WARNING

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

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

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

The Court may make an order,

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

ONTARIO COURT OF JUSTICE

DATE: September 30, 2016

COURT FILE No.: Belleville, Ontario 448/08

BETWEEN:

Highland Shores Children's Aid Society, Applicant,

— AND —

C.F. (mother), D.L. (father)

Respondents.

Before Justice Wendy Malcolm

Heard on: June 2, 3, 13, 17, 22, 23, 2016; July 5, 8, 12, 2016 and August 15, 2016

Written submissions received on: August 23, 2016

Oral submissions made on: September 12, 2016

Supervised Access Notes and Society Case Notes provided: September 16, 2016

Reasons for Judgment released on: September 30, 2016

Counsel:

Linda Fagbenro — counsel for the applicant Society

Heather Smith-McGurk — counsel for the respondent, C.F.

Respondent D.L. — self-represented

Malcolm, J.:

Introduction

Parties

[1] The Applicant is the Highland Shores Children's Aid Society (Society).

[2] The child is O.L.M. born […], 2015. The child has been in the care of the Society since her birth.

[3] The respondent mother is C.F. She is 24 years of age and supported by Ontario Works.

[4] At the commencement of the Application it was believed that C.M. was the father of the child in question although he had a vasectomy. He is named as the father on the birth registration. Subsequently, C.F. indicated that there was another biological father, D.L. DNA paternity testing was arranged for C.M. but he refused to attend.

[5] On the first day of trial, June 2, 2016, on consent, C.M. was removed as a party. He admitted that he was not the biological father of the child. Further C.F. and C.M. had separated from each other.

[6] D.L. attended for DNA paternity testing on June 10, 2016.

[7] On June 28, 2016 the report dated June 23, 2016 from Life Labs confirmed that D.L. is the biological father of O.L.M. C.F. now concedes that D.L. is the biological father.

[8] D.L. is employed full time in poultry farming and is 27 years of age.

[9] D.L. testified and participated at the trial and presented an oral plan of care to support C.F. in a joint custody arrangement with her. On September 12, 2016 he was formally added as a party.

Issues

[10] On consent of C.F. and C.M., both represented by counsel at the time, the child was found in need of protection on November 24, 2015. The issue for this trial is the disposition and placement of the child based on her best interests.

[11] The Society asks for the child to be made a ward of the Crown and placed in their care for purposes of adoption without access; although during submissions indicated that the Society would support some contact or "openness" between the child and C.F. C.F. asks for the child to be placed in her care subject to supervision. D.L. supports C.F.'s position.

[12] The Agreed Statement of Facts with respect to the finding and Identified Child Protection Concerns are as follows:

• C.F. is the biological mother of five other children, none of whom resides in her care.
• All five of C.F.'s children reside in the care of custody of the maternal grandmother, Ms. T.D.
• O.L.M. is the sixth child of C.F.
• The identified child protection concerns include, but are not limited to substance abuse, mental health issues, domestic conflict and violence, criminal activity, issues of attachment and neglect of children.
• On July 30, 2015 while in the hospital the child began exhibiting signs of neonatal abstinence issues, or withdrawal from drugs. She was in special care nursery for one and half weeks. The child's urine test was positive for opiates and marijuana.
• The child's meconium test was positive for opiates, marijuana and oxycodone.
• The hospital staff had concerns that C.F. was not bonding with the child and her partner at the time, C.M., was providing all of the care.
• C.F. and her partner did have accommodation at the time of the child's birth, but not up to the Society's standards. The parents moved and asked the Society to approve their residence.

[13] On the basis of the Agreed Statement of Facts, the child was found to be in need of protection subject to sub-sections 37 (2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c.11, as amended which reads there is a "risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's failure to adequately care for, provide for supervise or protect the child."

[14] Despite the consent finding being made in November 2015 that the child was in need of protection, at trial counsel for C.F. asked that the Court find that the child was not in need of protection due to C.F.'s suspected drug use while pregnant with the child.

[15] At trial, the Society also asked that the child be found in need of protection subject to section 37 (g) in that there is risk that the child is likely to suffer emotional harm by serious anxiety, depression, withdrawal, self-destructive or aggressive behavior or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child's parent.

Legal History

[16] The Application was commenced on July 30, 2015. The finding that the child was in need of protection was made November 24, 2015.

[17] The Application was amended from Society wardship to Crown wardship on November 24, 2015.

[18] A settlement conference was held on March 7, 2016. After the trial management conference in April 2016, trial dates were scheduled for June 2, 3, 13 and 17, 2016. Subsequent trial dates of June 22, 23, and 28, July 5, 8 and 12, 2016 and August 15, 2016 were added. Not all days of the trial were full days.

Evidence of the Society

[19] The Society's evidence in chief was presented by way of Affidavits. The witnesses for the Society were Kristen McCoy, family services worker; Nicole Davidson, supervised access worker; Kelly Lockwood, family services worker; Sheri Colvin, family services worker; Elizabeth Leemstra, children's services worker; Shannon Sturgeon, children's services worker; Amanda Horton, supervised access worker; Tina Waite, supervised access worker; and Linda Howard, kin-searcher. Two additional workers, Danila Turco and Lynne Tebo testified on August 15, 2016 after C.F. had started her testimony.

[20] At the request of C.F.'s counsel on September 12, 2016, I agreed that the case notes of access from June 20, 2016 to August 26, 2016 would be filed as business records and considered by me.

[21] The pediatrician who treated O.L.M. in hospital, Dr. Nguyen testified.

[22] The supervised access notes, police occurrence reports, section 54 assessments dated May 30, 2015 of C.F. and C.M. concerning the child of C.M., and Belleville General Hospital Records were all entered as business records.

[23] The parenting capacity assessment of Dr. Julie Gowthorpe dated May 30, 2015, the psychological assessment of Dr. Cao dated May 28, 2015 and the psychological assessment of Dr. Langewisch dated February 19, 2014 were filed pursuant to section 50 of the Act (past parenting), and the psychological reports pursuant to the Evidence Act, RSO 1990, c E.23, section 52(2) (practitioner's reports).

[24] It was agreed that the following persons would not be required to provide oral testimony: Tina Waite; Linda Howard; Nicole Davidson; Dr. Gowthorpe; Dr. Cao; Ms. White, probation; and Ms. Brinson, counsellor.

[25] The witnesses from the Society testifying were Sheri Colvin, Betty Leemstra, Shannon Sturgeon, Kelly Lockwood, Amanda Horton, Danila Turco, Lynne Tebo, Delores Turner and Sandy Forcier.

[26] The Society sought to introduce statements of C., the son of C.M. The Society prepared a chart containing the hearsay statements. This chart (with the parties and child's name redacted) is attached as an appendix to my decision. All parties accepted that the child C. had made the statements. He was not asked to testify. A blended voir dire was held as to all of C.'s statements and I reserved making determinations as to admissibility until the completion of the trial.

[27] The parents testified but had no independent witnesses other than an Affidavit provided by the mother's friend and neighbour, C.C.

[28] Although C.F.'s trial management conference brief indicated that the maternal grandmother and legal custodian of C.F.'s 5 older children would testify, she did not attend and was not summonsed by C.F.

Society Involvement

Sheri Colvin

[29] The first worker involved with the family was Sheri Colvin. She is an experienced child protection worker. She met with C.F. and her partner in March 2015 because of a referral made from an extended family member of C.F. that she was pregnant. The person who made the referral expressed concerns. The worker met with C.F. on April 8, 2015 and C.F. confirmed her pregnancy. The worker met with C.F. again on June 17, 2015.

[30] In conversations with the worker, C.F. denied the use of drugs and said she had not used substances in almost 2 years. Her only concern was having a suitable place to reside.

[31] The worker asked C.F. if she had a backup plan in case the baby came into care and she said she could stay at the home of her mother, T.D., who has custody of her five other children aged 10 years, 6 years, twins aged 4 years, and the youngest almost 3 years of age. C.F. consented to a urine and meconium test when the child was born.

[32] On July 7, 2015 Mohawk Family Services contacted the worker expressing a concern about C.F.'s residence which was on the Mohawk Territory.

[33] C.F. gave birth on […], 2015, approximately three weeks before the due date.

[34] The parents did not have a crib or bassinet or an appropriate residence at the time of the child's birth. The maternal grandmother said that the child and mother could not reside in her care. There were no shelters that were able to take C.F. C.F. then found a boarding situation but it was inappropriate for the child.

[35] The worker then received the child's first urine test, which was positive for opiates and marijuana.

[36] A parenting capacity assessment of Dr. Gowthorpe and Dr. Cao dated May 2015 concerning C.F.'s partner, C.M., his child, and C.F. did not support them having his eleven year old in their care. Although the psychological assessment of C.F. did not reveal any serious mental health issues, the psychologist stated "her history and attachment issues could not be ignored".

[37] The worker and her supervisor decided to apprehend based on the couple's unpreparedness for the child's homecoming, concerns raised in the section 54 assessment, and the child's urine screen, which was positive for opiates and marijuana.

[38] Subsequently the worker spoke with C.F. and C.M., at which point C.F. admitted to using Tylenol 1 for pain because of her decayed and abscessed teeth and C.M. indicated she used Tylenol 3 and obtained them from his mother. These drugs were not prescribed to her.

[39] C.F. indicated the positive marijuana test was because C.M. smoked in her presence.

[40] A meconium test was positive for opiates, marijuana and oxycodone.

[41] After the decision to apprehend the child was made, the child had serious drug withdrawal symptoms and had to receive medication, namely morphine.

[42] The worker had no concerns about the parent's visits after apprehension and indicated that C.F. was pleasant and cooperative with her.

[43] C.F. had been kidnapped by an acquaintance involved in illicit drug matters in August 2014. As a result, she was physically and sexually abused. C.F. also disclosed to the worker that she had been sexually abused as a child by a cousin. The worker recommended counselling for the sexual assaults.

[44] C.F. was also offered the parenting enrichment program and did well.

[45] The worker's evidence was straightforward and I accept it as credible. I find that her protection concerns were valid and C.F. was not ready for the child to be placed in her care. The past parenting concerns of the worker are supported by the section 54 assessment.

Ms. Lockwood

[46] The next family worker involved with the family was Kelly Lockwood who took carriage of the file from Ms. Colvin on September 18, 2015. She is an experienced child protection worker.

[47] At that time C.F. and C.M. were trying to have his son, C. age 12, returned to his care. C. was a ward of the Crown but subsequently returned to the temporary care of his father on April 8, 2016.

[48] She described the challenge of working with C.M. as he was convicted of making death threats in July 2014 against a Society worker and a Judge in with relation to the case involving C. He served a custodial sentence and was released around September 2014. He was also convicted of assaulting C.F. in November 2014.

[49] Despite other workers having difficulties in working with C.M., this worker appeared to have a good relationship with both C.F. and him. In September 2015, the worker attended a Signs of Safety meeting with C.F. and C.M. At the time, they were trying to obtain housing. The worker and C.F. discussed a plan where they would attend visits with the baby and continue to work with Mr. Tapp on relationship issues and individual counseling for C.M. C.F. was asked to consider individual counseling.

[50] Ms. Lockwood supervised many of the visits in the fall of 2015 and noted many positive interactions between the child and her parents. She noted affection and good parenting skills.

[51] She also noted that the parents appeared frequently to have conflict in their relationship to the point that the workers would have to talk to the parents. C.F. in particular used a tone of voice or used irritated language and when asked what was occurring at the end of the October 23, 2015 access visit, C.F. said she was considering ending her relationship with C.M.

[52] When C.F. said in October 2015 that she was thinking of separating from C.M, the worker took the initiative to see if she could find accommodation for C.F. She was able to find potential accommodation through an agency, Youth Habilitation and gave the information to C.F. C.F. did not contact them, but asked for the information later. Subsequently, she became very angry and accused the workers of trying to separate her and C.M. I accept that the worker was not trying to separate the parties, and she was only trying to support C.F. Given that the worker knew C.F. was a victim of domestic violence, that was a reasonable approach.

[53] Despite this, the parents continued to attend the visits together although during a visit in November 2015, C.F. actually yelled at C.M. in the presence of her child. At the same time, the worker noted that the father had a black eye. He and C.F. reported that the partner got into a fist fight with C.F.'s ex-partner, D.L. This was later denied by the parents during the trial. They claimed it was another person who assaulted C.M. with the same first name as D.L.

[54] The worker continued to note the conflict and irritation that C.F. had for C.M. and it resulted in her yelling at him on Christmas Eve when they left the access visit.

[55] C.F. and C.M. obtained their own residence around November 2015. Ms. Lockwood supported them having access in their home. At the same time the worker referred C.F. to a counsellor, Ms. Brinson, to deal with issues of trauma, anxiety, and trust. This counsellor was retained by the Society. Despite receiving the referral, C.F. did not attend but in April 2016 asked if she could start seeing Mr. Tapp as her counsellor. The worker immediately made a referral to the counsellor. Mr. Tapp was retained to help C.M. with issues of his son and because of the conflict in the relationship with C.F., the counsellor had her attend the sessions.

[56] The worker was away for approximately one month, but before she left, she recommended that the parents be able to have the access in their home because it was more natural and she believed it was best for them.

[57] I found that she was extremely fair and provided clear direction to the parents as to what she expected and provided them with support.

[58] The worker has also been present when C.F. has become extremely angry with persons other than the Society. On one occasion, the family had their heat cut off and C.F. was extremely angry with the ODSP worker.

[59] The worker felt that C.F. should be involved in individual counselling, although she was involved with Mr. Tapp in couples counselling. She testified that in her role as Family Services Worker, she has seen parents deal with loss, anger, and trauma. She believes that her role is to help parents in moving forward and if the issues aren't dealt with, "things build up and up". She has no expertise in trauma, but this was her concern with C.F. I share her concern. The worker does not need to be an expert to see that C.F. had a number of challenges and issues because of her past.

[60] She testified that C.F. can be very pleasant and cooperative with a good sense of humour, but then she can be very quick to anger.

[61] Even during the course of the trial, on a few occasions C.F. became angry at either the proceedings or, in one case, at answers that were given by C.M. to questions. As she was leaving the Courtroom, she muttered something about his memory. During trial management, in April 2016, she became very upset when the issue of C.M. taking a paternity test was raised. Again she left the Court room in anger. If she behaved that way with muttering to C.M. in front of the child, I understand the concern of the Society about exposing the child to conflict.

[62] The worker described both parents as having strong personalities, perhaps explaining in part their conflict with each other. The worker described some other concerning matters. She described C.F. as often being in the shower when the child was brought in the morning for access, only coming downstairs later. She also described C.F. as having lumps on her body that she wasn't taking care of and extreme dental problems caused by rotting teeth that needed extraction. Unfortunately, C.F. had difficulties in arranging for her dental issues to be addressed and she still has not addressed the issues although she may be having the dental surgery in November.

[63] The worker was supposed to take C.F. to a medical appointment on May 12, 2016 so C.F. could have her dental surgery. When the worker attended at the home the child, C., was sitting on a lawn chair and told her, "I would not go in there if I were you." The worker asked C. what was going on and he replied, "They are fighting again." Both C.M. and C.F. agree that there was fighting on that day. These were spontaneous utterances of the child and the worker took notes closely thereafter. There was no evidence of coaching or manipulation.

[64] The worker indicated that there were papers spread all over the downstairs in the home that looked like Court papers. C.F. said she was done with, "You people." The worker contacted C.M's worker, Ms. McCoy, and recommended to C.M. that he take a break from the home as C.F. was clearly agitated.

[65] After the child's worker was contacted, Ms. Lockwood, the father and C.M. went back in the home. The child made several statements that the worker later wrote in her notes. The child kept asking his father, "right dad?", but C.M. was trying to keep him out of the discussions.

[66] After C.M. packed clothing for himself and his child, C.F. started yelling at Ms. Lockwood to get out of her home as she had a right to speak to her boyfriend. The worker and C. remained outside and C. told the worker that he was afraid his dad would get hurt, and that C.F. had scratched his dad's shoulder before and he had seen her do this. The child kept riding to the front door window on his bike and peeking in as if he was worried. C.M. eventually came out to walk his son to school.

[67] I considered the principled approach to the admission of C.'s hearsay statements as set out R. v. Khan, [1990] 2 S.C.R. 531 and the twin tests of necessity and reliability. I considered the circumstances surrounding the statements made to the various workers including timing, the child's demeanour at the time, the understanding and intelligence of the child and any reason for fabrication by the child.

[68] C., at the time of trial, was not the child of a parent in the proceedings. There was no expert evidence at trial on the question of whether C. would have suffered harm or trauma by his testimony. C. at the time of trial was living with his father. There was no reason for the child to lie to be placed with his father.

[69] The Society relied on a section 54 Assessment of Dr. Gowthorpe, dated May 30, 2015 regarding C. He was described as being diagnosed with Attention Deficit Hyperactivity Disorder and possible Attachment Disorder. He had been a Crown ward at the time of the assessment and desperately wanted to return to the care of his father. C. was described as having a number of challenges in his behaviours. He was in a section 21 class at school and had difficulties following expectations of caregivers at home or at school. C. was described as loving his father very much and having issues with C.F. Given C.'s mental health challenges and anxiety, I find that it is necessary that his statements given to others be considered without his testimony at trial. I find that it would have been very difficult, perhaps even traumatic, for him to have testified.

[70] There was a voir dire held with respect to any statements made by C. to this worker and subsequent workers. The Society originally sought to have all statements entered into evidence for the truth of the statement's contents; however, subsequently asked for many of the statements to be entered to show the child's state of mind. The statements were as follows:

• "I would not go in there if I were you – they are fighting". I find that this statement shall be admitted for the truth of the statement. C.'s father and C.F. were fighting. The police were called to keep the peace. It was a loud domestic dispute.

• "That he did not feel safe around C.F., as she yells at him and his dad all the time." I accept this statement to show the state of C.'s mind. He did not feel safe. I accept that C.M. and C.F. fought, but not all of the time. This is an exaggeration, but probably goes to the state of the child's mind.

• "That C.F. 'smashes' and throws things. That his dad and C.F. fight all the time and he was worried that his dad will get hurt." Again, I accept that this statement goes to the state of the child's mind. He was worried about his Dad. Further C.M. confirmed that C.F. had thrown things at him. C.M. testified that his sister tells things to C. that influences his opinion of C.F. In the report of Dr. Gowthorpe it was clear that C.M.'s sister does not think highly of C.F. and commented on her lifestyle, and drug use and accused her of "beating" her brother. I am not aware of whether C.'s statements were influenced by his aunt. The statements appear to be based in fact, as the evidence at trial showed the fighting and C.F. throwing things at C.M. including scissors, which could have hurt C.M. I find that it is true that C.F. throws things.

• "That he was worried his dad will get hurt. That C.F. has scratched his dad's shoulder before and he saw her do it." I accept this statement as showing how worried C. was about his father. The father says that the scratch was caused by play wrestling. It may have been play wrestling. The child was not asked to elaborate by the worker.

• "That he said he did not feel safe around C.F., C.F. yells at him and his dad all the time, she smashes and throws things, and he was worried that his father would get hurt." I accept that this statement shows that C. did not feel safe around C.F. especially in this situation of high conflict. There was evidence of papers being strewn about and I accept that C.F. threw them. I also find that C. was worried about his father's safety.

[71] Eventually, because the conflict continued, the Belleville Police were contacted to attend the residence and keep the peace. C.M. packed his belongings and those of his child. Because of this conflict, Ms. Lockwood did not take C.F. to the medical appointment.

[72] C.F. was to have had another appointment on May 16, 2016 regarding her dental surgery, but the worker, knowing how angry she was with her, did not attempt contact. When C.F. testified, she suggested that the worker should have contacted her to see if she wanted to attend the appointment. C.F. also testified that the worker should have known that she had no time on her phone. How the worker could have contacted C.F. is not clear to me. C.F. must take responsibility for the delay in attending to her very serious dental needs.

[73] Ms. Lockwood describes the access since the parties have separated as being calmer as there is no bickering between the parents. She has made contact with the biological father, D.L., and is investigating any potential plan he might have.

[74] Despite the fact that C.M. is no longer a party, Ms. Lockwood did not terminate his access as both he and C.F. appear to want it to continue.

[75] Despite the challenges seen by Ms. Lockwood, she describes C.F. as being the primary caregiver of the child during access.

[76] I was impressed with Ms. Lockwood and I find that she has provided considerable support for the parties, despite the Society application for Crown wardship. She continues to support C.F. and C.M. during access and provides support programs that provide support and direction to the parents.

[77] The worker also provided advice with respect to counselling and housing and offered to drive C.F. for her medical appointment.

[78] The worker was cross-examined at length about the decision to apprehend the child in part because of the positive drug screens at the hospital. The worker readily admitted that she did not have any expertise in interpreting drug tests, but given that there was a positive meconium test, positive urine test and evidence of drug withdrawal in the baby and treatment for the same, it was assumed by her that C.F. had exposed the child to drug use. I find that the worker made an assumption based on the evidence before her at the time.

[79] I accept the evidence as credible, balanced and fair.

Children's Services Workers

[80] Two children's services workers have worked with the child, O.L.M., namely Elizabeth Leemstra and Shannon Sturgeon. Further, Ms. Sturgeon was C.'s worker while he was in care until his return to his father in April 2016.

Elizabeth Leemstra

[81] Ms. Leemstra was involved as the children's services worker from October 30, 2015 and her involvement ended on February 17, 2016 when the file was transferred to Ms. Sturgeon. She is a very experienced child protection worker.

[82] Ms. Leemstra works with children in care and regularly reviews with the foster parents, the child and the parents the six dimensions of the child, specifically health, education, identity, family, and social, emotional and behavioural self-care.

[83] Ms. Leemstra provided an affidavit and a number of case notes, and testified.

[84] The worker was concerned that the child had rigidity when being held and there was a referral made to infant development.

[85] The parents had visits for approximately three hours three times per week.

[86] The worker described affection between the parents and the child, and the parents would tell the child they loved her and called her their princess.

[87] At one visit in October 2015, the worker commented that the parents appeared to have some tension between them. C.F. was speaking to her partner in a bit of a raised voice. C.F. commented that she told her partner if he "keeps acting like that, then he can leave."

[88] Subsequently the worker was told by Kelly Lockwood of the Society that C.F. had made a statement about leaving the relationship with her partner.

[89] Because there was a comment about calling Youth Hab to get accommodations, the worker asked C.F. if she could talk to her about her relationship. C.F. spoke to her and said that she had lost the number for Youth Hab. The worker said she could give the number to her again and told her that there was a two bedroom home available at Youth Hab with subsidized rent.

[90] C.F. said that she and her partner see Charles Tapp, but her partner does not take responsibility. She said the issue was her partner's controlling behaviour because he feels she is with other people. She says he feels her issue is her temper. At the same visit C.F. and her partner talked about the Youth Hab apartment and C.M. was upset because it was only a two bedroom apartment and presumably he needed another room for his son. At the end of the visit the worker gave C.F. a piece of paper with the Youth Hab number.

[91] There was a visit in December 2015 that had to be cancelled because the baby was sick. C.F. was extremely upset that the visit was cancelled, claiming that they were perfectly capable of taking care of the child and the Society had intentionally cancelled the visit and, "we were all laughing over here." Generally, the worker indicated the visits went well except for the occasional tension between C.F. and C.M. She indicated C.F. took redirection with respect to care of the child.

[92] In September 2015, C.F. consented to the Society obtaining the hospital medical records. At the time of trial management conference in April 2016, the Society had not obtained those records for her and her daughter. After there had been a finding that the child was in need of protection in November 2015 it appears the Society didn't pursue the records.

[93] On January 13, 2016, the visit was supervised in the parents' home and the worker commented on the smell of smoke. C.F. indicated someone had been in the home not long ago and they were smoking. The visit went relatively well, but surprisingly to the worker on January 15, 2016 C.F. contacted the worker's supervisor to make complaints about the worker, including that

• The worker accused C.F. and her partner of smoking.
• The worker does not agree with the feeding schedule.
• The worker argued with C.F. about feeding.
• The worker had wanted her to leave her partner and it was not anyone's business if they stayed together.
• The worker is nitpicky and she is biased.

C.F. demanded that someone else supervise the visits.

[94] The worker's testimony appeared to be quite balanced and favourable toward C.F. except for the comments about the tension between C.F. and C.M. and the problem when the visit had to be cancelled because of the child's illness. I accept her evidence as credible.

Shannon Sturgeon

[95] Subsequently, Shannon Sturgeon assumed the children's services worker role. Her evidence consisted of her affidavit and a number of supervised access notes and her oral testimony.

[96] When Ms. Sturgeon described C.F. she said she has a lovely personality, she shared and accepted information; however, she has observed her to be upset with C.M. and also she has seen C.F. lose her temper with her two other children and other persons in the community.

[97] The worker also indicated that C.F. had a good relationship with the foster mother.

[98] Most of the visits that she supervised were positive and she described good interaction between C.F. and the child. She says that C.F. sings to her daughter, puts her on her tummy and is affectionate.

[99] She, like Ms. Leemstra, commented on the tension between C.F. and C.M. and that C.F. often says negative things about him. The worker describes C.F. as speaking to her partner in a negative and demoralizing manner criticizing him for various things such as not cleaning the home or getting the child to sleep or not being forceful enough when dealing with people. Because the worker supervises access in C.F. and her partner's home, she has observed that on some visits there has been debris swept into piles but not picked up, which will become a concern once the child becomes more mobile. She described that sometimes many dishes with leftover food and debris was left on the counter and sink.

[100] On one occasion in March 2016 the power was turned off to the apartment. C.F. became extremely angry and insisted her partner call his Ontario Disability support worker. She was very upset, her tone was escalating, and she was using profanity in the presence of the child, O.L.M., and C.F.'s two older children. C.F. then called ODSP and became very angry, at which point C.M. commented that "she doesn't need to speak to people like she does as they are not customer service people and it was not like she was going to get a free pizza." He spoke with the worker about how it bothers him that C.F. speaks with people like this and it does not work. He said that it could result in him losing his ODSP. C.M. told the worker that he had counselling to deal with his issues and he found it helpful and he wishes C.F. would get counselling, too.

[101] C.F. went outside and when she came back she was again in a positive mood.

[102] The Society also tried to help C.F. with her dental work. The worker offered to drive the parents to C.F.'s dental appointment because C.F. would not be able to go on the bus and be on time for the appointment. At the appointment C.M. had forgotten his ODSP health card and he was going to go back to get it. C.F. lost her temper and said she would not wait without C.M. being in the office. The dental office was able to confirm the ODSP coverage themselves and eventually C.F. did return to the office. The worker indicated that on another occasion C.F. had been an hour and a half early for a dental appointment and then became too distressed to wait for her appointment and the dentist would not see her again. It is very difficult to get free dental work for clients.

[103] This worker has observed C.F. lose her temper at the Society office during meetings, and describes her as using profanity and storming out of a meeting.

[104] The worker was the children's services worker of the partner's son, C., and she would be concerned if the baby was returned to the care of C.F. if the partner and his son were present because of the son's difficulties with his emotions and controlling his behaviours, which have escalated to physically acting out and could harm a child.

[105] The worker has generally seen many positive things during the visits and she appears to work well with the worker. I found the worker to be credible, fair and balanced in her evidence.

[106] The worker also testified that the child C. has described some concerning things about C.F.

[107] The Society sought to have the statements of the child, C., admitted for the truth of the contents. A voir dire was conducted.

[108] The worker described meeting with C. on March 3, 2016 prior to C. returning to his father's care. The meeting was called a Signs of Safety meeting. She talked to the child and showed him a picture with three houses: a House of Dreams, a House of Worries, and a House of Good Things. She asked him about his worries, dreams and good things and transcribed the answers on the diagram. The statements were spontaneously given by him to the worker and transcribed by her. There was no evidence of manipulation or leading questions.

[109] The worker indicated that for the most part, C. was comfortable speaking with her when he was talking about the house of good things and house of dreams, but when talking about the house of worries, he sometimes would look down and look worried about what he was saying. Even when he was asked what he likes about C.F., he expressed it as a worry. When the worker asked whether she could share with his father and C.F. what he had said to her, he did not want C.F. to know because he said that she would be upset with him. He asked that she not share his statements with them. He said there was nothing that he liked about C.F.

[110] C. expressed that he thought that his daddy and C.F. were going to break up, but maybe it would be okay and maybe he would be happy about it. He said that C.F. always yelled at him and he didn't like it. He also said that daddy and C.F. yell at each other and fight, and that it makes him scared, sad, teaches him to be like them, and he indicated that's why he yells at his foster mother; he learned it from C.F. yelling at daddy.

[111] The worker is an experienced worker; her notes were taken at the time of the meeting with the child. I find the child's statements were spontaneous and not as a result of leading questions. The threshold of reliability is met.

[112] I will consider all of the statements made by C. to this worker.

• "I think Dad and C.F. are going to break up but would be okay maybe happy". I find that this statement shall be entered into evidence to show the state of C.'s mind.

• "C.F. always yells at me and don't like it." The evidence of most of the witnesses was that C.F. and C.M. fought and argued while together sometimes in the presence of C. I accept that C. didn't like the fighting. Further, I accept that the fighting occurred frequently but I don't accept that C.F. always yells. The evidence of C.M. on this point was that C.F. sometimes yelled while disciplining. C.F. testified that she raised her voice and uses a stern tone. I find that she used more than a stern tone and C. in his mind believed it was yelling.

• "Daddy and C.F. yell at each other and fight, that makes me feel sad, scared, that teaches me to be like them and why I yell at S., learned it from C.F. yelling at Daddy." I find that this statement goes to the child's state of mind and the assertion that his caregivers yell and fight is borne out in the evidence as a whole. I accept the statement as also proof of the conflict between C.M. and C.F. The statement meets threshold and ultimate reliability.

• "I don't like that she yells at Daddy, I don't think Daddy likes her, she yells bad words at Daddy." I accept this statement to show the state of C.'s mind. I also accept it for the truth that C.F. uses bad language directed at C.M. Again, the evidence as a whole proves the conflict that existed in the relationship between C.F. and C.M. The supervised access workers confirmed the profane language.

• "That there is nothing he likes about C.F. and she steals Daddy from him and makes sure he does not spend time with him, and they are always in the room, smoking." I accept this statement to show the state of C.'s mind. The assessment of Dr. Gowthorpe detailed that C. did not like to share his father with other persons. Further in that assessment C. was described as not wanting to have telephone assess with C.F. when he was in foster care despite being asked by his father. As C.M. testified, the relationship between C.F. and C. was a love/hate one. Further, I find from the evidence as a whole that C.F. tried to discipline C., and that was difficult because C.'s father had been more like a friend or playmate to C. in the past. C.F. tried to set boundaries and rules. As to the statement about smoking, both C.F. and C.M. smoke frequently. The access notes refer to the parents having to leave access to have a smoke. I find that C. felt C.F. and C.M. did smoke in the bedroom. In the report of Dr. Gowthorpe she reported that C. told her that C.F. and C.M. would often be in the bedroom together. He told Dr. Gowthorpe that he wanted to play PlayStation but couldn't because the game was in the bedroom and his father and C.F. were in there.

Kristen McCoy

[113] Ms. McCoy is the family services worker for C.M. with respect to his child, C.

[114] The worker is an extremely experienced worker with a degree both in sociology and social work. She provided an affidavit in these proceedings and her case notes of May 12 and 24, 2016 were admitted as evidence. She also testified.

[115] The worker was concerned because of the conflict between the C.M. and C.F. She has known the child, C., for approximately a year and a half. She describes him as a chatty, busy child with some difficult, oppositional behaviour at times. She says he can be a little bit cheeky, even with strangers, and has not been anxious with her.

[116] She became involved because of the incident between C.M. and C.F. On approximately May 12, 2016 there was a domestic incident at the family home. The worker attended at the home and C.F. was screaming at the other worker that the Society had ruined her life and taken from her everyone that she loves. C.F. was yelling and screaming at C.M. and at other times pleading with him not to leave. The worker called the police to assist and she then drove C.M. to get C. from school and brought them to his sister's home and explained that they were to stay there. She also directed that C.F. not be around C.

[117] This worker was involved again on May 17, 2016 because of a domestic incident at the home. The worker advised C.M. he could not return with the son to live with C.F.; that nothing had changed that would make it safe for him to be with her given how emotionally unstable C.F. had become. She asked C.M. if C.F. had been physically assaultive with him and C.M. admitted that she had thrown scissors at him and cut his arm. He said that things had calmed down since he and C. had left last week and they had nowhere else to go. The worker told C.M. that she would find accommodation for them and she took them to a Hotel to stay.

[118] Subsequently, on May 24, 2016 the worker attended at the Hotel to speak with C.M. C. was also present. Her understanding was that there had been another incident at C.F.'s address. The worker reminded C.M. that C. was not to be at the property, but he said that he thought that C.F. had calmed down. C.M. had left C. with C.F. and there was an incident. C. was very upset and said he didn't want to go back to foster care. His father was agitated and angry and told C. that he needed to tell the worker the truth. The child said he was telling the truth and that C.F. was restraining him. C.M. told the worker that C. was running away because he wanted to go swimming. The child was pleading with his father to believe him. The worker said the statement was quite spontaneous.

[119] The Society seeks to enter the statement: "That he ran away after being dropped by his grandparents because he did not want to see C.F. That C.F. tried to spank him" for the truth of its contents. I accept that the child was involved with some type of conflict with C.F. and there was some type of physical contact. Further, I accept that the child at times is afraid of C.F. and her outbursts. I also find that there have been times when the child has interacted well with C.F. and has enjoyed her company and interactions have been good. The statement will be admitted to show the state of C.'s mind alone. I am not satisfied that C.F. tried to spank C.

[120] Ms. McCoy worked well with C.M. and was a great support in having C. returned to his care. She provided her evidence in a balanced and fair manner. I accept it as truthful.

Amanda Horton

[121] Amanda Horton was the parenting enhancement program worker. She worked with the family from August 10, 2015 to October 30, 2015. She observed strengths in C.F. in caring for the child:

• she had a good foundation of skills regarding parenting an infant;
• when asked questions she always knew the correct answer;
• and she appeared very attachment focused during the visits.

[122] She commented that the parents were attending couples counselling and they had a good relationship with the foster parents. They sometimes brought supplies for the foster mother and the child.

[123] She was concerned, however, that the parents did not have stable housing for much of the time that she was involved; that there was tension between the couple; and C.F. had been spoken to about not being as hurt, angry and frustrated with C.M. during access visits. On one access visit the worker described C.M. as swearing and blaming the CAS and everyone else for his current situation.

[124] The worker was also concerned that C.M. had been charged and convicted of assault on C.F. C.F. at times would indicate that she didn't want to be in relationship with C.F. because he is controlling and he will lessen her chances of getting the child, O.L.M., back, yet until May 2016 she stayed with him.

Tina Waite, Linda Howard and Nicole Davidson provided their evidence by affidavits.

Nicole Davidson

[125] Nicole Davidson is a Supervised Access worker employed by the Society. She supervised access visits with C.F and C.M. and O.L.M. she began supervising in August 24, 2015 and the last visits referred to in her affidavit is for April 2016. The visits primarily occurred in C.F. and C.M.'s home. The worker observed appropriate and affectionate interactions between O.L.M. and C.F. and C.M.

[126] However the worker also observed considerable conflict between C.F. and C.M., in particular when C.F.'s two older children were present. She described C.F. talking to C.M. in a degrading, angry manner, often treating him like a child. On one occasion she saw C.F. slap C.M. on the arm telling him to get up. The worker described C.F. as looking enraged, her body language was agitated and her tone was angry. The worker observed both parents using offensive language with each other.

[127] The visits could be pleasant at one point and then C.F. would escalate quickly to anger then by the end of the visit the relations between C.F. and C.M. were calm again. The affidavit was very concerning regarding the conflict between the couple. C.F. would be rude and irritated toward C.M. or one of the children one minute and then she would be pleasant.

[128] There was some evidence as to C.F. misreading the child's cues and becoming angry with the worker when she pointed it out to her. C. was sometimes present during the arguments between his father and C.F. I understand why he believed that they were always fighting. It appears that during almost every access visit supervised there is some argument or snide or rude comments. The worker also noted that C.F. was going outside more frequently and for longer periods of time to smoke.

[129] This worker also noted that the C.F. often appeared to be unwell. During one of the last visits she didn't come downstairs during the visit because of her pain. On another visit the worker offered to drive her to the hospital.

[130] The worker was not cross-examined on her affidavit. I accept the statements made as credible.

Tina Waite

[131] Tina Waite provided an affidavit concerning her involvement as the managed access worker. She supervised approximately 20 visits between C.F. and C.M. and the child. She commented that C.F. was always happy to see her daughter and acted appropriately with her. She described affectionate language and gestures such as hugs and kisses.

[132] She described C.F. as often not ready when the child was brought for access visits. She would still be in the shower or just getting out of the shower. It was not unusual for her to be 30 minutes before coming down to the child.

[133] Ms. Waite described considerable conflict between C.M. and C.F. She saw C.F. yell at C.M. and call him abusive and offensive language. C.F. would leave the home for considerable time to smoke or go to a neighbour's home. The conflict and abusive language occurred in front of O.L.M. and C. and C.F.'s children. If C.M. ignored C.F. when she was yelling at him, she would become angrier.

[134] On January 20, 2016 the worker tried to talk to C.F. about the adult conflict. C.F. told the worker that C.M. was driving her crazy and he didn't help around the house. She also described him as jealous and controlling.

[135] The worker described C.F. as frequently going for her "smoke breaks".

[136] In March 2016, C. showed the worker a pet snake. The child was holding it. In these proceedings C.F. said that the snake was not a boa constrictor but a python. In her trial affidavit she said that the snake was removed and she didn't know there was a bylaw against having a python. In a home with small children a parent shouldn't need a bylaw to tell them that having a python as a pet is not a sensible thing and potentially dangerous. It also shows a lack of judgment.

[137] Although the worker described good interactive between C.F. and her daughter, the conflict, abusive language and yelling in front of her daughter, her other children and C. was inappropriate and concerning.

[138] I accept the worker's affidavit. She was not cross-examined.

Dr. Langewisch's report of February 19, 2014

[139] In 2014 Ontario Works retained Dr. Langewisch to evaluate C.F.'s current cognitive and academic functions to determine her capacity to obtain employment. An examination of her psychological and emotional functioning was also requested. She admitted smoking marijuana to help her relax and cope. She did not report any past or present illicit drug abuse, dependence or treatment. He determined that she had no psychological impediment to employment. He did describe her as having a possible adjustment disorder and depressive mood. The assessor recommended that she resume regular contact with her family doctor to monitor her psychological and emotional functioning and recommended mental health intervention to help her cope with her losses and develop better coping strategies than substance abuse. C.F. did not follow these recommendations until April of 2016. There is no evidence that she is being seen by her family doctor.

[140] In May 2014, Dr. Cao provided psychological testing as part of the parenting capacity assessment regarding C. She stated C.F. appeared to be generally free of significant mental health issues. She did self-report some challenges in interpersonal sensitivity. C.F. in her relationships with C.M. and her conflict with Society workers from time to time would seem to support this finding.

[141] The parties consented to Mary Joan Brinson providing a letter as to her involvement with C.F. It confirmed that she had been retained in August 2015 to assist C.F. in therapy sessions. She also confirmed in a subsequent letter that she spoke directly with C.F. to schedule an appointment, but C.F. did not attend in person, did not call not call to cancel or set up a new appointment. Another appointment in January was scheduled, but C.F. did not attend.

Thrive Program (Drug treatment)

[142] Two workers from the Thrive program testified. Sandra Forcier and Delores Turner.

[143] Sandra Forcier had worked with C.F. from November 2013 to July 2014. She was providing counselling, support, and advocacy for C.F. She helped her get transportation to and from visits to see her children and assisted with Ontario Works to get a bus pass and fitness classes. She also provided advocacy to get a dentist. She assisted C.F. with getting dental appointments. Unfortunately, C.F. has a "phobia" of dentists and on a third visit with the dentist she was an hour and a half early and then was too upset to wait. The counsellor testified that had she known, she would have stayed with her so C.F. could have had her dental work done two years ago.

[144] At the time she was working with her, C.F. was trying to obtain custody of her child, K.L. C.F. had problems getting to her appointments on time because of transportation and snow issues. Ms. Forcier did attend a few visits at the Children's Aid Society and saw that C.F. had good parenting skills and was attached to the child. Ms. Forcier then went on medical leave. During this time C.F. attended at the request of the Society. As Ms. Forcier was not there, she saw Ms. Delores Turner. Because of the high number of persons requiring service, only active opiate users were able to access the services and C.F. disclosed that she was not using drugs. However if she had told Ms. Turner that she had been an active user, she may have been accepted. Unfortunately, she was not. As C.F. has testified, she doesn't believe she has a drug problem.

[145] I accept the evidence of Ms. Forcier and Ms. Turner as credible.

Evidence of the Pediatrician

[146] Dr. Tuyet Nguyen, a pediatrician with privileges in the pediatrics clinic at Belleville General Hospital testified. Dr. Nguyen has a pediatric practice and was accepted to give expert evidence in the area of pediatrics. Dr. Nguyen has been a pediatrician for twenty-six years and has some considerable experience as evidenced by her resume and testimony.

[147] Dr. Nguyen was one of five pediatricians who provided care for O.L.M. She indicated that because of C.F.'s past drug use the child's meconium was tested and the results were positive for opiates, marijuana, and oxycodone. Further, there was a urine screen which was positive for cannabis and opiates.

[148] The child was not treated immediately for in-utero drug exposure; however, the doctor indicated that on July 30, 2015, she was started on course of morphine treatment due to neo-natal abstinence syndrome. This is diagnosed by scoring certain symptoms on a "Finnegan Scoring Test". The baby has to score three times with a score of eight or higher out of ten and she did. The symptoms were tremors, high pitched cry, and sleepiness after feeding, poor feeding, increased muscle tone or increased respiratory rate. The protocol was to start the child on a dose of morphine. She responded well, with her first dose on July 30, 2015 and last on August 9, 2015. This was discontinued on August 9, 2015.

[149] During the time the baby was being treated for withdrawal from drugs she was in the special nursery.

[150] Although the pediatrician indicated she was not an expert in drug testing, she confirmed that the urine test would show the most recent use of C.F. of drugs. The urine test showed opiates and marijuana, but not the oxycodone that was in the meconium drug test. The doctor confirmed that C.F. was not provided morphine or oxycodone at the hospital. She was prescribed oxytocin, which is a hormone to prevent post-partum bleeding. C.F. had claimed that the opiates in the meconium and child's urine were because of being given morphine or opiates during delivery, however, the meconium and urine test were given before C.F. was prescribed any drugs.

[151] Dr. Nguyen confirmed that the child was very vigorous when born and had good Apgar scores. She indicated that the parents were civil to her and that she understood that C.F. breastfed on two occasions during the hospital stay. Because she was not the only doctor for C.F., she does not know how the admitting doctor knew that C.F. had a history of drug use.

[152] She also indicated that the child was born small and at a risk for hypoglycemia. C.F., in hospital records, admitted to smoking a pack of cigarettes a day during her pregnancy.

[153] Dr. Nguyen confirmed that opiates in the meconium or urine drug screen could have been from Tylenol 1 or 3, which have codeine in them. She believed that those drugs would have to be obtained with a prescription. However C.F. testified that she obtained her Tylenol 1 over the counter. Although the hospital administered child urine screen showed high level of opiates, there is no interpretation as to how much C.F. took. Further, since this test is not a forensic test and has a warning that further tests are to be conducted, I cannot attach much weight to it.

[154] She also testified that she cannot predict the neurodevelopment of the child because of the in-utero drug use.

[155] Dr. Nguyen indicated that it is important for children to bond with their parent or caregiver and that it is a natural thing for good development.

[156] I found that the physician's evidence was straightforward, fair, objective, non-partisan and within her area of expertise.

[157] The evidence of in-utero drug use by C.F. was corroborated by two separate drugs test and confirmed by the Finnegan Scoring. I find that C.F. could have put her child at risk by using drugs whether they were taken for her pain or otherwise. From the records at the hospital she didn't disclose the taking of any medication while pregnant.

[158] Further C.F. continues to have considerable pain from her teeth and has been unable to address it. If she continues to use non-prescribed medication it could impact on her parenting.

[159] C.F. asks that the evidence of drug use not be considered. She refers to the Motherisk Hair Analysis Independent Review of the Honourable Susan Lang dated December 17, 2015. Although the report considers hair follicle drug and alcohol testing, I am asked to apply it to the urine screen and meconium test. I am mindful of the court's role to ensure that expert evidence is properly qualified before being considered. I am aware of the problems with the Motherisk hair follicle testing.

[160] C.F.'s document brief contained articles, one written in 1999 by a physician concerning drug testing. Meconium testing is described as a "new method for detecting drug exposure in infants during pregnancy". The writer indicates that the clinical studies showed that "the increased sensitivity of the meconium drug test compared to the urine (infant) testing has been subsequently confirmed by other reports". Methods of testing were discussed. I find that I cannot take judicial notice of an article without context or expert interpretation.

[161] However, I accept that the hospital tests were clinical not forensic and it was the combination of the screens with the baby's withdrawal symptoms which is concerning. Further C.F. alleged that the opiates in her child's system were caused by drugs that she was administered at the hospital but this was not correct. Only later did she suggest that the drugs in the child's system were from Tylenol 1 and 3.

[162] Further C.F.'s document brief contained an article written in 1995 concerning false positives and false negatives in meconium drug testing written by authors unknown to me in a journal unnamed. Again, I cannot consider this as expert evidence, nor can I take judicial notice.

[163] In this case the Society is relying on past parenting as much as the fact that this child was born with neonatal abstinence syndrome. Although I cannot find that an unborn child be found in need of protection, when a child is born with evidence of drug withdrawal to a mother whose older five children had evidence of drugs in their systems at the time of their births and C.F. has admitted using cocaine and illicit drugs in the past, there may be a risk to this child. The question is the degree of risk. I am mindful that the drug testing used to test the urine and meconium were clinical tests and there was no expert analysis.

[164] The Agreed Statement of Facts relating to findings made with C.F.'s elder children in child protection proceedings were filed. It was accepted that C.F.'s eldest child was born addicted to cocaine. Further, her second eldest child was born with evidence of cocaine in her system. C.F.'s twin children with born with evidence of "cannabinoids" in their system and her fifth child showed exposure to cocaine, opiates and cannabis, among other drugs.

[165] C.F. has indicated that she would submit to urine drug testing, but that has not occurred. There was evidence that she would have had a drug screen on May 12, 2016, but she didn't attend for her physical. There is no evidence of active drug use by the mother at this time.

Parents' Counselling

[166] Charles Tapp testified as to his involvement with C.F. and C.M. at the request of the Society. He testified that he was providing counselling to C.M. to address past trauma, but he also involved C.F. in the counselling as she was part of the plan for the child, C., to be returned to the care of his father. More recently, Mr. Tapp has been retained to provide counselling for C.F. to address her past trauma experience, anger, anxiety and trust issues.

[167] C.M. started counselling with Mr. Tapp, but had no contact with him from December 2015 until approximately April 2016. Mr. Tapp indicated that C.M. indicated to him that he was looking for a home and that the counsellor had the wrong number for C.M. and that C.M. didn't have a cellphone. So for period of five months he did not work with C.M. or C.F.

[168] Mr. Tapp indicated that he had met with C. because he needed C. to buy into the counselling. He worried that C. would sabotage his placement in foster care trying to get home sooner. He told C. that he would be able to go home after his father had worked on matters.

[169] Mr. Tapp felt he had to work with C.F. because she was living with C.M. at the time. Mr. Tapp indicated that he is now working with C.F. on her issues of trauma. He was very concerned when he met with her recently as she presented as sick and not in the best of health, yet she was motivated to continue her counselling. She complained of a number health issues including her teeth, lumps on her shoulder and back, and difficulties in obtaining medical assistance.

[170] He was concerned about continuing the counselling because she was in so much physical pain; he did not wish to cause her emotional pain.

[171] He does not believe she is engaging in counselling to have the return of her child. He indicates that she is there to deal with the issues of her trauma.

[172] He indicated that C.F.'s goals in counselling were to address her trauma, anxiety, and her trust and anger issues. He indicated that working with C.F. was like a "work in progress" and he will work with her in trying to help her with managing her emotions and establishing coping skills to deal with her anger, trust and trauma issues. Counsel for C.F. asks that I not consider this evidence of a "work in progress"; however, I find that it is an accurate description.

[173] Mr. Tapp described C.F. as passionate and becoming upset and crying and angry; however, he clarified that she doesn't yell at Mr. Tapp, but she can be upset with him.

[174] He describes C.F. as having generalized anxiety in addition to her trauma issues.

[175] He described working with the couple and indicated because they both had trauma issues and they both had similar dispositions, they would both fight with each other to prove that they were right. He was working on their ability to have a win/win situation. He described them on June 12, 2016 snipping back and forth, but when he lifted his eyebrow, C.F. stopped.

[176] He said in his trauma work, he finds that someone who has suffered trauma feels they have to defend themselves because no one else will. They tend to get worked up over things and react similarly to how they would in the trauma situation. He says they need to learn better coping skills. I agree that C.F. could use better coping skills and requires more assistance from Mr. Tapp to address her challenges.

[177] I found Mr. Tapp to be a fair and objective witness in describing his work with C.M. and C.F. He did not give any opinion on the issues of the parents' ability to raise their children. He was not tendered as an independent expert.

Parents' Evidence and Plans

D.L.

[178] When D.L. testified on June 13, 2016, the paternity test was not complete; however, he indicated that he had thought he was the father of the child. He indicated he would like to put forward a plan to have joint custody with C.F. or with his mother, D. He is the father of mother's three youngest children who are all in the care of the maternal grandmother and step-grandfather.

[179] D.L. is living in a three bedroom home with another person. He does not know much of his roommate's background but indicates he is facing criminal charges. He is not aware of what the charges are, but feels it is personal and he has not discussed them with his roommate.

[180] He described having a criminal record, but indicates he has not had a criminal conviction record since 2011. He does admit that he has assaulted C.F. He indicated his criminal record was for robbery and assault.

[181] He is employed across Ontario in different poultry farms. He does not know his schedule until Sunday of each week. His mother, who works as waitress may be part of a plan for the child. He described his relationship with the maternal grandmother as good. He spends a lot of his spare time at her home visiting with his children. He says he plays outside with the children and he has a positive relationship with them and the grandmother. He also sees the children sometimes at his mother's home. He does not see the children outside of the grandparents' homes.

[182] He described having a conflict-filled relationship with C.M. He indicated that last year he had a verbal conflict with him, but does not recall the particulars. He said that they were yelling at each other on Front Street, but he walked away and they both went their separate ways. He said that there was conflict because he was the ex and C.M. was the current and they were going to Court with respect to the child K.L. (C.F.'s fifth child).

[183] He indicated that he and C.F. had not spoken with each other up until a couple of weeks ago, but now their relationship was pretty decent.

[184] He described his children with C.F. as interesting, but with no real description.

[185] D.L.'s plan was devoid of any detail, which is understandable because he did not know he was the biological father until recently, although he had suspicions.

[186] C.M. and C.F. intentionally told the Society that C.M. was the biological father because they feared otherwise C.M. would not have access to the child. When offered paternity testing C.M. refused. The child has been in care for over one year. During that year D.L. has exercised access with his older biological children, but he has not even exercised unsupervised access to them; therefore, his plan is not viable. His mother supports his plan, but she is not in a position to provide full time care for the child. After D.L. testified, he started having supervised access. There are no issues with the access.

[187] I find that D.L.'s support for C.F. would be very limited. He works full time and he and C.F. have had conflict resulting in criminal charges in the past.

[188] The affidavit of the kin worker, Linda Howard dated April 29, 2016 confirms that no one in D.L.'s family is able to present a plan for the child.

C.M.

[189] C.M. was an extremely slim man who did not appear particularly well when he testified. He was polite and answered questions directly. He had filed a trial affidavit dated May 24, 2016. It was filed before the DNA paternity testing of D.L. was received.

[190] He described being in a relationship with C.F. since approximately 2013. He testified that he had a very bad memory and he did appear to struggle with dates. He is on a disability pension.

[191] C.M testified that he and C.F. are separated and he is no longer presenting a plan for care and custody of the child. He admitted that he was not the biological father, but didn't tell the Society because he believed they would not have allowed him to be involved in the child's life. He said that C.F. told him that her doctor said it could be possible that he was the biological father despite his vasectomy. C.M said he wanted to believe he was the father and he chose to be the child's father. He said "a father is a father; a sperm donor is a sperm donor". He admitted that he refused to attend for the paternity testing in April 2016 because he knew he was not the father.

[192] The delay in telling the truth to the Society, the biological father and the Court has delayed the permanency planning for the child.

[193] He testified that D.L. had threatened to tie C.F. and him up and beat them up in front of the children. This was confirmed in a police occurrence report filed. He also said that D.L.'s home had a drug raid. He said that he didn't want D.L. back in the picture and he didn't want to find out that he was not the father. Despite these statements, he says that D.L. should have access to the child, O.L.M.

[194] Then he testified that D.L. had bought his son lunch and they were talking civilly and he didn't have any hard feelings. It is impossible to reconcile this evidence except that conflict appears to be an ordinary part of C.M.'s and C.F.'s lives.

[195] C.M. described some considerable conflict in his relationship with C.F. He described loud yelling arguments about three times a month. He said C.F. threw things at him including scissors. He denied that these arguments occurred in front of his son C., but C. has told Society workers otherwise. The conflict is not just directed toward C.M. He has been the aggressor according to the police occurrence reports and his criminal record.

[196] In July 2014 C.M. was charged with making death threats to a Society worker and a Judge involved in the child protection proceeding of his son, C. The charges were serious. He plead guilty and received a custodial sentence.

[197] Although C.M. was convicted of assaulting C.F. in November 2014, he now denies it. He claims he and C.F. were separating and D.L. came to help her obtain her things. The police occurrence report indicates the date was November 13, 2014. He said he and D.L. were grabbing each other. There was an altercation, the police were called and he was charged, plead guilty to assaulting C.F. and served a jail sentence. Shortly thereafter C.F. asked probation to remove the no contact provisions so they could be together again.

[198] C.M. testified and the workers have confirmed that he has benefited from his anger management programing. His 12 year old son was returned to his care from Society wardship in April 2016.

[199] C.M. testified that although C.F. has anger issues that she should address, she is not as bad as the Society thinks. He said that C.F. has a great bond with the child and this is the "sixth kid that she lost. She needs to be given a chance".

[200] I found that C.M. minimized C.F.'s anger and the conflict during the access visits that the Society workers observed. C.M. blames the Society for the fact that he and C.F. are not together, but concedes that she threw scissors at him. He also admitted that his son may have been afraid when C.F. got angry and yelled. He said when C.F. made a face; especially with her teeth missing, she was frightening to his son.

[201] C.M. testified that he and C.F. usually fought about the Society and Court issues. The police were called to their home on November 15, 2015 because of their loud arguments. He admitted that they fought about other things however. They both have strong opinions. He testified that he does not have a back bone with his son and C.F. will try to get him to be more firm. Because she is more of a disciplinarian, his son sometimes doesn't like her, he says.

[202] In his affidavit, C.M. said that in February 2015 there were discussions about C.F. and him separating, but they didn't. He admitted that he didn't follow through with his counselling for anger issues and relationship issues with Mr. Tapp for a number of months. He admitted that there were arguments during the access with O.L.M., but he said it was just a tone C.F. used, not yelling.

[203] On May 4, 2016, C.F. and C.M. decided to separate. His affidavit indicated that "the separation is for the best". Yet C.M. blames the Society for his breakup in his oral testimony. C.M. admits that the worker for his son, Ms. McCoy, told him that he and C.F. were not to live together.

[204] C.M went back to the family home after the May separation and C.F. agreed to leave the home, so C.M. and his son moved back. However, C.F. returned back to the home telling C.M. that she and her friend had an argument.

[205] The police were called by C.M. who wanted to have C.F. removed from the property. She didn't agree. She wanted to have the residence for her and her daughter. C.M. wanted it for him and his son.

[206] On May 12, 2016 C.M. and C.F. were fighting at their home. The workers thought the parties were separated. C.M. said that they were fighting about his son being bullied by the children at the complex. The police had to be called because of the conflict and the yelling of C.F. C.M. said he wanted C.F. removed from the home. C.M. described C.F. as then yelling at Ms. Lockwood who had arrived to drive C.F. to a doctor's appointment so she could have her teeth removed. Because of the aggression towards her, Ms. Lockwood left. He told Ms. Lockwood that he wanted to leave C.F. He said he was worked up at the time.

[207] He testified that C. heard the yelling and was scared. C.M. said he was probably scared about him going to jail because he went to jail last year.

[208] The Society worker Ms. McCoy then took C.M. and C. to his sister's home. C.M. said that the worker told him he was not allowed back.

[209] Yet on May 17, 2016, C.M. returned with his son to the complex. He told the worker that things had calmed down. He testified that he didn't know that he had to stay away indefinitely. C.M. testified that the worker took his son for lunch while he packed their belongings.

[210] The worker took him and his son to a hotel. Again C.M. returned to the complex on May 24, 2016 and there was conflict and police involvement.

[211] The evidence was convoluted and confusing about the incidents on May 24, 2016. C.M. testified that he left his son with his parents while he went into town to do some things. He said his parents had dropped C. off at the complex and that C. had run away from C.F. He said that the police were called to help look for his son and he arrived at the same time as the police did.

[212] Although his son said that C.F. had tried to restrain him and spank him, C.M. didn't believe him. He believes that his son was angry because he couldn't go swimming.

[213] But later he testified that he had returned to have the police remove C.F. from the residence and that is why he was there. He said that he couldn't remain at the hotel, yet the hotel was paid for two weeks. There were inconsistencies in the evidence.

[214] Despite all of the conflict, he testified that C.F. helped him with his son. She provided structure and even helped write C. a note to give to residents of their complex to give his son odd jobs to buy a bike. He said although his son has said that he hates C.F. he has also called her "mom" and said that he loves her too.

[215] He said he has had problems with his son's behaviours since he and his ex-wife separated. He described his son setting a dumpster on fire and having problems in the classroom. His son had been in the care of his parents and when they could not mange him, he came into the care of the Society and subsequently returned to C.M.'s care in April 2016. C.M.'s affidavit is clear that the Society wanted him to focus on his son.

[216] He described it being difficult with his son now because he has no housing, and his son's acting out behaviours are escalating. He described his son refusing to go to school and running away. He wanted the Society worker to tell his son that there are things that he does that might cause him to go back into Society care. C.M. said it is not all his fault. C.M. appeared to want the worker to threaten the child with an apprehension into Society care if his behaviours didn't improve.

[217] I find that C.M. had an opportunity to focus on his son, but instead he divided his attentions to C.F. and her child and because of that, his child and all involved have suffered.

[218] As to the statements made by the child, C., to Society workers, some in the presence of the father, the father concedes that they may have been made, but they are not all true. For example, he denies being hit by C.F., but hesitated when asked the question. He said that Mr. Tapp told him to just walk away and that's what he does. He says the only hitting between him and C.F. was playing wrestling. He claims that his sister has told things to his son because she doesn't like C.F. and that is how C. knows about the things being thrown.

[219] C.M. confirmed that his son made the statements to the Society workers during the dispute on May 12, 2016. He does not deny that his son may have told the workers that things would be better if he were with his father without C.F. However C.F. in her testimony indicated that C. occasionally calls her.

[220] C.M. describes C.F. as more organized than he. He says that her children who are raised by the grandmother are different than his son. He testified that they have good routine and structure with their grandmother.

[221] He describes O.L.M. as very happy to see her mother and that they have a good bond.

[222] He does describe some serious health issues of C.F. He says that she has terrible pain in her teeth and has taken Tylenol 1 and 3. He denies she got the pills from his mother as he told one of the Society workers. Given C.F. has no prescription for Tylenol 3; she must have obtained them illegally.

[223] He says that C.F. now has lumps all over her body, and she will be up three or four times in the night to take showers for the pain and it is affecting the water bill.

[224] He described recently going with C.F. to the hospital because of her pain. She said she has been three times recently and has received no medical help. On the last time he said that they were asked to leave the hospital because of conflict with staff there. He described the physician as ignorant. He said they were in the waiting room for 8 hours and other patients were taken before them and they became angry. He said when they saw the doctor, C.F. became upset with the way the questions were being asked. I find that the conflict in the lives of C.M. and C.F. are not just related to the Society.

[225] He also described C.F. saying she wanted to beat up his sister over books that had been loaned to her. C.M. testified that his son may have heard the discussions. He said that his sister wasn't fair to C.F.

[226] I am concerned that C.M. was asked to leave the family home and he is now in the home of his parents with inadequate accommodation. He describes his parents as being worse than C.F. and him. The Society should be assisting him with more appropriate housing.[1]

[227] I am satisfied that C.M. is trying to be helpful to C.F. but their relationship is not healthy and has impacted on C.M.'s son.

[228] C.M. testified over two days, June 17 and June 28, 2016. C.F. was not present on June 17, 2016 because her of illness. On June 28, 2016 she missed Court because of an appointment with her O.W. worker to make an application to stay in her home. On both of those days C.F. was not present for part or all of C.M.'s testimony. When she did return during C.M.'s cross-examination, she became upset with his answers and because of her outburst was asked to leave the Court room. She muttered that he doesn't remember anything. If this was the type of bickering that the Society workers observed, I share their concerns about the child being exposed to conflict between her and C.F.

[229] C.M. testified that for a short time C.F. had her two eldest children for access every weekend, then one weekend a month because his son was having problems sharing. At the time of the trial C.F. was not having unsupervised access with her eldest children and no evidence was lead. I have been lead to believe there is conflict between her mother and her.

[230] C.M. said he did not have a problem with the grandmother. "They" were nice and talked to him. Yet he said the respondent mother was not fairly treated. No details were provided and the grandmother did not testify.

[231] I find that C.M. has many responsibilities in caring for his son. Given the descriptions of the workers and C.F. that he has difficulty with following through on tasks and providing structure and stability, he is not able to assist C.F. in her care of O.L.M. I find that he minimized the conflict between C.F. and him and I accept the worker's version of conflict during access.

C.C., friend and neighbour of mother

[232] C.C. provided an affidavit. She described C.F. as a good mother with patience and good parenting skills. She says C.F. often babysat her son who has severe oppositional defiant disorder and does well with him. She says she is involved with the Society, but only on a voluntary basis because her former partner assaulted her in front of the children.

C.F., Mother

[233] C.F. testified and provided a trial affidavit sworn May 13, 2016.

[234] C.F. had difficulties in attending the trial. One day because of the pain in her teeth, one day she had to leave early for an appointment to keep her accommodation and on two other days she had transportation problems and was late.

[235] She is 24 years of age and is supported by Ontario Works. She did not look well during the proceedings, which was also noted by various workers.

[236] She testified that she is not in a relationship at present but was with C.M. for three to four years. During this time she and C.M. separated a few times and then she was in a relationship with the respondent father D.L. Although she says she is not in a relationship with C.M. he has attended at the Society office with her, he shares access with O.L.M. and has gone with C.F. to hospital for assistance. I find that they are still maintaining a relationship but not residing together.

[237] C.F. is living in a two bedroom home in a complex with geared to income housing. She indicated that there are a number of children in the complex and she knows many of the other residents. There are several police occurrence reports describing conflict between C.F. and other residents involving C.M.'s child. There were also police occurrence reports on conflict at other residences and with other persons. She described these incidents and minimizes the conflict.

[238] C.F.'s plan is to live by herself and follow the supervision of the Society. However she doesn't agree that she requires supervision. She believes that her child should not have been apprehended from her. She believes that her accommodation in the trailer was adequate and although her child was born with drug addiction and had to be treated with morphine for neo natal abstinence, her drug use was not a problem. C.F. was asked to obtain drug urine screens to prove that she was not using drugs and no urine screens have been obtained, although none were arranged by the Society.

[239] She consented to a finding that her child was in need of protection, in part, because of the child's urine and meconium testing and the neo natal abstinence syndrome, but during the trial it was clear that she felt the finding was unfair. In previous Court cases involving all of C.F.'s older children, there were consent orders made confirming C.F.' s drug use. These consents or statements of agreed facts were filed as exhibits.

[240] C.F. in her trial affidavit indicated that she had consented to her older 5 children being placed in the care of her mother. The children were all found to be in need of protection. The issues were C.F.'s drug use, domestic conflict, criminal activity, mental health issues and neglect. Again during the trial C.F. tried to deny that she had consented to all her children being apprehended for her drug issues. Her affidavit filed indicates that she didn't go to trial for her older children because she was not ready. Yet the evidence was that C.F. had drug issues when all of the children were apprehended. Further, C.F. was in drug counselling for opiate use in 2013 and 2014.

[241] C.F. testified that she consented to her mother having custody then she testified that she had signed herself into CAS care at 12 years of age because of her step father's abuse. Yet her mother and step father have been providing care for her five children with her consent. She stated that she is now ready to raise this child.

[242] Her evidence is inconsistent in that she denied drug use with the younger children yet there were agreed statements of fact confirming drug use. Further, some of the children experienced drug withdrawal similar to O.L.M.

[243] She testified that her drug use while pregnant with O.L.M. consisted of marijuana and Tylenol 1 and 3 for the pain of the abscesses and rotting in her teeth. However she has also stated that she didn't use marijuana and the positive marijuana urine screen was from being exposed to C.M.'s second hand smoke. She testified that she didn't know that the medication she took for pain had opiates in them. She testified that she hasn't used cocaine since the kidnapping in August 2014. Her hospital records indicated that she smoked a pack of cigarettes a day during the pregnancy. The child was very small at birth and had to be monitored because of that and the drug addiction. C.F.'s birth weight at delivery was 95 pounds.

[244] C.F. minimized her drug use indicating she could have stopped the use of cocaine at any time in the past. However, all of her children were exposed to her use of drugs while she was pregnant. Although C.F. may not have used cocaine during her pregnancy for this child, the child was born with symptoms of addiction to drugs and received morphine to address the withdrawal symptoms. Counsel for C.F. asks that I not consider C.F.'s drug use during her pregnancy as a protection concern. However, C.F. consented to the finding that the child was in need of protection. Pursuant to Section 50 of the Act, I can and do consider the previous findings made for the five older children where C.F.'s drug use was an issue.

[245] In the past, C.F. has refused to go to drug rehabilitation because the Society would not consent to the return of her child or children after the program. She didn't return to the drug counselling she had attended in the past. There was no medical evidence to address C.F.'s health challenges.

[246] The Society's position was that C.F. should deal with the problem of her teeth and assisted her considerably. However, C.F. blames the Society worker, Ms. Lockwood for not picking her up on May 16, 2016 for an appointment. This is despite the fact that on May 12, 2016 C.F. told the worker that she never wanted to deal with her and for her to leave her home. She had the worker's phone number, but didn't call to confirm that she would drive her to the appointment. Instead she blames the worker for not picking her up for her appointment. She also said that she had no time on her phone and her worker should have known this because she often runs out of time before the middle of the month.

[247] C.F. testified that she has had problems with her teeth since she was a child and she has a phobia of dentists. C.F.'s teeth that remain discoloured, some black and some missing. She has considerable pain that has caused her to take Tylenol 3 without a prescription when she was pregnant. She testified that she has bad teeth because she has had so many children so close together. Yet she has chosen to have 6 children before her 23rd birthday. She does not see her previous cocaine use as a cause of her rotting teeth.

[248] C.F. testified that she does have to take showers to help ease her pain from her teeth. She also admitted that she was often in the shower when her daughter came for her access to the home. She testified that the Society was often late. Yet she was not ready to receive her daughter because she was in the shower. She wasn't able to prioritize or the pain was unmanageable. Either way, it impacted on her ability to have the full access time with her daughter.

[249] She also testified that she has lumps on her body. She says these are from the infection from her teeth. She minimizes her health issues and says she will be able to care for her child and really doesn't need the Society intervention. C.M. testified that she would be up in the night three or four times and C.F. testified that in the morning she needs a long shower to help her start her day. I find that C.F. has not made good decisions about her oral health. I also find that her pain and her pain management has impaired her ability to commit herself to her daughter during access.

[250] C.F. testified about going to the hospital several times and getting no assistance and being asked to leave. She was not able to control her temper. She likely was in terrible pain and had a very long wait to see a doctor, but again it shows that she has medical issues that are unaddressed.

[251] Further, during the trial and during submissions C.F. has often appeared very ill, with her eyes closed, almost nodding off, and sometimes holding her mouth. She is also extremely thin.

[252] C.F. agreed that the Society wanted her to seek counselling for trauma and anger management. She did not agree that she needed counselling for trauma. She agreed that she had been assaulted as a child. She agreed that she had been kidnapped and held against her will for 2 weeks, but she didn't suffer trauma from that. She testified on re-examination that she didn't want to answer questions about the kidnapping because she didn't feel it relevant. She also said she had been traumatized at the time, but she had moved on. She also testified that she no longer had contact with those involved in her kidnapping and assault.

[253] C.F. was inconsistent on the issue of trauma. She described an incident in November 2014 when C.M. was charged with assaulting her. She testified about the police occurrence reports made around that time. She denied that C.M. actually assaulted her although she called the police and reported a fat lip. She also reported that she was afraid in her home and needed assistance to obtain accommodation. She denied the police reports and said that the persons who had held her hostage, assaulted and abused her were not in custody at the time and she was concerned. She said that was why she asked for help to go to the shelter. She denied it was because of C.M. that she called the police. Yet when asked if she suffered trauma as a result of the kidnapping, she said no. I find that C.F. is trying to minimize the conflict and difficulties in her life and I don't accept her denial of physical conflict with C.M.

[254] She also testified that she didn't want to relive things that she had experienced. She did not go to the counsellor that the Society arranged for and was willing to pay for in the fall of 2015, she waited until April 2016 and asked to go to the counsellor who was providing C.M. counselling. It was C.M. who suggested that she ask to see Mr. Tapp and he indicated that she needed help for her anger issues. C.F. had various excuses for not seeing the earlier counsellor such as not knowing her address or the counsellor not contacting her. I find that she did not want to go to the counsellor because she doesn't acknowledge her emotional and mental health challenges. Despite the psychological reports indicating that the mother had no psychological diagnosis I find that she had serious issues with anger and relationships.

[255] C.F. knew that the Society felt it was important to deal with her trauma, anger and relationship issues yet she didn't until the eve of trial.

[256] C.F. minimizes her anger issues. Yet even during the trial she lost her temper on several occasions, once when C.M. testified and when being cross-examined. She minimized her temper and anger issues displayed during her access. She indicated that it was not as serious as the Society indicated. However, there were many workers who commented on her anger towards C.M. Further, C.M.'s child commented on her anger and being afraid of her.

[257] C.F. minimized the conflict she has experienced with acquaintances or others in the community. There were several police occurrence reports where she was in an altercation with other persons and the police were called. She minimized by indicating that there was no physical violence or that the incident was exaggerated or that she was the complainant. In November 2015 C.M. was hit by the boyfriend of her acquaintance. This occurred in the community outside a bank.

[258] The challenge for this Court is that C.F. wishes to have a young vulnerable child placed in her home. She has had considerable conflict with neighbours, friends, boyfriends, step father, and mother according to her testimony and the police occurrence reports. She has also had conflict with hospital staff, Ontario Disability staff, and Society staff.

[259] When the elder children were in her home for access in February 2016, the child B., who has Asperger's or Autism, left the home not fully clothed and the police had to be called. C.F. claims she did all she could to keep the child in the home yet the child was able to leave.

[260] Charles Tapp describes C.F. as having considerable work to do with her issues of trauma and anger. He called her a "work in progress". C.F. asks that I disregard his evidence because he is not an expert in trauma. The counsellor does not need to be an expert in trauma to give an opinion as to his day to day work with C.F. She wanted to attend counselling with him. She knows the reason for the referral. To address the trauma in her life was one of the reasons. I agree that C.F. needs to accomplish more in her emotional and mental health. She testified that she has done everything the Society asked her to do. Yet she has not.

[261] C.F. testified that she is a very good mother. I find that she has good skills and knowledge as to how to care for a child during the supervised access. Yet the emotional care of a child is as important as the physical care. She testified that she sings to her daughter and provides good care. She proudly testified as did Ms. Lockwood that she is the child's primary caregiver during the access which occurs three times a week for about three hours each visit. Since she and C.M. have separated, she has offered him half of her visit. She has also brought D.L. to her visits to introduce him to her daughter.

[262] When questioned as to why she didn't tell the Society that D.L. was the biological father of her daughter, she angrily replied that the Society never asked for paternity testing until recently. The Society does not have the knowledge as to the potential biological fathers but I agree that they could have taken more initiative to determine who the biological father was especially when they knew that C.M. had had a vasectomy. However, C.F. was not honest when she had C.M. sign the birth registration as the biological father, as she didn't know whether he was. She said that it was only recently that the child staring showing facial features of D.L. She helped to delay these proceeding by not being forthright with the Society. I find that she knew D.L. was the biological father.

[263] She also testified that she and the foster mother have a good relationship and she sends things for her daughter. Yet she denied that she had been invited to attend doctor's appointments. She has the foster mother's cell number and testified that she has texted her before when she was going to be late or miss access. If C.F. really wanted to be included she would have followed up with the foster mother.

[264] The foster mother texts C.F. and lets her know how the child is doing even on weekends and when they are on vacation.

[265] C.F. testified that the Society has caused her and C.M. to separate because they will tell them each different things. She takes very little responsibility for the conflict in their relationship. This is despite her testimony that she has separated from C.M. over the time that they have been together.

[266] In October 2015 she testified that the conflict between her and C.M. was not as bad as described by the Society. She very reluctantly agreed that she had talked about separating from C.M. and the worker was being helpful by telling her that she and the child could have their own accommodation through Youth Habilitation. If C.F. had taken the help of the Society, received assistance for her trauma and anger and addressed her drug and health issues, the Society's position may have been different.

[267] C.F. testified that C.M. would look at her social media accounts to check on her to see if she was faithful. He once left a 12 year old with her to babysit her while he want to his PARS program, presumably as part of his sentence for the assault on her (that she said did not occur). She also testified that they fought often about who was right and who was wrong. She also testified that he didn't hear well, so she was constantly repeating herself and that was frustrating.

[268] Her testimony is inconsistent, she says the Society caused her breakup with C.M., yet she describes many situations where there relationship is not healthy. The Society likely put more stress on the relationship but the relationship was not a solid one and had elements of control and conflict like the relationships she had with the fathers of her older children. C.F. in her affidavit indicated she was living with C.M., yet within the month they had separated. I accept the evidence of the Society workers as to the relationship conflict.

[269] She indicated that as of November 2015 she has had appropriate accommodation. This was 4 months after her daughter was born.

[270] On August 3, 2016, C.F. was to have a visit at the Society with the new worker, Ms. Danila Turco. C.F. arrived one hour late. The worker told her that in the future if she is 20 minutes late the visit will be cancelled. The visit went well for over an hour then C.F. asked the worker if they could go for a drive but they could go to the park. The worker did not have a car seat. The worker went to look for a stroller, but could not find one.

[271] C.F. escalated and became extremely angry, accusing the worker of being lazy, not doing her job and that she (C.F.) was allowed to do whatever she wanted during her access. She demanded a new worker; she told the worker she had no right to refuse her request of activities during access.

[272] C.F. stated that she had not asked for a ride, but to go to Tim Horton's for lunch. The child's lunch was provided by the foster mother. C.F. indicated that the child liked Tim Horton's doughnuts.

[273] C.F. testified that the worker simply said that she didn't feel like leaving the Society office. She was yelling at the worker while the child was in her arms. The worker described the child looking startled with wide eyes.

[274] C.F. went to talk to the worker's supervisor Ms. Lynne Tebo. The worker asked her to wait until the end of her visit, but she refused.

[275] The supervisor did come and was able to calm C.F. somewhat. C.F. then went outside and C.M. was in the parking lot. C.F. said she called him because she thought her visit was ending. C.M. spontaneously said the worker "she can get really mad". After C.M. arrived the situation calmed down.

[276] C.F. testified that the child was not upset; otherwise, she would have been crying or fussing. However, she had the child in her arms while yelling and later while smoking. C.F. does have problems with emotional regulation. The reaction was out of proportion to the problem of not going for a ride in to Tim Horton's.

[277] I find that C.F. did not behave in a child focused way. This is not the first time that she has become angry in a way that is out of proportion to the situation.

[278] C.F. asks that I not consider the evidence of the worker and her supervisor since it was with respect to an incident that occurred after the Society had closed its case. However, submissions had not been made and C.F. had not finished testimony. When trials are not held over consecutive days, there is a problem that new evidence will have to be admitted. Further evidence that arises after the application is filed can be considered as a protection concern, so long as there is adequate disclosure. See Children's Aid Society of Hamilton-Wentworth v. KR and CW, (2001) OJ No 5754.

[279] Mother's counsel indicated that she had received disclosure of a number of access visit case notes that showed this incident was an anomaly.

[280] Although the Society objected, I allowed the filing of the notes. The notes are from various child protection workers from June 15 to August 26, 2016. There are notes on 24 scheduled visits. During the scheduled visits, the workers note that C.F. does well in caring for the child. However, there are a large number of times where C.F. leaves to have a cigarette, washroom break or phone call. C.F. is late on a couple of occasions and missed 8 visits. She does not appear well on some of the visits and the worker had to warn C.F. that her managed access program may be cancelled because of the number of cancelled visits. During one of the last visits on August 16, 2016, the worker comments on how the child does not want to go to C.F. and tears up when transferred from the foster mother to C.F. Although the child appears happy in C.F.'s care, when C.F. leaves the child is content, too, in the care of the worker and smiles at her.

[281] C.F. does not present any family plan as an alternative to the child being placed with her. The kin researcher did contact family members and was unable to find anyone able to assist. Counsel agreed to the filing of the worker's affidavit. She spoke in person to C.F.'s mother who indicated she would NOT provide a plan and did not want to enable C.F. Five other family members were proposed and they also declined presenting a plan to care for O.L.M.

[282] I find that C.F. has minimized her difficulties and has not been able to show that she would be able to care for her child when she cannot attend many of the access visits and she continues to suffer from considerable pain. She says that her dental problems will be resolved on November 2016, but there is no guarantee that will occur. C.F. has gone to hospital before and had to leave before getting treatment because of her conflict with staff.

[283] I find that the conflict between C.F. and her partner and the Society could put O.L.M. at risk of emotional harm that a supervision order could not protect. C.F. and C.M. could not stay away from each other even when C.M. was warned that it could impact on having his son with him. The child C. was impacted by the conflict and a young vulnerable baby would be too. I do not require expert evidence to show that yelling loudly and gesturing angrily while a baby is in your arms or present could impact on the child and cause her to be anxious or withdrawn.

[284] I find the child is in need of protection due to risk of emotional harm in addition to the findings made on consent on November 24, 2015.

Disposition

[285] Having made a determination that the child is need of protection, I must determine the permanent placement of the child in accordance with the child's best interests.

[286] Section 1 of the Act provides that the paramount purpose is to promote the best interests, protection, and well-being of children. The additional purposes include recognizing autonomy of the family unit and providing help for them, exercising the least disruptive course of action that is available, and providing services for children that respect their need for care and continuity. I find that the Society has offered considerable support and services to C.F.

[287] I must consider the child's best interests as set out in section 37(3) of the Act. It reads as follows:

Best Interests of Child

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

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

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

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

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

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

6. 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.

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

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

9. 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.

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

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

[288] In considering Section 37(3) of the Act, I find that C.F. has made improvements in her life since her child K.L. was placed in the care of her mother in 2014. I find that she loves her daughter and wants her to be in her care. I find that she has made improvements to her life since 2014 when her last child was made placed in the care of the maternal grandmother.

[289] The child at this time does not appear to have any special needs although the impact on her development of the drug use is an unknown.

[290] The mother is now taking counselling to deal with issues of trauma, anger, anxiety and trust. She appears to have a good relationship with her counsellor.

[291] She was able to get appropriate housing in November 2015.

[292] She has shown good child care skills during access and she and her daughter appear attached to each other.

[293] However, she continues to struggle with attending visits on time or at all. Even during this very serious Crown wardship trial, she had difficulties in attending on time and missed some days at Court as a result.

[294] She has serious health issues. She has abscessed and rotting teeth and now has lumps over her body that cause her considerable pain. She appears very tired and in discomfort during the trial proceedings.

[295] She has had considerable conflict with her partner, some Society workers and others in her life such as the Disability worker or hospital workers. Even during the trial she has been unable to control her temper.

[296] I find that C.F. would have difficulty in meeting the needs of the child if she were placed in her full time care. She would not have the option of not caring for the child when she is not well. She would be responsible for getting the child to medical appointments on time.

[297] Further, the conflict and turmoil that is often in C.F.'s life and C.M.'s live is not positive for the development of a young child. The child cannot talk and express her distress or walk away from a situation. She is very vulnerable.

[298] The child appears to have a relationship and emotional ties to C.F., but since this application was commenced C.F. has had conflict with her mother and conflict with C.M. If the child had been in the home with C.F. she would have been subject to the insecurity of those relationships. The child is entitled to have a safe, secure and stable home.

[299] C.F.'s plan is to do what the Society asks, yet she claims that she is a good parent and requires no supervision. She does not accept that the baby could be at risk in her care.

[300] If the child is made a crown ward her relationship with her siblings will be terminated but there is no evidence that this would harm her. She is too young. The merits of the Society plan are that the child will be in a stable home free from undue conflict, criminal activity, and drug use. If the child is returned to the care of the mother, she may be able to care for the child for a time but I cannot ignore her heath issues, her unmanaged pain, her difficulty getting up in the morning, her conflict with partners and service providers, past drug use and past association with a criminal element that harmed her. I place no blame on the mother for the kidnapping as she was clearly the victim but I cannot ignore the drug context.

[301] If I delay this case to allow for more visits in the home, Society wardship or additional counselling for the mother, the child will have exceeded the statutory limits that a child can be in care. Pursuant to section 70 of the Act, a child can be in care only one year when under the age of 6 unless extended and even then it cannot be extended more than 6 months. Here child has been in care for 14 months.

[302] The Society asks that the child be made a Crown ward and placed in their care without access for purposes of adoption.

[303] Crown wardship is the most intrusive and profound order that a Court can make. The test is not whether the child will be better off with proposed adoptive parents than the biological parent; the question is whether the child will have their best interests met and be provided care that is at the minimum standard tolerated in our community. See Children's Aid Society of Hamilton v. C.(K.), 2016 ONSC 2751 at paragraph 267.

[304] In considering all of the evidence, including the extensive written and oral submissions of the mother and Society, I am satisfied that on a balance of probabilities, the Society has proven that it is in the best interests of this child that she be made a ward of the Crown.

Access

[305] Section 59(2.1) of the Act provides that the Court shall not make and access order unless it is beneficial and meaningful to the child and will not impair the child's future opportunities for adoption. The evidence of the Society is that there is a good attachment between C.F. and the child; however, there is no evidence that the access "brings a significant positive advantage to the child", as set out in the Children's Aid Society of Niagara Region v. J.C., [2007] O.J. No. 1058 (Div. Ct.)

[306] There was no evidence lead as to the issue of access and whether it would impair the child's ability to be adopted. C.F. has a good relationship with the foster mother, but I question whether an access order would impair the child's ability to find a permanent home. I must be satisfied that the access will not diminish, reduce, jeopardize or interfere with the child's future opportunities of adoption as set out in paragraph 427 of the CCAS v. L.S. & W.D., 2011 ONSC 5850.

[307] In the Society evidence, it was suggested that the foster mother may present a plan if the child was made a crown ward. This foster mother has a good relationship with C.F. There has been no evidence of conflict. However, C.F. has had considerable conflict with other persons and Court ordered access may impair the possibility of adoption. She had open access with her two eldest children for a few months and that access ended with conflict between C.F. and her mother and step father, although the details of the conflict were not provided at trial. Any contact between C.F. and her child should be in the discretion of the Society and later adoptive family so as not to interfere with placement for adoption.

[308] The Society, in oral submissions, indicates that they are willing to negotiate an openness agreement with C.F.

[309] However, if the foster mother is not going to apply to adopt this child, another prospective adoptive family may not consent to an openness agreement and an access order may delay the placement of the child. The Society indicated their willingness to negotiate an openness agreement; therefore, I will not make a formal order of access or openness so as not to further delay the placement of O.L.M.

[310] As to the access between the biological father and the child, I cannot find that it is beneficial and meaningful. Further C.M. no longer is in a relationship with C.F. and to order access would not be beneficial and meaningful to the child. Further, an access order may impair the ability of the child to be adopted.

Order

[311] The child, O.L.M., shall be made a ward of the Crown and placed in the care of the Highland Shores Children's Aid Society with no access for purposes of adoption.

Released: September 30, 2016

Signed: "Justice Wendy Malcolm"

APPENDIX

Hearsay Statements of Child C.

What the Statement Is	When the Statement was Made	To Whom Made	Who wants to Introduce Statement	Purpose of Introduction	Parties' Opposition, if any
"I think Dad and C.F. are going to break up but would be okay maybe happy"	March 3, 2016	Ms. Shannon Sturgeon, Chase's former Children Services worker	Applicant – Highland Shores CAS (via Ms. Shannon Sturgeon's testimony)	C.'s state of mind	Okay.
"C.F. always yells at me and don't like it."	March 3, 2016	Ms. Shannon Sturgeon, Chase's former Children Services worker	Applicant – Highland Shores CAS (via Ms. Shannon Sturgeon's testimony)	Truth of Statement's contents	Deny – it is C. yelling at her. He accuses both C.F. and C.M. of yelling at him.
"Daddy and C.F. yell at each other and fight, that makes me feel sad, scared, that teaches me to be like them and why I yell at S., learned it from C.F. yelling at Daddy."	March 3, 2016	Ms. Shannon Sturgeon, Chase's former Children Services worker	Applicant – Highland Shores CAS (via Ms. Shannon Sturgeon's testimony)	Truth of Statement's contents	He was yelling at S. and prior Foster Parents prior to having access with either C.M. or C.F.
"I don't like that she yells at Daddy, I don't think Daddy likes her, she yells bad words at Daddy."	March 3, 2016	Ms. Shannon Sturgeon, Chase's former Children Services worker	Applicant – Highland Shores CAS (via Ms. Shannon Sturgeon's testimony)	Truth of Statement's contents	Tell yell in past, but no bad words.
That there is nothing he likes about C.F. and she steals Daddy from him and makes sure he does not spend time with him, and they are always in the room, smoking.	March 3, 2016	Ms. Shannon Sturgeon, Chase's former Children Services worker	Applicant – Highland Shores CAS (via Ms. Shannon Sturgeon's testimony)	Partly C.'s state of mind and partly for the truth of Statement's contents	Not true – C.F. was good with C. and he often asked her to get his Dad to do something.
"I would not go in there if I were you – they are fighting again."	May 12, 2016	Ms. Kelly Lockwood Child Protection Worker	Applicant – Highland Shores CAS (via Ms. Kelly Lockwood's testimony)	Truth of Statement's contents	Day that C.M. and C.F. were split up
That he did not feel safe around C.F., as she yells at him and his dad all the time.	May 12, 2016	Ms. Kelly Lockwood Child Protection Worker	Applicant – Highland Shores CAS (via Ms. Kelly Lockwood's testimony)	Truth of Statement's contents	Not true.
That C.F. "smashes" and throws things. That his dad and C.F. fight all the time and he was worried that his dad will get hurt.	May 12, 2016	Ms. Kelly Lockwood Child Protection Worker	Applicant – Highland Shores CAS (via Ms. Kelly Lockwood's testimony)	Truth of Statement's contents	C.F. denies throwing anything when C. present. Can't speak to his state of mind.
That he was worried his dad will get hurt. That C.F. has scratched his dad's shoulder before and he saw her do it.	May 12, 2016	Ms. Kelly Lockwood Child Protection Worker	Applicant – Highland Shores CAS (via Ms. Kelly Lockwood's testimony)	Truth of Statement's contents	Not true. C.M. was scratched when C.M. and C.F. were play wrestling.
That he ran away after being dropped by his grandparents because he did not want to see C.F. That C.F. tried to spank him.	May 24, 2016	Ms. Kristen McCoy Child Protection Worker	Applicant – Highland Shores CAS (via Ms. Kristen McCoy testimony)	Truth of Statement's contents	Not true. He ran away prior to seeing C.F.

[1] Subsequently, I was advised that the Society assisted C.M. in finding adequate housing.