WARNING

The court hearing this matter directs that the following notice should 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 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 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.

Court Information

No. C72035/14

DATE: 2016-07-19

Ontario Court of Justice

47 Sheppard Avenue East

Toronto, Ontario M2N 5N1

Parties

IN THE MATTER OF

The Child and Family Services Act, R.S.O. 1990, c. 11

AND IN THE MATTER OF:

K.P. born […] 2013, and A.P., born […] 2014

BETWEEN:

Jewish Family and Child Service of Greater Toronto — Applicant

- and -

I.P. (mother) and A.M. (father) — Respondents

Before: Justice Robert J. Spence

Trial Heard: 4-8, 11-14, 19 April, 31 May, 30 June, 4-8, 11 July 2016

Reasons released on: 19 July 2016

Counsel:

• Ms. Sara Westreich and Ms. Haley Gaber-Katz — for the applicant society
• Mr. David Miller — for the respondent mother
• Mr. Bradley Berns — for the respondent father

Introduction

[1] In this amended protection application ("application"), the Jewish Family and Child Service of Greater Toronto ("society") is seeking a finding in need of protection pursuant to the following sections of the Child and Family Services Act ("Act"), in respect of two children, a little girl named K., born […], 2013, and a little boy named A., born […], 2014:

1. section 37(2)(a)(i) and (ii):

   (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;

2. section 37(2)(b)(i) and (ii):

   (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;

3. section 37(d): there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c); and

4. section 37(2)(h):

   (h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development 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, treatment to remedy or alleviate the condition.

[2] The society also seeks an order that both children be made Crown wards, without access, so that the children can be placed for adoption.

[3] The mother concedes a finding in need of protection pursuant to section 37(2)(b)(i) of the Act, but she is opposed to a finding under any other section of the Act.

[4] The father opposes any finding in need of protection.

[5] Both parents oppose the request for an order of Crown wardship.

[6] The parents seek one of the following orders:

1. a supervision order with the parents jointly, for a period of six months, with reasonable terms and conditions;

2. the mother seeks an order, in the alternative, that the children be placed with her under a six-month supervision order, with specified terms and conditions, including conditions that she be the primary caregiver and that certain restrictions be imposed on the father's involvement with the children;

3. the father seeks an order, in the alternative, that the children be placed in the joint care and custody of both parents, subject to a six-month supervision order, with joint decision-making by the parents, with reasonable terms and conditions, but with the mother having the sole decision-making authority where the parents are unable to agree; and

4. the father seeks an order in the further alternative, that the children be placed in the joint care and custody of both parents, subject to a six-month supervision order, with reasonable terms and conditions, but with father not to be left alone with the children, whose access would be supervised either by the mother or another person approved in advance by the society.

Brief Background and Litigation History

[7] The society first became involved with the family immediately following the birth of K. A nurse at St. Michael's Hospital, where the mother had given birth to K., had contacted the society to alert it of certain protection concerns, immediately following K.'s birth.

[8] The first report from the hospital to the society, on […] 30, 2013 noted:

Concerns were related to both parents presenting with delays, parental capacity and possible home environment. The [hospital advised] that the mother and her boyfriend both "seem a little out of it".

[9] On July 2, 2013, the hospital contacted the society which, in turn, made a second report, noting certain information provided by the hospital, as follows:

[the hospital] social work staff met with [mother and father] who presented significantly delayed and dirty in appearance. Additionally, [mother] advised that she would not accept a referral for a public health as should the nurse see her home the baby would be taken away.

[10] On the heels of these reports, a society social worker attended at the hospital on July 2, 2013. At the hospital, the worker met with hospital social work staff as well as the parents.

[11] The parents disclosed to the society worker that mother has a learning disability and father has Fetal Alcohol Spectrum Disorder ("FASD"). The parents also disclosed that they were both involved with a mental health support agency in Toronto called Sound Times.

[12] The parents acknowledged that their apartment was not suitable for the family to live in and, accordingly, they agreed to live with the maternal grandfather on a temporary basis while the society was helping the family to sort out the immediate issues and gain a better understanding of the family unit.

[13] The society then contacted a number of resources, including a public health nurse, Susan Wilson, who was assigned to support the parents.

[14] The society also contacted the parents' Sound Times counsellors, as well as Michael Hamilton, the parents' connection at the Scott Mission.

[15] On July 8, 2013, the society worker contacted the paternal grandmother who was living in British Columbia. She advised the society that she and the paternal grandfather had adopted the father as a child. She confirmed the father's diagnosis of FASD, and she also expressed her concern that the father was not able to care for a baby as he himself was developmentally a "child". The paternal grandparents agreed to travel to Toronto to provide some short-term support for the family.

[16] On July 10, 2013 the society convened a Family Group Conference at the society's offices. The parents attended, together with K. The paternal grandparents also attended. The society had a number of society workers and personnel in attendance. The maternal grandfather, with whom the parents and K. were then living, and who had committed to attending the conference, failed to appear.

[17] At that meeting, the father advised that, in addition to FASD, he had something called Acquired Brain Injury. The mother again told the society of her learning disability and that she was functioning at a grade 3 level.

[18] The paternal grandparents stated that, to their knowledge, the parents were in a state of ongoing conflict with the maternal grandfather. They also expressed the opinion that if the parents were to move out of the maternal grandfather's residence, they would not be capable of managing on their own.

[19] There was a general discussion of the kinds of supports the society was able to provide, as well as a review of the supports which the parents said they had in place, including Sound Times and Surrey Place.

[20] The society then drafted a Voluntary Service Agreement ("VSA"), which the parents signed on July 11, 2013.

[21] The VSA set out the purpose of the agreement, namely, to address the protection concerns pertaining to K.; and the VSA listed the various expectations that the society had of the parents, and which the parents agreed to follow in order to address those protection concerns. Without specifying all of those various expectations, they included the parents' obligation to connect with, and maintain their connection with supportive services, sign release forms and follow recommendations made by the society and the team of professionals involved with the family.

[22] In turn, the society agreed to provide certain support services for the family, including home visits on at least a weekly basis.

[23] The agreement was to last for six months, and was subject to review and renewal.

[24] The last part of the VSA stated:

The parties understand and agree that should the terms of this agreement not be fulfilled as set out herein, the [society] may be obligated to bring this matter before the Ontario Court of Justice to seek an order for the protection of the child.

[25] By including this last paragraph, the society wanted to ensure the parents understood the seriousness of this matter and that if they wished to avoid court proceedings, the society was expecting the parents to fully cooperate in addressing the protection concerns.

[26] Due to the increasing conflict between the parents – father in particular – and the maternal grandfather, the father was forced to move out of the maternal grandfather's residence in or about October 2013. Because he had nowhere else to go, the father moved into a shelter.

[27] The mother and K. remained behind in the maternal grandfather's residence.

[28] The parents eventually found their own apartment on San Romanoway, and they moved into that residence on or about November 1, 2013.

[29] In early November 2013, the parents signed a six-month extension of the VSA.

[30] Over the next 9 months there was ongoing and frequent contact between the society and the parents. The society also remained actively involved with the team of professionals who were interfacing with the family.

[31] This team included:

• Susan Wilson, the public health nurse
• Pat Harrison, and later Kishwar Saleem, the Home Visitors from Healthy Babies/Healthy Children
• Michael Hamilton of the Scott Mission
• Logan Bodeera of Good Shepherd

[32] During this period of time, there were many protection concerns noted, as well as observed developmental concerns pertaining to K. At the same time, there was some level of cooperation between the parents and the society and the team.

[33] The next major event occurred on […], 2014, with the birth of A. at Humber River Regional Hospital. The hospital had contacted the society to advise that while the parents had been able to bathe the baby appropriately, and while A. was breastfeeding well, the nurse was concerned about the parents' ability to cope with two children.

[34] This information was added to the society's growing list of protection concerns.

[35] The difficulties which the society was observing prior to A.'s birth began to escalate following his birth. This is not to say that the parents weren't doing some things in an acceptable manner, but the challenges of caring for both children began to overtake them.

[36] Only a few hours after mother and A. were discharged from Humber River Hospital, mother took A. to the Hospital for Sick Children ("HSC"), complaining that A. had jaundice.

[37] However, the HSC physician, Dr. Bismilla, determined that jaundice was not the real issue. Instead, mother appeared to the physician to be overwhelmed by the responsibility of caring for both children. Mother also expressed concerns to the physician about the father's ability to remain awake to care for K. in mother's absence.

[38] At the beginning of October 2014 the parents moved to a new apartment on Havenbrook Avenue.

[39] The society continued to observe serious parenting difficulties until, on November 12, 2014, the society apprehended both children and brought them into care.

[40] The children have remained in the continuous care of the society since the date of the apprehension. With perhaps a very few exceptions, the parents have had only 3 hours per week of access to the children, supervised at the society's office since the children were brought into care.

Post-Apprehension Litigation History

[41] The society's first protection application was commenced on November 14, 2014, the same day that the parties appeared before Justice Roselyn Zisman. On that day, Justice Zisman made a temporary without prejudice order placing both children in the society's care, with access to the parents in the society's discretion, a minimum of twice weekly.

[42] On January 13, 2015 the society brought an urgent motion on short notice seeking to suspend the parents' access due to the transmittal of bed bugs by the parents into the society's offices and into the children's foster home. The motion was heard by Justice Zisman.

[43] The evidence on the motion revealed that the society had been attempting to remediate the bed bug problem, but the parents were not cooperating with the steps necessary to ready their residence for professional fumigation. Specifically, it appeared that the parents were unwilling to dispose of some or all of their belongings which were likely infected. At that court appearance, Justice Zisman granted the society's motion. She addressed the parents directly in court, stating:

You are to cooperate fully with the agency otherwise you are not going to see your children. . . . You've got to decide what your priorities are. Bedbugs are a serious issue and they have to be dealt with properly so they don't come back to infect the two of you or to infect anybody else.

[44] The matter came back before Justice Zisman on March 17, 2015 for the court to monitor the parents' progress toward remedying this problem. Society counsel advised the court:

There will be two inspections happening concurrently once the infested mattress is out. The landlord's statutory obligation is to do his own inspection of his, of his property as well as the inspection of our [society's] private pest control service and it's very important that the parents comply strictly with both. There have been concerns expressed by the landlord that the parents have not – they're willing to comply but they may not have understood the need for both of these inspections to occur.

[45] Justice Zisman then asked the parents whether they would cooperate with both inspections, to which the parents replied "yes".

[46] And to emphasize how important it was for the parents to fully cooperate, Justice Zisman stated:

They have to get a clear, a clear, clear clearance from everybody.

[47] The parents eventually began to cooperate in addressing the bedbug issue, and on May 1, 2015, their residence was officially declared to be bedbug free. Accordingly, access was reinstated on May 6, 2015. The parents had been without access for almost four months.

[48] However, by April 2015 it had become apparent to the society that the challenges for the parents were so great that the society amended the protection application to seek an order for Crown wardship for the purpose of adoption.

[49] Around the same time, the society had reason to believe that the parents did not have sufficient understanding of the proceedings and the ability to instruct counsel. Accordingly, it brought a motion, returnable August 26, 2015, under Rule 2(1) of the Family Law Rules, to have the parents declared "special parties", so that the Public Guardian and Trustee ("PGT") could then represent the parents.

[50] By this time, the parents' present counsel had come on board. Each of the parents filed responding affidavits in opposition to the society's motion. Each parent took the position that he and she fully understood the nature of the proceedings, and that each was fully capable of instructing counsel.

[51] In the mother's case, she deposed that Mr. Miller was her "counsel of choice", but that if she were declared a special party, Mr. Miller would no longer represent her. She also deposed that Mr. Miller expressed the opinion to mother that she was "capable of providing reasonable instructions" in the litigation.

[52] In father's case, he deposed in his affidavit that it was "very important to me that I have the ability to make my own decisions and instruct my solicitor." He also deposed that he and Mr. Berns "have a good working relationship."

[53] PGT counsel attended on the motion and took no position on the order sought by the society. However, counsel did advise the court that the finding of "special party" by the court is a prejudicial finding, and should be made with caution. Counsel also submitted that if the PGT were appointed, the parents would lose the right to determine the procedure to be followed in the litigation and the right to choose their own counsel.

[54] On the basis of all the foregoing, Justice Zisman dismissed the society's motion, allowing the parents to continue to be represented by their own counsel.

The Protection Concerns

[55] The protection concerns can be broadly divided into the following categories:

1. The parents' failure to appreciate and facilitate the appropriate child care development, including the general neglect of the children's needs;

2. The parents' poor judgment;

3. The father's marijuana use; and

4. The parents' inability to self-regulate.

[56] The overlay in all of these categories is the parents' low cognitive functioning which, in my view, either led directly to the creation of these protection concerns or, exacerbated them.

[57] Accordingly, before I discuss each of the foregoing protection concerns I will provide some background about each parent in order to better understand the context of these protection concerns – both historical and current.

The Father

[58] The father was born in 1978 to a 13 year-old mother and a 22 year-old father, both of whom were alcoholics. His parents separated almost immediately and the father went to live with his paternal grandmother and paternal aunt in Saskatchewan, until he was 3 years old.

[59] The father was diagnosed at an early age with FASD.

[60] He lived in a foster home until about age 5 when he was then adopted by the M. family. He never had any relationship with his own biological parents.

[61] Father said he attended schooling in a "modified" program, but that he "struggled through school". He was held back in kindergarten. He said he went on to complete grade 12 when he was 20 years old.

[62] Between the ages of 5 and 12, the father experienced epileptic seizures. However, he said he has not had seizures since then.

[63] Dr. Lowry was father's pediatric neurologist in Saskatchewan. On January 12, 1999, Dr. Lowry prepared a report in which he stated:

I first saw [father] at the age of six years in June of '84. At that point he was having seizures that were evident in the frontal areas and were associated with slow spike wave discharges on his EEG. These seizures were also associated with significant developmental delay specifically in the area of language. Because of these bifrontal generalized type of seizures he was put on Depakene which worked well to control his seizures. The etiology of his developmental delay and his seizure disorder is likely both genetic and possibly related to some alcohol indulgence during pregnancy. [his] mother is said to be an alcoholic and is also said to have mental retardation. . . . His seizures eventually stopped and he now has a normal EEG and is on no anti-seizure medication. His frontal lobe damage however is evident in that he has lack of abilities to plan. He has a lack of social inhibitions and he has great difficulties in learning from previous. [sic] He is well intentioned and pleasant, but needs continual advice and encouragement about what to do. . . . he really needs to live in a group home and work in a sheltered environment. . . . He will probably do well if he is supervised and placed in an appropriate living environment. His static encephalopathy mostly involves his frontal brain regions and this has left him with great difficulties with planning and learning from experience.

[64] Father said that his adopted mother put him in the Saskatchewan Ability Council, for people with mental health issues. He performed odd jobs, such as building picnic tables and machinery crates for the City. His income came from Saskatchewan Disability.

[65] Father says he lived in his own apartment and paid his own bills.

[66] He said that he joined a carnival in 1998 and he worked off and on for one or two different carnival operators until he moved to Winnipeg in 2005.

[67] He said that he found employment working for a security company, but he lost his job and wound up living on the streets. He found another security job with "Impact" where he says he remained for two years until he lost that job.

[68] He was asked at trial why he lost his jobs. He responded that he had become "lazy" and stopped doing what he was supposed to do.

[69] Between 2007 and 2009, father reported that he was in a common law relationship which produced a daughter. Following what father described as a "huge fight" with his spouse, father walked out and never came back. Father has not seen his daughter since she was about 3 years old.

[70] In 2010 he moved to Toronto. He said that he had arranged for a security job at Pearson airport before coming to Toronto; but when he arrived in Toronto, the company which had promised him the job "played dumb" and claimed not to recognize him.

[71] He soon applied for and began to receive Ontario Works income. He lived off and on in shelters and sharing a room with other individuals. He described some of this as "couch surfing" and "sleeping in parks".

[72] He said that from about 2000 until about 2012 he was taking crack cocaine and using marijuana. He said he paid for his drugs at the end of the month when he was in receipt of his social assistance cheque. On occasion he tried to clean up and participate in drug rehabilitation. He said he has not used crack cocaine since March 27, 2012.

[73] He said that he uses marijuana as a medicine to "keep me sane with society". He describes it as a "gift from God". He said he smokes several joints a day, every day until his money runs out around the middle of the month; and then he starts again at the beginning of the month when he receives his money from social assistance.

[74] He eventually connected with Sound Times – for persons with mental health disabilities – which in turn helped him to find a subsidized bachelor apartment on Oak Street in Toronto.

[75] Sound Times also assisted him with applying for Ontario Disability Support Program ("ODSP"). In order to do this, they connected father with Dr. Hau Truong, an ODSP psychiatrist.

[76] Dr. Truong testified in this trial.

[77] Dr. Truong assessed father in May 2011 for his ODSP application. As part of his assessment, Dr. Truong relied on the previous findings of Dr. Lowry, as well as the records from the Saskatchewan Abilities Council.

[78] Dr. Truong assessed father in a number of different mental health areas. He concluded that there were no, or minimal, safety concerns in a number of areas, but that there were moderate to severe safety concern symptoms in the following areas:

• Attentional consciousness
• Lack of insight
• Intellectual function
• Learning
• Memory

[79] In reference to father's documented "static encephalopathy", Dr. Truong explained this means the brain has been permanently damaged. This impacts on his "executive function", the part of the brain which involves "planning, reasoning and organizing".

[80] Dr. Truong testified that while the father's brain damage is permanent and cannot be fixed, there are nevertheless some programs offered by such agencies as Surrey Place, which can assist him in certain ways.

[81] Additionally, if he were living with a high functioning person, that person could assist with certain tasks. However, this would not replace father's actual functioning. Furthermore, if the person with whom father was living had similar intellectual challenges, it would be very difficult to compensate for father's deficits.

[82] Dr. Truong stated that in order to qualify for ODSP, an individual must be deemed to be disabled, in that he has a substantial physical or mental disability, such that it affects that person's functioning.

[83] Dr. Truong's "impressions" are contained in his report, which includes the following from the historical records:

• Axis I: Fetal Alcohol Syndrome – Cognitive Impairment
• Axis II: Mental Retardation – severe
• Axis III: As above
• Axis IV: housing, occupational, relationship and financial problems
• Axis V: 50 – serious symptoms and serious impairment in social and occupational functioning

[84] Dr. Truong had no difficulty in ultimately concluding that father is disabled and would qualify for ODSP. Father has been in receipt of ODSP since following this assessment.

[85] The parents met each other at a church in February 2012. They began dating in May 2012. Father decided to "clean up" his drug use in the intervening period between meeting mother and when he started to date her.

[86] As I noted earlier, father testified that he spontaneously stopped using cocaine, on his own, and without any assistance, on March 27, 2012.

[87] Father testified that the parents decided they wanted a baby; by about September 2012 mother became pregnant with K., who was born on […], 2013.

The Mother

[88] Mother is 36 years old. She was born in Toronto and was initially raised by both her parents, until they separated when she was about 13 or 14 years old.

[89] At first, mother and her younger sister lived with their mother. However, she says that her mother kicked her out of the house when she was about 19 years old. She then went to live with her father. She remained living with the maternal grandfather until she met the father in 2012 and moved in with him in April or May of that year.

[90] Mother has never lived on her own.

[91] In 1999, mother gave birth to a child, J., who she gave up for adoption to this society. She said she did this because she wasn't ready to be a parent.

[92] In 2010, Downsview Legal Services referred mother to JVS Toronto for a psychoeducational assessment, in order to ascertain whether mother had a learning disability and whether she would qualify for ODSP.

[93] The primary assessor was Dr. Hadley Koltun, Psychologist. Dr. Koltun did not testify at trial. On consent, his report was admitted into evidence for its truth.

[94] In conducting his own assessment, Dr. Koltun had a number of previous psychological reports from assessments conducted by the North York Board of Education, available to him. He also had a consultation letter from the HSC, dated September 8, 1999.

[95] In the narrative background information which he obtained directly from mother, Dr. Koltun noted:

She was provided with Special education support since Grade 1. . . . Previous psychological reports confirm that she was declared as an Exceptional student at the time. . . . She described herself as "not a fast learner". . . .

[96] Dr. Koltun reviewed some of her education history, noting that she was unable to complete post high school courses of study, for various reasons offered by mother. Dr. Koltun noted from a prior psychoeducational assessment when mother was 8 years old:

Her overall intellectual functioning, as measured by the Full Scale IQ, fell "just on the border between the Mildly Retarded and Borderline Retarded ranges". Both her Verbal and nonverbal performance scales fell within the lower reaches of the borderline range. Her academic achievement was consistently below expected levels and commensurate with her intellectual functioning.

[97] In his review of the HSC consultation, performed by Dr. Fred Weinberg in 1999, Dr. Koltun noted the following from that consultation:

School personnel noted that mother was "showing signs of developmental difficulties and intellectual inappropriateness for her learning placement". . . . Dr. Weinberg further indicated that mother would continue to need accommodations in college such as receiving handouts rather than copying from the blackboard and extended time for examinations and tests.

[98] In all of the intellectual areas assessed by Dr. Koltun, mother performed "below average", or "extremely low", with percentile scores ranging from below the 1st percentile to the 13th percentile.

[99] Dr. Koltun stated:

Taken together, the results of the intellectual functioning assessment indicate that mother has significant challenges with verbal reasoning/expression and nonverbal visual reasoning. As well, she also has poor abilities to remember and further process information that she hears (working memory) and requires more time to learn information and to complete pencil and paper tasks within a timely manner (processing speed).

[100] In the area of emotional functioning, Dr. Koltun stated:

She is currently experiencing some degree of psychological distress in terms of her specifically "feeling afraid in open spaces or on the streets" and with interpersonal problems (she feels self-conscious, as well as misunderstood and disliked by others).

[101] In the summary portion of his report, Dr. Koltun stated:

Her overall intellectual functioning, as measured by the Full Scale IQ Index, fell in the Extremely Low range (below 1st percentile). As well, she exhibited Extremely Low range Verbal Comprehension abilities and below Average range Perceptual Reasoning abilities. Her auditory Working Memory fell within the Extremely Low range and her Processing Speed abilities fell within the Below Average range. . . . An assessment of her adaptive behaviour (life skills) suggests significant limitations in aspects of Conceptual, social and Practical skills. . . . Based upon her developmental history, cognitive assessment and current adaptive behaviour ratings, this profile does meet the DSM-IV criteria for a diagnosis of Intellectual Disability – Mild.

[102] Dr. Koltun noted both mother's "Assets" as well as her "Barriers", as follows:

Assets

• Persistent, patient person, able to engage with both examiners
• Relative strengths in verbal and visual memory
• Within age expectation ability to recognize meaningful information (stories)
• Forthcoming with personal information and willing to accept assistance and support

Barriers

• Significant difficulties with reasoning with both information that she hears and sees
• Difficulties with adaptive behaviour (life skills)
• Receptive and expressive vocabulary
• Significant literacy and numeracy challenges

[103] In his Recommendations, Dr. Koltun recommended that mother seek supports from the following resources/agencies:

• ODSP
• Community Living Toronto
• Community Literacy program or Reena Foundation
• Dual Diagnosis Assessment Program through CAMH
• Ability Works through JVS Toronto
• Financial Literacy for Persons with Disabilities
• Pursuing further volunteer work

[104] With respect to the various recommended resources suggested by Dr. Koltun, mother stated that she did pursue ODSP and that she is now in receipt of that assistance.

[105] However, she did not become involved with:

• Community Living Toronto (she thinks she may have made an initial contact, but she did not pursue this)
• Reena Foundation (she thinks she may have made a contact, but she did not pursue this)
• CAMH – She didn't pursue this because "I didn't think it was necessary" because she said it's for people with mental health issues and "I have a learning disability".
• Ability Works through JVS
• Financial Literacy for Persons with Disabilities
• Further volunteer work – although she did say that a long time ago she did some volunteer work at "Sunburst", but she can't remember when she last worked there.

[106] When asked to describe father's disabilities, mother did say that she knows he has FASD and frontal lobe damage, but "I really don't know a lot about his disabilities, me and him haven't really talked about it [and] I don't judge him".

[107] She did add that she thinks he can learn from his mistakes; but that he has difficulty comprehending things and his ability to plan is "sometimes" hard.

[108] I turn next to the earlier section of my reasons entitled "Protection Concerns."

1. The Parents' Failure to Appreciate and Facilitate Appropriate Child Care Development, Including General Neglect of the Children's Needs

[109] Early on, following the society's involvement in the life of the family, the society made a number of observations about the parents. On repeated occasions when a society worker would attend at the home, late in the morning, the father would be asleep, typically sleeping until 11:00 a.m, or even later.

[110] On one occasion when a worker attended at 1:30 p.m. the apartment was dark because father was still sleeping. Father said he was sleeping late because he had not gone to bed until 10 a.m. that morning.

[111] He acknowledged that he typically slept very late into the day. His explanation for this is that he used to work night shifts when he was a security guard, and those shifts affected his normal sleeping pattern. However, he acknowledged that he hasn't worked night shifts for many years. In fact, he hasn't been employed for a number of years.

[112] This late sleeping by father had a direct impact on the children, as the parents slept in the main living room area, which was also used as the children's play area.

[113] The society and the team of professionals who had access to the parent's residence began to observe that K. in particular was delayed in both speech as well as in her walking.

[114] The society recorded many instances of these kinds of observations. I will refer to just some, being a representative sample.

[115] Susan Wilson was the public health nurse who attended the home on numerous occasions. On one visit, March 20, 2014, when K. was almost 9 months old, Ms. Wilson expressed the concern that K. had not yet begun to crawl on the floor, something which she believed should have begun earlier.

[116] Ms. Wilson also observed safety hazards and garbage on the floor, including electrical cords. This was not the first time she had made these observations, nor the first time that she had pointed out to the parents the danger of not following her directions to keep the home free of hazards so that K. could safely play on the floor.

[117] It is important to note that for the first several months of the society's involvement in the parents' lives, there were also many positive observations by the society and the team of professionals.

[118] For example, the home visitors and other professionals noted that when the apartment was observed to be dirty and unsafe, on subsequent visits there was observable improvement. However, the parents were never able to sustain these improvements and they would allow the previous unsafe and unsanitary conditions to re-surface.

[119] The team of professionals noted a number of strengths during the period of time leading up to A.'s birth in […] 2014. Those strengths included:

1. The parents' ability to identify the stresses arising from their living arrangement with the maternal grandfather and the need for them to move from his residence and obtain their own residence;

2. The parents were acting respectful toward each other, and overall they seemed to be a good couple together;

3. The parents had obtained safety gates in the new apartment;

4. There appeared to be good attachment between K. and her parents;

5. There was good eye contact between the parents and K.; and

6. K. (mostly very early on in her life) appeared to be more or less meeting her developmental milestones.

[120] Despite these strengths, the parents had little sense of the importance of routine for the children. On one occasion, the parents were seen walking K. outside on the streets at 3:00 a.m. The parents did not seem to recognize that this was a safety issue.

[121] There was no set bedtime routine for K. In fact, father said that it would be wrong to send the children to bed between 7 and 8 p.m., because to do so would cause them to miss out on their "social life". He made it very clear that "I don't think they should be on a schedule" and "I don't know any kids who are on a schedule".

[122] Nevertheless, the parents were managing to hold things together reasonably well prior to the birth of A. Certainly, there were sufficiently observed strengths such that the society did not conclude there was a need to begin a court proceeding.

[123] However, serious deterioration began to be observed around the time of A.'s birth.

[124] At around the time of A.'s birth, the parents were seeking to have their primary family service worker replaced as they were unhappy with the first worker which the society had assigned to them. This change in workers was effected by the society shortly following A.'s birth.

[125] The new worker attended at the home on […], 2014, just after A. was born. She immediately noticed the smell of marijuana in the apartment. She also observed that while the apartment was somewhat cleaner than what was observed in the prior visit, it was still in an unacceptable state.

[126] For example, there was a tall bookcase that was not secured in any way, and could easily tip over; the prior worker had suggested pushing the ottoman against it to prevent such an occurrence, which would pose a real hazard for the children in the house. On August 14th, that had not yet been done.

[127] There was also a partially full, foul-smelling garbage bag on the floor, and K. was in a toy car next to that garbage. Mother resisted the society's repeated urgings to address these problems, complaining that the society was always criticizing her.

[128] However, at a visit the following week, many of these issues had been addressed.

[129] On October 1, 2014, the parents moved to a new apartment. At around this time, Ms. Wilson was beginning to express concerns about the quality of the attachment between mother and A.

[130] On October 7, mother complained that she had run out of money and was unable to buy milk. The worker wondered how it was possible that the parents could afford to buy marijuana but were unable to purchase food for the children. Nevertheless she gave the parents 60 dollars in food vouchers.

[131] At an unannounced home visit on October 23, 2014, the worker observed that both children were in their "bouncy" chairs. The parents had previously been advised that placing the children in these chairs was not good for child development, as they needed time to be on the floor to play and to learn to move around.

[132] At the same visit, the worker noted that the father was asleep. It was 2:30 p.m.

[133] At this visit, the worker observed the clutter on the floor, such that there was no space for the children to move around. She said that, at the time, the parents seemed receptive to understanding this problem.

[134] The society was becoming increasingly concerned that the parents were not utilizing the recommended resources to aid in the children's development, in particular, daycare and the Early Years Centre, both of which would have provided the children with much-needed socialization and stimulation.

[135] The society was also becoming increasingly concerned about the state of the apartment, which the society observed to be cluttered and dirty.

[136] The society even offered to bring in a cleaning service, at the society's expense, to clean the parents' apartment. However, the parents refused this request. The father's response to the society's offer: "I didn't trust them".

[137] At a home visit on November 6, 2014, at 11:30 a.m., the apartment was dark and the blinds were drawn. The father was asleep on the couch, and he remained asleep throughout that visit.

[138] The society again expressed concerns to the mother about the state of the home.

At an unannounced visit on November 7, 2014, the worker observed:

• The apartment was dirty, with used diapers and newspapers on the floor
• The apartment smelled of cat urine
• The end of a marijuana joint was on the floor next to K.

[139] At that visit, both parents refused to sign a consent to allow the society to speak to the children's new pediatrician, Dr. Schelberg.

[140] Of concern to the society was the fact that at 17 months of age K. was not yet crawling. Instead she was "bum scooting". And this problem was exacerbated by the fact that the society workers often observed K. to be strapped into her bouncy chair when the workers arrived for a visit.

[141] The society was also concerned about K. not beginning to talk at her age.

[142] The society pointed out to the parents that A. was developing "flathead". This was directly related to the manner in which the parents were allowing A. to sit, without ensuring that he was given the opportunity to move around.

[143] The society was so concerned about K.'s development that it had wanted the parents to cooperate in a developmental assessment. However, the parents were not inclined to participate.

[144] The children's pediatrician testified at trial. Dr. Schelberg has been a pediatrician for more than 32 years, and one of his areas of interest is developmental issues, such as gross and fine motor, social, speech and language.

[145] On November 13, 2014, the day following the apprehension, the foster mother brought the children to Dr. Schelberg's office. K. was 16-1/2 months old. She had yet to begin walking and she was not using even a single word.

[146] Nor was K. able to stand, something which, according to Dr. Schelberg, children would usually be doing by 10 or 11 months of age.

[147] He testified that K.'s failure to even "babble" was a "red flag to me". He testified, "I felt this was abnormal".

[148] On December 2, 2014, Dr. Schelberg saw K. again. She was still not saying single words; nor was she starting to walk. Dr. Schelberg recommended an assessment at Holland Bloorview Kids Rehabilitation Hospital.

[149] On January 6, 2015, Dr. Schelberg was still concerned with K.'s speech as well as her "gross motor" skills. By 18 months of age, he said K. ought to have been walking.

[150] On March 11, 2015, K. was 20-1/2 months old. She was "cruising" but could not walk independently. Dr. Schelberg was very concerned about developmental delay. He noted that the parents themselves are developmentally delayed and testified that family history is very important. Specifically, he said, parents with developmental delays may not understand the need for stimulation.

[151] Dr. Schelberg also diagnosed A. as being asthmatic. Asthma can be a very serious problem if not properly treated, particularly in young children. And yet, neither parent in their respective testimony even mentioned A.'s asthma as a condition which needed to be carefully monitored.

Post-Apprehension – Addressing the Children's Needs

[152] As at June 16, 2015, K. had been accepted at Holland Bloorview and has been assessed. That assessment concludes that K. is "development delayed – Global". Global in this context means a development delay in two or more areas.

[153] Thanya Duvage is a speech and language therapist. Ms. Duvage's clinical involvement with K. began in August 2015 and ran until February 2016.

[154] She conducted an assessment of K.'s development at the outset of her involvement, when K. was about 2 years old. She testified that K. was not saying any words, not making any sounds, and was quiet. She did engage in several play activities, and she was responsive to some words and signs that Ms. Duvage was modelling for her.

[155] She testified that K.'s word development was at about the 12 month stage, meaning that her development was about one year behind her chronological age.

[156] K. had "significant difficulty" producing speech, but her receptive language was stronger than her expressive language. That is, she could understand words but could not say them.

[157] Ms. Duvage began to see K. for therapy sessions once each week; and she communicated with K. by using sign language while, at the same time, doing therapy to improve her expressive language skills.

[158] Ms. Duvage testified that K.'s caregivers need to understand strategies to help remediate the deficits. The child needs to be in a "rich language environment" to give her the best opportunity to succeed.

[159] As a result of the regular therapies, by January 2016, K. was able to say about 15 words, and she was able to use about 30 sign words.

[160] Ms. Duvage made it very clear, that unless caregivers accepted that the deficits existed, unless they entirely bought into the need for remediation, and unless they were active participants in that remediation, K. would be unable to achieve success. In short, the therapist is just a "drop in the bucket" of the overall therapeutic process.

[161] Dr. Anne Kawamura is a developmental pediatrician. She is a physician who subspecializes in development with children who have delays, both physical and mental.

[162] K. was referred to Dr. Kawamura because of concerns pertaining to her development in expressive language and gross motor skills. K. was 22 months old at the time of this referral in April 2015.

[163] Dr. Kawamura was concerned to find that K. had been "bum scooting" at the age of 15 months, and that she had taken no independent steps until 17 months of age.

[164] Her assessment also determined that K. was delayed in her fine motor skills. More specifically, she was about 4 months behind in those skills. She said that those 4 months, while seemingly not a large period of time, is a "good chunk of a 22 month-old child's life".

[165] She found that K.'s expressive language skills were behind, and that she was using non-verbal communication, such as signs or "reaching". At her age, K. was using about 3-5 words, when she should have been expected to be using 50-100 words.

[166] Receptively, K. was just starting to understand two-step commands.

[167] She noted that K. was "quite resistant to therapies, that she has a lot of reluctance to do specific tasks that are demanded of her in a therapy session". This is important to note because the caregivers would have to be resolute in their determination to provide therapy in order to overcome K.'s natural tendency to resist.

[168] Dr. Kawamura's overall impression was "significant delays in gross motor and expressive language skills" which led to a diagnosis of global development delay.

[169] Dr. Kawamura testified to something that should be self-evident. First, K.'s caregivers must be an "integral part of the health-care team"; and second, it is important for the parents to acknowledge the development delay. If the parents or caregivers are denying the problem they really can't be an effective part of that team.

[170] The court also heard evidence from Edite Ponte, a developmental therapist at Surrey Place. She specializes in working for children from birth to 6 years of age.

[171] Ms. Ponte provided developmental therapy for K. beginning around July 2015, and continuing as at the date of her testimony.

[172] Ms. Ponte confirmed K.'s delays in expressive language, and her need to use sign language in order to communicate.

[173] She stated that the parents must be an essential part of the remediation: "I always tell them that they are the therapists" and that "parents have homework to implement the goals within their daily routine".

[174] Once again, the court heard that parental attitude must be one of understanding and cooperation, and that this is essential, otherwise it is unlikely that the child will succeed.

[175] Yvonne Ng is an occupational therapist at Holland Bloorview. She works with children in the "neuro-motor stream", assisting children who suffer from such things as cerebral palsy and global development delays.

[176] She said that, as an occupational therapist, her focus was on these fine motor skills, whereas gross motor skills would fall more within the domain of a physiotherapist.

[177] K. was initially referred to her by Dr. Kawamura in November 2015. She assessed K. as somewhat delayed in her fine motor skills, particularly in her ability to grasp and use a pencil. There was also some delay in K.'s ability to dress herself.

[178] Over the next couple of months, with assistance from the foster parents, K.'s fine motor skills improved, so that by the middle of January 2016, Ms. Ng said that K. was not far behind.

[179] Ms. Ng made it clear that the caregivers are an integral part of any therapeutic plan. They must follow the recommended exercises modelled to them by the therapist, and practise them with the child at home on a regular basis. It is important for the child to be provided with opportunities to learn and consolidate her skills.

[180] The trial elicited much more evidence than the foregoing with respect to the children's development but, as I noted earlier, for the purpose of these reasons, it is necessary only to provide a representative flavour of that evidence.

[181] But to be clear, merely because children have development delays is not, in itself a reason to find they are in need of protection under the Act. Based on all the evidence in this trial, the real issue is whether the parents had sufficient insight to acknowledge those developmental delays and take appropriate steps to remediate them.

[182] Here is some of what the parents had to say about the society's protection concerns, including their failure to maintain their apartment in an appropriate state and to facilitate their children's development.

The Father's Responses

[183] The reason the first apartment at San Romanoway was cluttered was because the parents had each brought possessions from their separate residences into the new jointly-shared home. They did not have proper storage for their things at this apartment.

[184] So they tried to remedy the problem by using the second bedroom, as well as the living room, for storage.

[185] It never occurred to the parents that the remedy for the clutter – which directly impacted on K.'s ability to move around on the floor – was to pare down their possessions.

[186] When the society offered a cleaning service, the father testified that he refused that offer, not only because he didn't trust others to come into his apartment but, additionally, "if I accepted that [offer] it would mean I'm not able to do it myself".

[187] The society had been encouraging the parents to take K. to the Early Years Centre for stimulation and socialization. The Centre was conveniently located across the street from the San Romanoway apartment. The father took her to the Centre only three times, but did not return after K. was "bullied" (according to father) on the third visit.

[188] What led to this so-called bullying? He took K. to the Centre for "daddy day" on this third visit. He then decided that he wanted to leave the Centre to go to the coffee shop to buy himself a coffee. He says he asked K. if it was okay for him to leave her so that he could get his coffee. Father said that K. not only understood this request, but that she also gave father permission to leave.

[189] When he returned to the Centre with his coffee, the father said the staff told him that during his absence K. had been bullied by other kids.

[190] Father could not explain to the court why, given that "daddy day" at the Centre was only two hours long, he was unable to remain with K. for the entire two hours, or why he felt that it was appropriate to leave the Centre so that he could go to a coffee shop.

[191] The parents decided to look for another apartment because they wanted a unit closer to the ground floor. So on October 1, 2014 they moved to a place on Havenbrook. Although it was a 2-bedroom apartment, they set it up so that the master bedroom would be used as the children's playroom, and the second bedroom would be used as storage. Everyone slept in the living room.

[192] When he was asked why he didn't use the master bedroom as a bedroom for both children, he replied that there was only one window in that room, and it wouldn't be "fair" if one child had a window and the other child did not.

[193] In any event, he said they were planning to stay there only 7-8 months before moving back to Saskatchewan. His plan was once they moved to Saskatchewan, he would be "going to school and working for the R.C.M.P." He never discussed this plan with the society.

[194] In response to the bouncy chairs issue, and the society's concern that the kids were always in those chairs, the father said they were in those chairs "maybe a quarter of the time".

[195] Father acknowledged his use of marijuana when the children are in the apartment, but he said he smokes only on the patio outside, not in the presence of the children. He says he is "high" around the kids, but he is "coherent" when he is with them.

[196] The society had expressed concerns that the parents were unable to read the children's hunger cues. They were also concerned that during access visits, the parents were allowing the children to go outside in cold weather, not properly dressed.

[197] Father stated that he would never force his children to do anything. So, for example, if K. does not want to put on her jacket to go outside, she just won't go outside. He said, "forcing children to do things they don't want to do is a form of abuse."

[198] He was asked about whether he would force his children to go to school if they didn't want to go. He said that if they refuse he'd say "fine, I'll home school you". He said he thinks school would be a "nice thing" but if they don't want to go "I'll home school them or send them to military school". Or he would look for a "tutor".

[199] When the society advised father that K. had global development delay, father disagreed, stating that she could not have a disability because "we are not alcoholics". He said that his own disability resulted from parents who were alcoholics and "what other causes are there?"

[200] He did not want to encourage (force?) K. to walk, even though he was told that she was behind. Father said, "If you force a child to walk or talk, it is classified as child abuse". He said, "you can be charged and it's a minimum of 2 years in jail".

[201] One of the workers noted that father was having highly elevated, age inappropriate conversations with the children. The father said he was trying to "bring back memories to the kids". He said "K. remembers the time mommy was pregnant with A."

[202] Father said that not only did K. not have any delays, but she was "advanced for her age". For example, he said that at 8 months of age she was accessing the father's cell phone, going into his phone contacts list, and dialing phone numbers of persons who were on that list.

[203] At the end of his examination-in-chief, the father said to his counsel that he would comply with whatever order the court might impose if the children were returned to him.

[204] All of the foregoing was adduced on examination-in-chief.

[205] On cross-examination, the father insisted that the children were never at risk of harm.

[206] He disagreed with the society that K. was vulnerable.

[207] He disagreed with considerable evidence that he presented as unkempt and unhygienic. In fact, the evidence was that he was so unhygienic that society workers found it difficult to be around him because of the strong stench of body odour. Father attributed that to his inability to use deodorant and that he "sweats a lot".

[208] He agreed that every one of the numerous professionals who attended his apartment told him that it was dirty and cluttered and that it needed to be cleaned up. His response was that they were all "lying" about the state of the apartment. He said that he cooperated as much as "we were able".

[209] The evidence reveals that prior to the apprehension, various professionals told him on 15 different occasions that the apartment needed to be cleaned.

[210] However, father reiterated that the apartment was "always clean" and those persons were lying.

[211] He acknowledged that Ms. Wilson told him not to place K. in front of the television at her age, and that she expressed concern that K. was not moving. Father's response was that K. "did not want to crawl".

[212] He acknowledged that K. was referred for occupational therapy. He was asked why he didn't pursue that referral. He said, "I didn't think it was necessary, I wanted to try to do things on my own as a father and as a parent".

[213] He says that he refused the society's recommendation to place K. into daycare in October 2013 because K. was "too young" and also because he didn't have a "child abuse record and a criminal record" for the people who were in charge of the daycare.

[214] He again asserted that when K. was living with him she was not delayed, she was "above average". Despite the fact that all the social workers told him otherwise, he said they were incorrect, and he can provide the names of many people and agencies who told him that K. was above average and doing well.

[215] Once again, the foregoing is only a representative sample of the evidence which revealed to the court the father's complete intransigence and lack of insight into his daughter's needs, or his real willingness to accept the advice he was being given from the professionals involved.

[216] Simply put, even if father did not intentionally inflict harm on his children, the evidence is overwhelming that he refused to accept that his children had physical and emotional needs that he disagreed with, and that he refused to do anything about.

The Mother's Responses

[217] The following are some of the responses given by mother to the various concerns raised by the society and the team of professionals.

[218] In response to the question why the children were not given the master bedroom to sleep in, she answered similarly to father, namely, that there was only one window in that bedroom.

[219] But then she was also asked why the children could not be given the second bedroom. She said that room is small and she decided to give the room to her cats instead.

[220] She said that she is opposed to daycare because both parents are at home and not working; but she would take the children to daycare if the court ordered to do so. She said the father would help her get them to and from daycare. However, this conflicted with the father's evidence that he has no intention of changing his sleeping habits, specifically, by going to sleep and waking up at more reasonable, child focused times.

[221] She stated that she would follow any court orders if the children were returned to her care, including, if necessary, ensuring that the father was not left alone with the children.

[222] She acknowledged that the society offered a cleaning service in June 2014 but she refused because "I thought we could deal with it ourselves".

[223] In July 2014, she asked for a new society worker because she felt that the existing worker was "judging us" and "I couldn't take it anymore."

[224] She acknowledged that she placed K. on a couch and at least on one occasion she rolled off the couch and banged her head on the floor. However, she said that on the other occasions when she placed K. on the couch, she would catch her if K. started to roll off.

[225] She acknowledged not being able to clear the clutter in the apartment and make more space for K. to move around.

[226] She acknowledged that just prior to the apprehension, the apartment was not clean; there was not enough room for the kids. She said, "it was hard with the children".

[227] Mother was being told that K.'s speech was delayed. However, she testified "I thought it was fine".

[228] She was asked whether she thought K. was delayed prior to the apprehension. She said, "I didn't think she was".

[229] She was asked about A.'s head flattening. She acknowledged she was shown this by the society. She was told by the society how to remedy the problem, but it is not clear whether she followed any of the society's recommendations in this regard.

[230] She agreed with the society's assessment regarding the poor and unacceptable state of the apartment prior to the apprehension.

[231] She also agreed that she refused the society's request on the day before the apprehension to allow the society to speak with Dr. Schelberg. Why did she refuse? "Because I was frustrated and stressed".

[232] She was asked why, at certain access visits she was not paying sufficient attention to the children. She replied that parents can't always be right behind kids, sometimes parents need to "just observe kids and if they get hurt we get up and comfort them. Sometimes kids just need to be left alone".

[233] She said that father does not smoke marijuana around the kids, but he does need it because it keeps him "calm". If he is not using marijuana "anything can trigger him".

[234] In cross-examination, mother recalled that she was told six times, prior to K.'s birth that she needed prenatal care. However, she refused to follow this advice because "I thought I was doing everything okay".

[235] She acknowledged that the VSA required the parents to continue at Sound Times. However, she said that they could not continue after K. was born because children under 16 years of age could not attend. However, when Ms. Wilson offered an alternative, namely, counselling at Black Creek, mother refused to follow through, acknowledging that she should have done so.

[236] Mother acknowledged the apartment floors were too dirty for the kids to move around; there were cat feces in the kitchen; there was newspaper on the floor; there were exposed wires; there was furniture that could topple over and yet she refused to place an ottoman in front of the furniture.

[237] She acknowledged that she was told repeatedly, over and over, that the apartment needed to be cleaned and that failure to do so would result in an apprehension. And yet she didn't pay attention to these warnings because "I didn't think it was serious".

[238] When K. rolled off the couch and banged her head "at least once", mother took her to the doctor at a walk-in clinic. However she didn't tell the society about this even though she was obligated to do so by the terms of the VSA. She said she was scared to tell the society.

[239] After moving to Havenbrook, she couldn't keep the place clean because of the clutter. She said she had difficulty doing the chores and handling the children. She also said "daddy was sleeping sometimes when I wanted to clean".

[240] She refused the advice of the professionals to place K. on her tummy in order to prevent her from spending too much time on her back. The professionals stated that the lack of tummy time was impeding K.'s ability to learn to crawl. Why did she refuse this advice? Because, according to mother, K. didn't like being on her tummy.

[241] In September 2014, Ms. Wilson observed that 15-month-old K. still could not pull herself up. However, mother testified that K. would only do these things for the parents and for no one else.

[242] Mother also fantastically reported that despite K.'s observed inability to use words, K. said "I love you daddy, I did it".

[243] Despite the recommendation by the society – and the requirement for parents to follow these recommendations in the VSA – mother refused to pursue the nutrition program for A.

[244] In fact, at the Service Plan meeting held May 6, 2014, the public health nurse recommended that K. be enrolled in certain programs, in order to address her needs, including:

• The Ontario Early Years Centre, to provide socialization and stimulation, something she was not receiving at home;
• The Make the Connection program
• Living and Learning with Baby
• Peer Nutrition program

[245] Mother admitted that despite her refusal to put K. into daycare, her failure to do so "probably" contributed to K. falling behind.

[246] She acknowledged that she didn't follow through with the professional recommendations because she did not feel K. had special needs and, furthermore, that she could parent K. adequately herself without outside resources.

[247] While mother agreed that the children were "most likely" in need of protection when the society apprehended them, she was firm in her belief that the only reason the society apprehended was because the society was listening to rumours from other persons on the street. Mother said that not only did she feel that way at the time of the apprehension, but she is convinced, even today, that this was the real reason for the apprehension.

[248] Again, these responses by the mother do not represent the complete evidentiary record of mother's inability to understand her children's needs and her unwillingness to cooperate with facilitating those needs. However, for the purpose of these reasons, they are more than sufficient to provide a picture of where mother was at prior to the apprehension, and where she is at today.

[249] I turn next to the parents' poor judgment.

2. Poor Judgment

[250] Effective parenting is tied directly to the kinds of judgments parents must make. Every day that a parent has the care of a child he or she is making decisions which affect the wellbeing of that child. Good judgment is necessary in order to ensure that the child is cared for in an appropriate manner. Poor judgment can often lead to the kinds of situations which place children at risk of harm, or even actual harm to children.

[251] Unfortunately, these parents have demonstrated exceedingly poor judgment in important, often critical circumstances. I will discuss a few examples.

[252] I earlier referred to father's decision to leave K.'s side at the Early Years Centre while he went off to get a cup of coffee. Having made the decision to take K. to the Centre, and to engage in a 2-hour session with K. and the other children, he then decided that it was somehow acceptable for him to leave K. alone with the other strangers at the Centre. By placing his desire for a cup of coffee over the needs of his child to be supervised and actively engaged, the father exercised poor judgment.

[253] And this poor judgment had a domino effect. When he returned to the Centre, he said that he was told that K. had been "bullied" in his absence. So this led to another poor decision, namely, not to bring K. to any further Centre sessions.

[254] Obviously, the better decision – and the more child-focused decision – would have been for father to say to himself, I shouldn't have left K. alone; I recognize how important these socialization opportunities are for her, so I will ensure that I take her to future sessions and remain with her for the entire 2-hour period.

[255] The bed bug incident resulted in the parents' loss of access to their children for a period of almost 4 months. The court does not criticize the parents for the infestation of bed bugs but, rather, for the way in which they dealt with that issue. Most significantly, the choices they made in this context, led directly to the suspension of their access to the children for 4 months, when it might have been possible for them to not lose any access time at all or, perhaps, not more than a very brief period of time.

[256] The society went out of its way to hire an independent pest control company, at its own expense. Additionally, the parents' landlord hired its own pest control company. Justice Zisman made it perfectly clear to the parents that they needed to cooperate with both companies and that access would not resume until both companies had certified the apartment to be bed bug free.

[257] And yet the parents took actions that led directly to the prolongation of the process and, hence the prolongation of the period of time during which they were without access to their children.

[258] They refused the society's suggestion to immediately get rid of their infested mattress and use an air mattress in the interim, while awaiting delivery of a new mattress. Why? The air mattress would not be comfortable. Additionally, because there were cats in the apartment the cats could possibly damage the air mattress.

[259] The cats could have been contained in another room, and the parents could have endured some discomfort for a short period of time in order to facilitate the resumption of access. These would have been better choices.

[260] Part of the preparation process involved caulking the apartment in areas where bed bugs could possibly re-enter the premises. The pest control company offered to do the caulking. But the parents refused, insisting they could do it themselves. This took weeks to accomplish, something which could otherwise have been done very quickly.

[261] The parents' poor judgment in relation to the bed bug incident goes well beyond these examples, but there is no need to cite every example of bad choices made by the parents in respect of the bed bug incident.

[262] I turn next to the parents' poor judgment in relation to the so-called lottery/inheritance scam. Sometime around June 2015 the father received a message through Facebook that he had won a lottery, or that he would be receiving a very large inheritance.

[263] He said he was informed of this in an email sent to him from Mark Zuckerberg, the C.E.O. of Facebook.

[264] He was very excited about the prospect of winning this much money; so much so, in fact, that during access visits he would tell K. about his plans for the money. For example, he told her that he was intending to purchase a Hummer. In fact, he testified that K. was not only understanding this discussion, but that she knew the difference between a Hummer and a Ferrari.

[265] He was initially told that if he wanted to receive the money he would have to pay a "delivery fee" of $700. Somehow father found this money and paid it. This was followed by more demands for money that had to be paid in order for father to claim his prize.

[266] Over the next period of time, father sent about $10,000 in 12 different payments, to addresses in the United States and Africa, in a vain attempt to secure the phantom winnings.

[267] The parents went to the police to complain that they had yet to receive their money. The police told them it was a scam. Even after being informed of this by the police, the parents decided to continue to send money because they were convinced that if Mark Zuckerberg told them it was legitimate, it must be so.

[268] Finally, after their last payment in December 2015, the O.P.P. insisted that they stop sending money, and they complied.

[269] At some point, while the parents and the children were living at Havenbrook, they invited an adult male to live with them, compounding the already difficult space problems. The decision to allow another adult to live with them, without any explanation, in itself, is a demonstration of poor judgment.

[270] However, what compounded that poor judgment was the fact that mother testified at trial that this person was viewing pornography while he was living with the parents and the children.

[271] In an even greater demonstration of poor judgment, the parents decided to allow two other adults to live with them and the children in August 2014. These adults – P. and S. – were a couple who were expecting the birth of a child at the time they moved into the parents' apartment.

[272] Despite the fact that the parents themselves acknowledged the serious space limitations in their apartment, they nevertheless decided this arrangement was appropriate. Why? The couple could act as "live-in nannies" for the parents, and also to be their "butler".

[273] This decision would have been bad enough on its face; but what made it far worse was the fact that the parents knew, at the time they invited the couple to live with them, that both P. and S. had a child welfare history. In fact, father testified that he was aware that one or more children had been removed from S.'s care.

[274] In his examination-in-chief, the father said that S. was his fourth cousin, so he trusted them both. He also said, "It shouldn't affect me" just because they lost their children.

[275] In his examination-in-chief, father stated that he believed S. had lost his children because he had "abused them" and that the abuse (according to father) was "sexual assault", and he "beat them".

[276] Father's lawyer asked why he would let someone into his apartment, knowing about this history. Father responded, "it was a concern, but I trusted him; if he touched my daughter he'd go to jail." Father also said (in cross-examination), "if he hurt my child, I'd hurt him".

[277] The parents gave the couple the second bedroom to sleep in, together with their two-foot "dragon" who lived in an aquarium, but who would come out of the aquarium from time to time.

[278] And, consistent with the very poor judgment which went along with this, the parents decided to go out from time to time, leaving S. and P. to babysit with K. and A.

[279] During a home visit by the society, after it found out about the child welfare history of S. and P., the worker advised the parents not to permit them to remain in the apartment. Despite, this caution by the society, the parents decided, in their judgment that it was fine for the couple to remain. They did eventually leave around the end of September following a big argument amongst the adults.

[280] By the time they left the parents' apartment, S. and P. had spent about 6 weeks living with the parents, and K. and A.

[281] For her part, mother also decided that it would be acceptable for these people to move in, without first checking them out and determining whether it would be safe to do so. What was her motivation? The couple had been couch surfing and did not have a permanent place to stay.

[282] What all of the foregoing reveals to the court is that the parents were making decisions without keeping the best interests of their children in the forefront. They seemed to be making judgments based on spur-of-the-moment reactions, without considering the wider implications of those decisions.

[283] In the view of the court, each of these decisions exposed the children to risk of harm – both emotional as well as physical harm.

3. Father's Marijuana Use

[284] I have previously discussed father's marijuana use to some extent. However, what is important to note in the context of this section of my reasons, is father's reasoning process for using marijuana, and the implications of that usage.

[285] First, he said that he uses marijuana to maintain a calm composure and that when he is not using marijuana (according to mother) anything can trigger him. Whether or not the father's usage of marijuana, per se, is a bad thing for a parent to do, this court expresses no opinion, other than to state that, at the very least, marijuana use should be avoided while the parent is in a caregiving role.

[286] However, in this case, the marijuana use had broader implications. Father said he never smoked except out on the balcony, away from his children. And yet, there is evidence from the society that marijuana joints were seen on the apartment floor, near K., and marijuana paraphernalia was seen close at hand in the apartment.

[287] As well, father said he has cared for the children while "high" on the effects of marijuana, but that this has always been in mother's presence. What neither parent could satisfactorily explain, was what would happen if father was high and mother had to leave the apartment, for an unexpected reason. What was the backup plan?

[288] Again, this is yet another example of decision-making by the parents without considering the broader implications and, in particular, how those decisions impact on the children.

[289] The other element of father's decision to use marijuana is the parents' acknowledgment that this costs a considerable amount of money, money which comes directly from the social assistance income they receive each month. And because they are spending money on marijuana, they have that much less money to spend on household necessities, including food for the children.

[290] The decision to spend substantial amounts of money each month on drug use, involves the exercise of judgment, in this case the exercise of very poor judgment, in the opinion of the court.

4. Inability to Self-Regulate

[291] Parental self-regulation is an important component of child care. It is not difficult to understand that an inability to self-regulate one's behaviour can lead to situations of conflict. And if the children happen to be present during these situations, they can be exposed directly to a risk of harm.

[292] The society obtained the Toronto Police Services records of arrest, Occurrence Reports and Community Inquiry reports for both parents.

[293] Those documents reveal that between 2010 and 2015 there were a total of 29 such records and reports pertaining to one or both of the parents in a variety of incidents, many of which involved conflict with strangers in the community.

[294] I do not propose to review all of those incidents; I will briefly refer to just 10 of the incidents to provide a representative sampling.

1. On February 12, 2012, an emotionally disturbed adult was apparently looking for the father. Father said that at the time of the incident, he was helping "Delroy" who was overdosing on drugs.

2. On September 14, 2010, the police were called when the father was involved in a dispute amongst room-mates. Father said this incident occurred outside the building.

3. On December 15, 2011, the police were called as a result of a dispute at the shelter where father was at the time residing. Father acknowledged the dispute but testified that he could not remember what the dispute was about.

4. On September 11, 2013, Toronto Police Services was contacted by Surrey, B.C. RCMP which had received information from the paternal grandmother that the father was being threatened in Toronto by the maternal grandfather, with whom the parents were living at the time. When the police investigated, the maternal grandfather told the police he had no intention of harming the father, but that he is "frustrated by the lack of respect".

5. On October 25, 2013, police attended at the Good Shepherd Shelter as a result of a call from father, who alleged that another adult had threatened to stab him.

6. On April 21, 2015, the police were called to the scene of an incident between a cyclist and the father. The parties had been in a dispute which involved threats and arguments, culminating in an assault by the cyclist against the father.

7. On February 10, 2015, the police were dispatched to a Tim Horton's coffee shop. The police were told by a caller that two males (the father was one of the males) were involved in a fist fight, as a result of an alleged assault against the mother, by the other male.

8. On December 23, 2014, the parents were pedestrians on the street when they become embroiled in a dispute with the driver of a car. The father alleged the driver failed to stop at an intersection, leading to the conflict. The father claimed to the police that the driver took out a knife and threatened to kill the father if he called the police.

9. On October 17, 2015, father engaged in conflict with another adult male at a Tim Horton's coffee shop. The male person brandished a knife and threated to stab the father, who then contacted the police.

10. On December 17, 2015, both parents were involved in a fight with occupants of a vehicle. The parents took exception to the fact that the vehicle was parked or stopped in the middle of a crosswalk. Words were exchanged, followed by a physical altercation, in which both parents participated.

[295] The parents' children were not present at any of these incidents; but had they been, the children would have been exposed to risk of physical harm, or possibly actual harm, as well as emotional harm from witnessing such conflict.

[296] The father was asked if the list of incidents was correct, which he confirmed to be so. However, for each incident he claimed that he was simply "protecting my life". He said he was just a bystander and "I don't start fights", claiming "other people do it because they don't like who I am". Father also made it clear that "if someone hits me three times that gives me the right to defend myself".

[297] Some people attract conflict. Others walk away from conflict. Of course, adults are free to do whatever they wish (within the limits of the law), but good parenting requires that the parent do whatever is necessary to avoid conflict, in order to protect the wellbeing of their children.

[298] Whether it is called poor judgment or lack of insight, the father insists that he has the right to be a participant in these kinds of incidents, without understanding what the implications are for children who might be in his care.

[299] The lack of self-regulation in this case goes beyond strangers in the street.

[300] On August 25, 2015, both parents attended at the office of the pediatrician, Dr. Schelberg, together with the foster parents and society workers. This was a scheduled appointment for A. Following the doctor's examination of A., he said A. should return in 15 months for a hearing test. Father stormed out of the examination room, claiming that A. did not need any such test.

[301] Then Dr. Schelberg offered that since K. was in the waiting room with mother, he might as well examine her at the same visit. Both parents became angry that Dr. Schelberg was willing to see K. on a visit that was scheduled for A. only. Both parents were visibly angry and yelling over this incident.

[302] At trial, mother insisted she had the right to become angry at the visit because only A. had been scheduled to be seen by Dr. Schelberg, and not K. She was asked at trial whether she could understand the benefit of having both children examined at the same visit, in order to avoid another trip to the doctor's office. She was simply unable to accept and understand the benefit and convenience of this.

[303] Later that same day, a male person telephoned Dr. Schelberg's office and made threats against him. The assumption was that the caller was father himself, but on cross-examination, Dr. Schelberg could not identify the voice with certainty.

[304] What this lack of self-regulation reveals is that if something occurs which upsets the parents, the reaction is immediately negative, and sometimes to the point of overt conflict. In this particular example, the children were actually present to hear and see how their parents were behaving.

The Finding in Need of Protection

[305] The foregoing discussion leads the court to conclude on a balance of probabilities that:

1. K. suffered actual physical harm when his mother negligently placed her on a couch, allowing her to roll off and hurt herself. This occurred at least once, likely more than once. On one occasion, the injury, while perhaps not serious, was of sufficient concern that the mother took K. to a doctor at a walk-in clinic. It was also serious enough that mother intentionally decided not to report what happened to the society.

[306] Accordingly, there is a finding in need of protection pursuant to section 37(2)(a)(i) of the Act.

[307] I make this finding for A. as well as for K. In A.'s case, the parents' pattern of neglect led directly to A.'s head flattening.

2. Both children were at risk of physical harm arising from the frequent and ongoing failure of the parents to adequately care for, provide for, supervise or protect the child, and a pattern of neglect in the same regard.

[308] In making these findings, I conclude that it matters not whether the parents' acts of commission or their omissions resulted from intentional acts by the parents, well thought-out, or merely their low cognitive functioning. See for example, Children's Aid Society of Toronto v. R.C., 2016 ONCJ 335

[309] Accordingly, there is also a finding in need of protection pursuant to section 37(2)(b)(i) and (ii) of the Act.

3. Both children – but K. in particular – suffered from a mental, emotional or developmental condition, as described in section 37(2)(h) of the Act.

[310] In arriving at this conclusion, I rely on the case law which holds that where parents are unable or unwilling to work cooperatively with the society or with third-party service providers to address the special needs of a child, and where the parents deny even the existence of those needs, this supports a finding under 37(2)(h).

[311] Accordingly there is a finding in need of protection pursuant to 37(2)(h) of the Act.

[312] The society had also requested a finding in need of protection pursuant to section 37(2)(d), on the basis that when the parents allowed S. and P. to reside in their home for a few weeks, they – S. in particular - exposed the children to risk of sexual harm. I would have made this finding if there had been evidence on a balance of probabilities that S. had in fact lost his child as a result of sexual abuse to his children, or if he had been involved in the criminal justice system as a result of sexual abuse. However, the only evidence of sexual abuse came from the father's testimony, specifically, that it was his understanding that it was sexual abuse which gave rise to the society's apprehension of S.'s child.

[313] While I am satisfied on the evidence that the S. and P. had lost children to the child welfare authorities, I cannot conclude on a balance of probabilities that this stemmed from sexual abuse.

Disposition

[314] Section 57(1) of the Act provides:

Order Where Child in Need of Protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

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.

Society wardship

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

Crown wardship

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

Section 57(4) Provides:

Community Placement to be Considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57(4).

[315] In other words, if there is a less disruptive, community-based option available to the child, in the best interests of the child, the court shall not make an order for Crown wardship.

[316] The children have both well exceeded their statutory time in care as provided for in section 70(1) of the Act, specifically, a maximum of 12 months in care for children under the age of six years. Because of this, the court does not have the option of making a society wardship order.

[317] No evidence of community-based options was placed before the society or before the court during the course of this trial. Specifically, despite efforts by the society's "child finder" to locate and identify possible kith or kin placements, no such placements were found. Nor did the parents adduce evidence at trial of anyone who is prepared to come forward and provide a permanency plan for the children.

[318] Accordingly, the court must decide which of the two remaining options – a supervision order, or an order for Crown wardship – is in the best interests of the two children.

[319] In deciding which of these two options is in the best interests of the children, I must have regard to section 37(3) of the Act, which provides:

Best Interests of Child

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

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

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

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. R.S.O. 1990, c. C.11, s. 37(3); 2006, c. 5, s. 6(3).

[320] In considering these various factors, the court must strive to ascertain whether the children's best interests can be met by re-uniting them with their biological family. Clearly, this would be the least disruptive order, and the one that should always be preferred, if such an order otherwise meets the best interests of the children.

[321] In deciding whether a supervision order would meet the children's best interests I must have regard to all the circumstances, including the strengths of the parents, as well as their weaknesses as potential caregivers for these children.

Parents' Evidence and Their Argument for a Supervision Order

[322] As I noted in the introduction to these reasons, the parents suggested that any one of a number of different possible supervision orders would be appropriate. These possibilities range from the joint care and custody by both parents, with terms and conditions – at one end of the spectrum – to care and custody to the mother alone, with mother as the sole decision-maker and supervised access to the father, with terms and conditions – at the other end of the spectrum.

[323] The theory underpinning this latter, more extreme type of supervision order is that, as between the mother and the father, the father is more rigid and inflexible in his views and in his distrust of the society. Arguably, he poses a greater risk of harm to the children than the mother. The mother is more flexible, less rigid and, accordingly, would be more amenable to society supervision.

[324] Apart from themselves, the parents called three witnesses to testify at trial.

[325] Laura Kucenty is a case manager who works with marginalized clients at the Queen West Community Health Centre in Toronto. Queen West provides different types of services for people in the community, including parenting support and parenting education.

[326] Ms. Kucenty testified that she also does advocacy work on behalf of parents.

[327] Her initial contact with parents was in or around August 2015. The parents came to Queen West to inquire about parenting-related services, including the education options that might be available to them.

[328] Beginning in September 2015, they came to the Centre on roughly a bi-weekly basis, for sessions lasting approximately 45-60 minutes. Initially the sessions were focused on education.

[329] However after 4 or 5 sessions, Ms. Kucenty said that the parents began to use their appointments as "supportive listening" or "grief sessions". They did not return to focus on any "structured parenting education", according to Ms. Kucenty.

[330] Ms. Kucenty said the parents were supportive of each other and were well-liked at the Centre.

[331] She expressed her belief that father would defer to mother if mother were required to be the decision-maker for the children.

[332] In examination-in-chief she testified the parents are "very insightful into what's going on". However, on cross-examination she said that the parents did not tell her that K. was diagnosed with developmental delay.

[333] Ms. Kucenty told the parents that if they wanted to get their children back they would have to cooperate with the society. And yet, when the society contacted Ms. Kucenty to obtain information about what the parents were doing with her, Ms. Kucenty was told by the parents that they wanted to limit the information she conveyed to the society.

[334] What comes across from this witness are two of the notable strengths which the parents have, and which have been confirmed by the prevailing evidence in this trial. First, the parents can be very likeable. Despite their challenges, they seem to be able to generate positive feelings by others toward them.

[335] Second, the parents are generally supportive of one another. Again, the court saw and heard similar evidence in this regard from others throughout the trial.

[336] However, Ms. Kucenty's belief that the parents are "insightful" is not a characterization with which this court can agree. I accept the sincerity of Ms. Kucenty's evidence, but I am mindful that she referred to herself as an "advocate".

[337] Almost all of the evidence in this trial from those who had lengthy, extensive and intensive involvement with the parents, paints a very different picture of the parents' insight. And, most notably, the evidence from the parents' own mouths informs the court that they have almost no insight whatsoever, either into their own disabilities, or how to effectively facilitate the needs of their children.

[338] Lorraine Lam is an outreach worker at Sanctuary Toronto. Sanctuary is a drop-in centre servicing primarily street people, persons who struggle with addiction, trauma and poverty – in other words, marginalized individuals.

[339] She was introduced to the parents in or around September 2014, by S. and P., both of whom she had known for a number of years.

[340] Ms. Lam was aware that this couple was living with the parents and their children at the time the couple introduced the parents to her.

[341] Ms. Lam knew of that couple's child welfare history in New Brunswick. She knew that at least one of their children had been apprehended. The child protection risks were primarily associated with S., who she described as "aggressive", "quite rough" and prone to using "aggressive language". She understood that the child welfare agency in New Brunswick had concerns about a crying baby that he shook. She also observed that he treated P. – and Ms. Lam herself – aggressively. She said S. did not have the "best attitude toward people in general".

[342] Despite her knowledge of the dangers posed to the parents' children by S. and P. while they were living with the parents, she never took any steps to contact the society about these risks. Ms. Lam testified that she was not aware of her statutory duty to report under section 72 of the Act.

[343] She saw the parents for a period of time, but then lost touch with them until the summer of 2015, by which time the children were already in care.

[344] When the parents visited Ms. Lam they would talk primarily about their visits with the children, and show her pictures of the children. Ms. Lam described the sessions as more about emotional support, a sounding board, rather than formal counselling.

[345] The parents gave Ms. Lam no specific information about K.'s delays or her developmental needs.

[346] She testified that her Centre is able to make referrals to a number of outside resources, as well as provide in-house services for marginalized persons such as these parents.

[347] Ms. Lam had suggested to the parents that they could work with the in-house resources to improve their circumstances. However, the parents never followed up with these suggestions.

[348] Nor did the parents ever ask Ms. Lam to provide referrals to outside resources, to assist them with their challenges.

[349] In the end, it really doesn't matter what Sanctuary Toronto was able to offer to the parents, if the parents, as demonstrated by their disinterest, were unwilling to access those resources.

[350] The third and final witness, called by the mother, is Linda Smith. Ms. Smith has known the mother for about 20 years. She was a close friend of mother's father when they worked together at the same company. She also developed a very close relationship with mother; she describes mother as a "very loving person". She says "I think of her as my daughter".

[351] She does not know the father very well, but "from what I know, he's a very protective person".

[352] Ms. Smith speaks to mother, or texts her, about once each week. She sees mother when she comes to Toronto from her home in Barrie, about once each month, for the day. Mother has occasionally travelled to Barrie to visit Ms. Smith, the last time being Thanksgiving 2014.

[353] Unfortunately, she gave the parents $600 when they told her they had won the Facebook lottery/inheritance. Ms. Smith sincerely believed that the parents had won this money. Unfortunately, her loan has yet to be repaid by the parents.

[354] She does not have any real information about why the children were apprehended, or what their specific needs are. Nor does she know how mother's own disabilities impact on her day-to-day living.

[355] She was asked what kind of supports she could provide to the parents. She said that she could babysit for them, for a few hours, when she comes to Toronto, or if they were to come to Barrie, where they would be welcome.

[356] She could offer emotional support, but not financial support. Nor could she offer any regular child care.

[357] Ms. Smith is a delightful person, both kind and sincere. However, in the end, the parents were more likely damned by her faint praise, than assisted in any real way by her evidence. Her lack of knowledge about the parents' issues and about the needs of the children, inform the court that if this is the best support person the parents are able to put forward, then unfortunately, the parents have no meaningful kith or kin support in the community.

[358] The parents argue that the society should never have jumped straight from an informal proceeding into an apprehension. They should have proceeded first to a supervision order.

[359] They argue that they have never been given an opportunity to take care of their children under the direct authority of the court and, accordingly, there is no reason to believe they would be incapable of, or unwilling to follow a court order.

[360] It is argued that the parents' willingness to move forward in a constructive way is evidenced by the fact that the court heard testimony of their registration in a parenting course called Nobody's Perfect. This course is expected to begin in September 2016.

[361] The parents argue that even if the father has shown inflexibility and rigidity toward the society, the mother would be compliant with any terms and conditions of a supervision order. And furthermore, the father would be willing to listen to the mother and follow any decisions she makes, if that is what the court were to order.

[362] As revealed by the earlier discussions in these reasons, the parents were unable to demonstrate a real understanding of K.'s various needs and delays. However, mother's counsel argued that given the parents' obvious limitations, it is not surprising that they don't have a "sophisticated" understanding of those needs and delays. It should be sufficient that they understand and accept that the delays exist and they are willing to comply with a court order for addressing the children's needs.

[363] In addition to these considerations, the parents' strengths, as demonstrated by their commitment and support of one another, and their obvious love of their children, should be sufficient for the court to have confidence that they would comply with the terms of any supervision order.

A Supervision Order is Not in the Children's Best Interests

[364] It is trite to state that a supervision order cannot work unless there is objectively ascertainable evidence that the parents understand the purpose of such an order and that they will cooperate fully with the society.

[365] Unfortunately in this case, the court cannot have any confidence that the parents have the necessary insight to sincerely understand either the protection concerns or the children's needs – in particular, the needs of K.

[366] I do not propose to repeat what I stated earlier under the headings "the father's responses" and "the mother's responses", to the various concerns raised by the society and the team of professionals who attempted to work cooperatively with the parents in furtherance of the children's needs.

[367] Those responses alone are more than sufficient to inform the court that the parents have no real understanding of their limitations and of their children's needs. Nor do they have a real understanding about how to protect their children from various risks of harm.

[368] Equally apparent and problematic is the parents' distrust of the society and their demonstrated unwillingness to work cooperatively with the society.

[369] However, I will go beyond those various "responses" to emphasize just how impossible it would be for the court to make a supervision order – whether with the parents jointly, or the mother alone.

[370] I start by making some general comments.

[371] There are many case notes which were reviewed by parents' counsel during the course of trial, which referred to the positive observations by society workers – and others – in a number of home visits. However, those same case notes also revealed the negatives. In short, the positives were "cherry picked" out of case notes which were very detailed in their observations of how the parents were doing, and how they were caring for the children.

[372] The parents were sometimes agreeing with the society that they had to do certain things in the best interests of the children. However, agreeing to do things and actually doing them are two different things. The parents were unable to demonstrate follow-through.

[373] The father has never - and to this day still has not – acknowledged that K. in particular has special needs. He very clearly testified "my daughter never had a developmental delay with me".

[374] Despite the professional evidence that K. simply could not speak more than a couple of words when she came into care, the father insisted "she was talking to me, whispering to me" when the society could not hear; and at 20 months of age, K. was saying "yes daddy, I want to come home".

[375] Father was asked whether K. is doing better now that she has been having various therapies. He responded, "no", and that she was doing fine "when I had her".

[376] He was asked whether he would take K. to her therapies, even if he had to travel an hour by public transit. He replied that once K. is in full time daycare or school, he would stop any therapies because she doesn't need therapies in any event.

[377] As to father's insight and understanding of K.'s needs, the court concludes that his insight and understanding is virtually non-existent.

[378] What would his level of cooperation be with the society? He did not demonstrate cooperation before the commencement of the protection application when he was obligated to follow the VSA. Without going into all of the various provisions of that VSA, it is abundantly clear that neither he nor the mother followed most of those provisions.

[379] And, it must be noted, that the VSA made it very clear, that if the parents refused to cooperate, the society would likely have to move forward with a formal proceeding in the Ontario Court of Justice. In other words, they knew in advance that the failure to cooperate could have serious consequences.

[380] So while the VSA itself was a less formal process than a protection application, it was serious enough that both parents were aware that the court was looming directly over their shoulders. And yet their demonstrated ability to cooperate with the terms and conditions of that VSA, was virtually non-existent.

[381] The parents were both so resistant to the society, and what the society was attempting to accomplish with them, that when they observed bruises on K.'s legs during an access visit, they immediately concluded it was from physical abuse inflicted by the foster parents.

[382] They complained to the police. The police took K. to SCAN and the clear conclusion was that the type of bruising on her legs was what one would expect to see from a child who falls down while learning to walk.

[383] The mother insisted in her testimony that even if SCAN was saying there was no abuse, while she'd probably have to go along with that conclusion, she wouldn't sincerely believe it, stating, "I know different".

[384] Despite what everyone was telling them, the parents – both of them - persisted. They went from one police station to the next. They didn't believe the police who kept insisting there was no abuse. Father testified the police were "lying". Mother also testified that "to me and daddy [the bruising] didn't look normal". The police were "lying".

[385] They went to the Office of the Provincial Advocate to air their complaints.

[386] When nothing came of that, they launched a formal complaint to the Child and Family Services Review Board. In their complaint to the Board, the parents – who both signed the complaint on July 20, 2015 – stated:

The society is judging us because we have a disability and we are on ODSP, people off the streets are spreading rumours that were not true and the society is believing them over us.

[387] That complaint to the Board was dismissed when the parents failed to show up for a hearing or a pre-hearing conference.

[388] Of note, mother testified that she believes – even to this day – that the reason the society apprehended her children, was because the society was listening to rumours from people on the street. In other words, while she reluctantly agreed that the children were "most likely" in need of protection when they were apprehended, "the society did not have sufficient concerns" to apprehend the children.

[389] They went to the Children's Aid Society of Toronto and to Native Child and Family Services "to get them involved to check you guys [the society] out".

[390] These extreme lengths to which the parents went, and their utter refusal to accept the opinions of the professionals demonstrates in the clearest possible terms that neither parent had the capacity to understand and to follow the advice of those who were far more qualified to make assessments of what was going on with their daughter.

[391] The society decided to try out the TAP program with the parents. TAP is a therapeutic access program which involves parenting under the direct observation of the society, where the society teaches parenting techniques by providing the parents with feedback, both constructive as well as negative.

[392] The society had never previously used TAP, but they were searching for whatever mechanisms might assist in ultimately reuniting the children with their parents.

[393] The society hired Shannon Deacon, the Director of the Therapeutic Access program at Children's Aid Society of Toronto, to assist them in implementing a TAP plan for the parents. The society drew up a plan setting out the various expectations, but the parents refused to sign that plan.

[394] The parents participated only for 3 or 4 sessions before quitting TAP altogether. The father stated that he wasn't really interested in TAP because it's "best to let the kids make their own decisions through life" and "they have to learn right from wrong". He made it clear that he wouldn't implement any of the society's suggestions for better parenting because "forcing children to do something they are unable to do is a form of child abuse".

[395] He refused to remain behind after each TAP session ended – the time intended for feedback – because "I was frustrated". The mother might have been inclined to remain behind for the feedback sessions, but she left because the father refused to stay. She had no influence over him on those occasions.

[396] Mother testified that she repeatedly failed to follow suggestions from the society designed to remediate concerns because she felt the society was constantly "judging" her and "putting her down".

[397] Despite the parents' repeated refusals to accept feedback, the society continued with its efforts in this regard. And they continued to do so in the face of highly abusive conduct by the parents. For example, on October 2, 2015, while the society workers were attempting to provide feedback, the father yelled out

You are a fucking bitch. You are a fucking liar. You did not let my little girl walk. You are a fucking bitch.

[398] The parents then stormed out of the session when the workers understandably said that they could not continue to tolerate that sort of abuse.

[399] Mother was asked if she was following up on the various recommendations made by Dr. Koltun. She replied, "I'm not ready to be in a group with other people". She said she will refuse to take any programs unless the children are returned to her.

[400] In her Answer and Plan of Care mother stated that she was open to parenting courses and teaching programs. But she didn't follow through with any of that because "I got stressed and frustrated".

[401] On a number of occasions throughout her testimony, mother agreed that she had failed to do what she had promised, that she had failed to follow recommendations made by the society or other professionals and that she had failed to do what she herself had promised in her Answer and Plan of Care. Her repeated reason for these failures was almost always "stress and frustration".

[402] When the society amended its protection application to seek Crown wardship, the family service worker offered to sit down with the parents and review the Plan of Care, which contained a list of services the society would provide, as well as the list of expectations the society had of the parents.

[403] The mother acknowledged that she and the father refused the society's offer to review these various items because she was "frustrated" and "I'm still frustrated" today.

[404] The mother acknowledges that her father (the maternal grandfather) has a bad temper and has acted aggressively in the past toward people. For example, there is evidence that the maternal grandfather did the following:

• February 2013 – he was arrested for assaulting a police officer
• September 2013 – paternal grandmother reported to the RCMP that the maternal grandfather had threatened the father
• July 2014 – he referred to one of the society workers as "Hitler"
• August 2014 – he threatened to come after Dr. Bismilla of the Hospital for Sick Children
• August 2014 – he told the director of the society that the society worker would be "six feet under" if K. were apprehended

[405] Mother responded that she didn't know about some of these threats but acknowledged that these kinds of threats are consistent with the way she knows her father behaves. She also acknowledged that her father has a temper and has "anger issues".

[406] In the face of all this, she was asked whether in her opinion it would be safe for the children to be exposed to him, if the children were returned to her care. She responded that, no, it wouldn't be good for the children, but since he's the children's grandfather she wouldn't be able to keep the children away. She expressed her belief that he would not lose his temper around his grandchildren.

[407] But what if the court were to order her not to permit contact with the maternal grandfather? Would she comply? She answered definitively that she would not be okay with such an order.

[408] In terms of one of the alternate supervision orders proposed by mother, namely, that mother be the sole decision-maker, the father said very clearly that parenting is a "50-50" arrangement. Both parents have an equal say in the decisions around their children. And yet, despite the father's clear belief in this approach to decision-making, the mother believes the father would defer to her, if the court so ordered.

[409] Mother harbours this belief despite her acknowledgement that she has been the one to defer to him on many occasions. For example, mother wanted to stay for TAP feedback from the access supervisors, but father refused, so she deferred to him.

[410] She wanted him to have a more normal sleeping arrangement so that he could wake up in the morning and assist with child care duties, but he insisted that his late-sleeping routine was carved in stone; she gave in.

[411] Most significantly, after mother gave her testimony, asserting her belief that father would back off from his insistence on "50-50 parenting", asserting her belief that father would defer to her, father resumed his cross-examination. The society asked him who would be the decision-maker with respect to the needed therapies for K. Father responded: "I would like it to be both of us; technically I should still have a decision; it's 50-50". He said that if mother were to make the decisions, "how is that fair in a relationship".

[412] In other words, even after hearing mother's own testimony, her belief that he would willingly defer to her, he could not bring himself to go along with that testimony. He would still insist on being an equal participant in the decision-making for the children.

[413] The parents' argument for a supervision order depends very much on their willingness to work cooperatively with the society. See, for example, Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227.

[414] Regardless of perhaps a few of the words which they ultimately uttered in their testimony, saying that they would comply with a court order, the best way to judge what the parents will do in the future is to look at their past conduct. In the absence of objectively ascertainable evidence that there has been a sea-change in a parent's attitude which makes cooperation more likely than not, the court must conclude that a history of non-compliance, non-cooperation, is what is likely to happen in the future. See, for example Children's Aid Society of Toronto v. R(T), 2009 ONCJ 384, at para. 56.

[415] Bare statements made in the course of trial, promising to change behaviour in the future, are nothing more than heartfelt wishes, something to which this court can give little or no weight in the context of the totality of the evidence which points in the opposite direction. See, for example, Children's Aid Society of Toronto v. I.L., 2015 ONCJ 646, at para. 292.

[416] The evidence informs the court that mother does indeed have more flexibility than the father. She is less rigid than him and more willing to listen to the society. However, her relative flexibility and her relative willingness to listen must be understood in context. Where father demonstrates virtually no flexibility and virtually no willingness to listen to the society or the professionals, mother appears to demonstrate some, but in absolute terms, still very little.

[417] A review of the foregoing evidence makes this amply clear.

[418] In Children's Aid Society of Toronto v. I.L., supra, I had occasion to consider the appropriateness of a supervision order, where the parents were proposing an alternative supervision order with the mother alone, in the event the court refused to make a supervision order with both parents; in other words, something similar to the case before me now. At paragraph 299, I stated:

A supervision order would not work due to the high probability that neither parent would cooperate with the society to the extent necessary to ensure the protection, wellbeing and best interests of the children. In other words, the parents – neither of them, either the parents together or the mother alone - would likely be governable.

[419] The comments in that case apply to the facts of this case as well. The mother has no real interest in cooperating with the society; she has no real interest in understanding and taking ownership in addressing the needs of her children; nor does she believe that she is anything but a capable parent on her own.

[420] She becomes "stressed and frustrated" when things don't go her way and she uses this stress and frustration as an excuse for not following recommendations of the professionals who are attempting to further the best interests of her children.

[421] She does not seem to realize that being a parent can be stressful and frustrating, even in the normal course, and that as a parent, she has no choice but to deal with the day-to-day needs of her children regardless of the stresses and frustrations which would regularly come her way. In part, this is what being a parent is about. Simply, it comes with the territory.

[422] And the added difficulty for mother is that her low cognitive functioning acts as a significant barrier to the challenges that she would face as a caregiver. It would be one thing if mother had sufficient insight and understanding into the needs of her children, and she accepted that she couldn't address those needs by herself. And if, because of that, she was able to arrange for high functioning supports who could be in or near her home on a daily basis, to help her to deal with those challenges, then parenting under a supervision order might be possible.

[423] Even then, she would still have to find a way to get around the father's complete lack of insight, and his existing belief system which, by its very nature, would expose the children to a continuing risk of harm.

[424] But she has neither the necessary insight, nor the necessary supports.

[425] In this regard I also rely on the words of Justice Brian Weagant in Catholic Children's Aid Society of Toronto v. L.A.T., who was being asked to make a joint supervision order with a mother of low intelligence and a negative attitude toward the society, together with the maternal grandmother, who had problems of her own. At paragraph 25, Justice Weagant stated:

I am not inclined to experiment with this baby. Nothing short of the presence of a full-time home-maker would give me the comfort I would need to place the child with Margaret, Ms. L.A.T. and C. But that is not a service that the province can provide. Moreover, given the uneasy relationship Ms. L.A.T. has demonstrated to have had with outside resources in the past, I am not sure we could expect her now to embrace the myriad of services that would need to be brought to bear. It must be remembered that both Ms. L.A.T. and her mother have expressed the view that they want the child home and see no need, and do not want the help of the society. There is enough evidence to support the proposition that Ms. L.A.T. would pick and choose from services offered to suit her own temperament.

[426] Leaving aside, for the moment, all of the parents' serious shortcomings, which make it not feasible to return the children under a supervision order, I will comment on the argument that if only the parents had been given the opportunity to care for their children under a supervision order, they could have proven their capacity to do so to this court. In other words, the parents argue, a court order for temporary custody to them would have been the more appropriate court order, rather than an order for care and custody to the society.

[427] However, the facts belie this position. The children were apprehended in November 2014. They have been in care for about 20 months. At all times, the parents were represented by counsel. And yet, despite this, at no time did counsel consider it appropriate to bring a care and custody motion, seeking a placement of the children in the care and custody of their respective clients, or one of them.

[428] Four different lawyers represented the parents during the course of these proceedings. Not one of them decided that it was appropriate to bring a motion for a temporary supervision order.

[429] The only thing the court can infer from this is that counsel themselves did not believe that such a request would be well received by a court.

[430] However, whatever the reason for not bringing such a motion the reality is that these two children have now been in care well beyond the statutory time limit. And in the interim, the parents have had only very limited, supervised access.

[431] In the case of Children's Aid Society of Toronto v. R.H., 2016 ONCJ 181, Justice Stanley Sherr was faced with a request by a mother for a return of children to her care under a supervision order. She had had only supervised access to her children for a very extended period of time. At paragraph 140, Justice Sherr stated:

The mother has only had supervised access with the child since 2012. It would be irresponsible for a court to return the child to her care until she could demonstrate that she could adequately parent the child without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the child with the mother without first testing whether she could adequately parent him, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for at least 9 months to a year for the court to effectively evaluate whether a return of the child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child on an extended basis. The time to attempt extended access in this manner has long passed as the statutory timelines in the Act have been exceeded.

[432] And in that case, the mother had maintained stable and clean housing, she had taken many self-improvement programs, she had a good relationship with the foster mother, and she had evidence of having matured since the date of the apprehension.

[433] None of those strengths appear in this case. Furthermore, the attitudinal problems which exist in this case exacerbates the problem for the parents.

[434] The court recognizes that a Crown wardship order is the most profound order a court can make in the context of child welfare legislation. It severs the relationship between the parent and the child, perhaps permanently. If the child is ultimately adopted, it may mean that the child and the biological parents never again have contact with one another.

[435] The court is certainly aware of all of this and does not proceed lightly, or when the evidence supporting Crown wardship is in doubt.

[436] Nevertheless, the court is bound to make orders which are in the best interests of the children. And in this case, for the reasons I have outlined, a supervision order – neither with the parents jointly, nor with the mother alone - is not possible, as it would not be in the best interests of the children.

[437] Before leaving this section of my reasons, I will comment on the suggestions made throughout this trial that somehow these parents were being penalized by everyone – the society and the team of professionals – because of their low cognitive functioning.

[438] First and foremost, the court's focus must be on the best interest, protection and wellbeing of children. This is the paramount purpose of the Act.

[439] It has often been said that courts are not to make these judgments by employing a "middle-class yardstick" in determining what constitutes adequate parenting under the Act. See for example, Children's Aid Society of Toronto v. C.D., 2015 ONCJ 36.

[440] Nevertheless, the quality of the parenting must meet a minimum standard, failing which a court will conclude that the proffered parenting is not in the child's best interests.

[441] I recognize that low cognitive functioning can be a significant barrier to a parent's ability to meet the standard of acceptable parenting under the Act. But there cannot be one test of what is acceptable, what is the minimum standard, for parents with a high I.Q. and a different test for parents with a low I.Q. That would place the focus in the wrong place, namely, on the parents, rather than on the needs of the child where it must be, at all times.

[442] A parent's cognitive disability, however, cannot by itself, be the reason to sever the family unit by removing children. The ability to maintain an intact family unit will necessarily depend on a number of factors. The following is a list of factors which should be considered before a court will likely conclude that a person with a serious cognitive disability is capable of parenting in accordance with the paramount purpose of the Act:

1. Does the parent understand and accept the existence of her cognitive disability? It is not necessary that the parent have a "technical" understanding of that disability, but merely an awareness of the general nature of that disability, and the potential impact of that disability on her ability to parent. A lack of insight by the parent will make it very difficult for the parent to seek out supports in those areas which would assist in providing the child with more effective parenting.

2. Is the parent actively engaged in, or pursing programs or therapy of the kind that would help to ameliorate some of the impact of the disability? It is not necessary that the programing or therapy be of the kind intended to "fix" the disability but, rather, that it be designed to compensate for the disability, to whatever extent is reasonably possible.

3. Does the parent understand the particular needs of her child, especially in those cases where the child may have one or more special needs? Again, technical expertise of special or developmental needs is not what is important here but, rather, a general understanding of those needs, and why it is important to address those needs in the best interests of the parent's child.

4. Is the parent demonstrably capable of addressing those needs to whatever extent is reasonably possible? This does not mean that the parent has to rely solely on her own resources but, rather, is she capable of seeking out the appropriate supports necessary to assist her in addressing the needs of her child.

5. Does the parent have close and immediate supports in the community – kith or kin - persons who are higher functioning than the parent herself, and persons who are available quickly and on an as-needed basis in order to assist with child-related problems that arise from time-to-time. In some cases, depending upon the severity of the disability, full-time live-in support will be necessary.

6. Where the society is to remain actively involved for a period of time, has the parent demonstrated an ability and willingness to cooperate with the society? This cooperation would include the parent's participation in accessing resources and programming designed to facilitate child development and growth. Without a close working relationship, the court will not have confidence that the parent is willing to follow the appropriate developmental path, the path which is in the best interests of the child.

7. What are the parent's living arrangements? Does she have suitable housing? Suitable housing does require housing at a middle class standard but, rather, minimally suitable, sufficient to address the child's needs.

8. Is she in a relationship with another adult, someone who is equally insightful as the parent herself, and someone who is supportive of furthering the child's needs and the necessity of cooperating with the society? The importance of this cannot be overstated. A parent can have all the right intentions, want to do all the right things for her child; but an inappropriate and unsupportive relationship could derail all of those good intentions.

[443] In my view, all of these considerations are very important for parents who suffer from low cognitive functioning. And the lower the functioning, the more critical are these considerations. Many parents who have such a disability can nevertheless be effective parents, if they can demonstrate an adherence to the foregoing.

[444] However, and sadly in this case, not only is one parent cognitively disabled, but both are disabled. This fact understandably compounds the barrier to effective parenting. But, again, competent parenting might still be a possibility if the parents in this case were to somehow able to satisfy the foregoing considerations.

[445] Regrettably for these parents, they are unable to satisfy any of them.

[446] In perhaps one of the most startling examples of the father's lack of insight into his own disability, I note the following. The society had been urging the parents for a long time to access the services of an Adult Protective Service Worker ("APSW"), something which would be available to them through Surrey Place. The father testified that it was sufficient for him to be able to "vent on" Ms. Kucenty, and that he didn't need an APSW because "my I.Q. level is too high".

[447] To be clear, the parents' ability and willingness to provide the minimal standard of parenting necessary under the Act is not because of their disabilities, but rather the choices they have made in the face of those disabilities.

No Access

[448] Finally, I must decide whether it is possible to make an access order to the parents, to go along with the order for Crown wardship. Section 59(2.1) of the Act states:

Access: Crown Ward

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

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

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17(2).

[449] There is a presumption against access when a Crown ward order is made. The onus is on the parents to rebut the presumption against access by satisfying both prongs of the test, as set out in this section, on a balance of probabilities.

[450] Mr. Miller candidly acknowledged on behalf of his client, the mother, that he could not make an argument that would satisfy either prong of the test in section 59(2.1), and particularly the second prong.

[451] Mr. Berns, in his submissions argued otherwise. As to the first prong, namely whether the relationship is "beneficial and meaningful to the child, perhaps the leading case on this point is the decision of Justice Joseph Quinn in Children's Aid Society of the Niagara Region v. M.J.. At paragraph 45 of his decision, Justice Quinn stated:

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

[452] The parents did attend access on a regular basis. They usually came prepared with snacks and activities for the children. And during their visits, they generally displayed affection toward their children.

[453] However, there was an observed inconsistency in the parents' ability to sustain the positive aspects of those visits. They would often miss cues. They would sometimes act inappropriately toward the children, for example talking to them about inappropriate subjects, including financial matters.

[454] On occasion, mother would spontaneously begin using Hebrew words with K., notwithstanding that K. was assessed as being developmentally delayed in her spoken language, and she was just starting to learn to speak words in English.

[455] The parents would occasionally fail to ensure the children were properly dressed for the weather before going outside.

[456] The parents' personal hygiene was an issue, something that the parents seemed either unwilling or unable to remedy.

[457] Overall, while the access visits can be characterized as having many positive aspects, there were many negatives interspersed in those visits.

[458] Placing the evidence at its highest, it would be open to conclude that the quality of the relationship was mostly pleasant and enjoyable for the children. However, it fell far short of being "significantly advantageous" to them.

[459] Although there is no need to move on to the second prong of the test, I do so for the sake of completeness. In Children's Aid Society of Toronto v. A.F., 2015 ONCJ 678, Justice Sherr had occasion to consider the factors a court would examine in deciding whether an access order would impair a child's opportunity for adoption. At paragraphs 165-170, Justice Sherr observed:

[165] The case law has recognized that persons who hold certain attributes may be more likely to impair a child's opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child. This might result in an undue delay in the child's adoption. Many people will hold more than one of these attributes.

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

[170] The potential chilling effect to adoptive applicants of having to deal with litigious parties in openness litigation is discussed by Justice Jones in paragraph 71 of Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 as follows:

1. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved

[460] In my view, the parents in this case exhibit not just one, but every one of the foregoing attributes.

[461] The first attribute, difficulty with aggression, anger or impulse control, is dealt with earlier in these reasons under the heading "lack of self-regulation". This attribute applies to the parents.

[462] The second attribute, lack of support for an alternate caregiver of the child, is revealed in my earlier discussion about how the parents believed that K. was being abused while in the care of the foster mother.

[463] The third attribute, dishonesty and secrecy, is something that mother demonstrated when she negligently allowed K. to fall off the couch on repeated occasions, and she failed to advise the society. She also failed to tell the society when she decided to take A. to the hospital only a few hours after she was discharged from the hospital following his birth.

[464] The parents also limited – or attempt to limit – the society's access to information from a number of the resources which the parents were involved with. The parents' distrust of the society and the team of professionals resulted in a less-than-transparent attitude by the parents in their relationship with the society.

[465] The fourth attribute, a propensity to be litigious, was demonstrated by the parents when they complained about the bruises on K.'s leg. The ran from police station to police station, they ran to different child welfare agencies, they ran to the Office of the Provincial Advocate and, ultimately, they filed an application with the Child and Family Services Review Board. All of these steps were taken in the baseless belief that their daughter had been abused while in care. And they were intent on proving that had occurred, no matter what they had to do, or where they had to go.

[466] These are exactly the kinds of attributes which are red flags to a court which might be considering the appropriateness of an access order following the making of a Crown wardship order.

[467] The parents fall far short of being able to satisfy either prong of the two-pronged tests set out in section 59(2.1) of the Act.

Conclusion

[468] This court has considered the evidence carefully and has tried, wherever possible, to give the parents the benefit of the doubt.

[469] Unfortunately, however, and despite the fact that a Crown wardship order, without access, is such a profound order, the evidence overwhelmingly takes the court in that direction and to that conclusion.

[470] The court makes the following order:

1. The children are both found to be in need of protection pursuant to sections 37(2)(a)(i) and (ii), 37(2)(b)(i) and (ii) and 37(2)(h) of the Act;

2. The society's claim for a finding in need of protection pursuant to section 37(2)(d) of the Act is dismissed;

3. The children are both made Crown wards.

[471] These two small children have been in litigation limbo for too long. They are entitled to permanency in their lives. I urge the society to move forward as quickly as possible to seek out a permanent placement for the children.

[472] I understand it is the society's policy that when the court makes such an order, the society will arrange for a last goodbye visit for the parents.

[473] I realize that the parents will be very distressed by this order; and given their limitations they may never reconcile themselves to what this order means for their children, and why the court was compelled to make the order. It is likely that the only persons who may be able to communicate effectively with the parents in this regard are their lawyers. I expect that it is beyond the scope of the retainer of either Mr. Berns or Mr. Miller to spend time with the parents trying to talk them through this order, but to the extent they feel at least somewhat capable of doing so, I hope they will try.

[474] Finally, I wish to commend all four counsel in this case. The case was most obviously very emotional for both parents. Compounding that, there were some challenging procedural issues, including the unexpected and protracted trial time which became necessary to present all of the evidence and final submissions. Despite the difficulties, all counsel were fully prepared, well organized and highly competent in the manner in which they represented their respective clients. I thank them for that and, as well, for their civility throughout, including their demonstrated respect and sensitivity toward the parents themselves.

Justice Robert J. Spence

July 19, 2016