PUBLICATION BAN NOTICE

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The Court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

COURT INFORMATION

Court File No.: 114/09 and 112/14

Date: 2016-06-01

Ontario Court of Justice

Between:

The Children's Aid Society of Haldimand-Norfolk

Applicant

– And –

C.R.

Respondent

– And –

J.R.E.K.

Respondent

– And –

J.E.C.

Respondent

Before: Justice K.A. Baker

Heard on: January 25, 26, 27, 29, April 11, 12, 13, 14, and May 4, 2016

Reasons for Judgment released on: June 1, 2016

COUNSEL

B. Culp — Counsel for the Children's Aid Society of Haldimand-Norfolk

E. Kiernan — Counsel for C.R.

J.R.E.K. — In Person

F. Bushell — Counsel for J.C.

K. Junger — Counsel for Office of the Children's Lawyer

DECISION

BAKER, J.:

OVERVIEW

[1] This was a trial of an amended Protection Application for the three subject children I.R., born […], 2009, E.R., born […], 2010 and K.R. born […], 2014. In its pleadings, the Society is seeking findings of protection for all three children and an order for Crown Wardship without access for all three children. In opening submissions however, the Society indicated it would support an order placing the child K. in the care of the father, subject to a supervision order, with a proviso that mother have no access. The father of the child K., J.C., is advancing a claim for custody pursuant to section 57.1 of the Child and Family Services Act. The mother is seeking the return of the children to her care. Mr. K., father of the two older children supports this plan. The OCL supports the application of the Society in relation to the children I. and E., and seeks an order placing K. with his father subject to a supervision order.

THE EVIDENCE

[2] Kelly Burke has been the family service worker since November 2014. Ms. Burke met with the previous worker, Islay McFadden and received information about the background of the matter. She also reviewed the entirety of the case file. Ms. Burke understood that the mother had six children in total. The mother's older three children had been removed from her care previously.

[3] The subject child I. had been removed from the mother's care at birth due to concerns of the risk of physical harm. I. remained in care until he was twenty months of age, at which time he was returned to the mother under the Society's supervision. At the time of E.'s birth, the mother was seen as meeting minimum requirements in her ability to parent, and E. was accordingly left in the care of the mother, subject to the same terms of supervision as her sibling.

[4] I. and E. were then apprehended in May of 2014 after I. disclosed bullying behaviour from the mother, and being hit with a stick. These allegations were verified by the Society. The two children remained in care for approximately one month, when they were returned by the court over the Society's objection, to the mother, pursuant to a temporary order of supervision. One of the terms of supervision required that the mother not employ physical discipline nor allow anyone else to do so.

[5] In October 2014, the previous worker, Ms. McFadden, completed a subsequent investigation that again verified physical abuse, and the three children (K. had been born in […] of that year) were all re-apprehended.

[6] Ms. Burke first met with the mother independent of the previous worker in November 2014. The two discussed what services might alleviate the concerns of the Society and agreed that there were no services of this nature. The mother had already participated extensively in services, including those of a psychiatric nature with a parenting component, counseling, parenting courses, behaviour management coaching, visits from a public health nurse, as well as from a family home worker. The mother had also attended Ontario Early Years Centre and the pregnancy centre for services. In fact, the mother had attended some of these services more than once over the timeframe of 2000 to 2014. Ms. Burke explained to the mother during this meeting that the Society took the view that she (the mother) had abused her children and that she would continue to do so. The mother was steadfast in her claim that she would never hurt her children and she accordingly did not need to go for more services. The mother did say that she clearly understood the Society position.

[7] The mother confirmed that she was securing community support through attending at the pregnancy centre and in counseling with her pastor Jeff McLeod.

[8] This meeting ended amicably and Ms. Burke felt that she and the mother were able to talk to each other.

[9] The second meeting, in January 2015, was not quite as positive. By this point Ms. Burke had more thoroughly reviewed the Society file. The mother began the meeting by addressing the past issues with her oldest daughter A., asserting that there was no evidence that A. had been subjected to abuse. Ms. Burke demurred, saying she was of the view that the file held evidence in this regard. The mother appeared to become angry, and she began pacing and speaking more abruptly.

[10] Just prior to this time a kin assessment had been undertaken for a lady named K. S., who had been proposed as a placement for the children. The Society did not find Ms. S. to be a suitable placement as she had a significant protection history of her own. The mother seemed less than pleased about this outcome during the January meeting, and told Ms. Burke that her (Ms. Burke's) affidavit on the subject reflected a lack of effort.

[11] There was also a discussion in this meeting about J.C. Mr. C. was putting forward a plan to care for his son, K. The mother said she had concerns about Mr. C. in that he had used drugs, specifically cocaine, in the past and she had received information that he was still using drugs. She went on to say he was a "liar and a cheater" and that he was not stable.

[12] As a result of these concerns, the Society sought and obtained a hair follicle test from Mr. C., which was negative for cocaine. Over the ensuing months, access was increased between K. and Mr. C. and K. was placed in Mr. C.'s care under a temporary order of supervision in August 2015. Ms. Burke has had at least monthly contact with the two and she has observed that K. and Mr. C. interact positively. The Society has no concerns with respect to Mr. C.'s ability to care for K.

[13] Mr. C. also has a partner, K.J. who was residing in the home. Ms. J. also interacts appropriately with K., although she leaves Mr. C. with the responsibility for primary parenting. K., who has Down syndrome, requires a fair number of services. Mr. C. is attending to his needs in this regard appropriately. He has secured services from a REACH infant development worker, a home visitor, and a public health nurse. In addition, he has a family doctor and a pediatrician for his son.

[14] At the time the children were taken into care in October 2014, the mother was charged criminally with assault against E. and I. Her Recognizance of bail initially precluded her from having any access with any of the three subject children. Later this was varied to permit her to have access to the child K., and the Society arranged access. The criminal charges with respect to I. and E. were resolved in October 2015 by way of a Peace Bond. Access then was subject to the discretion of the Society. The Society elected not to set up access between these two children and the mother, as it was not viewed as being in the children's best interests. Accordingly I. and E. have not seen their mother since October 2014.

[15] The mother currently has access to K., for a duration of ten hours, over three days, each week. Ms. Burke has viewed the mother's access, which is entirely supervised at the Society, about six times. She observed that there were no glaring concerns with respect to the mother's instrumental care; however the mother does not appear to be emotionally connected to the child during the visits. She is often seen flipping her phone around during this time. There have been occasions when the mother will remove K.'s clothing and look everywhere on his body, including between his toes.

[16] Ms. Burke is also aware that the mother has made many claims of seeing bruises on K. that no one else sees. She will report to an access supervisor that the child has a bruise, but the supervisor will not be able to see it. The mother has also repeatedly claimed that K. is experiencing constipation, although again, this is not a perception shared by access supervisors.

[17] In July of 2015, Ms. Burke learned that two marks she described as "scars" had been located on I.'s head. This had been revealed after I. received an extremely short haircut. The marks were about two to three centimeters in length. Ms. Burke met with the mother to enquire about their possible causation. The mother described that I. had severe behavioural challenges when he was in her care. He would head bang all the time, and always seemed to have a goose egg on his head. The mother said she did not take I. for medical care to deal with the injuries as she herself had first aid training. When asked specifically about these two marks on I.'s head, the mother described an incident wherein she had been leaving a friend's home and I. had resisted, and then thrown himself to the sidewalk resulting in a gash. She did not explain however, why there would be two parallel marks on I.'s head.

[18] In cross examination, Ms. Burke confirmed that she had interviewed the three older siblings, A., J. and R., on December 9, 2015. The reason for this interview was that these three children had attended their mother's criminal trial in October 2015, and they were distraught over how that had ended. They were terribly afraid for their younger siblings, whom they had never met.

[19] Ms. Burke was also cross examined at some length about the Society's rationale for seeking an order of no access to the child, K. Ms. Burke indicated that first, the Society was of the view that the mother would never be able to parent independently, and there was a concern that the mother might make unfounded allegations against the father, Mr. C., thus undermining the placement. Ms. Burke explained by way of background that the mother's overall file reflected 21 openings, seven of which involved allegations by the mother, of abuse, including sexual abuse of the older children by the father, J.M. None of these allegations were ever verified. The mother has also made various allegations against the two other fathers at times when she has been estranged from them. Moreover, since K. has been with his Dad, the mother has repeatedly alleged that the child has bruises.

[20] It was acknowledged by the witness however that the mother was correct in identifying that Mr. K., the father of I. and E., has historically had a problem with alcohol. The mother also did not specifically accuse Mr. C. of causing the bruises that she insisted she saw on K. Ms. Burke also conceded that she did not have a medical opinion to confirm that the marks on I.'s head actually were scars, and if they are, how old they would be or how they were caused.

[21] Ms. Burke also conceded that there were times when the mother correctly noted that K. had some marks on his body. This included a bruise on his abdomen in November 2015, and a scratch on his forehead in January 2016. When these were found, the Society simply made enquiries of the father, and in each case, was satisfied with the explanation provided.

[22] Various exhibits were also introduced into evidence at the trial. These included a copy of the transcript of the evidence of the children I. and E. provided at the criminal trial on October 26, 2015. I. was six at the time of the trial, E. was four. In giving his evidence at that time, in answer to why he did not live with his mother, I. initially said that it was because his mommy hit him with a stick. After viewing the videotaped statement he gave to police however, I. stated, "I didn't really get hit with the stick". He was unable to say why he had not told the police officer the truth during his videotaped interview. He then went on to say that his mommy was "mean" to him and had told him she would hit him with the stick. Later he answered a question as to how mommy was mean to him by saying, "Because she sometimes hitting me with the stick and sometimes she did".

[23] I. then went on to say his mother hit him on the back with a stick on nine occasions. He also later said that he had been telling the truth when he told the police officer (Officer Linda) about being hit with a stick.

[24] In cross-examination at the criminal trial, I. said that his mother had told him to say he was hit by a stick. He said it was brown. There was then the following exchange:

Mr. Kiernan: Now your mom didn't really hit you with a stick did she?

I.: No

Mr. Kiernan: Right. But somebody told you you should say that, right?

I.: Yeah.

[25] I. also said his statement to "Officer Linda" to the effect that his mom was mean was not true. He was then asked, "What if I told that there was no stick and you didn't get hit by a stick at all. Could that be right?" and his answer was "No". He expressly denied that either the Society worker "Islay", or his foster mother S., had told him what to tell the police.

[26] Finally in re-examination, I. said that his mommy had hit him with a stick and that someone had told him to tell "us" that, although he could not recall who, had done so.

[27] E.'s testimony began with a fantastical tale about a stick that lived in the forest and a snake on her bed. E. indicated she currently lives with 'S.' because she (E.) "told on my mom". She said she had been telling stories to "Officer Linda" and that she was "just kidding" when she gave her videotaped statement to police. She denied that her mommy had either tied her to the bed or hit her with the stick.

[28] In cross-examination, E. agreed that she had gotten hurt from falling down and said that this occurred "in the forest".

[29] An Agreed Statement of Facts dated August 30, 2006 signed in relation to the mother's older three children A., R. and J., was also entered into evidence. It described 11 historical openings of a child protection file with respect to the mother and children. The statement also confirmed the mother and Society's agreement to the following facts:

• A. walked 10 km to school one day after missing the bus
• A. was given household chores as a consequence
• A. slept in a tent outside the family home after a disagreement resulting from A. being suspended from school for skipping
• C.R. called her daughter A. names
• C.R. has used spanking as a measure of discipline in the past
• A.O. felt unloved in the home

[30] The parties also agreed therein that the court should make a finding that the children were in need of protection pursuant to subsections 37(2)(a)(i), 37(2)(a)(ii), 37(b)(i) 37(2)(ii) and 37(2)(g) of the Child and Family Services Act. There was also agreement to an order making A. a Ward of the Society for six months and placing R. and J. with their father and stepmother under supervision, for a similar period.

[31] A second Agreed Statement of Facts dated May 6, 2009 was also entered into evidence. It noted that the child R. had chosen not to have access with her mother since May 2007, while J. continued to have access, which she enjoyed. It went on to confirm that a parent capacity assessment regarding the mother and those children's father was concluded September 7, 2008. That report recommended the father have custody of R. and J., with mother to have supervised access. The parties agreed therein to an order on those terms.

[32] The third Statement of Agreed Facts was dated March 17, 2011, and it relates to the children I. and E. This document formed the factual basis for a consent order placing the two children in the care of the mother and father Mr. K., for a period of nine months, subject to the supervision of the Society. One of the supervision terms consented to provided that neither parent would use physical disciplinary measures when coping with the children's behaviours, nor allow anyone else to do so.

[33] A transcript of I. and E.'s interviews with police dated October 7th, 2014 and a later interview with I. from October 27, 2014 were entered into evidence, as was a flashdrive containing the video of the interviews.

[34] Kathryn Foote has been the child service worker for the children I. and E. since May of 2014. She was also K.'s child service worker during the time that he was in foster care. Ms. Foote first met the children in mid-May 2014. E. was hard to understand as her speech was poor. Ms. Foote met again with I. on June 23, 2014. She explained to I. that her role was to keep kids safe, kind of like a police officer. At that point, I. talked about his mother hitting him with a stick. He said this would happen when he was in time outs. When asked where, he said he would be hit on his back and on his bum. He said his mom hid the stick in her bedroom. He did not suggest that he was hit by anyone other than his mother, and he said specifically that he does not get in trouble with his dad.

[35] Ms. Foote drove the children to their mother's home on June 26, 2014, after they were ordered back into the mother's care. During the drive, she talked to I. about the importance of telling someone he feels safe with if he was hurt at home. At that point I. again spoke of being hit with a stick. He also said that E. was hit with a stick on her bum.

[36] On arrival at the home, Ms. Foote and the children were met by the mother and Mr. C. Ms. Foote told the mother that she should get rid of the stick that the Society had alleged she had previously hit the children with. The mother said she did not have any stick to get rid of.

[37] The children were re-apprehended in October 2014. The following day Ms. Foote took the children for an admission medical with Dr. O'Toole. There were no concerns identified in relation to K. or I. E. has an irritation around her neck. There were also marks on her bottom and two linear marks on her back and a rectangular mark on her bum. Ms. Foote later asked the mother about how E. might have received these marks, but the mother was not able to recall.

[38] As part of her role as child service worker, Ms. Foote continued to meet with the children on a monthly basis. During a lot of these conversations, I. would say that he did not want to see his mother. During a meeting on September 30, 2015, Ms. Foote asked I. if he understood why he was not living with his mother. I. responded that it was because his mom was bad and hit him with a stick. At this point, I. was on a scooter and he went off riding around the area outside the foster home. Ms. Foote seems to have chased after him to continue the discussion. I. went on to say that his mom was a bad person and hit him with a stick, which was brown. He said it occurred when he was in time out and that he was struck on his back and bum. He told Ms. Foote in response to a question about the location of the stick that if Ms. Foote went into his mom's house she would find it in mom's room.

[39] On the same day there was a meeting between Ms. Foote and E. In response to a question about why E. no longer lived with her mother, E. responded, "Because mommy hit me and I.". Ms. Foote asked where mommy hit her and E. responded on the face and she pointed to her cheeks. She said she was hit with a stick. This would happen when she was in a time out.

[40] On November 6, 2014, about a month after the children had been returned to care, Ms. Foote asked I. if they could talk about his mom. I. responded, "I don't have to go back there do I?" Later in the discussion, Ms. Foote asked if there was anything that I. wanted her to tell his mother. He responded by saying that he hated her. Ms. Foote was surprised by these statements. She said that in her seven years of experience, she has never heard such statements from a child client. She finds that children are generally pretty loyal.

[41] The children were to testify at their mother's criminal trial in October 2015. Ms. Foote and victim witness program worker Stephanie Deakes brought the children to the courthouse four times in order to familiarize them with it. On the last day of preparation the children had to watch their video statements provided to police.

[42] The criminal trial itself occurred on October 26, 2015. Around 11.00 a.m. I. entered the room to testify. There were several breaks during his testimony. After lunch, I. knew he had to return to continue, and he clearly did not want to do so. His foster mother encouraged him. I. responded by saying "I am not going back for God's sake". He was physically pushing the foster mother away because he did not want to go back. He also threw a glass.

[43] E. testified thereafter, and she was excited to have her turn.

[44] The plan for the children is to remain with their current foster parents, S. and J.E. The E.s are prepared to adopt the children should an Order for Crown Wardship be made.

[45] In cross-examination, Ms. Foote acknowledged that the mother had explained that the rash on E.'s neck, that was evident in her admission medical, had been the result of a reaction from tea tree oil against a necklace. Dr. O'Toole, the examining physician had said this was a possible cause.

[46] In cross-examination by the OCL, Ms. Foote identified a referral she had made to Haldimand speech and language program on June 19, 2014. A report was obtained in March 2015. E. was found to have a moderate articulation delay and expressive speech delays. The mother however did not acknowledge that there were difficulties with E.'s speech. Mother said E. was understandable when in her care.

[47] Ms. Foote also noted that I. had spoken of E. being tied to the bed when the children were in the care of their mother. Ms. Foote met with E. to talk about this issue. She asked E. to draw it for her. The resulting drawing was identified by the witness and entered into evidence.

[48] In various meetings that Ms. Foote has had with him over the last year, I. has discussed the issues of the stick and his fear of his mother, "probably in excess of ten times". He has been "absolutely consistent" in his account.

[49] When the subject of his mother is brought up, I.'s demeanour changes in that he is more difficult to engage, he provides one word answers and at times, he will get to where he has had enough and he then leaves the room. He also shuts down and ceases to engage in conversation.

[50] Ms. Foote confirmed that neither child had ever made an allegation of physical discipline against either Mr. K. or Mr. C. Ms. Foote has asked I. how he got the marks on his head, but he said he "forgot". The Society followed up to seek medical records at Norfolk General Hospital to see if there were any emergency room reports of concerned injuries but none were located.

[51] When asked where he would live if he could live anywhere, I. responded he would be with S. (his current foster mother). Ms. Foote is of the view that I. loves living at S.'s and she has observed that I. is a "regular happy kid" at the foster home. He seeks out his foster parents for comfort when needed.

[52] The Society is also of the view that it is essential that the two siblings I. and E. not be separated. The Society is open to sibling contact with K., however it would have to consider what that would look like and how it ought to be introduced, as it has not been occurring to date.

[53] Beverly Crosbie has been a public health nurse since 1998. She has been working in the Healthy Babies/Healthy Children program for 12 years, and she has been providing service to J.C. since May 2015. During this time the two have met seven times. Ms. Crosbie has found Mr. C. to be extremely motivated. He is accessing all services K. needs and he seems to want to be the best parent he can possibly be. A family home visitor named Amanda McFadden is also assigned and she has met with Mr. C. five times. Ms. Crosbie has not received any negative reports about Mr. C. from Ms. McFadden. Ms. Crosbie has observed that K. is a happy boy whose development is progressing nicely. The father is, in her view, meeting his needs, and is very appropriate and responsive to his son.

[54] In cross-examination Ms. Crosbie confirmed that initially Mr. C. lived with his girlfriend 'K.', however at present, her understanding is that K. no longer resides in the home.

[55] Ms. Crosbie also previously worked briefly with the mother in July of 2014, following the birth of K. Another family home visitor named Angie Alward, also made four visits to the mother. Ms. Crosbie said Ms. R. presented as an experienced mother who believed in her own parenting strategies. On the worker's arrival at the home both I. and E. would run to greet Ms. Crosbie and Ms. Alward, and the children would want to sit in their laps. Since the children barely knew either of them, Ms. Crosbie found this behaviour unusual.

[56] Both workers also found it unusual that the children were so regimented in their behaviour on returning home from school. The children would remove and hang up coats, empty their backpacks and lunchboxes, give their school items to their mother and sit at the table to eat a snack. Ms. Crosbie's experience is that children of this age and development, having just started kindergarten, usually are not well settled into this kind of routine.

[57] Ms. Crosbie was also struck by the fact that the mother seemed to be constantly telling the children what they should and should not do. She seemed focused on finding fault with her children instead of focusing on their positive behaviours. The atmosphere in the home was uncomfortable and the mother on numerous occasions was seen to be struggling with E.'s behaviour. Ms. Crosbie felt that the mother overused time outs as a disciplinary measure. The mother was not receptive to Ms. Crosbie's suggestions about alternative parenting strategies.

[58] In response to a question as to whether the children seemed fearful of their mother when they were complying with the after school regime, Ms. Crosbie said that she would not say they were fearful, but they were anxious to please and making sure that they were doing everything they were supposed to be doing. E. was upset or acting out a lot of the time.

[59] At one point, Ms. Crosbie engaged the mother in a discussion about why the children had been in foster care. The mother responded that her older daughter had alleged that she (the mother) spanked E. The mother said she had on one occasion, but no harder than she would burp the baby. The mother also said there had been an allegation that she hit I. with a stick, but she denied having done so. She did say she had threatened I. with a stick when I. was running after E. with a golf club.

[60] A.O., the mother's oldest child, aged 24 years, also testified. Ms. O. and her sisters R. and J.M. resided with their mother until they were removed by child protection authorities. Ms. O. said she sustained systemic and regular abuse at the hands of the mother, which included daily hitting with a stick, hitting with a cast iron frying pan and hitting with a bat. She said she was struck on her head and arms specifically. The mother would also employ a bat to strike all three children whilst they were driving in the family vehicle. She said she was struck with a stick virtually daily from the time she was little until she left home at age 14. This stick was kept under the mother's mattress.

[61] As a result of these assaults, Ms. O. said she sustained injuries that at times drew blood and which caused bruises. She said that she generally wore long pants and shirts in order to conceal the injuries, and that her mother generally struck her in areas that would not otherwise show. The exception to this was in the car when her mother would swing the bat with little regard for where it landed.

[62] The discipline was also said to include requiring Ms. O. to sleep outside in a tent during winter. The mother frequently used profanity and called the children obscene names.

[63] Ms. O. said her sisters were also subject to violent physical assaults. She described the mother dragging R. by her hair. She said there was an occasion when her mother "whipped" J. up from the table, grabbing her by the arm and throwing her hard. Although her sisters were also disciplined with the stick and bat, as she was, Ms. O. said they were not injured in the same way she was.

[64] Ms. O. acknowledged that she did not tell anyone of the abuse at the time it was happening until the time she ran away at age 14. She said she was afraid to do so. The family was involved with child protection authorities throughout much of the time that the abuse was happening. Ms. O. said however, her mother was manipulative and acted kind and like a different woman with the workers. Generally when workers would attend, the mother would be present during the meetings with the children. If the workers asked specifically, the mother would allow them to meet privately with the children. Ms. O. said however that she had been "programmed" by the mother as to what to say.

[65] As a result of the disclosures that Ms. O. made after running away from the mother's care, the mother was charged with assault. Subsequently, the mother was placed on probation in relation to these charges. One of the terms of the Probation was that the mother not have contact with Ms. O. except with Ms. O.'s written consent, in advance. At some point following the charges being laid, Ms. O. and a friend who was with her, ran into the mother at a Tim Horton's restaurant in Simcoe, Ontario. The mother then drove Ms. O. and her friend to the mother's home. The visit started amiably enough, however at one point, the mother went to her room and came out with a note that she instructed Ms. O. to sign. The mother said she would be in trouble with her probation officer if Ms. O. did not sign. She would not take no for an answer. Ms. O. remained steadfast in her refusal and the visit ended. The mother drove Ms. O. back to her friend's home. Police were later contacted and the mother was charged with Breach of Probation.

[66] Entered into evidence through this witness was the December 5, 2007 transcript of the proceeding at the mother's guilty plea, to the charge of assault against A.

[67] Certain facts were acknowledged by Ms. R. at the time of the plea. These included that on May 19, 2006 Ms. R. called police to report her daughter A. was missing. A. was located by police at an aunt's residence. A. told police she did not wish to return to her mother's residence because of the treatment administered by the mother, which included being struck in the head with a beige wooden stick, as a form of punishment when she did not complete her chores. This occurred over the timeframe between September 2005 and May of 2006. In addition, a younger sibling, born in 1998, had been shoved into a closet and then pushed outside to remain outside of the residence.

[68] When police went to the mother's residence, the mother advised officers that she had the wooden stick that she had used to discipline her children and she entered her bedroom and retrieved a 14 inch wooden stick that she advised had been used in this regard.

[69] Dr. Francis O'Toole was qualified on consent as an expert in general pediatrics and child maltreatment. Dr. O'Toole saw all three of the subject children on October 7, 2014, the day after their re-apprehension. His reports for each were entered into evidence. His role at the time was to physically and developmentally assess the children and identify any unusual markers that might signify maltreatment.

[70] K. was found to be a happy baby with a chromosomal abnormality in the form of Down syndrome. K. has a congenital heart defect which was being controlled by medication rather than surgery.

[71] I. was five at the time of the examination. His growth parameters were appropriate and his general physical condition was healthy. There was no evidence of maltreatment.

[72] E.'s overall health was also good and her growth parameters typical and appropriate. There was a very thin circumferential mark around her neck where her skin was reddened. This is not a typical marking for a child and would require some explanation. One such explanation could be that the child had worn a necklace impregnated with tea tree oil.

[73] On the lower part of E.'s back on either side of her upper buttocks were two parallel linear reddened marks over the left side. These appeared to be scratches. Below that on the upper buttocks was a rectangular reddened area, the borders of which were distinct. Dr. O'Toole said that an injury over a place, such as the buttocks where there is a lot of soft tissue, is one that is sometimes reflective of inflicted injury. Although it is not diagnostic of inflicted injury, it does raise a question. The type of mechanism that can cause such a mark includes a force of some velocity applied by an object of possibly small size. It would not be inconsistent with a ruler or stick of similar size.

[74] Dr. O'Toole was also shown a photograph of I.'s head, showing two linear marks and asked to comment upon it. He indicated it looked like a gash or opening in the child's head. For a wound to be sufficiently deep that it would heal in the manner depicted in the photograph, it would be reasonable to say there would have been blood and it would have been evident at the time to any reasonable caregiver. Dr. O'Toole would have concerns if a caregiver did not seek medical attention for an injury of that kind.

[75] In cross-examination Dr. O'Toole acknowledged that there is a congenital skin condition that will cause marks similar to that depicted in the photograph. This condition would be apparent in a child when they were newborn.

[76] N.H. is the maternal grandmother to the children. She said she had spent time in the home with the mother, I. and E., as well as earlier, when J., R. and A. were in mother's care. Ms. H. described the mother's abusive treatment of the children. She said there was one occasion when the mother got upset with J., and pulled her by the arm from a seat and "whipped" her to the ground, causing the child to be hurt and to bleed.

[77] Ms. H. said the mother was particularly cold and punitive with I. He would receive time outs "for just breathing". She said he could not seem to do anything right and that she could see him "freeze" around his mother.

[78] Ms. H. said the mother was particularly cold and punitive with I. He would receive time outs "for just breathing". She said he could not seem to do anything right and that she could see him "freeze" around his mother. The mother would rant at the children and use a loud voice. She would threaten to spank the children, although Ms. H. did not see this carried out. When the older children were in her care, the mother kept a baseball bat tucked between the door and the seat of her motor vehicle. During the time that I. and E. were in the mother's care, Ms. H. observed that the mother kept a stick in the vehicle. There were occasions when she saw the mother wave the stick toward the children while driving in the vehicle. There was also an incident when the mother pinned E., then aged three, to the ground while the mother screamed and yelled. The mother admitted to Ms. H. that she was a bully.

[79] Dr. Anne Niec testified and was qualified on consent as an expert in general pediatrics, child maltreatment, child development and parenting. Dr. Niec was a co-author of an interdisciplinary report of the Child Advocacy and Assessment (CAAP) Program report dated September 25, 2015 and that document was entered as an exhibit, also on consent. CAAP was retained to undertake an "impact of maltreatment" report for the children I. and E. The task was to determine what the children had experienced, how that had affected their presentation and what recommendations could be made to optimize their functioning for the future.

[80] Generally, the CAAP team meets with children on three separate occasions. I. and E. were seen only twice. The decision to forgo a third meeting was undertaken because I. presented as very emotionally dysregulated after the first meeting. When I. was brought to the hospital for the second meeting, he had regressed considerably. He was extremely distressed and was hiding under a chair, and jumping into the arms of his foster mother in order to avoid the interviewers. His behaviour was disorganized as he was going from one activity to another, and he was unable to engage in discussion.

[81] The team was extremely concerned about his response and concluded that the discussion about his mother on the first interview had acted as a trauma trigger for I. The basis for this conclusion was derived in some measure from supporting information from the record. This included information from the foster mother that when E. would mention the mother, I. would close the conversation and not want to talk about the mother. Also, in the first interview, I. would not acknowledge having another mom, beyond his foster mother.

[82] When asked about his other mother, he could not provide information and said he "forgot". Although he had been with his mother for three years, he was unable to describe a single positive thing about his mother. This is unusual even amongst children who have sustained trauma in the care of a parent.

[83] The mother was also interviewed as part of the assessment process. The mother acknowledged that she had been the primary caregiver to the children when they were with her. Mr. K. was not involved in day to day care due to his employment as a logger. The mother seemed to acknowledge having smacked or slapped the children. She also acknowledged spanking all the children except K. The mother also described using "time out" as discipline, but the length of time employed (a 25 minute time out) was seen by Dr. Niec as excessive. The mother described herself as being strict but she did not see anything wrong with the manner in which she had parented her children.

[84] The team was particularly struck by the mother's "paranoia" about the Children's Aid Society. The mother asserted that the Society workers were motivated by financial issues and job security, and she said the workers would do anything to get what they wanted. The mother was seen to have a complete inability to understand the degree of distress that the children were experiencing. She did not accept any responsibility for the situation and had no insight. This is very germane to the issue of whether the mother's parenting flaws are remediable or not. Although the team did not undertake a parent capacity assessment, Dr. Niec indicated she would have "major concerns" about the mother's ability to meet the children's needs.

[85] Ultimately, the team believed that these two children had been physically disciplined with a stick. This was based on the disclosures set out in the Society materials. (The children did not make any disclosures to the CAAP team.) The team concluded that the mother was highly authoritarian and harsh, and that she did not address the children's emotional and developmental needs. The children were found to have experienced complex trauma in their mother's care, and it was believed that they had sustained emotional harm.

[86] Dr. Niec was also shown a photograph of I.'s head, which she described as obviously showing two parallel denuded (meaning showing no evidence of hair growth) marks. She said she would describe them as scars. Dr. Niec was of the view that a caregiver would notice an injury that would give rise to such marks, as the scalp would bleed. Such an injury ought to have prompted a caregiver to seek medical attention for the child.

[87] When asked in cross-examination whether she could say that the depicted marks were caused by injury or maltreatment, Dr. Niec stated that the literature reflects that when certain marks are seen on certain places on the body, there is potential concern. In particular, where, as here, there is a mark on the head, and it is parallel, patterned mark, that raises higher suspicion for inflicted injury.

[88] The main recommendation for the children was for them to be parented in an environment that is trauma focused and which can acknowledge and address the children's specific needs. A safe, consistent and predictable environment is required for them. This would require not just an absence of hitting and physical safety, but a psychologically safe environment.

[89] The team would not support access between the children and the mother. This was first, to try to give the children permanency. Second, because of the complex trauma suffered by the children, any interaction with their mother would be threatening, as she is a trigger of traumatic memories. In elaboration of this point, Dr. Niec pointed out that when the children first came into care, they were exhibiting disturbances in their emotional regulation. This has improved over time and it would thus appear that not seeing their mother has allowed them a period to stabilize and develop the ability to function to a greater degree.

[90] In cross-examination, Dr. Niec was asked whether the mother's harshness, authoritarian parenting style and lack of compassion would be likely to continue with K., should he be returned to her care. The response was that it would be "absolutely" likely to continue, given that the mother has no insight and is not able to self-reflect on how it is that her children have been removed from her care, and how they perceive her in such a negative light. Where an individual does not take responsibility for such a situation there is little prospect that this person is going to change.

[91] Islay McFadden was the family service worker between June 3rd and December 9th 2014. At the time Ms. McFadden became involved I. and E. were in foster care. The mother was pregnant with K. and was in a relationship with Mr. C., the father of K. At her initial meeting with the mother on June 10, 2014, Ms. McFadden made it "very clear" to the parents that the Society was not supporting the mother parenting I. and E. or the expected baby.

[92] The Society's concern at that time was that I. had reported being hit by the mother with a stick. Because A., the mother's older daughter had made a similar complaint, the Society viewed it as a pattern of abusive discipline.

[93] During this first meeting, the mother informed Ms. McFadden that she (the mother) smoked marijuana several times a day and did so even while in a caregiving role. Although she said she did so for medical purposes, she did not in fact hold a "green card" to do so, presumably referring to a license for medical marijuana.

[94] Because the mother was pregnant with K. at the time, this caused Ms. McFadden some concern. The mother initially signed a consent to permit Ms. McFadden to take this up with her OB/GYN, however she subsequently revoked this consent.

[95] Shortly thereafter, on June 25, 2014, the children were returned to the mother's care following a contested temporary care hearing. Ms. McFadden was on vacation for much of the summer that year and accordingly the weekly supervision visits were largely undertaken by other workers.

[96] She did however undertake a home visit on June 10, 2014. During a private meeting with I., I. said that he liked being home and his mother had not spanked him since his return. Ms. McFadden then asked I. about the stick he had earlier said his mother hit him with and where it was located. I. got up on his tip toes, and walked quietly into his mother's bedroom, looking under the bed and in the closet. No stick was found and I. said his mother must have gotten rid of it.

[97] One of the terms of the supervision order imposed at the temporary care hearing was that the mother was to ensure that the children attended school. During a visit on July 16, 2014, Ms. McFadden made enquiries about which school the children would be attending. The mother then equivocated about sending E. to school, saying she did not think E. was ready. When reminded of the supervision term, the mother responded that Ms. McFadden should not worry about it; she would sort it out with her lawyer.

[98] During a private meeting with I. in his bedroom on August 22, 2014, I. pointed out a toy that had become stuck in a ceiling light. He requested that Ms. McFadden get it down for him because he was afraid to tell him mom that it was up there. Ms. McFadden was unable to do so but she stayed with I. while he told Mr. C. about it. When asked why I. would be afraid to tell about this, Mr. C. commented that it was because I. knew he would be in trouble.

[99] By late September 2015, the mother was requesting a new worker as she was of the view that Ms. McFadden had "lied" in representing to the court that the mother was uncooperative. The mother was also annoyed that Ms. McFadden had advised the Norfolk Pregnancy Centre, with whom the mother was involved, about her child protection history. She was not placated by Ms. McFadden's explanation that this was done to ensure the service providers had the best understanding of the protection concerns so that they would be optimally positioned to assist the mother.

[100] On October 6, 2014, Ms. McFadden met with the children at school. She immediately noticed that E. had red markings on her neck. The school staff had apparently not noticed the marks. E. initially said she had no idea how the marks had been caused. When Ms. McFadden said that her neck looked sore and again asked how it happened, E. responded, "Mom hurt me". She repeated this several times.

[101] E. also acknowledged having other marks on her body and showed Ms. McFadden scratch marks on her lower back. When asked how they were occasioned, E. initially said K. (who would have then been three months of age) had done it. When Ms. McFadden pointed out the unlikeliness of this having occurred, E. replied, "Mom hurt me when she was mad".

[102] I. said that he was not hurt anywhere and he said the consequences for bad behaviour were time outs.

[103] As a result of receiving this information, Ms. McFadden contacted police so that a joint investigation could occur. After consulting with her supervisor, it was decided that the children would be apprehended. On the way to the foster home I. asked where he would be going and he was told he would be returning to his previous foster home. I. responded, "Oh good I like her she's nice to me and doesn't spank me". In response to a question about where he was spanked, I. said that he was spanked on his back and bum, by his mother. Ms. McFadden asked why I. had never told her this before and he stated that his mother tells him not to tell or he will get taken again.

[104] I. confirmed also that he had been spanked since he had been returned to his mother in June 2014.

[105] The children were then taken to Norfolk General Hospital for examination. On arrival, E. spontaneously said "my mommy hurt my neck". During the physician's examination E. repeated that her mommy had hurt her.

[106] Ms. McFadden had never told the children that their older siblings had made disclosures of being hit, including with a stick by their mother.

[107] When the mother was asked about the cause of the markings around E.'s neck, she attributed it to a necklace that had been impregnated with tee tree oil. The mother also said that I. had been peeing under his bed. She attributed this to the fact that I. was missing Mr. C., who had been staying at the farm where he worked. The mother denied spanking her children and maintained this denial throughout Ms. McFadden's involvement with her.

[108] The children were interviewed by police on October 7, 2014. Following this the mother was charged with two counts of assault with a weapon.

[109] In cross-examination Ms. McFadden conceded that I. did not make any disclosures of maltreatment in the meetings she had with him leading up to October 6, 2014. She noted however that there were times over the course of her home visits when I. refused to meet with her. During the meetings that she did have with I., the mother was not directly in the room with them, but she would be walking the hallways, or in the living room. Ms. McFadden did see I. on two occasions, over the summer, without a shirt, and otherwise the children would be wearing short sleeved shirts and shorts. She did not see any injuries consistent with being hit with a stick. She would not however have had occasion to see either child's buttock region, which was where I. had said he was hit with the stick.

[110] Therese Lillie was the intake worker involved in April 2014 when a caller reported that the physical aggression used by the mother against the children E. and I. was "escalating". Ms. Lillie attended the home unannounced on April 17, 2014 and spoke briefly with the mother. She asked to meet to discuss the referral. The mother agreed, but only at a future scheduled appointment. She would not permit Ms. Lillie to interview the children that day. During this fairly brief conversation the mother acknowledged she was pregnant and due in August 2014. She also admitted to smoking marijuana on a regular basis, saying the Society was already aware of this fact.

[111] Ms. Lillie returned for a scheduled appointment on April 22, 2014, however the mother said she and E. were sick and I. was at Mr. C.'s house to shield him from the illness. The interviews did not take place.

[112] A subsequent interview did occur on April 28, 2014. The mother reported then that she had been experiencing difficulties with I.'s behaviour, and described him as being defiant and aggressive, and questioned if he had a mental health issue. She said she sometimes got frustrated with him. She said that she had not enrolled I. in school that past year, being September 2013, due to his behaviours. The mother did not accept Ms. Lillie's suggestion that she discuss this with the family doctor. She declined the offer of a behaviour management worker, saying she did not think this would be necessary as she had worked with a behaviour management worker in the past.

[113] The mother also said that her oldest daughter, A. had been "defiant".

[114] Ms. Lillie saw E., but her speech seemed delayed and she was difficult to understand. E. appeared physically healthy. I. was seen in the backyard and he would not engage with Ms. Lillie. She did not observe any marks or bruising on him.

[115] Ms. Lillie then attended the home again on May 12, 2014. She asked to speak with I. privately and the mother allowed this but said she did not think I. would speak with Ms. Lillie. Ms. Lillie then met with I. in the backyard. He nodded in response to a question as to whether he knew who Ms. Lillie was. She explained her job was to ensure kids were safe at home. She asked if he was allowed to talk with her and I. said he was not. In response to a question as to why he was not allowed to talk to her, I. said his mommy had told him that if he talked to her he would be taken away.

[116] When asked about discipline, I. described time outs and said he also gets hit with a stick by his mommy. He said he was usually hit on the back and that E. was sometimes hit with the stick also. The stick was located in his mommy's closet.

[117] There were two marks on I.'s face one of which was on his left forehead. This had the appearance of a white linear scar mark over a raised bump. I. said his mommy had hit him with a brush and the brush broke. His mommy was mad when this occurred.

[118] There was also a slight healing cut on his chin. I. explained that this happened when he fell in the bathroom. He said mommy pushed him into the shower and it started bleeding again. She was very mad at the time.

[119] When confronted about these disclosures, the mother indicated there was no truth to any of I.'s statements. She said that then four year old I. was aware, from speaking to others, that CAS removes kids, and this is how he got the information.

[120] Ms. Lillie then withdrew outside to call her supervisor and consult. During this time the mother brought the children outside to her car. Ms. Lillie's car was blocking the mother's car. Police were then called and thereafter the mother got the children out of the car and was very appropriate in facilitating their transfer into the worker's care.

[121] After the apprehension Ms. Lillie had some discussion with the children's father Mr. K., about putting forward a plan for their care. Ultimately he declined to do so, saying he would simply support the plan for the children to be returned to their mother's care.

[122] At no time had Ms. Lillie spoken to the children about the disclosures made by their older siblings. There was nothing in her review of the file or involvement with it to suggest that anyone at the Society had discussed the older siblings' disclosures with I. and E.

[123] Ms. Lillie's involvement with the family came to an end about four weeks later when the file was transferred to ongoing services.

[124] In cross-examination, Ms. Lillie confirmed that the children always appeared appropriately and neatly dressed. The home was neat and tidy and at no time did she smell marijuana in the home or on the mother's person. Neither was there ever any indication that mother was impaired by marijuana. She also agreed that the term "defiant" could cover a large range of behaviours.

[125] S.E. is the current foster parent of both I. and E. Ms. E. also fostered I. during his first stint in care, from the age of two days until he was 20 months old. Nine people reside in the foster home, being Ms. E., her husband J., their three children and four foster children, two of whom are E. and I. The E.s would like to adopt E. and I. should the children become available, as they have come to love them like their own children.

[126] When E. first came to Ms. E.'s home in October 2014, she was three years and ten months of age. Ms. E. described her as a quiet, insecure little girl who was nervous to try new things, and who showed little interest or excitement. She had difficulty with social situations, following basic routines and demonstrating self-help skills. Her speech was limited and almost unintelligible. She would respond only to positive reinforcement and would become distressed upon hearing the word "no" or other negative redirections. Physically, she had marks, including bruises, deep scrapes and redness on her lower back and red marks on and around the base of her neck.

[127] E. is now beginning to interact positively with other children. Her speech is improving and is becoming more easily understood by others, and her language acquisition has developed significantly. In an effort to support this progress, E. has been receiving services from Haldimand Norfolk Preschool speech and language, by way of weekly sessions.

[128] On various occasions E. has told the E.s that "Mom hurt me with stick" and "Mom mean". When Ms. E. asked E. if she missed her mom or wanted to see her E. replied no.

[129] I. was five years and two months of age when he entered the E.'s care for the second time. When he first returned to the E.'s care, I. was often angry and sad. He had a hard time managing his strong feelings and would cry and become very aggressive at times. There was nothing obvious that seemed to cause this change in emotion.

[130] I. can also be quite aggressive with his sister E. For example, once during play, E. did something to bother I. and he responded by grabbing her by the back of the shirt, kicking her in the buttocks and saying "come here you little bitch". When angry, I. would become physical with others too and would hit, bite or swear.

[131] Similar to E. he would respond only to positive redirection and had a very hard time hearing words that carried a negative connotation such as "no", "stop" and "don't do that".

[132] Bedtime was a difficult time for I. and Mr. or Mrs. E. would sit for hours on his floor to help him settle. I. would come out numerous times to use the washroom and they would tell him that they would leave the door open and he could use it as often as he wished. I. then said, "I used to pee under my bed all the time 'cause my mom locked the door and wouldn't let me out".

[133] Both children demonstrated anxiety about food availability and had a tendency to overeat.

[134] I. has continuously needed constant physical and emotional reassurance as if he is a much younger child. He has frequent nightmares. He continues to struggle emotionally. During the time he was attending for interviews with the CAAP team, I. struggled emotionally. He made a number of worrisome comments over that time period, such as "I want to kill myself" and, "I'll bring a knife to cut you up". He is seeing a pediatrician to assist with his emotional challenges and has recently been placed on anti-anxiety medication.

[135] I. seldom speaks of his time in his mother's care and when he has, it has been negative and very distressing to him. I. has been unable to share any happy memories of his time with his mother and he becomes angry and aggressive if asked about it. He has also commented that "I don't miss my house", "I hate my mom", "I hate my mom she's mean" and "my mom hits me with a stick". He has frequently reiterated that he wants to remain with the E.s, "forever" and that he is never going home to his mother.

[136] When E. mentions their mom, I. becomes very upset and has difficulty controlling his emotions. Once for example, he ran over and punched E. saying, "no E.".

[137] In July 2015, just prior to his sixth birthday, the E.s started planning a party for I. and tried to engage him in this process. I. would have none of it. When asked why, I. said he was fearful that his mother would come. Ultimately it was determined that the family would just go out for dinner to celebrate. On the day of his actual birthday I. fearfully asked twice if his mother was coming.

[138] The criminal trial was described as something of an ordeal for the children, especially I. He was anxious and agitated while waiting and during a break in his testimony he became somewhat aggressive with Ms. E. He made it extremely clear that he did not want to return to the courtroom.

[139] Ms. E. was asked directly during the examination-in-chief if she had in any way planted negative thoughts in the children's minds about their mother. She responded by saying that as a mother of seven children she has neither the time nor the energy to do so. She also said that she was acutely aware of the damage that such an activity would inflict on a child and said she would never put that on a child.

[140] J.C. is the father of the child K. He and the mother began dating mid-summer of 2008. The two cohabited for a few months right before the mother gave birth to K. They separated at the time of K.'s birth, but resumed cohabitation shortly thereafter. During the week that K. was in hospital after his birth, Mr. C. visited him almost daily.

[141] During the time he lived in the home with the mother and children, Mr. C. observed that the mother had a fairly good relationship with E. E. would only get into trouble a few times a week and the mother was generally lenient with her. The mother would yell at E. if she misbehaved and if that did not work, then the mother would grab her by the arm and swat her on the rear end a few times.

[142] I., however, was always in trouble with the mother. The mother would yell at him and spank him four or five times on the buttocks and back area. He would get time outs, which involved sitting on a stool or milk crate outside, for ten minutes. If he did not listen, he would get another ten minute time out, and so on. Sometimes he would sit there virtually all day.

[143] Mr. C. would try to intervene when the mother would discipline the children as he did not agree with it. The mother however would tell him he did not know anything because he had not been a parent.

[144] At no time did Mr. C. see the mother hit the children with anything other than her hand. He did notice a baseball bat which she kept in the car, apparently for her personal protection.

[145] When shown a photograph of I.'s head showing two linear marks similar to scars, Mr. C. recounted an event that occurred when he was working and staying at a farm about a 15 minute drive from the mother's residence. He said the mother drove up and got I. out of the car. I. had matted blood on his head. It was difficult to see how long the cuts were as there was so much dried blood. However Mr. C. estimated they would have probably been two to three inches long. The mother wanted Mr. C.'s opinion about what she should do. Mr. C. said that I. should be taken to hospital. The mother responded that she could not do that, because the Children's Aid Society would take him.

[146] The mother's explanation for the injury was that I. had gotten soap in his eyes during a shower and had flailed about with the result that he had hit his head on the faucet. To the best of Mr. C.'s knowledge, the boy was never taken for medical attention for the injury.

[147] In cross-examination, Mr. C. acknowledged that although he had sworn a number of affidavits over the course of the proceeding, he had never before provided evidence in relation to these injuries to I.'s head and the mother's behaviour in that regard. He said he did not know it was relevant.

[148] Mr. C. was then taken through a series of affidavits he had sworn at earlier junctures in the proceeding. The first of these was deposed June 4, 2014, which would have been presumably in support of the temporary care hearing that proceeded June 25, 2014. Subsequent affidavits were dated December 9, 2014 and February 20, 2015. The earliest affidavit was supportive of the mother and although it acknowledged she occasionally spanked the children, it downplayed the seriousness of it. By the second affidavit of December 9, 2014, the mother's disciplinary practices were described as physical restraint and shouting. By February 20, 2015, Mr. C.'s affidavit described mother using physically discipline on I. and frequent yelling and calling I. "stupid".

[149] Mr. C. explained this evolution of his accounts of mother's discipline by saying that initially he was "lenient" towards the mother because he was considering reconciliation with her. In earlier affidavits he would tell part of the truth, but hold back. He said in fact he had seen the mother throw I.

[150] Mr. C. has been caring for his son K., since August 2015, pursuant to a temporary supervision order. Mr. C. is seeking an order for custody of K. with no access to the mother. Although he was initially in agreement with the mother having access, Mr. C. has since changed his position. The reason for this modification is two-fold. First, Mr. C. is concerned that the mother will make false accusations against him, just as she did against Mr. M., the father of the two older children, R. and J. The mother made repeated allegations that Mr. M. was sexually abusing the children, but this was never verified, and in fact, Mr. M. secured an order for custody of those two children.

[151] Second, Mr. C. has been made aware that the mother constantly examines K. and complains of him having marks or bruises on his body. Mr. C. worries that the mother will advance false allegations in regard to physical harm against K.

[152] He also worried due to K.'s limited speech ability, as if anything happened with his mother, K. would be unable to tell anyone about it.

[153] Mr. C. is willing to work with the Society voluntarily after the conclusion of the trial. He is willing to accept any recommendations of the Society worker with respect to services. K. is a "Down's baby". At present, K. is doing well. He was born with several heart defects and these have been surgically remedied. K. is receiving services through Lansdowne Children's Centre to assist in the development of his speech. A report from Lansdowne Children's Centre dated March 29, 2016 was entered into evidence. It recommends that K. attend daycare part time. Mr. C. immediately acted on this recommendation and K. started Bambi daycare on a part time basis as of April 11, 2016.

[154] Mr. C. also has the assistance of his aunt, Jean Link, who provides alternate care when necessary, and takes K. one weekend a month. She also provides drives for the access that K. has currently with the mother. At present, K. sees his mother three times a week for a total of about ten hours.

[155] In cross-examination Mr. C. acknowledged having spanked I. on one occasion. He was still in a relationship with the mother at the time. The spanking occurred after I., then about four years of age, had disrobed his sister. The mother was extremely angry, yelling and screaming, and she told Mr. C. to spank I. because if she did it, she would kill him. He went on to say that when the mother was angry, the children would "cower".

[156] J.K. is the father of I. and E. He and the mother have been in a relationship and cohabitated off and on commencing in 2006. They separated in May of 2013, but remain good friends. Mr. K. said he never saw anything of the daily beatings described by A., nor did he ever see the mother hit the children with a stick. He has however seen the mother spank the children which he described as a "tap on the bottom". He thought the children were "just fine" when they were with their mother.

[157] Mr. K. has not had any access with the children since they went into foster care in October 2014. Initially he said this was because he was unable to coordinate his work schedules so as to be able to attend the Society offices for visits. Later however he conceded that he was choosing not to attend supervised visits because it "feels like you are in jail". He went on to say that the Society manipulates people and he would rather not deal with them. Mr. K. acknowledged that he was not able to put forward a plan for the children, but if the children are to be returned to the mother, he would offer support in any way possible.

[158] When asked about his criminal record in cross-examination, Mr. K. initially said it was "clean". Then he admitted he had an impaired charge which he thought was from the early 1990's or late 1980's. When presented with a copy of his criminal record, Mr. K. acknowledged the two convictions for impaired driving from 1998 and 1999.

[159] Mr. K. also acknowledged having called the Society worker to advise that the mother's marijuana use was interfering with her ability to care for the children. He said he did so because they were separated at the time and he made the call out of spite. He agreed that around the same time the mother was reporting to the Society that he (Mr. K.) was constantly coming home drunk.

[160] C.R. is the mother of six children. The oldest three are A.O., and J. and R.M. The younger three, the subjects of the current application, are I., E. and K. Ms. R. has been residing in her current residence for 12 years. She and Mr. K. lived together there, off and on, for various periods of time, however they stopped being a couple in April or May of 2012. That summer, Ms. R. commenced her relationship with Mr. C., the father of K.

[161] Ms. R. described her childhood as difficult. She and her mother, with whom she lived, moved often, including inter-provincially. She was exposed to chaotic situations including intoxicated adults. She was struck. She was chained to a clothes line. At 15, she left home to make her own way due to what she described as "irreconcilable differences" with her mother.

[162] Ms. R. was 17 when her first child, A., was born. She separated from K.O., A.'s father, and then met J.M., the father of R. and J. Following her separation from Mr. M., there was a court proceeding with respect to custody and access of the two children of that relationship. There was a dispute at one point between Ms. R. and Mr. M., which ended with Ms. R. smashing the windscreen of Mr. M.'s automobile and then punching him in the head. Ms. R. said she had however been "provoked" in this regard by a comment Mr. M. had made. As a result of these events, Ms. R. was convicted of assault and mischief and placed on Probation.

[163] As A. grew into adolescence, she apparently developed some behavioural problems. Ms. R. said A. was diagnosed with Attention Deficit Disorder and Oppositional Defiance Disorder. Various reports from A.'s school were entered into evidence, which included a letter from the school when A. was in Grade four, indicating that A. was lashing out at other students and scratching them. Ms. R. sought out assessment and treatment for A. at CPRI, a children's treatment facility located in London, Ontario.

[164] A. ran away from the mother's home on three occasions. Finally, when she was fifteen, A. ran away and stayed away. She was made a Society Ward and later a Crown Ward. She has never returned to the mother's home to live.

[165] At the time of running away, A. spoke with police with the result that her two sisters were apprehended from the mother's care, and the mother was charged with assault. Ms. R. pleaded guilty to this charge and was placed on Probation.

[166] A term of that Probation required that the mother have no contact with A. The mother said that on one occasion A. came over to her home and stayed for supper. There was then a subsequent contact with A. As a result, the mother was charged and convicted of breaching her Probation and she received a further term of probation as a result.

[167] The mother acknowledged that she had utilized a stick in disciplining her older children A., J. and R. She denied the extent of abuse alleged by A. She also said that she had since engaged in numerous services through the Norfolk Pregnancy Centre and learned from them. She admitted "spanking" I. and E., but said this involved a light tap or two, and it was conducted in a calm state of mind.

[168] In her examination-in-chief, she said that by April 2014 this "spanking" had gotten to be an almost weekly occurrence. By cross-examination with the OCL however, the mother substantially reduced her estimate of the frequency saying it was monthly. She did say it was less frequent for E. She denied using a stick or locking the children in their rooms. She described using "time outs" as a form of discipline, although her testimony equivocated on the issue of their duration. At one point in cross-examination she said that I. would sometimes be engaged in the time out process for up to twenty-five minutes because the time out would not start until he calmed down.

[169] She also described I. engaging in disruptive or even dangerous behaviour such as chasing his sister or farm animals with a stick. She said he would demonstrate aggressive and mean behaviour on a daily basis.

[170] The mother attributed the apprehension of I. at birth to the allegations of A. and the maternal grandmother, N.H.

[171] The mother acknowledged that she had been bound by a supervision order when the children were returned to her on June 25, 2014 until they were re-apprehended October 6, 2014. One of the terms of this order was that she not consume marijuana while in a caregiving role. The mother continued to use marijuana thereafter on a daily basis, usually early in the morning or after the children had gone to bed. She minimized this matter however saying Mr. K. or some other person was usually around to ensure the children's safety.

[172] The mother attributed the marks on E.'s back and buttocks in October 2014 to a fall down some outside stairs a short time before. She adamantly denied having ever hit I. or E. with a stick or of having tied E. to a bed. A photograph of E.'s bed was entered into evidence. It depicts a mattress lying directly on the floor, which would seem to preclude the ability to tie a child to the bed.

[173] The linear marks on I.'s head were said to have been the result of a temper tantrum that I. threw after being forced to leave the home of a friend, one C.B. When asked if she had sought medical treatment for I., the mother responded that she applied first aid.

[174] The mother also described her current support system including that of her Pastor, Jeff McLeod.

[175] Ms. R. said she was not supporting the placement of K. with his father. In cross-examination she made it clear she continues to have concerns about K.'s placement with his father. She described her weekly visits with K. and said that she continues to find bruises on him every week. She also disputed Mr. C.'s evidence about showing him the injuries to I.'s head and asking for advice.

[176] In cross-examination the mother was led through a series of allegations advanced against J.M., the father of her daughters, J. and R., over the approximate timeframe of her custody dispute with him. The mother first instigated a report of sexual abuse against Mr. M. in 2000, when she relayed this concern to her family physician. This was investigated and never verified.

[177] In 2001, the mother called a helpline and suggested her daughter had been sexually abused by Mr. M. She was referred to the Society. This too was investigated and not verified. There was then a third allegation of sexual abuse advanced against Mr. M. some time later, which was again, not verified.

[178] Another allegation was made during this time that Mr. M. had choked R. and dragged her to her bedroom. The mother said she continued to believe this was true, however it, too, was unverified. Ultimately the children J. and R. were placed in the custody of Mr. M. with access to the mother in his discretion. For a brief time both children visited with the mother thereafter, but in short order J. stopped going for visits. R. continued to visit until April 2014, when Mr. M. exercised his discretion to stop the supervised access.

[179] When asked in cross-examination about her practice of spanking the children I. and E., the mother said she did not believe that spanking was abuse. She expressed the view that the children were either fabricating the allegations about being hit with a stick, or having it "put into their mind" by someone. She thought that I. described her as "mean" because she would not let him have a bowl of Skittles for lunch. She acknowledged that she struggles with refraining from physical discipline but said that having struggles did not mean she was not able to accomplish this objective. When asked why I. might have repeatedly said he does not want to return to her care, she thought that he might really want to come home but is feeling angry and frightened.

[180] Sally Lowes, the clinical access facilitator with the Society was called by the mother as a witness. Ms. Lowes has facilitated various access visits between the mother and K. She has not seen anything during the visits that would give her concern for K.'s safety.

[181] Ms. Lowes was aware that the mother had advanced concerns repeatedly about K. being constipated. Ms. Lowes has seen K.'s stool and noted that he always seems to have normal stools.

[182] The mother has also said that the food the father sent with K. was not food, but junk.

[183] She has seen K. with various bumps and lumps, however these appear to be very normal for a child of his age.

[184] Jeffrey McLeod has been the mother's pastor through Evergreen Heights Christian Fellowship since September 2014. Initially the mother sought his counsel about a relationship breakdown with a boyfriend. After the children were apprehended however, the focus shifted. Pastor McLeod has provided cognitive behavioural therapy and DBT dialectical behaviour therapy to the mother. This is designed to assist the mother to learn to cope with anxiety as well as to address her anger.

[185] The mother is quite active in the church, attending services each Sunday, and she is active in small group ministries. The mother is well known among the congregants, and she receives assistance financially, and in kind, as well as, when they were with her, help with the children.

[186] Pastor McLeod is willing to supervise access visits between the mother and the children. If the children were returned to the mother, the congregation would continue to provide financial and other assistance and to provide respite care as needed. He was aware that K. has Down's syndrome and the children's programs through the church would be equipped to deal with his challenges.

[187] Pastor McLeod was aware of the Society's position in the litigation, but indicated he disagreed with it, as the church takes the view that people can change.

[188] Laurie Wood is the client volunteer services director at the Norfolk Pregnancy Centre. Ms. Wood met the mother in December 2013, when she was pregnant and seeking services. The mother has attended for parenting classes since that time, covering subject matter such as child development, discipline, re-direction and counting. Currently the mother and Ms. Wood meet every other week for parenting education. The mother is enthusiastic about learning new things and always completes her homework. These services will continue to be available to the mother in the future.

[189] In cross-examination, Ms. Wood was asked as to what the centre would recommend in relation to duration of times outs. She indicated the general rule is one minute for each year of age. She looked askance when asked if a 20 to 25 minute time out would be excessive for a five year old and after some hesitation said it would.

[190] J.L. is Mr. C.'s aunt and hence the great aunt of the child K. She is a retired nurse. She has been to the mother's house approximately twice since K. was born and has met I. and E. Ms. L. was at the mother's home about two or three weeks before the children were apprehended in October 2014. She saw nothing amiss at that time. She did however observe E. to fall when she was running down some stairs, landing on her buttocks.

[191] Ms. L. occasionally provides respite care for K. She did so for a few days over Christmas 2015 when Mr. C. was moving house. Typically she takes K. one weekend a month. When K. is staying with her and there is a scheduled visit with the mother, Ms. L. drives K. to and from the visit.

[192] At the time the mother prepared her Answer there was some thought that Ms. L. would collaborate with the mother in caring for the children. Ms. L.'s situation has now changed however, and she is not able to undertake this role. Neither is she prepared to supervise any of mother's visits.

[193] C.B. is a long-time friend of the mother. She and the mother frequently spent time together when the mother had care of the three older children, A., R. and J. Ms. B. never saw the mother undertake any inappropriate discipline with the children, and she saw no suspicious injuries on the children.

[194] She confirmed there was an occasion when I. threw a temper tantrum when he was leaving her home, and he flung himself down on the driveway and flailed about. The driveway was very uneven and there was concrete on it. As a result, I. sustained an injury on his head that bled a little bit.

[195] Ms. B. was quite emotional during her testimony and cried at various times. It was clear that she was very supportive, and indeed allied, with the mother. It was quite clear over the cross-examination that Ms. B. thought the mother had been rather unfairly maligned by her children. She also minimized any spanking the mother might have done.

[196] Ms. B. advised that she has a medical marijuana license and consumes marijuana regularly. She and the mother have often smoked marijuana together, including when the children and the mother are over at Ms. B.'s home. Sometimes Ms. B. provides a marijuana cigarette to share with the mother. Ms. B. said she had not enquired as to whether she was allowed, under the terms of her license, to provide marijuana to other people. (Although it would seem inconceivable that this is permitted under by the licence.)

[197] Ms. B. said she was quite willing to supervise the mother's access should that be required. If the children were to be returned to the mother's care, she was prepared to offer whatever help was needed.

THE LAW

[198] The paramount purpose of the Child and Family Services Act is to further the best interests, protection and well-being of children.

[199] In determining this Application, I must first determine whether the children are in need of protection under section 37(2) of the Act. Section 37(2) of the Act defines the circumstances under which a court may find a child is in need of protection. The Society alleges that these children are in need of protection pursuant to the following sections:

37(2)(a) The child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

37(2)(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

37(2)(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

37(2)(f.1) the child has suffered emotional harm of the kind described in sub clause (f)(i), (ii), (iii), (iv) or (v) and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

37(2)(g) There is a risk that the child is likely to suffer emotional harm of the kind described in sub clause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

37(2)(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in sub clause (f)(i), (ii), (iii), (iv) or (v) and that the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm.

[200] 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 or an order for Custody under s.57.1, in the child's best interests:

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.

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.

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the Society.

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.

[201] Pursuant to s.58(1) of the Act, the court may, in the child's best interests:

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

The criteria to be considered by the court in making an order in the best interests of a child are set out in s.37(3) of the Act and are as follows:

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

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

3. The child's cultural background.

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

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

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[202] Pursuant to s.70 of the Act, the court shall not make an order for Society wardship that would result in a child being a Society ward for a period exceeding twelve months, if the child is less than six years of age. This limitation is subject only to a six month extension in the best interests of the child. The children I. and E. have been in the care of the Society for a period of time grossly in excess of the statutory limits. It therefore follows that the only dispositions available for them are return to the mother with or without an order of supervision, or Crown Wardship.

Where a Crown wardship order is made, s.59(2.1) of the Act provides that no access order shall be made 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.

[203] Where a child is made a Ward of the Crown, there is a presumption against access. The onus is on the person seeking access to demonstrate on a balance of probabilities that the criteria set out in section 59(2) are met. "Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant". The person seeking access must prove that his or her relationship with the child brings a significant positive advantage to the child.

[204] It is not sufficient for parents to state that access was appropriate and no concerns had been identified. The parents must show that access would bring a significant positive advantage to the child.

[205] The test is conjunctive. The person seeking access must adduce evidence to satisfy the court of both requirements. The onus is on the parent to show that an order for access will not diminish, reduce or jeopardize or interfere with the child's future opportunities for adoption.

[206] Once there is an order for Crown Wardship, the focus of the CFSA is to establish a permanent and stable placement for the child.

[207] In Children's Aid Society of Toronto v. T.(C), 2006 ONCJ 548, the court described the law on disposition as follows:

"The test for disposition is best interests. Generally the question might be: Is it better for a child to have a permanent and stable placement than a placement that is only stable? There are good reasons to believe that adoption is generally to be preferred over long term foster care".

[208] In Children's Aid Society of Owen Sound and County of Grey v. T. (T), the court noted:

"There is a stability and certainty in the uniqueness of the family unit when adoption occurs that long term foster care does not provide."

[209] At section 50(a), the legislation specifically provides that past parenting is relevant and admissible evidence in any proceeding under Part III (child protection). Such evidence provides a backdrop against which the court can consider whether the parent has undertaken meaningful change.

[210] 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, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T..

ANALYSIS

Admissibility of Hearsay Evidence

[211] There is a preliminary issue that must be addressed prior to consideration of the issues of findings of protection and disposition. In closing submissions, the mother's counsel asked what quality of evidence is required for children to be permanently removed from a parent's care. Hearsay evidence is presumptively inadmissible. There are sound policy reasons for this principle. Admission of hearsay evidence has the potential of creating unfairness to a responding party. Counsel therefore urged the court to disregard the out-of-court statements of the children for which there is no corroboration, and to rely exclusively on the transcripts of the criminal trial for the children's evidence.

[212] It might have been preferable for this to be raised as the evidence was submitted, and a voir dire to be undertaken. This was not done however and the evidence was introduced throughout the trial, by various witnesses. The issue of the admission of this evidence and its weight requires separate consideration at this time.

[213] First, I am satisfied that had the issue been identified as to the admission of the evidence prior to its introduction, a principled exception to the hearsay rule would apply. This is because the evidence was both necessary and reliable. I. was, at the time of this trial, six years of age. He was obviously put into serious emotional distress by the experience of testifying at the criminal trial. He was again significantly distressed as a result of having to meet with the CAAP team to discuss his experiences. He suffers from anxiety to the extent that he has been prescribed anti-anxiety medication. The only logical inference is that this child would have been traumatized by having to testify at a child protection trial.

[214] E. was five at the time of this trial. She has already had to testify at the criminal trial. She, like her brother, has been determined to have suffered complex trauma as a result of the parenting she received from her mother. She, like her brother, has described her mother as treating her meanly and being physically abusive to her.

[215] It is clear that both children would likely have been emotionally harmed by having to testify at this trial. Accordingly, the hearsay is necessary to provide the court with evidence of their experiences when residing with their mother.

[216] The hearsay evidence of the children would also have threshold reliability. Ms. Lillie, Ms. McFadden and Ms. Foote, from whom some of this evidence was tendered, were all Society workers involved with the children. There was no evidence to suggest that these witnesses were motivated to fabricate the evidence, unless one accepts the mother's assertion to CAAP (not advanced at trial) that each was motivated by financial or other gain. There was nothing in their testimony to suggest such a nefarious plot. Each was subjected to thorough cross-examination informed by disclosure of their notes and records.

[217] Ms. E., the foster mother, also provided some of the hearsay evidence. Ms. E. does wish to adopt the children and so she could arguably have some motivation to misstate or overstate. I am satisfied however, from her evidence as a whole, which also included cross-examination informed by disclosure of all pertinent Society records, that this evidence had threshold reliability.

[218] Accordingly, I am satisfied that the hearsay statements attributed to the children meet the standard for admission and should be considered. I will address the weight of these statements as each substantive issue is considered in turn.

Findings of Protection

[219] The first question to be determined is whether these subject children are in need of protection.

[220] At the time of the commencement of the original Protection Application in May 2014, I. was four and one half years of age. E. was three. The mother was describing I.'s behaviour as "defiant". She was wondering if he had mental health issues. Although he was eligible to enter junior kindergarten at the time, the mother had not enrolled him because she felt his behaviour was too problematic. Despite this, she would not accept the worker's suggestion that she seek the assistance of her family physician or avail herself of a behaviour management counsellor.

[221] Interestingly, the mother had also used the same term, "defiant" to describe her older daughter, A. The mother has acknowledged using a stick to discipline A., including striking her in the head with this object. During the guilty plea the mother also acknowledged that she had shoved a younger sibling of A. (either R. or J., that child is not named in the transcript) into a closet, and then pushed her outside, to remain outside of the residence. The mother was convicted of assault against A. as a result of this "discipline".

[222] When interviewed by intake worker Theresa Lillie, I. disclosed that he was hit with a stick by his mother. He said this stick was contained in the mother's closet. A. had not been residing in the mother's home nor having any contact with the mother for some years prior to I.'s disclosure. There is no indication that I. would have had contact with A. or the older siblings J. and R., such that he would have had knowledge of their experiences. Both Society workers, Ms. Lillie and Ms. McFadden, testified that at no time did they discuss with the subject children that the older children had disclosed being hit with a stick.

[223] The mother says that someone was coaching the children to make these unfounded accusations. But there was nothing in the evidence that would suggest that Ms. Lillie or anyone else had somehow prompted the boy to make this statement. Dr. Niec was qualified as an expert in child maltreatment. She was specifically asked in cross-examination by the OCL how likely it was that I. could have been so well coached that he would remain consistent in his disclosures over a significant period of time. Dr. Niec's response was, "the likelihood is, he wouldn't".

[224] The evidence would also suggest that the mother thought she had something to hide with respect to how she was treating the subject children. When Ms. Lillie first attended, unannounced, to speak with the mother and children on April 17th, 2014, the mother put her off by insisting upon a pre-scheduled future appointment. Ms. Lillie was unable to meet with the children on that first date. A date was set for Ms. Lillie to return on April 22nd. The mother put off Ms. Lillie a second time when she attended for the scheduled appointment on April 22, 2014. The children were not seen. It was not until April 28, 2014 that Ms. Lillie was actually able to meet with the children. By that time, 11 days after the first attendance, the mother had had plenty of opportunity to "prepare" the children for their meeting with the worker.

[225] During the meeting on April 28th I. stated that his mother had told him that if he spoke with the worker he would be taken away. Ms. Lillie heard the mother say to I., at the time of the apprehension, "see I told you this would happen". This corroborates I.'s assertion in this regard. The mother's older child, A., had also described being "programmed" about interactions with Society workers.

[226] As I. was being returned to his mother's care pursuant to the order at the temporary care hearing on June 25, 2014, he again disclosed to his child service worker, Kathryn Foote, that his mother hit him with a stick.

[227] Once in care, I. maintained the same disclosure to his foster mother, S.E., telling her on a number of occasions that mommy had hit him with a stick and that she was mean. There is nothing in the evidence to suggest that Ms. E. would have coached I. to make this assertion. Ms. E. specifically denied this on the witness stand, and she was not in any way shaken on the point.

[228] It would seem that I. did not make any disclosures of being hit when he was in his mother's care between June 25th and October 6, 2014, despite regular visits by the workers. These visits were, however, primarily pre-scheduled. The mother would have known when to expect the workers and she certainly had the opportunity to prepare the children accordingly. Ms. McFadden also testified that the mother often stayed in relatively close proximity during the meetings with the children. The mother had previously demonstrated a tendency to instruct the children not to speak with the workers. It is reasonable to think that she would have continued to do so over that period of time. This is especially so since once he was re-apprehended in October 2014, I. expressly stated to the worker that he had not told about being spanked after being returned because his mommy had told him not to.

[229] Although I. did not disclose ongoing hitting over the summer of 2014, he also did not recant his earlier assertions. In fact on July 10, 2014 in response to a question about the stick his mother had earlier hit him with, I. tip toed into his mother's bedroom to look in the closet and under her bed. This was the same location he had told Ms. Lillie the stick could be found. While doing so he was seen to be "petrified". The fact that no stick was found at the time is not determinative of whether it had previously been in one of those locations.

[230] It is also significant that during a visit that Ms. McFadden had with this little boy in August 2014, he was showing fear about having thrown a toy into the ceiling fixture. He was sufficiently concerned about what response this would generate that he tried to get Ms. McFadden to get it for him.

[231] At a meeting with Ms. McFadden on October 6, 2014, in the neutral environment of the school, when asked about marks to her neck, E. responded, "mommy hurt me when she was mad'. E. had marks to her neck that may have been explained in some part by a necklace that had been seeped in tee tree oil. But she also had two linear reddened marks on either side of her upper buttocks. Dr. O'Toole testified that a mark on the buttocks is sometimes associated with inflicted injury and would not be inconsistent with being hit with a stick.

[232] The mother says that these marks were caused by E. falling down wooden stairs a few days prior. The mother however, would have been acutely aware that the Society was very concerned about the risk of physical harm to these children, through hitting. One would have thought that if E. had sustained injuries of this nature in the way described, the mother would have reported it to the supervising worker to avoid potential subsequent repercussions. This is particularly so given that mother testified that one of the reasons she perpetually inspects K. for marks at visits is because she worries that she may be blamed for any mark.

[233] After his apprehension, I. made similar disclosures, of being hit with a stick, to police. What then to make of the retraction of this allegation at the criminal trial? I. was described by his foster mother as being in a high state of agitation and anxiety on the day of his mother's criminal trial. He was only five at the time and E. was three.

[234] There is also the evidence of Dr. Niec. Dr. Niec testified that it is unreasonable to expect a child in limbo, whose ultimate placement is undetermined, to testify against a parent, given that a child who has been abused would be fearful of being returned. She said it would be a highly emotionally dysregulating event for a child, and nothing the child would say in that situation would have any validity.

[235] When asked about the inconsistency in I.'s testimony at the criminal trial, Dr. Niec commented that I. would have wanted to please all the adults with his responses. When the question is asked again, perhaps in a different manner, the child would be inclined to think that his previous response was incorrect and so he would change it.

[236] I. was quite obviously frantic to get out of the situation at court. I presided at that criminal trial and I recall his avoidance behaviour well. The totality of the evidence supports a clear inference that I. would have said anything to get out of the situation. He was distraught. The fact that this five year old had promised to tell the truth does not change that reality. It is therefore impossible to put any weight on his retractions at the criminal trial.

[237] Since being returned to foster care, I. has repeatedly told his child service worker, Ms. Foote, that his mother hit him with a stick. He has expressed fear of his mother to both Ms. Foote and his foster mother.

[238] The children's disclosures about abusive physical discipline also have to be put in context of descriptions of the mother's treatment of the children by J.C. and N.H. Once he separated from the mother, Mr. C. revealed that once angry, the mother would spank the children a few times. Even when not hitting the children the mother's discipline was harsh and punitive. She would require I. to sit on a stool or milk crate for long periods of time. She would yell at him and call him "stupid". At one point, she threw I. The description of unreasonably lengthy time outs is not in fact inconsistent with the mother's own evidence of time outs extending to as long as 25 minutes as she waited for I. to calm down.

[239] It's true that Mr. C. gave a varying account of the mother's discipline over various affidavits entered into evidence earlier in this proceeding. I accept however that at the time he did so, Mr. C. was hopeful of a reconciliation with the mother. I accept that he minimized the situation as he knew it to be at the time.

[240] The maternal grandmother, Ms. H., described the mother's harsh and abusive disciplining of her older children. She noted that the mother was much more harsh with I. than with E., something also remarked upon by Mr. C. She said it seemed as though I. could do nothing right.

[241] I appreciate that the maternal grandmother, Ms. H., and the mother have had a troubled relationship, and this must be considered in assessing Ms. H.'s credibility. There is however no foundation in the evidence to suggest that Ms. H. was falsifying her evidence. She was not shaken on her overall description of the mother's behaviour. The harsh and authoritarian approach she described fits with the mother's own description of her parenting provided to CAAP. It is consistent with the focus on correction described by Ms. Crosbie, the public health nurse. It corresponds to the harsh methods generally described by Mr. C.

[242] It is true that Mr. K., who was friendly with the mother over the summer of 2014 when the children were in her care, and who was frequently in the home, said that he did not see any inappropriate discipline. There are however two caveats to his testimony in this regard. First, Mr. K. was often away at work, and staying at his parents' home. There would have been considerable periods of time that Mr. K. would not have been present to observe what was going on between the mother and children.

[243] On this point also, it is germane that Mr. C. also said he never saw the mother hitting with a stick. A logical inference is that the mother saved her most abusive discipline for when her male partners were not around.

[244] The second caveat with respect to Mr. K.'s evidence is his tendency to be casual with the truth. When asked about his criminal record, he initially said it was "clean". Then he said he had one very dated impaired charge. It was not until he was confronted with the actual record that he acknowledged the entirety of it.

[245] Mr. K. also said he had, when separated from her in 2013, intentionally misrepresented the mother's over-use of marijuana to the Society worker. He said he did this due to "spite". He said this despite the fact that the mother herself acknowledged to the worker in April 2014 that she used marijuana several times a day. It was apparent from his testimony that Mr. K. now has hopes again, of reconciling with the mother.

[246] The clear inference is that Mr. K. will mould his assertions to whatever he thinks will advance his aims. At present, he apparently wishes to curry favour with the mother. I do not think that any weight can be placed on Mr. K.'s evidence about the lack of abusive discipline.

[247] It is apparent from all of the evidence that I. has maintained his assertion of being hit with a stick to a number of people, over time. He showed Ms. McFadden where the stick was typically kept. His emotional affect at the time of doing so was one of fear. His statement with respect to that location was also made several times, to different people. The mother has a history of using a stick against her older children. There is no evidence that I. and E. would have had any knowledge of the mother having previously used a stick on her older children. The mother has acknowledged "spanking" the children until a month before their apprehension in late April 2014.

[248] These disclosures are within the context of I. showing great distress at the prospect of even hearing his sister mention his mother. It is in the context of I. firmly and repeatedly stating that he wishes to remain "forever" with his foster parents. It is in the context of I. flatly refusing to see or have any contact with his mother, to the extent that he refused a birthday party out of worry that his mother might attend.

[249] The CAAP report specifically notes that the detail of I.'s disclosure, including the location of the stick and the spontaneous nature of his disclosures to his foster mother, support the validity of the children's disclosures. Similarly, the fact that the children's disclosures were accompanied by marked changes in affect supports the validity of them.

[250] E. has also told her foster mother of her mother hitting her with a stick. Her consistent message to the CAAP team during her meetings with them was that "mom mean". Although the marks found on E.'s back and buttocks may have been explainable by the fall on the stairs some days before her apprehension, they are also consistent with being hit with a stick.

[251] The evidence is overwhelming that the mother inflicted physical harm on these children, including by hitting them with a stick.

[252] This ongoing pattern of spanking, harsh and unreasonable discipline was ongoing for the entirety of the time the children were with the mother. There was and is an obvious risk that it would continue, and accordingly the children were at risk of continued physical harm. Although there is no evidence to suggest that the child K. was struck or treated abusively, it is evident that there was a very real risk that he would have been. This is because of the mother's pattern of abusive treatment to every other one of her children, particularly once they got old enough to act in a disobedient fashion. K., after all, was only three months of age when he was removed from the mother. She has not had unsupervised access since. The mother just has not had an opportunity to be physically abusive to him.

[253] There is also the issue of the two linear marks on I.'s head, described by Dr. Niec as "scars". The mother's explanation of I. striking his head on the sidewalk when resisting leaving a friend's home would not appear consistent with these marks. The explanation of that event put forward by the witness C.B. strained credulity. It is very difficult to envision how a child throwing himself on the ground could result in two parallel marks on the top of his head. Aside from that, the medical evidence was that this kind of scalp injury would have bled considerably. It was an injury to the child's head. The medical evidence was that a reasonable caregiver would have been aware of this injury and would have sought out medical treatment. The mother did not do so. This is an obvious neglect of the child's medical needs.

[254] The uncontradicted expert evidence of Dr. Niec and the CAAP report is that the children had experienced maltreatment in their mother's care, and as a result have suffered complex trauma. The CAAP team was most concerned about the extent of the emotional harm.

[255] I. has demonstrated various concerning behaviours, including acting out physically when distressed, by hitting, kicking, biting and swearing. He has separation anxiety at the prospect of being away from his foster parents, to the extent that he will leave the school property to seek them out. He requires constant reassurance and comfort. He suffers frequent severe nightmares. He is currently prescribed anti-anxiety medication.

[256] The mother, too, described troubling behaviour by I. when he was in her care, to the extent she wondered if he was mentally ill. Yet she refused offers of assistance from the Society.

[257] E. was described by her foster mother as a clingy and insecure little girl. CAAP said she had low emotional tolerance levels and limited communication skills for her age. Once E. came into care, she was identified as having language delays, emotional/behavioural, and social difficulties, all of which the mother did not acknowledge prior to her coming into care. Although the mother attributed the children's emotional distress to their removal from her care, the CAAP team found that the children's ongoing behavioural and emotional distress and disclosures support that their transition to foster care was not the source of their distress. Rather, their distress was secondary to the complex trauma they experienced in their mother's home.

[258] It was CAAP's finding that E.'s emotional functioning has been adversely impacted by her experiences in the mother's care.

[259] The evidence establishes that the children suffered emotional harm as a result of the mother's actions.

Disposition

[260] Having determined that the children are in need of protection, I must determine what disposition is most consistent with their best interests. The only options for I. and E. are immediate return to the mother's care with or without supervision, or Crown Wardship. For K., the options are placement with the father, Mr. C., under an order of supervision, a deemed custody order, or placement with the mother with or without supervision.

[261] I have found that the children sustained abusive treatment and inappropriate discipline in the care of the mother. I find that the mother did not meet I.'s needs with respect to his behavioural issues that she said kept him out of junior kindergarten. On at least one occasion she did not secure proper medical attention for I. What is the prospect that this will be different if the children are returned?

[262] Dr. Niec commented on the mother's complete inability to understand the degree of distress the children were suffering. The mother had absolutely no insight into her own deficiencies in parenting. She did not accept any responsibility for the situation, stating that she had done a "phenomenal job" in parenting. The mother presented as "paranoid" with respect to the Society. She described the workers as motivated by job security and finances. This obviously does not augur well for change. As Dr. Niec pointed out, where an individual will not accept responsibility and "own" their previous failings as a parent, there is no indication that they will change.

[263] E. and I. have not even seen their mother in some 20 months. I. is vociferous in his preference not to even visit with his mother, let alone live with her. He becomes emotionally distraught even when his mother is mentioned. He is already vulnerable due to the maltreatment he suffered in her care. E.'s view and preference is also to remain with her foster parents.

[264] CAAP made the following comments with respect to the children's needs:

"Thus I. and E. require first and foremost a stable and long term placement. A stable care taking environment with caregivers who can provide physical and psychological safety is the cornerstone for their recovery and future development. A positive and safe parenting environment can also serve to change a child's acquired negative world view and serve as a template for more positive relationships. Ongoing or additional negative experiences, abuse, neglect or trauma will only serve to further compromise the children's functioning in all developmental domains (physical, emotional, cognitive and social.)"

[265] Nothing in any of the mother's evidence would evince an intention to change her authoritarian and harsh methods. In fact during her evidence-in-chief the mother expressly stated that she saw nothing wrong with her discipline of I. and E. The mother demonstrated no insight into the causation of her children's difficulties. Her previous parenting style, of which she is apparently still enamoured, is completely antithetical to the required physical and psychological safe environment required for these children.

[266] It is clear that a supervision order placing the children with their mother could not adequately mitigate the concerns. I find as a fact that the mother continued to use physical discipline when the children were in her care between June 25th and October 6th, 2014, when she was specifically proscribed from doing so by the terms of the supervision order. During that time the mother also continued to use marijuana, despite the fact that the children were in her care and she was prohibited by the order from doing so. Her assertion that she did not use marijuana when she was caring for the children because other people, like Mr. K., were around, defies reason. The mother was the primary caregiver to those children at the time. She smokes marijuana repeatedly through the day. Mr. K. works full time. He suggested at one point his work schedule does not even allow him to visit with the children. It is inconceivable that he was around often enough to ensure appropriate care of the children while mother was using what remains an illegal drug. Neither was there clear evidence of anyone else who was in the home throughout the day as mother used the drug.

[267] There is significant merit to the Society's plan for these two children. I. was in the care of Ms. E. for the first 20 months of his life. He has again been in Ms. E.'s care since October 2014, a period of some 20 further months. Ms. E. has been his primary caregiver for a very significant portion of his life. E. has been in Ms. E.'s care for 20 months of her four years. Ms. E. can quite clearly offer the psychologically safe and secure home those children both need. She is prepared to adopt them.

[268] I find that the only disposition consistent with I. and E.'s best interests is Crown Wardship.

[269] K. is doing very well in his father's care. The risk to his physical safety should he be returned to the mother remains high due to mother's lack of motivation to change. In fact, it is even higher for K. than it is for the other children, because he has Down Syndrome and is pre-verbal at present. The father has believably asserted his willingness to work with the Society on a voluntary basis if supervision is ended. He is involved with various service providers, including Lansdowne and Public Health. The public health nurse, Ms. Crosbie, testified that the father is very appropriate and responsive with K., and K. quite clearly is happy with his Dad.

[270] Accordingly, there is no need for a final supervision order.

[271] Aside from that, if a supervision order was imposed the matter would duly return for status review. The mother is entrenched in seeking the return of each of her children to her care, despite the obvious risks. Imposition of a supervision order would ineluctably result in further uncertainty about K.'s long term placement.

Access Orders

[272] The next issue is access by the mother to each of the children. As I. and E. are to be Crown Wards, the onus is on the mother to demonstrate that she has a current, meaningful and beneficial relationship with each of them, and that an order for access would not impair their opportunity for adoption.

[273] Dr. Niec testified that the mother is a "trauma trigger" for I., due to his experiences in her care. She opined that I.'s response to contact with the mother would be quite emotionally dysregulating, and that it would be hard for him to feel safe and settle should there be access. She felt it would potentially cause regression in his progress and that the dysregulation would be so significant that it would disrupt his placement.

[274] Dr. Niec commented also on the progress the children have shown since being placed in foster care and expressed the opinion that not seeing their mother had allowed them a period to stabilize and develop the ability to function to a greater degree.

[275] It is quite clear on the evidence that the relationship between the mother and the children, I. and E., is not meaningful and beneficial. The test is conjunctive and that itself ends the enquiry. I note however that the mother also has not demonstrated that an order for access would not impair the children's opportunities for adoption.

[276] The mother's position throughout this trial seems to be that someone has "coached" these children to make the disclosures they have made and to behave in the manner they have. She seems to suggest that the foster mother is complicit in this process. This suggests that she would never be able to support an adoptive placement with the foster parents.

[277] The mother has also engaged in behaviour at access with the child K. to suggest that she would be likely to actively undermine an alternative placement. She has repeatedly taken his clothes off to inspect for injuries, despite the absence of any foundation for concern. She has made assertions about marks or bruises to that child that no one else can see.

[278] In the past, the mother has orchestrated various reports to the Society about the father of J. and R. which have not been verified. Indeed there was so little merit to these reports that those children are now in the custody of their father, with access to the mother in his exclusive discretion. This suggests the mother is prepared to undertake whatever machinations she believes will further her objectives, heedless to the best interests of the children involved.

[279] This pattern continued after the children were taken into foster care and the mother had various complaints about the care the children were receiving there. Once K. was placed with his father, the mother made numerous complaints about the food sent by the father for the child, of the child being constipated, and of the child smelling like cigarette smoke. None of these concerns were shared by visit supervisors.

[280] It is clear then that the mother has an entrenched pattern of undermining her children's caregivers. Even during her examination-in-chief the mother reiterated these "concerns". She also made it clear that she does not support K.'s placement with Mr. C. despite compelling evidence that K. is flourishing there. All of this creates a basis to believe that an order for access would jeopardize I. and E.'s prospects for successful adoption.

[281] Then there is the issue of access by the mother to the child K. The mother has been seeing this child regularly since his apprehension. Currently she sees him about 10 hours a week, all of which is supervised by the Society. The mother is described as being unengaged during such access, displaying little affect, and sometimes flipping her phone about.

[282] The same concerns exist about the mother undermining K.'s placement, should access be granted. The mother does not seem to be inclined to cease her behaviours in this regard. She does not seem to countenance that it might be inappropriate to regularly remove K.'s clothes and inspect him. At this point, K. may be too young to appreciate how odd an experience this is, but at some point it has the potential to become distressing for him. At no time did the mother express a commitment to give up this activity.

[283] It is also difficult to see how access could possibly segue once a custodial order in favour of the father is granted. The Society would no longer be involved and hence no longer be available to supervise access. Access would have to be supervised because of the degree of risk to K. There is no basis on which it could be concluded that mother is likely to change what seems to be a fairly entrenched parenting style, and so the risk is likely to continue indefinitely.

[284] While Dalhousie Place Supervised Access Centre might be a suitable solution short term to address the risk, it is certainly not intended to be a permanent access arrangement. Ontario Early Years Centres do not provide supervision per se. Although the mother's supports through the church seem well intentioned, there is no indication that any of them fully appreciate the severity of the problem, in terms of mother's treatment of children. Without that understanding, there is a real risk that the supervision would be inadequate or ineffective.

[285] Accordingly, I have concluded that access by the mother is not in the best interests of K.

FINAL ORDER

[286] Accordingly, final order to go:

1. The children I.R., born […], 2009 and E.R., born […], 2010 shall be found in need of protection pursuant to section 37(2)(a)(i), 37(2)(b)(i) and (ii) and 37(2)(f) and (g) of the Child and Family Services Act.

2. The child K. shall be found in need of protection pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g) of the Child and Family Services Act.

3. The children I. and E. shall be made Wards of the Crown and placed in the care of the Children's Aid Society of Haldimand Norfolk.

4. The child K. shall be placed in the custody of the father J.C. pursuant to section 57.1 of the Child and Family Services Act.

5. The mother shall have no access to the children I., E. and K.

Dated at Simcoe, Ontario

This 1st day of June 2016

The Honourable Justice K.A. Baker