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: 2015-10-16
Court File No.: Belleville, Ontario 455/09
BETWEEN:
Highland Shores Children's Aid Society,
Applicant,
— AND —
Ms. D.S. (Mother) and Mr. M.B. (Father of E.),
Respondents.
Before: Justice W. Malcolm
Heard on: May 1, 4, 5, 6 and 7, June 10 and 12, July 8, 9, 15, and 17, August 12, 13, 14, 17 and 27, 2015
Reasons for Judgment released on: October 16, 2015
Counsel:
- Linda Fagbenro — counsel for the applicant Society
- Elton Brant — counsel for the Mother
- Joyce Melbourne — counsel for the Father
- Sharon A. Leitch — counsel for the Office of the Children's Lawyer, legal representative for the child M.S.
Malcolm, J.:
Overview and Parties
[1] This is a child protection application commenced in December 2013 by the Highland Shores Children's Aid Society, hereinafter called the "Society", requesting that the children in question be placed in their care for a period of six months. The Application was amended in May 2014 to a request that the children be made wards of the Crown.
[2] The children involved are M.S., (or "M.") born […], 2009 and E.S.-B., (or "E.") born […], 2012. The Mother of both children is D.S. (or "the Mother"), born […], 1988, and the Father of E. is M.B. (or "the Father") born […], 1988. The Father of M. is unknown.
[3] The children were apprehended by the Society from the care of their parents on November 29, 2013 because of injuries to M. which resulted in criminal charges being laid against the Father by Belleville Police.
[4] A temporary care hearing was held on January 9, 2014. The children were ordered to remain in the care of the Society subject to supervised access for the Mother three times a week, and once a week for the Father. The children have remained in care since their apprehension.
Position of the Society
[5] The Society asks that the children be found in need of protection pursuant to sections 37(2)(a)(i) (physical harm); 37(2)(b)(i) (risk of physical harm) and 37(2)(g) (risk of emotional harm) of the Child and Family Services Act (R.S.O.1990, c.C.11, as am.) (The Act). Further it is requested that upon disposition the children be made wards of the Crown and placed with the Society with no access to the parents.
Position of the Mother
[6] The Mother asks that no protection finding be made, and the children be returned to her care or in the alternative that the children are returned to her, subject to Society supervision. Her mother (maternal grandmother) supports her plan.
Position of the Father
[7] The Father asks that no protection finding be made, and he seeks access to both children, and asks that E. be placed with him. His mother (paternal grandmother) supports his plan.
Position of M.'s Lawyer
[8] M.'s lawyer supports the position of the Society for Crown wardship with no access for purposes of adoption.
Brief History of Society Involvement with the Parents Prior to the Apprehension
[9] The Mother is now 27 years old. She is on a disability for cognitive limitations.
[10] She became a ward of the Society when she was 15 years when she disclosed that her step father, G.C., assaulted her. She subsequently recanted these allegations and left the care of the Society when she was 16 years old.
[11] In November 2005, when the Mother was 17 years old she had a son. He was apprehended from her care by the Frontenac Children's Aid Society shortly after his birth. She had a daughter born in […] 2006 who was also apprehended from her care. Both children were found to be in need of protection and were made wards of the Crown in 2009 and have been adopted. A section 54 assessment authored by Dr. Christopher Cooper, PhD, and Ms. Rose Wenglenski, MSW, of the Kingston Family Court Clinic dated November 28, 2007 was filed in these proceedings pursuant to section 50 of the Act.
[12] The Father was subject to child protection proceedings in Hastings County in 2006 with respect to a step son, H., then in 2007 a daughter, Ma. and in 2008 another daughter, Me. The children were found to be in need of protection and placed in the custody of the paternal grandparents in 2008. A section 54 assessment dated April 16, 2007 that was authored by Ms. Julie Gowthorpe MSW and Dr. Beckett PhD. was filed pursuant to section 50 of the Act.
[13] With respect to M., the Society has been involved since her birth. M. was apprehended from her Mother at the hospital, and returned to the care of her Mother 6 weeks later by the Court on the condition that she live with and be supervised by her grandmother. The concerns at that time were the Mother's cognitive functioning and her struggles to maintain a clean and safe home. In December 2010, M. was again apprehended because of unexplained bruising. She was returned to the care of her Mother in May 2011 pursuant to a supervision order. In December 2011, the supervision order involving M. was terminated.
[14] In 2012, the Society conducted an investigation as to allegations that the Father had inappropriately physically disciplined the children H. and Ma. This resulted in a direction from the Society that the Father's access with all of his children be supervised.
[15] The Father met the Mother in 2010 when M. was 9 months old and moved in with her in May 2012. Because the Society was concerned about the Father's drug use and inappropriate physical discipline with H. and Ma. his access to the Mother's child and E. was supervised.
[16] In August 2013, M. had a seizure and an ambulance was called to the parent's home. The society became involved after the paramedic and initial attending physician reported general neglect and bruising of the child.
[17] In October 2013, the Mother called the Society to report the concerning behaviours of her daughter, M. who was acting out in a sexual way. There was a Society investigation, but no disclosure of sexual abuse was made at the time.
[18] The parents who had struggled with illegal drug use in the past were found to have used Fentanyl in November 2013 while they were on the methadone program. The Society had been considering a termination of their voluntary supervision but did not withdraw because of the Fentanyl drug use and the report from the paramedic.
The Apprehension to the Start of Trial
[19] On November 29, 2013, M. went to school and her Educational Assistant (EA) noticed bruising on her neck and petechiae around her eyes. The child volunteered that her Dad had caused the marks by cuffing her on the bum and grabbing her around the neck.
[20] The Society was called and there was a subsequent investigation by the Society and the police. Both children were apprehended without a warrant and the Father was charged with assault causing bodily harm.
[21] The Society application for a six month Society wardship was amended in May 2014 to request that the children be made wards of the Crown. E. has been in care of the Society for 22 months, and cumulatively M. has been in care for 2 and half years.
[22] In June 2014, the Father's access was suspended by the court until after his criminal trial, which at the time was scheduled for July 17, 2014. Subsequently, the trial was adjourned to November 2014.
[23] The parties consented to an assessment pursuant to section 54 of the Child and Family Services Act, (R.S.O.1990, c.C.11 as am.) on August 7, 2014. The assessment was conducted by Dr. Jeremy Mills, a clinical psychologist and Ms. Cathie Shurie, a social worker. The assessment was completed on November 4, 2014, and filed in the Trial Record.
[24] On November 10, 2014, the Father pleaded guilty to assaulting M. in the Ontario Court of Justice before Justice G. Griffin. He was placed on probation for one year. At this trial he reasserted his innocence and considerable focus was placed on the question of whether he assaulted M.
[25] In January 2015, a settlement conference was held and 5 trial dates were set for May 2015. Subsequently 10 additional days were provided. Although in January 2014 permission was granted to the Society and the parents to bring motions for disclosure of police records, doctor's records, as well as other records, no one brought a motion until April 2015 after the pretrial conference.
[26] The late disclosure caused some of the subsequent delays in completing the trial in a timely fashion as the parties continued to receive disclosure during the course of the trial.
[27] All parties consented to a blended hearing on whether the children are in need of protection and the disposition and placement of the children. I did not consider evidence that went to the disposition in determining whether the children were in need of protection.
[28] The Society and the Children's Lawyer asks that I consider 25 out of Court statements (hearsay) made by M. to her educational assistant, Society workers, the police, emergency physician, foster parents and her counsellor, as to the truth of their contents. The society also asks that I consider videotaped statements made by M. to the police and a society worker. Six voir dire affidavits were filed in support of admitting out of court statements and the witnesses to whom the statements were made testified. All parties agreed that the child should not testify at this trial.
[29] On consent of all the parties, blended voir dire(s) were held as to the statements and I indicated that I would rule on the admissibility of the statements, and if admitted for what purpose, at the end of the trial. The parents did not contest that the statements were made by M., but objected to them being admitted for the truth of the statement.
[30] The evidence of the Society was presented in chief by affidavits. There were several affidavits from supervised access workers that were filed without the necessity of workers attending. These were the affidavits of Tina Waite, Leanne Piercy, Jennifer Kearns, and Patty Sweet. Dr. Ptolemy filed an affidavit as to interpretation of urine drug screens of the Father.
[31] The case for the Society consisted of the following witnesses who testified and provided affidavits:
- Society workers: Megan Walkom, Elizabeth Dall, Robert Hill, Sheri Colvin and Karin Kranenburg.
- Supervised access workers: Tahra Treverton, Laura Crowe and Julie Hoskins.
- The children's foster parents: S.D. and Ch.B.
- Physicians: Dr. Hadley of the Sunrise methadone program; Dr. Pincock, the emergency doctor at Quinte Healthcare Belleville General Hospital and Dr. Nolan the pediatrician at Hotel Dieu in Kingston.
- Dr. Gowthorpe, PhD., Social worker and therapist for M.
- Angela Rogers, Early Childhood Educator from Q[...] School
[32] Dr. Jeremy Mills and Cathy Shurie, the authors of the section 54 assessments, testified and their reports were filed.
[33] Detective Pat Keller of the Belleville Police Services testified and provided video statements of M. and the Father and an audio statement of the Mother.
[34] The Mother's evidence consisted of her mother, P.S., her sister J.S., and herself.
[35] The Father's evidence consisted of the paternal grandmother, C.B.; his sister A. B.; a Society worker, Dawn Atkins; and himself.
[36] On consent, voluminous case notes of the supervised access visits and numerous case notes from the Society and police occurrence reports were filed as business records. There were 118 exhibits. The parents or witnesses involved in the police occurrences testified with respect to many of these reports.
[37] Affidavits and drug test results of the parents' hair analysis were not admitted into evidence. This was the result of recent directions to Children's Aid Societies not to rely on them in light of the Mother Risk review of drug and alcohol analysis. However, the urine screens from the methadone clinic were admitted.
[38] The Father's documents brief included police occurrences reports; a letter from his current probation officer; case notes from Society worker, Ms. Walkom; numerous supervised access notes and a Society referral report. He also filed a flash drive containing videos of the methadone clinic showing the Mother and Father at the clinic at the same times, but not interacting with each other.
Issues
[39] The issues to be considered by the court are whether the children are in need of protection and what disposition is in their best interests.
[40] The Society submits that the children are in need of protection because of the physical harm that M. had suffered by being assaulted by her stepfather. Further that E. was at risk of physical harm because of her sister's injuries, the unexplained bruising on her cheek, the severe rash on her buttocks and back when she came into care.
[41] In addition, the Society submits that both children are at risk of emotional harm and physical harm due to: the conflict between the parents; the Mother's emotional detachment from the children; the history of general neglect of the children; and the Mother's cognitive delay which impacts on her ability to provide consistent care for her children without extensive support. The Society also submitted that the parents' ongoing use of marijuana while on the methadone program and their occasional use of opiates during the time they were on the methadone program could impact on their ability to care for the children. The Society asks that I consider evidence of the parents' past parenting, including consideration of the section 54 assessments concerning their older children and Society involvement prior to the apprehension.
[42] The Society asks that the children be made Crown wards with no access. There was no evidence as to their plans for the children or how terminating access would impact on the children or affect their ability to be adopted. At present they are placed in separate foster homes.
[43] The Mother and Father in their filed answers submit that the children are not in need of protection nor that supervision is required. However at trial the Mother indicated that she would consent to be supervised by the Society.
[44] Counsel for the Society and the Father provided written opening submissions and counsel for the parents, M. and the Society provided written closing statements which were very helpful.
EVIDENCE AT TRIAL
SOCIETY EVIDENCE
Angela Rogers, Educational Assistant with Q[...] School
[45] Ms. Angela Rogers was the educational assistant in M.'s kindergarten class at Q[...] School. It was she that called the Society concerning the bruises she saw on M. on December 29, 2013.
[46] She testified that M. came to school with her Father around 10:00 am. This was one hour after school began. The Father did not speak with Ms. Rogers. While she was standing behind her, Ms. Rogers noticed noted red and bruising marks on M.'s neck. When she looked directly at M. she noticed bruising on and under her chin, and fine petechiae dots around M.'s eyes. Later she noted bruising on her back and hip.
[47] She immediately took M. out to the class to a mirror in a private area and had her look at herself in the mirror. She pointed to M.'s bruises and asked "what do you see"?" M. volunteered that she had "owies" from being "cuffed" by her Dad. She said that her dad had taken her by the neck and cuffed her on the bum. Ms. Rogers in her testimony confirmed that the injuries were consistent with the photographs entered into evidence by the Society.
[48] After the disclosure was made to her, Ms. Rogers contacted the Society worker Ms. Walkom. She said she would have asked the Father about the injuries on M., but he had left after dropping of M. without talking to her, which was consistent with the parents' practice.
[49] Lateness and absenteeism was a consistent issue for M. and Ms. Rogers testified that M. was often unkempt with her hair not washed, in dirty clothing and not clean. She would have raised these issues with her Mother, but M. was not at school regularly enough. She testified that M. was quiet, but would participate when asked. She needed verbal reminders as to routine and expectations as it was her first year in school.
[50] Ms. Rogers handled the question of M.'s injuries in an exceptionally sensible and competent manner. She did not ask any leading questions of M., she simply pointed out the bruises to her and asked what she saw. M.'s statement is spontaneous, she has no time to think, she just reacts and says the injuries came at the hands (literally) of her dad. M. was in an area away from the other students when she made her disclosure. Ms. Rogers took notes about the incident shortly after M.'s disclosure and did not make any additions or deletions. Ms. Rogers believed M. I accept her evidence as to what she observed and heard. Although she testified that M. said she was picked up by the neck, when she refreshed her memory by looking at her notes she confirmed that M. had said she was grabbed. She was a very credible witness, fair and impartial. I accept her evidence.
MEDICAL EVIDENCE
Dr. Pincock - Emergency Department Family Physician
[51] On November 29, 2013, M. was taken by the Society worker, Meagan Walkom, and E. by Elizabeth Dall, to the Quinte Heath Care- Belleville Emergency Department.
[52] There, the girls were seen by a triage nurse and Dr. Pincock who was on duty that day. Dr. Pincock noted 4 distinct marks in a linear fashion on the front right side of M.'s neck. He also noted some abrasions on the left posterior part of her neck. There was also some bruising on her left lateral thigh and left flank and a few small bruises on her shins. In addition, she had petechiae haemorrhaging around both of her eyes. He described the petechiae as small areas of blood in the skin in the surface caused by lack of oxygen to the brain. He determined that it was likely that she had been strangled.
[53] Dr. Pincock asked the child what had caused the bruises and she spontaneously volunteered that her Father had grabbed her around the neck. He said that the statement was given without hesitation and he was aware of no coercion or manipulation of the child to obtain the statement. He found her explanation as to the cause of the bruising to be consistent with the injuries. He said that the injuries were concerning and the four lateral bruises appeared to be in the shape of finger prints. He also found M.to be reliable in answering other questions. He said that she was pleasant and cooperative and not upset. He said that he was able to understand her language. He believed what M. told him about the injuries.
[54] When Dr. Pincock was asked if the bruising and petechiae could have been caused by someone grabbing M.'s coat by the back and pulling her back to prevent her from falling down the stairs, he indicated that he was not sure how that could have caused the injuries because petechiae is generally caused by elevated venous pressure. As to the finger marks on her neck he indicated that light palpation would not likely cause that bruising.
[55] Dr. Pincock was cross-examined as to why M.'s neck had 4 lateral bruises on one side and abrasions on the other. It was suggested that M. could not have been strangled because her injuries would have been symmetrical. In response Dr. Pincock answered that that the abrasions on the left side could have been caused by fingernails, rings, zippers or collars.
[56] He also testified that having low blood platelets would not cause petechiae around the eyes. It may cause it in the lower extremities of the body. He confirmed that a seizure would be a consideration for petechiae, but there was no evidence that the child had a fever on her arrival. In his opinion, compression of the blood vessels in her neck is the more likely cause of the petechiae.
[57] He could not comment on how long M. was strangled to cause her injuries. He said it could have been seconds or minutes.
[58] As to E. he noted a small bruise on her right cheek and an extensive rash on her body and around her diaper area. He also noted what he thought were flecks of dirt in her ears. She had significant dry skin on her back and red spots and bumps. His impression was the rash was contact dermatitis or, diaper rash, a yeast infection or eczema. He could not comment on what likely caused the bruise on E.'s check.
[59] The evidence of the doctor was compelling and credible; he confirmed the injuries to M. and the likely cause. He also observed the extensive rash on E. and the bruise on her check. He gave his evidence in a fair, objective and impartial way.
Dr. Catherine Nolan
[60] Dr. Nolan testified by video link from Kitchener. She is a pediatrician who, at the time she examined the children, was working at the Hotel Dieu and KGH in Kingston through the Queen's University Medical School. Dr. Nolan assessed children when there was a suspicion of child physical or sexual abuse. Now Dr. Nolan works with Mc Master University in the child advocacy program.
[61] Counsel consented to Dr. Nolan's report of December 17, 2013 being entered into evidence and they also agreed that she is an expert in pediatrics and assessment of child abuse. I concurred. Her expertise is required, relevant and necessary to the issues to be decided. She is qualified, independent and impartial.
[62] On Dec. 17, 2013, Dr. Nolan saw both children. The children were with Tahra Treverton, the Society worker and their foster parents. The worker also brought her a disk with photographs of the children's injuries on it.
[63] She examined M. and noted a number of marks and bruises. She testified at length about the inexact science or art of determining the age of a bruise. She said there is not good research concerning the age of bruises and she could not determine how old the bruises were that she saw on M. She also testified that she could not determine that the four symmetrical bruises were finger prints.
[64] On cross examination, it was suggested that during a seizure in October 2013, M. fell and the bruises on her back were due to that fall. Dr. Nolan said that the bruise would have had to have been very deep to be still visible in December.
[65] She indicated that the bruising on the child's shins and knees was not concerning. What was concerning was the bruising in the buttock and neck area. These were areas where a child would not commonly have accidental bruising. The buttocks have fatty cushioning so the area is generally protected from bruising accidentally.
[66] The bruises on the neck were more concerning to her. They occurred on multiple planes. She said this would be suspicious in the absence of an explanation. She also testified that petechiae around the eyes could have been caused by a strangulation injury. She said that the blood would have had no place to drain out so it pools around the eyes.
[67] She was aware of the Father's explanation that he had pulled M.'s hood on her coat to prevent her from falling down stairs and then gently felt around her neck to check for injury.
[68] Because of the placement of the bruising she explained that the Father would have had to have pulled back, then to the side, and then to the other side of the child to cause the bruising to be on the three different planes. She described the child as being ricocheted. She said the injuries were consistent with M.'s disclosure of strangulation. In her report at Exhibit 72, she indicated at page 5, "the mechanism described by M.'s stepfather of pulling on the hood of M.'s coat as she was falling down the stairs does not sufficiently explain the extent of bruising over multiple planes around M.'s neck and collar bone." She did not interview M. She said that she is not trained to interview children.
[69] During her investigation she also spoke to the Mother on two occasions to obtain a family history to rule out abnormal bruising. The Mother had indicated that M. had excessive bruising. Because there was another child in the Mother's family with M.'s surname who had haemophilia, they wanted to check M. for the condition. Subsequently it was found that this child was not a blood relative of M., but related by marriage only. She referred M. to have blood work. There were some elevations in the results. Because of the concern, Dr. Silva, a specialist in haematology, was consulted.
[70] Dr. Silva prepared a report as to M.'s blood work and said that a blood disorder was extremely unlikely. Dr. Nolan agrees with this diagnosis. The report was filed without the necessity of the physician testifying.
[71] I am satisfied with the evidence of Dr. Nolan that the injuries suffered by M. were as a result of being choked, grabbed or strangled by her father and not by her coat hood being grabbed to prevent her from falling down the stairs. His explanation has no air of reality, in particular after hearing the testimony of the Father and the Mother.
[72] The evidence of Dr. Nolan was balanced and fair. She did not exaggerate or overstate her opinion. I found her to be impartial and objective. I accept her findings that M.'s injuries were not accidental.
POLICE INVESTIGATION
Det. Patrick Kellar of Belleville Police Service
[73] In the course of the investigation of the assault against M., the Belleville Police Services and the Society conducted a video interview of M. at the police station. A transcript was not provided as the charge did not proceed to trial because the Father pleaded guilty in November 2014. It was agreed that the video would be shown and entered as an exhibit.
[74] The video was approximately 20 minutes in length. It was recorded on December 3, 2013. M., Det. Kellar and Ms. Walkom are shown in the video. M. appears to be an attractive young girl. She quickly wanted to sit on Ms. Walkom's lap when Det. Kellar started asking her questions.
[75] She clearly said that her daddy had knocked her off her chair at breakfast and threw her and gave her a spanking. She said that she got a lot of spankings from her daddy. She also said that her daddy had grabbed her by her neck and she showed Ms. Walkom and Det. Kellar by grabbing her own neck with both hands.
[76] It was difficult to put into context everything that M. disclosed. She said that she had to clean up and she was hungry. She said that she didn't go to school. She said that her mommy was there, but E. was in bed. She said her mommy didn't do anything. She said that her Mother didn't spank her.
[77] The detective tried to test whether M. knew the difference between a truth and a lie by asking her if the colour of his shirt was purple or brown. It was clear to me that M. didn't know her colours and it was difficult for me observing the tape to tell what colour the Det.'s shirt was. So this line of questioning was not helpful.
[78] It was hard for M. to remain focused in the videotape. She was only 4 years old when interviewed. However, the statements made by her were made without coaching or coercion by Det. Kellar or Ms. Walkom. I saw no inducements made or leading questions asked. She appeared relatively relaxed and comfortable.
[79] She was describing what had happened to her within days of the event. If she had testified in this trial, she would be recalling what had happened to her two years ago. I find that the statement is necessary and reliable especially when considered with the medical evidence and the first disclosure to Ms. Rogers.
CHILD PROTECTION WORKERS
Ms. Meagan Walkom, Immediate Response Worker with the Society
[80] Ms. Walkom holds a degree in criminology and has worked in various positions at the Society over the last 9 years.
[81] Ms. Walkom started working with the family in August 2013 as a result of the report from Effram Ellenbogen, the paramedic who attended at the home as a result of the child having a febrile seizure. The paramedic was concerned about the state of the home, the child's hygiene, her high fever and extensive bruising. The initial examining physician, Dr. Bell, expressed concern that the bruising was not consistent with a seizure and falling. Subsequently, the child was seen by a pediatrician, Dr. Piteau who, although he had neglect concerns, indicated the bruising could plausibly be from the child playing and falling and not abuse.
[82] Because of the general neglect concerns, Ms. Walkom attended at the parents' home and met with the family and children. She noted that the home was dirty, cluttered, had a strong odour of cigarettes and smoke, with dirty laundry and garbage on the floor and in corners of the house.
[83] The Mother indicated that the parents were in the process of cleaning and the home and the smell was caused from the windows being closed while they were at the hospital with M. the previous day.
[84] The worker met with the family regularly from August to November 29th, 2013. The parents were cooperative with her and signed consents so she could speak with service providers with whom they were involved. The parents were both involved with the methadone program because of issues of drug abuse. The children had a family doctor, Dr. Maraj. They were also involved with the speech and language program and they used Family Space. M. had been referred to a pediatrician in Kingston to monitor her seizures.
[85] Ms. Walkom saw the children at home and she also saw M. at Q[...] School. When Ms. Walkom had a scheduled visit the home would be clean, but not so when she had an unannounced visit. By October 2013, Ms. Walkom was preparing to close her file, but there were subsequent concerns.
[86] In October 2013, the mother contacted the Society to report that there may be a report that her home was in a poor condition from someone with whom she had had conflict. The Mother also advised that M. was acting strangely in a sexual manner, "humping" teddy bears while she was naked and "fingering her vagina". An investigation occurred, the child was examined by the family doctor and Ms. Walkom interviewed M. but the suspected abuse was not verified. The suspected abuser at this time was the mother's cousin P.N.
[87] In November 19, 2013, the Mother called give her worker a "heads up" that her methadone doctor, Dr. Hadley would be reporting a "dirty" urine test and her methadone carries had been taken from her. The Mother told Ms. Walkom that she had Fentanyl in her system from a pain patch that she had and she had extra methadone in her system. She said that Dr. Hadley's testing was incorrect or she had not been drinking enough water to flush the drugs out of her system. She said that her ability to care for the children was not impaired while she was taking Fentanyl.
[88] On November 27th, 2013, Dr. Hadley contacted the Society to report the Fentanyl issue. He said that the mother denied using the drug but he was able to verify from the family doctor and pharmacy that she obtained the drug without disclosing that she was on the methadone program. Dr. Hadley described the drug as a dangerous and toxic opiate. During this time, the Father was also using Fentanyl. Ms. Walkom was concerned about the mother and father's use of the drug. I am concerned about the deception to her physicians.
[89] Then on November 29, 2013 Ms. Walkom received a call from Ms. Rogers, the Educational Assistant in M.'s class. Ms. Walkom attended the school to investigate. She was taking M. downstairs to the basement office of the school where previously she had interviewed M. before. Ms. Walkom in her affidavit and confirmed in her evidence at trial said "while going downstairs, M. stopped and turned to me and said, "I showed my teacher my owies", and touched her neck. I asked her how she got these owies and M. put her hands around her neck in a choking manner and told me "daddy did this" while shaking her head back and forth".
[90] Ms. Walkom told M. that she wanted to hear more about this and took her to a private office. In the office, M. repeated that her Father had choked her and added that he knocked her off a chair and told Ms. Walkom that this hurt and she was crying. Ms. Walkom noted the bruising that was also noted by Ms. Rogers and the doctors. Ms. Walkom testified that she was alone when she first interviewed the child. M. had previously talked about M.B. as her Father. She had talked about him in a positive way. Ms. Walkom had no reason to disbelieve M.
[91] She also observed that M. was in need of bathing and her hair was not brushed and her clothing appeared dirty.
[92] Assessing that M. and her sister were in immediate risk of harm from their parents, upon consultation with her supervisor, she apprehended M. No evidence was tendered as to why a warrant was not obtained but in the circumstances I find it was appropriate to apprehend for purposes of taking the child to the hospital. If the child had been returned to her home or the parents came to get her before the warrant was granted, it would not have been safe given the disclosures made by her.
[93] Ms. Walkom photographed the injuries on M. including the four lateral bruises on her neck, abrasions on her neck and bruises on her back, legs and arms. The bruise on E.'s face was also photographed. These photographs were filed as exhibits.
[94] While at the hospital later in the day, the Mother arrived. She was demanding to speak to a Society worker or doctor. She smelled strongly of marijuana smoke. She told Ms. Walkom that neither she nor the Father had hurt the children. She said that the marks were from M. falling. She denied physical discipline had occurred. The Mother said that she didn't believe what M. had disclosed. Neither of the children had asked for either of their parents while they were apprehended, during the transportation or medical examination
[95] Ms. Walkom described M. as a friendly, energetic, curious child. In her affidavit she indicated that she responded easily to strangers. She always spoke easily and openly with Ms. Walkom. M. had told Ms. Walkom details of her home life and activities before and Ms. Walkom believed what she had been told about the injuries. Ms. Walkom recorded the disclosures. M. appeared to her to be able to recall events accurately. There was no evidence that the child was coached or coerced. The statements about her father were quite freely made by M.
[96] Ms. Walkom was involved with the family after the apprehension and was involved with some of the supervised family visits after the children were in care.
[97] She was involved when there was an overnight visit in the Mother's home supervised by the maternal grandmother. This was scheduled for Dec. 23rd, 2013. Ms. Walkom made it clear that the Father was not allowed in the family home. It was a term of his criminal court release that he have no contact with the Mother and no contact with M. unless ordered by the court or approved by the Society.
[98] On Dec 27, 2013, Ms. Walkom went to the Mother's home with M. and the foster mother, S.D. The Mother was not ready for them, she said she didn't know she had a visit that day and needed time to clean up. While waiting outside the home, the foster Mother told her that M. had disclosed that the Father was present in the home for the Christmas visit. Ms. Walkom asked M. about this. M. appeared uncomfortable and said it was supposed to be a secret.
[99] Subsequently, the Belleville police received an anonymous tip that the Father had been at the Mother's home. Ms. Walkom and Detective Pat Kellar of the police did a joint investigation. The Mother denied that the Father had been at her home. Ms. Walkom, however, believed M. The Mother siad that the child had seen her Father on December 24, 2013 at the methadone clinic. The maternal grandmother was interviewed. She also denied that the Father had been at the home. The Father was not charged with a breach of his bail conditions; however, on December 24, 2015, the Father was found in his mother's home without his surety and he was charged with breaching his release conditions. Ms. Walkom could not interview the Father herself because one of his release conditions was to have no contact with her.
[100] From the courtroom the Father spoke out loudly and angrily that Ms. Walkom had asked for that condition. Ms. Walkom replied that she did not.
[101] Ms. Walkom was concerned that the Mother didn't believe M. about the cause of her physical injuries and she was coaching her to recant.
[102] The worker testified that although the parents' home was clean for announced visits when she had an unannounced visit the home would be dirty, with piles of garbage, a bad smell and very cluttered.
[103] Ms. Walkom was concerned about the Mother's ability to keep her children safe from harm. While she was supervising the family, Ms. Walkom was concerned about the Mother's drug use, the pattern of neglect, and the Mother's ability to meet the children's emotional needs. She was also concerned about the Father's ability to control his anger and his excessive discipline of the children. During the course of the trial the Father had to be warned several times about his angry outbursts.
[104] I found Ms. Walkom to be a fair and credible witness who was willing to work with the family and support them. I find that despite this support, the parents struggled and eventually failed to keep the children safe from harm.
Ms. Elizabeth Dall, Emergency Response Child Protection Worker
[105] Ms. Dall was the emergency response child protection worker with the Society on Friday November 29, 2013. She and Robert Burris, another child protection worker, attended to apprehend E. as a result of M.'s disclosure of her Father causing her injuries. In addition to her testimony, she swore an affidavit.
[106] The workers attended the Little Rascals day care where they spoke with the owner and a worker. Ms. Dall and Mr. Burris, then transported E. to the hospital for examination. Ms. Dall noted that E. was quite attached to her and had no issues in leaving with her despite the fact that she was a stranger to her.
[107] At the hospital Ms. Dall noted excessive amounts of dried dirt in E.'s ears. After E. was undressed she also noticed slight scratches over her entire body although they appeared focused in the area of her left thigh and upper shoulders. She also had dried blood in the inside of her nose. Her skin was extremely dry and flakey. She had a large brown and red coloured bruise on her right cheek at the corner of her mouth. Mr. Burris photographed the bruise.
[108] E. had a severe diaper rash and her vaginal area presented a vibrant red colour and irritation toward the back of her thighs outwards. The worker noted that E.'s clothing was filthy, with stains of brown and dark spots. It also had a strong smell of cigarette smoke.
[109] The workers then attended at the parents' home. The parents would not allow them entry, saying they were leaving to pick up their girls from school. The worker advised them of the apprehension of the children and the injury to M. Ms. Dall noted a very overwhelming and pungent smell of marijuana smoke. This odour did not cease during Ms. Dall's conversation with the Mother which occurred in the hall as she would not let the workers in the home.
[110] The Mother indicated that she had anticipated there would be concerns regarding the children's bruising specifically E.'s check as "her girls fall down often" but they were not being harmed. She said that any marks on M. would be caused by her shirt rubbing up against her skin and the dry weather.
[111] The Mother also said that she did not see any marks on M. in the morning and was not aware of any scratches on her neck. She said that M. had a seizure disorder and requires several medical appointments. She refused to hand over the heath cards for the children indicating that she "needed to protect her parental rights".
[112] The Father did not ask about what had happened to the children.
[113] Ms. Dall was a straight forward witness. Her observations were consistent with the testimony of the other witness who saw the girls on the day of their apprehension. I find her evidence credible and I accept it.
Sheri Colvin, Child Protection Worker
[114] Ms. Colvin is a child protection worker with the Society. She was involved with the case from January 13, 2014 to May 26, 2014. She was also the worker involved with the father's older children. The file was transferred to her from the immediate response worker Meagan Walkom. Ms. Colvin is an experienced child protection worker with a degree in sociology and a social service worker diploma from college. Ms. Colvin filed an affidavit and testified. A number of her case notes were also filed as business records.
[115] At this time of the file transfer, the Mother was having access in her home supervised by a supervised access worker.
[116] On January 14, 2014, Ms. Colvin received information from Ms. Walkom that because of a disclosure that the Mother was allowing a known sex offender, A.L., to reside in her home there would be no further access for the children in the Mother's home. This disclosure had come from A.L.'s probation officer who indicated A.L. gave the mother's address as his own.
[117] On January 20, 2014, Ms. Colvin referred the Mother to the Parenting for Success Program, a parenting program offered by the Society. On January 28, 2014, Ms. Colvin received information that the Mother's drug urine screens for her methadone program showed Fentanyl in her system. On Feb. 3, 2014, the Mother attended the Society office for a visit with her children. Ms. Colvin noticed a strong smell of marijuana on the Mother. On February 10, 2014, the worker had a discussion with the Mother about the protection concerns. The Mother accused Dr. Hadley of lying. She said she smelled of marijuana from being at someone else's home. She refused to talk further with the worker. Her next drug screen was negative for Fentanyl.
[118] On March 29, 2014, M. disclosed to her foster Mother that her grandfather, "Poppa", G.C., had touched her vagina. The worker conducted further investigation as a result of the disclosure.
[119] On April 4, 2014, she and Detective Lentini interviewed the Father at the police station concerning the disclosures that M. had made. When he heard about the allegations that "Poppa" had touched M. he said "poor, little girl". He didn't know who poppa might be. He said M. referred to his Father as grandpa. To his knowledge he said the Mother's stepfather, G.C., does not see the children.
[120] Ms. Colvin testified that the Father talked about P.N. who was suspected of touching M. in October 2013. The Father described him as "weird". She said when she interviewed him that day he was very sad and wanted to give up. She encouraged him not to give up hope because things can always change. She also apologized to him because at Court the previous week he was told that the Society was now asking for Crown wardship of the children. They had a very frank discussion. The Father said that he had changed since Ms. Colvin first met him when his older children were apprehended. She encouraged him not to give up.
[121] They also talked about any potential kin placements of the children. He wanted to have the children placed with his parents (his Father subsequently died). She talked to him about how realistic this would be given the ill health of his Father and the fact that his parents had three children under the age of 9 in their care. She asked him to consider other placements for the children.
[122] After Ms. Colvin and Detective Lentini had interviewed the Father, they decided to try to try to locate P.N. They attended at an address where he had lived, and were advised that he had moved to Bleeker Avenue (this is where the Mother lived)
[123] The same day (April 4, 2014), Ms. Colvin and Detective Lentini then decided to go to the Mother's home to see if she had more information on P.N. The Mother indicated that P.N. was her cousin and perhaps her Mother could provide his address or her aunt, whose surname she could not remember. It was either N. or S.
[124] At that time, coincidentally, A.L., was the Mother's home. The Mother said that he was a friend of her brother who was also in the home. A.L. was the same individual about whom that Ms. Walkom had received information in January 2014, and Ms. Colvin questioned the Mother about in February 2014. At that time the Mother denied he was in her home.
[125] The Mother was very defensive about A.L. being in her home. Neither the Mother nor A.L. seemed concerned that there were many children in the complex. A.L. left the home. The Mother said to Ms. Colvin that she had reported her to the police for saying that A.L. was living with her. Ms. Colvin reminded her that it was the probation worker who had made the initial report.
[126] On April 24, 2014, Ms. Colvin and Detective Lentini interviewed the Mother and took a sworn statement from her at the Belleville police station. This was after G.C. had been charged. The Mother said that M. refers to the Father's father and P.N. as Poppa. She denied that her step father would abuse children and that he had only seen M. twice in her life. However when her sister testified she said she had been abused by him as a child. She admitted that the Society told her G.C. couldn't be around children.
[127] But then spontaneously she said that approximately 2 years ago G.C. had taken M. to the store. She said she accompanied them. She then went on to say that G.C. lived with the family for a time. On one occasion he changed M.'s pull up training pants in the morning while she and the Father were busy attending to E.
[128] She went on to say to the worker and police officer that her Mother had picked up M. every evening and then returned her in the morning for day care so they wouldn't "have to worry about anyone getting touched". She admitted that G.C. had lived with them for 10 to 12 days.
[129] Ms. Colvin testified that the Mother didn't ask if M. was ok when she was told about the disclosure of inappropriate touching.
[130] During Ms. Colvin's involvement with the Mother, the Mother expressed her displeasure with Ms. Colvin, accusing her of not working with her and trying to take her children away from her. Ms. Colvin supervised about 9 visits between the Mother and the children while she was her worker.
[131] During one visit M. accidently hit her sister with a toy. M. began to cry and the Mother did nothing to comfort her. Instead she blamed M. During the visit M. repeatedly said, "Mommy, you're making me nervous".
[132] The worker noted that the Mother appeared to be more affectionate with E. than M. She also had to be warned about having adult conversations in front of the children such as issues of court or her access.
[133] Ms. Colvin heard the Mother at the end of a visit ask M. if the man waiting was her volunteer driver. When M. said yes, the Mother told the driver that M. is known to lie and other people don't know that, but she does (lie).
[134] Ms. Colvin noted that the Mother was consistent in her attendance and she seemed to genuinely attempt to implement parenting skills that she had learned in the Parenting for Success Program, such as singing to the children.
[135] Subsequently, the Mother filed a complaint against Ms. Colvin. She is unaware of the nature of the complaint other than she was alleged to have been "mean" to the Mother. She denied this or raising her voice with the Mother. The Mother met with her supervisor and the file was transferred to Mr. Hill. She said that she would have preferred to have kept working with the Mother.
[136] Ms. Colvin was the worker involved with the Father's older children who was apprehended from his care. She said that despite the Father's initial reluctance to work with her they were able to overcome this and work together.
[137] Ms. Colvin supervised 5 of the Father's visits with the children. She indicated that he was able to praise the children, show affection and he played with them on the floor. Although he tended to get distracted, he also easily became reengaged with the children. She did observe him to be sterner with M. than E.
[138] She was concerned that on one visit the Father told M. "you got your Mom in trouble for saying things". This was an interesting comment given it was he who was accused of assaulting M.
[139] I found that Ms. Colvin's evidence was credible. She had positive things to say about both parents. However, I share her concerns about the safety of the children in the parents' care. The Mother cannot keep M. safe if she is inclined to disbelieve her. Further, the Mother has put the children in potentially unsafe environment by exposing them to known sex offenders. The mother seems to lack the insight as to how her bad choices in associates can potentially impact on the safety of her children.
[140] Ms. Colvin continued to be involved in the case as against G.C. She said there was a meeting held with the Crown Attorney and a victim witness worker. The video of M. was played. M. said "I tricked you- he didn't touch me". As a result of this, the Crown withdrew the charges; however, Ms. Colvin still considered the disclosure made by M. to be verified. For the purposes of this trial I do not need to make findings as to whether M. was sexually abused by G.C. G.C. did not participate in this trial.
[141] I accept that M. has made disclosures about G.C. and P.N. touching her private parts and they go to her state of mind and as such are an exception to the hearsay rule. She believes she has been touched, that is enough to show risk of emotional harm.
Karin Kranenburg, Child Protection Worker
[142] Ms. Karin Kranenburg has been the children's services worker for children E. and M. since January 29, 2014. She has a Bachelor of Arts degree in native studies and a bachelor of social work. Ms. Kranenburg filed an affidavit and testified at the trial, and she referred to her case notes which were filed as business records.
[143] Ms. Kranenburg's evidence was that the children were initially placed in the foster home of Mr. and Mrs. D. M. initially did well in the D.'s home. She didn't present with any stranger anxiety and would easily approach strangers. She was a busy child, requiring a lot of attention and supervision.
[144] The foster Mother disclosed to Ms. Kranenburg that on March 29, 2014 M. made certain disclosures regarding her Poppa, G.C. On April 17, 2014, G.C. was charged with sexual assault and sexual exploitation of M.
[145] In June 2014, the Society brought a motion to suspend the Father's access to M. because of the impending criminal trial, M.'s behavioural issues and concerns that the Mother was speaking to the child about the child's disclosures. The Father's access was suspended and has not been reinstated. The criminal trial that had been scheduled for July was adjourned until November 2014.
[146] The Society provided a child youth worker to support M. in the home, but the foster parents eventually asked that M. be moved to a new home. On June 16, 2014, Ms. D. the foster Mother told the Society that they could no longer care for M.
[147] Because of M.'s behavioural issues and the possible impact on M. in view of the impending criminal court trials, on July 8th, 2014, she began play therapy with Dr. Julie Gowthorpe, a social worker to help address her emotion needs.
[148] In July 21, 2014, M. spontaneously said to Ms. Kranenburg and the foster Mother that "mommy has told me to tell the Court that I lied, that I lied about Daddy, but I didn't lie. Daddy choked me". This statement was not coached or coerced and there appeared to be no reason for M. to lie.
[149] M. spent time at the potential new foster home of Sc. and Ch.B. for relief time and pre-placement time. M. liked the new foster parents. She mentioned that she didn't want E. to come with her. M. asked if she could live in the new home. The decision to move M. away from her sister was not undertaken lightly by the Society or the foster Mother, Ms. D.
[150] On July 23, 2014, M. was moved to the home of her current foster parents, Mr. and Ms. B. At the end of August, the foster parents were reporting similar behaviour that Mr. and Ms. D. observed. A child and youth worker was implemented to provide extra support.
[151] In October 4, 2014, the foster parents reported that M. was experiencing night terrors and had problems getting ready for school in the morning.
[152] On October 27, 2014, Ms. Kranenburg testified that victim witness advised her that the Father would be pleading guilty to assaulting M. and M. would no longer be required to testify. On November 10, 2014, the Father pleaded guilty to assaulting M. and was placed on probation. He is not to have contact with M. unless there is written approval of the Society or a family court order.
[153] On December 1, 2014, M. attended at the courthouse to prepare for the trial of G.C. Following the appointment, she had a visit with her Mother. M. told her Mother at the visit "I tricked you. I tricked Poppa. He didn't touch my privates. He didn't".
[154] On Dec. 3, 2014, the Mother told Ms. Kranenburg that the charges against G.C. were being dropped because M. lied. This is in direct contrast to the Mother's testimony in July 2015 in this trial where she said that she would support her daughter and although she believes her daughter is confused she will stand by her. The Mother also testified that she didn't call her daughter a liar but that she lies.
[155] On Dec 4, 2014, Ms. Kranenburg received confirmation from Victim Witness that as a result of M.'s disclosure at the meeting on Dec. 1, 2014, the charges would be dropped as against G.C. However, on Dec. 5, 2014, the foster parent reported another disclosure from M. about G.C.
[156] She describes the Mother treating M. more harshly than E. during visits until the resolution of the Father's assault charge in November 2014. She described the Mother as not always being affectionate with the children.
[157] As to positive observation, she described the Mother as being very consistent with her access. She was having access three times a week. She testified that the Mother always brought snacks for the children.
[158] She described the Mother as trying to follow the direction of the Society in terms of showing physical affection to the children but she said that it was difficult for her. The Mother had told Ms. Kranenburg that she was not hugged or loved in that way when she was a child. Ms. Kranenburg is concerned that the Mother struggles with providing consistent care and following direction. She is not consistent with appropriate messages and emotionally connecting with the children. The Mother had problems with consistency in the discipline of the children. The worker had to give prompts and suggestions to her and she would be concerned about the Mother's ability to care for the children without supervision.
[159] Ms. Kranenburg testified that she was concerned that the Mother raised adult issues in front of the children. She described a visit where, during access, the Mother wanted to talk about Christmas access and accused Ms. Kranenburg of lying about what had happened at Court. She brought M. into the discussion. She told M. that she would be living with Mommy soon.
[160] She testified that the Father's access was initially consistent but then she didn't attend. He was always warm and affectionate with the children. There were some visits where he was distracted by his phone or reading books, but he came prepared for the visits.
[161] She describes M. as busy, very intuitive, and very hyper vigilant, sweet and eager to learn. She enjoys imaginative play, crafts, and playing outside. She doesn't have stranger anxiety. She is engaged and likes to play with anything related to the movie "Frozen." She likes to be outside.
[162] Despite M.'s challenges, Ms. Kranenburg's affidavit shows that M. has made considerable gains since coming into care. The school report when M. initially came into care was that M. could not count past two, could not recognize letters and could not sing a song to completion and she didn't know her shapes or colours. She does now. She is doing well academically but her caregivers and the school still struggle with her behaviours. She also described M. as being somewhat clumsy and prone to falling. She is more hesitant now around strangers, which is good.
[163] E. is described as doing well in her placement with no issues. She has been tested and shown to have some speech and language delays for which she is receiving assistance.
[164] I found the witness to be credible. She provided a balanced view of the Mother and Father although she is obviously concerned about safety of the children in the care of the parents.
Robert Hill
[165] Mr. Hill was the family services worker for the Mother and the Father since May 2014 when he joined the Society. He had been a Society worker in Cobourg previously and has considerable experience in mental health, domestic violence and risk assessment. This experience made him a good choice to provide support for the family.
[166] I was impressed with his balanced and "strength based" approach to the family, in particular the Mother. He was aware of all of the protection concerns of the Society and he knew that the position in May 2014 was that the children should be made wards of the Crown. Despite this, he encouraged the Mother to remember that there was considerable time before trial and she should make the best of the access because things could change.
[167] He supervised most of the visits that occurred at the Society office. Other workers supervised the visits that occurred at the Mother's home. The Mother had two visits per week. The Father had his once a week visit at the Society office.
[168] As to the Mother's cognitive limitations, he said that he has worked with individuals with these challenges. He said that everyone is unique and she has skills, she is alive and well and functioning. He said that she may not connect the dots as fast as someone else. He was very respectful of the Mother.
[169] He testified as to the Mother's seeming preoccupation with food, using it for rewards and then withholding it for bad behaviour. He said the visits tended to be centred on food. So Mr. Hill took the Mother to the Dollarama Store to have her pick out items that would encourage play and involve the girls. He said that she was trying to take his direction.
[170] From his initial supervision of the visits at the Society office until recently he has seen some improvements. He testified that when the Mother first exercised access, she seemed to favour E. She would not pay as much attention to and be more critical of M. He tried to work with the Mother to get her to see that she was treating the girls differently. He was also concerned about the Mother's lack of emotional response to M. He said this improved around November 2014 when the Father pleaded guilty to assaulting M.
[171] He noted the Mother was not that affectionate with the girls, but that seemed to be improving. He described her care of the children as adequate and she was reliable in attending the visits, but she is fairly rigid and doesn't pick up on the cues of the children.
[172] Around Christmas 2014, the Mother became angry with Mr. Hill about the Christmas access. She wanted an overnight visit in her home like the previous year. The Society did not agree. The Mother made a number of uncomplimentary comments about Mr. Hill and the Society and made a veiled threat that she couldn't wait to get him out in the community. Because of that threat, the Society had the next visit in the office instead of in the Mother's home. To Mr. Hill's credit his goal was to normalize the access as soon as possible, but he needed to assess the risk first.
[173] When he had to warn the Mother about not discussing adult issues in front of the children, she was not happy but she tried to comply. However, Mr. Hill was not able to follow the Mother to the bathroom with the children and M said to him "grandma is going to come and live with us" during one visit. He had to warn the Mother not to get M.'s hopes up. The mother told Mr. Hill that she just told M. that grandma would be part of the visits. Since the grandmother already attended some of the visits there would be no reason for the mother to tell M. this. I find that she was discussing adult issues in front of M. Mr. Hill also testified that the Mother would sometimes become preoccupied with texting or looking at her phone and not be focused on the children.
[174] Mr Hill testified that the Father's visits with E. go well. He noted that the Father is able to read E.'s cues and he is affectionate and appropriate with E. The Father's visits with M. were suspended on June 3rd, 2014 after the Society brought a motion. The Society was concerned that M. was being influenced by her Mother to recant her allegations that her Father had choked her. The visits have never been reinstated.
[175] The parties consented to an assessment pursuant to section 54 of the Act, and the assessor requested to see a visit between the Father and M. the Father was very angry with Mr. Hill because he had not had a visit with M. in months. Despite his concern, the visit went very well. Mr. Hill conceded that he should have arranged for a visit before the one that would be observed by the social work assessor.
[176] Mr. Hill is concerned about the Father's history of police occurrences and conflict. There are 77 occurrences from 1994 and 2014 in which the police attended where the Father was involved. Although the Father is the complainant in some of the police occurrences there is a pattern of calls regarding assaults, mischief, and domestic disputes. The Mother has been involved in 41 police occurrences and again there are several domestic disputes, mischief and family disputes.
[177] In review of the police occurrences, which were filed on consent of all of the parties as business records, there is a level of conflict and police involvement in this family that would not be conducive to a safe, nurturing conflict free environment for children. The police are even called to resolve family disputes such as debt payment or relationship conflict.
[178] Mr. Hill testified that the parents continue to use marijuana on a regular basis and the mother had Ritalin in her system in Feb. 2015. She told Mr. Hill that she had been given a marijuana cigarette laced with Ritalin from a friend.
[179] Mr. Hill testified that he had asked the parents about kinship options when the Section 54 was ordered in August 2014. The Father indicated that his parents or his sister should be considered. He later said he only wanted his parents to be considered. Mr Hill met with the grandparents and told them that he needed their decision as soon as possible so that the assessor could include then in the parenting capacity assessment. He had heard nothing from the grandparents so after a week he contacted them again and they said that they did not want to be considered as a kinship option.
[180] The Society had a permanency planning meeting in April 2015 and at that time the maternal grandmother indicated her willingness to be considered as a kin placement. When she testified she said she never put her name forward as a kin placement before because of her own child protection history.
[181] Despite the earlier reservations, Mr. Hill was assessing the maternal grandmother. She was attending some of the visits and she has indicated that she would move into the Mother's two bedroom apartment to help her care for the children. However, the grandmother lives in Madoc with an adult son. He described the maternal grandmother having health issues and mobility issues and his affidavit describes her needing some time to rest and catch her breath after entering the Mother's apartment.
[182] The paternal grandmother, who is now a widow now wants to be considered as a kinship placement for E. but this kinship option. This is complicated by an incident that occurred at her home on April 23, 2015. The police and Society were called to the home. Mr. Hill arrived at the home and spoke with the Father who told him that there had been an altercation between the paternal grandmother, the Mother, the Mother's sister, J.S., the maternal grandmother and him. He said that his mother accused the Mother of stealing 5 dollars. The Mother called her mother to come and pick her up. The maternal grandmother came with a small bat. He said that he disarmed her. The sister made threats. Then all three women left, but the Mother returned later to pick up her methadone carry which she had left behind.
[183] The father volunteered that he had been seeing the Mother "all along" and that he wanted to "come clean". Mr. Hill took this to mean that the parents had been seeing each other since the children came into care. The Father when he testified says he meant they had been together after November 2014. I interpret this to mean the parents were seeing each other since the apprehension. What other meaning can be given to the words "all along" and coming clean? After November 2014 there were no criminal restrictions on the parents being together.
[184] Mr. Hill talked to the paternal grandmother about whether she was going to file a plan of care. She said that she wanted nothing to do with the Mother's side of the family. Mr. Hill was concerned about this incident.
[185] Mr. Hill indicated that he has concerns about: the ability of the parents to care for the children; that the Mother did not believe that her daughter had been hurt by the Father; that the parents were seeing each other when they were prohibited; their continued marijuana use; the conflict in their family relationship; the Mother's limited engagement with the children. I, too, share his concerns. Mr. Hill was reasoned, fair and balanced. I found his evidence to be credible.
SUPERVISED ACCESS WORKERS
Ms. Julie Hoskins
[186] Ms. Julie Hoskins testified that she was a supervised access worker and supervised visits between the Mother and the children from December 2013 when the children first came into care until September 2014. These visits for the Mother occurred in the community at parks, splash pads and "Party Castle". For the majority of the visits the Mother attended alone, but there were visits attended by her Mother or one of her brothers, the paternal grandmother, C.B., and the Father's older children.
[187] She said that although she wasn't given a lot of direction from the Society as to the exact nature of her role she did provide advice to the Mother and tried to tell the Mother when she had done something positive during the visits.
[188] She described M. as a very busy girl. She was concerned that she was almost too affectionate. She said that E. is very cute and bright. She said that she looks at you with her eyes and you want to "give in" to her.
[189] I found Ms. Hoskins to be a fair and forthright witness. She was not prone to exaggeration or overstatement. She was quick to provide evidence that was positive for the Mother and when the evidence was not helpful to the Mother she was not judgmental. For example, she indicated that the Mother was always happy to see the children and attended consistently. She said that if direction or suggestions were given the Mother would sometimes listen and try to implement the advice. She testified that the Mother sometimes successfully gave time outs for the children when they were misbehaving. She testified that the Mother seemed to struggle with showing affection to the children, especially M. and the Mother's greeting to the children at the beginning of access often was not affectionate. However she was quick to add that the Mother is not "lovey dovey".
[190] There were some protection concerns that Ms. Hoskins noted during the visits. On two occasions she believed that the Mother was under the influence of a drug. During a visit to the Belleville Fair she noted that the Mother was not providing adequate supervision of M., instead spending more time talking to her friends. She also noted that the Mother would be preoccupied with her phone. The Mother had a "police radio" app and was monitoring police calls instead of engaging with the children. She once commented that the police were going on a drug raid. She also had "to feed" her virtual pet on her phone.
[191] Ms. Hoskins noted that M. was treated differently than E. When she talked to the Mother about her observations, the Mother indicated that she treated the children differently because E. was younger and seemed to ignore the advice. The Mother seemed preoccupied with food during the visits and when Ms. Hoskins talked to her about it she said that "they are my girls and I'm going to feed them when I want to".
[192] Ms. Hoskins testified that M. would go to anyone and it worried her. Ms. Hoskins also worried about the safety of the Mother. She said there were issues of safety where the mother was living. I find that Ms. Hoskins is a kind and caring person who was as concerned about the well-being of the Mother as she was for the children.
[193] She testified that she would be concerned about the safety of the children in the care of their Mother because the Mother did not support M. in her disclosures and she doesn't believe that M. can be kept safe. She also said that if the Mother had someone with her she might be able to care for the children. However she said that the Mother needs to take care of herself first.
[194] When she supervised a visit between the girls and their Father she noted that the visits went well. Once, M. lied about whether she had lunch before the visit. The father used it as a teaching moment. He told her that it's good to be nice to people and they will be nice to you. He also told her that "you shouldn't lie".
[195] When questioned about the visits being short and artificial her comment was that the system is not perfect. I find she did her best to make the visits as positive as possible for all concerned. I accept her evidence as very credible, helpful and an accurate reflection of what she observed and I share her concerns.
Teri-Ann McDonald
[196] Ms. Macdonald has supervised visits with the Mother and her children since January 2015. She appeared to have a very good relationship with the Mother. She testified that the Mother worked hard to get the visits in her home and that is where she supervised most of the visits.
[197] Ms. MacDonald in February 2015 arrived early to The Mother's home and saw someone who looked like the Father leaving. He was greeted by another person by his name (father's name). On another visit the same month when the paternal grandmother was present with her other 3 grandchildren, one of the children, Ma., gave the Mother a craft to give to her Daddy. (This was during a time that the parents denied spending time together.) There was an awkward silence and then the paternal grandmother told Ma. that her Father didn't live with the Mother. Subsequently the Father in his evidence confirmed that he had been seeing the Mother during this time.
[198] She said that the Mother confided in her that on April 23, 2015, there had been conflict at the home of the paternal grandmother, C.B. The Mother told her that she had been asked by C.B. to come to her home and help with the girls' hair and she stayed overnight. In the morning C.B. accused her of taking money. She said that the Father came out of a room and had a baseball bat and bear mace. She also said that he hit her mother's car and tried to spray her with bear mace. Ms. MacDonald told the Mother that she should consider how violent the Father can be. She was obviously concerned about the Mother and wanted to help her.
[199] At this time in the evidence the Father started commenting in an angry voice from the body of the courtroom, this confirmed again that he has a difficult time controlling his emotions and frustration.
[200] I found Ms. Macdonald to be a credible, thoughtful and balanced witness. It is clear that she cared for the Mother and children but was concerned about the safety of all of them too.
Laura Crowe, Supervised Access Worker
[201] Ms. Crowe is a supervised access worker who has supervised the Mother's access since January 2015. The visits are held in the Mother's home and in the park.
[202] She described positive visits between the children and her Mother. She described some concerns, in particular when the Mother appeared to be falling asleep during the access. She suggested that the Mother have different activities other than a movie and the Mother followed her suggestion. She described affection between the children and their Mother and she added that the Mother shows affection differently than constant hugs. She noticed that the Mother was not using physical affection and she told her about a pamphlet called "Choose to Hug'. On the next access visit the Mother did greet the children with hugs.
[203] She testified that the Mother rarely cancels a visit and she will follow her direction. The Mother was able to redirect M. when M. asked if she could have a sleep over at her Mother's home. She testified that the visits end well. She described M. giving her volunteer driver a hug when the visit ends.
[204] She describes the children are very active and rambunctious. She testified that the girls get along alright although sometimes they fight over a toy, or their Mother's attention.
[205] She describes some challenges that the Mother faced such as enforcing time outs with the children. She said the Mother will continue to banter with the children after she has given a time out. The worker has to remind her not to engage with them. She says that sometimes the Mother becomes frustrated with a craft or electronics. She says that the maternal grandmother is a help when she comes to a visit but she has physical limitations because of her health.
[206] I accept the workers' evidence as a truthful recollection of the Mother's supervised access.
EVIDENCE OF M.'S COUNSELLOR, DR. JULIE GOWTHORPE
[207] Dr. Gowthorpe was retained by the Society in July 2014. She testified that she was retained to assist M. in transitioning between the two foster homes. She understood that M. had difficulties in transitions, including going to school. She was also retained to help M. with her emotional regulation. Dr. Gowthorpe prepared two reports for the Society, dated December 10, 2014 and April 18, 2015, that were filed on consent of the parties and she testified at the trial. (Dr. Gowthorpe sees M. once or twice a month).
[208] Dr. Gowthorpe has a PhD in social work and is an experienced social worker. She has testified before in this court. I accepted that she could provide expert testimony concerning relationships and parenting issues. She also provided evidence about the effect on M. of having to testify at this trial. I found Dr. Gowthorpe to be a skilled, sensible and capable counsellor or play therapist for M.
[209] In her report of December 10, 2014, Dr. Gowthorpe indicated that M. was always excited and engaged in the therapy sessions. She said that initially M. had difficulty in using words to identify her feelings. Instead her response to stress and frustration was to find a physical release (throwing objects, slapping) Dr. Gowthorpe worked to help M. regulate her emotions by helping with self-soothing strategies (which the foster parents could utilize) and play therapy. Dr. Gowthorpe wrote that, "M. is in the process of building security through stability in the primary areas of her life (school, home). It is essential that uncertainties (where will I be living in the long-term) are not highlighted as things that she needs to worry about. M needs to be shielded from adult issues if she is to focus on childhood experiences that lend to healthy development."
[210] Dr. Gowthorpe wrote and testified that M. told her that her Mother had told her to tell Karin (Kranenburg) that she wanted to live with her Mother. However she told Dr. Gowthorpe that she wanted to live with her foster parents.
[211] In her testimony Dr. Gowthorpe indicated that M also told her that her Mother told her to say that she had told a lie (about the allegations concerning her Father). When asked how she felt about that she replied "that tips my bucket!" Apparently at school M. is learning how to deal with her emotions. She is taught that sometimes you are dealing with a lot of things, they go in your bucket, sometimes it's too much for you to handle and the bucket is tipped. Dr. Gowthorpe testified that M. loves her Mother very much and this statement in her opinion was not meant as a negative thing.
[212] In M.'s play therapy, which consists in part of drawing, it appeared that she believes that her grandmother lives with her Mother. She also believed that she is returning home to her Mother.
[213] When questioned in the voir dire about M.'s statements to her she confirmed that they discussed the difference between the truth and a lie. She also testified that in her opinion M was too young to testify and she was struggling with basic things at school and at home and testifying at Court could spill over to her life. She took notes about what M. told her.
[214] Even if the parents had not consented, I would find that it is necessary for me to consider M.'s statements to others without her testimony at trial. She has suffered because of the injuries, being removed from her family and not being believed by her Mother. I find that the statements given to Dr. Gowthorpe are reliable. The comment "that tips my bucket" gives the air of reality to the statements. That statement also goes to M.'s state of mind. She was upset that her Mother was suggesting that she had lied about her Father. M. has no reason to say negative things about her Mother. She loves her. Yet she says she wants to stay with her foster family and that she didn't lie about her Father. I accept the statements made to Dr. Gowthorpe as proof that the child made those statements to her and for the truth of the statements. These statements are relevant to the issues to be considered by the Court. I find the Mother was discussing the Court issues with M.
[215] When Dr. Gowthorpe wrote her therapy summary on April 18, 2015, it appeared that M. was more settled. M. was counting (numbers) to support her positive behaviour when she became frustrated at school. The foster parents, teachers and Dr. Gowthorpe all worked together to ensure that such positive behaviours are reinforced with "woo". Dr. Gowthorpe asked that the Mother be told about these strategies so she too could reinforce good behaviour. Dr. Gowthorpe wrote in her April report that "M.'s improved verbal skills have made communicating needs and feelings easier for her."… "she is relaxed in talking about her feelings which is supported by play".
[216] Dr. Gowthorpe testified that it is important for M. to have care givers who demonstrate the ability to self-regulate and manage difficult feelings. She needs this if she is going to be successful in self soothing. She also testified that where the child is presently living the foster mother is very relaxed. This is good for M. She said that M. needs a safe, secure and positive environment. Further, it would be difficult if M. is not able to be with her Mother but she did have a good transition to this foster home. Dr. Gowthorpe said she can provide support and therapy for M. so long as it is required.
[217] I was impressed with the evidence of Dr. Gowthorpe. She is a very strong support for M. Her evidence was credible, fair, balanced and compelling. I concur that both children require a safe, secure and positive home.
[218] She had prepared a section 54 assessment report concerning the Father in 2007 but she did not recall the report and did not testify as to it. I find that despite this report she is impartial and independent.
SECTION 54 ASSESSMENT
Evidence of Cathy Shurie
[219] Cathy Shurie is a social worker who was retained to conduct a section 54 assessment on the parents and children. Dr. Mills conducted the psychological testing of the parents. Dr. Mills and Ms. Shurie discussed his test results and observations prior to Ms. Shurie writing her report.
[220] Ms. Shurie's curriculum vitae and the report were filed with the court record. It was agreed and I found that she can provide opinion evidence as to parenting and capacity issues. She testified over the course of two days.
[221] She testified that after she received the consent section 54 endorsement from the court on August 7, 2014 she considered the reasons the assessment was requested namely, whether the parents can adequately parent the children? Specifically: Ongoing issues of conflict and aggression in the home; differential treatment of the two children and whether any attachment issues exist; and ability to provide a home environment that is clean and safe for the children.
[222] The child protection concerns were noted to be: ability to protect; ability to set proper boundaries and discipline correctly when required; ability to provide a clean safe nurturing home environment free of violence and aggression and ability to provide an environment free of illicit drugs, intoxicants, etc.
[223] Further recommendations were requested about: the ability of the parents to effectively parent the children in a consistent and nurturing manner and to meet the needs in a consistent manner; and the ability of the parents to consistently and effectively utilize conflict resolution.
[224] Ms. Shurie testified that prior to meeting the parents she reviewed the child protection file which included the supervised access notes, case notes of the workers involved, notes from the Frontenac Children's Aid Society involving the Mother's older children. She then met with the parents, observed an access visit with the parents and the children, met with or spoke to a number of collateral sources including the family doctor and the child protection worker. Because of the identified protection concerns of conflict and aggression she also obtained police occurrence reports that involved the parents.
[225] Ms. Shurie testified that it was her opinion that the parents could provide for the children financially and they can provide a clean and physically safe environment. However her concerns are about the emotional considerations of the children.
[226] In her report at page 13 (in the Trial Record) she indicates "their ability to provide an emotionally protective, effective and adequate parental relationship is not sufficient in terms of the best interests of the children. The parents have received intensive resource services in the home, which is how they both learn best. However, it is very difficult for both parents, especially the Mother, who is the primary caregiver, to understand the potential and actual unhealthy emotional conditions the children have been placed in. In terms of future parenting skills, which would be required to be utilized as the children grow, it would be extremely difficult for the Mother to anticipate and learn the skills."
[227] Ms. Shurie testified that she was concerned that the Mother did not support M. when she disclosed that the Father had assaulted her. Ms. Shurie testified that when a child discloses an allegation of abuse the parent needs to support and take seriously the allegation although not necessarily believe in the truthfulness of the allegation. She was concerned that the Mother was expressing to other people and in the presence of M. that M. was a liar.
[228] Ms. Shurie was vigorously cross-examined on whether the Mother with her cognitive limitations would be able to understand the subtleties of being able to emotionally support a child even if the allegation was disbelieved. I concur with the concerns of Ms. Shurie that the Mother was unable to be emotionally supportive of M.
[229] Again in cross-examination Ms. Shurie was asked to comment on the child recanting with respect to allegations that her step grandfather had sexually touched her. It was suggested to Ms. Shurie that the Mother was correct in assuming her child was liar because the child recanted. Instead, Ms. Shurie remained concerned that the Mother had not been emotionally supportive of the child when she made these disclosures. After hearing this evidence the Mother later testified that she now "supported" her daughter as to her allegations of abuse and she never said her daughter was a liar but that she lies. However this support had not been evident to the Society or the assessor prior to trial and I find she is just repeating what she heard the witnesses say.
[230] I concur with Ms. Shurie's concern that the Mother appears to be unable to be emotionally supportive of her daughter. I would be concerned about how she could keep her daughter safe in the future if she is going to have assumptions that her daughter is lying.
[231] Ms. Shurie testified that she was concerned about the conflict and aggression in the relationship of the parents. She was also concerned about the Mother minimizing the conflict. As an example, the Mother disclosed to her that there had been domestic violence in the relationship. She indicated that a woman in a store had reported violence between the Father and her. However she said that although the Father was charged with assaulting her it was dropped to a disturbance so "not really a charge".
[232] In cross-examination, Ms. Shurie was shown and questioned about police occurrence reports that dealt with this incident (Exhibits 45, 46, and 67). This incident occurred in December 8, 2011 at the Shopper's Drug Mart store according to the report of Officer McNevin. Three witnesses indicated a male (the Father) and female (the Mother) were having an argument at the store, pushing and shoving each other and then the male put both of his hands around the female's throat in a choking motion. The two parties were separated by witnesses at which time the male party began yelling. A charge of assault and public disturbance was laid. The Mother declined to make a formal statement, but told the Officer that she and the Father were play fighting and she did not wish her boyfriend charged nor did she wish the services of Victim Witness. I do not accept the hearsay evidence of the witnesses in the report as truth of the statements but for context.
[233] However having heard the evidence of all the witnesses, I agree with Ms. Shurie that the Mother was minimizing the aggression shown towards her by the Father at that time.
[234] Ms. Shurie was also concerned that the Father reported to have no conflict between the Mother and him. He told Ms. Shurie that they would argue sometimes but it would not get physical. He gave as an example that their arguments may involve words such as "shut your mouth!" but then added this did not occur very often.
[235] Ms. Shurie was again vigorously cross-examined as to why she would say "shut your mouth" was considered domestic violence. Ms. Shurie indicated that it was verbal aggression and if the children were present when it occurred, they could be emotionally affected. Later when the Father testified and confirmed that he had told the Mother to "shut up", he said it in a loud, aggressive manner. I find the manner in which he testified on this point causes me to agree with Ms. Shurie's opinion.
[236] Ms. Shurie testified that the Father told her he had no criminal record and showed her a CIPC showing no criminal convictions. However, during cross examination she was shown two probation orders showing that the Father had received terms of probation, once in 2010 for threats against a prior partner (the mother of his older children) and in 2012 for criminal mischief involving the Mother. After her report was completed in November 2014 the Father pleaded guilty to assaulting M. and was placed on probation.
[237] Ms. Shurie held a disclosure meeting with the parents separately. The Father was respectful of Ms. Shurie and seemed to understand her position. However, the Mother, although first sad, became upset and accused Ms. Shurie of saying things that Ms. Shurie denies saying. Ms. Shurie testified that the Mother cares for her children. A person who didn't care for their children would not have been as upset as the Mother was about the disclosure.
[238] Ms. Shurie testified that she is concerned about the risk of emotional harm if the children are returned to the parents and the parents remain together. She indicates that the conflict between the parents is concerning as well as the Father's difficulty in emotional self-regulation. She said that if the parents remain together they need to have counselling but because of the Mothers cognitive limitations "talking therapy" would not be recommended. Instead, "communication skills exercises" would be needed. She added that only so much can be shown in dealing with cases of domestic violence.
[239] She testified that there would be negative fallout from severing the child parent relationship. She indicated the children will require counselling such as the play therapy that M. is receiving with Dr. Gowthorpe; she said that with time the children will adjust. As to allowing the children access, a balance must be struck between allowing them to move on and maintaining a relationship with their family. Her hope would the children would be able to take away positive things from their access with the contact with their parents. She commented that "it's a judgment call for sure".
[240] Although she recommends that the children not be returned to either of the parents, she did not make a recommendation as to whether the children should be placed with family or become Crown wards. That decision she leaves to others to make. I found her testimony very fair, impartial, supported and balanced.
Dr. Jeremy Mills - Psychologist
[241] Dr. Mills was retained to provide a psychological assessment of the parents. Cathy Shurie provided him a review of the file history and he reviewed the Section 54 endorsement of the Court.
[242] Dr. Mills testified that he has conducted approximately 100 psychological assessments for purposes of section 54 assessments and has testified in court as an expert several times. All of the parties consented to the qualification of Dr. Mills as an expert in psychological assessment. His curriculum vitae and professional experience including his research and publications were reviewed in some detail. He professed no expertise in parenting capacity assessment. I found him an independent, impartial witness and qualified to provide an expert opinion in psychological assessments. His testimony was necessary to consider the parents' capacity.
[243] He met with the parents separately and conducted clinical interviews. A psychometrist, Ms. Goodchild, conducted the testing and Dr. Mills interpreted the test results.
[244] Because it was apparent that the parents had cognitive impairment, especially the Mother, the tests were read to the parents by Ms. Goodchild. Five psychological tests were administered, namely the: Wechsler Adult Intelligence Scale- Fourth edition (WAIS-IV); Personality Fundamental Academic Skills; Personality Assessment Inventory (PAI); Symptom Checklist-90-R; Parenting Stress Index (PSI).
[245] Dr. Mills testified that the Mother needed prompts to answer questions. He said she presented with cognitive impairment but no serious mental disorder.
[246] Dr. Mills testified that the Father required multiple prompts to answer questions, he appeared somewhat sullen and his body language, including hunched posture, poor eye contact and other body language suggested that he did not want to be interviewed.
[247] The Mother's intellectual functioning was assessed as very low according to the in the WAIS-IV (0.3 rd percentile; IQ =58) he testified that someone with this intelligence would have difficulty understanding verbal cues and may find it hard to acquire new information. Further, it would be difficult to apply information learned from one situation to another.
[248] The Father's intellectual functioning according to the WAIS-IV was in the borderline range (3rd percentile; IQ=72)
[249] These test results are comparable with the assessment conducted in the previous child protection applications dealing with the parent's older children.
[250] Dr. Mills testified that persons with low IQ's tend to be concrete thinkers and may have problems with their executive functioning, drawing from their environment and arriving at accurate conclusions. When questioned, he indicated it would not surprise him if the Mother found it difficult to follow instructions.
[251] With respect to both parents, there were inconsistencies in the answers given and his impression was he was not getting a "fulsome" understanding of their background.
[252] In the clinical interview, the Mother told Dr. Mills that she came into the care of the Society when she was a teenager because she disclosed to school officials that her step father had hit her, and later she returned home because she recanted. When Dr. Mills questioned her about this "she did not seem to have any sense of the gravity of making a false allegation of abuse" (page 3 of Dr. Mill's report).
[253] The Mother reported to Dr. Mills that she did well in Math at school yet it is clear that she struggled. She also said that she had not used drugs since her older children were apprehended from her care in Kingston yet she admitted to using marijuana. It is very clear that the Mother's cognitive abilities are limited from the clinical interview as well as the testing. There were inconsistencies in what she told Dr. Mills and the reality of her life.
[254] Both parents scored above the "normal" limits in the Parental Stress Index (PIS), with respect to M. The Father also scored above the normal limits with respect to E. Dr. Mills did not profess to interpret these results in the contest of the parents' parenting abilities. Dr. Mill's said that the results are given to the social worker to use in her assessment of parenting capacity.
[255] In his report, he indicated that the concern with high scores like those of the parents is that the parent child bond may be threatened because the parent does not have a good feeling about the child. These scores may also be indicative of a poor attachment or rejection. The results of the PIS testing of both parents were consistent with someone who is reporting an absence of emotional bonding with the children.
[256] Dr. Mills did testify that the PIS could change over time. I accept that at the time the Father was assessed he had not seen M. for some months.
[257] Dr. Mills testified that the results of the intelligence testing would not change over a person's life unless there was a change due to disease or injury. However the parent could acquire new skills over time.
I accept the evidence of Dr. Mills as to the cognitive functioning of the parents. I find that the parents, in particular the Mother, have difficulty in following instructions and applying information as to her children.
S.D., Foster Parent
[258] Ms. D. has been a foster parent for 5 years. She cared for M. and E. when they first came into care in November 2013. M. left her care in July 2014 and E. is still with her. The children see each other during visits and the foster parents are trying to have the girls see each other outside of visits too.
[259] Ms. D. swore a voir dire affidavit in addition to her oral testimony. I found her to be a credible witness. She is a kind and compassionate woman who cares very much for E. and M.
[260] She was present when both children were seen by Dr. Pincock at the Belleville hospital. She indicated that she heard M. tell the doctor that her Father had choked her. She said that M. repeated this story frequently to her.
[261] She indicated that when the children came into the care of the Society the children were very dirty and messy. M. had considerable bruising and E. had a bruise on her check.
[262] She said that E. looked very frail when she came into care. She said that she had the worst case of diaper rash that she had ever seen. She said that it went to her shoulders and she had scratch marks on her body. Ms. D. testified that E. would stay hugging her for quite a while. She said that for several months when she put her down for a nap she would be very quiet. When she would go later to check on her she'd be lying there looking up and not making a sound.
[263] She said when M. first came to her home she was behind in school, but by the time she left; she recognized her colours, 10 letters and could count to 14 although she would miss 4 and she could print her name.
[264] She described M. as smart, sweet, playing well with the children in the home. She was very aware of her surroundings, but had a hard time focusing. She was spontaneous and was not always aware of safety issues. She transitioned well into their home she was described as being busy from the first. She didn't talk much about her parents but talked more about her Father. Said that he walked her to school and made her hotdogs.
[265] At first M. didn't want to go on visits with her parents. Ms. D. found this odd because she had never had any other foster children who didn't want to go to visits. Eventually she asked to have a volunteer driver to ease with the transitions because M. would be upset before going and after a visit with her parents. The transition after the volunteer driver seemed to help. E. on the other hand seems happy to visit her parents.
[266] Ms. D. testified that, on March 29, 2014, when M. was being bathed she put her finger in her private parts. Ms. D. told her that she shouldn't do that when people are around and M. spontaneously said that her Poppa had touched her private parts. At dinner on April 1, 2014, she repeated that Poppa had hurt her private area. I accept this statement by M. to show that she made it and it goes to her state of mind.
[267] Later on May 1, 2014, she told Ms. D. that her Mother had told her a secret and it was that her Poppa was in jail. (G.C. was in jail at this time)
[268] On January 23, 2014 after a visit with her Mother M. said that she could go home because her daddy wasn't there and he wouldn't hurt her. She also told her that mommy said that daddy didn't choke her.
[269] On July 18, 2014 while Ms. D. was driving, M. told her that that her mommy told her that she would need to tell her daddy that she had had lied. But she said that her daddy did choke her. Ms. D. told her that she didn't lie then.
[270] Ms. D. described the problems that M. was having with emotional regulation. She had severe temper tantrums that were worse if Ms. D. gave attention to E. or her 3 biological children. Ms. D. had to spend considerable time in calming M., helping her with deep breathing. Eventually, M. received counselling from Dr. Gowthorpe. Ms. D. testified that her family and the other children were not getting enough attention because she was spending so much time and attention on M. She said that it was the hardest thing that she has done, but she told the Society that she could no longer care for M. During her testimony she was very emotional in describing this decision. I accept her evidence that she did not undertake this decision lightly. She was surprised that the Society did not move E. to be with M. but she was happy to have her remain with her.
[271] Ms. D. said that when M. was questioned about anything she would become anxious like she was in trouble. I find that it would have been very difficult for M. to have testified at this or the criminal trial.
[272] I consider the statements made on January 23 and July 18, 2014 as truth that the mother tried to have M. recant. M. spontaneously made these statements. She had no reason to lie about her Mother. She obviously loves her Mother. The statements are ultimately reliable when I consider the trial evidence as a whole.
[273] Around April 2014, after G.C. was charged with sexual assault and sexual exploitation, the foster parents noted that M. was having tantrums, kicking and screaming on the floor, kicking, throwing items.
[274] In May 2014, M. told her that at her access visit with the Mother, her Mother had said some things to her. Subsequently, M. didn't want to go on a visit with her Mother. This was relayed to Ms. Kranenburg.
[275] Ms. D. said M. stayed in her care longer because it was thought that the criminal trial of M.'s Father would have taken place in July 2014, but it was postponed. So M. went to her new foster home at the end of July after transitional visits.
[276] On July 18, 2014, M. asked her if she could live at Ch.B.l's home (the new foster Mother). She also said the E. should stay with her (Ms. D.) because she was safe. I accept these statements as going to M.'s state of mind.
[277] She testified that E. has adjusted well to M. being moved although she is attached to M. I found that Ms. D.'s evidence was credible and I accept it.
Ch.B., Foster Parent of M.
[278] Ms. B. and her husband, Sc., have been M.'s foster parents since July 2014. Prior to that time, she provided relief care for M. and E. Ms. B. provided a voir dire affidavit concerning statements made to her by M. and testified.
[279] Ms. B. testified that M. calls her "Grandma". It is less confusing for her because she knows her Mother. She describes M. as very sweet little girl. She likes to play and enjoy life, but can get very upset when things don't go her way. She can have temper tantrums that last for a considerable time. She has these at home and school. M. is learning to control her emotions better and she has play therapy to help.
[280] M. does sometimes suffer from night terrors but she has no memory of yelling out the next day. Ms. B. believes M. is just processing things at night. She is growing physically and emotionally. M. is clumsy and can fall up to 10 times a day. She does suffer from some bruising as a result of her falls. M. can be comfortable with strangers but sometimes she is not and hides behind Ms. B.
[281] While M. has been living with Ms. B., M. has made a number of disclosures to her. For example she has said that "I can't live with my Dad, he wasn't nice."
[282] But then in August 30, 2014, M. said that she is going to lie about what daddy did so she could go back and live with her parents. She said that her Mother had told her to lie about her Dad.
[283] In October 23, 2014, she told Ms. B. that she was going to say that she was sorry about what she said about her dad and that she lied. Ms. B. said that these statements were made spontaneously and not as a result of any questioning.
[284] I find that M. did make the statements to Ms. B. She loves her parents very much, and she has no reason to lie about what they had said or done to her. There is independent evidence about the Mother talking to M. about Court proceedings.
[285] Ms. B. was present when M. was at the courthouse on December 1, 2014 being prepared to testify in the trial involving her step grandfather. She described M. as being very distracted with all the toys and books and the number of people that were in the room. The Crown, Detective Lentini and Ms. Colvin were there. While M. was watching the video tape of her statement she said she tricked them about her poppa. At this time the Crown Attorney turned off the video. Subsequently, the charges were withdrawn.
[286] However, 4 days later on December 5, 2014 M. told Ms. B. that her grandfather did touch her privates but she didn't want to get into trouble at the courthouse when she met with everyone.
[287] As to M.'s statements to her about G.C., I accept that the statements were made and that they go to her state of mind. I do not make a finding whether the statements are true as to the allegations against G.C. It is not necessary for me to make those findings in this proceeding and it is not relevant, further G.C. was not called to testify.
[288] I was impressed with Ms. B. She is a loving caring foster mother who appears to be providing an emotionally supportive home for M. I accept her evidence as credible and fair.
ADDICTIONS TREATMENT FOR THE PARENTS
Dr. Brian Hadley of Sunrise Clinic
[289] The history provided during the trial was that both parents struggled with addictions. The Mother's drug use began when she was pregnant with E. She was prescribed fentanyl patches for back pain and became addicted. She entered the methadone program with Dr. Brian Hadley at Sunrise Clinic since November 2011. The Father became addicted to street drugs, morphine among other drugs. He went to a residential treatment program. In addition, he has been on the methadone program through the Sunrise Clinic since July 2013.
[290] Dr. Hadley testified and swore an affidavit that was filed. His reports on the blood work concerning both parents were filed. Although not a board specialist on addiction, he is knowledgeable in addiction medicine. The parents wanted Dr. Hadley to testify although he had filed an affidavit. He was called by the society. He testified as to his interactions with the parents and their drug testing.
[291] Dr. Hadley testified that the tests given in his clinic test for the five most common drugs of abuse namely: Benzodiazepines; Cocaine; Methadone metabolite; Opiates such as morphine, heroin, codeine, Dilaudid; and Oxycodone, Percocet and Oxycontin.
[292] The Mother and Father are generally doing well in that they are reducing their use of methadone, but they have had some relapses. The most serious for the Mother was the use of Fentanyl, which according to Dr. Hadley is a dangerous and toxic opiate. It is serious for abuse and is used as a street drug. Dr. Hadley said the use of the drug together with methadone could, depending on the amount taken, severely impact someone's ability to care for a child. He reported the Mother's drug use to the Society in the fall of 2013.
[293] The Father also during this time had Fentanyl in his blood work. Dr. Hadley confronted the Mother about taking Fentanyl and she denied using it, but he was able to confirm with the family doctor and the pharmacy that it had been prescribed to her unknown to Dr. Hadley. The family doctor didn't know about the Mother's use of methadone at the time.
[294] The parents have had a few relapses in drug use.
[295] Dr. Hadley testified that the parents now come in twice a week and in this fashion the methadone clinic would be able to detect whether the patients are using drugs of abuse given how long the drugs stay in their system. He suggested to the patients that they attend twice a week to show the Society that they are not abusing drugs. He commented that at this time most of his patients would be seeing him once a week.
[296] He testified that the parents continue to use marijuana as evidenced by their drug screens. He is opposed to the use of marijuana but in terms of the treatment goals for the parents they are meeting them. He testified that most of his patients have relapses but he is dealing with a skewed population and different culture and what applies to them doesn't apply to the general population.
[297] He said the patients don't miss their appointments and the relapses have been infrequent but worrisome.
[298] In his affidavit he indicated that he could not comment on the parents' ability to care for their children.
[299] The evidence was helpful to show that the parents are reducing their use of opiates. However it is concerning that they continue to use marijuana and continue to have relapses. It is also concerning that the mother lied to Dr. hadley about her use of Fentanyl.
PARENTS' EVIDENCE
Evidence of M.B., "The Father", and D.S., "The Mother"
M.'s Injuries
[300] The trial evidence focused heavily on the injuries to M. and the cause of the injuries. Counsel for the parents, Society, and the OCL asked that I watch the videotaped statement of the Father and listen to the audio taped statements of the Mother conducted at the Belleville Police Services. I did view and listen to the statements in court.
[301] At trial I heard evidence of the numerous statements, sometimes inconsistent with each other, made by the parents to police and Society workers. The parents also testified.
[302] The evidence of the parents as to how M. received her injuries, although similar in some ways, differs in many important ways. The Mother testified on July 15, 2015 and Father testified in August 2015.
[303] The mother testified that on the day M. suffered her injuries she was downstairs in their home and the Father was upstairs. He called M. upstairs but then sent her downstairs, at which time, she fell and he grabbed her by the hood of her coat.
[304] The Mother in her evidence in chief said that she said nothing when M. fell yet when cross examined she said that she yelled at the Father "look out M is going to fall". She said that M. was crying and said that her throat or neck hurt, but there were no marks on M. other than red mosquito marks on her neck. When she left the house, she said M. had no marks. She testified that she saw the entire incident. She said that this occurred in the morning as they were getting ready to go out for an appointment. She said that after M. hurt herself, they all got in the car and the Father drove her to a specialist appointment .She said that then M. was taken to school. She and the Father went back home and called a cab to take her to E.'s school. She said that she called the cab because the cab was paid for. The story was very convoluted and not believable.
[305] The Mother, in her statement to Det. Keller on December 3, 2013, said that after M. fell the Father asked M. if she was alright. She said M. just cried a bit, didn't say anything but was playing right after fall. She said there were no marks around M.'s neck.
[306] The father testified that the incident happened after school not before school. He said the mother asked him to clean the kitty litter before he took M. to the park. He said that he asked M. to bring up the dust pan and broom and she fell going up not down and he grabbed her by the hood. The mother was upstairs and could see everything. She did not get angry with him about what had happened, but told him that if M. wasn't feeling better they would take her to the hospital. M. did lots of fun things that night: eating supper and playing with friends, so they did not take her to the hospital. Nor did she go to school the next day because the maternal grandmother was coming and she had appointments. There were no marks on the child. Then shockingly, in cross-examination he admitted the Mother was downstairs and would not have seen what happened to M. His evidence was not believable.
[307] In the Father's recorded statement at the Belleville Police Station on December 3, 2014 to Det. Kellar there were other differences from his testimony. He said he knocked over the kitty litter not as he testified that he was asked to clean it up by the mother. He said M. started to fall going down the stairs, not going up the stairs. He said that the Mother was yelling at him and giving him "shit" after the incident and said, "Why didn't you grab her different way?" in contrast to him testifying that the mother saying nothing. He also told Detective Keller that M. said "ow" and he put her on the stool and checked for injuries and he said that he noticed that her neck was red, in contrast to his testimony that the child was fine and having no marks.
[308] The Children's Aid Society worker, Ms. Dall told the parents on November 29, 2013 what M. had alleged and the extent of her injuries. At that time, the Mother said she had no idea about how the injuries would have occurred and suggested that the marks around M.'s neck were from irritation from her clothing. The bruising on E. was from falling. Later that day when she spoke with Ms. Walkom at the hospital she said that the injuries on M. were from falling and were accidental and she didn't believe her daughter's disclosures.
[309] By the Monday when the Father was arrested, and the parents interviewed by police they both described similar stories that M. had suffered her injuries as a result of a near fall and her father rescuing her by grabbing her hood or neck of her coat. Surely if there had been such a traumatic experience the parents would have recalled it immediately and told Ms. Dall or Walkom of it.
[310] The Father further testified that on the Monday before M. was injured, he was on stool reaching into the junk drawer, and the stool toppled and he fell on top of M. This is the very first time that this incident has been disclosed. I don't believe this evidence. Given the extensive bruising on M. and the trauma of having a stool and father fall on you, this would have been disclosed by the father earlier.
[311] The Father testified that when he was charged, he wanted to have a criminal trial to see what the evidence was. This was an odd statement. He said he got a second opinion from an expert who didn't disagree with Dr. Nolan but said there was more to the story. He decided to take the plea agreement offered by the Crown. He said that a 5 year old shouldn't be testifying in Court, she should be having fun.
[312] However for one year, the Father was prepared to have his daughter testify in Court. It strains credibility to think that, at the eve of trial in November 2014 he decided to spare M. the strain or emotional toil of taking the witness stand. When asked if he believed M. would lie, he said that he did not believe that she would, but that he believes that she would have seen a movie or seen something to influence what she said. Yet she told her E.A. almost immediately after the incident.
[313] The father also said that he didn't think M. was old enough to really understand the difference between the truth and a lie. He said that during one of his visits with M., she said that she couldn't live with him because of him choking her. He wondered how she would know that. I find that she knew that because it was true.
[314] I do not believe the parents as to their versions of how M. sustained her injuries. There are so many inconsistencies that I cannot accept their evidence. I find that M. was choked and hit on her bottom.
Evidence of the Parents' Relationship
[315] The Father testified that he and the Mother will not reconcile, yet the Mother testified that she and he are apart only because of the direction of the Society.
[316] The Mother, in her testimony, indicated that her relationship with the Father was good. She described the incident at the Shopper's Drug Mart in 2012. She said the Father put his hands on her shoulders, but someone in the store claimed that she was assaulted. She minimized the aggression of the Father towards her.
[317] The Father testified as to this incident too. He said they were in the store to get their methadone doses, they were arguing and he put his hands on the Mother's shoulders and said loudly, "SHUT UP!"
[318] A woman in the cosmetics department yelled at him that he had assaulted the Mother. He yelled back at her, which resulted in him being asked to leave the store. He was subsequently charged and pleaded guilty to damaging property and placed on conditions to have no contact with the Mother. The sentence was probation, attending a PARS program for domestic violence, and taking counselling with Charles Tapp. He did not accept responsibility for this incident. He is angry with the employee.
[319] He admitted talking to the Mother in the presence of duty counsel at court while on conditions of having no contact, but said it would not be a breach of his criminal Court undertaking.
[320] The Father indicated that there had been about four times that the Mother called the police because of his behaviour. He said that on those occasions, he was drinking, he came home, he was loud and obnoxious and the walls in the Bleeker Avenue house were paper thin.
[321] He minimized the number of times he has had police involvement. He testified that at the Bleeker Street complex if he was out at the front of the lawn with his boom box, being loud, or on his phone half of the tenants would be telling him to go inside and to be quiet. Yet if he was out with his children that wasn't a problem. He said that he probably told the Mother to call the police on him. He also said that he no longer drinks alcohol because when he does, his mouth gets him in trouble. During this trial "the Father's mouth" did get him in trouble and there was no evidence that he was drinking.
[322] The Mother denied having any contact whatsoever with the Father until April 23, 2015 and then said that they talked the first time one day before the trial started. Again, the evidence of the parents is so different on material issues that it is difficult to accept the evidence of either parent. I find that they were having contact with each other after the Father was charged with assault of M.
[323] On April 23, 2015, as Mr. Hill testified the Belleville police were called to resolve a dispute between the parents' families. The evidence of the Mother and the Father differs in a number of material areas. The Mother indicates that she was invited over to the paternal grandmother's home to help with removing head lice. The Father indicated that he asked his mother to invite the Mother over to discuss the Court case. The paternal grandmother confirms her son's evidence that the Mother was invited over to talk to the Father. The Mother testified that the Father showed up in the morning, but he and the paternal grandmother say he spent the night.
[324] The Mother testified that the next morning, C.B. accused her of stealing $5 from her purse. She indicates that the Father then came to the home with his sister and he had a baseball bat and bear mace, and they were all arguing. She said, coincidentally, her mother and sister showed up at this time and asked if she wanted to go to Trenton. She said that her mother said things to the Father and things escalated from there. The Mother indicates that the Father called her mother a big fat cow and that her sister got out of the car and was defending her mother. She said that her mother told the Father to stop C.B. from saying things about her. She testified that there was considerable conflict.
[325] The Father on the other hand admits that he went outside of the home when the maternal grandmother, P.S., and her daughter showed up. He said that the maternal grandmother told him to tell the paternal grandmother to stop accusing the Mother of stealing or she would "punch her f—ing face in". The Father said that she should "try it". He denied having a baseball bat. He said that the Mother's sister had the bat. He said there was no bear mace. He implied that he had been accused before of having bear mace and he didn't on that occasion or this one.
[326] He said that the Mother's family all left, but then came back when the Mother wanted her methadone carry. He said that he had gone outside to get his methadone carry from the car when they came back.
[327] The Father indicated that when the Mother returned to his mother's home, he placed the baseball bat in front of her van. He said that the maternal grandmother "waddled" out of her car and "waddled" over to pick up the bat.
[328] The Father indicated in his testimony that the Mother is a lovely person, but when she is in the company of her family, it is like throwing gasoline on a fire.
[329] Even with the inconsistencies in the evidence, it is clear that parents and their family members are often in conflict with other. I find that the Mother was at the paternal grandmother's home overnight with the Father in April. I find that the Mother's family were called by the Mother and did not just coincidently arrive at the home. There was a child of the Father present during the conflict; it is not in the best interests of children to be exposed to this type of conduct.
[330] There was a July 10, 2015 incident where the police again were called. The Father reported that he had received very rude text messages from the maternal grandmother, P. S. The next morning he found that his windshield had been broken and he thought that the Mother had done it, so he went over to her unit and was yelling at her through the door. He subsequently discovered that she did not break his windshield. He lied to the Society worker and told her that the Mother had broken his windshield and he had seen her do it. At trial he admitted that he lied to the worker even after she asked if he was sure that the mother had broken his windshield.
[331] The Father does not see telling the Mother to shut up in a loud voice and pushing on her shoulders as aggressive behaviour or domestic violence. He has a lack of understanding that his angry words can be threatening, upsetting and frightening. He and the Mother consider them just words and not actions so not as serious. He calls the maternal grandmother, P.S., a "fat cow" or a "fat bitch" or describes her as waddling, and he does not see that this abusive, demeaning language is extremely offensive.
Extended Family and Friend of the Parents
[332] The Father testified that while he was with the Mother, they allowed her cousin P.N. to live with them. He was facing criminal charges and the Mother was his surety. He admitted that M. had some sexual acting out at the time and the Mother took M. to the doctor to be "checked out" and that she was fine. However, he thought, how would M. know what she knew unless she had been exposed to it?
[333] He also said that they allowed the Mother's stepfather, G.C., to live with them when he needed a surety. He indicated that he was not happy about that, but it was the Mother's father after all; however, he was worried about him. Subsequently M. made disclosures about G.C. touching her in an inappropriate way.
[334] He then indicated there was another time when the Mother's sister was charged with assault with a weapon and she lived with them, and the Mother was her surety.
[335] In March 2012, before E. was born, there was also an incident where the police were called because of an argument between the Father and his brother's girlfriend. The brother's girlfriend, Sa., was caring for the Father's children while the Mother and the Father were moving into their Bleeker Street home, and the paternal grandmother, C.B., was in the hospital with her husband who was receiving treatment for his diabetes.
[336] The Father testified that H. was upset about eating lunch that was not prepared by his grandmother or by the Father. He said that things escalated and he said things to Sa. and she said things to him. He regrets that these things were said in front of the children. However, subsequently, the Children's Aid Society and police investigated with respect to allegations that the Father had used excessive physical discipline. Sa. showed them a number of holes in the walls of the Father's home. The Father indicated that the holes were behind doors and behind toy boxes and not caused by him. There were allegations that he had overturned a coffee table and threatened his mother. Both he and his mother commented that they still have the coffee table so how could he have damaged it?
[337] The Society interviewed all of the parties including the Father and determined that he had used inappropriate discipline on the children by slapping his daughter for kicking a dog and grabbing his son by the ear. He denied the discipline and added why he would be angry with his daughter for kicking Sa.'s dog that had hurt the family dog? Again, even in defending himself, the Father doesn't see how it would be inappropriate to kick a dog. The Father denied admitting to the society that he had used inappropriate discipline.
[338] The Mother was questioned as to the number of times that the police have been called to her home or a place where she is. She defended the number and testified that "half of them are not to do with me but people breaking my windows and stuff like that." She also admitted that she called the police several times on the Father to teach him a lesson and when she had conflicts with her mother and grandmother. Once, she called the police about a conflict of money owed by her to her mother. She also admitted that the Father had called her offensive abusive names such as "fat bitch." I find that conflict is not an uncommon occurrence in the parents' families.
[339] I find that the parents have exposed their children to potentially risky or dangerous situations when they agreed to act as sureties to family or friends.
[340] The Mother testified that her mother would be part of her plan, yet there are police occurrence reports where she has called the police to resolve disputes with her mother. She readily admits that. Further, the evidence of the Father would indicate that the maternal grandmother is not a peacemaker, but can aggravate a situation. Likewise, the Father and his mother appear to have conflict in the past.
[341] The Father was questioned about his children being exposed to pornography. At first he denied it, but then indicated he was looking on his phone at an email from Hustler Magazine offering him a number of incentives if he were to take their subscription. He then went to the washroom and out for a cigarette at his sister's home. He did not close the email or the site, and his children were able to access it. His sister was very angry and told him how to close a page, but he did not seem to be concerned about the exposure to his children to the pornographic photographs.
The Parents' Ability to Meet the Needs of Their Children
[342] The Father does not accept his responsibility in having M. taken from his care despite the fact that M. reported to her teacher, her CAS worker, the triage nurse, her foster Mother, Dr. Gowthorpe and a doctor that she was choked by her Father. Although the medical evidence supports that the child was choked the Father claims that he has been wrongfully accused, yet he pleaded guilty to assault in criminal Court and has not appealed the decision.
[343] I accept that the Father cares for his children very much, and that he has some good parenting skills, but he has an anger problem, some antisocial attitudes, a difficulty dealing with conflict in a positive way, and an inability to accept responsibility for his part in the demise of his family.
[344] The Father testified that he lives with his sister who was his surety. However, his mother testified that he lives half time with him and half with his sister. Again the parents and the family are not forthright find that he is living with his mother and sister.
[345] I find that the Mother is extremely limited in her cognitive abilities.
[346] I agree with the witnesses that the Mother has made many positive strides in her personal life and in her parenting ability, but protection concerns remain evident. She did not tell the truth about how M.'s injuries occurred: her contact with the Father; the incident at the B. home in April 2015. She minimizes the conflict between herself and the Father, and between herself and her mother and promises to provide safe emotional and physical care for her children without an ability or willingness to ensure this can happen.
[347] The Mother testified that she doesn't agree with "babying" children, otherwise you have children who give you attitude. She doesn't think constantly giving hugs or kisses is good for children. This lack of attachment was corroborated by the workers who testified that the Mother sometimes had a hard time showing affection to the children at the beginning or the end of access and tended to favour E. over M. at least until the Father pleaded guilty to the assault of M.
[348] The Mother admitted that she can have problems learning new skills, but if shown she can learn. I accept that she can learn new skills. She was able to repeat the evidence of several witnesses and testified that she supported her daughter with respect to her disclosures. However I don't find that she is genuine.
[349] She has shown in the past with support she can safely care for her children however it has usually been short lived and only with considerable support. Even with the support of the maternal grandmother I don't believe she can protect her children. The relationship with her Mother will break down as did the relationship with her grandmother. Conflict is part of the Mother's life.
Ms. J.S., Sister of the Mother, D.S.
[350] Ms. J.S. testified that she has not seen the children and has not had much contact with the Mother since the children were apprehended by the Society. In 2010, the Mother and M. lived with her until M. was apprehended because of suspicious bruising. She doesn't think that her niece lied about the Father assaulting her and she testified that it is "a touchy subject for all of us".
[351] She suffers from bipolar, seizures and drug issues. She is a single Mother for three children. I find that, given the lack of support since November 2013 for her sister and the responsibilities of caring for three children, she would not be available to provide adequate support of her sister.
[352] J.S. was part of the conflict at the paternal grandmother's home in April 23, 2015. She says she and her mother went to the home to pick up her sister and when they got there her sister was outside crying. Her mother told the Father to tell his mother not to attack the mother. J.S. denied seeing a bat.
[353] She testified that she has nothing against the Father, but the evidence appears differently. I find that the parents' families live with an amount of conflict that may be normal for them but excessive for the healthy emotional development of M. and E.
[354] She confirmed that her step father had been violent and has a criminal record and abused her as a child; however, she did not believe that he abused the Mother. She didn't appear concerned that he lived for a time with the mother and the children.
[355] J.S. cares for her sister but I find she is not in a position to provide supervision.
P.S., Maternal Grandmother
[356] The maternal grandmother, P.S., testified. She had some difficulty in navigating the Courtroom with the assistance of a walker and getting into the witness box. She appeared to have some difficulty in breathing. She said that some days are worse than others, and the day she testified was a worse day.
[357] P.S. testified that she could move to her daughter's home and provide care for her and her grandchildren. However, she lives in Madoc with her son. The Mother's home is only two bedrooms. The maternal grandmother has health and mobility issues. The testimony of the supervised access workers confirms that she is not able to be very active with the children and they are active children. She has stayed in her van or at a table during access. She is there for support but not to be physically involved.
[358] In addition, from time to time she and her daughter have serious relationship issues in getting along, which have involved the police being called to resolve disputes. I don't find that she could provide sufficient physical or emotional support for her daughter.
[359] She did not present a plan to care for the children independently and only started exercising access on a regular basis in April 2015 after the Society convened a permanency planning meeting with the parties and the family members to try to develop a permanent plan for the children. She testified that the Society didn't support her because they thought she allowed the Father in the home for the Christmas 2013 visit. She denied that he was in the home, yet she was upstairs sleeping with her son that night.
[360] She testified about her 28 year relationship with G.C. She said that he was abusive and beat her up, almost killing her. She said her children were taken from her by the Society because of the violence to which the children were exposed. She said that she left G.C. 7 years ago. She admits that she took the children at night when G.C. stayed with the family when the Mother acted as his surety.
[361] She testified about the incident on April 23, 2015 at the home of the paternal grandmother. She indicated that she had not been called but coincidently arrived at the home at the same time as the conflict. She said the Father came outside and she told him to tell the paternal grandmother not to pick on the Mother. She said that the paternal grandmother, was calling her daughter a "5 finger louie". She said there was name calling. She denied that she threatened to punch the paternal grandmother She said that the Father brought out bear mace and when she returned later for her daughter to pick up some things she was threatened by the Father with a baseball bat. She said he was yelling and swinging the bat. Again the evidence is in contrast to that of the other persons involved in this incident but I find that the maternal grandmother was part of the conflict. Interesting, she testified that she likes paternal grandmother, C. B., and gets along well with her but not the Father.
[362] She testified that she wouldn't be too happy with her daughter if she didn't believe that M. had been assaulted by the Father. It would appear that the Mother and the maternal grandmother have not discussed the reason M. is in care, otherwise she would know that her daughter did not believe M.'s disclosure. I find that the maternal grandmother, P.S., cannot adequately supervise the children in the Mother's care. She loves her daughter and her grandchildren and that is evident to me.
C.B., Paternal Grandmother
[363] Ms. C.B. is the Mother of the Father. She has custody of his two daughters Me. age 8, Ma. Age 7, and the son of his former partner, H. age 9.
[364] Originally she and her husband had custody, but he died in March 2015 after a lengthy illness and complications with diabetes which resulted in his leg amputation in 2012.
[365] In 2014 she was asked by the Society worker, Robert Hill, if she and her husband would participate in the section 54 assessment or provide a plan to care for the children. She declined. Now she says that she wishes to present a plan to care for E. with the assistance of her son who would live with her.
[366] She testified that her son is good with the children and he doesn't have a problem with anger. She admits that he swears but she says that that isn't anger issue. She admitted that her son called her names including "old bat". She admits that she has told her son not to hit the children. She testified that she has never seen him hit the children however.
[367] She recalled an incident in 2012 when her son's partner, S., was caring for the children while she was in hospital with her husband. She indicated that S. was complaining that the Father was yelling at her and there were complaints that he had hit Ma. and grabbed H. by the ear. She said that the children did not disclose this to her. At this time her husband was very ill and he was going to have his leg amputated.
[368] She had some recollection of the Society worker Dawn Atkins' investigation. She may have told her that the Father generally doesn't hit the kids and is not alone with the children because he cannot handle all of them. This was a very stressful time for the paternal grandmother and I am not surprised if she has difficulty in remembering events.
[369] She admitted that on December 24, 2013 her son was at their home in breach of his criminal release conditions. She said that he was there only for about an hour before the police attended at her home. The Father had testified that he was there for only minutes.
[370] She described the incident on April 23, 2015 at her home. She said she invited the Mother over to talk to her son. She said that they both stayed overnight in the living room. In the morning she said that 5 dollars was missing from her purse. Both her son and the Mother denied taking the money but the Mother overreacted and started yelling.
[371] She said that the maternal grandmother came and she was threatening to punch her face for calling her a daughter a thief. The paternal grandmother, replied "if the shoe fits" ...
[372] She said that her son went out to the Blazer vehicle and Ms. J.S. punched him. She said that later Mr. Robert Hill came to her home and she spoke to him and told him that she was mad at the Mother, but normally she gets along with her. When she testified on August 17, 2015 she that she had taken the Mother shopping recently. Again, conflict, even when it escalates to police intervention and threats of violence, seems not to bother these families for long.
[373] She testified that the children in her care were doing well, but upon cross examination she admitted that H. suffers from ADHD and sometimes struggles at school and Me. has been suspended from school several times for throwing her feces at school. All three children are involved with Children's Mental Health.
[374] I find that the paternal grandmother, G.C., would be overwhelmed with another child in her care. I find her to be a loving caring grandmother, but she would not have the ability even with the assistance of her children to provide care for E.
A. B., Sister of the Father
[375] A.B. is the sister of the Father; she is the older sister. She testified that as a youth her brother had quite a temper but he is better now. She hasn't seen him hit his children. She has seen him argue with the Mother, but she said the arguments were not in the presence of the children.
[376] She has three children one of whom has ADHD. She says that she sees her Mother frequently and sometimes helps with the children in her care. She is not in a position to help care for the children M. or E. but she would help in any way that she could.
[377] I find that she is a loving and supportive sister who is trying to show her brother in the best possible light.
Dawn Atkins Society Worker
[378] Dawn Atkins a society worker was called by the Father to give evidence about the March 2012 incident involving his older children. She with another worker investigated allegations that the Father had inappropriately disciplined his children. The worker relied on her notes and records as she had no independent recollection. Her evidence was not helpful to the Father's case.
[379] She said that she interviewed the children. Me. confirmed that her Father had slapped her sister, Ma. for hitting the dog and said "that's what you deserve". She said Me. appeared angry with her Father. The child also said that H. was grabbed by his ear for not eating his lunch. The worker interview Ma. who confirmed what her sister said. H. would not say that his Father had grabbed him or hit his sister, but described a dream he had had where these things happened to him.
[380] The worker then spoke with the Father. She said he was pleasant, cooperative and confirmed the inappropriate discipline. He said that he was overwhelmed. He expressed an interested in a parenting program and said he was in a PARS program with respect to a domestic incident with his partner which occurred at the Shopper's Drug Mart.
[381] The Father now denies doing or admitting anything other than saying inappropriate things to Sa. in front of the children. I accept that he reported to the worker the things that she put in her notes. She has a duty to keep accurate notes and write them without editing. Sa., who was present during the incident, was not called to give evidence. If the Father had denied the discipline I would have expected her to have conducted a further investigation.
[382] However this evidence of past parenting does not go to the issue of whether the children M. and E. are in need of protection, but it does go to the question of what is in their best interests. The Father has already admitted to saying angry inappropriate things in front of the children. The statements made by the children can be admitted to go to their states of mind. In their minds they were excessively and inappropriately disciplined. If the worker had had an independent recollection of interviewing the children I may have accepted the statements as proof of their contents.
[383] The evidence of the worker does not assist the case of the Father. It reinforces that in times of stress he is not an appropriate care giver to his children and he has problems in regulating his anger and emotions as the Father's outbursts in court and the evidence of even his family and the Mother have shown in these proceedings.
REPLY EVIDENCE
Sarah Brinkley
[384] Ms. Brinkley is the Society worker providing supervision and support for the paternal grandmother, Ms. C.B. She said she became involved in October 2013 when the children were involved in sexual play and it was verified that the children were not adequately supervised. H. had access to a tablet with sexual pictures on it.
[385] She said that the home environment could be chaotic but the paternal grandmother, C.B., does ok. She is relaxed and that is good with these children. But she testified that the paternal grandmother, C.B., has enough on her plate with three children in her care. In addition, Me. was the victim of an assault by an Educational Assistant last school term. She was allegedly grabbed her by the heels and locked in a room.
[386] I find that Ms. Brinkley is in the best position to assess whether the paternal grandmother, C. B., is in a position to care for more children. I accept her evidence that it would not be in E. or M.'s best interests to be placed with her even with the Father living there.
Analysis
Out of Court Statements Made by M.
[387] The Society and counsel for M. seek to admit the statements made by M. to Angela Rogers, Megan Walkom, Ch.B., Karin Kranenburg, Dr. Pincock and Dr. Gowthorpe as to the truth. They are lead to show that M. was choked by her stepfather. The parents do not deny that the statements were made by M. but object to the statements being entered into evidence as truth of the statements.
[388] I must consider first the question of necessity. Is it necessary that I consider the statements of the child?
[389] All of the parties agree that M. should not testify. I agree that M. should not testify. I consider her age; the time that has passed since the incident; the ability to view her videotaped statement made shortly after the incident and the negative impact it would have on M. to testify. She is already in counselling and therapy. Further her therapist recommends that she not testify. Even her Father testified that she should not be in court. Therefore I find it necessary to consider any out of court statements made by her.
[390] Although prior to trial I had been asked by the parties, in particular the Father, to interview M., because her Father denied assaulting her and the finding of whether she was in need of protection was still in issue, it was agreed by all parties that I should not meet with her. Further the child had been coached by her mother to recant.
[391] Blended voir dire examinations were held as to all of the statements made by M. to the witnesses.
[392] The child provided a videotaped statement to the police shortly after the incident and confirmed that she had been choked, spanked and knocked off her chair.
[393] The reliability of the statements made at the police station are supported by the fact that the questioning took place in a relatively relaxed setting with a Society worker well known to her and M.'s statements were in response to open ended questions and were spontaneous. There was no indication of coaching. I considered the case of Huron-Perth CAS v. J. (J) as helpful in my analysis.
[394] Having heard all of the evidence including the medical evidence I am satisfied that the statements are reliable and relevant to the question of whether the child was choked and hit by the Father.
[395] The statements that the child made to the foster mothers about her Mother telling her that she needs to tell that she had lied about the what her Father had done to her, I also find reliable. The statements are made spontaneously, without coaching or manipulation of the foster mothers. The child had nothing to gain from making the statements. She loves her Mother. The statements are entered to show that the Mother tried to influence or manipulate the child into saying that she lied about the assault. I find that the Mother had discussions with the child about the court proceedings after she was ordered to refrain from such in January 2014 at the temporary care hearing.
[396] The Society asks to enter the statement that M. made to Ms. Walkom and Ms. Douglas that her Father had been in the Mother's home for the Christmas access. She told her foster mother that she woke daddy up and he was downstairs. When the child asked by the worker about what she disclosed she appears uncomfortable to the experienced child protection worker and says that the information is supposed to be a secret. The Mother says that she was alone on the couch downstairs and her Mother and brother, (who according to the Mother coincidently looks a lot like the Father and is often mistaken for him and has been beaten by persons in their complex) are sleeping in the bed together upstairs. The Mother says the child saw the Father at the methadone clinic on Dec. 24, 2013 implying that is why the child would saw that she saw her Father.
[397] On Dec. 24, 2013 the Father is found at his Mother's home in breach of his undertaking as a result of a report to the police. The Father's surety did not give evidence as to the Christmas breach. Det. Keller testified that he did not investigate the incident at the Mother's home further and lay another charge of breach because he felt that M. had been through enough and he believed the child's disclosure.
[398] Given the parents' testimony in this proceeding where I have found that they have lied on numerous occasions. I cannot accept their evidence that the Father was not in the Mother's home on Dec. 24, 2013. The child has no reason to lie about her Father being in the Mother's home. She does not want to disclose that he was in the home to Ms. Walkom because she was told not to tell. She loves her Father. She knows what he looks like. The child's statement is reliable and is entered for the truth of its contents.
[399] The other statements the Society wishes to have entered as to the allegations against G.C., M.'s dream and her description of a boy being knifed in the parents' home are not relevant to the issues of this trial. I accept that the child made them and they are considered only as to the state of her mind.
FINDING THAT THE CHILDREN ARE IN NEED OF PROTECTION
[400] Having heard the testimony of the witnesses during the fifteen days of trial, reviewing the numerous affidavits, records, reports and written submissions, I must make consider Section 37(2) of the Act as to whether M. and E. are in need of protection. The applicable sections are as follows:
Child in Need of Protection
(2) A child is in need of protection where,
(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(f) the child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(iii) withdrawal,
(v) delayed development,
and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
[401] Considering all the evidence including the medical evidence, the videotaped statement and the statements made by M., I find that on a balance of probabilities the injuries to M. were caused by her Father when he grabbed her around the neck and hit her on her bottom. I find that when M. was choked by her Father and hit on the bottom she suffered physical harm pursuant to section 37(2)(a).
[402] Considering all of the evidence M. also suffered emotional harm pursuant to section 37(2)(f) and (g) because her Mother said that she did not believe her and encouraged her to recant.
[403] E. is found to be in need of protection primarily because of the injuries to her sister pursuant to Section 37(2)(b). As E. was very young when she was apprehended, I find she is likely to suffer physical harm in the parent's care. If the Father would choke and hit his step child, E. is at risk of physical harm.
[404] The conflict between the parents; the conflict between the parents and other family members or friends; their drug use of Fentanyl and use of marijuana around the time of apprehension and the general neglect of the children would support a finding that the children were likely at risk to suffer emotional harm. Although E. did not have the same delay in development or the same problems in regulating her emotions as M., she had severe diaper rash, an unexplained bruise and was extremely dirty when she came into care. Her almost excessive clinginess to her foster Mother and extremely quiet demeanour is significant.
DISPOSITION
[405] Having found that the children are in need of protection I must now decide as to the placement of the children. I have carefully considered all of the evidence at trial including the section 54 assessments that were conducted with respect to the parents' older children.
[406] The Mother participated in a section 54 assessment (under the Act) conducted by Dr. Christopher Cooper, PhD, and Ms. Rose Wenglenski, MSW, of the Kingston Family Court Clinic. The report is dated November 28, 2007. Dr. Cooper, after testing, indicated that the Mother's full scale IQ is in the 3rd percentile (Exhibit 26 (b)). The concerns of the Society at that time were the Mother's limited cognitive ability, difficulty in caring for the children, involvement with persons with criminal involvement, drug use and intransience. The Mother reported to Ms. Wenglenski that there were no issues that might be cause for concern. The assessor's opinion was that the Mother was not able to accurately perceive and appropriately respond to the children's needs; further, she did not recommend that the children be returned to the Mother (Exhibit 26 (a)).
[407] In the section 54 assessment dated April 16, 2007 involving the Father Dr. Gowthorpe found that the parents both had anger issues and there was a concern that these parents would be unable to develop the skills necessary to avoid displaying damaging behaviours towards their children or in the presence of their children during times of stress or frustration (Exhibit 27). She also expressed concern that the Father had lack of insight and did not take responsibility for the children's apprehension, instead blaming his partner's parents (Exhibit 32). Dr. Beckett's psychological report showed the Father's verbal reasoning to be in the 4th percentile and his word reading within the 7th percentile.
[408] I have considered under section 50 of the ACT, the past parenting as evidenced in the Section 54 assessments as it applies to the best interests of the children. Further I have found that the findings of those assessors are confirmed in the assessment of Ms. Shurie and Dr. Mills and the evidence of the Society and the parents. I have also considered the evidence of the current Section 54 assessment that the parents are unable to provide an environment emotionally conducive to raising a child.
[409] I have considered the paramount purpose of the Act which is:
1. (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.
Other Purposes
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:
1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
3. To recognize that children's services should be provided in a manner that,
i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.
[410] I must also consider the best interests of the children as it applies to this case under section 37 (3) of the Act;
Best Interests of Child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child's physical, mental and emotional level of development.
5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child's care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) .
[411] In considering subsection 1, the children's physical, mental and emotional needs will be best meet by a safe, secure and positive environment as indicated by Dr. Gowthorpe. When M. came into care she did not have the level of stranger anxiety that would have been expected of a child of her age, nor did E. Further, M. had serious difficulties in transitioning from one place to another such as school to home or the foster parents home to access visits and she had a great deal of difficulty in regulating her emotions. She was reluctant to go to access visits. E. was extremely withdrawn when she first came into care according to the testimony of her foster Mother.
[412] I have found that the parents were unable to provide for the children's physical and emotional needs. I find that they do not have the capacity to meet their needs and to keep them safe. The parents' home environments are fraught with conflict and substance abuse. This does not keep them physically safe and secure. M. is aware that her Mother believed she is a liar and her mother cannot provide her with a safe, secure and positive emotional environment.
[413] It is clear that in the care of the dedicated and loving foster parents the children's physical, mental and emotional needs have been met. Further their physical, mental and emotional level of development their needs have been met.
[414] In the past the parents have been able to provide adequate care for their children however the Children's Aid Society or another family member has been involved providing support and direction. I expect that the Society would have taken a more active supervisory role with the family in the fall of 2013 even without the assault on M. The parents were obviously struggling with drug abuse and care of the children.
[415] The Court must consider the importance for the child's development, a positive relationship with the parent and a secure place as a member of the family. M. and E. are aware of their parents. They appear to have a bond with their parents but the Mother, in particular, struggles with providing adequate physical and emotional care. M.'s place in the family is not secure because she disclosed the assault.
[416] I also consider the children's relationship and emotional ties to their parents and extended family and community. The Father and Mother's family are supportive of the children yet only recently have they played more active role in access. Prior to the apprehension the maternal grandmother took the children in particular M. frequently.
[417] This is important to consider the effect of disruption of the continuity in the children's care. At present they are in two separate foster homes. No evidence was led by the Society as to the permanent plan for the children other than adoption. No evidence was tendered on whether the children would be adopted together or alone.
[418] Ms. Shurie and Dr. Gowthorpe have both testified as to the impact on M. of the termination of her relationship with her mother. I accept that it would be very difficult for her to have no contact with her mother. I have also heard evidence that there is a strong bond between E. and M. and I find that to sever that bond would have a deleterious effect on both girls.
[419] Neither child is in a potential adoptive home. They will be facing yet another transition if an order of Crown wardship is granted for the purposes of adoption. I find that this will be difficult for the children.
[420] The plan of the Mother would keep both children together. She indicates that she would follow the direction of the Society. She would have the support of her Mother. Yet she has not been forthright and truthful to the society or to this Court. Unfortunately the maternal grandmother has health issues which would impact on her ability to adequately supervise two such active children. She also has a home in another city with her adult son. There is no evidence as to how long she would be able to support her daughter and I find that the Mother's limited intellectual capacity makes it necessary for her to be supported at all times with her children.
[421] The other difficulty with the Mother's plan to abide by direction of the Children's Aid Society is that she does not accept that she requires supervision. She has testified that she didn't believe her daughter's disclosure because she witnessed the accident, I have found that both the Mother and Father were not forthright in their evidence. I find that the Mother would not be able to consistently follow the direction of the society and keep her children safe.
[422] The Father's plan is even more problematic. His mother is caring for three children with significant needs. Another child or two in her care for would be overwhelming. Even if the son lived with her I find that it would be difficult for her to control the angry outbursts of her son as even in a courtroom situation he could not control himself. His comments about the reaction of his neighbors to him playing his radio outside talking loudly on the phone or being loud because he was drinking show that he has a difficulty with empathizing with the position of other persons.
[423] The difficulty in accepting either the Mother or the Father's plan is their lack of credible testimony in this trial. I believe that they have real difficulties in comprehension and they have limited capacity to understand the importance of the children having a safe secure and positive home. I find that both parents love their children and wish the children to be in their care.
[424] I must consider the views and preferences of the children. I find that M. would prefer to live in the present placement and visit with her Mother. However, that prevents her from having a permanent home. Although E. is too young to have a stated view or wish, I am sure that she would prefer to live in her present home where she is thriving.
[425] I must consider the risk of harm for the children in being removed from or returned to the parent. I also must consider the degree of risk that justified the finding that the children were in need of protection. It is clear from the evidence that the children would suffer more harm from being returned to the parents then remaining in the care of the Society. M. suffered a serious injury at the hands of the Father and was not emotionally protected by the Mother.
[426] There are only two decisions that the court can make because of the length of time that the children have been in care under Section 70 of the Act. The children must be returned to the care of a parent or made a Ward of the Crown and placed with the Society. M. has been in care (cumulatively) for longer than two years and E. will have been in care two years in December.
[427] The decision of Crown wardship is the most difficult decision for the Court to make. Crown wardship is the Court's last resort. I consider the case of Children and Family Services for York Region v. H.C..
[428] The Court must consider the efforts made by the Society and other services to support the family. I am satisfied that the Society, although they made a decision to request Crown wardship in 2014, continued to support the family, provide services and consider family placements. Ms. Colvin, and Mr. Hill and the supervised access workers were particularly supportive of the parents and urged them not to give up hope and to continue to follow the direction of the Society. The Society provided generous access to the parents including home access and community access. The supervised access workers were particularly respectful of and sensitive to the parents. The mother was aware that one of the Society's primary concerns was her lack of support for her daughter yet she could not change her attitude or behaviour.
[429] Some of the most compelling evidence that the children cannot be returned to the care of the parents came after the pretrial was held in April 2015. The incident at the paternal grandmother's home and the Father's claim that his windshield had been damaged by the Mother involved the Society and Police. Unfortunately the parents and their families minimize the conflict and exposing the children to this conflict is not in their best interests.
[430] I cannot extend the Society wardship because there is no evidence that anything will change in the parents' lives if I do. I have already found that the plan of the parents for the return of the children to their care is not in the best interests of the children and therefore I must make the children wards of the Crown.
Access
[431] I must now consider whether the children should have access with each other and with their parents. I must be satisfied pursuant to subsection 59 (1) of the Act that the access is beneficial and meaningful to the child and will not impair the child's future opportunity for adoption.
[432] The children appear to enjoy their access with their parents although when M. first came into care she was reluctant to go to visits. However the evidence of the society shows that the Mother does have difficulties in being emotionally supportive to the children and following direction. At times in a community setting she has appeared to lose track of the children because of her distraction by friends or her phone. Although the Mother would often follow the direction of the supervised access workers, at times she could become hostile to their suggestions. The father's access with the children appears to be more positive.
[433] It is not enough that a child has a good time during visits and the visit must provide a positive advantage to the child. I considered the cases of Children's Aid Society of Peel (Region), 2006 ONCJ 523 and Children's Aid Society of Niagara Region v. J.C. to be helpful to this issue.
[434] I find that the evidence of the Society workers, the supervised access workers and the parents themselves does not show that the children have a positive advantage from their contact with their parents during access.
[435] It is unfortunate that the Society did not call any evidence of the adoption plan. Having heard the evidence about the children and about how delightful they both are I find that they can be adopted and hopefully together. However, considering that the Society separated the children while in care I cannot make my decision based on a hope.
[436] In making an order for access I must be satisfied that it will not impair the children's future opportunities for adoption. Given the evidence I have found as to level of conflict between the parents, the parents and Society and the parents' fabrication and deceit, I find that an access order may impair the Society's ability to find an adoptive placement. However, there is nothing that prevents society from continuing to allow access between the children and their parents until adoptive placement can be found. Any contact would be based on the best interests of the children. I find it would not be in their best interests to immediately terminate access to the parents, a suggested gradual reduction of access would be preferable. Dr. Gowthorpe with be an ideal resource in this regard.
[437] The children deserve to have a relationship with each other. I have heard evidence that the children are bonded to each other and that the foster mothers have made efforts to ensure that the children see each other. There is no evidence that an access order between the children would impair their ability to be adopted. The foster mothers have shown an ability to maintain access between the children and they recognize that it is important for the children to have access with each other. Although I will not specify how frequently the access shall occur, twice a month would not be unreasonable and would be in their best interests. Because the foster mothers are already providing for access between the girls and I have found that they are both caring, considerate and loving towards the girls I trust their discretion.
[438] An order that the children have access with each other would provide them each with an opportunity to obtain counsel and have that counsel bring an openness application when the children are placed for adoption. If the children are adopted together this order is not required but if they are not adopted together, counsel for the children should have an opportunity to bring an application to the Court.
ORDER
I make the following Final Order:
The children M. and E. are found to be in need of protection.
M. and E. shall be made wards of the Crown and placed with the Highland Shores Children's Aid Society for the purpose of adoption with no access for the parents.
M. shall have access with E.
E. shall have access with M.
The Office of the Children's Lawyer shall immediately be advised when there is to be a placement of the children for adoption.
Released: this 16th day of October 2015
Justice Wendy Malcolm