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.

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

ONTARIO COURT OF JUSTICE

DATE: May 24, 2016

COURT FILE NO.: Halton C509/12

BETWEEN:

THE CHILDREN'S AID SOCIETY, REGION OF HALTON

Applicant,

— AND —

A. W. and G. K. W.

Respondent parents

Before: Justice Sheilagh O'Connell

Heard on: June 22, 23, 24, 25, August 24, 25, 27, September 4, 29, 30, October 1, 2015

Judgment released: May 24, 2016

Counsel:

• Diane Skrow — counsel for the applicant society
• Robert Brooks and Pauline Klemencic — counsel for the respondent mother, A. W.
• G. W. — on his own behalf

O'CONNELL J.:

Part 1: Introduction

[1] The Children's Aid Society, Region of Halton ("the society") has brought an amended status review application seeking an order that the children, D.W., born […], 2007, and J.W., born […], 2010, ("D." and "J." or "the children") be made Crown wards, with access to the parents at the society's discretion.

[2] At the time of the trial, D. was 8 years old and J. was 5.5 years old. They are now 8 and 6 years old.

[3] The respondent parents, A.W. ("the mother') and G.K.W. ("the father") oppose the society's claim and have advanced individual claims and separate plans of care. The mother seeks an order that the children be returned to her care, subject to the supervision of the society. The father seeks an order that the children be returned to his custody without society supervision.

[4] The Society commenced this status review application on April 14, 2014. On June 4, 2014, the application was amended to seek crown wardship with access after the society received an updated parenting capacity assessment from Dr. Milton Blake.

[5] The order under review is the Final Order of the Honourable Justice Roselyn Zisman, dated January 2, 2014, made at the conclusion of the protection application. At that time, Justice Zisman found that the two children were children in need of protection pursuant to section 37 (2) (b) (i) of the Child and Family Services Act (the CFSA or the "Act") in that there was a risk that the children were likely to suffer physical harm inflicted by the parents or resulting from the parents' failure to adequately care for, provide for, supervise or protect the child or from a pattern of neglect in caring for, providing for, supervising or protecting the child.

[6] The Final Order provides that that the two children be made society wards for a period of four months subject to a number of terms and conditions regarding the mother and the father. Access between the parents and the children was subject to the discretion of the society.

[7] The children are currently in the care of their maternal aunt and uncle (the mother's brother and sister-in-law) in a "kin-in-care" foster home, where they have resided since September of 2014. It is the society's plan that the children remain in this provisional foster home as crown wards.

[8] The mother has regular twice weekly access with the children in the home of the maternal aunt and uncle, in addition to holidays and special occasions as agreed upon.

[9] At the time of the trial, the father had chosen not to see the children since on or about September of 2014. The father did not agree that his access should be supervised by the society at their offices and he did not wish to exercise access in the home of the maternal aunt and uncle. He had not seen the children for approximately twelve months by the trial's conclusion.

[10] The father represented himself at trial, after being represented by counsel in earlier proceedings. In a previous ruling, I directed Legal Aid Ontario to issue a legal aid certificate for the father for representation in this trial, subject to hearing further submissions from the agency. On February 25, 2015, Legal Aid Ontario issued a legal aid certificate to the father for trial. The father subsequently obtained new counsel, Mr. Paul Robson, and advised the court of this on March 12, 2015. Counsel for the father attended on that date and the trial dates were fixed.

[11] However on May 28, 2015, the father advised that his counsel would no longer be assisting him as the father felt that he was not "committed" to his case. On that day, the father initially advised that "he had no other option" and that he was going to hand in his "defence" and then tried to leave the courtroom. He also sought a mistrial and that the children be immediately returned to his care. The father also advised that the legal aid certificate that had been issued had now expired. He later approached another lawyer with the legal aid certificate, but it appeared that he was not satisfied with that lawyer's level of commitment.

[12] As the trial had now been delayed for a number of months to assist the father in retaining counsel and in obtaining a legal aid certificate, both of which were achieved, the court ruled that the trial could no longer be delayed because the father was not satisfied with his new counsel's level of commitment. Given the statutory timelines in child protection cases and the interests of the children and the parents for a final resolution, the trial proceeded on June 22, 2015. The father agreed to attend and fully participate in the trial, and did so.

[13] Prior to the commencement of the trial, the father was provided with a detailed trial guide for self-represented litigants in family law proceedings, prepared by the Ontario Court of Justice and the court assisted the father throughout the trial process by providing procedural and other guidance to him.

Part 2: The Issues

[14] The main issues for me to decide are the following:

1. Do the children continue to be children in need of protection and thus requiring continued state intervention?

2. If so, what disposition order is in the children's best interests?

3. If the children are made Crown wards, what order for access should be made for each parent?

Part 3: The Position of the Parties

3.1: The Society's Position

[15] It is the society's position that that there is a need for ongoing protection of both children as neither parent has the parenting capacity to meet the children's needs. According to the society, it is in the children's best interests that they have a permanent home with their maternal aunt and uncle as provisional foster parents or 'kin in care' parents under an order for crown wardship with access. This will provide the children with stability and permanency while permitting the children to maintain relationships with their mother and father in a safe and controlled environment.

3.2: The Mother's Position

[16] The mother submits that although there is a need for ongoing supervision of her care of the children, the least restrictive alternative in the children's best interests is to be placed with her subject to the supervision of the society for a period of twelve months. She submits that the society has solely relied upon a flawed parenting capacity assessment when deciding to amend its application to seek an order that the children be made crown wards with access.

3.3: The Father's Position

[17] The father's submits that there is no need for ongoing protection of the children and that there was never a need for a protection order in the first place. He disputes the protection finding made by Justice Zisman in the earlier protection application. It is the father's position that both children should be returned to his immediate care and custody without the supervision or ongoing intervention of the society. It is also the father's position that his access to the children should not be supervised. The father has declined to see the children since September 2014 unless he is granted unsupervised access at his home.

Part 4: Summary of the Relevant Evidence at Trial

[18] The Society relied upon the evidence of Dr. Milton Blake, both his original and updated assessment, and five child protection workers in this trial. The mother testified on her own behalf and called Dr. Monik Kalia, a parenting capacity assessor who critiqued Dr. Blake's assessments of the mother, and a reply witness, Ms Rebecca Scott, regarding the father's evidence. The father testified on his own behalf and did not call any other witnesses.

4.1: Background Facts

[19] The mother is 39 years old and the father is 41 years old. The parties met in high school in Mississauga and became involved in a relationship. They were later married on August 6, 2004. The father is of Christian background and the mother's family is Muslim, however, the mother is not a practicing Muslim. The children were exposed to both religions and cultures, but celebrated mainly Christian and some Muslim holidays.

[20] The parties lived together for approximately seventeen years until February 2013 when they separated. The parties attempted reconciliation in June of 2014, but did not resume living together. The mother testified that this attempt failed.

[21] The mother has Crohn's disease and a seizure disorder. She has suffered from epileptic seizures since she was very young and is prescribed medication and treatment to control the seizures. She also receives medical care for her Crohn's disease.

[22] The mother has also been diagnosed with a Major Depressive disorder, for which she also receives treatment and medication.

[23] The mother is currently under the care of a neurologist for her seizure disorder and a psychiatrist for her psychiatric disorder. She is also under the care of a doctor at McMaster Hospital for her Crohn's disease and has had surgery and medication as part of her treatment for this disease.

[24] The father was diagnosed with schizophrenia as a teenager, however a recent psychiatric assessment concluded that the father did not have schizophrenia but rather a social anxiety disorder.

[25] The mother currently lives in Brampton in a two bedroom apartment. The mother lives independently and alone. She receives ODSP and a monthly inheritance. The mother has a very close relationship with her brother and sister-in-law and her nieces and nephews. She participates in family holidays and special occasions and sees the children regularly at their home, which is close to her apartment by transit.

[26] The father lives in Burlington with his brother in a house owned by his mother. The father also receives ODSP for his schizophrenia and has done so since he was in his early twenties. The paternal grandmother lives in Mexico for six months of the year, but stays with the father and his brother (her sons) when she is in Canada.

4.2: Previous Involvement of the Society

[27] The Toronto Children's Aid Society first became involved with the family when their first child D. was born in […] 2007 due to concerns reported about the mental health of both parents. The society closed its file at that time.

[28] The Halton society became involved with the family after the birth of their second child in […] 2010 upon receiving a report from the hospital with respect to concerns about the mother's behavior at the hospital. These concerns were not verified and society closed its file.

[29] The society became involved again in March 2012 after it received a report from the police that the father was arrested for dangerous driving and driving while impaired while the children were in his car. The society closed its file and did not verify any protection concerns based on a report received that there was no alcohol or illegal drugs in the father system.

4.3: Events Leading to Apprehension

[30] In November 2012, the parent's family doctor, Dr. Hack, contacted the society to report his concerns about both parents, including the mother's physical health, undiagnosed mental health issues, the father's possible drug abuse, and possible domestic violence. The mother had reported to Dr. Hack that the father had assaulted her on more than one occasion and disclosed a history of domestic violence, including a recent violent assault.

[31] The first child protection worker, Jennifer Christian met with the mother and arranged a safety plan with her and the children to leave the home. The mother agreed that she and the children would leave the home and stay with friends and extended family. The mother agreed not to have contact with the father and that she would be supervised by another adult while caring for the children.

[32] The society arranged a family group conference in November of 2012. Based on the information obtained at that conference, it is not disputed that the mother had not followed through with the safety plan and had returned to the father's home with the children. The protection concerns identified at that time were: the parents' mental health issues, prescription drug abuse by the father, and domestic violence to which the children were exposed.

[33] The society proposed that the children be placed with the maternal aunt and uncle while the parents addressed these protection concerns. The parents would not consent. As a result, the children were apprehended and the society commenced its protection application on November 20, 2012. On that day, a temporary without prejudice order was made placing the children with their maternal aunt and uncle.

[34] Following the apprehension and the original protection application, the parents separated in February 2013. They subsequently presented separate plans of care for the return of the children.

[35] From November 2012 to March 2013, the children resided in an "out of care" kinship placement with the maternal uncle and aunt. In March 2013, the aunt and uncle advised the society that they could no longer care for the children and on March 22, 2013, the children returned to the society's care where they were both placed in the same foster home.

[36] However, in September of 2014, the children were returned to the maternal uncle and aunt's care under a "kin-in care" placement, also known as a provisional foster home, where they have remained since that time.

4.4: The Protection Finding

[37] During the original protection application, the mother acknowledged the protection concerns and consented to the protection finding at that time. On June 13, 2013, a Statement of Agreed Facts was signed by the mother and the society that the children were in need of protection pursuant to section 37 (b)(i) of the Act, specifically that there was a risk that the children were likely to suffer physical harm caused by the parents' failure to care for, provide for, supervise to protect the children adequately.

[38] The mother consented to the following relevant facts relating to the child protection finding:

1. The society received a report from the parents' doctor, Dr. Hack, on November 20, 2012 who reported concerns with respect to both parents. The society created a safety plan with the mother which she failed to follow through with and which led to the apprehension of the children from the parents' care on November 26, 2012;

2. The mother participated in a psychiatric assessment conducted by Dr. Muhammad who provided the following multiaxial diagnosis for the mother: Axis I: Major Depressive Disorder; Axis III: Seizure disorder; Crohn's disease; Axis IV (Stressors): Moderate due to her separation from her children; Axis V (Global Area Functioning): 65.

3. The mother participated in drug tests on December 19, 2012 representing their use of drugs from mid-September to mid-December 2012. The mother's test was positive for morphine, codeine, oxycodone, and hydrocone. The mother participated in a further drug test on April 19, 2013 and the test was negative for all substances except codeine, which the mother is prescribed for her Crohn's disease;

[39] The mother also consented to a section 54 assessment regarding her parenting capacity, to be conducted by Dr. Milton Blake.

[40] The father did not consent to the protection finding nor was he prepared to sign the Statement of Agreed Facts. He denied that the children were at risk of harm in his care and denied all concerns regarding substance abuse, mental health and domestic violence. However, notwithstanding his opposition to any protection finding, he did consent to a section 54 assessment of his parenting by Dr. Blake.

[41] In the circumstances of this case, the case management judge, Justice Zisman, was not prepared to order a section 54 assessment without a protection finding. Given that it was the father's position that there were no protection concerns and that the children should be immediately returned to his care, it was not clear why the father would be agreeing to a section 54 parenting capacity assessment to determine if he could parent the children.

[42] Justice Zisman held that although the CFSA now permits section 54 assessments to be conducted without a finding in need of protection, it was not appropriate in these circumstances where one party had agreed to the factual underpinnings of the protection finding and the other did not, thereby placing the assessor in the position of making findings of fact and credibility regarding the parents and the protection concerns instead of focusing on the capacity and the ability of each parent to care for the children and the supports needed, if any, to assist the parents.

[43] Therefore, prior to ordering the section 54 assessment, a trial on the issue of the protection finding was held. Viva voce evidence was heard from the parents, child protection workers and Dr. Hack, the parents' family doctor who had initially reported his concerns to the society. The trial was conducted over three days.

[44] The judgment regarding the protection finding was released on September 4, 2013. Justice Zisman found that the children were in need of protection pursuant to section 37(2) (b)(i) of the Act as there was a risk that they would likely suffer physical harm in the father's care.

[45] Justice Zisman found that "there was overwhelming evidence that the children were at risk of physical harm while in the care of the father before, at the time of, and subsequent to apprehension." She made several findings of fact that were relevant to the issue of the protection finding at that time, as follows:

1. The father was misusing prescription pain medication before and at the time of the apprehension of the children including taking the mother's pain medication without her consent.

2. The father was obtaining prescription drugs from different doctors for oxycodone and had a number of different prescription drugs in his system that had not been prescribed by his family doctor around the time of the children's apprehension.

3. Prior to the apprehension, the father was driving the children while under the influence of prescription drugs that were either not prescribed at all or that were prescribed and then misused by him. The father lost control of the car while the children were in it and was charged with dangerous driving and impaired driving. The father did not dispute the relevant facts about the driving incident, just that he could not remember how he lost consciousness while driving the car with the children in it.

4. Between September and in December 2012, the father was misusing prescription drugs, including oxycodone on a regular basis.

5. The father verbally and physically abused the mother while the parties were together and exposed the children to both the risk of physical and emotional harm as a result of his violence towards the mother during the relationship. The father refuses to acknowledge this or take responsibility. The mother gave detailed credible evidence about the father's violent assault leading to the apprehension.

[46] The father did not appeal Justice Zisman's decision. A copy of the judgment setting out the above findings of fact was provided to Dr. Blake for the purposes of conducting his parenting capacity assessment.

4.5: The First Section 54 Assessment

[47] Dr. Blake commenced the first parenting capacity assessment on October 1, 2013. The parties consented to an order that Dr. Blake would conduct a parenting capacity assessment of both parents pursuant to section 54(1) and (1.1) of the CFSA.

[48] Prior to conducting the assessment, the parties and counsel prepared a joint letter to Dr. Blake setting out the documents to be provided to him and the questions to be asked of him. The terms and parameters of the parenting capacity assessment were agreed upon by the parties and counsel. The factual underpinnings of the assessment were contained in the reasons for judgment of Justice Zisman above regarding the protection finding. Both parents had counsel at the time at the time this consent was reached.

[49] Dr. Blake completed this assessment on November 15, 2013. With respect to the father, Dr. Blake found that the father's parenting skills to be seriously deficient and that his parenting capacity did not meet a minimally acceptable standard. Of paramount concern was his need for treatment based on ongoing risk of further drug abuse, and his difficulties with anger management. Dr. Blake found that the father's "unwillingness to acknowledge that he requires help in these areas constitute a serious barrier to his ability to function as a single parent."

[50] Notwithstanding these findings, Dr. Blake recommended supervised access in light of the children's emotional attachment to him. Dr. Blake opined that "although an eventual change to unsupervised access would not be completely ruled out, this should be at the discretion of the society and conditional upon major attitudinal changes and the success of therapeutic interventions in his identified need areas."

[51] With respect to the mother, Dr. Blake found that the mother had clear shortcomings with respect to her parenting skills but that she also had parenting strengths. Dr. Blake found that given the mother's strengths, it was not impossible that the mother's parenting could be brought up to an acceptable standard if certain intensive interventions were provided. Dr. Blake found that:

"While her deficiencies are fairly marked, the possibility that her behavioural management skills would become at least adequate with several months of intensive training on a weekly basis cannot be ruled out."

[52] Dr. Blake recommended that he conduct an updated parenting capacity assessment of the mother following the intensive parenting training that he described above.

4.6: The Final Protection Order, dated January 2, 2014

[53] On January 2, 2014, following Dr. Blake's findings and recommendations, the parties consented to a final order that the children be made wards of the society for a period of four months subject to several specific terms and conditions, pending an updated capacity assessment by Dr. Blake. The parties agreed to the following terms and conditions in a final consent signed by the parties and witnessed by counsel:

1. the mother will continue to address her mental health concerns (Major Depressive Disorder) through regular visits to her treating physicians and any further psychiatric treatment recommended;

2. the mother will follow all treatment recommendations made by her psychiatrist, including medications prescribed

3. the mother will continue to address her physical health concerns (Crohn's disease and seizure disorder) through regular visits to her treating physicians and specialists;

4. the mother will remain clean and sober of any non-prescribed narcotics will only take her medications as prescribed to her by her treating physicians and/or specialists;

5. the mother will sign all consents for releases of information deemed necessary by the society, including for the society's Family Finding Program;

6. the mother will continue to cooperate with further hair follicle testing for drugs, when requested by the society

7. the mother will advise the society of any change of address or contact information within 24 hours of such change;

8. the mother will follow through with any recommendations stemming from the parenting capacity assessment, including increased access visits, working cooperatively with the family support worker, individual therapy and reassessment of her parenting by Dr. Blake;

9. the father will continue to address his mental health concerns social anxiety disorder through regular visits to his treating physician at any further psychiatric treatment recommended. In particular, the father will participate in complete CDT cognitive behavioral therapy group for anxiety management at the community mental health clinic at Joseph Brant Hospital, as recommended by his psychiatrist;

10. the father will follow all treatment recommendations made by his position and or psychiatrist, including medications prescribed.

11. the father will remain clean and sober of any non-prescribed narcotics and will only take his medications as prescribed to him by his treating physicians and/or specialists;

12. the father will continue to cooperate with further hair follicle testing for drugs, when requested by the society, in order to address the society's concerns regarding his overmedicated. Depending on upon these results, the society may require the father to attend rehabilitation, which may include residential drug treatment;

13. the father will advise the society of any change of address or contact information within 24 hours of such change;

14. access between the mother and the children in the father and the children will be in the society's discretion with respect to location, duration and supervision.

4.7: Events Following the Final Protection Order

[54] Following Dr. Blake's recommendations, the society then significantly increased the mother's access to the children and put into place the parenting supports that the society believed were contemplated by Dr. Blake. The Society increased the mother's access visits from two hours each week to six and one-half hours each week for a seven week period. Every Tuesday, Thursday and Wednesday, the mother would prepare and have dinner with the children at the society's office. In addition, the mother would have a two hour visit in the community each week with the children. Three family support workers were involved between January to February of 2014 to provide teaching, parenting support and coaching to the mother, in addition to the family service worker.

[55] Following this period of expanded access and parental training and support provided to the mother by the society, the society retained Dr. Blake to do an updated parenting capacity assessment of the mother only, on consent of the parties.

4.8: The Updated Parenting Capacity Assessment

[56] Dr. Blake conducted his second assessment on March 20, 2014 at the society's offices and released the "Parenting Capacity Assessment Follow-Up" report on April 22, 2014. The follow-up assessment consisted of interviews with each of the three society workers who had been involved in a teaching and supervisory capacity with the mother following the original assessment, as well as further observations of the mother's caregiving and interaction with the children.

[57] According to the follow-up report, Dr. Blake found that several of the mother's weaknesses as a parent were still evident, despite the "intensive" behavior training and guidance provided to the mother following the last assessment.

[58] Dr. Blake did not recommend placement of the children with the mother but rather recommended a permanent placement outside of her care in a kinship placement with the mother's brother and his wife, the maternal aunt and uncle. According to Dr. Blake, such a placement would appear to satisfy the dual goals of permitting the two children's regular and special needs to be met appropriately, where also offering the possibility of continuing contact between the mother and the children, on a limited basis, given the two-way emotional attachments that exist."

4.9: Events Following Updated Assessment

[59] During Dr. Blake's updated assessment, the society approached the children's maternal aunt and uncle to determine whether they would be willing to care for the children on a permanent basis with society support should Dr. Blake not recommend the return of the children to the mother.

[60] On May 20, 2014, following the receipt of Dr. Blake's report, the society met with the maternal aunt and uncle again to discuss permanency with the children. On May 26, 2014, the maternal aunt and uncle notified the society that they would be willing to care for the children on a permanent basis with society support as provisional foster parents.

[61] On June 4, 2014, the society amended its status review application seeking an order that the children be made wards of the crown and placed in the care of the children's aid society and that access between the mother and father and the children be in the society's discretion with respect to location, duration and supervision.

[62] In the brief statement of facts set out by the society in its amended application, the society stated that it "does not support the return of the children to the mother or the father based upon its involvement with the parents over the past 18 months, as well as Dr. Blake's assessments and recommendations."

[63] In September of 2014, the maternal aunt and uncle successfully completed their PRIDE training and their SAFE assessment. They also made renovations to their home with the society's financial assistance to meet the society's housing requirements for the children.

[64] On September 12, 2014, the maternal aunt and uncle were approved by the society as a "kinship in care" permanent placement for the children, which is similar to a long-term foster placement, but with extended family as the foster parents rather than strangers. The children have been living with them since that time.

4.10: The Society's Workers

[65] Linda Brooks, the family service worker, Susan Matthews, the children's service worker, and the three family support workers involved in mother's parenting training, coaching and support testified.

[66] The evidence and testimony of all five protection workers demonstrate the following about the mother since the original protection application was commenced:

1. The mother has complied with all of the terms and conditions of the January 2, 2014 Final Order. According to all of Linda Brooks, the mother followed through and complied with every term and condition. The mother was very motivated to do so;

2. The mother has kept the society updated on her medical conditions, including both her seizure disorder and her Crohn's disease and continues to meet with her neurologist and her Crohn's doctor regularly.

3. The mother continues to address her mental health issues and continues to see her psychiatrist and comply with her medication and treatment plan for her Major Depressive Disorder. She appears to be stable and to be complying with treatment and medication;

4. The mother has separated from the father, and has obtained permanent secure housing close to her family, the maternal aunt and uncle and the children;

5. The mother has followed through with individual counselling through Halton Family Services. The mother attended and completed individual counselling in the Violence Against Women program;

6. The mother also attended and completed an eight week parenting program on her own initiative;

7. The mother has kept the society informed of any changes of contact information, appointments with professionals and additional services that she has sought out. She is willing to meet with the society in her home or at the society's office when requested;

8. According to Linda Brooks, the mother has cooperated fully with the society. She is always forthcoming with the society about how she is feeling and will seek out direction about what else she can do;

9. The mother consistently attends all of her access visits with the children. She arrives on time and provides the children with food and presents at each visit. Since the children have been residing with her brother and sister-in-law, the mother has consistently attended twice weekly at their home to visit the children, in addition to special occasions and family events. No concerns have been reported and according to Susan Matthews, the children's service worker, the mother has demonstrated a real commitment to the children;

10. The mother fully participated in the intensive parenting supports and coaching put in place for her in January and February of 2014;

11. The mother has demonstrated commitment and motivation to the children and she is extremely devoted to the children.

[67] Notwithstanding the above, society workers continued to have protection concerns about the mother. In addition to concerns regarding the impact of the mother's seizures, Crohn's disease and depression on her parenting ability, all five workers expressed concerns about the mother's parenting skills and her ability to control and manage the children on her own as a single parent, even in the limited context of supervised visits.

[68] All five workers directly observed and participated in access visits between the mother and the children. Ms Brooks testified that she observed the mother to lack an understanding of the children's developmental needs and stages of development. The mother often struggled to maintain control over the visits and the children's behaviour, with the oldest child in particular engaging in very aggressive behaviour that the mother could not control. Ms Tracy Simpson-Organ, a family support worker, described the visits as "chaotic".

[69] Kathy Kim, one of the family support workers involved in providing the mother with coaching and parenting support after Dr. Blake's first assessment, testified that the mother was very committed and worked very hard to improve her parenting skills. She did many things well. She clearly loves her children and the children love her.

[70] Ms Kim testified that although the mother demonstrated a high level of engagement with the children and had some ability to organize, plan and prioritize during the visits, the mother did not recognise potential dangers and safety issues for the children. The mother had difficulty disciplining the children and had unreasonable expectations of them. Ms Kim testified that she had the following protection concerns:

1. Ineffective discipline strategies;

2. Inability to foresee dangers and risks;

3. Inability to multi-task;

4. Inability to help children regulate their emotions, particularly J., the youngest child.

[71] Ms Kim provided parenting support and coaching during seven ninety minute sessions throughout January and February of 2014 following the recommendations in the first parenting capacity assessment.

[72] Ms Kim acknowledged that with more training and more skill, the mother should be able to develop these parenting skills, however, she did not know if the mother had the capacity to do so, based on the results of Dr. Blake's assessment.

[73] In cross-examination, Ms Kim further acknowledged that it may have been confusing to the mother to get contradictory directions from different workers regarding parenting skills during the intensive parenting sessions.

[74] Ms Vanessa Box-Jones was involved in providing the mother with "in-depth parenting support" between January and February of 2014. She saw the mother and the boys on a weekly basis for a period of two hours from January 23, 2014 to February 27, 2014. Ms Box-Jones testified that the intention was to assist the mother to build on her skill set and improve her parenting skills.

[75] Ms Box-Jones was very critical of the mother's choice of food for the access visits. She testified that the mother continued to bring processed foods that were high in fats and sugars, such as McDonalds, notwithstanding her direction. The mother would always bring a large bottle of coke with her that she would drink in front of the boys, despite asking her several times not to bring the coke as the boys would want some and did not understand the concept of role modeling as a parent. This was also very concerning to Ms Box-Jones.

[76] Ms Box-Jones also testified that the mother was unable to impose consistent rules and follow-through with the children, or enforce rules with the children. Ms Box-Jones also observed that the mother would withdraw from the situation when it became too overwhelming for her.

[77] Ms Box-Jones acknowledged that at times, the mother was able to follow her lead, but as time went on, she would slip back.

[78] In cross-examination, she acknowledged that the father's visits were right before the mother's visits with the boys and that the father's visits were undermining and "sabotaging" the mother's visits with the boys. When asked whether she took this into consideration when evaluating the mother's visits, Ms Box-Jones testified, "I am not in charge of the timing of the visits." She would not acknowledge that the chaotic nature of the visits with the father could have an impact on the mother's visits.

[79] Ms Box-Jones was also of the view that the approximately seven weeks of "in-depth parenting" training and coaching should have been sufficient for the mother to have improved her parenting skills. Although the mother showed a great desire and motivation to learn, she just could not do it.

[80] In addition to supervising visits in 2013, Tracy Simpson-Organ was assigned to work with the mother alone without the children present to address the areas of weakness identified in Dr. Blake's initial parenting capacity assessment about the mother. Ms Simpson-Organ identified her goal as to facilitate the mother's parental development and to assist her in attaining the parenting skills that she was lacking.

[81] Ms Simpson-Organ met with the mother on four occasions between February 4, 2014 and March 24, 2014. Each session was approximately two to three hours in length. Ms Simpson-Organ identified three areas with the mother:

1. Her physical and mental health, in particular the impact that stress and parenting has on her Crohn's disease and her depression, and developing insight regarding how the history of domestic violence has affected her depression and her ability to parent effectively;

2. The development of a healthy support network to assist her as a single parent, including family support, support through ODSP, regular medical appointments with her psychiatrist, and friends to provide emotional support;

3. Developing parenting skills, including understanding healthy parent-child attachment, child development, age appropriate behaviours, parental supervision, understanding and implementing effective discipline, among other skills.

[82] Ms Simpson-Organ was of the view that, based on her observations, teaching and assessment of the mother, she did not observe any substantial improvement in the mother's parenting ability. She questioned whether the mother had the ability to be the primary care-giver for the children, despite the mother's efforts and motivation. She testified that based on her sessions with the mother, she did not feel that she had the insight to understand that her Crohn's disease and her depression would have an impact on her daily functioning as a parent.

[83] Ms Simpson-Organ recognised that although the mother clearly loves her children, this alone was not enough to make her feel that the mother was capable of managing the primary care of the children on a full-time basis as a single parent.

[84] In cross-examination, Ms Simpson-Organ testified that although she believed that the best placement for the children would be with the maternal uncle and aunt, she conceded that she never met the aunt or uncle or spoke to them, nor has she ever been to their home or visited the children there. She acknowledged that the mother was extremely motivated to have her children returned to her and that she may have been nervous in some of her sessions with her.

[85] Ms Simpson-Organ further acknowledged that although they did as much as they could to try to provide consistent information to her, the mother may have received conflicting directions from the numerous workers supervising and coaching her.

[86] Ms Susan Matthews, the children's service worker, testified that although the mother loves the boys and is totally committed to them, she observed that the mother is not able to handle the children on their own, placing them at a risk of harm. She also observed the earlier visits at the society offices between the mother and the children as chaotic and beyond the mother's control.

[87] According to Ms Matthews, the mother needs support and someone assisting her. As Ms Mathew's put it, "if the mother had someone assisting her, it would be ideal" because cannot parent on her own.

4.11: The Children and the Society's Plan of Care

[88] Ms Matthews has been the children's service worker since March of 2013, when they first came into the society's care. She has been employed as a child protection worker with the Halton society since 1989.

[89] Ms Matthews described the children as "delightful boys" who are thriving in the home of their maternal uncle and aunt. She testified that she has observed a "huge difference" in both children since her first involvement with them in March of 2013 and today.

[90] Ms Matthews testified that when the J., the youngest child, first came into foster care, there were concerns that he was autistic and that his speech was significantly delayed. An informal assessment was arranged through Erin Oaks Speech and Language Services and through a paediatrician, who noted expressive and receptive speech delay. Ms Matthews arranged services for J. through the Oakville Parent Child Centre from September of 2013 to June of 2014, where he received services for three half-days per week to address these concerns.

[91] J. also received a resource consultant through Halton's Children Developmental Services to provide him with services in the areas of fine motor, receptive, and expressive language skills, cognition, attention, executive functioning and social skills.

[92] J. was discharged from these services in July of 2014. He would continue to be monitored once he began full-day kindergarten in September of 2014.

[93] D., the older child, was also exhibiting a number of behavioural concerns when he first came into care. In his November 2013 grade one report, he was described as "Progressing with Difficulty". The school also identified a number of safety concerns, including aggressive behaviour and physical aggression towards others, such as hitting other children for no reason, running from school property and acting out, requiring constant redirection. The school recommended that he be referred to the special education program at Woodview Children's Centre.

[94] D. was accepted into this program prior to his move to his aunt and uncle's home, however, he could not attend this program out of the Halton region. He is now attending a regular school in the Peel region with his brother.

[95] Ms Matthews testified that since September of 2014, when the children moved into the maternal aunt and uncle's home they "both have done beautifully." Both children are doing well at school and D. is getting along very well with his peers and teachers. Currently, neither child is identified as having special needs.

[96] When the children first moved into the uncle and aunt's home, Ms Matthews testified that she saw the boys quite frequently, approximately three times each month and had contact with the family about twice weekly. Now, she seems them monthly, in addition to conducting required plan of care meetings.

[97] Ms Matthews describes the boys as now "incredibly happy" and in a very stable and loving home. She observed the children as very secure in this home and she sees great affection and love between the boys and their aunt and uncle and cousins. She observes them kissing and hugging their aunt and uncle, and being very comfortable with them, often sitting in their laps when she visits and participating in the conversations. Based on her personal observations, the boys are calm and secure in this home, contrary to the foster home. She described the foster home as much more chaotic for the boys.

[98] Ms Matthews testified that when the agency became concerned about permanency planning for the children, they approached the maternal uncle and aunt to offer "permanency" for the children. According to Ms Matthews, the aunt and uncle agreed to permanently plan for the children. They completed all of the necessary safety assessments to become "kin-in care" foster parents for the children. As Ms Matthews described it, they are acting as foster parents for the society, but they are kin-in-care parents.

[99] In cross-examination, Ms Matthews acknowledged that the children were living with the aunt and uncle for a period of approximately four months between November 2012 and March of 2013 after they were first apprehended from the parents. She acknowledged that this placement broke down. However, according to Ms Matthews, this was a voluntary kin 'out of care' arrangement, without society support. It was her understanding that the aunt and uncle could not commit at that time because they were caring for a sick parent.

[100] Ms Matthews testified that it is her sense that the aunt and uncle are now "one hundred percent" committed to these children. They have renovated their home, completed PRIDE training and all of the safety assessments required of foster parents. They love the boys and want to permanently plan for them and it is her impression that "the boys will be a part of this family forever."

[101] As crown wards, the family and the boys will receive ongoing support from the family, financial and otherwise, and Ms Matthews will continue as the child and youth worker for the family. Ms Matthews testified that she is very welcome in the home and her regular visits with the family are very positive and social events.

[102] Ms Matthews testified that both parents are also very welcome in the aunt and uncle's home, as well as other extended family members such as the paternal grandmother, who has visited them at the home. The mother attends the home twice weekly to see the children and never misses a visit. She is welcome at all family events including Eid celebrations, birthdays and other events. It is Ms Matthew's impression that the mother is very welcome in their home and that she is well-loved and respected as part of the family.

[103] The father has chosen not to visit the children at the home of the aunt and uncle for reasons unknown to Ms Matthews. According to Ms Matthews, the youngest child is confused about this and does not understand why is father is not seeing him. The older child does not ask about his father.

[104] When asked about the children's views and preferences, Ms Matthews testified that the youngest child is very happy living with his aunt and uncle although he loves seeing his mother. The oldest child is happy at the aunt and uncle's home but has consistently expressed that he wants to "live with his Mommy." These statements were permitted under the state of mind exception to the hearsay rule.

[105] In cross-examination, Ms Matthews was asked what would happen if the placement breaks down. She testified that if this happened, the children would first go back into foster care while the society looked at other kin placements. She acknowledged that the children, particularly J. did not do well in a foster home placement with strangers in the past. She acknowledged that the mother is totally committed to the children and there is no evidence that she would abandon them.

4.12: The Mother's Evidence

[106] The mother grew up in Mississauga and described a close relationship with her parents and siblings. The family moved frequently and she did not complete high school. She obtained her high school equivalency between 2005 and 2010, between the ages of 29 and 34 years old.

[107] The mother described suffering from Crohn's disease and a seizure disorder caused by epilepsy for most of her life. She described Crohn's disease as an irritable bowel syndrome that causes a lot of stomach pain and fatigue. She underwent major surgery for the disease in 2001 and obtained blood transfusions. She is currently under the care of a specialist at McMaster Hospital and takes medication to treat the symptoms. The mother testified that she follows up with this specialist every six months.

[108] The mother also has a specialist for her epilepsy. She is currently under the care of a neurologist and is prescribed medication to control the seizures. She follows up with this neurologist once every six months.

[109] In the past, the mother has been hospitalized for her seizures. She does not have a driver's license because she is not permitted to drive.

[110] When asked by the father in cross-examination when she had her last seizure, the mother initially testified that she did not know and then testified that it was "a while ago". She was unable to give more detail. When asked by the father in cross-examination, the mother denied having an epileptic seizure after court during this trial when she and the father walked to the bus stop together at the end of the day. She did not deny walking to the bus stop with the father after court.

[111] The mother also suffers from depression and is under the care of a psychiatrist. She is receiving medication to control and manage her depression and she meets with her psychiatrist approximately every six to eight months. In the past, she would meet with him every two months but that has changed. The mother is no longer undergoing any counselling. Her psychiatrist prescribes her medication and her appointments with him are not long, approximately five minutes.

[112] The mother testified that since the children were apprehended, she has done everything requested by the society. She has separated from the father and obtained a two bedroom apartment in Brampton close to her brother and sister-in-law and the children; she has undergone counselling and a number of parenting courses and parental coaching. The mother found this apartment on her own and arranged for the move without assistance from her family, financial or otherwise.

[113] The mother testified that on her own research and initiative, she found and successfully completed parenting courses through R.O.C.K. Parenting, Oakville Parent Child Centre and she underwent counselling for her abusive relationship with the father at Halton Family Services. Each of these programs was approximately eight to ten sessions in length.

[114] The mother described the parenting training and coaching that she received after the first assessment by Dr. Blake as very confusing. She testified that she had so many different workers watching her and telling her to do different things with the children. She gave examples of one worker telling her to discipline the children by using 'time outs' and putting them in the corner, while another worker told her that the children were too young for time outs. Another worker told her that if a child is upset, then to leave him alone instead of comforting him. The mother testified that this was very different from what she was told in the parenting courses that she completed. She testified that it became frustrating as all of the workers were telling her to do different things.

The Mother's Current Relationship with the Father

[115] The mother testified that she and the father are not together and she has no desire to reconcile with the father. She testified that the individual counselling she received from Halton's Family Services helped her to feel better about herself, to be stronger and not to blame herself or feel ashamed about the father's violence towards her. She does not feel the need to do any further counselling as she is happy on her own.

[116] In cross-examination, the mother was asked about an attempted reconciliation in the spring/summer of 2014 after she completed her counselling. The mother acknowledged that she did agree to go to counselling with the father at that time and that she stayed overnight for one night at his home as the counselling appointment was early the next day. She acknowledged calling Linda Brooks and telling her that she was going to counselling with the father "to see if we could reconcile."

[117] However, the mother explained that the attempt failed. She testified that the father would not even complete the enrolment forms to start the counselling. According to the mother, "We did not even get past filling out the forms. He refused. And if he can't even do that to try to get help, then that was it."

[118] The mother denied living with the father during that time in a trial reconciliation or spending a number of nights together. She testified that after the first attempt at counselling, she knew that the father had not changed. She believes that the father is in "denial" and does not accept that he has been violent towards her or abused drugs during their relationship.

[119] The mother admitted to handwriting an affidavit in June of 2014 at the father's request in which she stated that during incident that led to the children's apprehension, she was "not well". She also apologizes in the unsworn affidavit. She testified that her Crohn's was acting up and her depression was bad on the day the father assaulted her in front of the children, which is why she called Dr. Hack, leading to the society's intervention.

[120] The mother testified that on the day in question it was still true that the father had assaulted her in front of the children to get her oxycodone prescription because he was abusing prescription drugs. When asked then what was the point of writing the affidavit and apologizing for the father's conduct, the mother testified that the father had asked her to and also because, "I think this is a waste of everybody's time personally. And I was just saying sorry that everyone has to go through this, my family, my children, because it is not as bad as people are making it out to be."

[121] The mother then changed her evidence and said that she said she was sorry in the affidavit because she did not do something about this earlier and "get the kids out of the house" earlier. She felt that it was partly her fault that all of this had happened because she did not leave the father earlier.

[122] The mother testified that currently, she only talks to the father on the phone "once in a blue moon" about the children. She testified that she may speak to him on the phone once a week to give him updates about the children because he has not talked to the children or seen them after they moved to her brother and sister-in-law's home.

[123] When asked what her understanding of why he is not visiting the children, the mother testified that the father is under the impression that the society told him that he is not allowed to visit them.

[124] When asked whether she thought that the father had sufficient parenting skills to take care of the children on a full-time basis on his own, the mother testified that she did not have any concerns with the way the father parented the children while they were together. She testified that he loves the children and never abused them. She described in detail a co-parenting relationship in which the father was actively involved in laundry, cooking, bathing and looking after the children.

[125] The mother consistently testified that she did not think that he was a bad father, but he his refusal to "fess up" as she put it, to the drug abuse and violence still scares her.

[126] When asked whether she believes that the father is still abusing drugs, the mother testified that she did not think so because she can tell by the way his eyes look.

[127] When asked by society counsel what kind of visits she thinks that the father should have with the children if they were residing with her, the mother was unsure and then later testified after pausing, "maybe supervised visits?" The mother testified that she was uncertain whether the father's visits should be supervised. When pressed as to why she then stated that the father's visits should be supervised if she has no concerns, the mother testified that "Honestly, I don't know."

The Mother's Relationship with the Maternal Aunt and Uncle

[128] The mother testified that she and her family are very close and that her sister-in-law is one of her best friends. They grew up together and talk on the phone almost every day.

[129] The mother described her brother and sister-in-law as extremely supportive and respectful of her relationship with the children. She has been to their home on many occasions to spend time with the children. She has celebrated Christmas, Easter, Thanksgiving, and all of her family's holidays with them, such as Eid and birthday events. Although not religious like her brother and sister-in-law, the mother testified her family respects and supports her celebrating Christian holidays as well as her family's holidays with the children. She speaks to the children regularly on the telephone. She and her sister-in-law organized together J.'s last birthday party.

[130] The mother agreed that her brother and sister-in-law have a loving home and that the children are doing very well there. She testified that her brother and sister-in-law are taking good care of the boys and treat them with love and kindness. She described the children as doing very poorly in foster care and testified that they are much better now.

[131] The mother testified that she currently sees the children a minimum of twice each week at her brother's home, in addition to birthdays, family events, special occasions and religious holidays. She described a typical evening with the boys as starting at approximately 6:00 PM. Her brother and sister-in-law have already prepared dinner when she arrives and they usually eat dinner together. She helps the oldest child with his homework and then after dinner, they will do some activities together, such as puzzles and Lego, other activities.

[132] The mother testified that although she does the parenting during this time, her brother is always there, watching and supervising and allowing her to interact with the children and "do her own thing". She described the children as listening and following her direction. She makes sure that they do not leave the table until they finish dinner.

[133] The mother testified that she is also very close to her nieces and nephews, her brother and sister-in-law's four children. They are young adults, two in post-secondary education and employment and two close to finishing or finished high school. The mother described the accomplishments of her niece and nephews in detail and was very proud of them. She testified that they are also very close to the children and that the children love them.

The Mother's Plan of Care

[134] The mother testified that she would continue to live in the same two bedroom apartment close to her brother and sister-in-law. She described the apartment as close to everything, parks, groceries, and only a ten minute bus ride to her brother and sister-in-law's home. The mother receives ODSP and a small inheritance, which she will receive for the rest of her life. She is financially secure and can maintain the rent and utilities, including internet and land line. She does not need financial assistance from her family, with the exception of paying for the critique of Dr. Blake's parenting capacity assessment. She does not yet have beds for the children but she was confident that her brother and sister would give her the children's beds in their home.

[135] If the children were returned to her care, the mother testified that she would keep the children in the same school and after-care program that her brother and sister-in-law have currently registered them. The mother believes that she is in the same catchment area as her brother and sister, although she is not entirely sure. She does not know their address, although she knows how to get to their home by bus.

[136] The mother testified that if she was not in the same catchment area, then she would use her brother's address to ensure that the children stay in the same school. As she does not work, she will be able to drop off and pick up the children from school and aftercare each day.

[137] The mother testified that she would ensure that she has appropriate support services in place. She has a family doctor and dentist and she would continue to take the children to their current paediatrician in Mississauga.

[138] Besides her family support, the mother testified that she has two close friends that will provide assistance; one is a working mother of four children and the other lives in Etobicoke with her mother. She testified that her brother and sister-in-law and her cousins would also support her and that she has discussed this with them. She would continue to ensure that the children and her family spend a lot of time together.

4.13: The Father's Evidence

[139] The father testified that he cared for the children up to their apprehension and that there is no need for the supervision of his care. He denied abusing prescription drugs and denied being physically abusive to the mother. He testified that he has never been aggressive in nature and that he has never abused drugs.

[140] The father agreed that he was ingesting a lot of medication at the time of the apprehension, including benzodiapene, tomazepan, lorazepan, clonazepam and Seroquel. He testified that he is currently not taking any medication.

[141] On cross-examination by society counsel, the father testified that at the time that he was charged with dangerous driving with the children in the car, he had eight different prescription drugs in his system. The father admitted that the children were in the care at the time.

[142] The father's criminal trial for impaired and dangerous driving was completed shortly before this trial. The father testified that he was not found guilty of impaired driving because he was not intentionally impaired but he was found guilty of dangerous driving. The trial lasted five or more days and he was convicted of dangerous driving. He received a fine, an automatic suspension of his driver's license and a driving prohibition for an undetermined amount of time.

[143] The father did not deny taking all of the drugs in his system, but he testified that he did not intend to get impaired and that all of the drugs were prescribed. He denied taking the mother's medication or attending different doctors to obtain prescriptions, notwithstanding Dr. Hack's evidence at the trial regarding the protection finding.

[144] The father testified that he was diagnosed as a paranoid schizophrenic many years ago, he cannot recall when. He states that he functions day to day with little or no symptoms and receives ODSP. It was unclear if this is still his diagnosis. He lives with this brother in a home owned by his mother.

[145] The father described being the primary caregiver of the children when he and the mother were together. He feels that he has always been supportive of the mother and that he has done everything that he could to help her. The father testified that the mother is not capable of caring for the children on her own and that he parented the children while they were together.

[146] The father agreed that he has not seen the children in nine months. When asked by the court why, the father testified that he started to become unwell seeing the children at the society's office because it was becoming very negative. He testified that the society was just trying to find evidence to use against him as opposed to being positive. He started to feel mentally unwell, experiencing stress, anxiety, panic, and high blood pressure, so he stopped going. He testified that his judgment was also feeling clouded and he did not like how he felt at the society office.

[147] When asked why he was not being treated for these symptoms, the father testified that he has not seen a doctor because he does not have any symptoms and that it is only the CAS facility that causes him to feel this way.

[148] When asked why he was not seeing the children at the maternal uncle and aunt's home, the father initially testified that it was the distance from his home in Burlington to Mississauga, but also testified that there has been a lot of negative personal feelings and he just felt that "this is not going to work." He did not believe that this placement would work and he would not agree to visits with the children there. He testified that "this placement is a very dramatic difference from how I raised my children." He did not expand on what that meant.

[149] When asked in cross-examination if his relationship with the children was "all or nothing", the father responded by saying that the only way it will work would be if the children are in his sole custody and the mother has supervised access.

[150] When asked if he would see the children if the children remained in the aunt and uncle's care as crown wards with access to him and their mother, the father responded "probably not."

[151] When asked how his decision to stop seeing the children made them feel, the father testified, "probably not as bad as I feel, maybe equal." The father showed no emotion or remorse when he did made this statement or any others during his testimony regarding why he had stopped having any contact with the children.

[152] In cross-examination by society counsel, the father testified that the mother was not capable of caring for the children alone because of her Crohn's disease and her seizure disorder. The father testified that two days previously after court in this trial, they walked together to the bus stop and the mother had a seizure and lost control of her bowels. He testified that the mother went unconscious and blacks out and becomes delusional.

[153] The father testified that the mother has seizures all of the time and that he has seen them and the mother tells him about them. On one occasion when she was staying at his home, she fell and put her head through the wall in the bathroom. The father testified that this happened not long ago although he could not recall the date.

[154] Contrary to the mother's testimony, the father testified that he and the mother have a lot of contact. Until he lost his phone, they would speak almost daily. He has stayed over at her apartment on many occasions and she has stayed at his home as well. The father testified that the mother asks to come over to his house "all the time" but he has told her to wait until after this trial is over.

[155] When pressed by society counsel, the father testified that he has spent time in the mother's apartment and that she has spent time in his home. He described their relationship as sexually intimate. He testified that he stayed there for an entire week during his criminal trial for dangerous driving in Brampton as he had to be at court each morning.

[156] The father described the mother's apartment in detail. He knew the address and how to get there by bus. He described the colour of the kitchen, the counter-tops, the living room, the floor, the two bedrooms and the closet area. He testified that it was a double-entry kitchen. He described the furniture in the living room.

[157] The father acknowledged that the parties attempted reconciliation and that was his initiative. He agreed that they went to one counselling session but they did not actually start the counselling because he refused to sign any of the required forms.

[158] When asked why he would not sign any of the forms to enrol in counselling with the mother, the father testified that, "he had reason to believe that the C.A.S. has a lot of influential powers and this counselling agency was having ties with the C.A.S." He suspected this based on the questions in the registration form.

[159] In reply to this evidence by the father, the mother's counsel called Ms Rebecca Scott, a licensed paralegal in his office. Ms Scott attended the mother's apartment and took a series of photos of the rooms and lay-out. Contrary to the father's testimony, there was not a double entry to the kitchen however, there were many striking similarities between the father's description of the apartment and the photographs taken.

The Father's Plan of Care

[160] The father testified that the children should be in his sole custody and the mother should have supervised access. Supervision of his care is completely unnecessary, although he would agree to "in home drug testing". He would continue to reside in the home that he is living in with his brother. It is a three bedroom home owed by his mother. He might think of relocation in the future and his brother would be finding his own place.

[161] The father testified that if the children were returned to his care they would be "temporarily home schooled" because would like them to "catch up." He believed that he could get their grades a little higher. He did not explain what school they would later attend.

[162] The father testified that any access between the children and the mother would be supervised as the children cannot be left alone with her.

4.14: The Section 54 Assessment

[163] As indicated, Dr. Blake commenced the first parenting capacity assessment on October 1, 2013, pursuant to the joint retainer letter outlined earlier. The parties consented to an order that Dr. Blake would conduct a parenting capacity assessment of both parents pursuant to section 54(1) and (1.1) of the CFSA. Dr. Blake completed this assessment on November 15, 2013. Dr. Blake conducted an updated parenting capacity assessment of the mother only on March 20, 2014. His updated assessment report, entitled "Parenting Capacity Assessment Follow-Up" was completed on April 22, 2014.

[164] Both the original parenting capacity assessment report and the follow-up assessment report were filed as evidence in this trial.

[165] Although a court ordered 'section 54' assessment under the CFSA is admissible as evidence, the court directed that Dr. Blake should still be qualified an expert to give opinion evidence regarding his findings and recommendations of the parenting capacity of the parents, although a voir dire was not strictly necessary.

[166] Dr. Blake has been a licensed psychologist for 37 years, having obtained his Ph. D. in psychology and social work from the University of Toronto in 1975. Between 1984 and 2014, Dr. Blake has conducted approximately 300 parenting capacity and child custody assessment and continues to do so today. The majority of these assessments have been section 54 assessments. Dr. Blake estimated that he has been doing parenting assessments for approximately 30 years.

[167] Dr. Blake testified that his referral sources are primarily children aid societies. He has testified on numerous occasions on behalf of a number of different children's aid societies. He has been qualified as an expert witness in parenting capacity on approximately thirty to forty occasions.

[168] When asked what makes him an expert, Dr. Blake testified that over the years he has attended numerous workshops on parenting, he is a member of the Parenting Capacity Assessment Working Group, which meets approximately four times a year and he has presented on assessments and psychological or psychometric testing to a number of organizations. He has also been consulted as a psychologist on child and mental health issues for more than fourteen years.

[169] Dr. Blake testified that he has conducted psychological or psychometric testing on parents for many years and administers and interprets the results himself. He described these as standardized tests, the results of which are one component of his assessment, which he considers along with his clinical impressions, documentation and other sources of information to determine parenting capacity.

Dr. Blake's Assessment Process

[170] Dr. Blake testified that he follows a standard format when conducting the assessment. He first reviews the documentation provided, which in this case was the parties' joint referral letter and questions, the society case notes and recordings, the parents' medical and psychiatric records, pharmacy and drug test results, court documents including a statement of agreed facts, and Justice Zisman's reasons for judgment

[171] Dr. Blake testified that the assessment was then conducted on site at the Halton Children's Aid Society on October 1, 7 and 8, 2013 and consisted of the following:

1. Face to face meetings with the child protection workers, Jennifer Christian, Linda Brooks and Susan Matthews;

2. "In depth interviews" with the parents;

3. Clinical observations of the parents interaction with the children;

4. Psychological testing of the parents;

5. Telephone interview with foster mother and further telephone interview with Linda Brooks.

[172] Dr. Blake testified that he always interviews society workers first so that he can understand their perspective and gain an understanding of the child protection concerns. In this case, he met with the child protection workers on the first day of the assessment for approximately 3.5 to 4 hours in total.

[173] He did not see any concerns with bias or confirmation bias. He testified that he felt it was important for him to gain a thorough understanding of the nature of the child protection concerns and he then gives the parents an opportunity to respond.

[174] Dr. Blake then conducted a one hour observation of each parent during a supervised access visit at the society office. He conducted the observation through a one way observation glass.

[175] Dr. Blake did not think the location of the access visit in the society's office was an issue, "given the fact that the parents have all of their access visits there." The one hour observation gives him some idea about how the children respond to the parents and how the parents react. He supplements this observation by looking at CAS access notes and his interviews with CAS workers.

[176] Dr. Blake testified that he did not have any sense that either parent had any difficultly about being observed or that they were anxious about being observed.

[177] Dr. Blake then conducted the interview and psychological testing of each parent. Dr. Blake conducted the interview and psychological testing of the mother on October 7 th and conducted the interview and the psychological testing of the father on October 8 th , 2013.

[178] Dr. Blake estimated that the parent interview is approximately 1.5 hours long. This includes an assessment orientation to explain the process to the parents and to explain his role. After the interview, there is a break and then he conducts the psychological testing which takes approximately 2.5 to 3 hours.

[179] When asked in cross-examination, Dr. Blake did not see any issue with conducting the parent interview and the psychological testing all in one day. He testified that this is his standard protocol. He was aware that the mother had Crohn's disease and recognised that she gets fatigued, but he testified that the mother did not indicate that she was tired. According to Dr. Blake, "she was free to share with me if she was fatigued and needed a break."

[180] When asked why his interview with the mother did not include her developmental history, including her school history, relationship with parents, family history of mental illness etc. Dr. Blake acknowledged that he "did not really get into too much of that with her" as he did not consider it relevant and instead focused on her marital history with the father. He added that he did not have any information from society workers that the mother's developmental history was a concern.

[181] In terms of collateral sources, other than the three child protection workers interviews at length, Dr. Blake did not interview Dr. Hack, the parents' family doctor (who initially reported his concerns to the society), the mother's neurologist regarding her seizure disorder, the medical specialist treating the mother's Crohn's disease, the mother's psychiatrist or the father's psychiatrist. Dr. Blake testified that he reviewed the medical records so he did not feel it was necessary to interview these medical professional. He later testified that in his experience, he did not find doctors to be "very objective."

[182] Dr. Blake did not interview the maternal aunt and uncle although he knew that the children had been placed with them. He did not interview the paternal grandmother, nor did he interview any of the mother's counsellors regarding the individual and group counselling she undertook to address the issues with domestic violence or parenting. He did not interview the mother's roommates at that time as he assumed they would be biased.

[183] When asked if he would agree that collateral sources are important, Dr. Blake testified that it depended on who they are. As he put it, "I mainly interview society people to enhance my understanding of the society concerns."

[184] The only collateral source that Dr. Blake interviewed other than the society workers was the former foster parent. He testified that he interviewed the foster mother to understand the children's special needs and in particular, J.'s possible speech delay. He did not speak to Dr. Ansari, the children's paediatrician, who assessed J.'s speech development. When asked whether it would have been better to have spoken to Dr. Ansari about the child's speech development rather than the foster mother, he did not agree.

[185] In cross-examination, Dr. Blake would not agree that he relied heavily on the child protection workers information in his assessment, as these were the only collaterals he interviewed, other than the former foster parent. He testified that he can read the child protection workers' affidavits but it is critical to interview them. He further testified that he does not find parents' doctors to be "very objective."

[186] Dr. Blake did not interview the children, who were 6 years and 4 years old at the time of the assessments. According to Dr. Blake, he does not interview children who are that young. He did not feel that they were old enough to share important and useful information.

Dr. Blake's Psychometric Testing of the Parents

[187] Dr. Blake conducted the following psychometric testing of each parent:

1. The Adult Adolescent Parenting Inventory (AAPI);

2. The Parenting Stress Index Short-Form (PSI-SF);

3. The Weschsler Adult Intelligence Scale Revised (WAIS-R) (Digit Span, Picture Arrangement, Comprehension, Digit Similarities, Arithmetic Block Design Sub-tests)

4. The Revised Million Clinical Multiaxial Inventory (MCMC-II).

[188] According to Dr. Blake, the AAPI results for the mother indicated that she would be at risk of having inappropriate expectations of the children as they develop, would lack an appropriate empathetic understanding of the children's needs, and would be prone to role reversal tendencies in which her own emotional needs would take precedence over her children.

[189] The WAIS-R test indicated that the mother is "subject to a deficit in her common sense reasoning that, while mild, could place limits on her ability to profit from parenting education and to become more adept at managing her children's behaviour than she has shown to date. According to Dr. Blake, the tests also indicated a "degree of impairment in her judgment and common sense."

[190] When asked in examination why he used the WAIS-R instead of the newest version of the test, the WAIS-4, Dr. Blake testified that the newest version does not include the "picture arrangement" sub-test, which is an important sub-test when assessing cognitive impairment and intellectual functioning.

[191] Dr. Blake did not agree that the WAIS-4 is now the standardized test used that this test replaces the older WAIS-R, which is what he used. He testified that the version he used is still widely accessible and acceptable. According to Dr. Blake, it is available for purchase and still used.

[192] When asked why Dr. Blake concluded that the mother's judgment was in the "impairment range" when the test results indicated that she scored average on six of the seven tests performed and only below average on one of the sub-tests, Dr. Blake testified that he meant "mild" and when he concluded that the mother demonstrated a degree of impairment in her judgment.

[193] Dr. Blake used the revised Millon Clinical Multiaxial Inventory or the MCMI 2 to evaluate the mother's mental health and personality functioning. According to the results, the mother's profile was marked by significant elevations on one of ten personality scales (the Compulsive Scale ) and one of twelve clinical symptom scales ( the Delusional Disorder Scale ). Her Desirability Score was also significantly elevated, indicating a tendency to minimize psychological problems.

[194] Based on the MCMI 2 results, Dr. Blake concluded that the mother cannot be assumed to be free of mental health concerns. At the same time, apart from the stress associated with her involvement with the child protection system, the mother presented as reasonably stable and emotionally intact at the time of the assessment.

[195] When asked in cross-examination, Dr. Blake testified that the MCMI 2 is also widely accessible, still used by psychologists and available for purchase.

[196] According to Dr. Blake, the Parenting Stress Index Short Form test (PSI-Short Form) revealed that the mother had high parental stress scores. She perceives the children as difficult and that they do things that bother her "just to be mean". He concluded that the demands of full-time independent parenting would be expected to strain her parenting capacity.

[197] When asked why he used the Short Form, comprised of 36 questions, rather than the long form PSI of 120 questions, Dr. Blake testified that he used the short form for a number of years and found it to be reliable and likely that it would share the same validity as the long form test. He testified that it is "rather unlikely" that the results of the short form and long form tests would be different.

[198] Regarding the father's results, Dr. Blake concluded that due to a lack of candid responses, the results of the two of the three tests were not valid and could not provide a true picture of his susceptibility to emotional responses or his mental health status. His scores on the AAPI indicated an average theoretical understanding of the importance of being supportive of children emotionally but his understanding of normal child growth and development was highly deficient.

[199] With respect to the father, Dr. Blake found that the father's parenting skills to be seriously deficient and that his parenting capacity did not meet a minimally acceptable standard. Of paramount concern was his need for treatment based on ongoing risk of further drug abuse, and his difficulties with anger management. Dr. Blake found that the father's "unwillingness to acknowledge that he requires help in these areas constitute a serious barrier to his ability to function as a single parent."

[200] Notwithstanding these findings, Dr. Blake recommended supervised access in light of the children's emotional attachment to him. Dr. Blake opined that "although an eventual change to unsupervised access would not be completely ruled out, this should be at the discretion of the society and conditional upon major attitudinal changes and the success of therapeutic interventions in his identified need areas."

[201] With respect to the mother, Dr. Blake found that the mother had clear shortcomings with respect to her parenting skills but that she also had parenting strengths. Dr. Blake found that given the mother's strengths, it was not impossible that the mother's parenting could be brought up to an acceptable standard if certain intensive interventions were provided. Dr. Blake found that:

"While her deficiencies are fairly marked, the possibility that her behavioural management skills would become at least adequate with several months of intensive training on a weekly basis cannot be ruled out."

[202] Dr. Blake recommended that he conduct an updated parenting capacity assessment of the mother following the intensive parenting training that he described above.

[203] Dr. Blake conducted his follow-up parenting capacity assessment on March 20, 2014. The follow-up assessment was conducted on-site at the Halton Children's Aid Society on one day. It consisted of interviews with each of the three society workers who were involved in the parenting teaching and supervising of the mother after the first assessment and a further observation visit of the mother and children during a visit at the society office. In addition, Dr. Blake reviewed the workers' case notes and conducted an interview with the mother "to gain her perspective regarding improvements in her parental capacity that she feels she has made."

[204] Dr. Blake concluded that the mother's capacity to parent did not attain an acceptable standard despite the intensive behaviour training that she received and that her implementation of sound behaviour and interactive practices with her children was still inadequate. Among her identified difficulties were:

1. Failure to set out rules and expectations;

2. Insufficient attention to safety issues and failure to identify safety risks;

3. Tendencies to over-react in anger and over use of time-outs in response to non-compliance;

4. Failure to retain guidelines around the use of sugary drinks, glass, and toy weapons;

5. Succumbing to emotional blackmail based on her need for children's approval;

6. Tendency to give out inconsistent messages;

[205] Dr. Blake concluded that:

"Underlying [the mother's] inadequate parenting is her apparent inability to monitor her own behavior, her deficient organizational, planning and anticipation skills, her difficulty in sizing up a problem situation and arriving at a timely solution, enter rigidity as opposed to mental flexibility. These deficits, which fall within the realm of what is known as "executive functioning" and that involved the prefrontal area of the brain act so as to limit the mother's ability to profit from parenting education."

[206] When asked in cross-examination to explain his conclusion regarding the mother's executive functioning, Dr. Blake explained that he believes that" there is a deficit in the mother's executive functioning governed by the frontal lobe of the brain". Dr. Blake acknowledged that he did not conduct any testing to assess the mother's executive functioning but that testified that he was able to conclude this based upon his clinical observations.

[207] When asked whether the conclusions in his follow up assessment were based almost entirely on the observations of the family support workers, Dr. Blake did not agree but conceded that "they were weighted significantly".

4.15: Evidence of Dr. Monik Kalia

[208] Dr. Kalia was retained by the mother to conduct a critique of Dr. Blake's parenting capacity assessments.

[209] A voir dire was conducted to determine whether Dr. Kalia should be qualified as an expert to provide opinion evidence in the area of parenting capacity assessments.

[210] Dr. Kalia has been a registered psychologist in Ontario since 2007, having obtained a PhD in psychology in 2001. He has been conducting parenting capacity assessments since 2006. At the time of trial, he had conducted 38 assessments 12 of which were section 54 court ordered assessments. His primary referral source for doing parenting capacity assessments are children's aid societies. He has conducted parenting current capacity assessments for many children aid societies in Ontario, including the Peel, Hamilton, Toronto, Simcoe Durham and York children's aid agencies.

[211] Dr. Kalia is also a designated parenting capacity assessor for the peel children's aid society. This is a term which denotes that he is contracted by the society to conduct parenting capacity assessments for them as well as to provide the agency with consultation in high conflict cases. He's also been a consulting psychologist with the South Asian Welcome Centre since 2007 and works with that agency and the Peel Children's Aid Society in developing culturally sensitive

[212] Dr. Kalia been a member of the Parenting Capacity Assessor's Forum since 2009 and he has attended training programs and seminars with respect to parenting capacity assessments since 2009, according to the curriculum vitae that was provided to the court.

[213] Dr. Kalia is also trained as a licensed psychologist in conducting psychometric testing. In conducting his own parenting capacity assessments, Dr. Kalia administers the tests, scores the tests and interprets the tests himself. He has been conducting psychometric testing since 2007 after he was licensed and registered as a psychologist in Ontario. He is also a member of the Association of Family and Conciliation Courts.

[214] After being examined in cross-examined by counsel, and questioned by the court, Dr. Kalia was qualified, on consent of the parties as an expert witness qualified to give opinion evidence in the area of conducting parenting capacity assessments.

Dr. Kalia's Critique

[215] Dr. Kalia prepared a written critique of Dr. Blake's assessment, which was submitted in these proceedings. Dr. Kalia reviewed the two written assessments prepared by Dr. Blake. He testified that he has never met the mother nor has he spoken to her to anyone else in preparing his critique.

[216] Dr. Kalia has been retained to conduct critiques of parenting capacity assessments on at least three occasions. This is the first time that he has prepared a critique in which he had significant concerns about the methodology and process undertaken by the parenting capacity assessor.

[217] First, with respect to the psychological or psychometric testing, Dr. Kalia testified that he noted a number of deficiencies regarding the testing conducted by Dr. Blake on the mother. He expressed significant concerns about the tests selected by Dr. Blake and his analysis or interpretation of those tests.

[218] First, in Dr. Kalia's opinion, Dr. Blake should not have used the Wechsler Adult Intelligence Scale Revised (WAIS-R) to test the mother's intellectual functioning. Dr. Kalia testified that this older version of the test was discontinued approximately eighteen years ago. He described it as "obsolete" and that it has not been available through the publisher for approximately fifteen years. Dr. Kalia did not agree with Dr. Blake's testimony that this test is widely accessible and acceptable for use in parenting capacity assessments.

[219] Dr. Kalia explained that Dr. Blake's reasoning for using the WAIS-R, namely that the old version of the test includes the "picture arrangement" and "comprehension sub-test", is not clinically supported by current scientific research. He testified that the "picture arrangement sub-test" was precisely one of the problems with the old version. According to Dr. Kalia, the "picture arrangement" sub-test was discontinued from WAIS-R in 2006 because that test over-diagnoses problems in parents and lacks psychometric properties, thus significantly problematic.

[220] Regarding the comprehension sub-test, Dr. Kalia testified that Dr. Blake should have used the sub-test which is available in the current version of the WAIS-4 as it has significantly better psychometric properties. The content is also updated so that it is actually based upon the latest norms and information available from the research.

[221] With respect to MCMI-II that Dr. Blake used to assess the mother's mental health and personality functioning, Dr. Kalia testified that this test is also an obsolete and outdated test. This test has not been available through the publisher for many years now and the current version, the MCMI-III was published in 1994 and includes updated norms that came into the test in 2006.

[222] Dr. Kalia testified that clinicians and psychologists should be using the MCM-III when conducting psychological testing because it is more psychometrically sound. The new version of the test was developed to bring it in line with the DSM-IV. 45 of the 175 items in the MCMI-II used by Dr. Blake were changed. Dr. Kalia did not agree with Dr. Blake's testimony that the MCMI-II is still widely accessible and available for use and purchase. According to Dr. Kalia, the MCMI-II was discontinued approximately 18 years ago.

[223] Dr. Kalia explained that the MCMI-II test is used only to assess deficits or emotional and psychological disorders. Dr. Kalia explained that the problem with the older version of the test is not with over-diagnosis but rather with under-diagnosis, particularly in the context of parenting capacity assessments as parents try to portray themselves in a good light. In his opinion the older version of the test provides less accurate and more inconclusive results. He testified that it is not recommended that clinicians or psychologists continue to use obsolete and outdated psychological tests. According to Dr. Kalia, this is contrary to professional standards in psychology.

[224] Dr. Kalia also had concerns with Dr. Blake's use of the "Short Form" of the Parenting Stress Index test (the "PSI-SF"). Dr. Kalia did not agree with Dr. Blake's testimony that the PSI-SF test indicates good reliability and validity. Dr. Kalia testified that the PSI manual clearly states that the reliability and validity established for the PSI Long Version are not at all established for the PSI short version.

[225] According to Dr. Kalia, the shorter version has 36 questions and the longer version has approximately 136 questions. The longer version has 13 scales and the shorter version there are only three scales. Dr. Kalia testified that the shorter version is basically used for very "snapshot" assessments in primary health care centers and it should not be used for a "high stakes" assessment like a parenting capacity assessment. Dr. Kalia testified that the longer version of the PSI is the only standard that should be used in parenting capacity assessments as the shorter version is not validated.

[226] Dr. Kalia testified that he does not trust the results of the PSI short version, especially for a parenting capacity assessment because it does not give the assessor a full picture of the parent's strengths and weaknesses in the parenting domain. According to Dr. Kalia, it is not scientifically valid and it is the kind of test that a family doctor might use to get a "rough idea" of what is going on with a patient as it takes only approximately ten minutes to administer. Dr. Kalia testified that when doing a parenting capacity assessment for court purposes, which is in the nature of a forensic report, the PSI short form should not be used.

[227] Dr. Kalia also described at length the danger of using out of date psychological tests that are no longer available for purchase, particularly in the context of parenting capacity assessments. As he put it, we do not live in a static and unchanging world. New scientific observation and research goes on every day and the findings from this research are incorporated into the new psychological tests. The new tests contain different theoretical underpinnings, new norms, new ways to score, and new ways to interpret. According to Dr. Kalia, using the old versions will not give the psychologist any meaningful results.

[228] Dr. Kalia acknowledged that psychologists are allowed to "a grace period" of one year to transition from older versions of psychological tests to new versions. However in this case, the tests that Dr. Blake used had been discontinued for approximately 18 and 20 years respectively.

[229] In cross-examination, Dr. Kalia acknowledged that a psychologist who is more familiar with the older tests can use them, but he did not think that this was ethical. According to Dr. Kalia, the psychologist must stay current and regularly update himself with the new tests rather than rely upon tests which may be familiar but are outdated and obsolete.

[230] Dr. Kalia also disagreed with Dr. Blake's opinion that he did not need to do a test to conclude that the mother has a deficit in her "executive functioning" impacting on her ability to parent. Dr. Kalia agreed that clinical observations, interviews and collateral information gathered from multiple sources are important components in assessing executive functioning, which is a problem involving the prefrontal cortex of the brain. However, psychological testing is also necessary and should have been conducted. He testified that there are a number of tests that Dr. Blake could have used to assess executive functioning, such as the "Wisconsin Card Sorting Test", the "Trail-Making Test", and the "Halstead-Reitan Test".

[231] Dr. Kalia took issue with Dr. Blake's conclusion that the mother's problems in the prefrontal area of the brain could limit her ability to profit from parenting education. In his opinion, Dr. Blake did not have sufficient information to draw such a conclusion. Dr. Kalia described this as a "very sweeping comment", based largely on one source of impressionistic data, to make about the functioning of the brain and the prefrontal cortex, particularly without any kind of psychological testing.

[232] Dr. Kalia also raised a number of concerns about Dr. Blake's methodology. First, Dr. Blake's failure in both assessments to speak to any collateral sources of information other than the child protection workers and the foster parent. Dr. Kalia testified that information from multiple collateral sources is very critical in a parenting capacity assessment. The lack of multiple collateral sources of information to validate concerns was conspicuous, particularly the failure to speak to the family doctor, the mother's neurologist, the mother's Crohn's specialist, the parents' psychiatrists, and the maternal aunt and uncle.

[233] When questioned about Dr. Blake's testimony about the objectivity of these collateral sources, Dr. Kalia testified that even if Dr. Blake believed that these sources of information would not be objective, an assessor should still actually collect the data from multiple sources and interpret the data. As he put it "you cannot dismiss the data without getting it".

[234] Further, in Dr. Kalia's experience, medical professionals are professionals and they usually do not have any vested interest in the outcome of the report. Dr. Kalia testified that he always contacts medical professionals when he is conducting parenting capacity assessments. Further, he does not ask the medical professionals about parenting capacity, he asks them about the parent's medical issues, an area in which he does not have expertise. Dr. Kalia testified that he does not depend upon clinical notes from doctors because they are you generally not very complete.

[235] Dr. Kalia also expressed concerns about the absence in Dr. Blake's parenting capacity assessment report of the mother's own personal or developmental history. He testified that obtaining information about the parent's family of origin, her experiences in childhood, her experience with her own parents, her school and educational history, are all important pieces of information that can provide "greater authenticity" to the clinical opinion that is made in the end.

[236] Dr. Kalia also expressed concern that Dr. Blake completed the interview and psychological testing for each parent in one day. He testified that a single day for completing testing and interviews is unusual and not the norm. In his opinion, it generally takes multiple appointments to complete the inquiry, the interviews, and the psychological testing of the parents. The testing and interview process can be very tiring; parents can get tired but will not tell the assessor this because they want to portray themselves in a good light. Multiple appointments also give the assessor an opportunity to interact with the parent over a number of different days. Dr. Kalia testified that he normally conducts interviews and testing of parents over a couple of weeks in five or six sessions.

[237] Dr. Kalia was also critical of Dr. Blake's decision not to interview the children or observe them separately. Although an assessor should not do a structured for formal interview with children of that age (3 and 6), it is important to interact with the children in a very unstructured way to observe the emotional make-up of the child, any problems that they may be exhibiting during the interaction, and to obtain a better picture of the children and any difficulties they may have in their behaviors. He also testified that is important to see them at least twice on different days.

[238] Dr. Kalia also questioned the failure of Dr. Blake to include a description of the mother's understanding regarding the children's development or the current needs of her children. In Dr. Kalia's opinion, interviewing a parent regarding the developmental history of a child is crucial in a parenting capacity assessment.

[239] In summary, Dr. Kalia concluded that based on his review, Dr. Blake's assessment was more in the nature of a general psychological assessment rather than a parenting capacity assessment. He described this as the difference between a forensic and a clinical assessment. Clinical assessments are generally done for diagnostic evaluations. As a parenting correct capacity assessment should be forensic in nature, the assessor must cover everything in a far more comprehensive process, given its purpose and the "very high stakes" for the parents in court proceedings. There should also be checks and balances on all of the information gathered from multiple sources.

Part 5: The Law and Governing Legal Principles

[240] The governing legislation is the Child and Family Services Act ("the Act"). The paramount purpose of the Act is to promote the best interests, protection and well-being of children. The additional purposes of the Act, so long as they are consistent with the best interests, protection and wellbeing of children, are the following:

1. 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.

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

   a. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

   b. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

   c. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

   d. 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.

[241] Sections 64 and 65 of the Act govern status review applications. On a status review application, the court's jurisdiction to make a further order is set out under section 65 of the Act and provides as follows:

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

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

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

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

(d) make an order under section 57.1.

[242] When determining a status review application, the original order being reviewed, including the original finding of protection, is presumed to be correct.

[243] The court must then apply and consider a two part-test on a status review application as follows:

1. Do the children continue to be in need of protection? In determining what order is required to meet the child's best interests, the court must consider whether the degree to which the risk concerns that existed at the time of the initial protection application still exist today. This must be examined from the child's perspective.

2. If the answer to the first question is yes, then the court must determine what order is in the children's best interests, keeping in mind the least restrictive alternative necessary to suitably protect the children. This is in keeping with the scheme of the legislation to recognise the least disruptive course of action available and appropriate to help a particular child so long as it is consistent with the paramount purpose of the Act to promote the best interests, protection and well-being of children.

Part 6: Analysis

6.1: Do the Children Continue to be in Need of Protection?

[244] The mother concedes that the children continue to be in need of protection as submitted by the society. Based on the evidence at trial, the mother continues to suffer from a seizure disorder, Crohn's disease, depression and struggles with some parenting skills. She needs support and assistance in parenting the children.

[245] The evidence demonstrated that the mother was compliant with her treatment and medication for her mental and physical disorders and that she is extremely motivated to remain compliant with her treatment plan and medication. However, the court was concerned with the evidence of the father that the mother continues to have uncontrollable seizures that result in black outs, including one during this trial.

[246] Although the court found the mother far more credible than the father on many issues, the mother's evidence regarding the last time that she had experienced a seizure was evasive. She did not respond directly to the father's questioning on this issue and she was not called in reply to rebut the father's evidence in the incident at the GO bus station after court. She appeared to concede that the parties had walked to the bus station together but did not provide an alternate description of the events that occurred.

[247] The court was also concerned about the ongoing risk posed by the mother's relationship with the father and whether she would be able to ensure that the children do not have unsupervised contact with him if the children were placed in her care.

[248] The evidence is overwhelming that the children continue to be in need of protection from the father. The father's refusal to acknowledge that he was abusing prescription drugs, his refusal to get treatment for his abuse and addiction to prescription drugs, his refusal to acknowledge his physical abuse and violence toward the mother while under the influence of drugs, all continue to place the children at an ongoing risk of harm in his care.

[249] Further, the father's complete refusal to see the children or have contact with them at all for more than nine months at the time of trial demonstrate a complete lack of insight into the emotional harm that he is causing the children. The father's testimony demonstrated an "all or nothing" approach. If he could not have sole custody of the children with no society supervision, then he would not see them at all. This serious lack of judgment and maturity caused grave concern to the court and spoke volumes about the father's inability to be an effective parent to the children.

[250] The father's testimony during the trial about the agency's involvement also demonstrated what appeared to be paranoid thinking, causing the court to be concerned about the stability of his mental health. The father's refusal to sign the enrolment form to engage in marital counseling with the mother because he suspected that the society was secretly colluding with an independent counselling agency is but one example.

6.2: What Disposition Order is in the Children's Best Interests?

[251] As I have found that the children continue to be in need of protection, I must now determine what order is in the children's best interests, keeping in mind the least restrictive alternative necessary to suitably protect the children.

[252] Subsection 57(1) of the Act sets out the orders available to me on a status review application. This section reads as follows:

57 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

Supervision order

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.

Society wardship

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

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

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

[253] Subsection 57(2) of the Act requires that the court ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act.

[254] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing the children from the care of the persons who had charge of them immediately before intervention, unless I determine that these alternatives would be inadequate to protect the children.

[255] Subsection 57(4) of the Act requires the court look at community placements, including family members, before deciding to place a child in care.

[256] Subsection 57 (1) of the Act is limited by section 70 of the Act, which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding 12 months, if the child is less than six years old on the day the order is made, or a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless the time is extended as provided in subsection 70 (4). This subsection of the Act gives the court discretion to extend the time periods above by six months, if it is in the children's best interests to do so.

[257] Subsection 37(3) of the Act sets out the criteria to determine the children's best interests. It reads as follows:

Best interests of child

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

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

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

3. The child's cultural background.

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

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

6. The child's relationships by blood or through an adoption order.

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.

[258] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. I must consider the least disruptive course of action necessary to assist a child so long as it consistent with a child's best interests.

[259] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence and only after a careful examination of possible alternative remedies.

[260] It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests.

6.3: Analysis of the Parenting Capacity Assessment and Critique

[261] Courts should always treat assessments with caution. A psychological assessment is not determinative of a parent's ability to parent. The assessor does not have the benefit of the full evidentiary record that the judge has. These reports, by their very nature, are predictive. They are just one piece of evidence. It is important for the court is to evaluate how the findings do or do not correspond with the evidence presented.

[262] The court is aware of the 2015 decision of M. v. F. in which the Ontario Court of Appeal expressed questions about the utility and even the admissibility of critique evidence in family law cases. In that case, the Court of Appeal held that critique evidence about a court-appointed assessment must meet the Mohan test for admissibility and upheld the trial judge's rejection of the expert opinion retained by the mother regarding the recommendations of the court appointed assessor. However, that case involved a high conflict parenting dispute between private litigants in a custody and access proceeding about overnight visitation. A custody and access order is always subject to variation in the event of the material change in circumstances affecting the child's best interests.

[263] In this case, the critique evidence of Dr. Kalia relates to a section 54 assessment under the CFSA for use in a child protection proceeding where the state is a party (and the applicant) to the proceeding and the order being sought is crown wardship--the permanent severance of the parent-child relationship. Further, the critique was solely concerned with the validity and reliability of the scientific testing conducted, as well as the methodology and process used by Dr. Blake in determining parenting capacity. The voir dire conducted demonstrated that Dr. Kalia's expertise clearly met the Mohan test for admissibility.

[264] The use of critique evidence by vulnerable parents in child protection proceedings commenced by the state against them is fundamentally different than the critique evidence used in a high conflict parenting dispute about overnight visitation, which was the case of M. v. F., supra. Other courts have admitted expert critique evidence in child protection proceedings in circumstances similar to the case before me.

[265] Dr. Kalia was a reasonable and reliable witness. He provided balanced and careful evidence. He was very clear that he was only providing a critique of the psychometric testing, methodology and process employed by Dr. Blake in conducting his parenting capacity assessment. He readily conceded that despite the different tests and methodology that in his opinion should have been used by Dr. Blake, they could very well have wielded the same result.

[266] Dr. Kalia, although hired by the mother, was not a "hired gun". He testified that he did not speak to the mother or counsel before or during his critique, as is his practice, and that he only reads the reports, nothing else. On the two previous occasions that he has been retained to provide a critique of a parenting capacity assessment, he found nothing wrong with either assessment and reported that to counsel. He testifies that he does his best to remain as objective as possible, and bases his critique on the report itself, the literature and science, and his knowledge and experience in the field of parenting capacity assessments regarding methodology and testing.

[267] In my view, Dr. Kalia raised valid and significant concerns regarding the methodology and science used by Dr. Blake in conducting his parenting capacity assessment and updated assessment.

[268] The court treated Dr. Blake's assessment with considerable caution and placed very little, if any weight on it for the following reasons.

[269] There were some significant issues which call into question the methodology and science behind the psychometric testing used by Dr. Blake and the methodology employed in his parenting capacity assessment. Dr. Blake used the WAIS-R test and the MCRM-II. Both of these tests are no longer available for purchase from the publisher because they are considered obsolete and outdated, contrary to Dr. Blake's original testimony. The court accepts that these tests have not been available for approximately 18 and 20 years.

[270] After hearing the evidence of Dr. Kalia, the society called Dr. Blake in reply to address some of the serious concerns raised by Dr. Kalia. Dr. Blake conceded that Dr. Kalia was "partially correct" when he testified that the tests chosen by him have been discontinued and not available for use for a considerable length of time. Dr. Blake explained that he chose these older tests because he preferred them. However, nowhere in his testimony did he address the outdated norms upon which these tests are based and the fact that they were no longer scientifically valid.

[271] The court was also concerned that Dr. Blake was not entirely candid with the court in his earlier testimony when he stated that these tests are still widely accessible and available for use. He was also often defensive and argumentative during his testimony in cross-examination and would not concede this point until after the evidence of the mother's expert witness clearly demonstrated that the tests he used are no longer accessible or widely used and have been discontinued by the publisher.

[272] In his final report, Dr. Blake opined that the mother suffers from deficits in "executive functioning" that involve the "pre-frontal area of the brain so as to limit her ability to profit from parenting education." Dr. Blake conceded that he did not administer any tests to assess executive functioning in either the original or updated assessment. The court accepts Dr. Kalia's opinion that Dr. Blake's conclusion that the mother has a deficit in her neuropsychological functioning without assessing this formally is very problematic.

[273] Dr. Blake used the "short form" Parent Stress Index (PSI) test rather than the long form. The court accepts Dr. Kalia's evidence that the PSI short form is not a reliable tool in parenting capacity assessment. Much more information could have been gathered about the parents functioning using the long form, which although longer to administer covered all of the questions and scales in the short form as well as 100 more questions. The court was concerned that Dr. Blake used the short form because it was much shorter to administer. As this was a forensic and not a clinical assessment, the long form, a much more comprehensive tool, should have been used.

[274] Dr. Blake's assessment overwhelmingly, if not solely relied on the information provided to him by the child protection workers as his "collateral" sources of information. He failed to interview any other collateral source, other than the foster mother. The failure to personally speak to or interview the family doctor, and the three medical specialists treating the mother's seizure disorder, her Crohn's disease and her Major Depressive disorder, not to mention to the maternal aunt and uncle was very concerning to the court. Dr. Blake's conclusion that these medical professionals would likely not be very objective, while assuming without question that the child protection workers would be objective was problematic, particularly given that the society is a party in this litigation.

[275] Dr. Blake did not gather information regarding the mother's developmental history. Dr. Blake testified that in his view, her marital history with her husband was more relevant than her childhood, educational and developmental history or family origin.

[276] Dr. Blake did not provide any developmental history of the children in his assessment. He did not speak to the developmental paediatrician to the youngest child and relied upon the information from the foster parent regarding the child's special needs.

[277] Dr. Blake conducted all of the interviews and testing of each parent in a single day. The court accepts Dr. Kalia's evidence that this is not the norm and that the testing and interviews should have been conducted over multiple sessions and days to accurately assess the parent, given that the process is very tiring and people can have bad days and good days. This is particularly so in this case given that the mother suffers from Crohn's disease, a disease in which chronic and often extreme fatigue is a significant symptom.

[278] Dr. Blake's testimony that the mother "was free to share with me if she was fatigued and needed a break" was very concerning. Parents who participate in court ordered parenting capacity assessments are obviously fearful of doing anything that may be construed as negative to the assessor and they generally try to present themselves in the best possible light. The court was surprised that Dr. Blake could not appreciate this.

[279] At the conclusion of his follow-up assessment, Dr. Blake opined in the last and concluding paragraph that the option that would be the "best prospect" for these children's permanent placement would be a kinship placement with the mother's brother and his wife (the maternal aunt and uncle.)

[280] Dr. Blake was not asked to make recommendations about the children's placement. The written questions posed by counsel for the society and the parents were solely related to the issue of parenting capacity. The assessor should not be answering a question that was not asked of him. Further, Dr. Blake did not even personally speak to or interview the maternal aunt and uncle. Presumably, Dr. Blake was relying upon the information that he received from the child protection workers when coming to this opinion.

[281] The court agrees with Dr. Kalia that Dr. Blake's assessment was more in the nature of a general psychological assessment rather than a parenting capacity assessment which should be a forensic in nature, not clinical given the potentially very serious implications regarding the findings made.

[282] It is not disputed that the society immediately amended its status review application and sought crown wardship, based on the outcome of Dr. Blake's second, follow-up assessment.

6.4: The Mother's Plan of Care

[283] The following are the positive factors in the plan to place the children with the mother:

1. The mother has separated from the father and obtained stable and permanent housing separate from the father and close to her brother and sister-in-aw and the children;

2. The mother is has been totally cooperative with the society. She has followed through and complied with all of the terms and conditions of the January 2, 2014 Final Order. She has done everything that the society has asked of her;

3. The mother has followed through with individual counselling through Halton Family Services. The mother attended and completed individual counselling in the Violence against Women program. The mother also attended and completed an eight week parenting program on her own initiative;

4. The mother has kept the society informed of any changes of contact information, appointments with professionals and additional services that she has sought out. She is willing to meet with the society in her home or at the society's office when requested;

5. The mother has attended very access visit with the children, always on time and she came prepared with food and activities when the visits were supervised by the society.

6. The mother consistently attends all of her access visits with the children. She arrives on time and provides the children with food and presents at each visit. Since the children have been residing with her brother and sister-in-law, the mother has consistently attended twice weekly at their home to visit the children, in addition to special occasions and family events. No concerns have been reported and according to Susan Matthews, the children's service worker, the mother has demonstrated a real commitment to the children;

7. The children love the mother and enjoy their time with her and are very attached to her. The oldest child has expressed that he would like to live with the mother.

8. The mother is devoted to the children and loves them very much.

9. The mother continues to address her mental health issues and continues to see her psychiatrist and comply with her medication and treatment plan for her Major Depressive Disorder. She appears to be stable and to be complying with treatment and medication;

10. The mother fully participated in the intensive parenting supports and coaching put in place for her in January and February of 2014;

11. The mother has demonstrated commitment and motivation to the children and she is extremely devoted to the children.

[284] The following are the negative factors in the mother's plan:

1. The mother suffers from Crohn's disease, an epileptic seizure disorder and a major depressive disorder. The court finds that there is a real risk that the mother will not be able to effectively parent the children full-time as a single parent while coping with these physical, neurological and mental disorders, thereby placing the children at risk of harm if she is unable to properly parent and supervise them. It seemed clear during the evidence of both parents, and in particular the mother's evidence in cross-examination, that despite the father's very serious parenting deficiencies, they were co-parenting the children while they were together, thus compensating for each other's deficiencies.

2. The court was concerned that the mother did not seem to fully appreciate the impact of her Crohn's disease, her seizure disorder and her major depressive disorder on her ability to parent two active young boys alone as a single parent.

3. There was also some evidence that the mother has had a recent seizure. The mother was evasive when asked by the father when she had her last seizure during his cross-examination. The mother did not rebut the father's evidence that she experienced a seizure on her way home from court during this trial. Although the court has concerns about the father's credibility, the father gave detailed evidence about this incident. The mother did not provide any reply evidence regarding this incident, although she did not deny that she and the father walked to the bus stop together after court. The court is concerned about the risk of harm that the children may be exposed to if the mother suffers from a seizure and black-out while the children are alone in her care, or is overwhelmed with full-time parenting as a single parent while suffering from Crohn's disease.

4. There is evidence that the mother continues to have some kind of relationship with the father, and that although they have separate homes, they continue to see each other and stay over at each other's homes. The father gave a very detailed description of the mother's apartment and testified that he had stayed over on a number of nights. Although he was mistaken about the "double entry kitchen", according to the photographs entered by Ms Scott, he was not mistaken about the other details and the description of the apartment and furniture. Again, the mother did not rebut this evidence in reply.

5. The mother did not appreciate that the father's access to the children needs to be supervised. There is a real concern that if the children are placed in the mother's care, then she would permit unsupervised access between the children and the father. When directly asked this question by the society, the mother was uncertain if the father's access should be supervised and greatly minimized the protection concerns about the father. She continued to assert that he was a good father who never abused the children.

6. Even if the court accepts that the mother does not want to reconcile with the father by resuming cohabitation with him, there is a risk that the mother would permit the father to have unsupervised access to the children if they were returned to her care, thereby placing them at risk of harm.

7. Although the court places very little if no weight on the parenting capacity assessments conducted by Dr. Blake as a result of their flawed methodology and process, the court accepts the evidence of the evidence of Ms Brooks, Ms Matthews and Ms Kim, based on their direct observations and involvement regarding the mother's parenting skills. The court itself had concerns about the mother's judgment and understanding of basic parenting concepts when asked in cross-examination about basic parenting strategies, such as the concept of "role modelling" and effective discipline.

6.5: The Services Provided by the Society to the Mother

[285] The society has a statutory duty to try to provide services to assist parents before a child is permanently removed from the home. Section 15 (3) (c) of the Act provides that the society is required, among other things, to provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children.

[286] Further, prior to making an order that would permanently remove the children from the care of the parents the court is required under section 57(2) of the Act to ask what efforts the society made to assist the children before intervention.

[287] The following are the services provided by the society:

1. It provided the mother with a family service worker, a child and youth service worker and three family support workers;

2. It arranged for assessments of the youngest child's speech and development through Erin Oaks and Dr. Ansari;

3. It provided services for J.s speech development through Halton Family Services three days each week until September 2014

4. It referred the oldest child for services at the Woodview Children's Centre;

5. It referred the mother to counselling for abused women services through Halton Family Services;

6. It arranged for two parenting capacity assessments, one for the father and two of the mother;

7. It provided parenting training, coaching and support following the first parenting capacity assessment of Dr. Blake;

8. Although not directly to the parents, the society conducted a comprehensive kin assessment of the maternal uncle and aunt's home and provided financial assistance to them to assist in the renovations of the home to permit the aunt and uncle to become "kin-in-care" foster parents, thereby permitting the aunt and uncle to care for the children on a permanent basis with financial assistance from the society as provisional foster parents, so that the children can remain with the mother's family, with whom she is very close.

[288] Based on the recommendations provided by Dr. Blake in the first assessment, the society was to provide the mother with some "intensive family support" for several months prior to an updated assessment conducted by Dr. Blake.

[289] In my view, the training provided could have been more intensive. The entire "intensive" parenting training provided by the society took place between mid-January and late February/March of 2014. It is not disputed that three family support workers met with the mother during this time. Ms Simpson-Organ testified that she met with the mother four times to provide parenting advice and coaching without the children present. Those were the only four sessions that took place outside of the context of supervised access visits.

[290] There were significant increases made to the mother's access with the children during that time. Ms Kathy Kim and Ms Vanessa Box-Jones testified that they were involved in providing parenting and raining support during those sessions. Ms Kim supervised and assisted in seven sessions of approximately 1.5 hours each. Ms Kim testified that she would provide suggestions and feedback at the end of the visits to the mother rather than during the visits because it was easier for the mother to retain information that way. It was clear that during the visit she was largely observing. Ms Vanessa Box-Jones was also involved in a weekly basis, again supervising the visits and making suggestions after the fact.

[291] There was also some evidence that the workers involved were giving the mother mixed messages regarding the parenting advice provided. The mother also testified that it was confusing to be working with three different workers who were giving her conflicting advice which the court accepts.

[292] It was clear from listening to the evidence of the workers that the coaching and parenting style of Ms Kim was markedly different from Ms Box-Jones. The court was also concerned that Ms Box-Jones was overwhelmingly negative in her evidence about the mother. She had difficulty finding anything positive to say during her testimony. She was very critical of the mother for bringing sugary snacks, "fast foods" and pop drinks to the access visits, which are not child protection issues, and suggests that she was imposing middle class standards on the mother's parenting.

[293] The evidence of Ms Kim was balanced and reliable in my view. She noted many positive aspects of the mother's parenting, but expressed concern about some aspects of the mother's parenting that raise child protection issues. Ms Kim had the benefit of working with the mother over an extended period of time, and worked with her on seven separate occasions over a period of seven weeks, each session lasting 90 minutes in length, and in semi-supervised and sometimes public settings.

[294] The court accepts Ms Kim's evidence that notwithstanding some gains, the mother was not able to recognise potential dangers when the children were in her care, she had unreasonable expectations of the children based on their age and development, and did not make any progress in the areas of multi-tasking, discipline and the ability to foresee danger.

[295] Ms Kim also acknowledged that the mother may be able to develop those skills with more training but she questioned whether the mother had the capacity to develop those skills. She candidly acknowledged that she did not have the expertise to answer that question.

[296] Nevertheless, by this time, the children had been in the society's care for one year while the mother worked very hard to address the protection concerns raised by the society, with little success. In my view, the society fulfilled its duty to provide services to both parents, and in particular to the mother, who was extremely motivated. A standard of perfection is not required of the society.

6.6: The Father's Plan of Care

[297] Unfortunately, there is no merit to the father's plan of care for the reasons set out earlier in this decision regarding the protection finding. The court finds that the risk of physical and emotional harm to the children if placed with the father is very high, given the father's refusal to acknowledge any of the protection concerns that led to the children's apprehension and his refusal to have any contact with the children for approximately one year unless unsupervised in his care.

[298] The children could not be adequately protected in the father's care children with a supervision order as the court finds that the father will clearly not cooperate with ongoing society supervision. The father has failed to comply with the terms and conditions of the Final Order under review since he denies the protection concerns. He has made it clear throughout this trial that he will not cooperate with the society. He refuses to exercise access at the society's office or at the home of the maternal aunt and uncle.

6.7: The Society's Plan of Care

[299] The society's plan is to make the children crown wards but to permanently place them with the mother's brother and sister in law as kin in care foster parents with access to the parents. The society does not plan to seek adoption for the children. The society wants to provide the children with a permanent and stable home with their extended family while maintaining the children's relationship with their mother and father.

[300] The society seeks crown wardship with the maternal aunt and uncle as permanent kin in care foster parents rather than a section 57.1 custody order placing the children with the maternal aunt and uncle so that they can continue to provide the aunt and uncle with the financial resources and supports available to foster parents.

[301] In my view, having carefully considered all of the evidence, the society's plan is the least disruptive alternative for the children, consistent with the children's best interests for the following reasons:

1. The maternal aunt and uncle and their family love the children very much and the children love them. The evidence is undisputed that there is obvious love and affection between the children and the aunt and uncle.

2. The evidence is also overwhelming and not disputed that the children are thriving in the care of the maternal aunt and uncle. The mother readily conceded that in her testimony.

3. The children will continue to maintain close and loving relationship with their mother, who is very welcome in her brother's and sister-in-law's home, and she visits the children regularly at the home and for all special occasions. The children are living with blood relatives and close extended family members.

4. When the children first came into care, they were identified as having significant special needs and possibly autistic. The oldest boy was identified as having significant behavioral problems. The evidence is overwhelming that the children are now functioning without any special needs, have no behavioral issues, and are doing very well at school.

5. The mother's plan to parent the children as a single parent given her Crohn's disease, her seizure disorder, and her major depressive disorder, creates an unacceptably high risk to the children should something happen to her while the children are in her care.

6. The society's plan will best meet the children's need for continuity and a stable place in a family.

7. The society's plan will best meet the children's physical, mental and emotional needs;

8. It is not in the children's best interests to delay permanency planning any further.

[302] The court recognizes that one of the negative factors in the society's plan is the potential risk for a breakdown in the children's placement with the aunt and uncle. The society readily conceded that if the placement breakdown occurs, and the children would be returned to foster care pending the investigation of another permanent plan for them.

[303] It is acknowledged that the maternal aunt and uncle did return the children to the society's care when they were first place with them for a period of approximately four months after they were originally apprehended from the parents. However at that time, the maternal aunt and uncle had no financial or other support from the children's aid society, and they were grappling with an ill parent shortly after the initial apprehension in 2012.

[304] The mother's counsel asks me to draw an adverse influence against the society's plan of care for failing to call the aunt and uncle as witnesses during this trial. When asked, Ms Skrow, on behalf of the society, submitted that the society thought very carefully about calling the aunt and uncle as witnesses but decided against this as the agency was very concerned about jeopardizing the relationship between the mother and her brother and sister-in-law should they give evidence.

[305] The court is not inclined to draw an adverse influence against the society for failure to call the aunt and uncle. The mother could also have called the aunt and uncle as witnesses in support of her plan, but chose not to do so. The evidence demonstrates that the children have been residing with the aunt and uncle for almost two years in a permanent placement with society support and resources, a very different scenario when they were initially asked immediately after the apprehension.

[306] The court also recognises that the mother loves her children very much and has worked extremely hard to address the child protection concerns and her parenting deficits. She is devoted to her children. However, even if the mother makes profound parenting gains, which the court does not accept based on the evidence, the court is very cautious about changing the children's placement at this time. The children have been in a stable home since September of 2014. They are thriving. There is a significant risk that the behaviour and concerns identified when the children were first brought into care would reappear if returned to the mother's care based on the concerns identified above.

[307] Further, the mother has only had supervised access with the children since 2013. It would be irresponsible for a court to return the children to her care until she could demonstrate that she could adequately parent the children without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the children with the mother without first testing whether she could adequately parent them, first, on a fully unsupervised basis, second for full days, and third, for overnight visits.

[308] Ms Klemencic fairly concedes on behalf of the mother that there would need to be a transitional plan to ensure that the return of the children was successful. She proposed a graduated transitional plan that was approximately six to eight weeks in length.

[309] Respectfully, the court disagrees with the time frame proposed as being far too short. This process would need to take place over a very lengthy period for the court to effectively evaluate whether a return of the children was viable. There is a significant difference between managing two active boys in a structured setting for a short period of time and caring for them as a single parent full-time. A more realistic time frame would be six to nine months. The time to attempt extended access in this manner has long passed as the statutory timelines in the Act have been exceeded.

Part 7: Access

[310] Once a disposition of crown wardship is made, the Act provides for a presumption against access. The current test for access to crown wards is set out in subsection 59 (2.1) of the Act, which reads as follows:

Access: Crown ward

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

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

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

[311] The onus to rebut the presumption against access to a crown ward is on the person seeking access. This person has the onus of establishing both portions of the test (the two-part test) in subsection 59 (2.1) of the Act.

[312] The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.

[313] The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examine the quality of the relationship from the child's perspective.

[314] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J. where he said:

(45) "What is a "beneficial and meaningful" relationship in clause 59(2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

(46) I read clause 59(2) (a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

(47) Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made."

[315] More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. Even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

[316] The society concedes that the mother has met the two-part test for access under the Act and recognized that there must be ongoing access between the mother and the children and are not seeking that it be decreased. Although the children will be made crown wards, this is not an ordinary case. The permanent plan involves placing the children with extended family members of the mother who have a very close and loving relationship with the mother and the children.

[317] The society's position regarding the father's access to the children was less clear, given the father's refusal to see the children for almost one year at the time of the trial. Nevertheless, it is not disputed that the oldest child in particular misses the father.

Part 8: Final Order

[318] There shall be a final order as follows:

1. The children shall be made crown wards, to remain in the kin-in-care permanent foster home of the maternal aunt and uncle;

2. The children shall have access to the mother and the father and the mother and father shall have access to the children.

3. Access between the mother and the children shall take place a minimum of twice weekly, supervised visits at the home of the maternal uncle and aunt, the duration and timing to be subject to society's discretion in consultation with the uncle and aunt, in addition to any other special occasions and family events, such as holidays and birthdays.

4. The society, in consultation with the maternal aunt and uncle, will review the mother's access with the children on an ongoing basis, and assess whether it can be expanded in the future.

5. Access between the father and the children shall remain supervised, at the discretion of the society.

[319] The court wishes to commend the mother for her devotion and commitment to the children and recognizes that this decision will be difficult for her.

[320] Finally, the court thanks counsel for their excellent advocacy and professionalism throughout this trial and for the thorough presentation of the evidence by all of the parties.

Date: May 24, 2016

Signed: "Justice Sheilagh O'Connell"