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 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

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

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

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: March 30, 2017

Court File No.: C20284/02

Ontario Court of Justice

In the Matter of a Protection Application for the Crown Wardship of M.G., born […], 2014 and S.G., born […], 2014 and under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Parties

Between:

Catholic Children's Aid Society of Toronto

Fatima Husain, for the APPLICANT

APPLICANT

- and -

N.J., D.H. and M.L.G.

Paula McGirr, for the RESPONDENT MOTHER, N.J.

FATHER OF T.J., D.J, and D.N.J.

Not Appearing at Trial

FATHER OF M.G. and S.G.

Not Appearing at Trial

RESPONDENTS

Hearing and Decision

Heard: March 6, 7, 8, 9, 10, 13, 14, 16 and 17, 2017

Reasons for Judgment

Justice M. Sager

Part One - Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought a Protection Application (Application) seeking a final disposition that M.G. and S.G., twins born […], 2014, be made Crown wards, without access, for the purpose of adoption.

[2] The Respondent N.J. is the children's mother (the mother). She has five children:

• T.L. born […], 2001, now 15 years old;
• Twins D.J. and D.N.J. born […], 2003, now 13 years old;
• Twins M.G. and S.G. born […], 2014, now 2.5 years old, the subjects of this trial.

[3] The mother seeks an order having the youngest twins, M.G. and S.G. returned to her care subject to the society's supervision. If the court orders the children be made Crown wards, the mother seeks an order for access to the children.

[4] On September 3, 2015, the father (M.L.G.) of the youngest twins, M.G. and S.G., was noted in default not having responded to the Protection Application and he did not participate in the trial.

[5] The children were apprehended on January 9, 2015 and at the commencement of trial had been in care for a total of 26 months. The youngest twins have resided together in the same foster home since the date of apprehension.

[6] The mother has exercised supervised access to the children at the society's offices twice per week since the children were apprehended.

[7] On September 3, 2015, Justice Zisman found all five children to be in need of protection pursuant to sections 37(2)(a)(i), (a)(ii), (b)(i) and (b)(ii) of the Child and Family Services Act (the Act).[1]

[8] The mother's three older children were not the subject of this trial as the children T.J. and D.J. were placed in the care and custody of their paternal grandmother subject to the supervision of the society and D.N.J. was made a Crown ward. The three older children all have access to each other.

Part Two – The Issues

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

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

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

[10] The trial of these issues was heard over 9 days.

Part Three – Background

[11] The mother was born in Canada and is 31 years old. On July 27, 2016, her oldest child, T.J., was placed in the care and custody of her paternal grandmother subject to the supervision of the society for a period of 6 months. On September 27, 2016, D.J. one of her older twins, was placed in the care and custody of his paternal grandmother subject to the supervision of the society for a period of 11 months. On March 6, 2017, D.N.J. her other older twin, was made a Crown ward. All of the siblings have access to one another pursuant to a further order made on consent on March 6, 2017.[2]

[12] The mother describes an unhappy childhood that was fraught with conflict with her mother. She began to suffer sexual abuse by the father (D.H.) of her 3 older children when she was only 11 years old and he was in his 20's. She ran away with him when she was 14 years old and had her first child, T.J., when she was 15 years old.[3] The mother returned to live with her mother for most of her pregnancy but then moved into Massey House, which offers young mothers assistance with their babies while continuing with their education.

[13] The mother left Massey House before T.J. was one year old and moved in with the baby's father. She became pregnant with her older twins shortly thereafter and gave birth to D.J. and D.N.J. on December 18, 2003, when she was 17 years old.

[14] In her evidence, the mother describes her relationship with the father of her 3 oldest children, in retrospect as follows:

"My relationship with [the father] is best described as one where he inflicted physical, sexual, emotional and psychological abuse upon me, in addition to controlling and dominating me and isolating me from family and friends. I was still a child when the relationship began. I was deprived of the ability to mature in my teenaged years and lacked insight into my circumstances. Because I lacked insight, I became tense, anxious, hostile, defensive, self-contained and frightened."

[15] The mother's evidence is that she ended her relationship with the father of her three older children in 2006. After the relationship ended, the mother reports that the father had sporadic contact with the children. The mother currently has no relationship or contact with the father of her three older children.

[16] The society did not dispute the way in which the mother described her relationship with the three older children's father and acknowledged that this relationship was a source of significant trauma in the mother's life.

Part Four - Protection History

[17] The society has a significant history with the mother both as a child and a mother. The society had four historical openings with the mother as a child between June 1999 and August 2001. Most of the openings centred on parent teen conflict and the mother's inappropriate relationship with the father of her 3 older children.

[18] The mother, a teenager at the time, did not cooperate with the society and did not welcome their involvement in her life.

[19] The first file opening for the mother as a parent was in November 2001, just prior to the birth of her first child, T.J. On […], 2002, approximately 5 months after T.J.'s birth, T.J. was found to be a child in need of protection under section 37(2)(b)(i) and (b)(ii)[4] of the Act and was placed in the mother's and maternal grandmother's joint care subject to a supervision order.

[20] A Status Review Application was resolved by way of a final order on November 6, 2002, placing T.J. in the care of her mother subject to the society's supervision for 6 months. Between July and October 2002, T.J. was apprehended twice from the mother's care due to her failure to comply with the terms of supervision, specifically that she was not to be with the child's father, who was a suspected drug dealer known to the police.

[21] At the time of the older twins' birth, the mother was living with the maternal grandmother who had care and custody of T.J. subject to the society's supervision. The supervision order in relation to T.J. was terminated on May 11, 2005 as the mother agreed to work with the society on a voluntary basis. The society closed their file on August 16, 2005 as the children were progressing well and the mother appeared to be meeting their needs.

[22] Between September 2006 and November 2006, the society received two referrals both by the police resulting from the mother's call to police about incidents involving the children's father. Both referrals were closed at intake.

[23] The society received a referral from the three older children's school in May 2009, in which it was alleged that a student at the school was frightened of the mother due to an interaction between them in which the student claims the mother yelled expletives at her. As the referral did not raise any protection concerns and the file was closed at intake.

[24] On October 26, 2009, the society received a call from D.J.'s school to report that D.J. disclosed being physically disciplined by his mother for not finishing his lunch. The society spoke to the three older children and the older twins disclosed physical discipline but denied being fearful of their mother. They also described alternate forms of discipline used by their mother that were appropriate. The oldest child, T.J. did not make disclosures of physical discipline by her mother.

[25] During the investigation the mother denied using physical discipline. She was cautioned and explained the parameters of physical discipline under section 43 of the Criminal Code. The school did not report any other concerns and the file was closed at intake.

[26] On September 12, 2011, the society received a call from police arising from a domestic violence complaint between the mother and her boyfriend. He was arrested and charged with assaulting the mother. The children were in the home at the time of the altercation and the oldest child, 9 years old at the time, called 911. The file was transferred to ongoing services.

[27] The mother was referred to domestic violence counselling following the September 2011 referral to the society but she declined to access the services offered to her.

[28] In November 2011, D.N.J.'s teacher reported to the society that the child disclosed that her mother physically disciplined her and her siblings. A society worker met with the mother and the children at their home and reported that the mother presents as a "loving and caring mother". The society closed the file in April 2012 as "the children did not report any type of concern, nor did the children's school" and "there were no new concerns reported and the children's doctor did not report any concerns with regards to [the mother's] care of the children."

[29] On December 24, 2013, the society received a referral from the Children's Aid Society of Toronto after the police contacted them to advise that the older children's father, was charged with assaulting the mother and that the assault took place in front of the children. During the investigation by the society, the mother was not cooperative so the children were seen at school. As no concerns were disclosed by the children, the file was closed at intake.

[30] The younger twins, M.G. and S.G. were born on […], 2014, in the intervening period between the December 24, 2013 referral and their apprehension in January 2015. There are no reports of any concerns regarding the mother's care of M.G. and S.G. following their birth or up to the date of apprehension. By all accounts the children were happy, healthy babies at the date of apprehension.

Part Five - The Apprehension

[31] On January 8, 2015, the Children's Aid Society of Toronto received a referral from the children's school after D.J., then 11 years old, reported that he was afraid to go home because his mother hurts him. The school reported that D.J. had scars on his face and arm and that he disclosed that his mother put him in the basement and hit him with a broom.

[32] D.J. was interviewed by police in the presence of the society intake worker. D.J. disclosed that his mother hit him with household items and that in October 2014, when he was 10 years old, when he came home 10 minutes late from school his mother was angry and threw him in the basement where she proceeded to beat him with a broom for five minutes. He explained that the broom broke on him which resulted in the cut on his face. He said he had scars on his stomach, elbow, arm, face and wrist as a result of the beating. D.J. told the police that the cut on his face was deep and bleeding. After the beating with the broom, D.J. said that his mother went upstairs and dismantled his bed, brought it to the basement, put it back together and made him stay in the basement for two days.

[33] In D.J.'s statement to the police, he said he was only given food on one occasion and he was allowed to leave the basement twice a day to use the washroom. After two days his mother allowed him to move back upstairs and apologized for what she did. She told D.J. that should anyone ask about the cut on his face that he should tell them he fell off his bike.

[34] D.J. disclosed being hit other times by his mother including with a belt and reported that his sisters were also disciplined this way.

[35] D.J. and his twin sister, D.N.J. and older sister T.J., then 13 years old, were taken into care that same day.

[36] The next day on January 9, 2015, T.J. and D.N.J. were also interviewed by the police in the presence of the society intake worker. D.N.J. disclosed a lot of yelling by her mother and being hit by her hand and a belt. She also remembers being pushed to the ground by her mother who yelled at her and hit her while she was on the ground. She recalled a particular incident a year earlier where her mother thought she had made a face at her and as a result began hitting her with a belt across her back, arm, face and her lip.[5]

[37] T.J. reported to police that her mother yelled at her and hit her as well. She did not disclose the type of physical abuse described by D.J. and D.N.J.

[38] All three children reported being sent to bed without dinner by the mother as a form of punishment.

[39] The society made the decision to apprehend then 6 month old twins M.G. and S.G. upon the mother's arrest. This took place at the mother's home on January 9, 2015.

[40] The mother was charged on January 9, 2015 with two counts of assault, one against D.J. and one against D.N.J., two counts of assault with a weapon (one against each twin), one count of assault causing bodily harm against D.J. and one count of forcible confinement against D.J. The mother's release terms included not to have any contact with D.J or D.N.J., not to be 200 metres of their whereabouts, not to attend their school, and, not to be alone with or in the accompany of any child under the age of 16 years old.

[41] On January 13, 2015, Justice James Nevins made an order placing all five children in the temporary care and custody of the society on a without prejudice basis. Access by the mother to the children was ordered at the society's discretion but subject to the mother's bail conditions.

Part Six – The Events Following the Apprehension

[42] M.G. and S.G., then six months old, were placed together in the same foster home following their apprehension. They have remained in that foster home to the date of trial. Upon their arrival at the foster home there were no reported concerns about their care, appearance, behaviour or their general health and well-being.

[43] Immediately after they were apprehended, M.G. and S.G. began having access with their mother twice per week. The mother attended regularly and there were no serious concerns noted about the mother's access to M.G. and S.G.

[44] On January 15, 2015, M.G. and S.G. were taken to the SCAN Department at the Hospital for Sick Children to be assessed for abuse and have skeletal examinations. There were no concerns reported with the skeletal examinations.

[45] There were also no concerns reported as a result of the physical examination of T.J., D.J. and D.N.J. by SCAN on January 16, 2015.

[46] While at the Hospital for Sick Children, the doctor conducting the physical examination of D.J. reported that D.J. expressed having "suicidal ideation for a period of time as well as had admitting to cutting himself with a knife." The doctor recommended that D.J. be assessed and attend counselling. It was agreed with the doctors for D.J. to remain in hospital to have a risk assessment completed.

[47] During the risk assessment D.J., then 11 years old, reported having thoughts of self-harm since he was 5 years old. His last thought of suicide came days earlier at the thought of having to return to his mother's care. D.J. spoke about being yelled at, called names and hit by his mother for as long as he can remember. He said he did not feel safe at home and his fear of having to return home is effecting his ability to sleep at night.

[48] As a result of his disclosures on the risk assessment, D.J. was taken to the Emergency Room at the hospital to undergo an assessment by the crisis team. The crisis team determined that D.J. was not suicidal but was considered to be suffering from low grade depression. D.J. was referred to Rouge Valley/Scarborough Centennial Hospital for counselling and to the Youth Centre in Ajax to be connected with a male role model as well as to the Big Brother Program. It was also suggested that D.J. have a trauma assessment once he has stabilized.

[49] Both D.J. and D.N.J. have had changes to their foster home due in part to interference in their placement by their father, to whom they have had regular access since being apprehended. In May 2015, D.J.'s foster parent advised the society that she was unwilling to continue to foster D.J. due to his father's interference with her parenting. The foster mother reported to the Children's Services Worker that the father of D.J. and D.N.J. "had coached and directed [D.J.] to disregard the rules in her home and to make complaints that were exaggerated or untrue." The foster mother advised the society that the father's influence over D.J. was destabilizing his placement as it was the cause of conflict in the home between her and D.J. as well as between the older twins, D.J. and D.N.J.

[50] The Children's Services Worker gave evidence that the foster mother was "concerned that [D.J.] was fabricating and exaggerating stories and complaints against Ms. W. with encouragement from [the father]."

[51] As a result of the foster mother's concerns, D.J. was moved to a treatment placement on May 6, 2015.

[52] After being moved to the treatment home, D.J. was suspended from school after acting in an inappropriately sexual nature towards a female student.

[53] Prior to D.J. being moved to a treatment home, he was in the same foster home as D.J.N. In March 2015, D.N.J. told the Children's Services Worker that she was having difficulty living in the same foster home as her twin brother. She reported that they argued all the time and that he and her older sister were pressuring her to say she does not want to remain in foster care. She said she also felt the rules were too strict and not having access to the internet was problematic. D.N.J. was uncomfortable speaking to her foster mother about her concerns as she was aware that her foster mother was having difficulty managing the effects of her twin brother's behaviour on their home. As a result, the Children's Services Worker decided to move D.N.J. to a new foster home, where she has remained up to the date of trial.

[54] The father of the three older children has displayed behaviour with and in front of the children which has proven extremely problematic for D.N.J. and her relationships with her twin brother and older sister. D.N.J. reported that her visits with her father were stressful as he often spoke in a derogatory manner about the society and her Children's Services Worker and he was constantly questioning D.N.J. about her wish to remain in care. Shortly after an unpleasant visit with her father on May 11, 2015, D.N.J. chose to stop attending visits with him for approximately 4 months. D.N.J. reported feeling overwhelmed by the pressure from all the adults and her siblings regarding her preference to remain in foster care.

[55] Once D.N.J. resumed visits with her father in September 2015, she reported that she was better able to manage her father's behaviour by leaving the room when she did not like his behaviour. D.N.J. was also reporting difficulties with her relationship with her paternal grandmother for the same reasons she suspended access with her father in May 2015.

[56] The Children's Services Worker gave evidence that D.N.J. is struggling a lot emotionally particularly with relationships that are important to her. While D.N.J. does very well in school and is proud of her academic accomplishments, she is afraid of relationships and does not want to be dependent on others. D.N.J. does not know how to accept the love and affection of those who care about her and she rejects people in her life out of fear that they will reject her. The Children's Services Worker said that D.N.J. feels lonely while simultaneously rejecting or pushing those close to her away. She describes D.N.J. as very needy, emotional, angry, sad and guarded.

[57] The society provided significant uncontroverted evidence of the negative impact access/contact with her father and paternal grandmother was having on D.N.J.'s stability, emotional well-being and on her sibling relationships.

[58] At the date of trial, D.J. has continuously refused any contact with his mother. While D.N.J.'s position at the date of trial was that she did not wish to have contact with her mother, she has at times requested to see her mother or send her a letter. The Children's Services Worker gave evidence that she believes that D.N.J. will want to see her mother eventually and that they have discussed the logistics of the visits if she were to begin seeing her mother.

[59] The mother has had regular access to her oldest child, T.L., since apprehension. At the date of trial she had unsupervised access to T.L. alternate Saturdays for the day with pick up and drop off at the society's offices.

[60] On September 3, 2015, Justice Zisman found all five children to be in need of protection pursuant to sections 37(2)(a)(i), (a)(ii), (b)(i) and (b)(ii)[6] of the Child and Family Services Act (the Act). The Statement of Agreed Facts filed in support of the finding provides that the mother has abused her children and she is unable to control her anger and manage her children's behaviour appropriately. Furthermore, she has not taken responsibility for her actions and unaddressed, the society believes that this places any child at risk of harm in the mother's care.[7]

Part Seven - The Children

[61] At the date of trial, M.G. and S.G. were two years and 9 months old. They have been in care since they were 6 months old, a total of for 26 months, well beyond the statutory timelines permitted by the Act.[8]

[62] Before coming into care M.G. and S.G. lived with their mother and 3 siblings. There was no issue with the mother's physical care of M.G. and S.G. at the time of apprehension. The sole basis for the apprehension and their continued placement in care was the mother's physical abuse of her older children and the society's belief that the mother has not demonstrated that she has changed such that the children are no longer at risk of harm, or that the level of risk can be managed by a supervision order.

[63] The twins M.G. and S.G., now two and a half years old. By all accounts they are adorable, happy and energetic children who are meeting all of their developmental milestones. They are described by their Children's Services Worker as bright and engaging children. There is no report of any behavioural or cognitive concerns for either child.

[64] Two of the witnesses who supervised in total over 45 of the mother's visits described the children as very active and high energy.

[65] M.G. was recently diagnosed with a cyst which is either a Thyroglossal duct cyst or a dermoid cyst. The cyst will require surgery to be removed and S.G., who will be anesthetized, will be in hospital overnight. Except for this one issue, the evidence is that M.G. and S.G. are healthy children.

[66] The children are currently in daycare two days per week. They do not require any services at this time.

[67] M.G. and S.G. visit with all of their siblings and their maternal grandmother every other Saturday at the society's offices.

Part Eight - Disposition

A. Plans Proposed at Trial

[68] There were two plans proposed at trial:

(a) The society's plan for the children to be made Crown wards without access, for the purpose of adoption; and,

(b) The mother's plan that the children be returned to her care following a period of reintegration by way of step up access. Once returned to her care, the mother would be subject to the society's supervision for a period of 6 months.[9]

B. Alternate Plans for the Care of the Children

[69] Section 57(4) of the Act requires the court to look at community placement, including family members, before deciding to place a child in care. Prior to the trial of this matter, the paternal and maternal grandmothers put kin plans before the society both of which were either not approved or withdrawn before the assessment was completed. Neither grandmother pursued her plan, nor were any other plans proposed for the care of M.G. and S.G. at trial.

C. The Law

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

Order where child in need of protection

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

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).

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

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

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

3. If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)

[72] Section 57(1) of the Act is limited by section 70, which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding 12 months, if the child is less than six years old on the day the order is made, unless the time is extended as provided for in subsection 70(4) of the Act.

[73] Subsection 57(2) of the Act requires that the court ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act. The society's efforts are detailed above. The society first became involved in the mother's life when she was a teenager. Services were offered to the mother on each occasion of the society's involvement but the mother did not pursue the services offered as she either did not feel such services were necessary or she had engaged with services providers on her own.

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

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

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

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

[77] The pattern of behaviour must be considered: the lack of improvement in the pattern; the lack of insight; the lack of progress in addressing well-founded concerns, despite repeated opportunities to do so; the lack of candor; the lack of good faith; and the lack of any reason to have confidence that the parent has the ability and/or commitment to make necessary improvements within timelines sensitive to the child's needs. See Catholic Children's Aid Society of Hamilton v. S.(B.L.), 2014 ONSC 5513 (S.C.J.) para 99.

[78] The significance of the child-centred approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance. See Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. See Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. S.C.J.).

D. The Mother's Plan

[79] The mother's plan as set out in her Answer and Plan of Care is for the children to be returned to her care by way of a reintegration plan of increased and unsupervised access. She would continue to reside in the 3 bedroom house she has lived in for quite some time including at the date of apprehension.

[80] The mother will continue with her personal therapy and attend any programs or courses recommended by the society.

[81] The mother proposes a slow integration of the children back into her care by first introducing semi-supervised access at the society's office while also having unsupervised visits in the community. Visits would eventually increase to full day visits which after two months would take place 3 days per week. The mother would continue to take the children to the Early Years Centre she began attending in January 2017. After a few weeks of 3 full day visits, the mother's plan is for the children to begin weekly overnight access.

[82] In oral evidence, the mother said that while she would be responsible for the bulk of the care of M.G. and S.G., she would have the assistance of her father, who lives with her, a close friend and the maternal and paternal grandmothers when needed.[10]

[83] The mother gave evidence that she would eventually put the twins in daycare but at first she would like them to be home with her to make up for lost time.

[84] The mother is agreeable to a supervision order and assured the court that she has and will continue to cooperate with the society.

[85] The mother will facilitate regular contact between M.G. and S.G. with their siblings in order to maintain these important relationships.

The Mother's Strengths

[86] The following is a summary of the mother's strengths as observed by the society workers:

(a) The mother loves her children very much;

(b) The mother attended the majority of her access visits, coming with food and toys and other items for the children;

(c) The mother shows the children lots of attention and affection during visits;

(d) The mother has become more organized for her visits, arranging activities for the children and engaging with them appropriately while doing the activities;

(e) The mother's visits are described by society staff as generally having "gone well" or "good";

(f) The mother has demonstrated appropriate ways to redirect the children during visits;

(g) The mother has provided the children with positive reinforcement and praises them during visits;

(h) Despite the children being described as very active and difficult to manage, the mother has not displayed any anger, aggression or threatening behaviour towards the children during visits;

(i) The mother demonstrates good communication skills with the children during visits;

(j) The mother has been noted by society staff to have utilized some of the parenting skills she has learned in the programming she attended since the apprehension;

(k) There have been no significant concerns noted in relation to the mother's access to M.G. and S.G. by access supervisors;

(l) The mother is motivated to change;

(m) The mother has improved her ability to accept and take direction and suggestions from others in terms of her care of the children;

(n) The mother is more approachable and easier to work with;

(o) The mother is committed to having her children returned to her care and has engaged with several therapists and attended many parenting courses to assist her in achieving this goal;

(p) There is no concern about the mother being able to meet the children's basic needs;

(q) The mother has a suitable home for the children;

(r) The mother has been engaged in personal counselling for over a year and a half and continues to attend for counselling with three to four different counsellors; and,

(s) The mother has demonstrated that she is able to seek out services and programming for herself.

E. Analysis Regarding Disposition

The Mother's Access to M.G. and S.G.

[87] Since apprehension in January 2015, the mother has had two fully supervised visits per week at the society's offices; one for 2 hours and a second for 3 hours.[11]

[88] A significant amount of evidence was focused on the mother's supervised visits with M.G. and S.G. The court was provided with access supervisor notes for many of the mother's visits with the children. The notes demonstrate that the mother's visits with the children are, for the most part, positive. The society concedes there are no significant concerns about the mother's care or interaction with the children during visits.

[89] The access supervisor who supervised 31 visits was asked if the mother ever acted inappropriately towards the children physically or in a threatening manner. She answered "no". None of the society's witnesses gave evidence of any inappropriate physical or threatening behaviour by the mother towards the children during the visits.

[90] After hours were spent on cross examination of the access supervisors who repeatedly acknowledged that the mother's visits were "good" and "mostly positive", the society agreed that if the only issue was the quality of the supervised visits, the children would not be in care. As a result, I will not say more about the mother's interaction with and care of the twins during visits except to say that the parties agree that in of itself, it would not have been sufficient justification for the children to remain in care.

[91] The society's evidence is that the younger twins know the mother as their mother and are bonded to her. They are very happy to see their mother at the beginning of visits and run to her excitedly. The mother is extremely affectionate with the children during visits and the children return her affection. This is telling considering the children were apprehended at 6 months of age.

[92] The mother's visits with M.G. and S.G. have remained at twice per week supervised by the society despite the mother's repeated requests for expanded access or reduced supervision. The society has not seen fit to increase the mother's access or allow any of it to be unsupervised despite the quality of the visits not being an issue. The mother also brought motions for increased and/or unsupervised access in September 2016 and January 2017 and both motions were dismissed by the court.

[93] It is the society's position that they did not cooperate to increase access or reduce the level of supervision because despite the mother making gains from attending counselling and parenting programs, she has not adequately addressed the protection concerns. The Family Services Worker gave evidence that she did not agree to expand the access or reduce the level of supervision because the mother still had not sat down with her and shown remorse. The Family Services Worker disagreed with the suggestion that a tight supervision order with strict conditions would be sufficient to protect M.G. and S.G. because she does not believe that the mother has shown insight into her behaviour. In order to expand the mother's access, the Family Services Worker said she would have to believe that the mother understood the impact of the abuse on her older children.

[94] While the society would not agree to increase the mother's access or reduce the level of supervision, it did, at the mother's request, allow her to locate and arrange to take the children to an Early Years Centre for one of her weekly visits commencing in January 2017. She is accompanied by a society staff person for the entire visit.

Analysis of the Society's Concerns

[95] At trial the society identified five major concerns with the mother's current plan for the younger twins, M.G. and S.G. They are as follows:

i) The mother's past parenting;

ii) The mother's use of formal and informal supports;

iii) The mother's ability to cooperate with the society and comply with court orders;

iv) The mother's lack of a clear plan; and,

v) The length of time the children have been in care and the need for permanency and stability.

i. The mother's past parenting, and ii. Use of Formal and Informal Supports

[96] As I find that points one and two noted above are intertwined, I will address these together.

[97] The mother has been physically abusive towards her older twins, now 13 years old, both of whom continue to refuse to see her. The level of abuse was disturbing. This was a very serious incident of violence and child abuse. She has also used inappropriate forms of physical discipline on all three older children. She did this despite knowing alternate forms of appropriate discipline, which she has employed in the past. The society argues and the evidence supports the fact that the older twins, D.J. and D.N.J. have been severely emotionally scarred by the abuse.

[98] The society argues that despite the mother engaging in extensive couselling and numerous parenting programs since her children were apprehended, she continues to minimize her behaviour and the impact it has had on her older children. Despite acknowledging that the mother has benefitted from counselling and parenting programs and has shown progress, including admitting to the abuse and the negative impact it had on the children, the society argues she has not adequately addressed the society's concerns and sufficietly mitigated the risks to her young twins assoicated with her past parenting. The society argues that the mother has made some progress but she is out of time and the children cannot wait for her rehabilitation to be completed.

[99] It is the society's position that despite the positive changes the mother has made to date, at trial she did not clearly articulate the changes that have occurred to demonstrate that she can safely parent M.G. and S.G.

[100] The mother argues that she is a different person than the woman who abused her older children. She has engaged in counselling with several counsellors to address her past trauma, emotion regulation and anger management, and, has completed domestic violence counselling. She continues counselling with at least three counsellors, one who gave evidence at the trial. She also obtained a psychiatric assessment which reported that she did not suffer from a psychiatric illness. The mother's position is that she has done everything the society has requested of her and that she has achieved positive changes in her life that drastically reduce the risk of harm to M.G. and S.G. if placed in her care. Furthermore, the mother argues that any remaining risk is minimal and can be addressed by a supervision order.

[101] The society acknowledges that the mother has attended for regular counselling, at one point with up to four counsellors, and a multitude of parenting classes. Of the utmost concern to the society (and the court) is the fact that when the mother began counselling in the spring and summer of 2015, she either did not advise her counsellors of the events that resulted in her children being apprended and her criminal charges or she provided few details. The mother acknowledges that on the advice of her criminal lawyer, she did not share this information with her counsellors until she pled guilty to the charges in early 2016.

[102] The society argues that as the mother was not forthcoming with her therapists until approximately March 2016, she has only begun to touch upon the issues that brought the children into care and her therapy has not effected enough change such that the significant risks to the children that existed at the date of apprehension have been reduced. The society argues that it is understandable that the mother has not demonstrated sufficient change at this point in time due to her past trauma being so signficant and her failure to pursue services prior to the children's apprehension.

[103] The Family Services Worker's evidence is that the mother has "not yet begun to adddress the issues that gave rise to the children's apprehension, nor has she accepted responsibility for this." It is the Family Services Worker's opinion that the mother does not understand the impact of her behaviour on the children and has limited insight into the protection concerns. In support of this conclusion the Family Services Worker points to the mother's inability to talk about the abuse with her at all and her failure to advise her counsellors of the details of the abuse she inficted on the children immediately upon the commencement of therapy.

[104] The Family Services Worker deposed that despite the mother admitting to certain facts related to the abuse of her children and the counselling she has engaged in,

"she has begun only to address her personal issues and issues of past trauma (both as a child and as a victim of serious domestic violence) and while I am pleased and impressed that she has began this difficult and necessary work, I do not believe that she is yet in a position to understand her own behaviour and, more importantly, the profound negative impact of that behaviour on her children. It is my belief that while she is able to meet the children's instrumental needs, I remain concerned about her level of frustration and ability to manage any challenging behaviour by he children."

[105] The mother explains that she followed the advice of her criminal lawyer and did not discuss the charges in detail with anyone. It was only after she retained new counsel in both the criminal and the child protection proceeding that she changed course and pleaded guilty to three of the counts and began having more candid discussions with her counsellors.

[106] The mother argues that despite the delay in disclosing the circumstances of the abuse and apprehension to her service providers, she has been working on aspects of herself in therapy since July 2015 that have resulted in real and noteable changes in her and her life that provide a sufficient basis for the court to return the children to her care subject to a supervision order.

[107] The mother gave evidence of what she has learned in counselling in terms of the cause of her anger and how to control it. She has spent almost 20 months in counselling with one particular counsellor who focuses solely on emotion regulation.[12] The mother gave the following evidence on what she has learned in counselling that will assist her in identifying and controlling her anger in the future:

(a) She has identified one source of her anger as, "Me not being able to relate or understand what's really going on or, or, or maybe I'm not accepting it at that time. Me being unable to understand or accept…what's going on at that moment or understand it."

(b) She has learned that what she is thinking at the time contributes to her anger and she has to think positive thoughts as opposed to believing the situation can only get worse.

(c) She has learned that it is better to seek help then to "keep things bottled up inside".

(d) She has acknowledged that she "was living more secluded, covered, hidden, under mask, and, and now… I'm able to open up, be more of myself, without feeling hurt constantly."

(e) She has acquired coping skills to manage the impact stress has on her, such as "positive self-thinking", breathing techniques, opening up and sharing her feelings, and being less controlling.

(f) She is more trusting of people and able to seek help when she needs it.

(g) She has learned a lot about herself and parenting in the personal therapies she has engaged in and the parenting courses she has completed.

[108] When asked what she would do differently when she gets angry with M.G. or S.G. the mother said:

"I wouldn't even use the word 'anger'. I would use the word 'upset' or maybe 'disappointed'….I can get to the source of what's really bothering me…… it's for me to find that out first in order for me to get to the solution…..I mean I don't think I would allow the kids to get me to that level because it's either something that they're wanting at the time - it's either something that I need to do…I would just find other…alternatives to find solutions instead of just get – turning to anger. Anger does not resolve anything. That's what I've learned so far, the past two years… I know how to manoeuver throughout a lot of disappointments now, differently than before, or even let-downs. I mean I think I think differently."

[109] When asked how she thinks differently, the mother said:

"…when it comes for these conflicts, I – I look for the solution instead of reacting. I react a lot less. I find solutions, like, with… [a ccess supervisor ]….I would discuss it with either my family service worker…what… we're going through. I would state my feelings of how I'm feeling. I would give examples to what's…occurring and then I look – I look for advice and find solutions with…whoever is around or who's – who's able to help. I do not result to anger as the first thing and I know now it's not even the last thing. So, I – I look for solutions."

[110] The mother also gave evidence that when she hit her older children, "I'm thinking that it's a way of showing them how I feel or how hurt…I may be…feeling…and there's words that I can use now instead of that. There is emotion that I can use in order for us to connect or for us to relate. There's – you know – there's other ways communicating and now letting them know exactly what you think that time and I need to help them to identify their own feelings… ".

[111] The mother's counsellor from Catholic Family Services of Toronto, Alicia Excell, gave evidence at the trial. Ms. Excell, M.E.d., C. Psych., has worked as a counsellor for Catholic Family Services of Toronto for over 14 years. Ms. Excell provides counselling to women who are victims of trauma or domestic violence, men who are the perpetrators of violence against their partners or children, and, for couples. She has been providing the mother with one-on-one counseling since July 2015. The focus of the counselling was emotion regulation and focused on present day scenarios as opposed to reviewing past events with the mother. Ms. Excell referred to the mother's therapy as dialectical behaviour therapy, "an approach where we try to help women look at reality as it is, not as they wish it to be, work on skills, like emotion regulation, self regulation."

[112] The counsellor gave evidence that early on in her interaction with the mother she felt it was important to work on emotion regulation, managing her emotions including anger, before focusing on past trauma out of concern that focusing on the past would be too destabilizing for the mother, who was working with other counsellors that were focusing on past trauma.

[113] When asked if she's observed any change in the mother since they began working together, the counsellor said,

"I've definitely seen change…we structured the sessions so she'll come in and present a specific situation that's happened. So it could be something during an access. And then …she'll talk about her feelings, her frustrations, and then…I would challenge [the mother] to look at alternative theories for the other person's behaviour, to think outside of the box and not think like a victim…understand another point of view and perspective, and I found, as I was working with [the mother], that through time - that she was becoming much more able to describe the other point of view and she would…talk about sometimes getting defensive. She would own that and then talk about what was going on emotionally for her and what – what was getting in the way…[the mother] wouldn't present herself as a perfect person…she was honest, open and willing to look at her own behaviour."

[114] The counsellor provided the mother and society with a letter in September 2016, providing answers to questions formulated together by the society's and the mother's lawyer. When the counsellor was asked if she has observed any difference in the mother since she wrote that letter, she said that she has observed the mother to be more accountable for her behaviour and better able to identify what she could do differently in a situation. The counsellor also said that the mother is less defensive.

[115] The mother has completed domestic violence counselling offered through Costi Immigration Services with Rosalie Ricupati, Domestice Violence Counsellor. The mother states that she has a good understanding of domestic violence and that she is now at low risk of engaging in another violent relationship.

[116] The mother also completed a 10 week group program entitled "Reclaiming Yourself After Abuse" through Counterpoint, a Counselling and Educational Co-operative.

[117] The mother continues to work with four counsellors; Ms. Excell who works on emotion regulation; Mike Stone, M.S.W., R.S.W., a counsellor with Family Service of Toronto who is focusing on past traumas suffered by the mother and how they effect her now as a parent; Wendy Martin, M.S.W., R.S.W., a social worker/therapist with Unison Health & Community Services who provides the mother with psychotherapy; and, she recently began seeing another counsellor at the Caribbean African Canadian Association. The mother deposed that "My purpose of attending there is to arrange counseling respecting parenting support and planning for children."

[118] It is not entirely clear to the court why the mother is working with four different counsellors. Ms. Excell gave evidence that she has spoken with Ms. Martin and was aware that the mother was seeking out assistance from the Caribbean African Canadian Association as well. Ms. Excell gave evidence that she did a "circle of support" to determine who was working with the mother and the focus of their work because she was "particularly concerned about pacing and grounding because she was doing work in different places, some parenting, some counselling. You know – so she was – she was busy."

Remorse

[119] The society does not believe that the mother is sufficiently remorseful for what she did to her older children. In support of the society's position that the mother minimizes the impact of her actions on the children and is not sufficiently remorseful, the society makes the following arguments:

a) The mother denied certain aspects of the abuse reported by the children to the police;

b) The mother gave evidence that she was responsible for the assaults "regardless of any provocation I felt because of their behaviour";

c) When questioned about her statement to the police officer the mother said that she did not hit D.N.J. for "no reason";

d) The mother denied the possibility that D.J. soiled himself just prior to the assault by the mother in October 2014, because he was scared of her;

e) In her evidence the mother questioned whether the assault on D.J. resulted in five scars to his body despite having agreed to that in a statement of agreed facts filed in the criminal matter;

f) The mother gave evidence that she felt "angry, hurt, disappointed, humiliated" when assaulting her children;

g) The mother was involved in a rage fueled incident in 2011 when she broke the door down of her former boyfriend's home; and,

h) Despite acknowledging that her children were good children, she gave evidence that D.J. lies, D.N.J. lies "sometimes" and T.J. is mostly honest.

[120] It is the mother's evidence that she has accepted full responsibility for the abuse she inflicted on her children and that she would never physically discipline or abuse her children again. She pleaded guilty to the criminal charges which she argues clearly demonstrates that she has accepted responsibilty for her actions. She says that she used to think physical discipline was "necessary" and "normal" and that she has come to realize that physical discipline is not an acceptable form of discipline and she was wrong to use it, especially since she knew and used other appropriate techniques to discipline her children.

[121] The mother was asked if she has watched the recordings of her childrens' interviews by the police. She answered that she has seen the recordings twice and when asked how they made her feel she said she was quite upset with herself and felt really sorry for her children as she did not understand the extent of the harm she was causing her children at the moment the abuse took place. She accepted blame and acknowedged that she was at fault and that the children did nothing wrong.

[122] The mother was asked to comment on the society's belief that she has not taken responsibility for the abuse and she is not remorseful. She gave evidence through tears that she has cried to the Family Services Worker "a whole bunch of times" and she does not understand "what sort of remorse she is looking for". The mother explained that it is very traumatic for her to discuss what she did to the children and that she cannot show remorse this way.

[123] When the mother's lawyer asked her how she felt, looking back on the abuse she inflicted on her children, she said she felt "a shamed, disappointed, disgusted, humiliated and angry" with herself.[13]

[124] When the mother's counsellor was asked what emotions the mother has displayed when she talks about her older children, the counsellor said, "I've seen sadness in [the mother]. I've seen a lot of remorse in her, particularly with the, the, the 12-year-old twins."

[125] In the Pre-Sentence Report dated March 24, 2016, filed with the criminal court in advance of the mother's sentencing on the assault and forcible confinement charges, the Probation and Parole Officer wrote that the mother does show some remorse and understands that she should not have done what she did but that she "minimizes her role in that she was reacting to the behaviour that was presented to her, she was not the initiator."

[126] The mother was asked to explain her belief that she was not the initiator of the abuse and she explained that at the time of the assaults she felt provoked by the children whereas today she understands that she was the initiator of the abuse and no fault was to be attributed to the children.

[127] The court finds that the society has misunderstood or misinterpreted the mother's evidence. The mother spoke about how she felt and what she was thinking at the time of the assaults and what she has come to know and understand at the time of trial. The society seems to rely on statements the mother made in evidence to explain how she felt or what she was thinking at the time of the assaults and atttibute those feelings to her today. The court rejects the society's interpretation of the mother's evidence.

[128] With respect to D.J. soiling himself in the basement before the assault took place, the mother gave evidence that at the time, she thought he soiled himself on purpose to get out of being punished which enraged her and led to the assault. The mother was asked if it occurred to her that D.J. might have soiled himself out of fear of her. She answered "not at all" and that she thought he did it on purpose. The evidence as given by the mother described what she was thinking at the time of the assault. To demonstrate the difference in the mother's thinking today, the court relies on the mother's answers to the next question:

Question: "Do you think that today?"

Answer: "No right now I don't. I realize that he was just a child not knowing what he was doing. I know now that he puposely didn't do that to hurt me."

[129] The mother provided the court with further evidence to support this interpretation of the evidence when she was asked if she thought D.J. told school officials what she had done to him because he was scared of her and she replied, "Of course, he did not want to go through the same thing again."

[130] The court rejects the importance the society places on the evidence of the mother questioning whether the abuse resulted in five scars on D.J. or whether her children were entirely truthful about what occurred during the assaults. The mother has admitted to the abuse. She acknowledges hitting her children with a belt and beating D.J. with a broom which resulted in, among other injuries, a significant gash on his cheek. She admits to confining D.J. to the basement and not obtaining medical treatment for the cut on his face. Her denying that she hit D.N.J. in the face with the belt or that she kicked D.J.[14] does not, in the court's opinion, suggest a lack of remorse or denial of responsibility. Furthermore, what would the mother have to gain by denying these aspects of the abuse while admitting to other equally and maybe even more violent actions towards her children?

[131] The society also questions the mother's evidence that her children, who are good children, sometimes lie. As T.J. and D.N.J were untruthful about an unannounced visit to their mother's home, it is fair to say that they were not truthful about this event.[15] The court also notes that D.J.s foster mother asked for him to be moved as she was worried that he "was fabricating and exaggerating stories and complaints" against her encouraged by his father.

[132] The court does not find these arguments made by the society to be persuasive, as the evidence relied upon by the society in support of their position, does not, in the court's view demonstrate a lack of remorse by the mother or that she is minimizing the impact of her actions on the children.

The Mother as a Witness

[133] The court also notes that the mother was on the witness stand for almost two full days and during this time she gave her evidence in a thoughtful and forthright manner. For the most part, the court found her to be an honest witness. She never lost her composure or became agitated, although tearful when appropriate. The mother's composure on the witness stand in such a difficult and stressful situation, where her character and self worth is being seriously challenged is noteworthy given that the protection concerns centre around her ability to control her emotions and anger.

Insight

[134] The society claims the mother has not demonstrated sufficient insight into her behaviour, what caused it and the effect it had on her children. The mother's evidence provides examples of her insight into what she has done and the effect on her children. Some examples are as follows:

(a) When asked if she can describe some of the ways in which the physical abuse has effected her children, the mother gave evidence that, "Trust wise, I may have breached their trust or damaged that. I may have ruined their capabilities of trusting others." She also said that "maybe they could be displaying the same sort of anger I have without… realizing the source, without realizing where - where it comes from."

(b) When giving evidence of the events surrouding the abuse of D.N.J. for which the mother pleaded guilty to assault with a weapon, the mother said, "If I wasn't in her space, if I wasn't yelling in her face, all of that wouldn't have escalated I think."

(c) The mother was asked to explain what she meant when she gave evidence that she forgave her children and that "it wasn't their fault". She answered by saying it is her fault that the children were apprehended and separated from each other. She said that she wanted the children to know that they did not do anything wrong and that they should not feel any guilt at being apprehended as "it was all on me".

(d) The mother gave evidence that the way her children describe her made her realize the type of person she appears to be and that it was not her intention to be that person. She gave evidence that she wants to be better.

(e) When the mother was being cross examined about the work she has been doing with her therapists, she was asked if she agrees that she requires a lot more work. Her response was, "with the children, ya". Counsel for the society then asked if she required a lot more work on her own issues and her response was that that there was only so much she can do on her own. She feels that she needs to hear from the children how the abuse impacted them in order to fully address what she has done.

(f) When asked if she has forgiven herself for the abuse she inflicted on her children, the mother's evidence is that she needs to fully make amends with the children in order to be able to move on. She said that she wants her children to know how sorry she is and that they do not have to forgive her but she has to show them she is sorry.

(g) When asked why the mother thinks D.J. and D.N.J. do not want to see her, she acknowledged it was because of the physical discipline and the abuse they suffered.

(h) When asked if she has apologized to her children, the mother gave evidence that she has apologized to T.J. and D.N.J. She says she is trying to make amends with T.J. at every one of her visits with her. She had a chance to apologize to D.N. J. and tell her she loves her when D.N.J showed up unannounced at the mother's home with T.J. The mother showed insight when she said that she did not want to say too much to D.N.J. as this took place "with no counsellor" and "I didn't want to traumatize my child again with information and details."

No Opportunity to Parent

[135] The mother argues that once the society decided in December 2015 to pursue an order making M.G. and S.G. Crown wards, they became entrenched in their position and did little to support her reunification with the children.

[136] There is some evidence to support the mother's contention in this regard. The evidence of the Family Services Worker at times suggested she had stopped assessing the mother in any meaningful way and was content to wait until the matter got to trial for a final resolution. While she did meet with the mother and impressed upon her the importance of cooperating with the society and being honest with her service providers, she seemed to do little else in support of reunification.

[137] The Family Services Worker gave evidence that the mother complied with all of her directions regarding counselling and parenting programs. When the mother obtained a psychiatric assessment that the Family Services Worker did not believe was satisfactory, she did not direct the mother to obtain a second assessment as she was already engaged in counselling with several therapists. What is concerning about this evidence is that the Family Services Worker felt that a psychiatric assessment was necessary in order to determine what treatment the mother required to address the protection concerns. When the court asked the Family Services Worker if she referred the mother to the type of counselling she required, she answered that the psychiatric assessment would provide that information.

[138] The evidence is that the Family Services Worker called and spoke to the mother's therapists every 3 weeks or so. She did this to confirm the mother was attending her therapy sessions and what they spoke about. These calls seemed to be done without much purpose. While the Family Services Worker gave evidence that she spoke to the mother's counsellors, she did not give evidence that suggests she went into any great detail with any of them regarding the society's concerns and whether the counselling will assist in addressing the concerns.

[139] The mother's counsellor who gave evidence at trial spoke about her regular calls with the Family Services Worker that seemed solely for the purpose of the counsellor confirming the mother was attending appointments and what they were working on. The counsellor said the Family Services Worker did not say much and she did most of the talking. When asked if the counsellor was told by the Family Services Worker what the society's position was with respect to the return of M.G. and S.G. to the mother's care, the answer was "no".

[140] In her evidence, the Family Services Worker deposed that she received the following information from the mother's counsellors and therapists:

(a) The Domestic Violence Counsellor reported to the Family Services Worker on June 29, 2016, that the mother's "participation was "amazing". She beieved that [the mother] was very eager to learn and to make a difference in her life, that she was receptive to feedback and was very supportive of the other women in the group."

(b) On September 13, 2016, Ms. Excel advised the Family Services Worker that the mother "appeared to be more calm and grounded and less distressed in their sessions."

(c) On September 15, 2016, Wendy Martin told the Family Services Worker that "she has seen a real change with [the mother], and noted that she has been getting more comfortable, calm and grounded during their sessions. She also noted that [the mother] appeared to be really accessing resources in her community, and she seemed to be more reflective."

[141] The Family Services Worker desposed that she contined to have conversations with the mother's counsellors in October and November 2016 and that while the counsellors continue to report that the mother is making progress, the Family Services Worker takes issue with the mother's counselling and how the progress will meet the needs of the children and address the society's concerns when "the focus is largely on her own trauma, and on her own healing process. The counselling remains directed towards addressing [the mother's] own personal goals, but has not yet touched on her actions towards her children that led to them being removed from her care or assisting her to assume responsibility for her actions and understand the impact of her actions on the children."

[142] The court does not accept the Family Services Worker's assessment of the mother's counselling. Clearly the mother's trauma and personal goals are intertwined with her past parenting and future parenting. They cannot be separated, as they go hand-in-hand. Addressing her past trauma and the effects of it on her parenting, are in fact an example of how the mother is, in part, addressing the behaviours that led to the children being brought into care. To say that the mother has not "yet touched on her actions towards the children that led to them being removed from her care" is incorrect.

[143] Given the above information the Family Services Worker received from the mother's service providers, the court is puzzled as to why the Family Services Worker did not have more of an in depth conversation with any of them if what she was told was not sufficient for her to alter her position or to support increased or unsupervised access. If the society was concerned about the progress the mother was making and that she had not "yet touched on her actions towards the children that led to them being removed from her care" why was this not specifically raised with the counsellors? Why did the Family Services Worker not specifically ask the therapists how the work they are doing with the mother will assist her in being reunited with her children? Why did the Family Services Worker not have a frank discussion with any of the counsellors as to whether the work they were doing with the mother would directly address the mother's past parenting, the society's major concern? Why did the Family Services Worker not consider a meeting with the mother and one or all of her therapists? Why did the Family Services Worker not ask any of the questions of the mother's therapist that were asked of her when she gave evidence at the trial?

[144] If the Family Services Worker had engaged in more in depth conversations with the mother's counsellors she may have either considered a change in her position, permitted increased or unsupervised access by the mother, or she could have contemplated different services for the mother that would better support reunification. This did not happen.

[145] The society gave additional evidence that provided support to the mother's position that they became entrenched in their position without the possibility of change in December 2015. Examples are as follows:

(a) The society provided affidavit evidence with a microscopic dissection of everything the mother did during visits with M.G. and S.G. that they thought may reflect badly on her and therefore support the society's position;

(b) The affidavit evidence provided by the society contains an over emphasis on minor disagreements or personality conflicts the mother had with some access supervisors;

(c) The society's suspicion over what could easily have been an honest mistake when the mother attended at the society's offices believing she had a visit with T.J. when she did not and she accidentally saw her older twins D.J. and D.N.J. who were there to visit their father was unwarranted when considering the mother's behaviour as a whole. As there was no pattern of this type of behaviour, the society, in the court's opinion, should have given the mother the benefit of the doubt. This is especially the case when the society claims their relationship with the mother lacked trust;

(d) The society's failure to simply acknowledge that other than not advising the society immediately, the mother was not to blame for T.J. and D.N.J. coming to her home uninvited and unannounced;

(e) The society's refusal to allow the mother to attend the hospital for S.G.'s specialist appointments and surgery to remove the cyst on her neck; and,

(f) The society took a very restrictive approach to the mother's access to M.G. and S.G. making it virtually impossible for her to demonstrate that she can parent these children in a safe manner justifying reunification.[18]

[146] The society's failure to continuously assess the access and cooperate to increase it or reduce the supervision is concerning for the court. The society should have allowed the mother to have unsupervised or semi-supervised visits with M.G. and S.G. After two years of positive visits and almost 20 months of counselling and parenting programs with excellent attendance, how can the society justify their position that the access must be fully supervised?

[147] The society has a duty to reassess its position as circumstances warrant over time: see: Children's Aid Society of the Niagara Region v. D. (W.); Children's Aid Society of the Niagara Region v. B. (C.), [2005] O.J. No. 3878 (Ont. S.C.J.); Children and Family Services of York Region v. E. (P.), [2003] O.J. No. 4884 (Ont. S.C.J.); and Children's Aid Society of London and Middlesex v. S. (E.V.F.).

[148] The court acknowledges that the mother did not cooperate to allow the society to speak with her counsellors until March 2016 but that is a year before trial. The Family Services Worker ought to have asked the counsellors what if any progress the mother has made in counselling and how is what they are doing addressing the protection concerns as part of her ongoing obligation to assess the mother's access. If she had, the court believes she would have been in a position to expand the mother's access.

[149] The court has a difficult time reconciling how the society can support unsupervised access between the three older children and their father while refusing to allow the mother even one hour of unsupervised access to the younger twins. The father of the three older children is described as a volatile, argumentative person who became hostile towards society staff in front of the children and unable to control his emotions. The evidence made it very clear that the older three children's father is a destabilizing force for them, especially D.N.J., causing them a lot of unnecessary stress. He spoke badly of the society, the workers and the foster parents to the children. He constantly harassed D.N.J. about her decision to remain in foster care and enlisted the other children to do the same. The impact of his behaviour on the children will likely be significant.

[150] For the reasons set out above, the court finds that the society only partially met its obligation to provide services to the family pursuant to section 57(3) of the Act. While the society did not fully meet its obligations to provide services to the mother that would best assist her in addressing the protection concerns, the society did provide the following services to the family:

(a) The family had a family service worker;

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

(c) The society conducted regular Plan of Care meetings for both children;

(d) The society provided the mother with referrals to counselling, anger management and trauma counselling;

(e) The children were seen regularly by a doctor and medical specialists as needed; and,

(f) Both children attend daycare twice per week.

iii. Ability to Cooperate with the Society and Comply with Court Orders

[151] The society presented evidence of conflict the mother has had with society staff including both Children's Services Workers and two access supervisors. The society argues that the mother's lack of trust and suspicion with which she approached her relationship with society workers contributed to the conflict.

[152] The mother argues that there were a few society workers she did not like or get along with but that what occurred did not amount to conflict. In addition, the mother gave evidence that some of the society staff interactions with her justify her dislike of them. More importantly, the mother argues that she has good working relationships with several society staff.

[153] The Family Services Worker gave evidence that the mother is polite towards her and that their communciation has improved in the last year. She also said that if the mother is in a bad mood she becomes "difficult and aggressive".

[154] The Intake Worker who was involved with the mother from January 8, 2015 to February 24, 2015 gave evidence that throughout her involvement the mother was "very respectful of me".

[155] In addition to the Family Services Worker and the Intake Worker, the society called six other witnesses who had interactions with the mother; four access supervisors and two Children's Services Workers.

[156] The first access supervisor, who supervised 20 of the mother' visits, was asked to comment on her relationship with the mother. She said that they have an "ok relationship" and that the mother's mood at the visits affected how they interacted. She also gave evidence that the mother was "stern" with her on occasion, spoke to her in a rude tone and mocked her.

[157] The credibility of this particular witness was brought into question when she acknowledged that her affidavit contained a false statement regarding how often the mother bathes the children during visits and how long this activity took.

[158] The next worker supervised 31 of the mother's visits and the mother clearly did not get along with her. In her affidavit of evidence in chief, the access supervisor deposed, "[the mother] demonstrates unpredictable behaviour. There have been many occurrences where [the mother] has appeared confrontational towards me and other staff during the begininng of a visit or at the end of a visit. When approached about said behaviour, [the mother] presents as uncommunicative or difficult and unreceptive to feedback."

[159] When asked to explain her evidence that the mother demonstrates unpredictable behaviour and is confrontational with the witness, she responded by saying that the mother "presents as challenging to receiving feedback and redirection". When ask how the mother is "challenging", the witnessed answered that she becomes defensive. When asked how the mother is confrontational with her, the witness said that she is verbally confrontational if she does not agree with her.

[160] The evidence contained in the worker's affidavit in support of her belief that the mother was hostile towards her contained examples of the mother being short or rude with the worker. Some of the examples were quite petty.

[161] The witness did not provide any examples of how the mother's behaviour was "unpredictable". While the witness's evidence demonstrates that the mother was rude or short with her, the evidence did not support a finding that the mother was confrontational as she did not initiate or instigate conflict.

[162] The worker was cross examined on one particular exchange between the worker and the mother during a visit that the worker relied on as an example of the mother's hostility towards her. The worker was advised by reception that the childrens' driver had arrived. The worker offered to help the mother get the children ready to leave and the mother accepted her offer of assistance. The worker deposed, "as I assisted her, she attempted to direct me to do certain things (open the baby gate) for her. When I suggested she could (and should) open the gate herself, she became irate." The worker confirmed that she offered to help the mother but that she felt the mother should open the baby gate herself as who would be there to do this for her if she were in her home with the children.

[163] The court finds the worker's behaviour to be inappropriate. It was unnecessary for her to engage the mother in the way she did. The witness provided no good reason for not just opening the baby gate for the mother while she managed the two children. Her behaviour was unprofessional.

[164] The Children's Services Worker for the younger twins, M.G. and S.G. supervised many of the mother's visits including 20 visits between March 1, 2016 and the date of trial. This witness described her relationship with the mother as "fairly good". She said the mother has never been rude to her but that she is sometimes defensive with her when she does not agree with what she tells the mother.

[165] A third witness who supervised the mother's visits was called by the society at the request of the mother. This witness supervised approximately 15 of the mother's visits with M.G. and S.G. and most recently as February 17, 2017 at the Early Years Centre.[19] When asked to describe her relationship with the mother she said from her perspective they had a "very positive" relationship and they get along "fairly well".

[166] The society gave evidence that they recommended that the mother work with the society health nurse at visits which she did for a short period and with whom she also got along.

[167] When asked how the visits have changed in the last 8 months, this witness said that she has noticed an improvement in the mother's ability to accept and take direction and suggestions better. She noted that the mother has "flourished" at the Early Years Centre and gets along quite well with the Early Childhood Educator at the centre. This witness also gave evidence that she has noticed an improvement in the mother's ability to accept and take direction and suggestions. She also has seen the mother implement some of the new skills she acquired from the many parenting programs she attended.

[168] In the two years the mother has had supervised visits at the society's offices, she has been supervised by at least 17 different people. She has quite rightfully been under the microscope of the society and the court for two years. She has done everything the society has asked of her. It is not unreasonable for the mother to be short of patience on occasion with a worker or not always get along with everyone she works with at the society.

[169] The court accepts that the mother did not get along with every society worker she came in contact with. The court also accepts that she had a fairly good relationship with many society workers including the Family Services Worker and several access supervisors.

[170] The court finds that the society has mischaracterized the quality of the mother's relationships with the workers at the society. She has without a doubt got along and cooperated with a number of society workers; some quite well. It is entirely possible that one or more of her soured relationships with society workers was, in part, caused by the behaviour of the worker. The mother does well with society workers who treat her respectfully. In all of the circumstances, the evidence demonstrates that the mother has and can work cooperatively with the society.

[171] The society also questions the mother's ability to comply with court orders based on past behaviour of the mother. The society points to supervision orders in place between 2002 and 2005 when the mother was 16-19 years of age, with which she did not fully comply. The mother was a teenaged mother at the time involved with a man who controlled every aspect of her life. She was in an extremely unhealthy relationship with someone who robbed her of her youth. The mother is now 31 years of age. The court cannot and will not rely heavily on the mother's behaviour when she was as a teenager when deciding whether M.G. and S.G. shall be made Crown wards.

[172] The society also finds weakness with the mother's plan in that she cannot be trusted to comply with orders as she failed to comply with the terms of her bail when she had contact with T.J. and D.N.J. in her home; with D.J. and D.N.J. in the lobby of the society's office; and, with D.N.J. in the washroom at the courthouse where her criminal charges were being addressed.

[173] The mother's contact with T.J. and D.N.J. occurred at her home when the girls arrived unannounced. What is clear from the evidence is that the two girls went to their mother's home on their own initiative. They stayed for about an hour and the mother gave evidence that she did not tell them to leave. She was so happy to see D.N.J. she was not going to ask her to leave even though she knew her bail conditions prohibited contact with D.N.J. The court finds that the mother's only significant failing with regard to this incident was to immediately advise the Family Services Worker of what had occurred and that this is not a strong example of the mother's inability to comply with court orders.

[174] The evidence surrounding the contact the mother had with D.J. and D.N.J. at the society's offices is an example of the society's complete distrust of the mother and, possibly, the level to which they are entrenched in their position that M.G. and S.G. should be made Crown wards.

[175] On June 6, 2016, the mother attended at the society's offices under the mistaken belief that she had a visit with T.J. The worker scheduled to supervise the visit between the three older children and their father saw the mother in the lobby and told her that the visit that evening was for the children and their father. The mother told the worker that she had been at the building earlier in the day visiting M.G. and S.G. and asked the receptionist upon leaving if she had a visit with her eldest daughter that evening and was told she did.

[176] While the mother and the access supervisor were trying to sort out who had a visit, D.J. and D.N.J. walked into the building. The mother was noted as having repeatedly said "oh my God" when she saw the children and she asked D.J. if he remembered her. She acknowledged that she should leave and she did so within a minute of the children's arrival.

[177] It is the society's evidence that the mother knew the visit in the evening of June 6, 2016 was for the children and their father and she purposely attended at that time to see the older twins, D.J. and D.N.J. They based their conclusion on the fact that:

1. The mother had a visit with T.J. on May 30th, 2016 and knew visits with her were alternate weeks;

2. At no point during her visit with M.G. and S.G. in the morning did the mother ask the access supervisor if she had a visit that evening with T.J.;

3. The mother did not call the Family Services Worker to ask if she had a visit that evening with T.J.; and,

4. On May 18, 2016, during a meeting, the mother was told her older twins, D.J. and D.N.J. did not want to see her and she said she wanted the children to "tell her to her face" that they did not want to see. This comment led the society to believe that the mother attended at the office to see D.J. and D.N.J.

[178] The mother's evidence is staightforward; she knows the receptionist has a schedule of the day's visits. As she left the building after a visit with M.G. and S.G. she asked the receptionist if she had a visit that evening and was told she did. The society confirmed that the receptionist told the mother that there is a visit that evening.

[179] When the Family Services Worker was asked in cross examination whether she understands that the mother's contact with D.J. and D.N.J. on June 6, 2016 was purely accidental, her response was that she found the mistake "odd and concerning" considering that the mother has been visiting the children at the offices for 1.5 years.

[180] It is concerning to the court that even after the Family Services Worker confirmed with the receptionist that she told the mother there was a visit in the evening, she could not even consider that the mother's attendance at the office was a mistake. Given the mother was involved with multiple counsellors and attending various parenting programs all while maintaining 2-3 visits a week with her children, it is very possible that her attendance at the offices the evening of June 6, 2016 was nothing more than an honest mistake.

[181] The last contact the mother had with D.N.J. in the washroom of the courthouse before she received her sentence on the criminal charges is concerning for the court. The mother was not supposed to have contact with D.N.J. and she should not have, under any circumstances, entered the washroom knowing D.N.J. was inside. She should have been concerned about how her presence would effect D.N.J. especially considering that D.N.J. was in court to read her victim impact statement. The mother's understanding of how her behaviour effects her children must be a topic of discussion between the mother and her therapists to allow her to make better choices based on a more developed understanding of the consequences of her past trauma and the trauma she caused her three older children.

[182] On the issue of compliance, the evidence at trial was that the mother was in compliance with the terms of her probation and with all of the orders of this court. In addition, the court relies on the fact that the mother complied with all of the society's requests in terms of services and programming. There are no reports of conflict with any of the service providers. To the contrary there was evidence that the mother was an active participant in the programming and contributed positively to the experiences both for herself and others in the groups.

iv. Lack of a Clear Plan

[183] The society argues that the mother does not have a clear plan for the children and that her plan is speculative at best.

[184] The society points to the mother's contradictory evidence about whether she would enrol M.G. and S.G. in daycare if returned to her care. She did not explain who would care for the children when she attends her counselling appointments. She has no concrete support system in place other than professionals.

[185] The mother gave oral evidence that she would like to stay home with the twins for a while to make up for lost time and then she would enrol them in daycare. Her affidavit evidence in chief stated that she would enrol the children in daycare and even proposed a term of supervision that the children be in daycare. She said she would continue to attend the Early Years centre and she looks forward to taking the children to Church.

[186] The mother's evidence is that she can rely on her mother, father, the children's paternal grandmother and a friend to assist her with the children when she needs it was vague. None of these people gave evidence at the trial. This is concerning for the court given that mother's problems historically were due in part to her being isolated and not having a support system.

[187] When the mother had all five children in her care she got the school aged children to school consistently and on time. The school had no concerns about the mother's care of any of her children. Her three older children are described as bright, straight A students who take their education seriously. D.J. and T.J. excel at sports and D.N.J. is described as "artsy".

[188] The society argues that the mother's plan has no "air of reality" to it. The court disagrees. The society's concerns with the mother centre around her past parenting and abuse of the children. The concerns are not with the day to day care she provides. In terms of the day to day care of M.G. and S.G., the mother's plan is to care for them in the manner she cared for the other children while continuing her personal counselling. She plans to eventually enrol them in daycare. In addition, she wil cooperate with the society to attend any suggested programming.

v. The Length of Time the Children have been in Care/Need for Permanency

[189] The children have been in care longer than the time limits prescribed by the Act. They are bright, healthy, engaging children who are easily adoptable.

[190] The evidence is that the foster parents who have cared for the twins for 2 years have no plan to adopt the children. Therefore, if made Crown wards, they will be subjected to another change when they are adopted.

[191] The court agrees with the society's submission that the children require consistency, stability and permanency.

F. The Society's Case Law

[192] The society provided the court with several authorities in support of their position. I find it important to refer to some of the cases in this decision and distinguish them where applicable.

[193] The society relies on the decision of Justice Stanley Sherr in Jewish Family and Child Service of Toronto v. R.K. 2008 ONCJ 774, [2008] O.J. No. 5856. The society relies on this case as the court found that the mother, who was involved in many incidents of domestic violence which exposed her child to risk of harm, had not taken the steps necesssary to address the issues that gave rise to the protection concerns. The mother missed many visits with the child, did not attend for important appointments and did not follow through with essential programming. At trial the mother showed a willingness to attend the counselling and programming that was asked of her when the children were apprehended but which up to the date of trial she had failed to do or had just started.

[194] Even more compelling was the psychological assessment completed on the mother which found that she was of a personality type that has a tendancy not to learn from the past and is prone to repeat their behaviour rather than learning from their experiences. As a result of the little progress the mother had made and the dim prospects for future progress, Justice Sherr found that the issues giving rise to the protection concerns were likely to continue and ordered the child be made a Crown ward with no access by the mother.

[195] The decision in Jewish Family and Child Service of Toronto v. R.K. is easily distinguisable from this case. In this case, the mother has cooperated with the society for the most part, followed through with all recommended programming, attended access regularly and has taken some steps to address the issues that gave rise to the protection concerns. In addition, professionals working with the mothing, including the society, say that she is motivated to change and has demonstrated that she has changed some of her behaviours which contributed to the protection concerns.

[196] The society also provided the court wth the decision of Justice Carole Curtis in Catholic Children's Aid Society of Toronto v. T.M. [2016]. In this case Justice Curtis was faced with the task of determining if a mother with significant mental health issues had sufficiently addressed her health concerns such that she could safely parent her two children ages 5 and 6 years old.

[197] The mother in that case, who was polite and cooperative with the society, failed to acknowledge the protection concerns and therefore, was incapable of making any progess in addressing those concerns.

[198] The society highlighted paragraph 115 of this decision in which Justice Curtis writes, "The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order."

[199] The society's submission is that the mother cannot be managed by a supervision order as she cannot be trusted to self-report. In support of its claim that the mother cannot be trusted, the society argues that the mother has breached her bail conditions "on occasions" and her probation officer noted in the Pre-Sentence Report that in the past she had not been "very compliant" with conditions of a probation order and that she would only abide by conditions set out by the society if the conditions that she said are "logical and achievable".

[200] For reasons set out above, the court has found, based on the society's evidence, that the level of cooperation the mother has exhibited with the society is acceptable and that she has mostly complied with the terms of her bail, complied with her current probation and all the orders of this court. As Justice Curtis wrote at paragraph 117 of her decision, "In order for a supervision order to be a meaningful and effective instrument of risk management, the parent subject to the supervision order must meet the minimum threshold of co-operation and reliability….If the parent fails to meet this minimum threshold of compliance, a supervision order cannot be an effective option to protect the child from possible harm."

[201] The court therefore rejects the society's argument and finds that the mother has established, on the evidence, that she has met the "minimum threshold of co-operation and reliability" such that there is sufficient trust between the society and the mother for a supervision order to achieve the goal of addressing the current level of risk to the children.

[202] The society provided the court with the decision of Justice Sheilagh O'Connell in Children's Aid Society, Region of Halton v. T.A.G. [2012] O.J. No. 582. The court took much guidance from this decision in which Justice O'Connell ordered on a Status Review Application that the parties four year old child was to be made a Crown ward with no access for the purpose of adoption.

[203] The parents in that case were the biological parents of M., the child made a Crown ward. The mother had a child from a previous relationship, F., who was the victim of extensive physical abuse at the hands of her mother and step-father. She was 7 years old when she was apprended. The mother and step-father were charged criminally with assault causing bodily harm, assault with a weapon and uttering a death threat. The charges against the step-father were dropped and the mother was convicted of assault causing bodily harm and uttering a death threat against F. She was sentenced to 10 months in jail.

[204] The parents were seeking the return to their care of the younger child, M., who had regular supervised access to his parents. The society argued that the child must be made a Crown ward as the parents intentionally inflicted severe physical and emotional harm on M.'s sibling and often in front of M., causing him significant emtional harm and took no responsibility for the harm they had caused. This fact, the society argued, made them likely to repeat the past and physically and emotionally abuse M.

[205] Justice O'Connell heard 12 days of evidence and saw the video taped police interviews of the parents as well as receiving the transcript of the Reasons for Judgment of the criminal convictions. It was abundantly clear that F. had suffered horrendous physical and emotional abuse by her mother and step-father.

[206] Justice O'Connell heard evidence from M.'s parents that F. lied about the abuse and that her disclosures were influenced by the society or her foster mother. They also blamed the abuse on the maternal grandfather who had since passed away and could not defend himself. The parents also argued that F.'s extensive injuries were self inflicted from self-harming behaviour.

[207] At paragraph 172 of this decision, Justice O'Connell writes, "The evidence is overwhelming that F. was abused by both of her parents and not her grandfather, whom the parents now conveniently point the finger at after claiming for months that F. caused the injuries to herself." Justice O'Connell adds at paragraph 179 that at trial the parents spent an "enormous amount of time and energy adamantly denying that they were in any way responsible for F.'s injuries."

[208] In finding that M. continues to be a child in need of protection, Justice O'Connell relied on the fact that the mother took no responsibility for her actions but rather blamed others including the child. The mother claimed to be the victim in this case and showed absolutely no insight into the pain and suffering she had caused her daughter in her young life. Justice O'Connell wrote at paragraph 190, "It is unfortunate that the energy and time spent by the parents in denying their culpability and preparing their case for trial was not put into accepting responsibility for their actions, facing the consequences, and then taking the rehabilitative steps necessary to become better parents."

[209] In finding that the degree of risk to M. had not changed, Justice O'Connell noted that the parents, did not seek any professional help, did not show any regret or remorse at all during the 12 day trial and that these parents seemed to lack the capacity to change.

[210] The society relies on this case for the reasoning applied by the trial judge when determining that a supervision order would not be sufficient to protect M. As the parents had not cooperated with the society, lied to the court and the society about the abuse and accused a society worker of assaulting and blackmailing the father, Justice O'Connell determined that they were not the appropriate candidates for a supervision order. In reaching this conclusion, Justice O'Connell writes, "The parents are not suitable candidates for a supervision order, which requires honesty, trust, cooperation and a willingness to work with the society."

[211] The facts in Children's Aid Society, Region of Halton v. T.A.G. on which Justice O'Connell relied in making her decision are very different from the facts in the case before this court. As described in detail above, this court has observed the mother in the case before the court to be remorseful and accepting of responsibility for her actions. The court understands that this was not always true of the mother but she has demonstrated sufficient insight as well as the desire and capacity to change which in totality reduces the risk to M.G. and S.G. to a level that can be addressed by a supervision order. She has been honest with this court about the abuse she inflicted on her children and she has taken important steps on the road to her rehabilitation. As stated earlier in this decision, the facts of this case do not support a finding that the mother is not a suitable candidate for a supervision order.

G. Final Analysis Regarding Disposition

[212] The mother has consistently engaged in counselling since the summer of 2015 and the court finds that she has made meaningful progress in understanding and addressing the issues that directly relate to her past parenting and her current ability to safely parent M.G. and S.G. if they are returned to her care. While there is work to be done, the court finds that the mother has made adequate gains through counselling and parenting programs such that the children can be returned to their mother's care subject to a strict supervision order. The extent to which the mother has addressed the protection concerns reduces the risk of harm to M.G. and S.G. from the level it was at at the date of apprehension.

[213] The mothers's plan is not just speculative or a wish to care for the children. She has demonsrated that she has mitigated the risks to M.G. and S.G. as follows:

i) By accepting responsibility for abusing her older children;

ii) By demonstrating heartfelt remorse for what she did;

iii) By showing insight into her own behaviours and the effect on others, including her children;

iv) By showing a willingness and an ability to change;

v) By demonstrating through her evidence, the society's evidence and the evidence of her counsellor that she has the desire and capacity to learn and engage in self reflection;

vi) By engaging in counselling with multiple counsellors for almost 2 years and being able to speak about what she has learned about herself and the positive changes she has made;

vii) By attending supervised access for two years which the society describes as mostly positive and without any major concerns;

viii) Over the two years of supervised access, the mother never used inappropriate discipline or force with the children nor did she ever use an inappropriate tone or lose her temper with either child;

ix) By completing several parenting courses and implementing some of the new skills she has aquired while visiting M.G. and S.G.;

x) By interacting positively with and accepting suggestions from many society workers, a health nurse and the ECE at the Early Years Child Centre;

xi) By showing unwaivering dedication to improving herself and addressing her shortcomings and making this her priority so that her children should be retuned to her care;

xii) By not engaging in any unstable or violent relationships since the children were apprehended;

xiii) There have been no domestic violence issues since the children were apprehended;

xiv) There has been no reports of domestic violence involving the mother and the father of the younger twins, M.G. and S.G.;

xv) By removing the father of her three older children from her life and the risk concern that his presence in the mother's life creates;

xvi) By having no new involvement with the police; and,

xvii) By not demonstrating any concerning or unstable behaviour in any aspect of her life.

[214] While the mother has made sufficient progress in addressing the protection concerns to allow M.G. and S.G. to be returned to her care, risk is still present. The court has serious concerns about the lack of a healthy support system for the mother. The court also believes that the mother needs more work on emotion regulation. In addition, the court acknowledges that the mother does not fully understand the effect her behaviour and the abuse had on all of her children, but especially the older twins, D.J. and D.N.J. The court does not find that a full understanding of the effects of her behvaiour on her older children is a pre-condition to having M.G. and S.G. returned to the mother's care. In order to address the current risks associated with these concerns, there will be a supervision order.

[215] The court finds that a strict supervision order will sufficiently address the current risks to M.G. and S.G. as the mother has demonstrated a commitment to change and an ability to change. While it is very important for the mother to fully appreciate and understand the harm she caused her children when she abused them, this is a work in progress. The court finds that with the changes she has made to her way of thinking and what she has learned in therapy along with her current understand of the damage she caused her older children, she does not pose the same risk to M.G. and S.G. that she did at the date of apprehension. The risk that she does pose today can be adequately addressed by a supervision order.

[216] As a return to the mother's care is the least intrusive and disruptive order that can be made taking the children's best interests into consideration, in order for this to happen in a child focused manner, it will occur following a short period of increased access. As the mother still only exercises supervised access to M.G. and S.G. an immediate return to the mother's care would not be appropriate. The mother recognized this by suggesting that a transitional or step up approach towards the return of the children to the mother's care is more appropriate.[20]

[217] The court is not required to grant an extension of time the children can be in care by 6 months pursuant to section 70(4) of the Act as the transition period will only be two months in length. As there is no issue about the mother's ability to care for the children physically, a short transition period is more to allow the mother to prepare her home for the children, to get the supports in place she will require, to comply with other sueprvision terms that are set out below, but most importantly, to have the children returned to the mother's care in a manner that puts their needs first.

H. Conclusion of Best Interests Analysis

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

[219] With respect to subsection 37(3) of the Act, the court finds that:

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

(b) The mother's plan will meet the children's physical, mental and emotional development.

(c) The children love their mother and are bonded to her.

(d) The children know the mother to be their mother.

(e) The children will enjoy the love and affection of their biological mother.

(f) The children will enjoy relationships with their maternal grandparents and paternal grandmother.

(g) The children will be raised by their mother who shares the same cultural background and religion as the children.

(h) The mother's plan will meet the children's need for continuity and a stable place in a family.

(i) The risk of placing the children with the mother has been sufficiently reduced since the date of apprehension such that the current risk can be managed by a strict supervision order.

(j) The mother's plan will better address the needs of the children then the plan proposed by the society.

(k) This case should not be delayed any further and the children should receive a permanent home as soon as possible. It is in their best interest that this be with their mother following a very short transition period.

[220] The least disruptive disposition for these children and one that is consistent with their best interests is to be returned to their mother's care subject to a supervision order.

[221] It is the court's finding that the mother has made sufficient progress in her treatment to warrant the return of the children to her care. The court is confident that with a strict supervision order, the mother will not use any physical discipline whatsoever on her children and that M.G. and S.G. will not endure the pain and suffering that D.J. and D.N.J. experienced when in their mother's care.

[222] The court is also concerned about the mother's lack of support and safety net in the event she encounters difficulties or challenges caring for two and a half year old twins. This is a concern that the mother must understand will have to be addressed before a supervision order can be terminated. This must be addressed by the mother with the society's assistance in a meaningful way in the period of society supervision.

Part Nine – Final Order

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

1. The children, M.G. and S.G. shall be returned to the mother's care, subject to the society's supervision for a period of 12 months, after a short transitional period as follows:

(a) Commencing immediately, the mother shall have access to the children Monday, Wednesday and Friday and alternate Saturdays (when the children do not have a visit with their siblings and maternal grandmother) from 10:00 a.m. to 4:00 p.m. Two visits, to be agreed upon between the parties, shall be with pick up and drop off at the society's offices and the children shall be delivered to and picked up from the mother's home for the other two visits. One of the visits shall continue to take place at the Early Years Centre, unsupervised;

(b) After the completion of three weeks of the access set out in (a) above, the children shall begin spending every Monday, Wednesday and Friday overnight at their mother's home. The visit shall begin at 10:00 a.m. and end at 6:00 p.m. with pick up and drop off at the mother's home by the society;

(c) After the completion of three weeks of the access schedule set out in (b) above, the mother shall have access to the children from Monday morning at 10:00 a.m. (or at a time where drop off can be at the Early Child Years Centre) until Wednesday at 6:00 p.m. with pick up at the mothers home; and, from Friday at 10:00 a.m. with pick up at the society's office until Saturday at 6:00 p.m. with pick up by the society at the mother's home; and,

(d) After completion of two weeks of the schedule set out in (c) above, the children shall be returned to the mother's care and custody subject to the terms of supervision set out below.

2. Once the children are returned to the mother's home, the mother shall be subject to a supervision order on the following terms:

(a) The mother shall arrange for the children to attend full time daycare once they are returned to her care. The society is asked to assist the mother in arranging daycare for the children;

(b) If a child cannot attend daycare on any particular day, the mother shall notify the daycare and the society of the reason for the child's absence;

(c) The mother shall not use any form of physical discipline whatsoever;

(d) The mother shall not leave the children in the care of any third party unless approved in advance by the society;

(e) The mother shall not allow anyone to live in her home, even temporarily other than herself, M.G. and S.G. and her father without the society's prior written approval;

(f) The mother shall allow the society to attend at her home for announced and unannounced visits;

(g) The mother shall permit the society workers access to the children in the community and sign the necessary consents for that to occur at their daycare;

(h) The mother shall sign consents to allow the society to speak with the children's daycare, doctors and any other professionals or service providers who care for the children;

(i) The society will consider providing the mother with in-home parenting support and the mother shall cooperate fully with the worker if arranged by the society;

(j) The mother shall continue with her personal therapy and attend regularly and as frequently as suggested by the therapist/counsellor;

(k) The mother shall ask her therapists and counsellors, if possible, to have a discussion among themselves to determine if the counselling they are providing is overlapping or in any way counterproductive in assisting the mother in meeting her therapeutic goals;

(l) The mother shall sign releases for her counsellors/therapists to speak with the society and to discuss the ongoing protection concerns that require the society's continued involvement to ensure that they are being addressed in the mother's personal therapy. The society shall speak to the therapists and share the specific concerns they have regarding the mother's ongoing rehabilitation;

(m) The mother shall provide the society with 14 days' notice of her intention to change the children's residence;

(n) The mother shall keep the society advised of her current phone number and email address at all times and she shall respond to contact from the society as soon as possible and within 24 hours; and,

(o) The mother shall advise the society immediately of any injuries either child suffers and the cause of the injury.

3. Should the society wish to make submissions with respect to any additional terms of supervision, they may do so within 5 days of the date of this order and the mother shall have 3 days to provide her response to any additional supervision terms proposed by the society.

4. The court realizes that the reunification schedule will interfere with T.L.'s visits with her mother and all of the children's alternate Saturday visit with each other and their maternal grandmother. The parties will have to cooperate to re-arrange these visits around the reintegration schedule until such time as the children are in the mother's full time care and custody.

5. The parties can agree on any modifications to the reunification schedule including an extension of the schedule, if necessary, for the mother to be fully prepared for the return of the children to her care i.e. arranging for daycare.

Conclusion

[224] This was an extremely difficult decision. The court appreciates the very difficult job the society workers have. The court appreciates that the front line workers at the society develop relationships with the children they are required to protect and that these relationships have a significant impact on them and the decision making process they follow. The society employees who came in contact with the mother's three older children, T.L. D.J. and D.N.J. were no doubt extremely effected by what they heard and saw. The court does not question their motivation for seeking an order making M.G. and S.G. Crown wards. The society's motivation was to protect M.G. and S.G. from possibly suffering the same fate as D.J. and D.N.J. at the hands of their mother.

Justice Melanie Sager

Date: March 30, 2017

Footnotes

[1] The children were found to be in need of protection as a result of suffering physical harm inflicted by the mother and due to the risk that they are likely to suffer physical harm if left in her care.

[2] The final orders with respect to T.J., D.J. and D.N.J. were all made with the mother's consent.

[3] The mother gave evidence that she had been pregnant previously at the age of 14 but miscarried twins at five and half months of gestation.

[4] The court found that the child was at risk to likely suffer physical harm inflicted by the parents as a result of their failure to care for, supervise or protect the child and due to a pattern of neglect in caring for the child.

[5] The videotape recordings of the children's interviews by the police were entered as evidence in the trial.

[6] The children were found to be in need of protection as a result of suffering physical harm inflicted by the mother and due to the risk that they are likely to suffer physical harm if left in her care.

[7] The Statement of Agreed Facts was signed on September 3, 2015 by the oldest three children's father, D.H., counsel for T.J. and D.J. and counsel for D.N.J. The mother did not consent to or oppose the finding.

[8] Some of the delay was due to this matter being set for a summary judgment motion in August 2016. The motion date was vacated and the matter was referred to trial. The trial was set for November 2016 but was later vacated for a two day summary judgment motion to take place that same month. The two day summary judgment motion was then vacated and the matter was sent back to trial assignment court where it was scheduled for a trial to commence on February 27, 2017.

[9] The mother's position at trial was for an order adjourning the trial to implement a gradual increase in her access to the children and then have the matter return to court for additional evidence.

[10] None of these supports gave evidence at the trial.

[11] In January 2017, at the mother's request, one visit per week was moved to an Early Years Childhood Centre but remained fully supervised by the society.

[12] The counsellor defined emotion regulation as "it includes anger management, but it's also broader than that. It includes them being able to manage their emotions internally, their own internal responses, their thoughts their feelings, and then that has an impact on their behaviour... I'm doing work with what's happening internally, so that the person makes different choices in response to their feelings."

[13] In their closing submissions, the society argued that the mother said she felt "ashamed, disappointed, disgusted, humiliated and angry" with the children when assaulting them. The court reviewed the oral evidence carefully and the society's interpretation of the mother's evidence in this regard is rejected by the court. It is the court's view that the mother was clearly giving evidence about how she felt about herself today, not when she was assaulting the children.

[14] The mother notes that these allegations made by the children in their police interviews are not agreed to in the Statement of Agreed Facts in the criminal proceedings.

[15] On February 12, 2016, the children T.J. and D.N.J. went to their mother's home unannounced and uninvited.

[16] The Family Services Worker's evidence is that she asked each therapist every time she spoke with them if they had specifically discussed the mother's actions towards the children.

[17] The Family Services Worker might also have considered a more creative approach to increased or unsupervised access, for example, with one child at a time, or short periods unsupervised, or supervised for part of the visit only etc.

[18] The society would not consent to any form of expanded, semi-supervised or unsupervised access despite the quality of the mother's visits with M.G. and S.G.

[19] Mother requested permission to take the children to an Early Years drop in Centre for one of her visits. When the society agreed, the mother located a centre and visits began taking place there once a week since January 2017.

[20] This transitional approach, which I find to be child-focused and consistent with the primary objectives of the Act, is similar to the approach taken by Justice Ellen Murray in Children's Aid Society of Toronto v. D.B. –S., 2013 ONCJ 405, as well as by Justice Sherr in Children's Aid Society of Toronto v. D.S., [2013] O.J. No. 4673 (OCJ) and Children's Aid Society of Toronto v. S.C., [2016] O.J. No. 2124 (OCJ). If there is any issue as to the court's jurisdiction to make such an order, I wish to emphasize that I would have made an immediate placement order with the mother, rather than keeping the children in care.