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 (c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court File and Parties

Court File No.: C55473/11

Date: 2016-06-02

Ontario Court of Justice

In the Matter of an Amended Amended Protection Application for the Crown Wardship of F.D., born […], 2005, V.D., born […], 2007 and D.D. born […], 2011 under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Between:

Children's Aid Society of Toronto

Nicole Horowitz, for the Applicant

Applicant

- and -

A.M.

Lance Carey Talbot, for the Respondent, A.M.

- and -

J.D.

Acting in Person

Respondents

Deborah Stewart, on behalf of The Office of the Children's Lawyer, for the children, F.D., V.D., D.D.

Heard: February 16-19, 22-26 and 29, 2016

Justice M. Sager

REASONS FOR JUDGMENT

Part One - Introduction

[1] The Children's Aid Society of Toronto (the society) has brought an Amended Amended Protection Application (Application) seeking a final disposition that F.D., born […], 2005, V.D., born on […], 2007 and D.D. born […], 2011 be made Crown wards, without access by the parents, for the purpose of adoption. The society supports sibling access with each sibling being the access holder and asks the court to order that the frequency of visits shall be at their discretion.

[2] The Respondent A.M. (the mother) is the children's mother. She seeks an order having the children returned to her care. If the court finds it necessary, the mother is agreeable to a six month supervision order. If the court orders the children be made Crown wards, the mother seeks an order for access to all three children and an order that all three children have access to each other.

[3] The Respondent J.D. (the father) is the children's father. The father's plan was for the children to be returned to the parents together and for there to be supervision order. At trial the father abandoned his plan in order to support the mother's plan. He did not call any evidence in support of a plan other than the one proposed by the mother.

[4] The children were represented by the Office of the Children's Lawyer (OCL). The OCL supports the society's position that V.D. and D.D. be made Crown wards but takes the position that they should have access to their mother. The OCL takes no position with respect to F.D. The OCL argues that the priority for these children is sibling access and seeks an order granting each child access to the other two children and that there be a specified minimum number of visits per year.

[5] The parents were originally planning together and asking that the children be returned to their care. On October 10, 2015, the mother served and filed an Amended Answer and Plan of Care (Answer) in which she is planning for the children on her own and on the basis that she will live separate and apart from the father.

[6] At the commencement of trial, the children had been in care for a total of 25 months having been placed in the society's care on January 13, 2014 by order of Justice Debra Paulseth. The oldest child, F.D. has been in several foster homes since coming into care but at the date of trial he had been in his current placement for approximately 6 months. V.D. and D.D. have been together in the same foster home since being placed in the society's care.

[7] The mother exercises supervised access to the children. The father's access was terminated in August 2014 and he has not had physical access to the children since that date.

[8] On December 9, 2014 all three children were found to be in need of protection by Justice Paulseth pursuant to sections 37(2)(b) and 37(2)(g) of the Child and Family Services Act (the Act).

[9] The issues for this court to determine are:

a) What disposition orders are in the children's best interests?

b) If the children are made Crown wards, what if any access should be ordered?

[10] The trial of these issues was heard over 10 days.

Part Two – The Evidence

2.1 Background

[11] The mother is 34 years old and originally from Trinidad. She has another child who is now 13 years old and lives in Trinidad with her biological father.

[12] The father is 53 years old and was born and raised in Canada. He has an adult daughter who resides in the Durham area with her young daughter.

[13] The parents met in Trinidad in 2003 and married there on May 11, 2009.

[14] The father returned to Canada in 2008 to pursue an education and ultimately a license to service elevators and escalators. When the father came to Canada the parties had two children, F.D. and V.D. The father returned to Trinidad in 2009 just before the birth of a third child T.D. While in Trinidad the parties married.

[15] Tragically on August 8, 2009, the child T.D. died of an acute case of bronchitis. The father was in Canada at the time of T.D.'s death.

[16] In July 2010 the mother and F.D. and V.D. moved to Canada to join the father. The parties' third child, D.D. was born in Toronto on […], 2011.

[17] All three children have some special needs but the oldest child, F.D. has significant emotional and educational needs.

2.2 Protection History

[18] The society became involved with the family in October 2010, shortly after the mother and her three children arrived in Canada from Trinidad. The society received its first referral after F.D. disclosed to school officials that his mother physically disciplined him. The first Family Service Worker (FSW) was involved with the family from October 20, 2010 to November 18, 2011 and met with the family on 23 occasions during this period.

[19] The society could not corroborate the child's allegations but upon investigation it became clear that F.D. had serious emotional and behavioural issues.

[20] Within 3 weeks of meeting the family, the FSW referred the mother to Aisling Discoveries for counselling on appropriate methods of discipline and child management specifically with respect to F.D. A second referral was made to the Shonniker Clinic in January 2011, to assist F.D. in understanding his emotions.

[21] The mother shared her concerns about the father with the FSW, including his use of physical discipline on the children, his traditional views of marriage and his inability to support her parenting of the children.

[22] The mother was very cooperative with the society in the first few months of their involvement. She accepted their help and suggestions although she did not act on the Aisling Discoveries referral for quite some time, nor did she pursue the referral to the Shonniker Clinic.

[23] The society's evidence is that the father did not welcome the society's involvement, did not think that F.D. had any issues or problems and, that he advised the society that he is a 'Free Man on the Land' and the rules and laws created by government do not apply to him.

[24] In her evidence, the first FSW describes the father as angry, yelling and swearing at her in the family home in front of the children. The FSW states that the mother told her she is thinking of leaving the father as she recognized that he was ill and she felt unable to control his behaviour. The FSW discussed the options available to the mother including going to a shelter with the children.

[25] At the time of the society's first referral the mother was pregnant with the youngest child, D.D. On […], 2011, 8 days after the baby was born, the mother telephoned the FSW advising that she needed a crib and clothing for the baby. This was the beginning of disclosures by the mother to the society that the father was not providing for the family.

[26] The society provided the family with a crib in May 2011 and diapers, a $50.00 gift card to Scarborough Town Centre, a $20.00 food voucher and $30.00 in cash to assist with purchasing items for the baby in June 2011.

[27] The society's evidence is that in June 2011, the mother told the FSW on more than one occasion that she was going to leave the father and that she would do so at the end of the school year.

[28] By the end of the summer of 2011 the mother had not left the father and explained to the FSW that as he was now providing for the family she decided not to leave the home but if he returned to his old behaviours she will leave.

[29] During the summer of 2011, the mother was very cooperative with the society and contacted her worker on several occasions when she needed assistance. It was becoming clear to the society that once the mother's and children's physical needs were met, the mother would change her mind and not follow through with her plan to leave the father.

[30] In September 2011, the middle child, V.D. began full day kindergarten and immediately exhibited concerning behaviours at school. By October 2011 the mother was being called daily by the school as V.D. was trying to run out of the school. She had to pick V.D. up from school early on most days due to her behaviour.

[31] Between October 2010 and November 2011 the society received a total of 6 referrals regarding this family; 5 from the children's school and one from the police. The referrals from the school were in relation to allegations that the children were being physically disciplined or abused. The allegations of abuse and physical discipline were not confirmed. The referral from the police resulted after the mother called the police because the father had spanked V.D. No charges were laid.

[32] The last referral from the school was received on October 25, 2011, after the children had not been in school for a week following the previous referral made by the school over bruising on V.D.'s back.

[33] When the children did not attend in school on October 26, 2011, the FSW attended at the home and met with the mother. The FSW's evidence is that the mother reported that she did not have food for the children and that they did not have appropriate clothing for school. The FSW gave evidence that the fridge and cupboards were almost bare. The mother reported that she had not eaten in two days and was able to breast feed by drinking water.

[34] The FSW told the mother that the society could not continue to provide support to the mother in a situation where the children had insufficient food, inadequate clothing and were not going to school. The society gave evidence that the FSW encouraged the mother to leave the father and move to a shelter with the children in order to better meet the needs of her children. The mother agreed and on October 26, 2011 the worker drove the mother and the three children to a shelter.

[35] By November 4, 2011, the mother and children had returned to live with the father and the mother refused to allow the FSW into the home claiming the father would not permit society workers in their home. The mother called the FSW's supervisor and requested that she be removed as their worker alleging that she removed the mother and the children from the home without a warrant or injunction.

[36] The society issued a Protection Application in November 2011 in which they sought an order placing the children in the care of the mother subject to supervision by the society.

[37] The society's request to withdraw the Protection Application was granted by Justice Harvey Brownstone on April 25, 2012.

[38] After the mother returned to live with the father in November 2011, the family was assigned a new worker.

2.3 The Events Leading up to the Apprehension

[39] The society resumed their involvement with the family when it was contacted by Toronto Police Victim Services on October 28, 2013, after the father was charged with two counts of assaulting the mother and threatening death. As a term of his recognizance, the father was prohibited from returning to the home or having contact with the mother.

[40] The police occurrence report prepared on the day the charges were laid, October 26, 2013, contains the following synopsis:

On October 26th, 2013 at about 9:30am, the suspect [father] was looking for his bank card. [Father] woke up [mother] and his son looking for the bank card. [Father] could not find the card and became upset. [Mother] alleged he smashed items in the apartment and called her names.

[Mother] told [father] why doesn't he leave and he stated it was his house. [Mother] then stated she would call the police. At this point [father] told her he would give her a reason to call the police. [Father] then grabbed [mother] by the throat and pushed her across the room. [Father] continued to yell at her and the children and stated that if she calls the cops on him he would kill her. Their daughter went to grab the phone, however, [father] took the phone and placed it into his pocket. [Mother] tried to exit the apartment but [father] grabbed her. She then tried to exit out of the window and when that did not work she made good her escape through the apartment door.

[Mother] went to her neighbours apartment at [blacked out] and the neighbour called the police. Officers arrived on scene a short time later, however, [father] had left the apartment with the three children un-attended.

Small amounts of blood were visible on the floor by the door and the wall. [Mother] sustained a cut to her left index finger and scratches to her left elbow.

[41] The society's evidence is that when the Intake Worker (IW) met with the mother on November 4, 2013, the mother told her that the father and her were involved in a verbal dispute when things escalated and they pushed each other. The mother advised the worker that the father grabbed her by the neck and choked her. She told the worker that when she told V.D. to get the phone, the father took the phone from V.D. The mother called the police after the father left the home and the father was arrested and charged.

[42] The mother told the IW that the father was very traditional in his views of marriage and his expectations of her and that he was very controlling. She said this was the first time her husband was physical with her but she feared that it could get worse if they do not take this time to be apart.

[43] When the worker told the mother she was concerned about the father returning to the home the mother assured her that she does not want nor need the father to return to the home.

[44] When the IW contacted the father on November 14, 2013 to discuss the society's involvement the father said that the mother had a bad morning and "things got out of hand" but that the charges were going to be dropped at the next court date. When the worker shared her concerns about the children being present during the incident, the father told her the children were fine and the mother is a "fantastic mother".

[45] On November 22, 2013, after calling and texting the mother, the father was arrested and charged with two counts of failure to comply with his recognizance. The police General Occurrence report states that the father texted his wife who reminded him of his conditions not to communicate with her. He then attended at her residence and when asked to leave by the mother refused. When the father left the mother called the police who attended at the residence and found the father outside. He was arrested for failing to comply with his recognizance. The mother provided the police with a signed written statement.

[46] On December 3, 2013, the IW attended at the mother's home with a new FSW. The society workers arrived at the home and could see through a window the father and mother together inside the apartment. The mother met the workers at the front door of the building and confirmed that they had seen the father in the apartment as she had provided her consent to revoke the non-contact order for 4 days so that the parties could fill out papers to obtain psychological services for F.D. as requested by the school. The mother told the workers that she could not fill the papers out on her own and she needed the father's help with the children.

[47] Within two weeks of the father being charged with failing to comply with the terms of his recognizance of bail, the mother prepared a written consent to revoke the non-contact order.

[48] The society told the mother they were concerned about her allowing the father to return to the home which could result in the children being witness to further violence. Despite being told by the mother that the father had probably already left, the workers found him in a bedroom lying on the bed.

[49] The IW introduced herself to the father and explained the society's concerns with him being in the mother's home and asked him to leave. The father explained that he is allowed to be in the home as the mother revoked the non-contact order.

[50] When the father refused to leave the home, the police were called by the society fearing escalating incidents of domestic violence. The police arrived and the father agreed to leave the home. When the mother was asked if she would allow the father to return to the home she said she would as she needed help with their eldest son. The IW explained to the mother that she is failing to protect her children given the concerns around exposure to domestic violence.

[51] The society decided to apprehend the children. The mother told the workers they are not taking the children and that they must leave the building as they are trespassing. The police were not willing to assist with the apprehension so the society workers left and the decision was made by the society to seek a Warrant of Apprehension.

[52] The society commenced a Protection Application which was first before the court on January 13, 2014. On that day, Justice Paulseth made a temporary order placing the children in the care and custody of the society. The parents were granted access at the discretion of the society at a minimum of twice per week.

[53] When Justice Paulseth made the order bringing the children into care, the parents were in court with the youngest child, D.D. The society's evidence is that the mother refused to give the child to the society workers and eventually had to be restrained by court officers in order for the child to be placed with the society workers. As the mother was yelling and banging and kicking walls, the society workers had to lock themselves and D.D. in a counsel room until the parents were escorted out of the building.

[54] As the mother could be heard yelling at the society workers and their lawyer that she will kill them, she was charged with two counts of uttering threats. On September 29, 2014, these charges were resolved when the mother agreed to enter into a peace bond for a period of 12 months. At trial she was asked if in retrospect she would do anything differently that day. She responded, "I would do it again. I couldn't see no mother, no female figure in this world would stand by and watch them take the babies away from them. Look at a chicken or any animal at all that just had a baby, if you try to take it from them they will try to rip your arm off….It's instinct, it's natural."

[55] The mother's version of the events that took place between October 26, 2013 and January 13, 2014, is dramatically different from what was reported by the society and what was contained in the police reports which were entered as evidence. The mother denies that she told the police that the father put his hands on her throat, choked her or pushed her across the room. She also denies that the children were present during the incident claiming that F.D. and V.D. were at her friend's apartment in the building and that D.D. was sleeping in another room.

[56] According to the mother's evidence none of it happened. The mother does not say that she lied to the police but rather that the police are lying. What happened, according to the mother's evidence, is entirely different as the father only pushed her in order to get out of the house.

[57] The mother gave evidence denying that she told the society that the father did not provide financially for her and the children. She said repeatedly in her evidence that her husband was not abusive and she is not scared of him. The mother also denies much of what the society claims she told the worker at the time of the assault in October 2013. All she acknowledged is that the parties were arguing and the father pushed her aside in order to leave the apartment. This is completely contradicted by the society's evidence and the police reports.

[58] The father denies assaulting or threatening the mother and relies on the fact that the charges were dropped by the crown as were the charges of failure to comply with recognizance, as evidence that the events reported to the police did not occur.

[59] For reasons that will be detailed below, I do not accept either parent's version of the events that took place between October 26, 2013 and January 13, 2014. The mother's evidence proved at many times to be completely unreliable. Her credibility was successfully challenged over and over again during the 10 day trial and for this reason, where the evidence of the society and the professionals differs from that of the mother I accept the evidence of the society and the professionals. The evidence of these witnesses was reliable and consistent with each other. In addition, important aspects of the society's and the professionals' evidence were corroborated by the police records and other documentary evidence which were kept contemporaneously with the events that occurred.

2.4 Events Since the Apprehension

[60] On January 20, 2014, a week after the children were brought into care, the society sought to vary the access provisions of Justice Paulseth's order of January 13, 2014. Justice Stanley Sherr varied the parents' access ordering that the parents shall not exercise access to the children together and the society has the discretion to terminate any visit if the parent acts inappropriately towards a child or society worker and suspend access for that parent, pending further court order.

[61] On April 3, 2014, the mother brought a motion for an order returning the children to her care under a temporary supervision order. The father supported the mother's motion. Justice Paulseth dismissed the mother's motion finding that the children would be at substantial risk of harm if returned to the mother's care as she did not appreciate the society's concerns and therefore is unable to address them.

[62] When the father attended visits between January and August 2014 he was affectionate with the children and played with them. Unfortunately, the father spent most of the visits talking about the society and what he believed were their wrongdoings. He was constantly talking to the children about why they were in care and how the society was going to pay for what they have done and that the children would be home soon. The father repeatedly told the children that they were going to be rich from suing the society as the society is "stupid" and had done horrible things to their family. The father swore at a society worker and called her a paedophile in front of the children and threatened to call the police.

[63] During his visits the father was observed to direct most of his attention to the eldest child, F.D. and he was unable to manage all three children which often resulted in intervention by society staff to redirect a child who was engaging in behaviour that could result in injury.

[64] The father's behaviour at visits did not change and in fact he became increasingly threatening to the society staff. There were serious concerns that the father's behaviour was destabilizing for the children.

[65] Examples of the father's especially concerning behaviour with society staff and during visits are as follows:

March 7, 2014 – After greeting the children the father said out loud in front of the children, "Lying pieces of crap that you are. [I'm] going to screw you to the wall."

May 20, 2014 – The father met with a FSW and her supervisor during which he told them that they were wasting his time and "I should take the phone and smash it on your head."

August 6, 2014 – During a visit that was attended by the father and his aunt and uncle with F.D., the father said to his aunt and uncle in front of F.D. "do you see what a bunch of retards these people are, they used to sit on a chair in this room and write on paper. They are really in for it, because they can't keep stealing people's kids." He then said, "This is a world of assholes. They are either gay or sterile. I have such a big affidavit to shove up their asses. I have so much on them."

During this same visit the father was heard telling his aunt and uncle who accompanied him on the visit that "maybe I should buy an M-16 and bring it here." The father was extremely angry at this visit, swore repeatedly and used vulgar terms when referring to society staff, most of which occurred in front of F.D.

[66] The father's access was suspended after the August 6, 2014 visit.

[67] On August 21, 2014, the mother brought a motion for the children to be returned to her care or in the alternative an order for unsupervised access. The society opposed the mother's motion and brought a motion for an order suspending the father's access arguing that during visits the father used explicit and profane language with his children and towards society staff; he had inappropriate conversations with the children, becoming visibly angry while questioning them about what they told workers, the psychologist and their lawyer; and, he displayed an extremely aggressive and angry demeanor towards society staff in front of the children. Counsel for the children supported the suspension of the father's access on a without prejudice basis.

[68] Justice Paulseth dismissed the mother's motion finding that the mother does not demonstrate insight into the children's needs and does not appreciate the impact of her relationship with the father on the children. Her Honour granted the society's request to suspend the father's access on a without prejudice basis.

[69] On September 14, 2014, the father was charged with uttering threats against society employees as a result of his behaviour at the visit on August 6, 2014. His recognizance of bail provided that he shall not contact or communicate in any way either directly or indirectly with any employee of the Children's Aid Society.

[70] The father has not had physical access to the children since August 6, 2014.

[71] The mother had regular access with the children twice per week following their apprehension. After the father's visits were suspended in August 2014, the length of the mother's visits was increased.

[72] After the father's visits with the children were suspended, and despite the society's directions not to facilitate contact between the children and their father during her visits, the mother permitted the children to have contact with the father via cell phone and text messaging. Her behaviour caused conflict with the society and eventually resulted in court orders prohibiting her from brining her cell phone into the visits, which she also ignored.

[73] On March 25, 2015, Justice Paulseth ordered that the mother will not bring her mobile phone into the access visits with the children and should she bring her mobile phone into the visits and if she is observed facilitating contact between the children and their father, the visits shall be suspended pending a meeting with the Service Team. The mother was also ordered to refrain from speaking with the children about the court proceedings or the prospect of the children returning home.

[74] In April 2015 the mother's access was suspended by the society as a result of her facilitating contact between the children and the father during a visit and her failure to comply with Justice Paulseth's order of March 25, 2015. She only began to comply with the requirement not to facilitate contact between the children and their father when her visits resumed in October 2015.

[75] The mother's access to all three children was reinstated in October 2015 but at the mother's request was reduced from two visits to one visit per week for 2 hours.

[76] The mother's visits with the children were generally positive in that she interacted with the children in a positive and affectionate manner. The mother initiated mostly appropriate conversations with the children and tried to set expectations for the children during the visits.

[77] The mother was observed at times having difficulty managing the children's behaviour during some visits. There were many examples of the children not listening to the mother during the visits. They would not listen to her when she told them to stay in the visiting room or to clean up at the end of visits. When the children began arguing and became physical with one another they did not listen to their mother when she attempted to redirect them.

[78] The mother also engaged in some inappropriate discussions with the children during visits around the society's involvement, the court case and when they can expect to come home. At times the mother engaged society workers inappropriately during her visits, yelling and swearing at them in front of the children. Some examples are as follows:

July 16, 2014 – During a visit the mother said "fuck this shit I am calling the police" in front of the children.

September 3, 2014 – The mother called the Children's Service Worker an idiot in front of the children.

November 9, 2014 – The mother told F.D. that he is going home on December 23, 2014.

December 5, 2014 – The mother told the children that they would be going home for F.D.'s birthday.

January 11, 2016 – The mother repeatedly asked the children if they wanted to go home and used her cell phone to record a video of the children saying they wanted to go home. The mother also told D.D. that he could not play with a handheld video game "because someone who thinks they're God says you shouldn't".

January 25, 2016 – The mother told the children that she cannot allow them to play with a hand held video game or "I can't see you anymore".

February 8, 2016 – The mother told F.D. that she is lonely because she misses her children. She also told him that the society is trying to get F.D. to believe something that is not true. The mother also told F.D. that the society took her phone and they follow her and his father.

February 8, 2016 – The mother was seen videotaping F.D. while questioning him about his interactions with society staff.

[79] The mother called the police on three occasions during visits with the children at the society's offices and in doing so acted in a manner that she should have known was frightening and upsetting for the children. She created quite a scene with her loud outbursts and yelling down the hallway of the society's offices. She considered her behaviour appropriate as she believed the children had been harmed or were injured justifying the panic and horror displayed in front of her children and other families exercising access at the offices.

[80] The mother's visits have always been supervised or semi-supervised by the society in their offices. After a period of semi-supervision, the mother's visits were returned to fully supervised visits as she was facilitating contact between the children and the father while the visit was semi-supervised.

[81] Neither parent has cooperated at all with the society. Both parents believe that the society and the police have conspired against them to keep their children in care. The mother has never been prepared to address the society's concerns about the toxic environment in which she was raising the children before they came into care.

[82] Throughout the 10 day trial the father displayed the same offensive behaviour described by the society in their evidence. He was combative, argumentative, vulgar, homophobic, aggressive and completely unable to control or regulate his emotions. He blurted out comments and argued with witnesses and the court repeatedly. He had to be asked to leave the courtroom several times as he was out of control. He also left the courtroom on his own at times, often screaming and swearing as he walked out the courtroom door. The father's behaviour throughout the trial was outrageous.

[83] When the father gave evidence he made comments that the court considered to be threatening to society staff and the court. When being questioned by counsel for the children, the father was asked if he would accept limited contact with his children if, for example, they reside permanently in a foster home. The father said that if this were to happen "you'd all have a problem with me". The father went on to say that if the children remain in care,

"I'd have to leave-- I'd have to go back home to Canada-- to Trinidad and never come back here again. Because I don't know what I would do to you's. I wake up every day thinking of what I want to do to these people, I go to sleep every day thinking what I want to do to these people. How would you like that life? How would you like that life? I don't like it. And, before I die I'll change it. That's not a threat, that's a promise. Absolutely."

[84] In his closing submissions the father said,

"As I said before, an eye for an eye and a tooth for a tooth, and anyone offended by a bible quote has offended the Lord. If you don't want done to you what you have done to another then you are wrong and you are evil, and you will pay for your sins."

[85] The last comment made by the father in his closing submissions is "an eye for an eye and a tooth for a tooth, your Honour. Guaranteed."

Part Three – Disposition

3.1 The Law

[86] The court's disposition options in this case are set out in subsection 57(1) of the Act. This subsection reads as follows:

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 subsection 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.

Consecutive orders of society wardship and supervision

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

[87] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 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 society wardship order is made 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.)

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

[89] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[90] Subsection 57(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care. The society's efforts are detailed below.

[91] In determining the appropriate disposition, the court must decide what order is in the child's best interests. The court has considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[92] A crown wardship order is the most profound order that a court can make. To take someone's child from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997) 23 R.F.L. (4th) 79.

[93] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165.

3.2 Other Plans for the Children

[94] In approximatley May 2014, the mother advised the society that her mother in Trinidad would like to plan for the children. On May 28, 2014, a referral was made by the society to International Social Services (ISS), for a worker to meet with and assess the maternal grandmother's plan. On August 2, 2014, the mother advised the society that her mother was not interested in participating in a kinship assessment due to the delay in the process. The mother advised the FSW that she was not interested in pursuing the kin plan and that she wanted her children returned to her care.

[95] At trial the mother gave evidence that when the ISS worker met with her mother "she was told what is required of her it was like a sham so she called me back and said I'm not doing it."

3.3 Services Provided

[96] I find that the society met its obligations to provide services for the family and children pursuant to subsection 57(2) in providing the following services to the family:

(a) The family had a family service worker;

(b) The children had a children's service worker;

(c) All three children had psychological assessments on two occasions by Dr. Daniel Fitzgerald, one within a few months of coming into care and the second approximately one year later;

(d) F.D. had a psychiatric assessment by Dr. Mitesh Patel on September 2, 2014;

(e) Since September 8, 2015, F.D. has received one-to-one support from a child and youth worker from 9:00 a.m. to 3:00 p.m.;

(f) V.D. and D.D. are involved in individual counselling;

(g) D.D. is involved in speech and language therapy;

(h) The society conducted several formal Plan of Care meetings for all three children;

(i) The society offered the mother fully supported access to the children from May 2014 to October 2014;

(j) The children were seen regularly by the society's paediatrician;

(k) V.D. takes swimming lessons and plays hockey;

(l) D.D. takes piano and swimming lessons and plays soccer;

(m) F.D. is taking martial arts and swimming lessons;

(n) The society and F.D.'s current placement are in regular communication with the child's school to determine what additional resources, if any, are required for the child in the classroom setting.

3.4 The Children

F.D.

[97] When the children went into care, all three had differing degrees of behavioural problems. In his first psychological assessment of F.D. in February 2014, Dr. Fitzgerald wrote that F.D. presented with "significant difficulties with the regulation of his thinking, emotions and behaviour. He is a highly impulsive boy prone to behaving disruptively and using verbal aggression. Over time, these behaviours may present greater and more concerning problems for him." Dr. Fitzgerald identified F.D.'s behaviour as consistent with Attention Deficit/Hyperactivity Disorder (ADHD) and that he "meets criteria for diagnosis of Oppositional Defiant Disorder" (ODD).

[98] F.D.'s first psychological assessment indicates that he has a Developmental Disability or Intellectual Disability Disorder. At the time of trial F.D. was in school from 8:30 a.m. until 12:10 p.m. in a specialized classroom with 8 children and spent the afternoons with a child and youth worker.

[99] Dr. Fitzgerald concludes in his first Assessment of F.D.,

"[F.D.'s] persistent oppositional tendencies and his high levels of aggression are greatly concerning. He does not appear to have had the opportunity to develop effective social and interpersonal skills and readily resorts to aggression as a way of controlling situations or manipulating others. This may be the result of exposure to chronic domestic violence and lack of adequate socialization opportunities."

[100] In the second assessment of F.D., Dr. Fitzgerald describes F.D. as being a frightened boy who would like to return to live with his mother but that the idea of doing so frightens him as he associates his mother with conflict and domestic violence. F.D. describes his father as an angry man and acknowledged witnessing his father being physically violent towards his mother. F.D. wants to protect his mother but does not know how to do this. He also told Dr. Fitzgerald that he wishes his mother will leave his father so he can live with her but he knows she will not leave him and that this means he cannot return to live with her. Dr. Fitzgerald writes that F.D. "is relieved to be out of the home and is happy to be living with his foster mother, who takes good care of him and helps him to feel safe."

[101] Dr. Fitzgerald writes in his second assessment of F.D., "Diagnostically, it now makes sense to view [F.D.] as someone who has a Posttraumatic Stress Disorder (PTSD) and a Reactive Attachment Disorder. His development has been hampered by a number of factors including exposure to domestic violence. At this point, it appears that any contact that [F.D.] might have with his father is extremely destabilizing and precipitates highly aggressive behaviour."

[102] F.D. is described by his current foster mother as a very engaging child who is fun and adventurous. He has a lot of thoughts and ideas and is a very interesting boy. He was also described at times as being affectionate with his foster mother. F.D. has several significant challenges. He resides in a therapeutic environment with two foster parents who both have extensive backgrounds working with children with mental health issues. F.D. has trouble regulating his emotions and anger. He has at times been aggressive towards teachers, classmates and a former foster parent. He has damaged his own property and punched walls and doors when he is upset. He requires an extremely high level of routine and structure in his life. F.D. needs to know his routine and the rules. He must be given clear boundaries so he knows what he can and cannot do.

V.D.

[103] In his first assessment of V.D. in February 2014, Dr. Fitzgerald reports that academically, V.D. is at least one year below grade level in core academic areas and based on her current profile, is vulnerable to having a learning disability. Intensive support is recommended for V.D.

[104] V.D. told Dr. Fitzgerald that her parents were always "yelling and screaming at each other" and that she would go into her room and put a pillow over her head. V.D. also said that her brother F.D. would also hurt her and she would have to find ways to keep away from him. V.D. told Dr. Fitzgerald that she does not want to return to her parents' care if there is fighting and hitting and she does not want to live with her brother F.D. who hits her and is mean to her.

[105] Dr. Fitzgerald writes that the results indicate behavioural problems for V.D. "due to impulsivity, aggression and oppositionality" and that there is a potential for an ADHD diagnosis. Dr. Fitzgerald writes, "While these behavioral patterns may very well be related to the extent of trauma and attachment disruption that she has experienced, they are also indicative of a failure to acquire higher-order executive functioning and a capacity for self-regulation, irregardless of aetiology. Therefore, her status needs to be very closely monitored."

[106] Dr. Fitzgerald also writes that V.D. requires a "safe, secure and stable home environment with caregivers who are empathetic and responsive to her needs for safety and protection" as V.D. reported being "fearful and apprehensive when living with her parents due to domestic violence and assaults by her older brother."

[107] Dr. Fitzgerald's second assessment of V.D. in April 2015 reports that there has been a remarkable improvement in her cognitive functioning and behaviour. In his April 13, 2015 assessment of V.D., Dr. Fitzgerald writes that V.D.'s gains in cognitive functioning from the time of her first assessment about one year earlier are significant. He writes,

"Overall, this is a remarkable improvement for this girl over a one-year period. Socially and emotionally, [V.D.] has made significant gains in her ability to regulate her emotions and behaviours. There do not appear to be indications of clinical levels of behavioral difficulties, mood dysregulation or problems with impulsivity or distractibility as had been noted at the time of her last assessment. She has a much greater capacity to regulate her emotions and behaviours. It appears that her ability to form a secure attachment with her foster mother has been beneficial in enabling her to manage her anxiety, and exert greater self-control and stabilize her mood. She will benefit from continuation of a stable, supportive and nurturing living environment with empathetic caregivers."

[108] V.D.'s foster mother describes her as a beautiful, energetic loving little girl. V.D. enjoys being busy and has a short attention span. She loves music and piano. V.D. craves attention and her self-esteem needs to be nourished as she can be self-deprecating. V.D. is very affectionate towards and protective of D.D.

D.D.

[109] In his first assessment of D.D. in April 2014, Dr. Fitzgerald reports that while D.D. does not seem to have a developmental disability, he should be viewed at risk for significant learning and developmental issues. Dr. Fitzgerald wrote that D.D. "requires intensive support in building his cognitive, communication, social and adaptive skills." Dr. Fitzgerald recommended speech and language therapy for D.D. Finally, like V.D., D.D. requires a stable home environment where he has the opportunity to build secure attachments with caregivers.

[110] D.D. was described as quiet but mischievous by his foster mother. She also described him as a "brilliant, very quick" child. She said it was very nice to see how much D.D. loves V.D. and looks up to her. D.D. was also described as being very musical.

3.5 The Competing Plans of Care

(a) The Society's Plan

[111] The society's plan is for the children to be made Crown wards without access by the parents for the purpose of adoption. V.D. and D.D.'s foster mother gave evidence that she did not plan to adopt the children but that the children could stay as long as they like. The children share a very close bond with their foster mother. V.D.'s wishes have consistently been to live with her foster mother, sometimes with her mother and sometimes with her mother and father but always with her foster mother.

[112] F.D.'s current placement said that F.D. is welcomed to stay there as long as their home meets his needs.

[113] It is the society's position that all three children are adoptable.

[114] The society supports sibling access.

(b) The Mother's Plan

[115] At trial the mother's evidence was of a plan that is different from the one set out in her Answer. The plan in her Answer is for the children to be returned to her care either with or without a six month supervision order. The children will reside with her in Toronto in her two bedroom apartment. The children will attend the local public school. The mother will have the support of the father, her best friend, the father's best friend and his wife, the father's aunt and uncle, and, the father's 21 year old daughter.

[116] In her Answer the mother states that she feels that this plan would be in the children's best interest because "it fosters their secure placement as a member of a large extended family. Further it ensures the continuity of the unique cultural heritage of the children. This plan is the least disruptive alternative available that is consistent with their best interests. I note, in particular, that [F.D.] has always had a very close relationship with his father and I know that he would be emotionally devastated to be permanently separated from him."

[117] In her evidence the mother presented an entirely different plan for the children if returned to her care. It is the mother's plan to move back to Trinidad with the children as soon as she can after her current criminal matter is dealt with. She plans to live with the father's aunt and uncle in Durham until she can obtain her own accommodations hopefully close to them.

[118] When asked when she would return to Trinidad the mother said, "Once I get the court's decision, I will leave within a couple of days." The mother did not give evidence explaining how her new plan would better meet the needs of the children than the plan set out in her Answer, considering that the plan in her Answer signed only four months earlier was described by the mother as being the least disruptive plan that is consistent with the children's best interest.

[119] The mother spoke about her mother and two sisters, one of whom she does not have contact with, who live in Trinidad. She also described the small community she would live in as a close knit community where everyone knows each other.

[120] She gave no other names of third party or community supports in Trinidad. The mother did not give evidence as to where the children would go to school or what services would be available for them in school. No one from Trinidad gave evidence at the trial.

[121] The mother's plan up until October 2015 was for the children to be returned to the parents together. In October 2015, the mother's plan was for the children to be returned to her care only and she would reside in Toronto. At trial her position was that the children should be returned to her care and they would immediately move to Trinidad.

[122] The mother's evidence is that she will comply with whatever the court orders regarding the children's contact with their father. She said that once they return to Trinidad the father will not be a part of their lives.

[123] The mother was asked by her lawyer how the court can expect her to comply with an order prohibiting access to the children by the father when she let the children communicate with their father during her visits when she was not supposed to. The mother said she would comply because, "That's in the best interests of the children and it's the only way I can have my children. If it's compliance, oh my, I can do that."

3.6 Positive Aspects of Mother's Plan

[124] The following are the positive aspects of the mother's plan:

(a) The children will remain in the care of their biological mother and have the opportunity to enjoy a relationship with their biological siblings;

(b) The children will have the opportunity to have relationships with their extended biological family;

(c) The children will be exposed to and enjoy aspects of their Trinidadian culture;

(d) The children will enjoy a clean home where their needs with respect to shelter, clothing and hygiene will be met;

(e) The mother loves her children;

(f) The children love their mother;

(g) The mother has exercised access to the children consistently since they were brought into care and the access is generally positive; and,

(h) The mother is willing to have some services provided to the children at school.

3.7 Analysis of the Mother's Plan

[125] In order for the court to find the mother's plan to be in the children's best interests the court has to find the following:

(a) The mother understands why the society brought the children into care, more specifically, that the society was concerned that her volatile and at times violent relationship with the father was having a negative impact on the children's emotional and psychological development;

(b) The mother understands that the children's behaviour and development were in fact negatively impacted by the chaotic home environment created by the parents' dysfunctional relationship;

(c) The mother has taken steps to genuinely address the society's concerns;

(d) The mother understands the children's current needs and, in the case of F.D., his significant needs, and how to meet them on a daily basis;

(e) The mother will cooperate with third parties in order to meet the needs of the children; and,

(f) The mother will comply with the court's orders.

[126] Regrettably, and despite the fact that at the date of trial the children had been in care for 25 months, the mother has taken no steps that would enable the court to find that the mother has accomplished what is expected of her as set out in paragraphs 125(a) to (f) above.

(a) Does the mother understand why the society brought the children into care, more specifically, that the society was concerned that her volatile and at times violent relationship with the father was having a negative impact on the children's emotional and psychological development?

[127] The short answer to this question is no. The mother does not consider her relationship with the father to be dysfunctional in any way. This is despite four calls to the police by the mother between January 11, 2011 and November 22, 2013. The mother said repeatedly in her evidence that her husband was not abusive and that she is not an abused woman. The mother gave evidence that the father is "a very good father" and a "very good husband" and he is her best friend.

[128] In her evidence the mother attempts to re-write history by denying having said most of what is contained in the October 26, 2013 police report and what the society claims she advised the worker after the assault occurred. Her belief is that the society and the police are both lying. Her explanations were often disjointed and difficult to follow and crucial portions of her evidence were contradicted by her own witnesses and sometimes by other portions of her evidence.

[129] The mother's evidence is that the father is a wonderful, caring, loving and giving husband and father. The uncontrollable and grossly offensive behaviour he showed time and time again throughout this proceeding is reserved only for the society and the court and no one else. The mother's evidence is that the father cannot control himself when it comes to the society. After seeing the father's appalling conduct first hand over 10 days of trial, this court finds it very hard to accept that the father is only unable to regulate his emotions when it comes to this case.

[130] In her evidence the mother justified the father's behaviour with the society and his conduct in court when she said, "He gets along fine with everyone, he jokes a lot, he's sarcastic, he a very nice guy. He's in a situation where he is being challenged so he is not himself and he thinks he is being treated unfair and being picked on and that is what he thinks is being done to him."

[131] The mother did not view the father's interactions with the society as harmful to the children despite the fact that it resulted in his access being terminated. Despite the children witnessing their father behaving outrageously during visits and astonishingly disrespectful and threatening to society staff, the mother places the blame for any negative impact on the children squarely on the society due to their decision to terminate the father's access.

[132] The mother was asked about the father's behaviour; specifically that she does not seem to take issue with his behaviour. Her response was "He's not like that with me." In response, the society pointed out to the mother that he is supporting her plan and his behavior throughout has been so egregious. The mother's reply to that was, "So because of his actions and behaviour and the circumstances you're going to judge him for that?"

[133] At no point in her evidence did the mother admonish the father for the way in which he interacted with the society; for the way he behaved in front of the children at his access; or, for the way he behaved during the 10 day trial.

[134] When asked about the impact of arguing in front of children, the mother said, "it depends on the manner it is done. Kids have to learn how to deal with situations and control their emotions and thoughts when in confrontation". It was revealing to the court that the mother felt that the children have to learn how to control their emotions when confronted but she is forgiving and accepting of the father being unable to control his emotions when dealing with the society or in the courtroom during the trial.

[135] There is no reliable evidence for the court to find that the mother understands why the children were brought into care.

Mother's Credibility

[136] As it is the mother's position that the police and society workers have lied about what the mother reported to them and that the police, society and school officials are all conspiring against her, it is necessary for the court to assess the mother's credibility in order to determine whose evidence is reliable.

[137] As there are numerous instances of the mother giving contradictory evidence, being contradicted by her own witnesses and the documentary evidence, the court finds that the mother has not been truthful and that her evidence is not reliable.

[138] The following are examples of the mother's evidence that collectively have seriously undermined her credibility:

(a) The mother gave evidence that she has been staying at her friend's house in Toronto since the commencement of the trial despite the terms of her recognizance, which requires her to live with the paternal uncle and aunt (D.C. and C.C.). She said she has only stayed at her friend's home for the past two weeks, whereas C.C. said she has not slept at their house in over a month. The mother's evidence is that C.C. is mistaken;

(b) The mother gave evidence that her "best friend", C.T. heard an FSW call the mother a "nigger" on two occasions while C.T. gave evidence of only one occasion when walking with the mother near their apartment building. The mother's and C.T.'s evidence on this issue seem fabricated as C.T. claims that she and the mother both heard the FSW say the word and that the mother told her to just ignore it; the mother's evidence is that only C.T. heard it and that C.T. is mistaken when she gave evidence under oath that the mother also heard what the worker said;

(c) The mother gave evidence that she has no recollection of calling the police in November 2013, after the father was charged with assaulting her on October 26, 2013, to advise that the father was violating the terms of his bail by contacting her;

(d) The mother's evidence is that when she called the police in October 2013 she was sleep deprived and on medication for palpitations and her thyroid that either made her "drowsy or wired". She said when the father woke her up "I just lost it as I had no sleep in me." When asked what she told the police, the mother said, "I can't remember my exact words from what I recall I told them that I told him to get out of the house and he pushed me out of the way and left. They asked what happened. They asked if I am afraid of him. I said no, it's the first time we had an argument and I was new to Canada and I wasn't thinking and everything was swirling around."

In cross examination the mother's memory of the October 2013 incident became a lot clearer. The mother was reminded that the police report says she told police that her husband threatened to kill her in front of the children if she called the police. In response the mother said. "That is definitely false as the children were not there. There were no kids there as the two older children were with [C.T.]. When the police arrived the kids came downstairs. I remembered that day perfect."

(e) The mother denies that the father has ever disciplined the children inappropriately despite having said the opposite to the society and the police. In January 2011 when she came home to V.D. crying and thought the father had hurt V.D., she called the police. When questioned about this incident, the mother gave evidence that she over reacted when she called the police as V.D. was over reacting and her husband had done nothing wrong. Below is, in part, what the mother reported to the police in January 2011 according to police records:

On Sunday January 9th 2011 at 1502hrs, police received a radio call for a Domestic….Information received was that the complainant [mother] advised that her husband [father] was hitting their children. [Mother] was concerned about the well being of the children and called police.

Police arrived on the scene and found [mother] in the lobby. Police spoke with [mother] regarding the child abuse prior to attending the apartment. [The mother] advised that her children are constantly being assaulted by [father]. [Mother] advised that [father] will constantly assault the children at home then the children will go to school and tell their teachers about the assaults. [Mother] advised that [father] will hit the children to the point of them crying, and will find injuries of redness to minor swelling.

The society gave evidence that on October 27, 2010, the mother reported to them that the father "believes in physical discipline". The society's evidence is that on January 11, 2011, the mother told the society that "she had called the police to her home after [the father] spanked [V.D.] despite her cautioning him not to do so because of her age and size." The society also gave evidence that on October 19, 2011, the mother told the society that the father spanked V.D. after she did not do what she was told by her parents.

(f) The mother violated court orders in this proceeding and peace bonds resulting from criminal charges against her;

(g) The mother only attended 2 out of 6 parenting sessions at Aisling Discoveries to help her and the father manage F.D.'s behaviour and provided an explanation for not completing the program which is not supported by the written report from Aisling Discoveries. In fact, the written report contradicts the mother's evidence. When the contradiction was brought to her attention, the mother claimed that she relied on a verbal conversation with a therapist at Aisling Discoveries so what was said is not in the report entered as evidence at the trial;

(h) The mother gave evidence that in September 2015, the police were called to her home after she locked the father out on the balcony of their home because he "wouldn't shut up". She said the father called the police because it was cold outside and she would not let him inside. When cross examined by the father, the mother acknowledged that she had taken the father's lap top computer because "I didn't want you posting stuff on Facebook." The police report provides an entirely different version of what occurred on September 15, 2015. The synopsis reads as follows:

"On September 5th, 2015 at approximately 8:53 p.m., [father] and [mother] entered into an argument as [father] suspected that [mother] was being unfaithful. The argument escalated and [father] proceeded to take [mother's] cell phone and Permanent Residence card. [Mother], in an attempt to reclaim her property, proceeded to assault [father] with her hands. [Father] suffered scratches to his chest and neck and a bump to his head. [Father] then left the apartment with [mother's] property and attended the Tim Horton's across the street to call police to report the assault. Subsequently, a few minutes later [mother] called the police from a pay phone to report that [father] had taken her phone and residency card."

The mother was charged with assault and failure to keep the peace in accordance with an existing peace bond and the father was charged with theft.

The society produced copies of posts from the father's Facebook page from the same day and the day before the police were called in which he complains about the mother's extra marital affairs and her failure to contribute financially to the family for 12 years. He also describes incidents where the mother poured tea over his head, hit him in the head with a tea cup; and, threatened to poison him; and,

(i) When the society produced pictures of the children from the mother's Facebook account and posts about her involvement with the society, she first denied having a Facebook account and then said that she does not use the account from which the pictures were taken so "someone is fabricating an account to make it look like mine".

[139] The society gave evidence that on October 6, 2015, when there was a non-contact order in place between the parents and after the mother had advised the society that she was now planning without the father and would seek a restraining order against him, the FSW saw the parents eating together in a food court at the mall across the street from the court. Upon their return to court after lunch, the FSW told the mother that she was confused as to why she had lunch with the father if she is planning to seek a restraining order against him. Initially the mother denied having lunch with the father and then said that there were no seats and she was only there a few minutes. The FSW's evidence is that the food court was half empty and the parents were there together for over 20 minutes. This evidence was not contested by the mother and further damaged her credibility.

[140] The mother gave evidence that the following people have been untruthful in order to keep her children from her:

a. The police lied in October 2013 when they reported she told them that the father put his hands on her neck and pulled her across the room and threatened to kill her in front of the children resulting in her calling the police;

b. The police lied in January 2016 when they advised that they were checking in on the mother as a result of a call they received from her sister in Trinidad;

c. The society has repeatedly lied about everything including whether they assessed the maternal grandmother's plan in Trinidad through ISS;

d. The foster mother lied about D.D. being fine when he was brought to the visit on July 16, 2014 when the mother alleged he was bleeding from his penis;

e. The society did not disclose that D.D. had a urinary tract infection causing him to bleed from his penis. The mother produced no documentary evidence to substantiate her claim that D.D. had a urinary tract infection or bled from his penis and society records do not support the mother's claim; and,

f. Dr. Fitzgerald's second psychological assessment of F.D. contained information he claims mother reported to him but which she says she did not say to him when they met prior to F.D.'s second assessment.

(b) Does the mother understand that the children's behaviour and development were in fact negatively impacted by the chaotic home environment created by the parents' dysfunctional relationship?

[141] The mother does not accept that her relationship with the father has had a negative impact on the children. The mother's evidence demonstrated that she has no understanding of how the father's inappropriate and offensive behaviour as well as the manner in which they interacted with each other in front of the children can negatively impact the children.

[142] When asked what her understanding is of the society's concerns around domestic violence, the mother said, "They told me that they don't like the way my husband deals with situations and they think that he is violent, which I don't, and [pause] ah, something to do with the kids." The mother's answer demonstrated with clarity for the court that she has no appreciation of the society's concerns about the effects of the father's behaviour on the children.

[143] To her credit, the mother did give evidence that if what was in the police report dated October 26, 2013 was true, there would be reason to be concerned and she would have taken her children and left her husband. She acknowledged that what was described in the police report is domestic abuse and that it would be upsetting for the children to witness what was described.

[144] The mother claims that the children were not exposed to regular arguing or conflict between her and their father and when they did argue it did not affect the children who just ignored it and went on about their lives.

[145] She could not, for example, see the possibility of any direct correlation between the children's unmanageable behaviour in school before they were apprehended and the behaviours both parents displayed in front of the children towards each other and towards third parties.

[146] Dr. Fitzgerald met with the mother prior to his second psychological assessment of F.D. in April 2015. F.D. presented a year after the first assessment as a very troubled child who was experiencing "significant social, cognitive and behavioral difficulties." Despite intensive support at home and at school, F.D.'s behaviours seemed to be worsening. He was engaging in self-harming behaviours, physical aggression towards people at home and school and, he was damaging property.

[147] At the time of the second assessment in April 2015, F.D. was having regular access to his mother but had not had physical contact with his father since August 2014.

[148] The mother gave evidence that she did not contact Dr. Fitzgerald to discuss the psychological reports with him. Based on the mother's evidence it was unclear if she had even read the reports.

[149] It is disconcerting that the mother did not react at all how one would hope she would to Dr. Fitzgerald's initial psychological assessments of her children. It is unfortunate that receipt of the first reports did not trigger an awakening in the mother, one that would cause her to reconsider the strength and appropriateness of her relationship with the father. The psychological reports should have been what the mother needed to reassess her choices in relation to the father and begin working towards making healthier choices for herself and child focused decisions for her children. Sadly, this did not happen.

[150] Listening to the parents give evidence about the children, it was clear that they did not consider their children to have any special needs or that they were struggling emotionally or developmentally. To the parents the children were just fine.

[151] The mother would have the court believe that any issues around the children's development or behaviour are directly related to their being taken from their parents by the society and brought into care. As Dr. Fitzgerald conducted psychological assessments of the children within a month of coming into care, the mother's explanation for any issues identified in the reports is not plausible.

[152] The mother's theory on this issue is significantly weakened by her evidence of the serious issues F.D. had in Trinidad before coming to Canada; the serious issues the school had managing F.D.'s behaviour when he began school in Canada; and, the significant difficulties the school had managing V.D.'s behaviour such that the mother was called to the school daily. The mother gave detailed evidence of all of the challenges the children had prior to being brought into care but did not identify any of the issues as serious.

[153] Once again, receipt of Dr. Fitzgerald's second psychological assessment of the children did not act as an eye opener for the mother. This is especially tragic in light of the consideration Dr. Fitzgerald gave to F.D. suffering from PTSD. The mother's failure to react in any way to the second psychological assessment of F.D. is poignant. She appears incapable of looking critically at herself, the father or their relationship even in the face of such compelling assessments of her children. The mother was not able to consider why V.D. and D.D. were thriving in care or why there was enormous positive changes reported in their second psychological assessments a year after being brought into care.

[154] The court finds that the mother has not acquired any understanding of how her children's behaviour and development were negatively impacted by the chaotic home environment created by the parents' dysfunctional relationship. There is no evidence to suggest that the mother can or will change in this regard.

(c) Has the mother taken steps to genuinely address the society's protection concerns?

[155] The mother is unable to address the society's protection concerns as she believes the concerns are based on false or inaccurate information. The mother cannot address concerns that, in her opinion, do not exist. From the mother's perspective, the children were doing just fine until the society became involved in their lives. Any problems or difficulties the children faced while in care were a direct result of being taken away from their parents.

(d) Does the Mother understand the children's current needs and, in the case of F.D., his significant needs, and how to meet them on a daily basis?

[156] The mother gave evidence of F.D.'s behaviour in Trinidad before coming to Canada. She said that F.D. did not socialize with children his age as he preferred to be with adults. He did not like kindergarten because there was no one there he knew and he would leave on his own and walk to his grandmother's home. His grandmother would take him back to school and he would sit in her lap in the classroom. The mother said that in Trinidad no one tried to change F.D., they just accepted him for who he was, implying that in Canada people are trying to change F.D.

[157] The evidence the mother gave about F.D.'s behaviour in Trinidad is concerning as it demonstrates that the mother is unable to recognize when she may need to consult professionals to help address issues facing her children. If a child refuses to stay in school and leaves on his own, one would expect a parent to recognize this as an issue that needs their attention and that the child may need help from a third party.

[158] The mother gave evidence that F.D. is like his father, "if he's right he's gonna get upset if you try to make him believe he is wrong when he is right. If you provoke him he is going to react." The mother does not appreciate the way in which the father and F.D. react is the problem, not necessarily that they react.

[159] The mother did not follow up with the referral to the Shonniker Clinic. She contacted Aisling Discoveries a year after the referral was made and registered for a program to assist her and the father in managing F.D.'s behaviours. The parents only attended two of the six General Parenting Group sessions claiming that it was not helping F.D. and that she enrolled F.D. in piano lessons after being told to put him in an extracurricular activity.

[160] The mother's evidence on this issue was confounding as the purpose of attending Aisling Discoveries was for the parents to learn methods to effectively manage their children's behaviours. The Initial Treatment/End of Service Report dated January 2, 2012, provides a summary of the information given to the therapist by the mother. The mother reported that she would like help learning how to manage F.D.'s behaviours and that she is looking for guidance regarding parenting techniques. The therapist met with the mother and all three children and wrote in her report,

"It was quite apparent that [mother] is unsure how to manage their behaviours. It was a difficult session with the children present, causing the session to end early. They were running around the room, not able to sit still, yelling, and hitting each other. [Mother] indicated that these difficult to manage behaviours are on going and stressful."

[161] The parents were referred to the General Parenting Group with the expectation that once that was complete they would either attend the behavioural management program or start family counselling. The parents attended two of the 6 sessions of the General Parenting Group and had no further contact with Aisling Discoveries.

[162] The mother's evidence that she contacted Aisling Discoveries after receiving the referral "just to be cooperative" shed light on what is likely the real reason for her only attending two sessions.

[163] When the school wanted F.D. to have a psychological assessment in order to ensure that they were putting their best foot forward in meeting his needs, the father would not cooperate to allow the assessment and refused to sign consent forms. The mother's evidence was that the parents went to the meeting with the school officials and they were asked to sign a consent form permitting the school to share information about F.D. Her evidence was that the father agreed to F.D. receiving help in the classroom but not to sharing information for referrals. She said, "We just wanted them to do what they could for him in the school because he was doing well with the speech and language. He was doing well."

[164] Once again, the mother contradicted her own evidence when she went on to say that she was home schooling F.D. for the last 8 months as he could not tolerate being in school for more than 2-2.5 hours as "anything longer than that he would start a breakdown or if he wasn't being cooperative the school would call me and I would pick him up." Clearly F.D. was not doing well.

[165] A review of the documents provided by the school demonstrates that the school was attempting to arrange for professional support services for F.D. which required permission from the parents for the professional support services staff to review F.D.'s Ontario Student Record.

[166] The mother's evidence on this issue was nonsensical. The mother was unable to acknowledge that the father's outright refusal to cooperate with the school was possibly harmful to their son. She was unable to advocate for her son when it meant disagreeing with her husband. She capitulated to his demands and instead of acknowledging this she downplayed and justified his conduct which demonstrates her inability to meet F.D.'s needs.

[167] With respect to V.D., when she started school, the mother was being called constantly as V.D. was trying to run out of the school and she had to pick V.D. up early many days as the school could not manage V.D.'s behaviour. Once again, the mother did not identify V.D.'s behaviour as problematic and she did not seek out professional third party assistance.

[168] The mother was provided with Dr. Fitzgerald's psychological assessments of her children through her lawyer. She did not meet with Dr. Fitzgerald to discuss any of the reports. She did meet with Dr. Fitzgerald prior to the second assessment of F.D. in April 2015.

[169] The mother was provided with Dr. Patel's psychiatric assessment of F.D. through her lawyer. She did not contact Dr. Patel to discuss the report.

[170] The children's behaviour as described by the mother was not appropriate or typical of all children their age and the parents should have recognized this and seek out the appropriate assistance.

[171] When asked what F.D.'s current needs are, the mother said, "I don't know because I haven't been with him for two years. All I know is what the experts say." She was then asked what she believed F.D.'s needs are and she said, "He needs a lot of one on one" and that "he is very slow in everything".

[172] The mother made no effort to educate herself about F.D.'s needs. She did not meet with Dr. Fitzgerald after the second assessment to discuss the report; despite being invited to do so, she would not meet with the society's doctor to discuss the diagnosis of ADHD and medications that were being proposed for F.D.; she did not meet with her own doctor or F.D's doctor prior to going into care to discuss the ADHD diagnosis and medication; and, she did not ask to meet with Dr. Patel after he completed a psychiatric assessment of F.D. Despite the parents' evidence that the father earns an annual income in excess of $100,000.00, no motion was brought for an assessment, psychological or psychiatric, by a doctor of the parents' choosing in order to refute Dr. Fitzgerald's or Dr. Patel's opinions.

[173] Without doing anything to appropriately educate herself, the mother told the society she does not agree to F.D. being prescribed medication for ADHD.

[174] In her evidence the mother said that she thought F.D. was mildly autistic. When asked to explain further, the mother said, "I've done a lot of research about kids and behaviour problems like [F.D.] and because they are a little different and they get picked on at school and they over diagnose and under treat and abuse and neglect them because they are special and the only person who can detect that is their mother. He is not ADHD he is mildly autistic. At the age of 2.5 he took a clock apart and put it back together."

[175] When asked if she believes that F.D. has special needs the mother said,

"Yes, he will have special needs after I get him back after this yes. I visit the kids and [F.D.] out of the three has demonstrated that he is frustrated and very angry and very angry with me. The other kids are satisfied being with Ms. Paula but [F.D.]….he was like my hip broach because he was pinned on my hip 24/7. We have a unique relationship and nobody can understand him but me. Only I understand what he is thinking and what he is going to say. He has special needs [because] I moved him from place to place and before he settled in, the school picked on him and then the Children's Aid Society got involved. He's moved around a lot and I don't think that is healthy for a child and he has been through a lot and the only person who can understand that is me because he is part of me."

[176] When asked what steps she would take to meet F.D.'s special needs, the mother responded, "Whatever steps are necessary is what I'll do. Anything it takes." She could not provide a more specific answer as she either does not accept that F.D. has special needs or she has no understanding of his needs such that she could provide a more detailed answer.

[177] When asked by the father if F.D. needed "special treatment" before the society's involvement, the mother said, "Not really. He just had behavioural problems; he's just a hyper kid like his father."

[178] The mother's evidence around F.D.'s needs became very confusing when she explained that F.D.'s behavioural problems began in Trinidad as a result of his father leaving and coming to Canada. The mother gave evidence that "when we came to Canada to be with his dad his [F.D.'s] behaviour improved significantly, he was a better child." It was hard to reconcile these statements with the evidence the mother gave only moments earlier that she home schooled F.D. for 8 months in the 2013-2014 school year as F.D. could not tolerate being at school for very long.

[179] Throughout her evidence, the mother minimized F.D.'s needs and challenges. She said only she knows F.D. and only she can give him what he needs. These comments were of significant concern for the court. They demonstrated that the mother has no understanding of the challenges the children faced when they went into care and how hard they have been working to address them. There was no introspection by the mother who could have asked if she did anything or in any way contributed to stunting her children's growth emotionally and developmentally. Had she done that, she might have been able to take a real positive turn and make changes that could have resulted in her being able to demonstrate that she can care for her children and that she understands how her behaviour and her relationship with the father may have harmed her children.

[180] Neither parent has any working knowledge or understanding of the children's needs at the time of apprehension or currently. They appear completely unable to recognize when there is a need to consult doctors or other professionals in order to address issues or concerns. They minimize behaviours that should concern them. The court finds that as the mother does not understand the children's current needs she would be unable to meet their needs if returned to her care.

Are the Parents Really Separated?

[181] In order for the court to find the mother's plan to be in the children's best interests the evidence strongly supports the society's position that there has to be changes not only to the parenting of the children but to the parents' relationship. The mother's evidence is that in order to address the society's concerns she has separated from the father. Separating from the father would be a child focused decision on the mother's part and the first step towards addressing the serious concerns raised by the society. The mother argues that she is doing what the society wanted her to do. The difficulty for the society and now the court is whether the mother's actions are genuine.

[182] The mother's position until October 2015 was that the society had no basis for apprehending the children and that the children should be returned to the care of both parents. In October 2015, a month before the trial would possibly proceed as a back-up trial, the mother served and filed an Amended Answer seeking an order returning the children to her care and presents the father as a person who supports her plan.

[183] The mother's evidence at trial is inconsistent with the statements in her Amended Answer and Plan of Care. On page 5 of the mother's Answer at paragraph 4 she states:

"I will address separately the issue of the abuse I have suffered at the hands of the Respondent Father and the fact that it took me some time to realize I needed to leave him permanently, but I take issue with the fact that together we have disciplined our children in a harmful way or that we put the children in the way of physical risk."

[184] She contradicts herself at trial by saying very clearly that the father is a very good husband and that she was not an abused spouse.

[185] When asked if she was permanently separated from her husband, the mother said, "I cannot say at this time, I don't know what the future holds." To the society the father is the problem "but he's not a problem to me."

[186] When asked if she planned to reconcile with the father, the mother said, "Presently no, but I can't speak for the future."

[187] The mother's best friend, C.T. seemed to be unaware that the parents had separated. When asked about the parents' current relationship she said, "Since the kids were apprehended they are not happy and this has put a damper on their marriage because the kids are not around so that foundation is missing." She said that if the children were returned to their care, "It would be a great relationship and their foundation would be back and they would be a happy family again."

[188] The court notes that each witness gave a different description of the current status of the parents' relationship. The father's best friend's wife, L.F. said, "I think they would like to be together but they can't because of what the system has done. He is doing everything he can to abide by the rules to get his family back. Eventually you guys will see that the system has done this family wrong." When asked if they will be a family again when they can, L.F. said, "Once you guys say it is ok, yes."

[189] When the father's best friend, B.F. was asked whether the parents were together or not, he said, "He told me that they are supposed to be apart."

[190] The mother provided the following information while being cross examined by the father,

Question: Do you understand the meaning of property?

Answer: Yes.

Question: Am I your property and are you my property?

Answer: Yes.

Question: Until death do us part?

Answer: Yes.

[191] The court does not believe that the parties are separated or if they are that they will remain separated for long.

(e) Will the mother cooperate with third parties in order to meet the needs of the children?

[192] As the mother has denied or minimized the children's issues, it is unlikely that she will seek out third party assistance. If the court is wrong, the evidence overwhelmingly supports a conclusion that the mother will only cooperate with third parties who she agrees with. She did not cooperate with the society, the school, Aisling Discovery, the society's doctor, Dr. Fitzgerald or Dr. Patel to meet the needs of the children.

[193] The mother has also demonstrated that she does not listen to third parties before forming her own opinion. She does not make informed decisions. She is incapable of taking advice from third parties as she knows what is best for her children.

(f) Will the Mother comply with the court's orders?

[194] The court finds that the mother is not likely to comply with the court's orders for the following reasons:

(a) She gave evidence that she would violate a court order requiring her to immunize her children if she felt it was harmful to their health;

(b) She violated the March 25, 2015 court order not to allow the children to communicate with the father; not to bring her phone to visits; and, not to discuss the court case or the possibility of the children going home with the children;

(c) She violated the terms of her most recent recognizance requiring her to live with the paternal aunt and uncle by residing at her friend's home for over a month;

(d) She violated a keep the peace order when she locked the father on her balcony and assaulted him which resulting in criminal charges;

(e) She violated bail conditions not to have contact with the father; and,

(f) The mother gave evidence that she believes that the children are her property. The society's evidence is that the mother told them several times that the children are her property and that they must return her property immediately. As she believes that the children are her "property", she is not likely to respect a court order putting any restriction or limits on her "property".

The Mother's Supports

[195] The mother identifies her supports as the father, her best friend (C.T.), the father's best friend and his wife (B.F. and L.F.), the father's daughter (K.P.) and the father's aunt and uncle (C.C. and D.C.). The court has very serious concerns about the mother's supports.

[196] As the mother plans to move to Trinidad with or without the children, the mother's supports in Canada will provide no support at all. Even if the mother were to remain in Canada with the children, the mother's supports know very little about the children, what is going on in her life and absolutely nothing about the reasons for the society's involvement with this family.

[197] The father's daughter, K.P. lives in the Nappanee area and has never met the children. She lives with her young daughter and her mother who has health issues and who relies on K.P. for her care. She does not know why the society is involved with her father and her siblings. She is not a realistic support for the mother.

[198] The father's aunt and uncle who are currently the sureties for the mother both gave evidence. They acknowledge seeing the children a few times a year at family gatherings. They know very little about the children and nothing about any of their current needs. They also know very little about the mother's plan or her intention to move to Trinidad. The aunt and uncle have very little information as to why the society apprehended the children and why they remain in care.

[199] The aunt and uncle were involved in the father's last visit with the children on August 6, 2014. It was at this visit that the father's behaviour was particularly threatening and concerning. He was completely out of control and unable to manage his emotions in front of F.D.

[200] From the moment the father walked into the visiting room with his aunt and uncle where F.D. was waiting, he began swearing and using vulgar and inappropriate language in his conversation with the aunt and uncle about his experience with the society. For most of the visit the adults talked about the society and their involvement with the family while F.D. played a video game. During this visit the father told F.D. that he will be going home soon. The father then began to question F.D. as to whether anyone is touching him inappropriately. The father's language was extremely offensive and threatening and he continually insulted society workers. The society's evidence is that they felt the aunt and uncle inflamed the situation by agreeing with the father and asking him questions that encouraged the anger he was displaying towards the society in front of F.D. rather than trying to diffuse the situation.

[201] It was also concerning that the paternal aunt and uncle knew that the mother was required to live with them as a condition of her recognizance but knowingly allowed her to stay with her friend in Toronto for over a month as they felt that did not amount to a change of residence.

[202] In light of the society's concerns about the paternal aunt and uncle, their lack of knowledge and information about the children and their willingness to allow the mother to violate the terms of her recognizance, they are not supports who instill confidence in the court that they would assist in reducing the risk of harm to these children if returned to their mother's care.

[203] The father's best friend and his wife have known the father for many years but rarely see the children and know very little about them or their needs. Like the paternal aunt and uncle, they see the children at special occasions and events. They had not been out with the husband and wife together for over a year. L.F. admitted that she has not seen or spoken to the mother since January 2014.

[204] None of the mother's supports knew why the society was involved with the family, what the concerns are or how the children had been affected by the parents' relationship but each and every one of them said that the allegations against the father cannot be true and that he is a happy, easy going man who is very frustrated and wants his family back.

[205] Little to no weight was given to the evidence of the mother's best friend, C.T. In addition to the concerns with her evidence cited above, she failed to disclose in her evidence that the mother had been living with her for some time in violation of her recognizance of bail; she gave evidence that the mother and her were planning to rent a house in Toronto when the mother's evidence is that she plans to move back to Trinidad; and, she gave evidence that the mother had not worked outside the home for approximately a year to a year and a half when she had been working as recently as January 2016.

[206] Each of the mother's supports gave similar evidence excusing the father's behaviour with the society and in court as justifiable in the situation. Without having any knowledge as to why the children were apprehended, each of the mother's supports gave evidence that the parents had been wronged by the society and the system and that the children should never have been taken from their parents.

[207] None of the mother's supports other than the paternal uncle and aunt had seen the children since they went into care and no visits were requested by them.

[208] None of the mother's supports gave the court any sense that they would be able to assist the mother in protecting the children from the harm they have suffered as a result of their parents' relationship and the father's combative behaviour for the simple reason that they have no knowledge of the dynamics of the parents' relationship and the effects their behaviour and interactions have had on the children. What little they do know about the parents' conduct following the apprehension of their children, they justify as conduct one would expect from upset and frustrated parents whose children were wrongly apprehended by the society.

Conclusion

[209] The mother's plan does not address the society's or the court's concerns. As the mother has never accepted that there were legitimate protections concerns that required her cooperation to address, nothing has changed in her ability to meet the needs of these children and protect them from harm since they were first brought into care on January 13, 2014.

[210] When the children came into care all three displayed significant emotional and behavioural difficulties. F.D. has significant special needs and he requires a caregiver not only able to recognize those needs but one who is able and willing to take action to ensure that those needs are being met. The mother has not acquired insight into why her children were brought into care or made the changes she needed to make to her life to allow the court to entrust her with their care. Based on the mother's conduct over the past two years, the court finds that she is unable to sufficiently meet her children's needs.

[211] As the mother has shown no improvement in her ability to meet her children's needs and demonstrates no insight into how her behaviour and choices have impacted her children physically, emotionally and developmentally, the mother cannot be given care of the children without a supervision order. The mother did not work with the society or any professionals in any meaningful way over the last two years and in fact she was deceitful with the society. She basically told them what she thought they wanted to hear whether it was true or not. The mother also plans to move back to Trinidad so a supervision order would have no teeth at all in providing any level of protection for these children.

Part Four

4.1 Conclusion With Respect to Disposition

[212] In accordance with subsection 37(3) of the Act, the court finds that:

(a) The society's plan will better meet the children's physical, mental and emotional needs.

(b) The society's plan will better meet the children's physical, mental and emotional level of development.

(c) The society's plan will better meet the children's needs for continuity and a stable place in a family through adoption.

(d) The risk of placing the children with their mother is unacceptably high.

(e) The society's plan will better address the children's needs than the mother's plan.

(f) This case cannot be delayed any longer and the children should receive a permanent home as soon as possible. It is in the children's best interests that this is in an adoptive home.

[213] The least disruptive disposition for these children and one that is consistent with their best interests is to make them Crown wards.

4.2 Access by the Parents to the Children

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

59(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).

[215] The onus to rebut the presumption against access to a Crown ward is on the parents. See Children's Aid Society of Toronto v. Dora P. and Raymond L., 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075, 2005 CarswellOnt 4579 (Ont. C.A.).

[216] The parents have the onus of establishing both portions of the test in subsection 59(2.1) of the Act. This is a very difficult test for them to meet. Where a Crown wardship order has been made, there is no obligation on the society to prove that the child is adoptable, let alone that there is a prospective adoptive family. See Children's Aid Society of Niagara Region v. J.C., S.B. and R.R., 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L. (6th) 40, [2007] O.J. No. 1058, 2007 CarswellOnt 1680 (Ont. Div. Ct.).

[217] Section 141.1 of the Act provides that, before a society can place a child for adoption, any outstanding order of access to the child must first be terminated. An adoption placement cannot be made if there is an outstanding order of access.

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

[219] The meaning of the phrase "beneficial and meaningful" was examined by Justice Joseph W. Quinn in Children's Aid Society of Niagara Region v. M.J., K.S. and S.S., 4 R.F.L.(6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634, 2004 CarswellOnt 2800 (Ont. Fam. Ct.), where he said:

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

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

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

[220] In Children's Aid Society of Toronto v. M.A. and C.M., 145 A.C.W.S. (3d) 276, [2006] O.J. No. 254, 2006 CarswellOnt 328 (Ont. S.C.), the court found that, even though the access visits were generally enjoyable for the child, it was open to the trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family.

[221] In Children's Aid Society of Toronto v. Tracy L. and Evonne B., 2012 ONCJ 369, Justice Perkins described the two-part test as a gateway. He wrote in paragraphs [29] and [30] of his decision as follows:

[29] Section 59(2.1)(b) operates even if there is no immediate prospect of an adoption: "A court shall not make or vary an access order . . . unless the court is satisfied that . . . access will not impair the child's future opportunities for adoption" (emphasis added). How much stronger still must the presumption be if, as in this case, there is evidence that there is an immediate, existing placement ready to adopt and there are two other placements waiting in the wings?

[30] Note as well that the focus of section 59(2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59(2.1) that the wider best interests test of section 37(3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to a parent's care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist, either because the child's wishes to return to their care are so overwhelming that the child would not consent to a placement or because the child's special needs are so extreme that an adoption is not a realistic possibility. But that is far from this case, on the evidence.

[222] In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.

[223] Knowing one's roots can be an important part of a child's development. If a child can maintain a connection with these roots without jeopardizing the security of a permanent adoptive placement, that is an option that should be considered. See: Children's Aid Society of Toronto v. M.M. [2012] O.J. No. 3240 (OCJ).

[224] Justice Stanley Sherr recently summarized the law with respect to the second part of the test, whether an order for access would impair a child's future opportunity to be adopted, in paragraphs 150 to 170 of The Children's Aid Society of Toronto v. A.F. and A.K. 2015 ONCA 450, [2015] O.J. No. 3236 as follows:

[159] Justice Murray reviewed the law concerning the second branch of the test – impairment of the child's opportunity for adoption in Children's Aid Society of Toronto v. C.J. [2014] ONCJ 221, in paragraphs 168-170 as follows:

[168] With respect to the second prong of the test, until recent amendments to the Act it was virtually impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption, as the Act did not allow adoption placement if there was an outstanding access order. Section 141.1 of the Act now allows a Society to place a Crown ward who is the subject of an access order for adoption. Once notice of a society's intent to place a child for adoption is given, then any person with a right of access may apply for an openness order.

[169] These amendments did not change the provisions of section 59(2.1). A person seeking access to a Crown ward must still establish that not just that the order will not prevent an adoption, but that it will not "diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption". Catholic Children's Aid Society of Hamilton v. L.S., (2011) 2011 ONSC 5850, O.J. 4512 (S.C.).

[170] However, it has been recognized that the amendments allowing the possibility of an openness order for an adoptive child do affect the analysis to be conducted on the second prong of the 59(2.1) in some respects, in that a court does not have to choose at this stage between adoption and some contact between a parent and biological family. Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087. A court asked to make an access order for a Crown ward will be aware that such an order will open the door to an openness application when a society proceeds with its plan for adoption. Native Child and Family Services, v. J.E.G., 2014 ONCJ 109. The possibility of that litigation and such an order may restrict a child's opportunities for adoption.

[160] The phrase "impair the child's future opportunity for adoption" means more than just impairing a child's opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717.

[161] A child can now be placed for adoption when there is an existing access order.

[162] Sections 145.1.1 and 145.1.2 of the Act set out the procedure to follow when a Children's Aid Society wishes to terminate an existing access order for the purpose of an adoption. Any person who is the holder of an access order shall be served with a Notice of Intention to Place for adoption. This person then has 30 days to bring an openness application. Pursuant to subsection 145.1.2(6) of the Act the court may make an openness order if it is satisfied that such an order is in the best interests of the child and the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to a child.

[163] While theoretically the child can be placed for adoption while an openness application is ongoing, the reality is that most adoptive applicants will first want to know what openness order will be made before proceeding.

[164] The case law has established that there are qualitative differences in the amount of contact a party will have with the child before and after a Crown wardship order is made, and then again after a child is placed for adoption and an openness order is made. Justice Penny Jones discussed these differences in paragraphs 81 and 82 of Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109, as follows:

It is well settled that an access order is qualitatively different after a crown wardship order from an access order before Crown wardship. In this regard, I agree with the comments made by Clay, J. in para 90 of his decision, Children's Aid Society of the Region of Peel v. A.R. [2013] O.J. No. 2969 (OCJ) when he wrote:

81. The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother's care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

82. Similarly, I accept the proposition that an access order post Crown wardship is qualitatively different than a contact order post adoption. Section 136 of the Act defines "Openness order" as follows:

"openness order" means an order made by a court in accordance with this Act for the purposes of facilitating communication or maintaining a relationship between the child and,

(a) a birth parent, birth sibling or birth relative of the child,

(b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child's extended family or community, or

(c) (applicable to Indian or native children as defined by the Act)

83. Openness allows for a form of contact by the biological parent or member of the biological family (or other person who enjoyed a significant emotional tie with the child) post adoption. After an adoption order is made, the parent-child relationship that previously existed between the child and her biological parents and which was terminated by the Crown wardship order becomes vested in the adoptive parents. Thus, it is not the parent-child aspect of the relationship that is being continued post adoption by way of an openness order. See: Re S.M. 2009 ONCJ 317, [2009] O.J. No. 2907 a decision of Katarynych, J.

[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. F.N. [This court reviewed many of these factors in paragraph 149 of Catholic Children's Aid Society of Toronto v. C.C., [2015] O.J. No. 3139 (OCJ). Several of these factors were also recently reviewed by Justice Penny Jones in Children's Aid Society of Toronto v. K.S., 2015 ONCJ 635.] 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

4.3 Should the Mother be Granted Access to the Children?

Is the mother's relationship with the children beneficial and meaningful to the children?

[225] The evidence of the mother, the OCL and the society is that the children enjoy their visits with their mother. There were some concerns about the mother's ability to manage and engage all three children during the visits but generally the visits are considered to be positive.

[226] There was concerning evidence that after the father's access was terminated by the court, the mother facilitated contact between the children and the father during her visits despite the society's requests that she refrain from facilitating such contact as it was causing F.D. significant stress and anxiety.

[227] The mother's access was suspended for a period of approximately 5 months due to her behaviour and refusal to comply with a court order. When visits resumed they were reduced from twice weekly to once per week at the mother's request.

[228] The OCL argues strenuously that the children should have some level of contact with their parents as they share deep bonds with the children that are beneficial and meaningful to the children. More specifically the OCL took the position that the mother should have a specific number of face to face visits per year and the father should be able to send video taped messages that can be vetted by the society or the children's care givers.

[229] The OCL called a significant amount of evidence about the relationships the children shared with both parents before being apprehended. The evidence is that F.D. in particular shares a lot of experiences and memories with his mother in Trinidad. Those memories and traditions, the OCL argues, have created a close bond between F.D. and his mother, one that should not be severed.

[230] The OCL also relies on the children's views and preferences which have consistently been that they wished to return to their parents care and if that were not to happen they wish to have continued contact with their parents.

[231] What should the court make of the mother's evidence that she will leave for Trinidad within days of receiving the court's decision, whether the children are returned to her or not? The mother's evidence is that she will move back to Trinidad as soon as possible, with or without the children. As both parents own property in Trinidad and it was their desire to return to live in Trinidad in the future after the father completed his training in elevator and escalator repair, in all likelihood, the parties intend to both move back to Trinidad.

[232] It would be unfair to these children to order access by the mother only for them to be disappointed when it does not take place or it takes place infrequently because the mother is in Trinidad. Should this happen there is no doubt that it would cause instability for the children.

[233] The extent to which the children enjoy the relationship they have with their mother does not amount to a beneficial and meaningful relationship as defined by the Act and as interpreted by case law.

Will an order for access by one or both parents impair future opportunities for adoption?

[234] The society gave evidence that all three children are adoptable.

[235] A review of the attributes of the mother that suggest access would likely impair the children's opportunity for adoption are as follows:

a) Attribute One – The mother has displayed concerning behavior throughout this proceeding such that the court cannot be certain that she may not pose a physical threat to the security of adoptive parents. She was charged criminally as a result of her threatening behavior in court when the children were ordered into care when she could not control her emotions; she was disrespectful on several occasions with society workers; she was aggressive and threatening towards society workers, she was loud and aggressive during some access visits at the society's offices; and, on two occasions called the police to the society's offices unnecessarily. She was also charged with assaulting the father and breach of a peace bond during these proceedings.

The society gave evidence that the mother has behaved threatening towards them on more than one occasion. The FSW who worked with the family from August 4, 2015 to the date of trial gave evidence of several examples of the mother's aggressive behavior. During a meeting on November 6, 2015, the mother became loud and aggressive with the FSW waving her finger in the worker's face and banging on the table. As the mother got louder with the FSW she moved closer to her and leaned in while yelling at her. When the FSW advised the mother that the meeting was over, the mother stood up and stopped the FSW from leaving the room telling her that "you are going to talk to me about my children".

On June 3, 2015, the parents attended the society's offices together for a meeting and the society gave evidence that the police were called as a result of the parents' demeanor.

On June 5, 2015, the mother left the FSW a voicemail message in which she signed off by saying "thanks bitch".

On May 5, 2015, the mother left the FSW a voicemail message in which she said, "You have my property and I want them back so call me back if you know what is good for you."

Based on her interactions with the society, the court is concerned that if granted access, the mother will not refrain from showing her displeasure with the foster or adoptive families should she disagree with their parenting of the children.

b) Attribute Two – The mother has not undermined the placement of the children's foster parents. However, the evidence indicates that the mother would be unable to accept her role in the children's lives to one limited to access only. The mother has never accepted that there is any validity to the society's protection concerns. She has demonstrated no insight into her behavior or the choices she has made and the negative impact both have had on the children. She was very clear in her evidence that only she knows what is best for her children. She disputes F.D.'s ADHD diagnosis and she does not approve of immunizing her children. The mother's indignant behavior creates sufficient cause for concern that an order for access would likely create a situation where the children would receive different messages from the mother than they receive from their foster or adoptive parent. The risk of upsetting the children's stability in their foster or adoptive home is too great.

c) Attribute Three – The mother has had almost no communication with the foster parents. The only communication they had was as a result of contact at the society's offices. However, there is a significant amount of evidence which indicates that she is dishonest and cannot be relied upon to consistently comply with court orders or accurately report incidents concerning the child.

d) Attribute Four – The mother is unlikely to accept a reduced role in the child's life. She does not accept the parenting and protection concerns about her. The mother appears to not have read the reports of Dr. Fitzgerald or Dr. Patel. She did not discuss the reports with either doctor yet she does not agree with most if not all of their opinions. In this litigation there were several motions prior to trial as a result of the parents' behavior. The parents would not consent to a finding that the children were in need of protection which was dealt with on a summary judgment motion. The parents also commenced a small claims court application against two society lawyers and three society workers in which they sought damages of $25,000.00 "for stolen property". This is very clear and compelling evidence that the mother has a propensity to be litigious.

[236] The mother gave evidence that she will support the children in their foster home or if they are adopted, in their adoptive home. She said she would comply with the court's orders, no matter what they are, regarding contact with her children. The problem the court is faced with is that the mother has demonstrated repeatedly that she will not comply with court orders that she does not agree with or, for that matter, that are not convenient for her.

[237] The mother gave evidence that she does not want to be the person who keeps the father from the children. The court finds that the mother would be incapable of following a court order which prohibited contact by the father to the children.

[238] The court has little confidence that the mother will comply with orders of this court that she does not agree with it. This court must be concerned with the mother's reaction to this order and the way in which she will share her feelings with the children given the number of times she has had inappropriate discussions with the children about the court proceedings and the society's involvement in their lives.

[239] Even if the court found that the mother shared a beneficial and meaningful relationship with the children, the court finds that contrary to her evidence that she will support the children in a foster home or even in an adoptive home, the mother's actions suggest otherwise. There is overwhelming evidence that the mother has been unable to put the needs of her children before her own and that her judgment with respect to the children is impaired. Due to the mother's lack of credibility it would be naive of the court to accept her bold statements that she will comply with this court's orders regarding access and the father's contact with the children when, in the past, she has ignored so many court orders and even gave evidence that she would ignore court orders in the future that she felt endangered the children.

[240] These children have experienced significant trauma and chaos in their lives at such a young age. When they were brought into care they seemed destined to experience overwhelming long term difficulties emotionally, psychologically and developmentally. All three children have made enormous gains in the two years they have been in care. They have flourished in the care of supportive and loving caregivers who have given them the consistency of a safe, calm and happy environment. Based on the behaviours of the parents and their evidence at trial, the court finds that an order for access by the children to their parents would put the children at significant risk of undermining the truly remarkable gains they have made in the last two years.

[241] The court finds that the mother did not meet her onus on the second part of the two-part test. An order granting the mother access to the children would likely impair the children's future opportunities for adoption.

[242] This order does not preclude the society, in its capacity as custodial parent of Crown wards, from permitting the mother to visit the child prior to an adoption placement. See: Children's Aid Society v. D.P., supra.

4.4 Should the Father be Granted Access to the Children?

[243] The father has not had physical access to the children since August 2014. His access was terminated due to his reprehensible conduct. His behaviour during supervised access was so destabilizing for the children that he left the court with no option but to terminate his access. It cannot be said that his relationship with the children is beneficial and meaningful to the children. In fact the opposite is true. His actions resulted in instability and increased behavioural issues for the children following visits.

[244] The court finds that the father emotionally abused his children both before and after they went into care.

[245] The court finds that the father was abusive towards the mother in front of the children and that his conduct contributed to an unstable and chaotic home environment that led to the children's apprehension by the society.

[246] Several witnesses gave evidence that the father's threatening and aggressive behaviour is a result of the society's involvement in his life and that he does not behave this way with anyone else. This court saw firsthand the vile, offensive, threatening and outrageous behaviour of the father during the 10 day trial and agrees with the witnesses that the father cannot and will not control himself around issues involving the society. If the father were to have access to the children, this court has no doubt that it would be enormously harmful to the children.

[247] The court finds that the father does not share a beneficial and meaningful relationship with any of the children.

[248] The overwhelming evidence of the father's inability to control his emotions and interact with others in a manner that supports and furthers his children's best interests is strong evidence that an order for access by him to the children would impair the children's future opportunities to be adopted.

[249] There shall be an order that the children are made wards of the Crown without access for the purpose of adoption.

4.5 The Children's Access to Each Other

[250] The evidence is that these three children share very close and special relationships. In fact, the evidence is that the children, especially F.D. and V.D. are closer now than when they were brought into care. As F.D. has made significant improvement in learning to control his emotions, he interacts in a much healthier manner with V.D. resulting in a much improved relationship.

[251] The society gave evidence that they considered sibling access to be very important and ensured that regular access was facilitated between the children immediately after being brought into care. In fact, the society's evidence is that their goal was for weekly visits between the children in addition to their visits with their parents.

[252] In addition to regular visits with the siblings only, the foster families arranged additional visits for special occasions and birthdays. The evidence is that these visits were very important to the children.

[253] The current foster mothers both gave evidence of the children's access which they arrange between themselves once per month. This monthly visit is in addition to a weekly swimming lesson all three children attend together.

[254] The foster mothers gave evidence about how close the children are and how much they enjoy their regular visits with one another. V.D. and D.D.'s foster mother spoke about how F.D. and V.D. speak to one another during their visits. There is real love and respect between them.

[255] V.D. and D.D.'s foster mother also gave evidence about how protective V.D. is of D.D. and how much he looks to her for love and support. She spoke about their interaction in her home and how close they are to one another.

[256] The children all love and care for each other. Their relationships are beneficial and meaningful to them. V.D. and D.D. have lived together in the same foster home for over two years. They provide each other with an important familial relationship; they need each other. This relationship must be maintained.

[257] The court finds that the relationship these children share with each other are very important to them and meets the test of meaningful and beneficial as set out in the case law. There is no evidence to suggest that maintaining this relationship would in any way would impair any of the children's future opportunities to be adopted.

[258] Each child shall have regular access to their siblings. This access will be such that they are able to maintain the close relationships they share with each other.

Part Five – Final Order

[259] A final order shall go on the following terms:

(a) The children will be made Crown wards without access by the parents for the purpose of adoption.

(b) The child F.D. shall have access to the children V.D. and D.D. at least once per month with dates and times to be arranged by the society and/or the children's caregivers.

(c) The child V.D. shall have access to the children F.D. and D.D. at least once per month with dates and times to be arranged by the society and/or the children's caregivers.

(d) The child D.D. shall have access at least once per month to the children F.D. and V.D. with dates and times to be arranged by the society and/or the children's caregivers.

Justice Melanie Sager

Date: June 2, 2016

Given the father's level of hostility and threatening behaviour directed at the society, the court is concerned for the safety of all those who worked with this family and asks the society to notify the professionals who worked with the children of the final order that has been made.

Footnotes

[1] The mother's daughter from a previous relationship also travelled to Canada with the family. She later returned to Trinidad before the commencement of this Protection Application.

[2] The police report includes a conversation with the Victim Witness Assistance program who confirmed that the mother sought advice on how she could file a Written Irrevocable Consent to communicate with the father lifting the ban but that the mother did not advise why she was seeking to provide consent.

[3] The father displayed the type of inappropriate and aggressive behavior and used the same offensive language described by the society during the trial. He was directed several times to leave the courtroom because of his conduct and he left on many other occasions on his own initiative.

[4] Both parties believed that the children's school was also involved in the conspiracy against them.

[5] Several statements made by the children were entered into evidence without objection from mother or father.

[6] The current criminal charge involves a breach of a non-contact order with respect to the father.

[7] The paternal uncle is the mother's surety with whom she is currently required to reside as a term of her recognizance.

[8] The police found the mother and father together in her apartment in violation of a non-contact order.

[9] The children report a very different version of their home life to Dr. Fitzgerald who found that the parent's conduct did in fact affect the children.

[10] Although she does not identify the issues as being serious.

[11] The mother contradicts her evidence that she lived in a small town of 1500 people where everyone knew each other.

[12] Although V.D. has always included her foster mother in her future living arrangements with her mother and/or her father.