WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Court File No.: C51023/10

Date: August 16, 2016

Between:

Catholic Children's Aid Society, Applicant

— AND —

A.G-F. (mother)

J.L. (father)

Respondents

Before: Justice Roselyn Zisman

Heard on: July 27, 2016

Reasons for Judgment released on: August 16, 2016

Counsel

Laura Goldfarb — counsel for the applicant society

A.G-F. — respondent mother, not appearing

Adrian Baker — counsel for respondent father J.L.

Ken Snider — counsel for the Office of the Children's Lawyer, legal representative for the children

Zisman J.:

1. Introduction

[1] This is a summary judgement motion wherein the Catholic Children's Aid Society ("the society") is seeking an order of crown wardship without access for the children D.G-L. born […], 2007 ("D."), C.G-L. born […], 2007 ("C."), M.G-L. born […], 2009 ("M."), I.G-L. born […], 2012 ("I.") and N.G-L. born […], 2013 ("N.").

[2] It is the plan of the society that the children will remain in their respective foster homes at the present time and the society will begin the process of finding appropriate adoptive homes.

[3] The mother did not attend the hearing and she has not filed any responding materials. She is noted in default. However, the mother did advise Simone Hernandez, the family service worker, that she supports the father's plan.

[4] The father opposes the motion and seeks a trial on the basis that there is a genuine issue requiring a trial with respect to the kin plan he is proposing. The father seeks an order placing the children in the care and custody of their paternal great aunt Ms C. subject to the supervision of the society.

[5] Ken Snider was appointed as counsel for the 3 older children. He stated that M. expressed a wish to live with his sisters D. and C. He wished to live with his father but was aware that his sisters preferred to continue to reside in foster care. Both D. and C. advised counsel that their wish was to continue to reside in foster care. The views and preferences of the children were not disputed and father's counsel did not object to the views being expressed by their counsel.

2. Background

[6] The children are the biological children of the respondent parents.

[7] Since November 2006 the society has been intermittently involved with the family due to concerns related to inappropriate supervision of the children, poor school attendance, and neglect of their medical care and hygiene, domestic violence, financial concerns, substance abuse and hazardous and unsanitary living conditions. In 2008, there was a previous finding of need for protection for D. and C., a couple of years later there was a termination and then several other openings and closings as a result of these same concerns. None of the society's intensive involvement or provision of services resulted in any substantial or permanent changes.

[8] The current involvement of the society began when N. was apprehended in the early hours of April 24, 2015 as the police mistakenly thought he was the young child who had been reported wandering around alone after midnight. It was later discovered that the child was actually I.

[9] At the first appearance of April 29th, the other 4 children were ordered into care with access to the parents at the discretion of the society with a minimum of 2 visits a week for 2 hours.

[10] All of the children have remained in care since that time.

[11] The parents did not respond to the Protection Application and on June 24, 2015 on an uncontested basis the Statutory findings and a finding that the children were in need of protection pursuant to section 37(2)(b) were made. The children were made society wards for 6 months with access at the discretion of the society.

[12] The Status Review application, seeking a further 6 month order of society wardship, was before the court on December 9, 2015 and was adjourned several times at the parents indicated they wished to seek counsel.

[13] On April 19th, 2016 the society served the parents and filed an Amended Status Review Application seeking an order that the children be made crown wards without access. The proceeding was removed from the trial list as the society sought to proceed with a summary judgement motion.

[14] The parents who had never filed any pleadings were given a further extension until June 3, 2016 to serve and file an Answer and Plan of Care.

[15] The father filed his Answer and Plan of Care and as indicated the mother did not file any pleadings.

[16] In support of its summary judgement motion the society relied on the following:

a) Protection Application issued April 29, 2015 and Plan of Care dated June 23, 2015;

b) Order of June 24, 2015 with respect to the statutory findings and protection findings;

c) Amended Status Review Application issued April 19, 2016 and Amended Plan of Care dated April 15, 2016;

d) Notice of Motion dated July 8th, 2016 seeking an amendment to the spelling the name of the child I. and an order for crown wardship;

e) Affidavit of Simone Hernandez, family service worker sworn July 7, 2016;

f) Affidavit of Kathy Taunton, supervisor, sworn July 6, 2016;

g) Affidavit of Luc Drouin, kinship worker, sworn June 29, 2016;

h) Affidavit of Russell Roberts, family support worker, sworn July 8, 2016; and

i) Affidavit of Pamela Van, case aide, sworn July 7, 2016.

[17] The father relied on the following:

a) His affidavit sworn July 18, 2016;

b) Affidavit of J.C., paternal grandmother, sworn July 18, 2016;

c) Affidavit of S.M., paternal cousin, sworn July 18, 2016; and

d) Affidavit of M.C., paternal aunt, sworn July 18, 2016.

3. Legal Considerations

3.1 Applicable legal considerations with respect to summary judgment motion

[18] As the society has proceeded by means of a summary judgment motion these issues need to be determined in the context of the statutory principles and law with respect to summary judgment motions.

[19] Subrule 16 of the Family Law Rules ("FLR") allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[20] Subrule 16(2) specifically confirms that summary judgment is available in child protection proceedings.

[21] Subrule 16(4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[22] Subrule 16(4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[23] Subrule 16(6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[24] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue requiring a trial. The onus is on the Society to show there is no genuine issue for trial.

[25] In assessing whether or not a society has met its obligation of showing there is no genuine issue for trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome other than that sought by the applicant".

[26] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children's Aid Society of the Regional Municipality of Waterloo v. T.S. observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by subrule 16, this may:

…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.

[27] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue requiring a trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is no genuine issue requiring a trial will be insufficient to defeat a claim for summary judgment.

[28] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, has clarified the process of applying the expanded summary judgment rule in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before her, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgement process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be a genuine issue for trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

[29] Subrule 16(6.1) FLR codifies these broad powers in considering a summary judgment motion. The rule specifically provides as follows:

In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interests of justice for such powers only to be exercised at a trial:

1. Weighing the evidence;
2. Evaluating the credibility of a deponent;
3. Drawing any reasonable inference from the evidence.

[30] Subrule 16(6.2) FLR provides that the court may, in exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one of more of the parties, with or without time limits.

[31] Accordingly, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility.

[32] In determining if there is a genuine issue requiring a trial based on evidence presented by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[33] The test for summary judgement is met when the moving party satisfies the court that there is no genuine issue of a material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material.

[34] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits.

[35] Hearsay evidence should only be admitted when it meets the criteria of necessity and reliability. Subrule 16(5) FLR provides a stricter rule with respect to hearsay than subrule 14(19) FLR motions, namely that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

[36] In interpreting subrule 16 FLR, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the CFSA providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[37] It is also necessary to consider subrule 2 FLR to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that cases are dealt with in ways that are appropriate to their importance and complexity and giving appropriate court resources to the case before the court while taking into consideration the need to give resources to other cases. This appears to also be in keeping with the process test set out by the Supreme Court of Canada in Hryniak v. Mauldin.

[38] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that the child faces some better prospect that what existed at the time of the society's removal of the child from the parent and that the parent has developed some new ability as a parent.

3.2 Applicable legal considerations with respect to disposition

[39] With respect to all of these children as this is a status review application, there has already been a finding that these children are in need of protection.

[40] It is well-settled law that the court must now evaluate whether there is a continued need for state intervention to protect these children and consider what disposition would be in their best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent's parenting ability.

[41] After a finding is made, the court must determine what order is required to protect the child. In the oft quoted case of Children's Aid Society of Toronto v. T.L., Justice Perkins set out the statutory pathway to be followed on a disposition hearing (not involving a native child or a potential custody) as follows:

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

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

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

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

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

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

[43] Subsection 57(3) of the CFSA requires that before an order is made removing children from their caregivers that the court must be satisfied that less disruptive alternatives would be inadequate to protect the children.

[44] Subsection 57(4) of the CFSA also requires that the court consider, if removal of the children from their caregiver is necessary, whether there are any family or community placements that are possible.

[45] In determining the appropriate disposition, the court must decide what is in the best interests of the children. In making this determination, the court is guided by the criteria set out in subsection 37(3) of the CFSA as follows:

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

4. Evidentiary Issues

[46] At the outset of the motion I raised the issue of the reliance on hearsay by the society in its affidavits. Counsel for the father did not object to the admissibility of the hearsay statements and indicated that the issue was what weight the court should put on the statements. But counsel made no specific submissions with respect to any particular hearsay statements, the weight or lack of weight the court should place on the hearsay or if the court should draw a negative inference as a result of the society's reliance on hearsay evidence.

[47] It is my view that despite the lack of specific objections to the hearsay evidence, the court has a duty to scrutinize the evidence to ensure that only admissible evidence is relied upon in view of the very serious order that the society is requesting the court make. The evidence on a summary judgment motion should generally be of a level and quality to meet the same standards as at a trial and the court should not admit and rely on evidence on a summary judgment motion that would not be admissible at trial. It is important to consider that the basis for the inadmissibility of hearsay evidence is that it is being introduced for its truth and that there is an absence of a contemporaneous opportunity to cross-examine the deponent. However, not all hearsay is admitted for the truth. For example, in child protection proceedings such evidence is frequently introduced merely a backdrop to understand the context of actions taken by a society. Also some less important, non-material or undisputed facts may be admitted in some circumstances despite the hearsay nature of the evidence. I have examined the society's evidence in this context.

[48] Almost the entire affidavit of Kathy Taunton who was the supervisor of both the family service worker and the child service worker consists of hearsay. Nowhere in the affidavit does Ms Taunton explain why the child service worker, Shanti Persaud, did not file her own affidavit. As the child service worker Ms Persaud would have been the worker who visited the foster home, observed the children and the worker who would have had contact with the children's service providers and other collaterals involved with the children.

[49] The information in Ms Taunton's affidavit can be divided into several categories. There is general background information about the physical condition of the children upon admission, their lack of attachment to each other and their developmental issues and their needs. This information was the basis for the finding of need for protection that was granted on an unopposed basis and therefore this evidence has already been admitted by the parents. I find that the society can rely on this evidence.

[50] The next category of hearsay in the affidavit contains information from the foster parents. The children D., C. and M. are placed in one foster home and N. and I. in another home. There is no explanation as to why the foster parents did not file affidavits. The information about the children's current functioning in the home, their present needs and their reactions after access is relevant and helpful evidence. Counsel for the society submits that the information from the foster parents is only included for context and background upon which to assess the kin plan being proposed by the father. However, several times in submissions and in the factum filed by the society, counsel relied on this evidence for its truth. There is no question that the proper process would have been to introduce this evidence through affidavits from the foster parents. However, in the circumstances of this case as there is admissible evidence with respect to the current functioning of the children, I have considered any statements attributed to the foster parents for the limited purpose proposed by society counsel and not for the truth of the contents. However, the information provided by foster parents is generally very relevant and should be presented by means of a sworn affidavit and not relayed through a society worker. In this case, it is double hearsay as Ms Tauton does not depose that she spoke to the foster parents directly and the affidavit does not even clearly identify how she obtained information from the foster parents.

[51] The next category of evidence in Ms Tauton's affidavit are various assessments of the children that are simply attached to her affidavit. These are clinical assessments of D., C., and M. by Amanda Rawn-Alton M.A.C.P. of Bridgeway Family Homes. These assessments do not have any indication as to the qualifications of Ms Rawn-Alto. The society relies on these assessments in support of their position that the children have special needs and what services they need. No objection was raised by father's counsel with respect to the admissibility of these assessments. There is no explanation by the society as to why Ms Rawn-Alton could not have sworn an affidavit outlining her experience, professional qualifications and confirmed her findings as set out in the assessments. Although the assessments are useful to the society and foster parents for an understanding of the needs of the children and would also be useful in assessing whether or not the proposed kin understand the needs of the children, the assessments do not meet the criteria for admissibility for the truth of their contents. They are not medical or expert reports and are not in the form of a sworn affidavit. However, although I am not prepared to rely on these assessments, I do not draw a negative inference against the society for including this evidence as the concerns about the children's behaviour and their needs were outlined in the Protection Application and the affidavit relied upon for the finding of need for protection. Therefore as the finding was made on an unopposed basis the concerns about the children and their special needs were admitted by both the mother and the father. Further, the family service worker, Ms Hernandez on several occasions spoke to the father and explained the children's special needs, that is, that the children had either been diagnosed with Fetal Alcohol Spectrum Disorder ("FASD") or provisionally been diagnosed with FASD and she explained how their behavioural and emotional challenges are related to this diagnosis. The father does not dispute the children's special needs and in fact he acknowledges that all of the children have special needs and will require ongoing services.

[52] There are also hospital discharge summaries that are attached to Ms. Tauton's affidavit regarding the children I. and N. by Dr. Slade of St. Michael's Hospital with respect to a diagnosis of FASD. A psychological report regarding I. by Dr. Bardikoff, a psychologist with the Scarborough Board of Education, was also attached. Again no objection was made by father's counsel to the admissibility of these reports. I find that the summary discharge report is admissible as a medical report as is the psychological report and they are therefore are admissible pursuant to section 52 the Evidence Act. The Evidence Act permit a party to rely on a medical report as long as a copy of the report is provided to the opposing party and after at least 10 days' notice has been given. No specific form of notice is required. Although I find that these reports can be relied upon, the better process would have been for the society to prepare a formal Notice to File a Medical Report with an affidavit by Dr. Slade and Dr. Bardikoff attaching their respective reports with a copy of their curriculum vitea.

[53] Counsel for the father did not cross-examine any of the affiants or request an adjournment of this motion to do so. I am aware that the father only retained counsel several months before this motion was argued however, the case management judge warned both parents many times of the seriousness of the proceedings and their need to obtain counsel. In any case, the issue of the inability to cross-examine the authors of the reports or that there were credibility issues that required a trial were not raised before me.

[54] In this case, I am able to sever the inadmissible hearsay and proceed with the summary judgment motion based on the admissible evidence. However, in view of the very serious relief being requested by the society, the society should be more aware of the need in future cases to prepare proper materials.

5. Summary of Relevant Evidence and Findings with Respect to Parenting Concerns Since the Children Were Apprehended

[55] The family service worker visited the mother's home many times after the children were apprehended and the concerns about the unsanitary state of the home continued. The mother stated that she did not have the financial resources to buy furniture or paint the apartment but could not explain how she had used the $10,000 tax refund she had received. The father admitted that he was aware of the lack of cleanliness of the home but felt if he helped clean it that neither the mother nor the children would act responsibility or clean up after their own mess. The father also admits that he and the mother had ongoing conflicts about finances.

[56] The mother and father did not attend with their doctor to obtain urine screens despite repeated requests over several months by the family service worker. The father's only explanation was that he did not prioritize attending for the urine screens as he did not perceive that he had an alcohol or drug problem. The father deposed that in the past he consumed alcohol regularly and was a habitual user of marihuana but that he now only drank occasionally and only smoked marijuana infrequently. When the family service worker arranged for the drug testers to attend at an access visit and the testing was done in March 2016, both parents tested positive for marijuana. The mother also tested positive for oxycodone but she was prescribed pain medications due to an injury she obtained after being assaulted by a neighbour and this could explain her positive test.

[57] On April 15, 2016, the parents were at the library when the father sent the mother to buy alcohol. The mother did not have any identification and when she returned without the alcohol the father yelled at her and they were asked to leave the library. Once outside, the father punched her in the face, threw her to the ground and kicked her. The mother was unconscious and taken the hospital. The father was charged with assault causing bodily harm, possession of a prohibited weapon and threatening death.

[58] The family service worker who met with the mother several days later observed the mother had a swollen lip and ear. The mother confirmed to the worker that both she and the father had been drinking.

[59] The family service worker also spoke to the father who also confirmed that he and the mother had been drinking that day but he would not say how much or what they were drinking. He advised that they argued but he could not recall about what and that there was mutual pushing and grabbing. He did not know how the mother sustained the injuries. When the family service worker asked if he could have been drinking so much that he could not recall what happened, he denied this but then said that he could not remember what happened. In the affidavit he filed on this motion, the father deposes that he does not wish to comment on the alleged assault and plans to plead not guilty.

[60] The father also admitted that he and mother were involved in another dispute in January 2016 that escalated and that there was some pushing and shoving but that he was not responsible for the mother sustaining broken ribs. The father has also been charged with assault causing bodily harm with respect to this incident. The father attached to his affidavit a copy of his recognizance of bail that outlines his outstanding charges and the terms of his release that prohibit any contact between him and the mother except for court purposes or access or pursuant to a family court order. The father is also required to remain in his residence except if he is in the company of his mother who is his surety.

[61] Both parents have indicated that they are no longer in a relationship. The father deposes that he now understands that their relationship was dysfunctional and that they cannot co-parent.

[62] Based on the evidence presented, I find that concerns continue to exist about the unsanitary state of the mother's home, ongoing domestic violence and substance and alcohol abuse.

6. Summary of Relevant Evidence and Findings with Respect to Services Offered to the Parents

[63] The parents have not utilized the services that were offered by the society. The father agrees that the family service worker made efforts to connect the mother and him with parenting resources.

[64] The following resources and referrals were made and the evidence with respect to their use of these services is as follows:

a) The services of a family service worker;

b) The services of Russell Roberts, a child and youth worker in the access program. His responsibilities were to create an access plan for the family including establishing access goals and assisting the parents to implement these goals during the access visits. The parents were to meet before the visits to review their visits and discuss parenting and child management ideas and strategies. The parents were inconsistent in meeting with him and would arrive only a few minutes before the visit not allowing time to discuss any issues. Although the father deposes that he learnt important strategies from Mr. Roberts, his only explanation for not attending the sessions before the visits was that he missed sessions during times the mother and he had "paused our relationship";

c) Referral to the Beyond the Basics Parenting program. Both parents attended although they had to be warned about not missing sessions;

d) Referral for the father to Super Dad Super Kids program. The father indicated that it was too far to attend but he did attend the Beyond the Basics which was an equivalent program;

e) In February 2016, the family service worker enrolled both parents in the Circle of Security program through the society to strengthen their parenting skills. Although both parents indicated that they would attend and despite the worker reminding them several times about the program neither parent attended;

f) The parents were asked several times between December 2015 and March 2016 to provide names of family members for the family service worker to contact so the society could arrange for them to attend a Family Group Conference. The father agrees that he was asked about the availability of extended family and about scheduling a Family Group Conference and that he did not respond as he wished to resolve the child protection concerns with the mother as a parenting team and admits that he should have involved his family earlier;

g) The family service worker suggested couples counselling and referred the parents to Topicanna. The parents did not follow up with this referral.

h) The family service worker also suggested individual counselling for the mother and gave her some referrals; and

i) Both parents were invited to a crown wardship conference to be held on February 26, 2016 and confirmed that they would be attended. Neither parent attended. Neither parent called to find out the outcome of the conference. The father's only explanation is that he understood that the date was rescheduled and he was confused as to the rescheduled date.

7. Summary of Relevant Evidence and Findings with Respect to the Children

[65] D. and C. who are twins were placed in the same foster home. When D. came into care she was very dirty and lice infested with long dirty unkempt hair. She lacked any routines with respect to her personal hygiene. She had many cavities. She was unable to regulate her emotions, show empathy or sympathy and would steal and hoard food. She showed no attachment to her siblings and fought with them physical and verbally. Her behaviour has improved in foster care. D. is passing all of her grades in school and loves to swim and dance and do gymnastics.

[66] When C. came into care she had cracked lips, a cold sore that needed treatment, she was underweight and her hair was dirty and unkempt. Her dental care was also neglected and she had many cavities. She would eat everything and was unable to self-regulate her eating. She would not show empathy or sympathy and would not share anything with her siblings. She bullied others and used abusive and negative language to her peers and adults. She showed no attachment to her siblings and screamed and fought with them. Her behaviour has also improved in foster care. She is also passing all of her grades in school and loves to swim and do art.

[67] When M. was admitted into care, he was also dirty, unkempt and lice infested. His speech and language skills were delayed, he had difficulty sleeping and wet his bed. His dental hygiene was poor and he had numerous cavities. He was very hungry all of the time and stole and hoarded food. He showed no attachment to his siblings who would bully him. His behaviour has improved in foster care but he continues to struggle with self-regulation emotionally and socially. He can become very aggressive if not closely supervised. He is performing below grade level in school and has an Individual Education Plan at school where he obtains a lot of one on one help. He also has a child and youth worker who works with him 6 hours a week.

[68] I. and N. were placed in the same foster home. They were described as being lice infested and never stopped scratching even after being treated. They had circles around their eyes from not sleeping, scratches to their faces and had rashes on their backs. They fought viciously with each other and could not be in the same room.

[69] I. was assessed by Dr. Slade and diagnosed with FASD and at risk for neurodevelopmental disorder. He was noted to have significant behavioural problems, mood regulation difficulties, sensory processing issues, some sleep problems, and has been referred to assess possible attention deficit hyperactivity disorder. He was found to be extremely defiant, impulsive and aggressive and it was reported that daycare was having problems working with him. He was also assessed as being mild to moderately delayed in his grasping and self-help skills and his receptive language skills. It was noted that that his language skills improved in foster care.

[70] I. was also assessed by Dr. Bardikoff who found that safety and trust issues were almost constant concerns for I. and that his behaviour will always be challenging when he feels unsafe. His ability to regulate himself is limited and becomes problematic when he feels uncertain about his circumstances and demands. It was assessed that "his attachment capacities are confused at best and severely impaired." Dr. Bardikoff concluded that his aggressive and violent reactions reflect both the manner in which he was raised and reactions to believing and feeling that his needs will not be met; although there had been growth and change in his functioning while being in care nevertheless his chaotic need state can emerge without apparent warning. It is Dr. Bardikoff's opinion that:

It is important to retain appropriate expectations for I. His circumstances prior to coming into care created no foundation for regulating impulses and containing behaviour in the expectation that someone will come to his aid. This fundamental need to be calmed by someone and then to integrate that so that we can calm ourselves has not yet developed for I. and recognizing this is essential in planning for him at this time.

[71] N. was also assessed by Dr. Slade and diagnosed with FASD and at risk for neurodevelopmental disorder. He presented with defiant and oppositional behaviours, attention deficit hyperactivity disorder symptoms and difficulties with self-soothing. He requires 24 hour supervision and a referral for an assessment for ADHD was recommended. He has difficulty falling asleep and waking up in the night. A sleep study was also recommended. He was delayed in his receptive and expressive language and in his fine and gross motor skills although it was noted that these skills were improving. It was recommended that he be referred for cognitive testing and a more comprehensive psychological examination.

8. Summary of Relevant Evidence and Findings with Respect to Access Visits

[72] The parents initially exercised access jointly twice a week and then in January 2016 access was reduced to once a week. As of April 2016, due to the father's no contact provisions with the mother, access visits were separated. The visits were semi-supervised in the society's offices and were supervised by Russell Roberts, the family support worker, Pamela Van, a case aide and on occasion by Simone Hernandez, the family service worker.

[73] The positive aspects of the visits were outlined as follows:

a) The parents arrived on time for the visit;

b) The parents generally attended consistently for access visits;

c) The parents came prepared with food the children liked and with toys and activities suited to each child;

d) The visits initially were chaotic but with the assistance of Mr. Russell the parents were able to implement and maintain a structure by eating a meal, watching a movie, playing in the gym or going to the park if weather permitted; and

e) The parents greeted the children affectionately;

[74] The negative aspects of the visits were noted as follows:

a) The parents were unable to consistently meet at the beginning of the visit with Mr. Russell to review their visits and to discuss parenting and child management ideas and strategies. The parents were unable to consistently implement new parenting skills and ideas that were discussed in their meetings. They were unable to take the time to enforce a consequence with the children and to promote good behaviour;

b) The parents did not attend a scheduled Christmas visit on December 23rd, 2015 and had promised the children presents at the visit before. The parents did not call to cancel the visit, the children waited for an hour and were disappointed and left in tears;

c) The mother took charge of the visits while the father played a more passive role. The father appeared withdrawn, disconnected and needed to be directed by the mother. He was often observed to be watching a movie on his own, playing basketball and generally not interacting with the children;

d) The mother took on the primary care giving role and ensured the children's needs were met and had to give the father instructions to assist her and he left the decision making to her;

e) Despite attempts to include the father in a more active and supportive role, the mother assumed most of the responsibility and at the end of a two hour visits she would be tired and exhausted;

f) The father would not console the children if they cried or were upset;

g) The parents brought gifts for some of the children causing the others to be upset instead of waiting to bring gifts for all of the children at the same time;

h) There were significant concerns about the children's safety and their supervision. There were numerous examples of the children climbing on furniture, running outside the supervised access room, throwing a basketball too hard and almost hitting a parent and generally not being properly supervised;

i) After the visits were separated, the father visited with the paternal grandmother and other family members and these visits and in particular the departures were chaotic;

j) Despite being told on 5 separate occasions, that the new expectation was that the good byes would be in the reception area and the children's drivers would take them to their cars, the father and his family members did not comply except for one time; and

k) The father's visits as of June 16th, 2016 were suspended due to his behaviour in swearing and yelling, taking a cell phone that did not belong to him and lying to staff about the phone belonging to him. The family service worker advised the father that before the access visits could resume she needed to meet with him to review the concerns about the last visit, the ongoing concerns about the number of people coming to the visits, individuals not coming on time which caused a disruption, issues with respect to the departure and the foster parents' concerns that the children were soiling themselves during the return drive. The father spoke to the family service worker and sent several texts, tried to defend taking the cell phone and refused to meet and told the worker to give his visits to the mother. As of July 7th the worker had not yet heard from the father.

[75] The father alleges that the society workers' concerns about his access visits were "cherry picked". He provided various explanations for the incidents of concern by the society workers. His explanations are instructive as I find they show a lack of insight into the needs of the children. The father provided the following explanations for his behaviors:

a) The father states that he brought gifts for the girls not the boys and on other occasions gifts for the boys and not the girls as he did not want the children to feel entitled to a gift at every opportunity simply because one child receives something does not mean the others should as well. He does not recognize that these are young children who may not understand this logic and that they were upset when he did this. Despite the impact on the children, the father did not change his behaviour or thinking;

b) The father states that he does not clearly recall the many incidents outlined in the affidavits of the workers where it is alleged that he sat back and did not attend to the children's needs but admits that the mother took control and he did not want to create a situation where he was getting into an argument with her or stepping on her toes. This is hardly an explanation for simply sitting back and ignoring the children while he watched a movie or played by himself in the gym;

c) With respect to an incident when the father was asked by the mother to watch the children, M. was seen sulking and the father did not attempt to console him or ask what was wrong. The father explained that he does not feel that M. or the other children need to be consoled or indulged for every single "sulky" moment and that there is nothing wrong with a bit of "tough love". This shows a total lack of any understanding of the needs of M. and the other children who all were significantly deprived of having their emotional needs met while in the care of the parents;

d) With respect to concerns about an incident where I. left the supervised access room, the father explained that the children are familiar with the environment and there are several rooms in a secure child friendly location at the society offices and that the children don't need to be monitored as vigilantly as if they were in a mall. However, the father does not seem to appreciate that there are other families exercising access for a variety of reasons that could pose a safety risk to his child and that it is his responsibility as a parent to watch his children regardless of where they are;

e) The father denied that he told the children that he would see them for a Christmas visit on December 23rd and bring them gifts as he explains that he thought the visit was on December 24th. But then the father did not state that he attended for a visit on December 24th or had presents for the children;

f) The father denied that he presents as oblivious or unconcerned about the children during the access visits but admits that he took on more of an observer role, that he has a more laid back role and that he was accustomed to the mother taking a lead role. This is despite the fact that he was or should have been aware that there were concerns about the mother's ability to properly meet the needs of the children and despite the fact that at the time he was presenting a plan for he and the mother to jointly parent the children or that he is now presenting a plan that he would assist his aunt in caring for the children;

g) The father explains that he felt it was his responsibility to accompany the children to the car and that the society's concerns about saying good-bye in the reception area were overstated. The father does not acknowledge that he had been instructed on 5 separate occasions to stay in the reception area to eliminate the safety risk of the children running around in the parking lot, to ensure that he could say good-bye to all of the children individually without missing some of them if the driver leaves while he and his family are putting the other children in the car and so that the drivers would be able to leave on time. The father states that he did not agree with the reasoning that this departure procedure would save time but does not address the safety issues that occurred when he and his family persisted in taking the children to their drivers. The father and his family members' inability or deliberate disregard in following these instructions is concerning with respect to their ability to follow the terms of any supervision order and their inability to understand the safety risks to the children in a busy parking lot;

h) With respect to the incident on June 16th, the father deposes that it was always his intention to return the cell phone that he picked up in the sofa in the society reception area but does not explain why when asked he then told the worker that it was his cell phone. The father admits that when he was faced with the accusation that he stole the phone that he did want to return it or acknowledge that he picked it up. He admits that he handled the situation badly which would have included swearing and yelling in the presence of the children. He states that the phone was returned to its rightful owner, who was the foster parent, and then states that he has not seen the video footage that the society stated clearly shows him picking up the phone and putting it his pocket. It therefore remains unclear from his explanation that he is even accepting responsibility for taking the phone; and

i) The father provides no explanation for not meeting with the worker to discuss the escalating concerns about his access visits since the June 16th visit and he only states that he called the family service worker on July 14th. The father shows no insight on the impact of the children not seeing the father for several weeks.

[76] Accepting the father's various explanations for his observed behaviour at the access visits at face value and without the need to assess his credibility, I find that the father has not been able to incorporate any of the parenting advice or strategies that he learnt through the parenting program he completed or through the assistance of the society workers at the access visits. The father has not been able to properly supervise the children or comply with the expectations of the society workers. There has not been any appreciable improvement in the father's abilities to understand or meet the children's various needs during the access visits.

9. Summary of Relevant Evidence and Findings with Respect to the Kin Plan

[77] The father acknowledges that he is unable to parent the children full time on his own at the present time. The only reason he gives is that he is currently residing with his mother and grandmother in a one bedroom apartment.

[78] The plan presented by the father is that the children would be cared for and reside with his aunt M.C. and her adult daughter S.M. They live in a 3 bedroom home and the plan would be for the girls D. and C. to share a room with their cousin S.M., and that the boys M., N. and I. would share a room. Ms C.'s adult son who currently lives in the home would move out.

[79] A kinship assessment was conducted by Luc Drouin who filed an affidavit and attached as an exhibit his kinship assessment. Mr. Drouin did not approve the kin plan.

[80] The findings of the assessment can be summarized as follows:

a) The home was clean, well-kept and safe;

b) The plan was contingent upon Ms C.'s son who is 22 years old moving out;

c) Ms C. has a child welfare history in 1998 to 2000 that indicates that she struggled with the care of one of her sons, that she dropped him off at the society's offices and that despite the society being prepared to return him to her care she permitted him to become a crown ward;

d) Ms C.'s history with child protection agencies indicates that she did not co-operate. However, she and her daughter did co-operate with the kin assessment;

e) There were ongoing allegations that she was hitting her children with her hand, a belt and other items. Ms C. denied that she ever hit her children;

f) Ms C.'s son who became a crown ward had no special needs and there is a concern that she will not be able to care for 5 children with FASD;

g) The society was involved again in 2010 as S.M. reported that her mother was going to kill her during an argument about Ms C.'s concerns that she was not eating enough. At the time Ms M. was attending an eating disorder program. The file was closed as Ms M. reported that she never believed her mother would harm her and the family was connected with services at the hospital;

h) When questioned about this history both Ms C. and Ms M. either stated that they did not recall the incidents and they could not confirm or deny them. Ms C. laughed when told her son wanted to sue her. She stated that she brought her son to the society offices because he wanted her to. Ms M. was unable to speak about the past because she stated that she had an eating disorder and it affected her memory and did not see the relevance of asking about her past;

i) The day to day plan to manage the 5 children is questionable due to Ms C.'s work schedule. She planned to enroll the younger children in subsidized daycare. Ms C. did advise that her 2 sisters could help out but provided no details and expected the father to "contribute" but when questioned she was unable to explain what that meant;

j) Ms C. also stated that she "expected" the father to assist her with the children but was unclear about what she meant. She stated that she expected that the children would eventually be able to return to his care;

k) Initially Ms C. stated that she was not definitely sure if she could afford to care for the children but believed that her family would assist her financially. But she then stated that she could manage without any undue financial hardship;

l) There was a concern that Ms C. did not initially understand the protection concerns and as a result a meeting with the family service worker present was arranged. Although Ms C. then seemed to understand the protection concerns she advised that in order to make her plan viable she would need the support of the father but was not able to elaborate what she meant by "support";

m) Ms C. had no history with the children as she advised that the mother often refused to allow access;

n) Ms C. only recently began to have access visits with the children and there have been concerns about her following through with instructions at the departure and her interactions with the children. For example, on June 16th, 2016, I. was crying for his sippy cup that Ms C. was holding and she would not give it back to him despite him being upset. When asked about this incident she stated that she wanted I. to ask "properly". The fact that she would keep a child's sippy cup despite the fact that he was visibly upset in order to try to modify his behaviour indicates a parenting style that does not understand the fact that I. has been diagnosed with FASD and he is only 4 years old.

o) Overall, the assessment concluded that it was unclear if Ms C. had the necessary skills to provide care for 5 children with FASD and with developmental, behavioural and emotional needs, concerns about the vagueness of the day to day plan and the financial means to care for the children.

[81] In response to these concerns the father, the paternal grandmother, Ms. M. and Ms C. filed affidavits that outlined the following:

a) The father and paternal grandmother will act as a team to support Ms C. As neither of them work they can attend to assist with caregiving and respite care. They can get the children ready in the morning, take them to school and pick them up and help get them ready for bed at night;

b) The father states that he can contribute several hundred dollars a month despite being on Ontario Works. The paternal grandmother deposes that she is also in receipt of Ontario Works and receives $400 per month;

c) The father identified that as a parent he has many strengths namely, that he has been part of the children's lives since birth, he can have conversations with the children, he is capable of creating activities that they enjoy and channelling their energies in appropriate ways. He states that he is capable of mediating disputes and his aware that the most profound conflict is between M. and his sisters D. and C. He also states that he is aware of the challenges they have experienced and wants to be part of their lives;

d) The paternal grandmother has had limited contact with the children as she did not get along with the mother. She deposes that she is committed to helping out her sister Ms C. in any way she can;

e) Ms M. is the father's cousin and lives with her mother Ms C. She is 20 years old and is currently taking a year off school and working full-time at McDonald's. She works from Monday to Thursday 7:00 a.m. to 3:00 p.m. and she deposes that she would be able to pick up the children up from school or daycare and assist in the evenings and on week-ends;

f) Ms C. deposes that she is 52 years old and was a single parent to 4 of her own children. She has been employed full-time for 28 years as an adult support worker for persons with physical or intellectual disabilities. She did work with children with developmental and other challenges for a few months. In order to present a plan to care for the children, she has rearranged her working shits so that she now works a day shift from Monday to Friday from 8:30 a.m. to 4:00 p.m. and no longer works week-ends;

g) Ms C. presenting a plan that the C., D., and M. would attend school from 8:45 a.m. to 3:30 p.m. and would be picked up by a school bus at a bus stop that is right outside her home. She indicated that she would wait for them to be picked up by the bus and her daughter Ms M. would wait for them in the afternoon. She indicated that N. and I. would be in full-time daycare from 8:00 a.m. to 5:00 p.m. and that she would be responsible for dropping them off at daycare earlier than 8:00 a.m. and picking them up. She did not explain how she could wait with C., D., and M. in the morning for their bus if she had to be at work by 8:30 a.m. and also take N. and I. to their daycare. She did not indicate what the plans would be if any of the children were ill or if the daycare would not agree to have I. in daycare full-time which is the current situation. Ms C. did indicate that the father and paternal grandmother would be available to assist with the pick-up and drop off and could assist in unusual circumstances where neither she nor her daughter would be available;

h) Ms C. also deposes that she would enroll C. and D. in various activities such as singing, dancing and drama and enroll the boys in sports oriented activities such as soccer and holiday and summer camp programs;

i) Ms C. indicates that as she and her daughter are employed full-time they have the financial means to support the children and the father will provide several hundred dollars a month in child support and she can also seek support from her mother;

j) With respect to her involvement with the children's aid society, she deposes that it dates back 16 years and that her son was a difficult child as he entered his teen years as he was oppositional, defiant, exhibited academic challenges and was aggressive and abusive to his siblings. She admits that she used "modest physical discipline" but denies that she ever used a belt or other objects to discipline him. She admits that she voluntarily placed him in care and consented to him eventually becoming a crown ward;

k) With respect to her involvement with the children's aid society with respect to her daughter Ms M. she agrees that she became frustrated because Ms M. was not eating but denies that she called her "stupid and crazy" or threatened to kill her. She was able to connect her daughter with appropriate medical care and she no longer has an eating disorder;

l) With respect to the incident with I. and the sippy cup, she explains that she refused to return the cup to him because he was misbehaving, shouting and being disrespectful and she wanted him to learn to ask nicely and did not want to reinforce bad behaviour;

m) Ms C. also deposes that she has been told of the protection concerns regarding the father and the mother and understands why the children were apprehended. Nevertheless, she is still proposing that the father will be a significant support to her. Even though she deposes that she has reviewed the summary judgment materials prepared by the society, she states that more effort should have been made to engage the extended family and arrange for a family group conference. She appears to be unaware that both parents were asked on numerous occasions to provide information to the society about any family members who could support the parents. Ms C. does not state if she was aware that the children have been in care for over a year and if so, why she did not approach the society to provide a plan earlier; and

n) Ms C. deposes that she understands and appreciates that the children have "significant health needs" and although she is not overly familiar with FASD she is aware of the condition and is willing to be educated about children with FASD and how they can be managed in the same way the society have offered to educate the foster parents. She does not indicate that she has taken any steps to educate herself presently with respect to FASD.

10. Analysis

10.1 Is there an ongoing protection concern?

[82] The finding for need for protection was made with respect to section 37(2)(b) of the CFSA that is, a risk of physical harm.

[83] I find that it is relevant to detail the events that lead to the apprehension of the children as the father is proposing that he will be a support to his aunt with respect to his plan that the children be placed in the care of his aunt and that the issue of the viability of this kin plan raises a genuine issue for trial.

[84] On April 24, 2015 at 12:10 a.m. a report was received by the police that a neighbour found a missing child wandering on the street. At the time the neighbour and police thought the child was N. It was subsequently discovered that the child was I. who would have just turned 3 years old.

[85] While the neighbour and his girlfriend waited for the police to arrive, the mother arrived and retrieved the child. When the police arrived, they attended at the parents' home and found N. with the father. The father was un-cooperative and would not tell the police where the mother and the other children were. The police reported that the apartment was trashed, cockroaches everywhere, garbage on the floor, clothes everywhere and no food in the home.

[86] The mother reported that she had left the father to watch the children as she needed some respite time. The father left all of the children, who were all under the age of 8 years old, and went to ride his bike as he was feeling overwhelmed and stressed because of the state of the home and the crying and fussing by the children. The father reported that he was only gone for 15 minutes. When he returned the children told him that I. had gone out. The mother subsequently returned and she went out looking for I. who she then found.

[87] When the mother was asked why C., D., and M. had not been attending school for the last 2 months, initially she reported that all of the children were ill, then that she had a hard time getting them up, then that they had lice and finally the mother stated that except for the recent lice infestation there was not a valid reason for them not going to school.

[88] The father did not dispute the facts that led to the protection findings and that there are ongoing protection concerns. Since the children were admitted into care, there have been further concerns about the parents' inability to parent the children, lack of communication regarding parenting, increased domestic violence, financial concerns and substance use, inability to follow through with any learned parenting strategies, and lack of follow through with services. Further, N. and I. have been formally diagnosed with FASD and although the assessment for the other children are not yet completed there is a provisional FASD diagnosis for them.

[89] All of the children in view of their past parenting and the parents' ongoing inability to meet their needs continue to be at risk of both physical and emotional harm. The ongoing intervention of the society is necessary.

10.2 What disposition is in the children's best interests?

[90] Both N. and I. who are under 6 years old have been in care for over the statutory time limit of 1 year. The options for them in this case, as neither parent has presented a plan, are either an order for crown wardship with or without access or placing with in the care of Ms C. with or without a supervision order.

[91] The other children are over the age of 6 years and could remain in care for about a further year as they have been in care just over a year. However, in view of their past parenting and their special needs and their need for a permanent plan, I find that it is in their best interests that they either be made crown wards or that they also be placed in the proposed kin plan with Ms C.

[92] As outlined in the findings on the evidence, these 5 children all have special needs that require caregivers that have the insight and understanding to meet the challenges they present now and will continue to present in the future.

[93] The father has not been able to improve his parenting skills despite taking a parenting course and despite the intensive parenting assistance that was offered by Mr. Russell who the father himself describes as a parenting coach. Although the father deposes that he was always involved with the children, he never intervened to improve to state of the home, the physical condition of the children or made attempts to ensure that their medical, dental, educational and other needs were met. He was content to allow the mother to be the primary parent and was either oblivious to the mother not meeting the children's needs or unable to assist the mother in ensuring that even the most basic needs of the children were met.

[94] Even after the children were apprehended, the father continued to be a passive observer and allowed the mother to take the primary role in meeting the needs of the children during access visits. This is despite the fact the father was urged by all of the workers who supervised the visits to take a more active role and despite the fact that the children had been removed because of concerns that the mother, as the primary caregiver, was not meeting the needs of the children.

[95] Although it is submitted by counsel for the father that the protection concerns are not related to the kin plan and that the father is not planning for the children, the father is a part of the kin plan. Both Ms C. and the father depose that he will be available to offer assistance to Ms C. Based on the plan as presented, it appears physically impossible for Ms C., even with the assistance of her daughter, to be able to ensure all of the children get to school and daycare in the morning due to their work schedules. Therefore, even the day to day plan requires the assistance of the father or other family members. Any contingency plan would also require the assistance of the father or the paternal grandmother if the children are ill, need to attend therapy, counselling or medical appointments or if either N. or I. are not in daycare full-time.

[96] There is overwhelming evidence that the father cannot be entrusted with the care of the children. He is unable to ensure their safety even in supervised access visits. He has not shown any insight into their needs for comfort and assurance. His approach of "tough love" shows no understanding of the trauma they have experienced due the lack of any consistent parenting in the past.

[97] The fact that Ms C. does not acknowledge any concerns about the father's parenting and that she intends to entrust him with the care of the children for even short periods of time, raises serious concerns about her own judgement. The affidavit of the paternal grandmother also does not acknowledge any concerns about the father. There is no concern expressed by either Ms C. or the paternal grandmother about why the father would have permitted his children to continue to reside in an unsafe and unsanitary home, why he would have permitted his children's physical condition to deteriorate or why he did not notice that the children's needs were being severely neglected.

[98] The plan presented by Ms C. does not acknowledge or provide any details as to how she would deal with the fact that M., N., and I. all have sleep problems and need to be closely supervised at all times. The plan does not explain how the sleeping arrangements would accommodate the fact that N. and I. cannot be in the same room with each other or what contingency plans would be in place if I. continues not be able to handle full-time daycare.

[99] Although the involvement of Ms C. and her son with the society occurred 16 years ago, it is concerning that the behaviours that resulted in her putting her son into the care of the society, are very similar to the behaviours exhibited by these children especially by I. and N. Further, the incident with I. and her refusal to give him back his sippy cup are indicative of the same type of approach to tough love espoused by the father and shows a lack of any understanding of the parenting style that I. requires.

[100] It is submitted by father's counsel that this is an isolated incident and blown out of all proportion as are the other incidents at the access visits by various family members and the father. It is quite true, that if one examines each incident in isolation they appear to be minor. But this incident with Ms C. and I. and the father's similar style of parenting need to be examined in the context of the needs of these particular children who will not outgrow FASD, will continue to have problems regulating their behaviours and that these children will require a caregiver with patience and a willingness to learn new methods of helping them self-regulate their behaviour.

[101] Both the father, Ms C. and the other members of the paternal family who are being presented as ready to assist in caring for the children have been unable or unwilling to comply with the direction of the society regarding the procedure for the children's departure from the visits. This is despite the clear evidence that there were safety concerns as a result of the children not being properly supervised in the parking lot. Even if the father and the rest of the family did not agree with the reasoning of the society, they should have complied as an indication that they would be able to comply with the terms of a supervision order. Ms C. deposed that she would comply with the terms of a supervision order and indicated that she expected the society to remain involved to provide services to deal with the special needs of the children. But at no time during the visits did she encourage the father to comply or did she herself comply with the departure arrangements requested by the society.

[102] The kin plan would enable the children to be together and be raised by family members. However, despite Ms C.'s commitment she has a limited knowledge of the needs of the children, no history of caring for the children and on a practical level the plan is not feasible without the involvement of the father who has shown himself to be unable to even meet the basic needs of the children. The plan would also depend on the father providing some financial assistance but he did not provide such assistance for the mother and his ability to do so in his present financial circumstances is doubtful. Further, Ms C. indicates that she hopes the children can be returned to the father's care in the future and it is therefore unclear if the plan is even a long term or permanent plan. Ms C. has not acknowledged any shortcomings in the father's parenting and he only outlines his lack of appropriate accommodations as being an obstacle to the children being in his care. The children have been in care for over a year and require a permanent plan with caregivers that are sensitive to and can meet their varied needs.

[103] I find that the society has met its onus to prove that there is no genuine issue that requires a trial. I am able to make this finding without resorting to the expanded powers to weigh evidence or assess credibility. Based on the evidence presented with respect to the kin plan it does not present a triable issue that requires a trial. These children have been in care for over a year and to wait any longer for Ms C. to solidify her plan or to gain some understanding of the children's needs is not in their best interests.

10.3 Should there be an order of wardship with or without access?

[104] Once a child is made a crown ward, section 59(2.1) of the CFSA sets out the applicable test. The onus is on the person seeking access to a crown ward to prove on a balance of probabilities that the relationship between the person and the child is meaningful to the child, that the relationship between the person and the child is beneficial to the child, and that access will not impair the child's future opportunities for a permanent or stable placement.

[105] Counsel for the father did not make any specific submissions with respect to this aspect of the case and the father's affidavit does not directly address the issue of ongoing access. The father does depose that he loves the children and has always been involved in their lives.

[106] I have considered that in view of the children's special needs that they may not be readily adopted. But there is no requirement that the society lead evidence with respect to their adoptability. Also the fact that children may not be readily adoptable is not a reason to permit ongoing access.

[107] There is no evidence presented by the father that the access is meaningful or beneficial to the children. I find that the evidence of the access visits and the recent suspension of the father's access lead to the overwhelming conclusion that an order for no access would be a foregone conclusion at trial.

11. Conclusion

[108] Although I have no doubt the father loves his children and that his family wishes the children to be placed with them so they can maintain a connection with their family members, the children needed their father and his family to step in much earlier in this process. The parenting deficits of the father are too long standing and his lack of making any meaningful attempts to improve his skills and utilize the assistance that was offered resulted in these children remaining in care for over a year. The father showed a lack of insight into understanding that if he could not have the children in his care or the joint care of himself and the mother that he should approach his family members to propose a family plan. Instead, the children remained in care for over a year and a last minute plan is proposed by Ms C.

[109] Although Ms C. is well-being, she does not have an understanding as to the multiple and varied needs of these children and her dependence on the father as part of her plan indicates a lack of insight and judgement about his lack of parenting abilities. The plan lacks the necessary supports to meet these children's special needs both with respect to the practical details and with respect to meeting their emotional and behavioural needs.

[110] I find that there is no other conclusion that would be reached after a trial other than an order for crown wardship without access for these children.

[111] There will be an order as follows:

1. The children D.G-L. born […], 2007, C.G-L. born […], 2007, M.G-L. born […], 2009, I.G-L. born […], 2012 and N.G-L. born […], 2013 will be made crown wards without access.

2. The spelling of I.'s name shall be amended as requested.

Released: August 16, 2016

Signed: "Justice Roselyn Zisman"