WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Date: January 30, 2017

Court File No.: Brampton 20083/12

Ontario Court of Justice

Between:

The Children's Aid Society of the Region of Peel, Applicant

— AND —

C.D. Respondent

G.B. Respondent

S.J. Respondent

Before: Justice P.W. Dunn

Heard on: December 25, 2016

Reasons for Judgment released on: January 30, 2017

Counsel

Ms. S. Kinch — counsel for the Applicant Society

Mr. Raymond Sharpe — counsel for the Respondent C.D.

Mr. Andreas Solomos — counsel for Respondent S.J.

G.B. — self-represented

REASONS FOR JUDGMENT

DUNN J.:

Introduction

[1] There were two motions before the Court. One was by the Children's Aid Society of the Region of Peel (the "Society"), and the other was from Ms. C.D. ("Ms. C.D."). At the outset, I must apologize if by inadvertence I made an error on a date or a fact, such as which persons were living together at a specific time. The events in this case were complicated and sometimes inconsistent.

[2] There will be references in this Ruling to reasons why children were found by a Court to be in need of protection, within the meaning of the Child and Family Services Act (the "Act"). The clauses will be summarized for ease of reading, and short forms used through this ruling.

Statutory Provisions Summary

subclause 37(2)(a)(i) A child has suffered physical harm from the caregiver who failed to care for the child. (physical harm from failure to provide care)

subclause 37(2)(a)(ii) A child has suffered physical harm from the caregiver caused by a pattern of neglect in failing to care for the child. (physical harm by pattern of neglect)

subclause 27(2)(b)(i) Risk that the child will likely suffer physical harm from the caregiver by that person's failure to care for the child. (risk of physical harm to child)

subclause 37(2)(b)(ii) Risk that the child will likely suffer physical harm from the caregiver's pattern of neglect in caring for the child. (risk of physical harm by a pattern of neglect)

Clause 37(2)(f) The child suffered emotional harm caused by the child's caregiver. (child suffered emotional harm)

Clause 37(2)(g) There is a risk that the child will suffer emotional harm caused by the child's caregiver. (risk of emotional harm)

The Children Who Are the Subject of This Motion

[3] The children who are the subjects of this motion are:

M.M.

1. M.M., born 2003 (13 years), a girl.

Ms. C.D. is M.M.'s mother and Mr. D.M.1 her father. Mr. D.M.1's whereabouts are unknown. M.M. is non-verbal and was diagnosed with Global Developmental Delay (i.e., a generalized intellectual disability with significant limitations in other areas of development).

The Twins

1. A.B.1, born 2011 (5 years), a girl

2. A.B.2, born 2011 (5 years), a girl

Together, A.B.1 and A.B.2 are called the twins. Ms. C.D. is their mother and Mr. G.B. their father. The twins have no known physical or intellectual limitations, and are successfully meeting their milestones. M.M., A.B.1 and A.B.2 were apprehended most recently by the Society on 26 April 2016 and placed in foster care.

Procedural Background

Before oral argument on the motions, I read the Society's and Mr. G.B.'s affidavits that were referred to me. I also carefully examined Ms. C.D.'s affidavits sworn 25 November 2016 and 2 December 2016.

The Society's motion, dated 8 November 2016, requested that M.M. be placed in the temporary care and custody of the Society, with access to family in the Society's discretion. The motion also asked that A.B.1 and A.B.2 be put in the temporary care of the father, Mr. G.B., subject to supervision by the Society and with specific terms.

Other Children in the Family Constellation

[4] To understand the context of the Society's involvement, other children must be introduced.

D.J.

D.J., born 2015, a girl (1 year, 9 months).

[5] Ms. C.D. is D.J.'s mother and Mr. S.J., the father. D.J. was the subject of earlier child protection proceedings. She was placed temporarily with the father, Mr. S.J. on 15 August 2016. Mr. S.J. lives alone presently, but he and Ms. C.D. did cohabit for three years before the 26 April 2016 apprehension of M.M. and the twins.

K.B.1 and K.B.2

[6] Mr. G.B. has two other children: K.B.1, born 2007, a girl (9 years), and K.B.2, born 2015, a girl (1 year 4 months).

Ms. J. is the mother of K.B.1 and K.B.2. K.B.2 has resided with her parents since birth. K.B.1 and K.B.2 were not part of this proceeding, but K.B.1 was a subject in another protection case.

The Motions

[7] Looking now at the motion by Ms. C.D., she asked that M.M. and the twins be placed with her under the Society's supervision, if the Court believed supervision necessary.

[8] In her motion, Ms. C.D. also requested unsupervised access to her daughter D.J. (who was living with her father Mr. S.J.), and that Ms. C.D. and Mr. S.J. be permitted to reside together with M.M., A.B.1, A.B.2 and D.J.

[9] In paragraph 4 of this motion, Ms. C.D. asked for the removal from the court record of an affidavit by Beverley Griffiths sworn 18 August 2015. Mr. Sharpe did not pursue this claim, and the Society did not rely on it in its motion, and neither did I. However, the affidavit remains part of the court record.

[10] This Court will examine the ability of Ms. C.D. to care for M.M. and the twins, and also Mr. G.B.'s competency to parent A.B.1 and A.B.2.

The Society's Position

[11] The Society did not sanction Ms. C.D. to have custody of M.M. and the twins, because it believed that her past and present actions and attitudes were and are deleterious to the girls' physical and emotional health. By way of further particulars:

1. Ms. C.D. has a present and past history with the Society, and with the criminal justice system, over flagrant physical over discipline of the children.

2. Ms. C.D. has been charged with assaults on her girls.

3. The Society believed Ms. C.D. lacks insight into its past and present protection concerns.

Ms. C.D.'s Argument

Mr. Sharpe argued on behalf of Ms. C.D.'s motion that M.M. and the twins should be returned to his client, because the Society had not established reasonable grounds to believe these children would be at risk if placed with Ms. C.D. (or with Ms. C.D. and Mr. S.J.).

Complexity of Family History

The difficulty for a Court deciding where children should live is that a family history is capable of varied interpretations. In Ms. C.D.'s case, that history reverts to the Society's intervention in 2001 – fifteen years ago. Many actions occurred over those years; some meant one thing to the Society, whereas Ms. C.D. construed them differently.

It will not be possible for this Court to mention every event that occurred over fifteen years. Doubtless the Society or Ms. C.D. will find at the end of this decision that certain happenings have been missed or under or over emphasized. Nevertheless, I trust that the Court's findings will be true and fair, and that its decisions will be in the children's best interests.

Extended Family Constellation

To further comprehend the complexity of this family constellation, there must be mention of another of Ms. C.D.'s children, and two whom she step-parented:

K.Q.

K.Q. Born 1996, a girl (now 20)

K.Q.'s mother is Ms. C.D., and her father is not part of this history.

The M. Boys

D.M.2 born 1989 and L.M. Born 1990 (known as the "M. boys").

Mr. D.M.1 is their father (He is also the father of his daughter M.M., mentioned previously.) Their biological mother was not a concern of this court. Mr. D.M.1 and Ms. C.D. lived together between 2001 and 2005, and she coparented the M. boys with Mr. D.M.1.

In Ms. Lynette Oxley's affidavit sworn 3 May 2016, she stated that the M. boys disclosed to the Society that Ms. C.D. and Mr. D.M.1 physically abused them. They complained that Ms. C.D. "choked them, tried to break their fingers and deprived them of food." They also protested about significant physical, mental and emotional abuse while in the care of their father and Ms. C.D. The M. boys were found in need of protection by a court under clauses dealing with physical harm and failing to provide care, physical harm by a pattern of neglect, risk of physical harm, risk of physical harm by a pattern of neglect, and risk of emotional harm. The M. boys were made Crown wards.

Chronological History of Society Involvement

2006-2009: K.Q. and M.M.

In the period 2006 to 2009, Ms. C.D. was living with her daughters K.Q. and M.M. The Society became involved with Ms. C.D. because it believed she used excessive discipline with K.Q. In October 2008, Ms. C.D. punched K.Q. in the face, and Ms. C.D. was charged with assault.

2011-2012: Domestic Violence and Sexual Assault Allegations

In the fall of 2011, Ms. C.D. and Mr. G.B. cohabited and there were frequent domestic disputes. One source of their disagreements was Mr. G.B.'s desire to bring his daughter K.B.1 from Jamaica to live with them. K.B.1 arrived in December 2011, and her father's arguments with Ms. C.D. continued. Living in the household at that time would have been Ms. C.D., Mr. G.B., K.Q., M.M., A.B.1, and A.B.2.

A serious incident occurred on 28 January 2012 when Ms. C.D.'s then sixteen-year-old daughter K.Q. disclosed that Mr. G.B., then her step-father, had touched her in a sexually inappropriate manner. Mr. G.B. was arrested and charged with sexual assault, and he was required to leave Ms. C.D.'s home. Mr. G.B. was not able to provide for his daughter K.B.1, so he left her in the care of Ms. C.D. From January 2012, after K.Q.'s disclosure of the abuse by Mr. G.B., the Society worked with Ms. C.D. on a voluntary basis over parenting issues.

2012: K.B.1 Injuries and Hospitalization

By June 2012, K.B.1's school teacher began to notice injuries to the five-year-old girl's neck, face and head, and these injuries were happening with increasing severity. The police and the Society began an investigation. K.B.1 disclosed that Ms. C.D. beat her, and that it was she who had been injuring her (see Ms. Oxley's affidavit sworn 3 May 2016). K.B.1 was admitted to the Hospital for Sick Children for eight days. The SCAN team at that hospital (Suspected Child Abuse and Neglect) found that her harm was highly suspicious of inflicted injury.

[12] Ms. C.D. was charged with two counts of assault, two counts of assault with a weapon and one count of causing bodily harm.

2013: Criminal Trial and Acquittal

[13] Ms. C.D. went to trial over these charges and in December 2013, she was found not guilty. However Justice Wolder, the trial judge, determined that K.B.1 was abused by a number of people in her home, including Ms. C.D., Mr. G.B. (when he previously lived with Ms. C.D.), and by her sisters. In his Judgment (Court File Peel 12-12733, dated 2013-12-5, paragraph 59), Justice Wolder wrote:

There is no doubt [Ms. C.D.] harboured hostility towards the child [K.B.1] and failed to protect the child.

2012: Apprehension and Temporary Care Hearing

[14] On 25 June 2012, the Society apprehended M.M., A.B.1, A.B.2, and K.Q. from Ms. C.D.'s care, and placed them in foster homes. At a temporary care hearing on 26 November 2012, the Court determined that M.M. and the twins should remain with the Society, but K.Q. was returned to Ms. C.D. under Society supervision.

2015: Summary Judgment Motion

[15] On a motion for summary judgment on 15 October 2015, the Court found that K.B.1, M.M. and the twins were in need of protection (For K.B.1, under clauses dealing with risk of physical harm, risk of physical harm by a pattern of neglect, physical harm from failure to provide care, physical harm by a pattern of neglect, emotional harm, risk of emotional harm. M.M., A.B.1 and A.B.2 were found in need of protection under clauses dealing with risk of physical harm and risk of physical harm caused by a pattern of neglect).

2015: Return to Ms. C.D.

[16] On 18 November 2015, pursuant to an agreement between the Society and Ms. C.D., M.M. and the twins were placed with Ms. C.D. on a permanent basis pursuant to section 57(9) of the Act. (Pursuant to this subsection, a child is returned to a parent where the child was found to be in need of protection, but it appears no further court order is needed to protect the child in the future.) So as of this last date, 18 November 2015, the Society and Ms. C.D. believed their association with each other was over.

2015-2016: Injuries to M.M.

[17] However, the Society's disengagement with Ms. C.D. was not sustained. From October 2015 to March 2016, school authorities where M.M. (then 12 years) attended, observed cuts and scratches and bumps to the girl's head. They also noticed a swollen lip, a welt on her nose and finally on 22 March 2016, a black and swollen eye.

[18] Ms. C.D. had explanations for these afflictions. M.M. hit her head on a bathroom fixture and her younger sisters were too rambunctious with her. Ms. C.D. was sympathetic to M.M.'s physician's opinion; he believed persons with Global Developmental Delay can be prone to physical uncoordination. However M.M.'s teachers, who saw the girl every school day, did not observe her to bump into anything.

2016: Second Apprehension and Criminal Charges

[19] By the spring of 2016, the Society and the police once again began an investigation into the cause of M.M.'s unexpected injuries. On 29 April 2016, M.M., A.B.1, A.B.2 and D.J. were apprehended and placed in foster care. Ms. C.D. was charged with one count of assault on M.M., and one count of assault on A.B.2. This was the third time the children's mother had been criminally accused because of her parenting of her children.

[20] Ms. C.D. was released on bail with the requirement that she live with her surety and have no contact with M.M. nor the twins. The assault trial is scheduled for the summer of 2017.

[21] The SCAN team at the Hospital for Sick Children examined M.M.'s injuries in the spring of 2016. They did not believe that the harm to her back was caused by accident.

2016: Temporary Care Order

[22] On 3 May 2016, this Court placed M.M, A.B.1. and A.B.2 in the temporary care of the Society, where they still remain, pending the outcome of the two motions now being considered.

Current Placement Status

[23] There were difficulties in M.M.'s foster placement because the child's needs were significant. She had verbal outbursts, urinating on herself and smearing. The foster parents could not give M.M. the care she required, so in May 2016, she was moved to a special needs group home, where her condition began to stabilize. A.B.1 and A.B.2 did well in their foster home.

Supervised Access Observations

[24] After the children's apprehension in April 2016, Ms. C.D. had supervised access to M.M. and the twins once a week at the Society's office. These were relatively good visits, with the children's mother being attentive to their needs. However, during these sessions Ms. C.D. was observed to have made inappropriate remarks to the children. She:

• blamed A.B.2 for the children being in care,
• told A.B.2 that Mr. G.B. was not her father.

[25] These tactless remarks by Ms. C.D. to her children were considered by the Society to be symbolic of her lack of insight into the reasons for the past and current need for protection proceedings. For example:

1. On 2 June 2016, Ms. C.D. expressed her belief that the children were apprehended because of the intervention of the Society's worker, Ms. Oxley.

2. On 23 June 2016, Ms. C.D. accused the Society of telling lies; she believed the children were abused in foster care, and that A.B.2 talks too much. Because of A.B.2's lies, Ms. C.D. and the other children got hurt.

Remedial Services and Ms. C.D.'s Response

An important issue in protection cases is what remedial services are offered to a parent to improve his or her parenting ability, and how did that parent respond to those services?

In 2012, when the children were previously apprehended, Ms. C.D. participated in the Therapeutic Access and Assessment Program (TAAP). It included counselling to address anger management, child-related and relationship issues. Despite that engagement, Ms. C.D. was again charged with assault on the children in April 2016, and further protection proceedings were initiated. In Ms. Ameley Mensah's affidavit sworn 16 September 2016, she stated that the Society had difficulty deciding what other services would be helpful to Ms. C.D., since apparently the TAAP program was ineffective. Ms. Mensah suggested further counselling to Ms. C.D. over anger control, but Ms. C.D. said it would not be necessary, because she already had that counselling through TAAP. However, Ms. C.D. stated that she would do whatever she would be asked in order to obtain the return of her children.

In her own affidavit sworn 25 November 2016, Ms. C.D. said she was taking counselling through Family Services of Peel for issues of coping with loss of children, stress management and parenting. She had attended two sessions as of 25 November 2016.

Ms. C.D. did not provide further information about this counselling. It did not appear to deal with the issue that most concerned the Society - what can Ms. C.D. do to control her temper so she would not hurt children in her care?

Other Children in the Family Mosaic

The focus of these motions has always been on M.M, A.B.1 and A.B.2, but D.J. and K.B.1 are part of the D. family mosaic. Ms. C.D. parented D.J. when she lived with Mr. S.J. before the girl's apprehension on 29 April 2016. K.B.1 was step-parented by Ms. C.D. when she had a rapport with the girl's father, Mr. G.B.

The Society did not have concerns about the parenting ability of D.J.'s father, Mr. S.J. On 15 August 2016, this Court placed D.J. in the temporary care of Mr. S.J., under Society supervision. There was no mention of problems after that placement.

Mr. G.B.'s Suitability as a Caregiver

There were past concerns by the Society of Mr. G.B.'s ability to protect children after his sexual assault conviction relating to Ms. C.D.'s daughter K.Q. However, by the summer of 2016, the Society was satisfied that K.B.1 would not be at risk if she lived with her father, Mr. G.B., and her partner, Ms. J. On 24 August 2016, K.B.1 began to live with them full time pursuant to an Order under Section 57.1 of the Act.

After the apprehension of M.M. and the twins from Ms. C.D.'s care in April 2016, Mr. G.B. started to plan with the Society for the return of the twins to him. On the advice of the Society, Mr. G.B. took a Sexual Behaviours Clinic Assessment in September 2013, a Sexual Risk Assessment in March 2016, and he made available a Report from his counsellor Iddi Zackari dated 5 July 2016. This information augured well for the proposition that Mr. G.B. is not now a risk of any kind to children in his care.

Mr. G.B. had had no contact with his daughters A.B.1 and A.B.2 since 2014. The Society began supervised access in June 2016, and Mr. G.B. was observed to engage well with the twins and met their needs (then about four-and-a-half years old).

Mr. G.B. was viewed as a person capable of successful parenting. By the summer of 2016, he and his partner, Ms. J. were fitting caregivers to K.B.1 and K.B.2. He was employed full-time and owned his home and there were no community concerns. Eventually K.B.1 (then nine years, already living with her baby sister K.B.2 at their father's) was introduced to the twins on the visits, and the three girls connected well.

By July 2016, unsupervised access commenced by Mr. G.B. to the twins at his residence. Visits were on Wednesdays from 4:00 p.m. to 6:00 p.m., and on Saturdays from 12:00 noon to 7:00 p.m. Weekend access began in October 2016 from Friday at 6:00 p.m. to Sundays at 6:00 p.m.

Reports from foster parents about children's visits with their parents are always very important. In this case, A.B.1's and A.B.2's foster parents reported that the twins eagerly anticipated their access to Mr. G.B. and his family. They were very talkative about the good times they were having on access, and there were no expressions of community concerns.

By the fall of 2016, the Society changed its recommendation to the Court. Previously it was asking that A.B.1 and A.B.2 be placed in the Society's care with access to Mr. G.B. It now proposed placement of the twins with Mr. G.B. under Society supervision. Ms. C.D. was totally opposed to a placement of A.B.1 and A.B.2 with their father because of his past sexual assault conviction and for other reasons, including her observation that Mr. G.B. never provided primary care for the girls. Ms. C.D. also believed that Mr. G.B.'s partner, Ms. J., was a child abuser. Ms. C.D. firmly believed that she herself would be the preferred caregiver for the twins.

Ms. C.D.'s Supervised Access Visits

Ms. Charlotte Blonde was the Society's coordinator for its supervised access program. Mr. Ansu, in his affidavit sworn 8 November 2016, described Ms. Blonde's monitoring of Ms. C.D.'s access. Reports showed that Ms. C.D. had parenting strengths. She was sensitive and responsive to the girls and they responded well to the limits she set. They were affectionate with her and looked to their mother for help when needed. I can stipulate that the visits between Ms. C.D. and the children went without incident during the limited time mother and the girls were together. Also at thirteen and five years of age, instrumental care was not paramount, and the children certainly knew their mother and were familiar with her good qualities and were less vulnerable to being hurt.

Ms. C.D. had kept a liaison with the girls' schools, which was to her credit. Dr. Marshall, the children's physician, believed Ms. C.D. to be a good mother, at least during his experience with her on the office visits.

One can opine that Ms. C.D.'s visits went well, but there never was a challenge to this mother's ability to provide adequate short term caregiving. The risk to children in her care occurred in the long term and out of the glare of public scrutiny. Ms. C.D. knew she was being observed during her time with the girls. The children were spared the possibility of harsh discipline during these brief visits, and they knew that and were comfortable because they realized their mother's conduct was supervised.

Contradictions Between Ms. C.D.'s Assertions and Society Evidence

There were portentous disagreements between Ms. C.D.'s beliefs and those of the Society. I considered these:

1. Quality of Supervised Visits

Ms. C.D.'s assertion: In her affidavit, Ms. C.D. wrote "my visits with the children have been excellent and the Society has not noted any concerns." (Reference was being made to M.M., A.B.1 and A.B.2.)

Society's position: The Society's observations were in opposition. Mr. Ansu's affidavit, sworn 14 October 2016, in paragraph 18 he referred to a letter written on 25 August 2016 by Ms. Kinch to Mr. Sharpe. She wrote:

With respect to your enquiries regarding the Society's expectations, [Ms. C.D.] has demonstrated time and again that despite the Society's efforts to assist her with addressing the concerns pertaining to her use of physical discipline, children are not safe in her care.

2. Consistency of Access Attendance

Ms. C.D.'s assertion: In Ms. C.D.'s affidavit, she swore "I have attended my visits consistently, and I only missed a few visits due to work, not feeling well or being ill."

Society's position: The Society's information about Ms. C.D.'s access was at variance to hers. Ms. C.D. was inconsistent in maintaining her visits with M.M. and the twins. Her supervised access was on Thursdays from 4:00 p.m. to 5:30 p.m. that began in September 2016. Ms. C.D. cancelled visits on September 29, October 20, and on November 3, 2016, according to Mr. Ansu's affidavit sworn 8 November 2016. According to Ms. Mensah's affidavit sworn 22 December 2016, since Ms. C.D.'s last office visit on 24 November 2016, she cancelled all weekly access, including one scheduled for 22 December 2016. Ms. C.D. had no contact with M.M., A.B.1 or A.B.2 since 24 November 2016.

3. Children's Welfare in Foster Care

Ms. C.D.'s assertion: In paragraph 11 of Ms. C.D.'s affidavit, she averred that M.M. and the twins were not faring well in foster care.

Society's position: In Ms. Charlotte Blonde's affidavit sworn 1 December 2016, she observed the children in their foster homes. M.M. and the twins were always well groomed and dressed appropriately and there were no concerns.

4. Society's Transparency Regarding Mr. G.B.

Ms. C.D.'s assertion: In her affidavit, Ms. C.D. charged that the Society had not been forthcoming in advising this Honourable Court with all the risks with the plan placing the children, A.B.1 and A.B.2 with the respondent father [Mr. G.B.].

Court's finding: I disagree with Ms. C.D.'s belief. I find that the Society was transparent in explaining Mr. G.B.'s criminal record, and how that father successfully addressed the Society's concerns about any risk to the children in his care.

5. Allegations Against Ms. J.

Ms. C.D.'s assertion: Ms. C.D. raised the spectre of Ms. J. using excessive physical discipline on children.

Society's position: The Society believed there was no truth to such allegations.

6. Mr. G.B.'s Parenting Capacity

Ms. C.D.'s assertion: Ms. C.D. asserted that Mr. G.B. has unresolved issues of anger and parenting deficiencies that have not been addressed by the Society.

Court's finding: In contradistinction to Ms. C.D.'s viewpoint, in the many supervised access visits Mr. G.B. has had with the twins, and in the Society's numerous meetings with him, no displays of temper or inadequate parenting were seen. It is fair to say that the Society closely examined Mr. G.B. as a potential caregiver because of his criminal history, and this man successfully acquitted himself.

Ms. C.D.'s Proposed Living Arrangement with Mr. S.J.

The reader will recall that a request in Ms. C.D.'s affidavit was that she, with or without M.M. and the twins, be permitted to live with Mr. S.J. and their daughter D.J.

There were protection concerns in this proposal, as viewed by the Society. Its position was that Ms. C.D. could not be left alone at any time with her children. Mr. S.J. (or presumably his approved agent) would have to supervise all access by her because of the Society's historical concern that vulnerable children are not safe in her care.

Mr. Ansu swore an affidavit on 8 November 2016. In it he stated that he talked to Mr. S.J. on 4 November 2016, and Mr. S.J.:

1. Wished to live with Ms. C.D. and the four children.

2. Believed Ms. C.D. did nothing wrong in her care of her children, and that she is a good mother. He would not let Ms. C.D. harm a child.

3. Understood that many of the events that were of concern to the Society in Ms. C.D.'s parenting had not happened.

4. Before the Society's involvement in April 2016, he did not know Ms. C.D.'s history.

Ms. Ansu told Mr. S.J. that if he could not "acknowledge/recognize" the risks the children would face in Ms. C.D.'s unsupervised care, then the Society would have significant concerns about his ability to protect the children from Ms. C.D.

Mr. Ansu also apprised Mr. S.J. that actions would be required from Ms. C.D. if she were to be allowed to parent with him. These were:

1. Ms. C.D. would need to take specific anger management counselling;

2. She must demonstrate over time an improved ability to manage her anger, and to discipline children without assaulting them.

Ms. C.D.'s Position on Supervision

In her affidavit, Ms. C.D. wrote regarding the Society's requirement that all access be supervised, if she were to live with the children and Mr. S.J.:

I did not agree to be supervised, and I believe the Society has provided no basis for supervision, or even their continued involvement.

Legal Framework and Court's Analysis

A Court must consider subsections 51(2) and (3), and (3.2) of the Act when a hearing is adjourned, which is happening in this case. The Rulings on the motions are temporary, and the parties will have to decide on their future positions after the Rulings are released.

Mr. Sharpe and Mr. Solomos urged that M.M. and the twins be returned to Ms. C.D. since she had charge of those children before their apprehension in April 2016.

Mr. Sharpe argued that the Court should consider the following:

1. Whether there is current evidence of risk, and reliance should not be placed on history of past risk. For example, the account of risk to the M. boys happened long ago, and the Court should recognize that Ms. C.D. may have changed her parenting since then. Also there should be an evaluation of whether any evidence of current risk is probative or strong.

2. The Society has not evaluated risk to the children since their apprehension in April 2016.

3. The Society did not adequately consider the possibility of accidental injury to children. The "zipper scratch" on M.M.'s face could have been caused by an accident, and that was an alternative and realistic explanation to replace the excessive discipline allegation.

4. The Society has not offered recent services to Ms. C.D.

5. The Society reproached Ms. C.D. for lacking insight into protection concerns. Mr. Sharpe excused Ms. C.D. since she had a different opinion from the Society, which was her right.

6. Ms. C.D. is capable of improving her parenting. The fact that the Society placed M.M. and the twins with her in November 2015 indicated that it saw amelioration in her caregiving skills.

7. The counselling at Family Services of Peel was the equivalent of anger management.

8. Regarding the twins, Mr. Sharpe urged that there are no protection concerns (except when the twins were present during domestic violence imposed on Ms. C.D. by Mr. G.B.) The twins did not disclose anything untoward, and there were no referrals from their school.

9. The twins should not be placed with Mr. G.B. because of his sexual abuse conviction, and because he had no history of parenting them.

Court's Reasoning on Risk Assessment

However, before returning the children to their mother, a Court must consider subsection 52(3) of the Act. That subsection requires the Court to consider whether there are reasonable grounds to believe there is a risk that the children are likely to suffer harm.

I disagree with the concept that past risk is not relevant. It is, unless there is strong current evidence that there is no risk at present and that the factors that led to risk in the past are no longer current.

A Court is also able to consider past risk under the rubric of past conduct as a consideration in accordance with subsection 50(1) of the Act. (A Court may consider the past conduct of a person toward any child if that person may care for a child who is the subject of a proceeding.) In this case, Ms. C.D.'s past conduct is very relevant.

Court's Findings on Risk

The Court finds that M.M. and the twins should not be placed with Ms. C.D. because there are reasonable grounds to believe there are risks that those children are likely to suffer harm. The reasons for this statement are:

1. M.M.'s Special Needs: It is improbable that Ms. C.D. could care adequately for M.M. because of the child's high needs. Her first foster placement could not support her, and now a special needs group home has been able to stabilize the girl. That group home has skilled staff and facilities that would not be available to Ms. C.D.

2. Discredited Explanations for Injuries: Ms. C.D.'s past explanations of accidents happening to her children were discredited by medical authorities. For example, the SCAN team at the Hospital for Sick Children did not believe M.M.'s injuries were caused by accident. Regarding the trauma to K.B.1's body, the SCAN team noted that it was "highly suspicious for inflicted injury". It is foreseeable that future explanations for accidental injuries will be offered by Ms. C.D., if wounds are found on children in her care.

3. Lack of Insight into Protection Concerns: Ms. C.D.'s disagreements with the Society were much more than mere misunderstandings or simple dissent. I do not believe Ms. C.D. understood that there was any risk of harm to children in her care.

4. Insensitivity to Children's Emotional Needs: Ms. C.D. lacked an understanding of the emotional needs of her children when she:

   • blamed A.B.2 for her siblings being in care;
   • told A.B.2 that Mr. G.B. was not her father;
   • said that because of A.B.2's lies, Ms. C.D. and her sisters got hurt.

   These remarks were more than imprudent; they indicated an insensitivity on Ms. C.D.'s part to her children's emotional need for security. There was no insight shown by Ms. C.D. in the children's requirement for consistency when she cancelled access late in 2016.

5. Unreliable Statements: Ms. C.D.'s statements were not trustworthy when she said she attended visits regularly, and that the Society had no concerns about her caregiving ability; these conflicted with the Society's clear evidence. Ms. C.D. readily blamed others for alleged transgressions, perhaps to distract from her own shortcomings. Children would not be safe in Ms. C.D.'s care because her explanations for events would not be reliable.

6. Continuing Pattern of Risk: There is a history of risk in Ms. C.D.'s care of children that extended back to the M. boys and has continued to the present. The risks are for physical harm and risk from a pattern of neglect. Justice Clay's findings of 15 October 2015 are just as real today. There is no evidence of change in Ms. C.D.'s parenting ability since the April 2016 apprehension.

7. Ineffectiveness of Prior Services: Mr. Sharpe considered that the Society had failed a very serious obligation to Ms. C.D., in that services of a recent nature had not been offered to her. In 2012, Ms. C.D. participated in the TAAP program which specifically addressed Ms. C.D.'s need for anger management control and parenting issues. Whatever insight Ms. C.D. achieved in the course was short-lived, because in April 2016 her assaultive behaviour on children resurfaced. The Society did propose further anger management counselling, but Ms. C.D. declined, because she said she learned about that in the TAAP program and she was undergoing counselling through Family Services of Peel. Ms. C.D. did not offer any more information about her involvement in this program, but it does not appear to deal specifically with anger management. I conclude that Ms. C.D. well knew what the Society required for the children to be placed with her, but she chose not to engage herself (other than just offering to do what the Society requested).

   I do not find that the Society failed to offer services to Ms. C.D. It did so offer, but its suggestions were not accepted.

8. Risk to the Twins: Ms. C.D. believed there would be no risk to A.B.1 or A.B.2 if they were returned to her, because community or school complaints were not registered so far, and there were no recorded injuries to them. I find there are risks:

   1. Even on supervised access, Ms. C.D. was observed to speak harshly to the children.

   2. Ms. C.D., on occasion uttered insensitive things to M.M. and the twins.

   3. The twins, at five years of age, are young and vulnerable and unable to protect themselves from over-discipline.

Conclusion on Risk

I conclude there are reasonable grounds to believe there are risks that M.M., A.B.1 and A.B.2 would likely suffer harm if they are returned to Ms. C.D.

Supervision Order Analysis

The next question is, if the children are returned to Ms. C.D., would they be protected by a supervision order? The answer is no in my opinion.

In Ms. C.D.'s affidavit, she:

(i) would not agree to supervision by the Society;

(ii) would not accept any future anger management counselling;

(iii) did not believe there was any reason for supervision;

(iv) repudiated any Society involvement in her life.

That is about as clear as can be that a supervision order would not protect the children if in Ms. C.D.'s care.

Mr. S.J. as Supervisor

Regarding Ms. C.D.'s plan to reside with Mr. S.J. and the children, it is evident that Mr. S.J. could not and would not supervise Ms. C.D.'s access. The rationale for that statement was that Mr. S.J. did not believe his former partner had any parenting deficits. Therefore, there would be no good reason for supervision, either in his mind, or in Ms. C.D.'s.

Least Disruptive Placement Principle

Finally, the Court is required to choose orders that are the least disruptive placements, consistent with adequate protection for the children.

M.M. is already stable at last account in her specialized group home. If the Society's request is granted for the girl to stay in its care, that placement will likely continue.

If M.M. were to live with Ms. C.D., it is predictable that there would be progressive deterioration in M.M.'s functioning, because Ms. C.D. would most likely be unable to cope with her daughter's maladroitness. There is a further risk of harm to M.M. because of her mother's expected frustration in dealing with her daughter's inabilities.

In contemplating a placement of the twins with Mr. G.B., they are already very familiar with their father, Ms. J. and their half-sisters. It would be a natural progression for them to live with him full time.

Court's Orders

The Society's motion, dated 8 November 2016 shall be granted, specifically, paragraphs 1-4 inclusive.

1. Placement of M.M.

An Order placing the child, M.M., born 2003 in the temporary care and custody of the Children's Aid Society of the Region of Peel.

2. Access to M.M.

An Order that the child, M.M.'s temporary access to family members shall be at the discretion of the Children's Aid Society of the Region of Peel. The Children's Aid Society of the Region of Peel shall have discretion as to the location, duration, frequency and the requirement for supervision of such access.

3. Emergency Treatment Authorization for M.M.

Notwithstanding s.51(4)(d) of the Child and Family Services Act, the Children's Aid Society of the Region of Peel is also authorized to obtain any treatment for the child, M.M., born 2003 that is necessary in an emergency.

4. Placement of the Twins with Mr. G.B.

An Order placing the children, A.B.2, born 2011 and A.B.1, born 2011 in the temporary care and custody of their father, G.B. subject to supervision by the Children's Aid Society of the Region of Peel and subject to the following terms and conditions:

a. Mr. G.B. shall cooperate with the Society and shall follow through with reasonable recommendations and referrals made by the Society and/or other service providers, particularly in relation to supportive services for A.B.1 and A.B.2 and himself;

b. Mr. G.B. shall allow the Society workers private access to A.B.1 and A.B.2 in the home, in the community and/or at the Society's office as may be requested;

c. Mr. G.B. shall make himself available for both scheduled and unscheduled home visits by the Society's worker(s);

d. Mr. G.B. shall advise the Society in advance of any change in his address or telephone number; and/or of any change in the number or identity of the persons residing in his home;

e. Mr. G.B. shall sign consent forms allowing the Society to obtain and exchange information with collaterals with whom he and/or A.B.1 and A.B.2 are involved, including, but not limited to police checks, family doctor(s), and counselors;

f. Mr. G.B. shall maintain communication with the Society's worker(s) and other collaterals, and shall attend scheduled meetings as required;

g. Mr. G.B. shall ensure that A.B.1 and A.B.2 receive adequate care, including food, medical checkup, dental care and any other recommended services;

h. Mr. G.B. shall provide access to the Respondent mother, C.D. only in accordance with any Court Order in place, or if approved by the Society in advance;

i. Mr. G.B. shall ensure that A.B.1 and A.B.2 are not exposed to any domestic violence; and

j. If Mr. G.B. is engaged at work or is required to leave A.B.1 and A.B.2 for any other reasons, A.B.1 and A.B.2 shall be left with babysitters approved by the Society in advance or shall be placed in a qualified daycare facility.

Procedural Matters

I waive approval of orders by unrepresented parties.

Ms. C.D.'s motion dated November 25, 2016 is dismissed, specifically paragraphs 1 - 5 inclusive.

I thank all lawyers for their careful submissions.

This case returns to courtroom 208 at 9:30 on 1 February 2017.

Released: January 30, 2017

Justice P.W. Dunn