WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

ONTARIO COURT OF JUSTICE

Date: June 21, 2016

Court File No.: C71139/14-A2

Between:

Children's Aid Society of Toronto

Applicant,

— and —

M.M.

Respondent

Before: Justice Roselyn Zisman

Heard on: May 3 to 6, 9 to 11, 2016

Reasons for Judgment released on: June 21, 2016

Counsel:

• Justine Sherman — counsel for the applicant society
• Alexei Goudimenko — Respondent mother
• Jean Hyndman — counsel for the Office of the Children's Lawyer, legal representative for the child R.M.
• Deborah Stewart — counsel for the Office of the Children's Lawyer, legal representative for the children R.M. and R.M.

Zisman J.

1. Introduction

[1] The Children's Aid Society of Toronto ("the society") has brought an Amended Amended Protection Application seeking an order that the children, R.M. born […], 2001 ("daughter"), R.M. born […], 2002 ("older boy or older son") and R.M. born […], 2008 ("younger child or younger son") be made crown wards with access, in the discretion of the society, by the children to the Respondent M.M. ("the mother") and to each other.

[2] The society seeks findings of need of protection pursuant to the Child and Family Services Act ("CFSA") section 37(2)(b) for all of the children, section 37(2)(i) for the daughter and younger son and section 37(2)(g) for the oldest son.

[3] The Respondent is the mother of the children and the father is deceased.

[4] The daughter and younger child were apprehended on June 22, 2014 and the older boy was apprehended on October 27, 2015.

[5] Both counsel for the children take no position regarding the finding of need of protection or an order for crown warship. If there is an order of crown wardship, counsel for the daughter seeks an order for unsupervised access to the mother that is in accordance with the daughter's wishes and access to her brothers if they are separated. She does not want to be adopted and does not wish her brothers to be adopted. Counsel for the boys seeks an order for access at the discretion of the society and in accordance with the wishes of the boys but at a minimum of every alternate week to their mother and if they are separated at a minimum of once a week to each other.

[6] Counsel for the mother opposes a finding of need for protection and seeks a return of the children. If there is a finding, then an order is sought placing the children in the care of the mother subject to reasonable terms of supervision.

[7] There was no request for a bi-furcated hearing. Accordingly all of the evidence was heard during the trial with respect to both the finding of need for protection and the disposition. As there is an overlap with respect to the finding and disposition overlap, I will review the relevant evidence, the statutory principles and then apply the evidence to those principles.

[8] The issues to be determined are:

a) Is there evidence to support a finding of need of protection?

b) If so, what disposition is in the children's best interests? An order of crown wardship or a return to the care of the mother?

c) If there is an order of crown wardship, what form of access should be ordered?

2. Background

[9] The mother is 37 years old and was born in Belarus. Although the mother was reluctant to provide many details about her background, she did provide some basic information. She was not raised in any religion. She met her husband in Belarus when she was 20 years old. He was born in Afghanistan and was a practicing Muslim. They moved to Moscow.

[10] The daughter who was born on […], 2001 and oldest son who was born on […], 2002 spent almost the first 3 years of their lives living with the maternal grandmother who lived in Belarus while the parents continued to live in Moscow but they frequently visited the children and at times the children resided with the parents. The mother gave birth to another child who died.

[11] In February 2006, the parents immigrated to Canada with the children as refugees hoping for a better life as life in Russia had been financially difficult. They were sent to Winnipeg which they found too cold and a month later were moved to Vancouver. The family was supported through social assistance. The youngest son was born on […], 2008. Despite the mother testifying that the family was happy in Vancouver, she testified that they moved to Montreal in 2008 as a friend had told them that it was less expensive to live there and it would be better there.

[12] The mother testified that the family and children happy in Montreal, the children attended school and learnt to speak French. The father had been diagnosed with Huntington's disease shortly after arriving in Canada. In 2011, the father was admitted to the hospital where he remained until his death on June 25, 2014.

[13] The mother testified that in March 2012, the mother and the children came to Toronto. They came without any prior arrangements and stayed in a shelter for a month. The mother in her testimony provided no explanation as to the reason for the move but she had told a society worker that they moved because she was worried that the child protection agency in Montreal would apprehend the children.

[14] The mother and children then moved to a one bedroom apartment in Etobicoke and then in April 2015 moved to her current residence in North York.

3. Involvement of Society and Community Concerns

[15] Despite the mother denying any problems, according to the records received by the society, the family had some prior involvement with the Child Protection Services in British Columbia with respect to concerns about the children being left unsupervised and concerns about domestic violence, lack of supports and financial stresses on the family. The society placed an alert on the system in Quebec when the family moved there.

[16] On February 14, 2012 the Children's Aid Society of Toronto received a referral from the shelter where the mother and children were residing and the file was briefly opened. The file was opened again from June to July 2012 and again from September to March 2013.

[17] The file was opened again in May 2014. Angela Cole, a society family service worker attended at the home for an unannounced visit as she had been unable to reach the mother. The children appeared well cared for and loved by the mother and they had a close relationship with each other. She concluded that there were no protection concerns although the mother was advised the children needed their own beds as the children and mother all were sleeping in one bed. There were also concerns about the lack of any therapeutic supports, the children's school attendance and the mother's mental health. The mother explained that she had been waiting 3 years for her husband to be transferred from the hospital in Quebec and she refused to move forward until that happened. She did not appear to understand that her husband was terminally ill. None of the children reported any concerns and denied that they had been left unattended overnight. The older son explained that he stayed home from school so that he could call his father at the hospital but it had been over 2 years since he spoke to his father. The mother explained that the family needed to be together until the father returned home.

[18] Scott Woolford, the former vice principal of the school the children attended testified that the family came to his attention in the Fall of 2011. The youngest son, who would have been 3 years old at the time, was brought to the school. The superintendent of the family's building brought the youngest son to the school as he found him wondering around on the front lawn and the mother could not be found and he knew the child's other siblings went to the school. The police and the society were contacted.

[19] In the Spring of 2014, Mr. Woolford attended at the home as he had been unable to contact the mother, he found the boys home alone and contacted the society and the police.

[20] The school had a long history of concerns about the children's school absences since March 2012 and concerns about their inability to contact the mother.

[21] Both Mr. Woolford and Erin Altosaar, the principal of the school testified that the older child's absences was a significant concern as his grades were declining and there was a need for a specialized learning program. The mother never attended any parent teacher meeting although she did attend a school support meeting. A language skills assessment was recommended but because the school was not able to contact the mother the assessment never proceeded.

[22] Despite attempts to contact the mother, sending warning letter nothing changed so Mr. Woolford made a referral to the attendance counsellor in March 2014.

[23] Rachel Achtman a social worker and school attendance worker attended unannounced at the mother's home on May 9th, 2014 as she had been unable to reach the mother. The concerns were the children's inconsistent attendance. By March 2014, the older son had missed 41.5 days and the younger son had missed 29 days. There was also a concern that the mother was not abiding by the safe policy protocol as there was no emergency contact person and either the mother had no telephone or it was out of service so there was no way to contact the mother if there was an emergency or if the school needed to contact her.

[24] The older son's June 2014 final school report card indicates 63 absences and 21 lates. The younger son's June 2014 final school report card indicates 52 absences and 19 lates. The daughter's report card was not filed but according to the attendance records, she missed 41 days and was late 21 times. After the children were placed in care, there were no concerns about their school attendance.

[25] The mother explained that the children were sometimes ill and other absences were due to the children needing to stay home to speak to their father but Ms Achtman testified that the school could have arranged for any calls to be made from the school.

[26] The mother made several statements that caused Ms Achtman concern and that she reported to the society. The mother stated that the older son did not want to go to school and sometimes said that he wanted to kill himself. She also reported that she and the older son had a disagreement with the paternal uncle and she was worried about what the community would do if the father died as she was worried that she would be blamed. Ms Achtman offered her services but the mother said she would work with the society.

[27] Ms Achtman met with the older child and he denied feeling that he wished to harm himself, he liked school and had friends. There were no issues as school that would have been a barrier to him attending. She also met the daughter who was responsive but reluctant to say much to her. There were no concerns about the children. She learnt that attendance improved in the following month. However, the attendance records filed indicates that there was no improvement in the attendances for the children for the remainder of that school year and that the society had been called.

[28] In the Fall of 2014, Ms Achtman learnt that the daughter and younger child were no longer at the school but the older son's attendance had improved in the following school year.

[29] A review of the attendance records of the older son indicates that from September to October 27, 2015 when he was apprehended he had already missed 10 days of school and was late 4 times.

4. Events Leading to Apprehension of the Daughter and Younger Son

[30] On June 22, 2014 the society emergency worker, Heather O'Keefe received a telephone call from Constable Szulc that the younger son had been found in the park unattended for several hours and that he had been seen in the park the day before unattended.

[31] The police report, filed on consent, indicates that the younger child did not know his last name or where he lived and while the police were trying to have him point out his house they encountered the daughter who was looking after him. The child was found 5 to 10 minutes away from the daughter when he was found and she could not explain why he was found so far away from where she was. The daughter told the police officer that she had been watching her brother as her mother and older brother went to Montreal because their father was ill and needed surgery. Her brother went to play with friends while she was with her friends. The daughter did not have a contact number, did not know the name of the hospital in Montreal and told the officer that her mother did not have a cell phone and there were no relatives. She did not know when her mother and brother would be returning possibly that day or the next.

[32] Ms O'Keefe consulted with her supervisor and a decision was made to apprehend the children as the younger child was 6 years old and had been left unsupervised for 2 days and it was not clear if a neighbour had been checking on them.

[33] Ms O'Keefe obtained some contact information and called the mother. As the mother had difficulty speaking English, she put the paternal aunt on the phone and Ms O'Keefe explained that the children were being placed into care overnight, provided the society telephone number and told them to call the society. When asked if the children could stay with a neighbour "Christine", the worker explained that this could be explored. But it was subsequently determined that the neighbour had not been left in a caregiving role and she had a history with the society. There was no information about when the mother would be returning.

[34] The daughter was interviewed the next day and advised that she had been left to care for her younger brother while the mother and the older son went to Montreal as the father needed surgery and his condition has worsened. The mother had made them lunches, gave her $100 and said they could sleep at their neighbour's home or call her if there was an emergency or if she needed help. The daughter explained that she had been watching her brother in the park as he wanted to play with her friends. She wanted to sit down so she moved further away but stated that she could still see her brother.

[35] On June 23, 2014 James Findlay, the intake worker tried to contact the mother but was unsuccessful. He left a message for the mother at the paternal aunt's number who was with the mother in Montreal. He also spoke to the neighbour Christine Rodrigues and confirmed that she was not watching the children. As he was unable to contact the mother the daughter and younger son were moved to a longer term foster home.

[36] On the evening of June 23rd, the mother called the after-hours line from Montreal. Mr. Findlay attempted to call the mother on June 24th at the number she had left but there was no answer and he left a message for her to call him. The mother called back and later that day the older son called and spoke to Mr. Findlay. The older son advised that they would be returning to Toronto that day or the next and wanted to know where they could pick up his siblings. Mr. Findlay explained that he needed to speak to his mother and asked that he tell his mother or the paternal aunt to call him back that day. As he did not receive a call back he again attempted to call the mother but there was no answer. On June 25th he again attempted to contact the mother at the paternal aunt's number but there was no answer. He left a message that a court proceeding had been commenced and he needed to talk to her.

[37] Ms Rodrigues testified that her son and the daughter were friends. She had met the mother one time. Ms Rodrigues recalled that there some vague plans for the children to stay with her if they could not stay with family. She testified that if arrangements had been made for the children to stay with her, she would have taken them but she was not aware the mother left for Montreal, the mother never called her to say that she was staying in Montreal for a few days and the children never stayed with her.

[38] The mother gave conflicting evidence about when she found out about her husband's deteriorating condition. She testified that everything happened quickly and that she received several calls on Friday June 20th about the worsening condition of her husband, she purchased bus tickets the next day and left for Montreal on Sunday June 22nd. But at other times in her evidence she testified that she began receiving calls on the Wednesday, then on Thursday and then she said the calls were on Friday. The mother testified that her daughter did not want to go as she did not want to miss the last day of school and that she decided not to take her younger son as it would be too difficult for him. Her daughter was old enough and willing to care for her younger brother. She testified that there was no plan but that her daughter knew that if she needed something she could call "Christine". The mother never referred to the last name of Christine and it was not clear she even knew her surname as she testified that she met her once briefly on the street but she did know that her son and her daughter were friends. She did not agree that it was too much of a responsibility to leave her daughter to care for her younger brother for several days as she was smart and knew everything.

[39] The father died on June 25th and the mother and older son returned to Toronto on June 26th.

5. History of Court Proceedings

[40] On June 27, 2014 a temporary without prejudice order was made placing the daughter and younger son in the care of the society and the older son in the care of the mother subject to supervision. The terms included the mother ensuring proper supervision for the child, following the doctor's recommendations about him as he had talked about killing himself, ensuring the child attended school and working co-operatively with the society. Counsel for the children was appointed.

[41] There were several adjournments for mother to obtain counsel and for counsel for the children to meet with the children.

[42] At the court attendance on February 24, 2015, Jean Hyndman, who had been appointed counsel for all of the children, indicated that she wished another counsel to be appointed as she alleged a conflict. The endorsement of Justice Curtis indicates that there was a concern that this would result in a further adjournment and a more complicated process as yet another lawyer's availability will need to be considered and that this would not be helpful and not in the best interests of the children. Nevertheless, Deborah Stewart was then appointed as counsel for the two boys. As an aside I would point out, that despite the advocacy skills of both counsel for the children, two counsel representing these children was not necessary at this trial and prolonged the trial unnecessarily.

[43] There were further adjournments. A case conference was held on June 10, 2015 and the society did not proceed with a motion to bring the older son into care.

[44] On November 2, 2015, a temporary without prejudice order was made bringing the older son into care with access at the society's discretion in accordance with his wishes. He was placed in the same foster home as his siblings. The events leading up to his apprehension were concerns about the mother's mental health and concerning statements she made during access visits.

[45] A further case conference was held on November 23, 2015, the mother was ordered to provide the daughter's permanent residence card to her counsel. The society advised that it would be holding a branch meeting to determine if the society would be amending their Protection Application to seek an order of crown wardship for the children.

[46] On March 2, 2016 the society amended its Protection Application seeking an order for crown warship for all of the children with the children having access to each other and the older child's access to the mother to be at the discretion of the society.

[47] On April 11, 2016 a settlement conference was held and the matter scheduled for assignment court and then trial dates were set.

[48] On May 2, 2016, the trial management conference was held before me. On consent, the statutory findings were made, with a finding that the children's religion was not Jewish, not Catholic. Counsel for the mother indicated that he had instructions to call the children as witnesses.

6. Evidence with Respect to the Mother's Statements and Concerns About Her Mental Health

[49] Since the society became involved with the family, there were concerns with respect to the mother's mental health and the impact on the children about the statements she was making. Despite the society's initial position that the older son remain in the care of the mother in June 2014, his continued placement with the mother was being reconsidered on an ongoing basis.

[50] On October 17, 2014, the mother reported to Christine Thompson who was supervising a visit that:

a) She and the older son have nowhere to live;

b) She fears for her life. People in her community as well as her husband's family are following her;

c) People are following her on the bus and when she asked her older son to verify this, he agreed;

d) She does not have a job because her husband's family has spoken lies about her;

e) There have been published articles about her life in a white person's paper.

[51] Jordana Hochman was the coverage family service worker for several months from April to June 2015. During this time she met with mother who told her that:

a) The paternal aunt was getting revenge against her because she thinks she killed her husband. The paternal aunt was putting things on the internet about her and her family. She said that her older son showed it to her and he confirmed that he had seen it on the internet and that his aunt was writing bad things about the family;

b) People were treating her like she committed a crime. She further stated that she though the society had direct ties to the Afghan community and that was why the society was asking her to get a psychological assessment;

c) Her daughter was being psychologically influenced by the foster parents and that they may sell her or take her somewhere to be raped. She stated that she knew that is the foster parents plan; and

d) She continued to speak about how people in the Afghan community are talking about her and her family.

[52] Novelette Campbell is the current family service worker and has been the worker since October 2014. She has met with the mother many times and deposed that:

a) In October 2014, the mother spoke about her difficulties coping with her husband's illness and eventual death and how she was depressed and "laid here for half a year; didn't get up; didn't wash myself." She did not see a doctor and did not trust doctors. She declined counselling and stated that her children helped her and they are the best physiatrists and psychologists. She said that she was being punished because she is angry and when asked by whom, she said by the superintendent, friends and everyone;

b) She said that it was a sin for a husband to die outside the home and when this happens the woman is not considered human. They (unknown who) will hold a grudge against her but they won't hurt her and she confirmed that people are following her. She reported that people are against her referring to society staff but could not clarify how;

c) She also reported that her husband's sister wrote bad things about her, that Afghan men spread things about her that she killed her husband and that is why she can't get a job, that if she was in Afghanistan she would be killed because of the way her husband died and that men in Afghanistan have all of the power and women have none;

d) During a meeting in December 2014, the mother spoke about her older son making decisions about her daughter and how women make mistakes when they make decisions and that is why men need to make the decisions but it was pointed out that this was a lot of responsibility for a 12 year old. The mother continued to speak about not knowing why the children were in care, about the society not liking her, being against her and thinking negatively about her. When the worker tried to clarify about how she had left the children without adult supervision she refused to talk about it;

e) During a meeting in January 2015, the worker spoke about a psychiatric assessment but she declined stating that she was not crazy. She said that the worker was calling her all of the time (even though she did not have a phone) and she would call the police on her. She spoke about the worker knowing what happened at the Ukrainian factory where she worked. She continued to say that people put things against her on the internet. She also reported that the extended family did not help her or the children;

f) During a home visit in July 2015, the worker noticed a scarf wrapped and taped around the smoke detector. When the mother was out of the room, the older son said that it was covered because every time they cooked it went off. But the mother said that it was covered because people were watching them through it. When again the worker discussed having a mental health assessment the mother said that there is nothing wrong with her and that she is her own doctor. In a subsequent home visit, the worker noted that the smoke detector was still covered;

g) During an August 2015 home visit, the mother told the worker that there were video cameras around her home and in the bathroom and people were watching them and putting it on the internet. The worker did not see any cameras and when asked who put them in the apartment she said that it was the landlord or the society worker so that the worker could watch;

h) During this same meeting, the mother reported that the older son said that he would kill himself if his brother did not come home. When the worker advised that this was concerning as this was the second time the older son had threatened to kill himself if he did not get his own way, the mother said that if she and her son pressured her, the society would send the younger son home. The worker spoke about counselling for the older son but the mother declined;

i) On October 28, 2015, the day after the older son was apprehended during an access visit, the worker spoke to the mother who reported that Iranian or Afghan children at her son's school wanted to harm them because her son was changing from being Muslim. She then accused the worker of making her son Muslim. She spoke of the Afghan community wanting her dead and that her sisters-in-law were connected with people who want her dead. She denied that she had any mental health concerns, that she needed a job but people from the Afghan community will find her. She declined an assessment and said she was "normal" and she does not trust anyone and doctors will write whatever they want;

j) The worker met with the mother on November 3, 2015 to discuss her access visit being terminated early as she was talking to the children about the apprehension and Afghan people coming after her. When the worker advised the mother that she spoke to the principal of the school and there were no Iranian or Afghan students at the school she said that maybe they had left the school; and

k) During subsequent meetings the worker continued to ask the mother to participate in a mental health assessment and the mother continued to say that she did not need it, that she did not trust anyone and that she cannot just go to anyone and tell them things. The mother said that all she needed was money, a job and housing. The mother reported that the society had done nothing to help her, that people are watching them and out to get them. the worker told the mother that without an assessment the society would not recommend the children be returned to her.

[53] During an access visit on October 27, 2015, Erin May, a child and youth worker reported the following concerns:

a) The mother asked Ms May why the society was putting cameras in her apartment, even putting them in her showers, so that everyone could see her naked. When the worker attempted to reassure her that the society did not do this, she kept insisting that they were spying on her. Despite attempts to redirect her, she continued to talk about how she was being treated, that her life and son's life were threatened. Her thoughts were scattered;

b) The mother spoke about her fear that she was going to be killed and the children were going to be killed and that the Afghanis were going to take her older son from her. When told not speak that way in front of the children in this way as they would be frightened, she said that they should know if they were in danger. She also said that she feared the police and they couldn't be trusted;

c) When the police were called and the older son were apprehended, the mother cried out to her son that "they" were going to kill her. The son would not let go of his mother and had to be briefly restrained;

d) On November 3, 2015, during the first access visit after the apprehension, the mother started talking about when he was apprehended, "put down" and about them taking him from her. When the worker tried to intervene, the mother told her that she could talk to her son about what she wanted and stared to talk to her son about the Afghanis coming for him and when the mother was told the visit would have to end, she told the worker to go to hell; and

e) During several subsequent visits, the mother asked her older son how she was supposed to live and told him that "they" would not help her. She said no one will hire her because they thought that she was infectious. She continued to say that she was infectious and no one would share a room with her because the owner of her apartment was telling everyone this. She later asked if the society would not give the children back because the society thought she was infectious.

[54] Wanda Lynch the child service worker was called into the supervised access visit of October 27, 2015 due to the concerns about the mother's mental health. Ms Lynch had difficulty following what the mother was saying as the mother jumped from one topic to another and at times would become emotional and raise her voice and cry. It was Ms Lynch's impression that the mother was genuinely fearful of being hurt. The mother repeated many of the same statements she had made to Ms May. Ms Lynch clarified with the interpreter that she was interpreting word for work what the mother was saying. But the mother also told Ms Lynch the following:

a) The mother felt that they (her and the older son) were both going to be killed by the Afghan community and they wanted to bring the older son to Afghanistan;

b) The older son had been approached by his friend at school they are saying that they want them both to die and that the friend's parents are behind the messages and that the friend's parents all work for the Afghan community;

c) Despite reassuring the mother that the father died of natural causes as he had Huntington's disease, the mother continued to say that "they" and especially her sister-in-law blame her for her husband's death. The mother continued to say that the whole system is against her. The Taliban is directing the Afghan community in Toronto to tell the children's aid society to hurt her;

d) She said she went to report these concerns to the police but she never spoke to anyone there because all of the members of the police force in that division work for the Afghan community;

e) She spoke about receiving letters and Facebook posts from the Afghan community but then said she had not seen these. She stated she needed to be taken to the embassy to get help leaving the country;

f) She said that one day she was at a bus stop and an African American man approached her and her older son and gave them a letter from the Afghan community. When asked to see the letter she said she destroyed it; and

g) When told that the society was concerned about her mental health and had called a mobile crisis unit and the police, the mother kept repeating statements about the Afghan community being the cause of this, that she did not need help and did not have any mental health issues. She just needed the society to help her get a job and housing.

[55] When the mother was asked about these statements and her concerns, she testified that it was a long time ago and it did not make sense to dredge them up now. But she also testified that her older son had collected the information and told her about it. When asked if she was ever threatened or if someone was after her, she denied that she ever said she was threatened but that there was a "real incident" and then rambled and never clearly answered that question or the series of questions about the statements and allegation she had made. She only said that everyone was stressed and angry and anything could have happened.

7. Evidence with Respect to Access Visits

[56] Access visits were arranged for once a week for two and half hours. The date and time of the access was changed at various times in an attempt to accommodate the children's school and activity schedules. In November 2015 due to problems in the access visits they were reduced to one and a half hours and the mother was required to call to confirm the visit or it would be cancelled.

[57] Christine Thompson and Erin May who are both child and youth workers supervised most of the visits and filed affidavits outlining their observations of the visits. Ms Thompson supervised visits from September 26, 2013 to August 18, 2015. Ms May supervised visits from October 6, 2015 to January 19, 2016. A Russian interpreter was present for almost all of the visits.

[58] From September 26, 2013 to August 18, 2015 there were about 34 potential visits supervised by Ms Thompson. The society cancelled one visit. The mother cancelled or did not confirm 12 visits and of these the children were brought to 3 of these visits. The daughter only attended 5 visits on September 26, October 2, and December 22, 2014 and then July 14 and August 11, 2015.

[59] From October 6, 2015 to January 19, 2016, Ms May supervised 14 visits. The mother attended all of these visits as scheduled. The daughter only attended 2 visits on October 13 and December 22, 2015.

[60] The mother did not attend any visits after January 19, 2016 up until April 19, 2016. She then scheduled a visit on April 12th and all of the children attended but the mother did not show up. A further visit was scheduled for April 19th.

[61] The child service worker Wanda Lynch supervised the access visit on April 19, 2019 and all of the children attended. The mother did not tell the children why she had not seen them since January. Although the mother mostly observed the visit, she did ask the children questions and was interested in what they were doing.

[62] The only explanation the mother offered regarding not seeing the children was that she thought they were in the United States. On March 15, 2016 Ms Britton called the mother to try to set up a visit. She explained that she was covering for her regular worker. The mother said that she did not want any agency involved with her seeing the children and asked if they were in the United States as she had heard they were there. When told that the children were in the Toronto area, she again asked why there was so much secrecy and repeated that she heard they were in the United States and asked why Ms Britton could not tell the truth. The worker repeated that the children were in the country. The mother then advised that she had given her phone number to her lawyer, that she wanted to see the children, but she wanted them to call her first to see if they truly want to see her and then a visit could be arranged. The worker contacted the foster mother and gave her the mother's telephone number.

[63] The evidence regarding the access visits outlines the following positive aspects of the mother's visits as follows:

a) The mother was affectionate with her the children during the majority of the visits, especially her younger son;

b) The mother demonstrated concern about the children's well-being. She asked appropriate questions about the foster home, school and their health and gave them reminders about safety concerns;

c) When the mother was feeling well and displayed positive behaviour she was able to participate in games and actively engaged in conversation with the children;

d) The mother often spoke positively about the children and encouraged them to display positive and appropriate behaviour;

e) The mother at times brought appropriate snacks and gifts for the children; and

f) When on November 9, 2015 the new access plan was implemented the mother was generally able to comply with the expectations of the visits, namely to remain on the access premises, keeping conversations positive and not speaking about things that may be upsetting or disturbing to the children, participating in activities with the children and remaining positive and respectful with workers during the visits.

[64] The evidence regarding the access visits outlines the following negative aspects of the mother's visits as follows:

a) There were concerns about the mother's judgement and her discussion of inappropriate subjects in the presence of the children. Her mood was a times unpredictable and her behaviour concerning. These concerns had led to the apprehension of the older son during the October 27, 2015 access visit;

b) At times, the mother appeared to be disengaged from the access visit. At times, she would just sit and not interact with the children. She would sit on the couch with a blank look on her face or silently stare;

c) The mother allowed her older son to make decisions regarding the younger son during access and would often treat her older son as if he was an adult. Her older son often acted as if he had the responsibility for caring for his mother and appeared to worry about her;

d) The mother often treated her younger son, younger than his chronological age. He in turn would speak in a baby voice around her and often whine and pout. This behaviour that was not observed when he was in the foster home or with the society workers;

e) The mother would infrequently give directions with the children. When she gave directions, the children would not regularly listen or follow thorough and then the mother would not follow up with her directions or insist that the children follow through with what she was asking;

f) The mother was inconsistent with bringing snacks and providing snacks for the children; and

g) The mother had difficulty dividing her time evenly between the children. The mother often did not pick up on cues from the children. She spent most of her time focused on the younger child. When the daughter attended visits, she would ask her many questions but she not stop when her daughter showed frustration or felt uncomfortable.

[65] Although changes were made to the access schedule to try to accommodate the children's schedules, the daughter has continued to attend sporadically. The younger child attends regularly and looks forward to the visits and is disappointed when the mother does not attend. Lately the older son is not attending as frequently due to his desire to be with fiends, attend his activities or other school related events.

[66] The foster mother testified that the mother's telephone access was inconsistent and many times the children tried to contact the mother and were unable to do so.

[67] When the mother was questioned about the society's concerns about unsupervised access, she laughed and stated that she is strict by nature, this does not mean that she could kill someone and it is nonsense that she would anything to her children. She said that she does not lead her children but they lead her.

[68] When questioned about why she did not see the children from January to march 2016, she again repeated that she thought the children were in the United States, that she had both a cell and land lines at the time and that no one called her. She denied receiving any telephone messages from her children.

[69] When questioned about the frequency of access, she said "the more the better" but that the needs and convenience of the children should to be considered. She testified that the schedule was fine as is and that the visits at the society office were fine with her although her younger son in particular did not like them and wanted to be able to go outside.

[70] When asked about the impact of missed visits on her younger child, she replied that of course she understood that there was an impact and he would be upset but then stated that her younger son was closer to her older son than to her.

[71] Despite being asked about the reasons for missed visits in direct and cross-examination, the mother never provided any explanations except for vague answers about being sick or "other circumstances".

7.1 Evidence with Respect to the Children

[72] Dr. Fitzgerald conducted psychological assessments of the daughter and younger child. His reports were admitted into evidence on consent. An intake report for counselling for the younger child was also admitted on consent. The foster mother where all 3 children are placed testified as did the children's child service workers Wanda Lynch. An adoption worker also testified.

[73] The evidence is consistent that the children are close to each other, they love their mother and understand that she has some mental health issues and needs to get help. The children are not afraid of the mother but worry about her.

[74] The society workers found it surprising how fast and how well the children adjusted to to foster care.

[75] The foster mother testified that on one occasion that mother confronted her because the daughter was not coming to access visits. The mother stood close to her, waving her hands and she could not understand what she was saying and the foster mother feared for her safety.

7.2 Evidence with Respect to the Daughter

[76] The daughter is described as very focused on her school work. She is a good student. She was assessed as having an overall high average intelligence. She has lots of friends and adjusted well to foster care. Although she initially wished to play a caregiver role to her younger brother who was placed in the same foster home she relinquished this role. The foster mother testified that initially she did not talk a lot and was not social but that changed and she is now very happy and well adjusted.

[77] When the death of her father was discussed and the impact on her, she told her worker that it was not bothering her and she refused any grief counselling.

[78] Initially, the daughter advised Ms Lynch she wanted to go home. Several months later she said that she wanted to stay in the foster home and wanted the foster mother to adopt her. Although she was initially concerned about her older brother moving in to the foster home she reported that things were working out and she did not want any changes to her current living arrangements and wanted to remain in the foster home. She did not want to be adopted or for her brothers to be adopted.

[79] She is very upset that her mother has not given the society her permanent residency card. She also said that her mother had her passport. The daughter needed he residency card to get a passport as she wants to travel with the foster parents. She also needed it to obtain a social insurance card, open a bank account and eventually get a job. Ms Campbell testified she had seen the original residency card but the mother refused to give it to her and would only provide a copy and said the passport was lost. At the time the mother expressed concerns that the daughter would be taken to Iceland and did not want her to travel outside of Canada. There was an order for her to produce it but the mother never produced the original. During the trial, I requested the mother again look through her possessions to find the card but the mother advised she could not find it. I do not find the mother's evidence credible on this issue as I find that she does not her daughter to be able to leave the country die to her irrational concerns about her being kidnapped or hurt. The society has contacted an immigration lawyer who is attempting to straighten out the daughter's status and obtain any necessary documents.

[80] When the daughter and younger son were placed in their current foster home, Ms Lynch expressed some concerns as it was not culturally matched but she explored this issue with the daughter. The daughter advised that after her father died her mother stopped wearing a hijab and she has never worn one. Ms Lynch offered her tickets to celebrate Eid but she was not interested in attending. She wanted to go a Catholic school and she has attended church with her foster parents. Her mother wanted her to change her name, that is anglicize it, but she wanted to keep her first name.

[81] The daughter reported several arguments with her mother. During a Plan of Care meeting on January 14, 2015 she was found crying and said that her mother called her "a slut", "a bitch" and said that it was her fault that the mother was not receiving the child tax credit. The daughter told Ms Lynch that she did not want to see or speak to her mother.

[82] In the following months, Ms Lynch discussed with the daughter why she was not going to access and the daughter stated that she would go when she wanted and that she did not want to miss school. But even when the access times were changed, she still attended sporadically.

[83] The foster mother testified that the daughter told her she found supervised access "weird" and she did not want to miss school. They spoke about access on Saturdays at the Saturday access program but the daughter never called her worker to discuss this possibility so it did not happen.

7.3 Evidence with Respect to the Younger Son

[84] The younger child is reported to be an active, sociable and outgoing child who gets along well with his peers. He enjoys school and has positive relationships with members of the foster family, his peers and teachers. He has no behavioural issues.

[85] The foster mother testified that he adjusted reasonably well to the foster home although initially he wished to sleep with his sister, he needed help with his self-care and it was a struggle to get him to understand the importance of school and of doing his homework. However, there has been a huge improvements. He has a tutor and now communicates well and there are no issues with school.

[86] The younger child was referred for an intake assessment to determine if would benefit from ongoing counselling regarding the loss of his father. It was determined that as he was not presenting with any significant emotional concerns regarding the death of his father that such counselling was not needed.

[87] Dr. Fitzgerald conducted a psychological assessment of his cognitive functioning and found that his nonverbal skills were much better developed that his verbal skills which may be a function of living in a home where Russian was spoken. A recommendation as made for a specialized educational plan. Overtime, it was anticipated that he will develop a better balance between his cognitive and academic skills.

[88] The foster mother testified that initially the younger child said he wanted to go home but now he wants them all, including his mother, to live together.

[89] Ms Lynch deposed that when she met with the younger child on June 8, 2015 he told her that he wanted to stay at the foster home but he missed his mother and wanted to live with her and that he loved his mother and brother. The worker asked him what needed to be changed for him to go home, he said for his mother to stop hitting him or his sister or brother. He continued to make this allegation and she hit them with a red broom. The mother and the other children denied being hit.

7.4 Evidence with Respect to Older Son

[90] The foster mother testified that before the older child came into her home, he was very aggressive when he telephoned the foster home. When he was initially placed in her home, he tried to control his siblings and act like their parent. But with the help of the foster mother, this is no longer an issue and he has a normal sibling relationship with his sister and brother. He has adjusted well to foster care. He attends school without any resistance, follows directions, is respectful and has lots of friends and is involved in lots of activities. At school, he has a supportive educational plan and he has a tutor.

[91] The older son reported that his mother does not them to use their Muslim names as since their father died they are no longer Muslim. He said that he now has a new name that is more Russian.

[92] He is aware that his mother has mental health issues and he worried about her. He knows that before he can return home she needs to get an assessment and follow the recommendations. The older son has indicated that he would like to go home but is content to stay in the foster home.

8. Legal Considerations with Respect to a Protection Application

[93] The Child and Family Services Act ("CFSA") governs child protection proceedings. Section 1 sets out the paramount purposes of the act being to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purposes of the CFSA, sections 1(1) and (2) are also designated to support the autonomy and integrity of the family unit and to recognize that, whenever possible, children's services should be provided in a manner that whenever possible, that respects the children's needs for continuity of care and for stable family relationships.

[94] Sections 2(2.2) and 57(3) of the CFSA requires the court to consider the least disruptive alternative that will adequately protect the child.

[95] The society seeks a finding that the daughter and younger child are in need of protection pursuant to section 37(2)(i) in that the children have been abandoned and that the children's mother did not make adequate provision for the care of the children.

[96] The society further seeks a finding that the older son is in need of protection pursuant to section 37(2)(g) in that there is a risk that he is likely to suffer emotional harm demonstrated by anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development resulting from the actions, failure to act or pattern of neglect by the mother.

[97] The society seeks a finding that all of the children are in need of protection pursuant to section 37(2)(b) in that there is a risk that the children will likely suffer physical harm as a result of the mother's failure to adequately care for, provide for, supervise or protect the children.

[98] The onus is on the society to prove on a balance of probabilities that the children are at risk. The risk must be real and not speculative.

[99] It is not necessary for the society to prove an intention to cause harm before finding that a child is in need of protection. The society can prove causation by act, omission or pattern.

[100] With respect to a finding that a child has suffered emotional harm or risk of emotional harm, the harm must be demonstrated by one of the enumerated conditions or behaviours. The onus is on the society, on a balance of probabilities, to prove that there is a real likelihood that the child will suffer emotional harm if returned to the care of his parent.

[101] In determining the relevant time for a finding that a child is in need of protection, the court must chose a flexible and child-focused approach. A court can admit and consider evidence as to whether a child is in need of protection at the commencement of the proceeding, at the hearing date or at any other date depending on the circumstances of each case. The court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over time.

8.1 Analysis Regarding a Finding of Need of Protection

[102] I will deal with each request for a finding of need for protection as claimed by the society.

Section 37(2)(i) – Children Have Been Abandoned and Parent Not Available to Exercise Care and Custody and Has Not Made Adequate Provision for Care of the Child

[103] There is overwhelming evidence that the daughter and younger son were left by the mother without adequate arrangements regarding their care. The younger child who was only 6 years old was found unsupervised in a park without any knowledge of his last name or his address. According to the police report he had been observed in the park unsupervised that day June 22, 2014 and the day before. The police were in the mother's home for several hours and the mother never tried to contact the children, the daughter did not have a telephone number to contact her mother and did not know the name of the hospital where her father was. The mother had left her daughter who was only 13 years old to care for her brother for an unspecified number of days without any plan. The mother in her evidence had no appreciation for the risk that she placed her children in especially her younger child. The mother showed poor judgement and a lack of insight into the burden she had placed on her daughter and the potential risk that followed. It was the mother's view that her daughter was smart and responsible and could care for her younger brother but it is clear that the daughter was not responsible enough as the younger child was found on his own. The mother showed poor judgement in simply leaving without making specific arrangements for an adult to be in charge of the children while she was away. On the mother's own evidence she was aware several days before she left for Montreal that her husband had taken a turn for the worse and that she would have to go to the hospital and accordingly she could have made appropriate arrangements for the care of the children.

Section 37(2)(g) – Risk of Emotional Harm as a Resulting from the Actions, Failure to Act or Pattern of Neglect of the Mother

[104] There is undisputed evidence from several workers that the mother made many comments over many the months about being persecuted, followed and threatened by members of the Afghan community. She alleged that there were cameras in her apartment and that she was being spied on and the society and the police were part of this conspiracy against her. Prior to the older son being apprehended he told the society worker on at least two occasions that he believed his mother and that they were being followed, threatened and that they might be killed.

[105] It is submitted on behalf of the mother that the older son was accustomed to their mother making these statements and that it had no effect on him and that the mother made these statements while the society permitted the older son to remain in her care.

[106] It was the evidence of the society workers that there were ongoing concerns about the nature of the mother's statements and for this reason there were many discussions of the need for her to obtain a mental health assessment. There were ongoing discussions about whether or not the older son should be left in the mother's care. However, on October 27th, 2015 the concerns intensified due to the repetitive nature of the allegations, the increased intensity of the mother's statements, the mother's paranoid behaviour, the mother's belief that she and her son would be killed and the inability of the worker supervising access to control the mother.

[107] As a result the older son was apprehended as there was a valid concern that his own emotional health was at risk due to the mother's mental health issues for which he refused to be assessed. The concern was increased as the older son was believing the mother's delusional and paranoid allegations. The society does not have to wait for there to be actual emotional harm to a child. The mother's undiagnosed mental health issues placed the child at risk of harm. There was also evidence that the older son threatened to kill himself if his brother was not returned to the mother's care which also raised some concern about a risk of emotional harm.

Section 37(2)(b) - Risk of Physical Harm as a Result of Parent's Failure to Adequately Care, Provide for or Protect the Children

[108] There was a history of the mother not properly protecting her children. There were concerns about the mother properly supervising the children while the mother and children lived in British Columbia. The vice principal of the school the children attended testified about an incident when the younger son was only 3 years old and he was brought to the school because he was found wondering around on his own and another incident when he was unable to contact the mother and went to the home and found the two boys left unattended. The incident leading to the apprehension of the daughter and younger son also placed both children and in particular the younger child at significant risk of physical harm.

[109] The mother has been aggressive with the foster mother on one occasion, verbally aggressive with the daughter and she has not been able to get along with the access supervisors. Her lack of control of her emotions potentially can also put the children at risk of physical harm.

[110] Although the younger child alleged that the mother inappropriately physically disciplined the children, as there was no corroboration of this allegation I put no weight on his statement.

8.2 Ongoing Protection Concerns

[111] Both the daughter and older son reported to the foster mother that they did not trust people, that people were watching them and that they would be kidnapped. The foster mother testified that they spoke with passion and truly believed these things. It is not certain what effect this could have had on the children if they had remained in the care of the mother. However, there is a valid concern that believing that they are being watched or that someone will kidnap them, could have an emotional impact on the children.

[112] The foster mother over time was able to explain these fears were not real and they have now faded away. However, if the mother continues to express these concerns to the children during access visit there remains a concern about the impact this will have on them.

[113] There was also a great deal of evidence with respect to the mother's neglect of the children's educational needs. All of the children were absent from school for an inordinate amount of time and the school authorities were unable to contact the mother. The lack of school attendance impacted on their academic progress and effected their socialization. The mother had no insight into the effect on the children of such poor attendance. She refused assistance form the school social worker and did not follow through with the language assessment for the older child. His academic potential was significantly impacted by his lack of attending school.

[114] After the father's death, it is clear the mother had a great deal of difficulty coping. But instead of ensuring the older son attended school regularly to resume some normalcy in his life and obtain support from his teachers and peers, she kept him home and relied on him to attend meetings or assist with attending to her financial issues. The mother considered that her 12 year old son was now the "man" of the family.

8.3 Conclusion Regarding the Finding of Need of Protection

[115] I therefore find that the society has met its onus to prove that the children are in need of protection pursuant to the sections of the CFSA as noted above. I also find that the concerns that existed when the children were apprehended have not decreased as the mother does not appreciate why the children were apprehended and does not appreciate the impact of her behaviour has had on the children. There is an ongoing risk to the children's emotional well-being as the mother is unwilling or unable to understand that she has mental health issues that require treatment.

9. Statutory Framework and Applicable Legal Considerations with Respect to Disposition

[116] After a finding is made, the court must determine what order is required to protect the child. In the oft quoted case of Children's Aid Society of Toronto v. T.L., Justice Perkins set out the statutory pathway to be follows:

1. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57.)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

3. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59(2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

4. Determine whether the access would impair the child's future opportunities for adoption. (Section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step.

5. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

[117] Subsection 57(2) of the CFSA requires that the court inquire as to what efforts the society or another agency or person has made to assist the children before intervention under Part III of the CFSA.

[118] Subsection 57(3) of the CFSA requires that the court consider less disruptive alternatives than removing children from the care of the person who had charge of the children immediately before intervention unless the court determines that these alternatives would be inadequate to protect the children.

[119] Subsection 57(4) of the CFSA requires that the court consider community placements, including family members, before placing children into the care of the society.

[120] Subsection 70 of the CFSA limits the available options for disposition. It is a statutory recognition that permanency planning is of paramount importance for children. Subsection 70(1)(a) and (b) provide that for children under 6 years of age the court shall not make an order that results in a child remaining in care for more than 12 months and that for children over 6 years of age the court shall not make an order that results in a child remaining in care for more than 24 months.

[121] Subsection 70(4) of the CFSA provides that this period may be extended, in the court's discretion, for a period not exceeding 6 months if it is in the child's best interests to do so.

[122] In this case the daughter and younger son will have been in care for 24 months as of June 27, 2016 and the older son has been in care for 8 months. These are not minimum time limits but the maximum time limits and a court does not have to wait for these times to expire. The only options for the daughter and younger son are therefore an order for crown warship with or without access or to return them to the care of the mother with or without supervision. With respect to the older son there is the further option of an order for society wardship.

[123] Subsection 37(2) and (3) of the CFSA provides that s society has a duty to assist parents in caring for children, always keeping in mind that the paramount objective of the CFSA is to promote the best interests, protection and well-being of children. The court is required before making a disposition to consider what efforts a society or other agency has made to assist a parent before making an order that removes a child from that parent's care. Further, prior to removing a child from a parent's care, the court must also consider whether there are less disruptive alternatives to serve the child's best interests and whether or not it is possible to place the child with a relative or a member of the child's community or extend family.

[124] In determining the appropriate disposition, the court must decide what is in the children's best interests. Those criteria are set out in subsection 37(3) of the CFSA 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.

[125] In coming to my decision, I have also considered that, "an order for crown wardship is the most profound order that can be made by a family court. The order should only be made with the highest degree of caution, and only be made on compelling evidence, and only after a careful examination of possible alternative remedies."

[126] In determining the best interests of a child, the court must also assess the degree to which the risk that existed at the time of the apprehension still exists today. This must be examined from a child's perspective.

9.1 Analysis Regarding Disposition

[127] The children came into care with a good foundation. The mother loves her children and is worried about their well-being. The children have a close bond with each other and with their mother.

[128] The society has offered services to the mother which have all been declined or which she failed to take advantage of. She did not meet regularly with the society workers and cancelled appointments or could not be reached and she only attended about half of the Plan of Care meetings. The society suggested the mother attend the society's therapeutic access program to assist her in getting a better understanding of her parenting skills and provide recommendations. She agreed to attend the initial meeting but then did not attend. The society offered to put the mother in touch with the Russian or Afghan community which was refused. The society attempted to assist the mother with obtaining a mental health assessment that the society was prepared to pay for. The mother did not attend. The mother refused services for the older child and refused assistance from the school social worker. The mother did not stay in touch with the school and did not attend any parent teacher meetings.

[129] There is no family plan. The society was able to contact a paternal aunt who resides in New York who was not able to present a plan but she wished to maintain some contact with the children. In her evidence the mother was extremely reluctant to advise the court of any other relatives.

[130] The plan of the society is for the children to be placed together and for the time being to remain in their current foster home. The foster mother is prepared to care for the children on a long term basis but is not able to adopt them. The older children do not wish to be adopted and the younger child wishes to be wherever his brother is. The adoption worker testified that looking for a suitable adoptive home would take longer and she acknowledged the difficulties in finding a suitable home. She herself had never placed a group of three siblings nor had anyone in the society done so based on the statistics she provided for the years 2013 to 2015.

[131] The mother's plan is simply for the children to return to her. It is not even clear if she has a residence. During the trial, the mother told the worker that she had spent the night in the park because her landlord locked her out and a shelter bed was arranged for her. But the next day the mother advised that she had been able to go back into her apartment. During cross-examination she admitted that she had been evicted. The mother testified that she had a new residence but would not reveal the address and then said that is was "still under review". She also denied she had slept in the park the night before and said instead that she stayed up all night and was downtown.

[132] The mother has no insight into the needs of the children or the effect of her behaviour on the children. In her evidence she stated several times that she did not know why the children were in care.

[133] However, the main impediment to the children returning to the care of the mother is her refusal to acknowledge that she has any mental health issues and her refusal to obtain an assessment so that she can obtain the help she obviously needs. The society did everything it could to explain, encourage and assist the mother in obtaining such an assessment. The mother at various times either directly refused saying that she did not need a doctor or said that she would go and not follow up. She said that she went to a clinic at "Finch" and they were not able to help her and looked at her negatively and she is not going back. It was explained to the mother many times that unless she received help for her mental health issues that the children could not be returned to her.

[134] The risks of returning the children to the care of the mother are simply too great. There is no order of supervision that could address the risk of harm to the children in the circumstances of this case. The totality of the evidence makes it clear that the mother's current mental health issues would place the children at risk of both emotional and physical harm if they were returned to her care. It would become their responsibility to care for her instead of her caring for them. This is simply not the role or the burden that these children should assume.

[135] There is no evidence to suggest that the mother's ability to safely meet the needs of her children would change in the foreseeable future.

10. Statutory Framework and Legal Principles Regarding Access

[136] As outlined, once the children are made crown wards, there is a presumption against access and the onus shifts to the party seeking access to prove on a balance of probabilities that access would be beneficial and meaningful and not impair the possibility of adoption.

[137] In this case the society has agreed that there should be access to the mother. In view of the high burden on a parent to meet the test for post-Crown access, it is an onus that the mother may not have been able to meet. But the society's decision in agreeing to access to the mother shows a child focused approach that recognized that despite the mother's failings that ongoing contact with the mother was in these children's best interests. But the form of access is in dispute.

[138] The society also agrees that in the event that the children are placed in separate homes, that there be an order for sibling access. But the form of access in also in dispute.

10.1 Position of the Parties

[139] It is the society's position that access both to the mother and between the siblings should be in the society's discretion in accordance with the children's wishes.

[140] Counsel for the boys agrees that access should be in the boys' discretion. But it is counsel's position that access to the mother should be at a minimum of every other week with all aspects of the visits that is, the level of supervision, the location, duration and day and time of the visits to be in the discretion of the society. With respect to sibling access, it is counsel's position that the children and especially the boys are very close and it is important that if they do not reside together that their relationship needs to be preserved. Counsel therefore seeks a specific order and not left to the society's discretion. It is proposed that access be at least once a week.

[141] Counsel for the daughter also seeks a specified access order. She seeks an order that access be unsupervised, in the community and on week-ends. If the siblings do not reside together she also seeks a specified access order for access every week-end. It is her position that the court does not have the jurisdiction to delegate access and a specific order must be made. It is her position that if the siblings are separated that the society should be required to bring a Status Review Application or notify the Office of the Children's Lawyer.

[142] Counsel for the mother seeks access but made no submissions on the specifics.

10.2 Analysis Regarding Access to Crown Wards

[143] In considering the issue of access after the children are made crown wards, it is important to also consider the purpose of such access. Prior to an order for crown wardship, the purpose of access is to maintain and nurture a child's connection to a parent and work with a parent to determine if the child can be reunified with the parent. But after it is determined that a child cannot safely be returned to a parent, any order of access is only for the purpose of maintaining some connection to a parent. In this case, the children worry about their mother and ongoing access will ease their concerns about her.

[144] Most of the cases counsel provided to the court with respect to the lack of the court making access orders in the discretion of the society were with respect to temporary motions. The only cases relied upon dealing with an access order to a crown ward were the cases of Children's Aid Society of Toronto v. B.O. and E.A. and Durham Children's Aid Society v. R.S. and J.M. and L. Nation where the court ordered specified access. However, neither of these cases stand for the proposition that the court lacks the jurisdiction to make an order for access in the discretion of the society where the court finds that such an order is in a child's best interests.

[145] Counsel for the daughter also provided no case law supporting the proposition that the society should be required to advise the Office of the Children's Lawyer if the children are placed in different foster homes. As the court has no jurisdiction with respect to where children are placed, I find that there is no basis upon which the court could make such an order.

[146] Counsel for the daughter also submitted that the Office of the Children's Lawyer be notified if the children are separated and placed in different homes. No case law was provided to support this submission. The present plan is that the children will not be separated. The only scenario that may be possible, is if one of the children presumably the younger child is placed for adoption. But as the children will be the holders of the access orders, if one of the children is moved to an adoption placement then the Office of the Children's Lawyer would be notified on behalf of the child. If one of the children were moved for any other reason, as a holder of access, that child or the other children could bring a motion for specified access.

[147] I find that an order granting the mother a specified minimum order of access is not in the children's best interests for the following reasons:

a) There is no evidence from the children based on any statements made to the society workers, the foster mother or any other person that they seek a minimum order of access;

b) The daughter has only attended access sporadically and the older son is also now only attending sporadically;

c) The younger son is disappointed when he attends a visit and the mother does not attend. When the mother cancels a visit or does not attend, at this age he is satisfied with the explanation that the mother is not feeling well but as he grows older it is inevitable that this explanation will no longer be sufficient;

d) The mother has not provided any plausible explanations for her missed visits especially for the period of January to March 2016;

e) The mother in her testimony did not request any specified access schedule but simply stated "the more the better" without offering any evidence that she would now be able to adhere to a specified access schedule;

f) The children will only be further disappointed if they are told the mother will be visiting every week or every other week only to then be told that there will be no visit. Despite the evidence that the children, except for the younger child, have no negative reaction if the mother does not attend access, I see no benefit in stipulating a minimum order for access that the mother is clearly not capable of attending;

g) If the mother wishes to maintain a relationship with the children, the onus should be on her to make the necessary arrangements with the society. Based on the mother's untreated mental health issues, it is important for the society to have the flexibility with respect to the amount or duration of access depending on the mother's functioning and the resultant effect on the children;

h) Neither the mother nor counsel for the children ever brought a motion for unsupervised access. As a result access has always remained supervised and in the discretion of the society;

i) Given the concerns about the mother's mental health, there is a risk to the children in any unsupervised access or semi supervised access setting. Even in a supervised access setting, the society workers have had to intervene to ensure the safety of the younger son; and

j) Based on the risks I have found with respect to why the children could not be returned to the mother, the same risks exist with respect to access. The society needs to have the flexibility to determine the frequency, duration and terms of the access.

[148] With respect to sibling access, there is no dispute that if the siblings are no longer living in the same home, that they should have access to each other. I find that there is no basis in the evidence to specify the terms of that access as any order would be too speculative. At the present time it is extremely unlikely that any of the children will be adopted as the society has indicated that the priority is for the children to remain together. I have confidence that if the children were separated for any reason that the society would ensure that there is meaningful access between the siblings.

11. Conclusion

[149] There is no question that the mother loves the children and she has had many challenges in her life since she settled in Canada. However, she has not yet recognized that she needs to resolve her own issues before she can be a parent who is able to meet the needs of her children. Unfortunately, despite the many efforts of the society she has not been able to acknowledge that she needs help. Luckily for the children they have been placed together in a caring foster home where all of their needs are being met and they have been given the opportunities to reach their potentials.

[150] I therefore make the following orders:

1. The child, R.M. born […], 2001 shall be found in need of protection pursuant to sections 37(2)(b) and (i);

2. The child R.M. born […], 2002 shall be found in need of protection pursuant to sections 37(2)(b) and (g);

3. The child R.M. born […], 2008 shall be found in need of protection pursuant to sections 37(2)(b) and (i);

4. All of the children shall be made crown wards;

5. The children shall have access, including telephone access, to the mother in the discretion of the children's aid society and in accordance with their wishes;

6. In the event that the children or any one of them is separated from the others, each of the children shall have access with his or her sibling in the discretion of the children's aid society and in accordance with their wishes.

Released: June 21, 2016

Signed: "Justice Roselyn Zisman"