Dawn Atkins and her supervisor.

[77] The boys call her nanny and come running to her when they see her. Mrs. D.M. has seen a big change in L since his apprehension. She says he used to be happy and loving and now is more defiant and unhappy. He wants to leave with her in his car and he wants to go home with his mother. One time when they were leaving L said “all I want is to be happy”. Mrs. D.M. has no concerns about A.M.’s ability to look after the children. She has been present for several visits since the visits have been moved back to A.M.’s home and says these visits are much better. The children were calm. They were finger painting when she arrived. They listened to what she said or what A.M. said. Both boys were quiet and well behaved-much different than when the visits are at the Society office.

[78] D.M. testified that she is willing to continue to assist A.M.. She will stay with L if A.M. needs to take the baby to the doctor. She says that C is doing “fairly good” with his father, and that M.D. is doing a pretty good job with C. She says C was quiet and confused when he was first taken from A.M. but now he has come to accept where he lives. But she worries that L is a very unhappy, unsettled child who has missed all of this time bonding with his mother and grandparents. She said that “it’s been a long time since he has been out of our care and she thinks he should be given back to his mother”.

[79] She says Ms Atkins wouldn’t let her supervise A.M.’s access because she felt A.M. wouldn’t listen to Mrs. D.M. but she feels she has a good relationship with A.M.. Mrs. D.M. submitted a plan of care for L. She said A.M. and L could live in her home. But the Society has never visited her or investigated her offers to support A.M..

[80] On the day Mrs. D.M. testified, which was the last December date before Christmas, the court directed the new worker, Kelly Lockwood, to visit Mrs. D.M.’s home to see whether the home, and the M.s could be approved as a place for A.M.s visits with the boys. A.M. then had several successful visits in Mrs. D.M.’s home before Mrs. D.M. and her husband left for a previously arranged 3 month trip to Florida on December 26, 2014.

[81] The Society has a positive, ongoing obligation to investigate kinship care options for children and to ensure that a child removed from the care of his or her parent is in the least disruptive placement available to them. The Society failed to fulfill its duty to fully assess and investigate all relevant information when Society workers failed to fully investigate and assess the kinship care plans put forward by the maternal grandmother Ms B.L., and the paternal grandmother, D.M.. Both of these women were closely involved with L and C prior to L’s apprehension, and both of these women remained closely involved after L was apprehended by attending many access visits with A.M.. They should have been identified as strong supports for A.M.. The Society should have included both women in planning for L’s return to A.M.’s care.

[82] L was struggling in foster care. Yet the Society continually restricted his access with his mother and failed to investigate viable kinship care plans put forward by both B.L. and D.M., even though it is clear from the supervised access notes that L is comfortable with and attached to both women. There is overwhelming evidence that during his time in care, L’s behaviour has deteriorated significantly. L was two years and four months old when he was apprehended, and at that time he was not exhibiting any behavioural problems while he was in his mother’s care. He is now in his third foster home. In his second foster home, the foster parents disciplined L by washing his mouth out with soap. L told Ms A.M. about this during an access visit and Ms A.M. told the Society. The Society then verified L’s disclosure and moved him from this home but Ms A.M. was never informed that L’s disclosure had been verified.

MS M’S “MELTDOWN” AT THE SOCIETY OFFICES - JULY 18, 2013

[83] On July 18, 2013 Ms A.M. had what can only be described as a “complete meltdown” at the Society offices during an access visit. Ms A.M. testified and explained what happened and I accept her evidence. She said her nanny, D.M., came to the visit with her. Their visit with the boys started in the access room. She was upset because she wanted a communication book to go back and forth with L’s foster mother, and for the 5th week in a row, the foster mother had not sent the communication book to the visit. Ms A.M. was concerned about the care L was receiving in this home. And her concerns were warranted. This is the home where Ls’ mouth was washed out with soap. She said she left the access room and went to the lobby where she asked the receptionist if she could speak with Dawn Atkins. She said she waited in the lobby for a long time before the receptionist told her that Ms Atkins wasn’t in the building but another worker would speak to her. By that point Ms A.M. was concerned that she was losing too much time out of her one hour visit with the boys. She asked the receptionist to just let her back into the visit. She thinks now that the receptionist wasn’t aware that the visit was already in progress. The receptionist refused to let her back in. A.M. testified that she was already feeling anxious and when the receptionist told her she couldn’t go back in for the rest of her visit she sat on the floor and started to cry. She stopped crying and they still wouldn’t let her back in. Then she started screaming at the receptionist and the receptionist called the police. The kids were in the playroom with her nanny during this incident. She was locked in a room and the children were taken from the building. A week later Ms A.M. finally left M.D. and moved into a woman’s shelter.

[84] Kathleen Sonnenberg also described the July incident. Her evidence was mostly corroborative of Ms A.M.’s evidence. She said that Ms A.M. became agitated because a communication book with the foster parent did not come with L to the access visit. Ms A.M. was exhibiting out of control behavior, yelling and swearing and banging on the door, demanding to be permitted back into the access area, and the police had to be called to escort Ms A.M. from the office. She said L was in the access room and could hear his mother swearing and yelling.

[85] A.M.’s grandmother, D.M. was present during this incident. She recalled that A.M. was upset because she had asked for a communication book and phone calls from the foster mother. D.M. testified that she was sad that A.M. made a fuss about the communication book and lost her temper. She doesn’t think the boys heard A.M. yelling because they were running around and playing and the tv was on. She said the behaviour was not typical behaviour for A.M.. She didn’t think the police had to be called.

[86] After this incident, Ms A.M.’s access with her children was suspended for two months. between July and September 2013.

[87] Shortly after Ms A.M.’s access was suspended she ended her relationship with M.D. and moved into the Three Oaks Woman’s Shelter.

[88] On July 29, 2013, a meeting between Ms A.M., her lawyer and Ms Atkins was held at the shelter. During the meeting Ms A.M. finally admitted that she had been physically and verbally abused by Mr. D and she agreed to participate in a mental health assessment.

[89] Ms Atkins testified that the meeting was “very productive” but she decided that Ms A.M.’s access should remain suspended until she had done some mental health counselling. Ms Atkins made a referral for Ms A.M. to see a Dr. Mcpherson and then she went on holidays. She did not return to work until September.

[90] Ms A.M. testified that she was already concerned about the care L was receiving in the foster home, and the longer she went without seeing her children the more “insane it made me…wondering how my kids were doing without me”. Ms Atkins testified that when she told Ms A.M. that she was suspending her access Ms A.M. became extremely upset and she worried that Ms A.M. might harm herself.

[91] It turned out that Dr. Mcpherson wasn’t able to accept the referral and Ms A.M. saw Dr. Al Saidi, a psychiatrist, on August 12, 2013. The report of Dr. Al Saidi was filed on consent as an exhibit. Dr. Al Saidi writes in his report that Ms A.M. “does not have any psychotic features. She does not feel paranoid. Her insight is quite reasonable. I also screened for anxiety disorders and although there are some anxiety symptoms in relation to what is happening in her life currently overall there is no specific constellation of symptoms that would point to a specific anxiety disorder. As far as the mood fluctuation is concerned, I assessed that and to the best of my judgement, this is anger and behavioural fluctuations, not necessarily driven by a spontaneous change in mood”. … He said there was “evidence for the presence of traits pointing to a borderline personality” but he did not make a diagnosis. He recommended that Ms A.M. attend the Chrysalis program in Kingston which he described as the “best comprehensive behavioural program to help individuals with borderline personality” and he recommended that Ms A.M. contact an anger management program to get help with her anger outbursts.

[92] Ms A.M. says she called the Chrysalis program and was told that because she did not have a mental health diagnosis and was not on medication she was not eligible for the program. Ms A.M. did see a counsel, Brian Leckie, through the crisis intervention program, 310-open.

[93] The Society re-instated Ms A.M.’s access in September 2013. The Society did not have Dr. Al Saidi’s report at tha time, but it appears that they were satisfied that Ms A.M. had at least been assessed. Ms A.M.’s access was expanded to community based access and finally by December 2013 the Society had agreed to move Ms A.M.’s access to her home.

[94] In her affidavit sworn December 10, 2013, Ms Atkins describes Ms A.M.’s access in very positive terms. She says Ms A.M.s “interactions with the boys have been nurturing and appropriate in terms of consequencing and her interactions with Society workers were appropriate and conflict free”. Ms Atkins approved Ms A.M.’s home for access on November 27, 2013 and the first home access visit was in early December 2013. However, Ms Atkins continued to employ a “carrot and stick” approach to access. She testified that during a Dec 19th home visit which was positive Ms A.M. asked Ms Atkins for a Christmas visit and Ms Atkins denied the request because she had learned that Ms A.M. had missed an appointment with the PCA assessor. Ms Atkins testified that when she told Ms A.M. she would not approve the Christmas home visit she reminded Ms A.M. that “she needed to attend appointments and make her boys a priority”.

THE BONG INCIDENT

[95] Access visits continued in Ms A.M.’s home until March 4, 2014, when Ms Atkins saw a bong in Ms A.M.’s bathroom during an access visit and concluded that Ms A.M. was smoking pot during the visit. Ms A.M. told Ms Atkins she didn’t smoke pot during the visit but admitted she had smoked pot in the morning, hours before the visit. Both Ms Mascherin and Ms Boyles testified that they were aware that Ms A.M. was a regular marijuana user when they were supervising the boys in her full time care.

[96] Under cross examination Ms Atkins admitted that she entered the bathroom right after Ms A.M. exited it, and didn’t see smoke in the bathroom. She didn’t touch the bong to see if it felt warm, and she didn’t see any signs of marijuana use in Ms A.M., such as glassy eyes or slurred speech, and saw no evidence that Ms A.M. was under the influence during the visit. Ms Atkins was defensive and argumentative during her cross examination and continued to assert her belief that Ms A.M. had smoked marijuana during the access visit. She said she decided to revoke Ms A.M.’s home visits, even though Ms A.M.’s visits were better in her home, because she believed that Ms A.M. had been under the influence during an access visit with the boys present in her home.

[97] Ms Atkins agreed that during this visit when she suspected Ms A.M. had actually smoked pot during the visit, Ms A.M.’s interactions with her children were positive, she showed no signs of impairment and did not appear unstable or irrational.

[98] The supervised access notes confirm that the home visits were mostly positive and were significantly better than the visits at the Society offices.

[99] Ms Atkins may have suspected that Ms A.M. was actually smoking pot during the visit but she couldn’t prove it, and in fact the evidence at trial establishes that her suspicion was not well founded.

[100] Ms A.M. had been open about her marijuana use for years, and previous Society workers had tolerated her use of marijuana while the children were still in her care. Ms Atkins could have warned Ms A.M. that if she smelled marijuana or suspected marijuana use again, she would have to consider moving visits back to the Society office. She could have required Ms A.M. to attend Addictions Counselling as a condition of home visits continuing in the future.

[101] She could have and should have taken into account the negative impact, on the children, of once again restricting their contact with their mother.

[102] The supervisor at that time, Mr. Buikema, testified that the Society’s decision to move Ms A.M.’s access back to the Society office was made on March 4, 2014. Mr. Buikema supported Ms Atkins’ decision to move access back to the Society offices based on Ms Atkins’ information that she believed Ms A.M. had smoked marijuana in her home during an access visit. Mr. Buikema acknowledged that when he approved the decision to move access from Ms A.M.’s home back to the Society office he had not reviewed any of the supervised access notes and had no information about how moving access back to the Society offices would affect the length, frequency or even quality of access visits, and he did not assess whether moving visits back to the Society offices was in the best interests of the children.

[103] I find, on the basis of all of the evidence I heard, that Ms Atkins’ decision on March 4, 2014, to revoke Ms A.M.’s home access, a decision supported by her supervisor, Mr. Buikema, was arbitrary, capricious and contrary to the best interests of C and L.

[104] The Society abused the discretion granted to it by the court and took a restrictive and punitive approach towards Ms A.M.’s access with little regard for the best interests of the children. Even after ending her abusive relationship with Mr. D it had taken Ms A.M. months to “earn” the right to have visits in her home with her children, even though there was no evidence that Ms A.M. was unable to parent her children prior to L’s apprehension.

[105] The Society’s concern about Ms A.M.’s emotional stability was based primarily on the “assault incident” on April 3, 2013 and the incident in July 2013 when Ms A.M. became upset that the foster mother had not provided the communication book.

[106] Ms A.M.’s angry outbursts against Society workers, on those two occasions, did occur during supervised access visits at the Society offices and L was present and must have been affected. But there is no evidence of any conflict or emotional volatility by Ms A.M. during the home visits. And the two workers who supervised Ms A.M. prior to L’s apprehension expressed no concerns about Ms A.M.’s parenting skills or her ability to regulate her emotions around her children.

[107] Ms Atkins conceded during her evidence that since she revoked Ms A.M.’s home access in March 2014 her working relationship with Ms A.M. has been “very strained”. She said that “perhaps in hindsight a new worker would have been beneficial. Would it have changed things? I don’t think so I don’t know. Hindsights 20/20 I guess”.

THE PARENTING CAPACITY ASSESSMENT

[108] The Parenting Capacity Assessment recommending that L be made a Crown Ward without access is dated March 7, 2014 and was received by the Society on March 10, 2014, just days after the suspected pot smoking incident.

[109] Eilleen Bonner conducted the assessment. She testified that she observed three access visits between A.M. and the boys. These were all supervised visits at the Society offices. A.M.’s mother Ms B.L. was present for two of these visits. Ms Bonner didn’t question this and didn’t provide any direction to the Society, or A.M., that she would have preferred to assess A.M. on her own. She agreed that she should have done this.

[110] Ms Bonner recommended that L be made a Crown Ward without access. She said her main concern about Ms A.M. was her lack of emotional regulation. She observed that during the visits, as L’s behaviour was escalating, mom’s behaviour excalated too. She was concerned about Ms A.M.’s rigidity during the visits, and was concerned about Ms A.M. being able to remain calm. She agreed that while there were reports of mom being volatile with workers there was no evidence of her ever become upset or angry with the children during supervised visits.

[111] Ms Bonner noted that L has high needs and his foster parents are having difficulty managing him. Ms Bonner was unaware that L had his mouth washed out with soap by the foster parents he was living with when she conducted her assessment. She agreed that the soap washing would have been traumatic and harmful to L. It is Ms Bonner’s opinion that Ms A.M. would be unable to help L regulate his emotions and behaviour. She bases this opinion on her observaion that Ms A.M. was unable to manage time outs for L in supervised visits.

[112] She recommended that the relationship between L and C be terminated because an ongoing relationship or access could disrupt an adoptive placement for L.

[113] Ms Bonner testified that L presented as a child with attachment difficulties, and that typically these difficulties start early in childhood. She said the observations she made “raised concerns about what L’s relationship with his mother looked like early in life”. Under cross examination Ms Bonner acknowledged that she was not aware that L showed no signs of behavioural difficulties prior to his apprehension, while he was in his mother’s care; or that previous Society workers observed positive parenting and positive attachment between Ms A.M. and L before he was apprehended.

[114] Ms Bonner acknowledged that she relied on CAS file information for portions of her report. At page 6 of her report she writes that “Ms A.M. was asked to leave the shelter due to volatile and impulsive behaviours in the residence” but this information is not supported by the evidence at trial. Amy DuPhresne a supervisor at Three Oaks Shelter, testified and said the main reason Ms A.M. was asked to leave was her failure to follow curfew. Ms A.M. admits that she went to her mother’s home a few times and fell asleep there, and didn’t make her curfew at the shelter. Ms Dufresne testified that Ms A.M. did get upset and refused to leave when she was told she had to move out because of the curfew breaches.

[115] In her assessment Ms Bonner says she observed “positive engagement” between Ms A.M. and her sons, but she doesn’t detail what the positive engagement was. At trial, Ms Bonner explained that she “was particularly impressed with mom’s ability to transition children at the end of the visits and make positive plans for next visit”. She said that “that was really striking and should have been in the report”.

[116] Ms Bonner also testified that she did not make the recommendation in her report that mom’s access be reduced before trial. She agreed that until a decision has been made by the Court there needs to be continuity for the children. She understood that Mom’s access with the boys was gradually increasing during the assessment process, from visits at the Society, to community visits, to home visits. Just before completing her report she received a report from the Society about mom smoking marijuana in her apartment during a home visit. She included the Society worker’s version of this incident in her report but she did not contact Ms A.M. for her input about this.

[117] Ms Bonner testified that she was aware of Ms A.M.’s repeated requests for a new worker and said she included this issue in an earlier draft of her report. She agreed that Ms A.M.’s concerns were valid and should have been considered by the Society. Ms A.M. believed that she wasn’t being listened to. The Society said they decided not to change the worker because Ms A.M. had difficulty working with other worker and they didn’t want to create more disruptions for the children than necessary.

[118] Dr. Farrell conducted a psychological assessment of Ms A.M.. He testified that Ms A.M. needs to work with someone she can trust. In his opinion “ changing the worker would have been a good thing… if you had changed the worker, and then gauging her motivation from that point on, you would have had a clearer picture”.

THE SOCIETY’S RESPONSE TO THE PCA

[119] A supervision case noted dated March 25, 2014 describes a meeting held between Ms Atkins and her supervisor Mr. Buikema and reveals that the Society viewed the PCA as determinative of L’s fate. Mr. Buikema writes in the case note that the Society’s plan was to proceed with an application for Crown Wardship no access, and that the Society would no longer be providing make up visits for Ms A.M.. The note also indicates that Mr. Buikema and Ms Atkins discussed bringing a motion to reduce Ms A.M.’s access.

[120] Ms A.M. did not believe she could work with Ms Atkins towards her goal of having L returned and there is no question that, at least since March 2014 she was right.

[121] Ms A.M. was never informed about the Society’s plan to restrict her access and amend its application to seek Crown Wardship of L.

[122] Shortly after access was moved back to the Society offices, the Society concluded that the “quality of Ms A.M.’s access with the boys was declining” and the Society decided to separate the boys during their visits with their mother. Ms A.M. was not consulted about this. Had the Society been continuing its investigation up to the time of a final court determination, as it must do, the Society would have explored other less disruptive options, in the children’s best interests. They could have revisited the kinship care plans put forward by Ms B.L. and Ms A.M.. They could have looked at moving the visits back to Ms A.M.’s home, where the visits had been positive for the children.

[123] Instead the Society wrote a letter to Ms A.M.’s lawyer, advising that visits were being shortened to one hour visits because Ms A.M. wasn’t handling both boys well together.

[124] During her cross examination Ms Atkins agreed that after the Parenting Capacity Assessment was received the the Society’s plan did not involve working with mom and did involve limiting Ms A.M.’s access. Ms Atkins explained that when Ms A.M. again asked for a change of worker in September 2014, Ms Atkins denied her request, not because she believed she could work with Ms A.M. at that point, but because the Society was planning a Summary Judgement motion and a change of worker would have delayed the court action.

[125] Ms Atkins testified that Ms A.M. continued to be difficult to work with and pointed out that during a meeting at the Society offices in September 2014, Mr. Buikema asked Ms A.M. for her address and she refused to provide it.

[126] Ms Atkins agreed that it was Ms A.M. who asked for this meeting and that Ms A.M. was again asking for a new worker and wanted to talk about expanding her access. She agreed that the only reason the Society wanted Ms A.M.’s address was so that they could write to Ms A.M. to explain that her access was being reduced. She had no plans to attend and assess Ms A.M.’s residence for home visits. She testified that Ms A.M. was upset during the meeting because she was pregnant and did not want Ms Atkins to be the worker for her new baby. Ms A.M. did provide the Society with her new address on September 25, 2014, but Ms Atkins admitted during her evindence that as of the day she testified at trial, she has never taken any steps to arrange to view Ms A.M.’s residence.

[127] Ms A.M. completed a drug screen in May 2014 which was positive for both cocaine and marijuana. Ms Atkins testified that the purpose of the drug screen was to get a better idea of what was going on with Ms A.M. so the Society could direct her towards services. Yet Ms Atkins testified that she did not ask Ms A.M. to do any follow up drug testing. There is no evidence of any direction by the Society or any services offered by the Society. Ms A.M. completed another hair follicle test in November 2014 which was negative for cocaine and positive for only mild to moderate marijuana use.

[128] Ms A.M. filed a Plan of Care in September 2014. Ms Atkins admitted that she has never reviewed this plan with Ms A.M..

[129] Ms B.L. also filed an affidavit sworn September 30, 2014 detailing her plan to care for L if the Court decides that he cannot return to his mother’s care. The Society has never asked to meet with her to discuss this plan.

MS M’S ABILITY TO WORK WITH OTHER SOCIETY WORKERS

[130] There is no evidence that Ms A.M. was volatile or difficult with other Society workers during the past two years that L has been in care. Several Society workers testified that they have worked with Ms A.M. for several years without incident.

[131] Shannon Sturgeon, who was L’s children’s services worker from April 25, 2011 to August 2014 supervised many visits and testified that with the exception of one visit, all of the visits she supervised were positive, and she did not observe volatile or difficult behaviour by Ms A.M.. She said L was attached to his mother and enjoyed the visits. Ms Sturgeon testified that she attended meetings where discussions were being held to about restricting L’s contact with his mother. She says she did not advocate on L’s behalf for more time with his mother, but in retrospect she should have.

[132] Ms Lana Mulcaster has also supervised many access visits and says she has a good relationship with Ms A.M.. She says she is careful not to make critical comments during the visits because she does fear antagonizing Ms A.M.. She was present when Ms A.M. assaulted Ms Atkins and Ms Ross during the April 3, 2013 visit. She testified that prior to that visit she did tell Ms Atkins that she had supervised a community visit with Ms A.M. and that visit had been positive. She has seen Ms A.M. become frustrated with the boys’ behaviour during access and has heard Ms A.M. complain that she doesn’t have enough time with the boys to effectively parent them. Ms Mulcaster made a referral to the treatment foster care program because she was concerned about L’s aggressive behaviours which he exhibits during access, at school, and at the foster home.

[133] Ms Mulcaster testified that she believes there is a strong bond between L and Ms A.M.. She has been concerned about Ms A.M.’s frustration with the behaviour of both boys, but has noticed an improvement in Ms A.M.’s interactions with C. She says that Ms A.M. has been able to be more focused maintaining interactions with both boys during the visits and that Ms A.M. is a good advocate for her kids. Under cross examination Ms Mulcaster agreed that therapeutic access should have been offered to Ms A.M., and that at least part of L’s current trauma is the separation from his mother. She believes that the lack of reasonable access with his mother has really negatively impacted L and that he wants to go home.

[134] Ms Mulcaster supervised a home visit between Ms A.M. and both boys on January 2, 2015. She says she was with C in another room and she thinks she heard a “slap” sound and when she entered the room where Ms A.M. was giving L a time out she believes she saw Ms A.M. attempting to slap L. This happened in the middle of a three hour visit. She said that overall the visit was positive but both boys were exhibiting challenging behaviours. They were both “off” behaviourally that day. She observed several incidents during the visit when Ms A.M. was able to manage the boys’ behaviour appropriately. At one point L went into the bedroom and started throwing pillows and being defiant with Ms A.M. and Ms A.M. was calm and was able to be close with him and L was able to de-escalate and regulate on his own. Ms Mulcaster testified that the “attempt slap” incident was not enough to stop the access that day but she had to report that it happened. She said L was very aggressive at times during the visit and Ms A.M. who was in the later stages of her pregnancy and just days from delivering was very stressed. She had the CAS in her home, and the Crown Wardship trial was proceeding.

[135] Ms Mulcaster described her relationship with Ms A.M. as “fairly positive”. She said that Ms A.M. did agree to attend a meeting to problem solve how to better manage L’s behaviours but then she had the baby. Ms Mulcaster believes the Society needs to implement clinically managed access, and work with Ms A.M. on a parenting plan. She says the Society needs to help Ms A.M. identify her strengths and help her become more trusting. She believes that she and Ms A.M. have been able to work through the incident. She said that “we have been able to develop trust and I have an understanding of what her needs are.” It is truly unfortunate that none of the initiatives identified by Ms Mulcaster were ever implemented by the Society during the two years that the Society supervised all of Ms A.M.’s access with her children.

[136] Suzanne Carr is a family services worker and works primarily with C. She has worked with C for two years, since February 2013, except for a four month period between March and July 2013 when she was off with a broken foot. She has supervised access between A.M. and the children and has participated in some planning meetings. Ms Carr testified that she believes that she does have a good working relationship with A.M., and has always had a good relationship with her.

[137] Ms Carr spoke affectionately about C. She described C as very smart, and funny. She said he enjoys being with other kids, and is really good with his brother L. He is silly, witty, sensitive, and likes to tell jokes, a very well rounded little boy. He loves video games, likes his dog, likes his brothers, likes sports, went to summer camp. C and L have a typical sibling rivalry but they like seeing each other. L asks “am I seeing C today?, C asks “is L gonna be there?.’

[138] Ms Carr testified that Mr U has worked hard to take on a parental role, rather than a buddy role with C. She said that Mr U needs reminders re timelines, calenders, remembering things, including reminders around C’s access with his mother and L. She says that C has struggled in school with multiple school suspensions, but that C has been doing better in school since November, 2014, coinciding in time with the expansion of his access with his mother. She is aware that Mr U is a regular marijuana user and is on methadone. She sees that he receives his weekly methadone carries so she knows that he is compliant with the methadone program.

[139] Ms Carr testified that since the court ordered, mid trial, that access startback in A.M.’s home in November 2014, the visits are more positive. She says A.M.’s home is lovely, and child focused. She says that A.M. can be very calm and patient with the boys but still becomes frustrated with the boys behaviours, more often with L than C. She says A.M. and Mr U are talking more about C and A.M. has not said anything critical about Mr U during the visits. She thinks A.M. is really trying to support C’s relationship with his father. She says C looks forward to coming for the visits. She was present during a five hour Christmas visit ordered by the Court. The visit took place at Mrs. D.M.’s house. Both boys were hyper but it was a good visit with lots of family around.

[140] Ms Carr testified that A.M. cooks excellent meals for the boys, and plans activities that the children like. She is good at getting at eye level with the boys. She is loving and affectionate with the boys with lots of kisses and I love yous. She said she has no concern’s about C’s physical safety with his mom but worries that Mom makes negative comments about Mr U and Mr U makes negative comments about mom’s new boyfriend, J.D., and these comments cause C emotional harm. C asked his mom if the baby was going to live in a foster home like L, and when A.M. asked him “did your dad say that?”, C said “I’m not going to tell you it’s a secret”.

THE MID TRIAL APPREHENSION OF T

[141] T was born on […], 2015, a trial date in this matter. By that date, the court had already heard 7 days of evidence. At the start of the court day, counsel for Ms A.M. request an adjournment because Ms A.M. was in labour. Mr. Vandekleut also advised the court that his client was worried that the Society was going to apprehend the baby as soon as it was born. Counsel for the Society was asked if the Society had some new evidence or concern, not already before the court, that could justify the apprehension of Ms A.M.’s newborn baby at the hospital. The newly assigned worker, Kelly Lockwood, was present in court. She advised the court about the incident that occurred on January 2, 2015 during an access visit, when Ms Mulcaster suspected that Ms A.M. may have slapped or tried to slap L. Counsel was advised by the court, that the evidence of Ms A.M.’s parenting both prior to and after L’s apprehension, and the evidence about the possible slap, would not be sufficient to establish that an apprehension of the child was the least disruptive protection order necessary to protect the newborn. The court reminded counsel that by that point in the trial, there had been no evidence of Ms A.M. having ever been physically abusive or even using physical discipline towards her children, while the children were in her care, or during supervised visits. Counsel was directed to discuss and try to resolve the matter, so that an agreement could be reached and an apprehension avoided. The matter was stood down for about an hour for that purpose. Unfortunately when the court hearing reconvened Mr. Vandekleut appeared frustrated and advised the court that counsel had been unable to reach any agreement.

[142] Since there was no child born at that point, and no protection application for that child before the court, the matter was adjourned for two days, until Friday January 9, 2015. Several hours later Mr. Vandekleut contacted the trial co-ordinator and asked the court to schedule an emergency motion that afternoon because Ms A.M. had given birth, and the Society had apprehended the baby. The Society had removed the baby from Ms A.M.’s arms, placed the child in the nursery, and was requiring that Ms A.M. could only have contact with her child if a Society worker was present at the hospital with her. Later that day the Society relaxed that condition to allow Ms A.M. to have unsupervised contact with T as long as she stayed in the nursery with him. Ms A.M. spent the next 48 hours sitting in a rocking chair in the nursery so that she could be with her child.

[143] The court agreed to hear the matter at 2 p.m. that day and the trial co-ordinator notified counsel.

[144] The matter proceeded on submissions only since the Society had not yet started a protection application for T, and Mr. Vandekleut had not had time to prepare written materials. Ms A.M. was on speaker phone from the hospital and Mr. D was present in court. Ms Fagbenro advised the court that she didn’t know anything about the circumstances of T’s apprehension because she had been in the courthouse library working since her appearance before me in the morning. Ms Fagbenro was asked whether the Society had appeared before another judicial officer to obtain a warrant and she said she didn’t know. Ms Fagbenro told the court that she didn’t know anything about the apprehension and was not consulted before the apprehension took place. The Society was ordered to bring its protection application before the court on Friday January 9, 2015 at 9:30 a.m. No other order was made since there was no protection application before the court.

[145] The apprehension hearing proceeded on January 9, 2015 and there was no new evidence presented by the Society. In addition to the historical concerns presented by the Society during the trial including Ms A.M.’s inability to work with the Society; her failure to follow through with recommended services, and her marijuana use, the Society relied on the “suspected slap incident” as evidence of Ms A.M.’s ongoing emotional instability, the “icing on the cake”, leading to their decision to apprehend T. The Society advised the court that its plan was to place T with the paternal grandmother S.D. and the father, J.D.1, at S.D.’s residence. The Society’s position was that Ms A.M. would be able to see T for three hours each day, but only under the supervision of S.D. or J.D.1 There were several problems with this plan. One of the biggest problems was that Mr. D advised the court that neither he nor his mother had been told about this plan. Mr. D wasn’t even living with his mother and the Society worker had not even attended at S.D.’s residence. The Society’s plan to place T with Mr. D was also inconsistent with their position regarding Mr. D’s involvement in Ms A.M.’s plan for L’s return. Mr. D had moved out of his shared residence with Ms A.M. and was renting a room because he had been told by the Society that they would not approve a joint plan by him and Ms A.M. to care for L. And at that point the Society’s position was still that Mr. D could not even be present during Ms A.M.’s access with L and C.

[146] The court ruled that the Society did not have grounds to apprehend T without a warrant, and that the least disruptive placement in T’s best interests, was placement with his parents, subject to an interim supervision order.

[147] In the middle of a trial where one of the main issues has been the poor working relationship between the Society and Ms A.M., the Society proceeded with a warrantless apprehension after receiving direction from the Court that the Society did not have grounds to apprehend. There was no consultation or sharing of information between the lawyer and worker who were present in court and the supervisor who actually authorized the apprehension. Ms Lockwood explained that she left the court immediately to attend a funeral and didn’t have time to communicate with anyone at the Society offices about what had taken place in court. Ms Fagbenro told the court that she went directly from court to the courthouse library without informing anyone at the Society offices about what had taken place in court that morning; and no one from the Society contacted her to inform her about the apprehension. These explanations are not satisfactory and raise further concerns about the Society’s failure to fully investigate and assess its identified protection issues, and the reasonableness and good faith of the Society’s conduct. The Court requested that the apprehending worker Sue McDonald, and her supervisor, Shawn Lowe, file affidavits explaining their decision to apprehend; and the protection application involving T was adjourned to the next trial date to be spoken to.

[148] The next trial date was January 20, 2015. Ms Lockwood testified on that date. She advised the Court that she was no longer the assigned worker. She explained that she asked to be taken off the file, because her workload was too heavy. A new worker, Kristen McCoy, had been assigned and was present in court.

[149] Ms Lockwood described her short working relationship with Ms A.M.. She said that while she was working with Ms A.M. she found out that Ms A.M. was not following up with addictions or mental health counselling. I note however, that during this time Ms A.M. was attending the trial sometimes several days each week, and having access with L and C four days each week in her home. Ms Lockwood says Ms A.M. wasn’t cooperative because she wouldn’t sign a consent for her to obtain police occurance reports but there is evidence that Ms A.M. had already signed a consent for these reports and didn’t know the consent had expired.

[150] Ms Lockwood did concede that Ms A.M. was communicating with her and was receptive to her suggstions about how to manage L’s behaviours during access. She suggested that Ms A.M. not hold L or try to physically restrain him when he was acting up and Ms A.M. later sent her a text that said “ I heard what you say… I got it… and Ms Lockwood said she hasn’t seen her do it since. She told Ms A.M. and Mr. D that she wanted them to do relationship counselling and they both agreed they would. She observed many positive interactions between Ms A.M. and the children during visits. She described Ms A.M. as affectionate and positive during access and said she was always well prepared for the visits with snacks and activities planned for the children. She didn’t see any evidence of domestic conflict between Ms A.M. and Mr. D while she was on the file.

[151] Ms Lockwood testified that she asked both Ms A.M. and Mr. D to submit plans of care for their unborn child. Ms A.M. first told the Society workers that she was pregnant with T in July 2014 and testified that she had repeatedly asked Society workers to talk to her about planning for her unborn child. She wanted to plan for her child’s birth and she wanted to know what she had to do to ensure he was not taken from her. She wanted a new worker.

[152] Ms A.M. and Mr. D told Ms Lockwood they wanted to parent together but Ms Lockwood explained that she asked the parents to prepare their own plans and submit them to her because she wanted to “see their thought processes”. They submitted their handwritten plans of care on November 18, 2014. She did have a meeting with J.D.2 on November 19, 2014 and she felt that he was being straightforward and honest with her. She acknowledged that Ms A.M. was asking the Society for the Society’s plan for her unborn child, but Ms Lockwood never sat down with either parent to review their plans. She testified that after speaking with her supervisor she told the parents that the Society was waiting for a recent drug test to come back for Ms A.M.. The Society received the drug test results on December 18, 2014, which showed positive results for mild to moderate use of marijuana by Ms A.M., which was certainly no surprise to the Society. Even after receiving the drug test results Ms Lockwood didn’t meet with the parents to review their plans. At trial she agreed that she should have met with the parents to plan for the newborn.

[153] Ms Lockwood didn’t meet with the parents to investigate and assess their plans but she did attend a meeting at the Society office to discuss planning for the unborn child. On December 12, 2014 she attended a meeting with her supervisor, Shawn Lowe, and Dawn Atkins, and Dawn Atkins’ supervisor, Kathleen Sonnenberg. She testified that the purpose was to decide what to do with the unborn child The decision made at the meeting was that the child would be apprehended at birth. The birth alert was prepared and delivered to the local hospital on December 31, 2014,

[154] The Court was not informed about this meeting at the apprehension hearing on January 9, 2015. In her affidavit sworn January 9, 2015 Ms Lockwood does not even mention the meeting. Ms Lockwood did not tell the Court about the meeting until she testified on January 20, 2015, and was under cross examination.

[155] In his affidavit sworn January 16, 2015, Ms Lockwood’s supervisor, Shawn Lowe, explained the decision to apprehend Ms A.M.’s child at birth: “ On December 12, 2014 an internal service Conference was held to discuss the upcoming birth of A.M’s baby. It was determined at that Conference, based on our knowledge that Ms A.M.’s other children were removed from her care and one remains as an interim Society ward, based on evidence of a parenting capacity assessment by the family court clinic, and based on Ms A.M.’s past and continued substance abuse during pregnancy , that it would not be safe for the new baby to reside in Ms A.M.’s care after birth”.

[156] Mr. Lowe also explains his decision to instruct a child protection worker, Sue McDonald to attend at Belleville General Hospital to apprehend T at birth: “ I made a decision to instruct Ms A.M.cDonald to apprehend the child without a warrant pursuant to CFSA Section 40(7)(a)(b), as I believed that Ms A.M.’s past conduct was such that she could not provide adequate care for the child to ensure his safety. A delay to obtain a warrant could have also resulted in the loss of the meconium sample necessary for testing to ensure that the Society is aware of what prenatal drug exposure may have occurred”.

[157] But the Society already had a recent drug test result showing only mild to moderate use of marijuana by Ms A.M.; and that issue could have been discussed by counsel when they were in court just hours before T was born. It is likely that Mr. Vandekleut’s client would have agreed to provide the Society with the meconium sample to avoid the child’s apprehension. The court has heard nothing more about this sample so it is clear that no negative evidence was derived from it.

MS M’S RELATIONSHIP WITH J.D2

[158] In June of 2014 Ms A.M. entered a new relationship with J.D.2. He is the father of her third son, T born […], 2015, on a scheduled trial day in this proceeding. Ms A.M.’s relationship with Mr. D is not without problems.

[159] There is evidence of conflict between Ms A.M. and Mr. D, and this is concerning in light of Ms A.M.’s history of conflictual relationships and in particular her admission that Mr. M.D. was physically violent and abusive towards her.

[160] In August 2014, while they were living together at the home of J.D.’s mother, S.D., Ms A.M. called 911 and reported that Mr. D had stabbed her with a knife. When police attended to investigate she recanted and said that she just wanted Mr. D charged with mischief for breaking the side mirror on her car. Mr. D was not charged with any offence. At trial both Mr. D and Ms A.M. say there was no assault and no knife. The investigating officer, Officer Yuille, testified that he observed a scratch mark on Ms A.M.’s arm, and he believes that some type of altercation occurred between the couple. He made a referral to the CAS because A.M. was pregnant. Even if Ms A.M.’s version is accepted, I am concerned that she would make a false complaint against Mr. D.

[161] There was also evidence at trial that Mr. D and Ms A.M. had an argument in public in Belleville in September 2014. Ms A.M. was driving in her car and Mr. D was walking on the sidewalk. Ms A.M. was following him and yelling at him. Both Ms A.M. and Mr D admit that they had an argument and Mr D walked away. Ms A.M. was yelling at him telling him she didn’t want him to leave her. Ms A.M. was charged with breach of probation and driving without insurance. No domestic charges were laid.

[162] D.M. testified that when she testified in December 2014, she had met A.M.’s current partner, J.D.2, about 5 times. She said that he is polite and nice to Mrs. D.M. and her husband. He has offered to shovel their driveway. She is not aware of any conflict between J.D.2 and A.M.. She says J.D.2 is excited about having a child. He was working two jobs last summer and she went with A.M. once to his work site, to take him his lunch.

[163] There is evidence that recently, during a supervised access visit in Ms A.M.’s home after T’s birth, Mr. D arrived at the home, packed some things and left. There is no evidence that the couple argued in front of the children and the access visit continued. There is conflicting evidence about whether Mr. D returned to Ms A.M.’s apartment later that night. But the next day Ms A.M. failed to show up for court. She was supposed to testify. She testified that she was feeling anxious that day and didn’t think she could compose herself. She was worried about the court proceedings coming to an end and the prospect of losing L.

[164] Society workers have seen some marks on Ms A.M.’s face. She had a black eye recently. She has explained these injuries. She tripped on the stairs; she was cleaning out a closet and a box fell down and hit her face; she was in a single vehicle car accident, alone in the car and hit her head on the steering wheel. Both Ms A.M. and Mr D deny that there has been any physical violence between them. B.L., who has spent a great deal of time with the couple, also testified that she has never seen any indication that Mr. D has been physically abusive towards Ms A.M.. Ms B.L. reported her concerns about Mr. M.D. to the Society prior to L’s apprehension. I believe her when she says that she would not be supportive of her daughter’s relationship with Mr. D if she had any suspicion or belief that there was physical violence between them.

[165] Like Mr U, Mr. D has a criminal record that includes convictions for violent crimes, including a conviction for assault bodily harm in 2011. He was sentenced to 12 months in custody. He testified that he has had no criminal charges since his release from jail. He does not do drugs. He has stopped drinking because he was tired of getting into trouble and he realized that his problem was the drinking. He is working full time in a food processing plant. Both Mrs M. and Ms B.L. are supportive of Ms A.M.’s relationship with Mr. D.

[166] Ms A.M. and Mr. D admit that their relationship has been strained because of the ongoing court proceedings and the circumstances of T’s apprehension. They both say they are committed to each other and want to raise T together. They are willing to attend couples counselling. They are in the process of moving into a larger country residence, just north of the city, to accommodate their family.

[167] Ms A.M. has an outstanding breach of probation charge. The charge is for failing to report and it is still before the court. She faces the possibility of a short period in jail if she is convicted, but she says her probation officer Ms Vaughn has told her she will support her in court as long as she continues to “get her act together”.

DECISION

[168] When L was apprehended from Ms A.M.’s care, Ms A.M. was involved in an abusive relationship and there is evidence that her partner at the time, M.D., was physically violent with Ms A.M., spanked C and grabbed L by the arm. I am satisfied having heard the evidence that Society’s intervention was necessary to protect both C and L from Mr. M.D.. I am not satisfied that L’s apprehension was necessary. The Society could have asked for additional terms of supervision to ensure that Ms A.M. did not reside with Mr. M.D.. I am not satisfied that L’s prolonged interim Society wardship, well past the statutory guidelines and with limited and Society supervised access only to his mother, was the least disruptive placement in his best interests. And I am not satisfied that the Society’s insistence that Ms A.M. have only limited Society supervised access with C was the least disruptive protection order in C’s best interests.

[169] Section 2(2) of the Child and Family Services Act provides that Society workers must “ensure that children and parents have an opportunity, where appropriate, to be heard and represented when decisions affecting their interest are made” I find, on the basis of the evidence, that the Society workers failed to perform this duty. Society workers failed to thoroughly investigate the circumstances of Ms A.M. and L when they apprehended L at Ms T.S.’ residence, an investigation and assessment which could have avoided L’s apprehension entirely, and they failed to reassess their protection concerns after Ms A.M. ended her relationship with Mr. M.D.. The Society has an ongoing, positive obligation to continue its protection investigation until a final court determination has been made. Yet after the PCA was released in March 2014, the Society workers failed to continue to investigate and failed to continue to work with Ms A.M. to support her in her efforts to have L returned to her care. Ms Atkins testified that her relationship with Ms A.M. was “very strained” after she revoked home access in March 2014 and she could not identify any programs or services she offered to Ms A.M. after that time. She didn’t follow up with Ms A.M. her drug test results were received in May 2014. She didn’t ask to see Ms A.M.’s new residence. She just wanted her address so the Society could send her a letter denying her repeated requests for a new worker. The Society didn’t even tell Ms A.M. what she already suspected, that the Society had no plan to expand her access before trial, and was in fact considering restricting her access further.

[170] The apprehension of a child from the care of a parent is one of the most intrusive exercises of state power over the individual.

[171] Ms A.M. has experienced this intrusive state action twice and both apprehensions have been unreasonable. When L was apprehended the Society failed to undertake a thorough investigation and assessment of whether he was at imminent risk of harm, in his mother’s care, in Ms T.S.’ residence. When T was apprehended, the Society ignored direction from the Court that the evidence the Society was relying did not justify an apprehension.

[172] The Society failed to fulfill its positive and ongoing obligation to continue to ensure that L’s placement was the least disruptive placement able to meet his needs. The Society did not complete its kinship assessment of Ms B.L. and it did not even start a kinship assessment of D.M.. The Society did not even consider their offers to supervise D.M.’s access. The Society rejected the plans and offers of support from Ms B.L. and D.M. because these women, who had been closely involved in Ms A.M.’s life, and the life of her children, did not share the Society’s view that the children needed protection from their mother.

[173] The Society now says that it can’t work with Ms A.M. because she has not completed any programs and points to her lack of cooperation with the family support program in 2011, and her failure to follow through with Dr. Alsaidi’s recommendation that she attend the Chrysalis program in 2013. But the CAS withdrew its protection application in 2011 even though Ms A.M. didn’t complete the family support program; and the Society began increasing Ms A.M.’s access and moved her access into her home, in the fall of 2013 even though Ms A.M. did not attend the Chrysalis program. The home access ended, not because Ms A.M. wasn’t getting counselling, but because the Society suspected that she smoked marijuana during a visit.

[174] The newly assigned worker, Kristen McCoy, has had the unenviable and almost impossible task of developing a positive relationship with Ms A.M. and supervising Ms A.M.’s care of T, in the midst of a Crown Wardship trial. She has already met with resistance from Ms A.M. when she tried to offer direction regarding safe sleeping practices for T, including the removal of bumper pads from his crib. Ms McCoy found funding and arranged for Ms A.M. to have counselling sessions with a psychologist, Dr. Gowthorpe. Ms A.M. has agreed to this, but admitted during her testimony that she was initially suspicious that Ms McCoy may have been “trying to sabotage her”. She wanted to know if she could pick her own therapist. Ms A.M. questions, as does this court, why Ms McCoy was able to find funding for counselling, when Ms A.M. had asked previously for financial assistance so that she could attend counselling and was refused. Ms A.M. says she is still willing to work with the Society and agrees to a supervision order if L is returned to her care.

[175] I am concerned that L has been in foster care for almost two years. He has struggled in care and has been in three different homes. He was mistreated in one foster home. His current foster parents have difficulty managing his behaviours. Ms A.M. now has a new baby and I am concerned that it will be difficult for her to give L the time and attention he will need if he is returned to her care. She has been working with a new family support worker for the past few months. He comes to her home weekly and she finds his suggestions helpful. She says she knows both she and L will need a lot of support to help him readjust in her care. L remains closely bonded to his mother and the Society workers have observed Ms A.M. to have good parenting skills. Most of the supervised visits have been positive. There is clear evidence that L and C have a very close sibling relationship.

[176] L has already been found to be in need of protection and the parties consent to a finding that C is in need of protection. Where a child has been found in need of protection the court must make the least disruptive protection order that will protect the child in the future. Section 37(3) of the Child and Family Services Act sets out the factors that the court must take into account when determining the best interests of a child. I have considered all of the factors listed and in particular I have considered L’s close attachment to his mother, his brother, his maternal grandmother, and his paternal great grandmother, who have all maintained regular contact and close relationships with L throughout his time in care.

[177] I have also considered the relatively recent relationship between Ms A.M. and Mr. D and the evidence of conflict in that relationship. Ms A.M. and Mr. D are already dealing with the challenges of parenting a new born. Having L in their home full time will mean additional responsibilities and additional stress. They will need help from the Society and the support of their extended family, especially Ms B.L. and Mrs. D.M..

[178] The risk of emotional harm that L would suffer from being separated from his mother and his brother is much greater than the risk of harm to L if he is returned to his mother’s care, subject to a supervision order. Ms A.M. and Mr. D must work co-operatively with Ms McCoy. Ms A.M. and Mr. D must attend couples counselling and Ms A.M. must attend individual counselling with Julie Gowthorpe. The family support worker should continue to work with Ms A.M. to assist her in managing L’s behaviours.

[179] Therefore there shall be the following Final Order for L:

1. L continues to be a child in need of protection.

2. L shall be placed in the care of his mother, A.M, subject to the supervision of the Society, for six months, on conditions to be set out in a plan of care to be prepared in consultation with Ms A.M. and Mr. D, and filed with the court, on or before March 24, 2015 at 1 p.m.

3. Adjourned to March 24, 2015 a 1 p.m. for approval of the Plan of care.

[180] I find that a supervision order is also necessary for C, and both Mr U and Ms A.M. must be subject to the Society’s supervision, but Ms A.M.’s time with C does not have to be supervised. C was in the joint care of his parents before the Society started its protection application and he shall be returned to their joint care now, subject to the supervision of the Society. For the first three months, C will spend time with Ms A.M. during alternate weekends, from Friday after school until Monday morning. This will allow Ms A.M. to spend more one on one time with L. Once L has settled into Ms A.M.’s home, C shall be in Ms A.M.’s care every weekend. The weekend access should be from Friday after school until Monday morning. I will leave the timing of the exchanges in Ms McCoy’s discretion. If the distance between Ms A.M.’s new home and C’s school makes it too difficult for the exchanges to be at school then the access will be from Friday evening until Sunday evening. If C’s school attendance continues to be an issue this parenting schedule may have to be revisited. During the summer months, C can spend alternate weeks with each parent.

[181] C’s emotional safety will depend on both parents refraining from making any derogatory comments about the other parent. They must also ensure that other adults in C’s life do not make negative comments in C’s presence.

[182] Therefore there shall be a Final Order for C as follows:

1. C is found to be a child in need of protection.

2. C shall be place in the joint care of his parents, M.U. and A.M, in accordance with the parenting schedule described in paragraph 180 above, and subject to the Society’s supervision for a period of six months, pursuant to a Plan of Care to be developed by the Society in consultation with Mr U and Ms A.M. and to be filed with the court, on or before March 24, 2015 at 1 p.m.

[183] I invite written submissions from counsel, within 30 days, on the issue of costs.

[184] This matter is adjourned to March 24, 2015 at 1 p.m. for review of the Plans of Care for C and L.

Released: March 10, 2015

Signed: “Justice E. Deluzio”