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.

(8) PROHIBITION: IDENTIFYING CHILD

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

(9) IDEM: ORDER RE ADULT

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

85.— (3) IDEM

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

ONTARIO COURT OF JUSTICE

DATE: July 4, 2017

COURT FILE NO.: Halton C456/14

BETWEEN:

HALTON CHILDREN'S AID SOCIETY

Applicant,

— AND —

MM (mother), JC (father of AB), DFM (aka DJ) (father of AM & MM)

Respondents

Before: Justice Marvin Kurz

Heard on: July 25, 26, 27, 28, 29, August 31, September 26, 27, October 6, 19, 20, December 13, 14, 15, 2016, January 5, 8, 18, 25, May 15, 2017

Reasons for Judgment released on: July 4, 2017

COUNSEL

Kathy Li — counsel for the applicant society

Novalea Jarvis — counsel for the respondent MM

Logan Rathbone — counsel for the respondent JC

Rick Toor — counsel for the respondent DFM (DJ)

Maria Sirivar — counsel for the Office of the Children's Lawyer, legal representative for the children AB, AM, and MM

Todd Moore — counsel for the Office of the Children's Lawyer, legal representative for the child JB

KURZ J.:

OVERVIEW

[1] The Halton Children's Aid Society ("the Society" or "HCAS") brings a protection application regarding three children (collectively "the children"):

• AB, born […], 2009 ("AB").
• AM, born […], 2010 ("AM"), and
• MM, born […], 2013 ("MM").

[2] AB is the biological child of MM ("MM" or "the mother") and JC ("AB's father" or "JC"). AB presently resides in the temporary care and custody of her father, JC in accord with the consent order of Justice Victoria Starr of this court, dated August 5, 2016.

[3] Both AM and MM are the biological children of the mother and DM ("DJ"), who is known by those initials. AM and MM currently reside with their maternal aunt, CM ("the aunt") and her fiancé, DD, ("the uncle").

[4] The Society originally commenced a protection application regarding the children and their older sibling, JB, born […], 1998 ("JB") on September 30, 2014. That application was based on allegations of parental neglect, primarily by the mother. The Society sought a supervision order placing the children with the mother.

[5] The Society first amended its application regarding the children and JB after it learned that the mother had twice committed sexual assault and incest against JB. Those crimes occurred sometime between September, 2012 and November 2013, when the child was somewhere between 13 and 15 years of age. DJ had organized and participated in those assaults and committed even more sexual crimes against JB. Both MM and DJ were convicted of sexual crimes against JB and remain in prison.

[6] The following persons and agencies participated as parties in this trial. They were:

1. MM, the mother;
2. JC, the father of AB;
3. DJ, the father of AM and MM. DJ was present for each day of trial but did not personally participate or testify. Rather his counsel supported the plan of the aunt and uncle and operated as their de facto counsel;
4. JB, the now 18 year old sibling of the children. JB did not testify or attend at trial, but was granted limited party status to advocate for his continuing access to the children. He was represented by counsel appointed by the Office of the Children's Lawyer ("OCL");
5. OCL counsel for the children;
6. The Mohawks of the Bay of Quinte ("MBQ"). On May 10, 2016 Justice Victoria Starr of this court found that the children belong to that First Nation. Because of the timing of that decision, the MBQ felt that it was unable to fully participate in the trial. It felt that it required more time to prepare and participate. Despite an understanding of the position of the MBQ the court did not grant the Band's request for an adjournment of the commencement of the trial. Such an adjournment, with so many counsel prepared to commence trial, would have caused a great delay in a case that took almost two years to come to trial. It would have left the children even longer in limbo than they were at the start of trial. As it turns out, the timing of the commencement of the trial assisted in placing the children with family caregivers.

[7] While the parties were not always in accord, they now all agree that the children should permanently reside in the care and custody of their present caregivers. As I will set out below, they also agree on other aspects of the care of the children. The key remaining issues before me are:

1. Under what provision(s) of the CFSA should the court make the finding that the children are in need of protection?
2. What should be the legal status of AB's placement with her father (i.e. supervision order or custody order)?
3. What should be the legal status of AM and MM's placement with the aunt and uncle (Crown wardship for the purpose of adoption, supervision order, or custody order)?
4. What access, if any, should the mother be granted to the children?

BACKGROUND

[8] The mother has parented four children with three different fathers. She has a history of involvement with abusive men, conflict with her partners, regular marijuana use and sexual involvement with people younger than herself.

[9] The mother first became romantically involved with AB's father, in late 2006, when she was 28 and he was 19. They had met some years earlier, when she was 19 and he was 10. At the time that they began their romantic relationship, JB was about 8 and the (other) children had yet to be born. JC and MM remained romantically involved for just over three years, until February, 2010.

[10] At the time of their separation, AB was about one and a half years old and JB was 11. The mother alleges and AB's father does not deny that he was physically and verbally abusive to her during their relationship. He was also a chronic marijuana abuser with an unstable work and housing history.

[11] The mother became involved with DJ shortly after she ended her relationship with JC. They all knew each other. AM was born about eight to nine months after MM and DJ began their romantic relationship. MM and DJ married some time in 2010.

[12] MM alleges that her relationship with DJ was also an abusive one. She alleges that he physically, mentally and sexually abused her. She alleges that he was very controlling. He has done nothing to deny this claim.

[13] MM's relationship with DJ was clearly a highly sexualized one. It included threesome sexual assemblages in her home with strangers or acquaintances, arranged by DJ. He would watch or sexually participate in these encounters. On about 30 occasions, MM had sex in her home with strangers, as arranged by DJ. She stated that half of those encounters took place while she was blindfolded. On at least one occasion she participated in a threesome sexual arrangement with a 16 year old girl.

[14] The HCAS first became involved with this family in September, 2013, when DJ was still residing with MM, JB, AB and AM. AB's father was exercising access to AB on alternate weekends. The Society's original concerns involved adult verbal conflict between MM and DJ in the presence of the children, MM's frequent marijuana use, and the condition of their home.

[15] On September 30, 2014 the Society issued its initial protection application, alleging parental neglect. On October 28, 2014, two days before the Society's application was scheduled for its first hearing date, the mother made a startling admission. She told JB's father and JC of her sexual abuse of JB. JB's father called the CAS. The next day the mother spoke to Ms. Benalick of the HCAS and to the Halton Regional Police Service.

[16] MM claimed that DJ had forced her to twice have the sex with her son. She explained that he claimed to have videoed the first act and had threatened to replay the video in court to discredit her. The mother told Ms. Benalick that she reported the abuse so that DJ would not be able to blackmail her with the unseen video. She portrayed herself as DJ's victim.

[17] No such video has been uncovered.

[18] The children and JB were apprehended on October 29, 2014, and formally placed into care the following day. They were soon moved to the home of their maternal grandparents. After less than a week they were placed in foster homes.

[19] Unfortunately the children were not placed together. AB was placed with the C family while AM and MM were placed with TDC and her husband, CD. JB remained with the grandparents, with whom he continues to reside.

[20] On May 10, 2016 Justice Victoria Starr of this court found that the three children are "Indians", as described in the CFSA, and that their Band is the Mohawks of the Bay of Quinte–Tyeninaga Mohawk Territory.

[21] The children were still residing in foster homes when this trial commenced. However AB was placed with her father in accord with the consent order of Justice Victoria Starr of this court (made at a mid-trial settlement conference), on August 5, 2016.

[22] On January 19, 2017 the Society placed AM and MM with the aunt and uncle in what it described as an "extended access visit". In fact it is a de facto temporary placement with them.

[23] Both MM and DJ remain in prison. MM pleaded guilty to one count of sexual assault and another of incest. On September 22, 2016 Justice Jennifer Woolcombe of the Superior Court of Justice sentenced MM to five and a half years in prison. With time served to date, she was ordered to serve a further 968 days, or two years and 238 days. She was also ordered to register as a sexual offender under the Sex Offender Information Registration Act and comply with the other terms of that statute.

[24] DJ was tried and convicted of sexual assault, sexual assault with a weapon, sexual interference and invitation to touch. He was given a longer sentence than MM, eight years of jail time. With time served he had 1886 remaining days or just over five years, one month to serve. He was also ordered to have no contact with anyone under the age of 16 for ten years.

Issue No. 1: Under what provision(s) of the CFSA should the court make the finding that the children are in need of protection?

[25] The threshold issue in child protection proceedings under the CFSA is whether the child is in need of protection. Without such a finding, the child protection court does not have the jurisdiction to make any final orders. Under CFSA s. 37(2), a child may be found to be in need of protection based upon a number of risk factors.

[26] If a finding is made, the court has the jurisdiction to invoke a number of remedies. The criterion for making one of those orders is the child's best interests.

[27] The Society relies on the grounds for a finding found in CFSA subsections 37(2) (b) (i) and (ii) (risk of physical harm), 37(2) (c) (risk of sexual molestation or exploitation), 37(2) (g) (risk of emotional harm) and 37(2) (i) (parents unable to care). The relevant provisions read as follows:

Child in need of protection

A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(c) the child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child;

(d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c);

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(i) the child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody.

[28] The mother insists that the Society's final reason for seeking a finding, that she and DJ are incarcerated and unable to exercise their custodial rights, is sufficient. The Society insists that the finding should also be on the basis of risks of physical, sexual and emotional harm.

[29] AB's father agrees with the Society's requests for findings based on risks of sexual molestation or exploitation, or emotional harm, as well as the parents' unavailability to care for the children. He does not agree to a finding on the basis of risk of physical harm. OCL counsel and MBQ took no position regarding the Society's requests.

Evidence of Past Parenting

[30] The CFSA grants the court the discretion to consider a wide variety of evidence that relates to a parent's past conduct towards any child that may otherwise be considered to be hearsay. CFSA s. 50 (1) reads as follows:

50. Consideration of past conduct toward children

(1) Despite anything in the Evidence Act, in any proceeding under this Part,

i. the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

ii. any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for decision in an earlier civil or criminal proceeding, is admissible into evidence.

[31] While the provision on its face seems to be quite broad, there has been some dispute about its breath. A number of cases that have limited its application. One important limitation is cited by Justice Sheilagh O'Connell of this court in Children's Aid Society of Halton v. J.O. There O'Connell J. stated that s.50 relates only to the past parenting practices of the parents before the court in regard to a child not before the court. Thus in this case the provision would apply to evidence regarding MM's parenting of JB but not of the children.

[32] With regard to the strictness of the application of the rules in CFSA s.50, O'Connell J. considered the application of two different approaches in the case law. Citing a decision of Justice Penny Jones of this court, O'Connell J. wrote:

… the interpretation of this section has given rise to two distinct lines of authority. Some judges have seen this section as "creating special rules of evidence for proceedings under Part III of the Act" and have broadly exercised their discretion to admit evidence with any concerns about reliability going to weight.

[33] In this regard, she cited a decision of Justice Joseph Quinn of the Superior Court of Justice. He wrote:

Must the "necessity" and "reliability" requirements of The Queen v. Khan, [1990] 2 S.C.R. 531, 113 N.R. 53, 41 O.A.C. 353, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1, [1990] S.C.J. No. 81, 1990 CarswellOnt 108, be met? No. In my view, subsection 50(1) trumps The Queen v. Khan. As long as the requirements of clauses 50(1) (a) and (b) are met, there is a discretion in the court to admit hearsay evidence without consideration of the criteria in The Queen v. Khan.

[34] O'Connell J. continued, stating that:

Other judges have interpreted this section narrowly. They have read the discretion to admit evidence as subject to the rules of evidence and procedural fairness. The criteria of necessity and reliability still apply.

[35] Here O'Connell J is referring to the decision of Jones J. of this court in Catholic Children's Aid Society v. J.L. There the court considered the issues of reliability and necessity, finding that if the evidence relates to the very issue to be decided, the Khan test applies. Otherwise Jones J. would apply a balancing process looking to reliability and the effect on a fair trial.

[36] Citing the parents' Charter rights, and the Supreme Court of Canada's decision in New Brunswick Minister of Health v. J.G., O'Connell J. came down on the side of the approach of Jones J.

[37] I note that the decisions of both Justices O'Connell and Quinn have both been cited with approval. However it appears to me that the very restrictive reading of CFSA s.50 adopted by Justices O'Connell and Jones, even in the face of parents' Charter rights, would make the s. CFSA 50 provision meaningless. The principled exception to the hearsay rule set out in Khan and cited by Quinn J. would have allowed some hearsay into evidence regardless of its nature as hearsay, based on the twin tests of necessity and reliability. That would make CFSA s.50 superfluous.

[38] But a narrow reading of CFSA s. 50 that would leave it devoid of purpose would violate a fundamental tool for statutory interpretation; the purposive analysis of legislative purpose. As Professor Ruth Sullivan wrote in Sullivan on the Construction of Statutes:

A purposive analysis of legislative purpose is based on the following propositions:

(1) All legislation is presumed to have a purpose. It is possible to discover or adequately reconstruct that purpose through interpretation.

(2) Legislative purpose must be taken into account in every case and at every stage of interpretation, including initial determination of a text's meaning.

(3) In so far as the language of the text permits, interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat of undermine legislative purpose should be avoided.

[39] Here it is easy to interpret the legislative purpose of the CFSA because its first section sets it out. CFSA s. 1(1) states that the paramount purpose of the statute "… is to promote the best interests, protection and well being of children." The CFSA sets out other purposes, but they only apply "…so long as they are consistent with the best interests, protection and well being of children".

[40] Viewed within the lens of the paramount purpose of the CFSA as a whole, the purpose of s. 50 is to broaden the common law hearsay rule when it comes to past parenting. That allows a courts making decisions regarding the best interests, protection and well being of children to have before them as broad a range of evidence relevant to a potential caregiver's parenting as possible.

[41] The most recent binding authority on the issue supports this view. In the 2009 decision, Catholic Children's Aid Society of Hamilton v. C.R., a Divisional Court panel that included future Supreme Court of Canada Justice Andromache Karakatsanis, a took the less restrictive view. That appeal considered a motion judge's use of unsworn parenting capacity assessments in previous proceedings regarding the parents before the court. The Divisional Court upheld the decision below, stating that:

The legislature has expressly created a special evidentiary rule applying to a proceeding under this part of the Child and Family Services Act to permit the admission of such documents.

[42] I am bound by this precedent. But while the starting point is the admissibility of past parenting conduct evidence under CFSA s. 50, that decision does not grant carte blanche to the court to admit any evidence, regardless of its reliability. That would create the mischief to the fair trial rights of the parties that O'Connell J. sought to avoid. Rather I see CFSA s. 50 as allowing the court broad discretion to admit evidence regarding past parenting conduct provided that it is prima facae reliable.

[43] Further, as Justice Harvey Brownstone of this court pointed out in Catholic Children's Aid Society of Toronto v. C.S., the admission of evidence under CFSA s.50 does not mean that it will necessarily be taken as persuasive or determinative by the court.

[44] Here I find that I am entitled under CFSA s. 50 to consider the following evidence about the mother's past conduct towards her son, JB:

1. the findings of Justice Jennifer Woolcombe of the Superior Court of Justice contained in her decision regarding the mother's sentencing;
2. Woolcombe J's comments about the facts admitted to in an agreed statement of facts placed before her;
3. MM's evidence in cross examination during this trial regarding the statement of agreed facts for her sentencing hearing;
4. statements made by JB to Jillian Collins, the author of the Gladue report and HCAS worker, Jennifer Bennalick, regarding some texts that the mother sent to him;

[45] There is no question that the mother sexually abused the child. That is admitted and the subject of the guilty plea and sentencing. That is why the sentencing decision of Woolcombe J. for the very acts that are central to this case, and based in large measure on an agreed statement of facts, is not only caught by CFSA s. 50 (1) (b), it is clearly reliable.

[46] So too are the statements of JB to Ms. Collins and Ms. Bennalick, although it remains open to me to consider their weight. That standard applies to the other evidence I admit through CFSA s.50. I note that there was no challenge to the admissibility of that evidence, in large measure because of the agreement among counsel that JB would not be required to testify. Rather the parties agreed that his evidence could go in through others.

Note About Evidence Regarding Finding and Disposition

[47] The architecture of the CFSA requires a trial judge to consider evidence related to a finding before considering evidence that relates solely to disposition. No party raised the issue of bifurcation at this trial. Each was content with a blended hearing. I have relied on no evidence that relates solely to disposition in coming to a finding about the need for protection.

Risk of Physical Harm

[48] In Children's Aid Society of Hamilton v. A.(M.), Justice Deborah Chappell of the Superior Court of Justice reviewed a number of principles that apply to findings for both a risk of physical and emotional harm, as follows:

With respect to both protection grounds, it is not necessary for the Society to prove intention on the part of the parent or caregiver of the child. Risk of harm by neglect or error in judgment falls within the scope of section 37(2) (b) (ii). The risk of harm under both 3(2) (b) and (g) must be likely and real, rather than speculative. The court may determine that a child is at risk of suffering harm even though the conduct that causes concern is not directed specifically towards that child.

[49] Further, and following upon Chappel J.'s comments, while the Society must prove the potential by act, omission, or pattern, it does not have to prove intention. Physical harm caused by neglect or error in judgment is still physical harm. But, it must be more than trifling physical harm. Harm caused by neglect or error in judgment comes within the finding.

[50] The civil evidentiary standard of a balance of probabilities applies to the determination of a finding that a child is in need of protection under CFSA s. 37 (2). Nonetheless, the court must be "careful, deliberate and demanding" in considering that balance of probabilities.

[51] Further, as Justice Joseph Quinn of the Superior Court of Justice stated in Children's Aid Society of the Niagara Region v T.P., the CFSA is remedial legislation. It should be broadly interpreted. He stated:

In G. v. Catholic Children's Aid Society of Metropolitan Toronto (1985), 53 O.R. (2d) 163, 9 O.A.C. 398, 24 D.L.R. (4th) 264, 45 R.F.L. (2d) 442, 1985 CarswellOnt 1430 (Ont. C.A.), at page 265 [D.L.R.], the court said of the Child Welfare Act, R.S.O. 1980, c. 66:

This is remedial legislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it. Specifically, narrow restrictions should not be read into the section when they do not appear in the legislation.

Although the above passage dealt with the Child Welfare Act, it would seem to be generally applicable to the Child and Family Services Act.

[52] The Society relies on the following factors to argue for a finding based on risk of physical harm:

1. The mother's home (and for a time, that of DJ as well) was frequently messy, with garbage strewn about and in the view of Society workers, unhygienic. There were exposed wires, and open bottles of medication. AM and MM were frequently seen to be dirty. JB expressed the desire to live in a clean home.

2. The mother was a regular user of marijuana while at home. A HCAS worker smelled marijuana in the home three times when she visited. MM admitted that she consumed marijuana daily, but claimed that she did so only after the children went to bed. JB expressed the wish that she not consume marijuana.

3. MM and DJ exposed the children to harm by bringing strangers into the home for sexual encounters.

[53] In arguing against the Society, the mother argues that:

1. there is no evidence that the children were physically harmed in her care, so any risk does not arise from harm that actually befell them;

2. no family members complained to the Society about this ground of risk;

3. she only smoked marijuana when the children were asleep;

4. she only brought strangers into the home on weekends that the children were away with relatives;

5. in any event the allegations related to risk are "trivial".

[54] JC, who supports the mother on this issue, argues that the likelihood of physical harm must be real, and not simply speculative. I agree with him and the mother on this issue.

[55] While I do not question that the standards of MM's housekeeping were far from exemplary, and that she regularly smoked marijuana, there is insufficient evidence to find that there was a risk that they would be physically harmed or placed at risk of physical harm by her acts or neglect.

[56] First of all, there is no evidence that the children were physically harmed by the mother's care of them. Second, while there may have been reasons to have been concerned about the mother's marijuana use (I will have more to say about that use below), such use in itself does not necessarily call for a finding. In Catholic Children's Aid Society of Toronto v. S.S., Justice Stanley Sherr of this court stated:

The small use of marijuana is not in and of itself a protection concern, in the absence of evidence indicating that this amount of marijuana is impairing the ability of the mother to parent.

[57] Sherr J. cited Justice Robert Spence's careful explanation for the court's reluctance to take judicial notice regarding the regular use of marijuana in Children's Aid Society of Toronto v. T.R. There Spence J of this court wrote:

In my view, the court cannot take judicial notice that regular marijuana use, per se, is something that impairs a parent's ability to care for his child. There was no expert evidence tendered on how marijuana affects people in general, and certainly no evidence called on how the use of marijuana affects Mr. R.G. Although Mr. R.G. is a self-acknowledged heavy user of marijuana, I expect that drug usage, like alcohol usage, affects people in different ways. It is within common knowledge that one or two alcoholic drinks can have a significant impact on the behaviour of some individuals, whereas for other individuals, it may take several times that amount before the alcohol impacts similarly on behaviour or judgment. Person A's judgment might become impaired with as little as 2 or 3 drinks, whereas Person B might be able to consume, for example, 7 drinks before any such impairment sets in. In the result and without other reliable evidence to support the society's submission, I am unable to conclude that the father's use of marijuana, alone, is an impediment to good and competent parenting.

[58] With regard to the issue of the timing of the threesomes, there is no evidence to contradict the mother's claims that they occurred on weekends when the children were away. However it is obvious that at least one of MM's children, JB, was present when at least the events that involved him occurred. But that fact speaks to far clearer grounds for a finding of risk of emotional harm than risk of physical harm.

[59] At the end of the day the Society has not proven that the children were at risk of physical harm in the care of the mother.

Risk of Sexual Molestation or Exploitation

Arguments of the Parties

[60] The Society's argument in regard to this head of risk is straightforward. Both MM and DJ sexually abused JB, one of MM's children. Both were convicted of sexual crimes. Those facts raise a risk that she could, in the right circumstances sexually abuse another of the children.

[61] The mother claims to have no sexual interest in children or minors. Even if I were to assume that to be the case (which for reasons set out below I am unwilling to do), the Society offers the following reasons to still believe that she poses a risk of sexual molestation or exploitation to her children:

1. MM has consistently refused to accept any real responsibility for her first sexual abuse of JB;

2. while MM acknowledged that she could have done more to prevent the second sexual abuse of JB, her remorse for that failure and the abuse itself is shallow;

3. MM continued her relationship, both romantic and sexual, with DJ, even after the second sexual assault on her son. She did so knowing that DJ (not to mention her relationship with him) was a risk to the children;

4. MM continued to bring DJ into her house even after they separated, going so far as to drive him to and from his new Mississauga residence and her home in Halton;

5. MM's presence in the home did nothing to protect JB. Yet she claimed that her presence protected the children and justified bringing DJ into the home after their separation. She asserted that she made sure that DJ did nothing improper in the home;

6. MM continues to choose inappropriate potential partners. The last three men with whom she struck up a relationship while in prison were criminals. One was involved in fraud, a second was convicted of a weapons offence and a third was a domestic abuser. She justified those relationships by downplaying the crimes. She even contemplated introducing one or more of her partners to her children.

[62] JC, AB's father supports the Society's arguments. He is quite critical of what he describes as MM's lack of credibility and her deceptive testimony regarding JB's sexual abuse. He is particularly concerned regarding MM's choice of romantic partners. He argues that they reflect poorly on both her honesty and her level of judgment. He is also critical of the fact that MM attempted to involve him as her romantic go-between with at least one of those criminal romantic interests.

[63] The mother is adamant that she poses no risk of sexual molestation or exploitation to the children. She states, accurately, that there is no evidence that she actually sexually abused any of the children. In fact she goes so far as to argue in her factum that she "… protected the 3 youngest children from risk of future harm..." by:

i. not leaving them alone with DJ;

ii. admitting to the sexual assaults to the authorities and then pleading guilty to two criminal charges;

iii. consenting to the child protection proceedings that placed JB with her parents;

iv. separating from DJ and remaining separated;

v. testifying against DJ;

vi. taking various programs and courses in prison.

[64] MM adds that she has no sexual interest in children. As she states that she has taken responsibility for her actions, she argues that she should be punished no further than she was by the criminal court. She correctly argues that punishment is not the role of this court. On the other hand, despite ostensibly accepting responsibility for her acts, she maintains that she was forced into the sexual acts by DJ.

Credibility

[65] It is difficult to determine the issue of risk of sexual and emotional harm to the children without first considering the issue of MM's credibility. Most of her arguments effectively rely on her credibility and request that she be taken at her word. Regretfully, for reasons set out below, I am unable to do so. I find that much of MM's evidence, whether from self-interest or self-delusion, is neither believable nor true.

Credibility Regarding Conflict with DJ

[66] If one were to start before the sexual abuse was reported, the mother offered evidence regarding verbal abuse by DJ and marijuana use. Much of her evidence is centred on her assertion that she was the victim of DJ's various forms of non-physical abuse. As there is little independent evidence (DJ not testifying), we are called upon to accept her word on it.

[67] Despite claiming to be abused, the mother denied any conflict with DJ in front of the children. That evidence was clearly contradicted by the aunt, who was often in the home of MM and DJ. Her evidence was that MM gave as well as she got during verbal arguments with her husband. She described both of them as "vicious" to and controlling of the other. Their fighting continued even after they separated. The aunt's evidence was corroborated by her mother (who is also DJ's mother) and the uncle.

[68] Neither the aunt nor the uncle had motive to lie about MM. She was supporting their position at trial. The aunt and uncle originally supported DJ and not JB, believing DJ's denials. But after his conviction and their realization of his guilt, they were remorseful and broke off all contact with DJ.

Credibility Regarding Marijuana Use

[69] Similarly the mother gave accounts of her marijuana use that were contradicted by many credible sources and even by her own statement. For example, she told forensic psychologist, Dr. Mini Mamak, in the context of her marijuana use at the time of her offences, that she used marijuana daily. Dr. Mamak added that MM offered a strong suggestion that she had been engaged in daily marijuana use for many years.

[70] Probation officer, Charlotte Kennedy, author of MM's pre-sentence report, wrote that the mother stated that "…by the age of 18, she was smoking the drug daily." She explained that she was able to afford that quantity of the drug by selling it.

[71] Yet in an addendum to her trial affidavit, MM claimed that she "…never smoked marijuana daily." She went on to minimize her marijuana use. She swore that after she gave birth to the children, "… I only had puffs from time to time and estimate that I only consumed less than 1 joint per week and never in a caregiving role."

[72] The mother also claimed in her affidavit and testimony that she only smoked marijuana when the children were asleep. She said something similar to Ms. Benalick. Yet her minimization of her use was contradicted by the aunt and uncle, AB's father, Ms. Benalick, and (in her statement to Dr. Mamak and Ms. Kennedy) MM herself.

[73] The aunt stated that she saw the mother smoke marijuana in her home when the children were awake.

[74] AB's father had no motive to lie. He gave his evidence candidly and credibly. He said that he once saw MM smoke marijuana in front of children.

[75] Society worker, Jennifer Benalick, smelled marijuana in MM's house at least three times. On the date that she learned of the sexual abuse disclosures, she attended at MM's home, where a birthday party for AM was going on. She suspected that MM was under the influence. At first MM denied marijuana use then admitted it. She stated that she had smoked marijuana with the aunt and her mother-in-law.

Credibility Regarding Sexual Abuse of JB

[76] With regard to the sexual abuse of JB, MM's evidence is in many ways contradictory, inconsistent, and in some ways simply not believable. The starting point perhaps is the issue of responsibility.

[77] MM variously claims both to have taken responsibility for her actions and to have been the victim and pawn of her husband. While her sexual abuse of her son may have been caused by multiple and complicated factors, it is nonetheless hard to square the contradictions in her account. As the Society has pointed out, the mother has offered a number of subtly and not-so-subtly inconsistent accounts of the sexual assaults, whose differences are telling. I will have more to say about that below

[78] MM first reported the sexual assaults to JB's father and then to JC, AB's father. According to Justice Woolcombe's decision regarding MM's sentencing, MM explained the assaults by saying that "…she had been manipulated and controlled by [DJ]." She did not mention the assaults being motivated by drugs or threats.

[79] Jennifer Benalick met with the mother on October 29, 2014. She came to MM's home because JB's father had advised her of the mother's admission to him of the sexual assaults of their son. At that time, MM told the worker that the assaults had taken place over a year ago and that JB was fine.

[80] MM went on to say that DJ claimed to have had taken the videos of the first sexual assault and was going to show them to the child protection court the next day. That presumably explained the timing of and motivation for her admission. She said nothing about drugs or compulsion.

[81] Ms. Benalick saw the videotape of the mother's statement to the police. On that video, MM said of the initial sexual assault that she was blindfolded at first and did not know that she was having sex with her son. She stated that DJ forced her to have sex with JB. However she admitted that he did not have a weapon, did not try to blackmail her and did not physically force her. She said nothing about being drugged or the manner in which she was forced to participate in that first assault.

[82] As Woolcombe J. found in her sentencing decision, relying on MM's presentence and Gladue reports, the mother stated that when the blindfold came off, she was so shocked she did not know what to do. So she let the sex act continue to completion.

[83] Nowhere in the evidence is there a statement by MM that she actually saw DJ videotaping the first sexual assault, even after the blindfold slipped off.

[84] Further it should be noted that the probation officer, Ms. Kennedy, stated in the presentence report that the mother told her that "…she had no memory of the offence". How then did she remember the part about the blindfold falling off and how she felt and why she did not stop? On the other hand, if she was able to recall those details, why did she deny the memory to Ms. Kennedy?

[85] In her trial affidavit of October 6, 2016, the mother claimed that DJ drugged her at the time of the first assault. She added that he threatened to post a video of the first assault on the internet. That would make her lose her existing children and MM, who was still in utero. She mentioned the same threat of exposure to the author of the Gladue report.

[86] Yet, as Woolcombe J. pointed out in sentencing MM,

In the agreed facts on the plea, there is no mention that a threat by [DJ] to share the videotape played a part in M.M.'s agreement to take part in the second incident with her son.

[87] MM continued in her trial affidavit, offering a distinct memory of the first assault, despite the alleged drugging and loss of memory. She stated at par. 36 that:

I was so shocked when the blindfold came off that [JB] was having sex with me that I could not move or even say anything. After the sexual incident with JB, I refused to participate in any threesomes in the future and advised DJ of this and there were no threesomes.

There are a number of problems with this statement.

[88] First it is clearly false. MM did participate in at least one further threesome with DJ – with her own son, after that first blindfolded assault.

[89] Further, the mother contradicted herself on this point in her cross-examination. Initially she stated that she participated in no threesomes after JB's second sexual assault. However she was confronted with the agreed statement of facts for her criminal sentencing, in which she stated that the threesomes only ended after DJ left her (months after the second sexual assault). She conceded that she agreed to this fact. However she repudiated her admission, claiming that she mixed up the dates.

[90] It is hard to credit that recantation and explanation. MM's criminal lawyer would have participated in the drafting and editing of that document. He would have done so under her direction. MM signed the document under his guidance. This is not the only time that MM rejected the recitation of her own narrative when it became inconvenient.

[91] Second, as she describes it, MM needed only put down her foot to refuse further threesomes, and DJ complied. This demonstrates that she had full agency over her actions. She was not subject to DJ's coercion.

[92] Yet three paragraphs in her affidavit later she contradicted herself yet again. She stated in regard to the second sexual assault (which she describes as an "incident"), that she

…was manipulated, blackmailed and forced to have sex with [JB] by DJ. I never would have voluntarily of my own volition, have had sex with [JB].

[93] MM was confronted in cross-examination about the inconsistencies in her narration of the sexual assaults set out in her affidavit and the presentencing report. MM's response was to blame Ms. Kennedy, the author of the pre-sentence report, or her supervisor. She claimed that they failed to accurately report her responses or improperly edited them. But MM failed to call Ms. Kennedy or her supervisor as witnesses to confirm her account of their errors. She also failed to explain why her criminal counsel failed to object to the purportedly incorrect and even doctored report.

[94] Another critical area in which MM's evidence is not credible in in regard to her sexual interest in her son. In her trial affidavit she was explicit in stating that the thought of sex with her son is "repulsive and upsetting". She also swore that prior to, between and after the two assaults, she:

… never indicated any desire or intention to do so, did not fantasize about the same, nor do I wish to do so, or think about doing so.

[95] That evidence is contradicted by the evidence of her former sister-in-law, the aunt, and JB himself. The aunt testified that she always felt that the mother's relationship to JB was unusually "close". She noted the way that mother and son spoke to each other. She described one incident where JB came home and MM felt his arm. MM then said that JB is more of a man than DJ; that the child had the bigger penis. The aunt made an anonymous report to the Society but nothing came of it. This incident may explain in part why the aunt initially disbelieved the notion that DJ and MM sexually assaulted JB.

[96] The credibility of the aunt's narrative is buttressed by a statement that JB made to Ms. Benalick over a year after his mother was arrested. As Ms. Benalick recounted it in par. 89 of her first trial affidavit:

On March 29, 2016 while driving JB back to his home, he reported to me that there were times where he had sex with his mother alone. JB then looked away and began to stutter, and said no, it only happened with [DJ], and that he thought I was talking to him about the text messages between him and his mother. JB reported that there were sexual texts between him and his mother, but nothing happened after. JB testified that he was confused when he testified at the preliminary hearing, and that he made a mistake. JB then changed the subject.

[97] In her sentencing decision, Woolcombe J. offers some confirmation of the existence of the sexual texts between the mother and JB and offers some detail to his testimony at the preliminary hearing. She stated:

In the summer of 2014, [DJ] saw text messages between M.M. and [JB] that he believed were indicative of continuing sexual contact between them. At the preliminary inquiry in this matter in March 2015, [JB] was asked whether there were any instances of sexual contact involving just him and his mother. He testified that he was not sure, that there might have been, but not that he could recall.

[98] A further albeit somewhat ambiguous measure of confirmation of the existence of such texts was offered by JC, AB's father. He testified that MM told him that past information, such texts, photos, and videos could be used against her.

[99] One further relevant fact: the sexual assaults of JB were not MM's only sexual encounters as an adult in her 30's with a teenager. MM admitted to Ms. Kennedy that she participated in a threesome with a sixteen year old female neighbor in her home. MM's admission of that sexual encounter contradicts a claim that she made in an addendum to her trial affidavit, responding to the presentence report. There she stated;

[JC] is the youngest partner I have slept with (9 years older than me)

[100] Once again the court is left to consider which account that MM offers is accurate, as she contradicts herself yet again.

Credibility Regarding MM's Post-Assault Relationship with DJ

[101] MM was not honest about her relationship with DJ after the second sexual assault. In her sentencing reasons, Woolcombe J. stated that MM claimed that she and DJ were "pretty distant" after the second assault, and that she did not leave him because he was always there and she had no vehicle. MM said something similar to the author of the Gladue report. She added that DJ took her bank card and would leave her with no access to money. This implies that she would have left him if she could have but that DJ was effectively holding her hostage.

[102] This point is reinforced in the presentence report. There, MM is cited as claiming that:

In the months following the offences, the subject stated that she was unsuccessful in her attempts to have the co-accused move out of the home.

[103] Yet, as the Society points out, the mother contradicted her account of DJ's pre-separation omnipresence in the home in par. 123 of her trial affidavit. There she said that "[d]uring the day, DJ was often not home …" She stated that when she and DJ argued or he was being "… verbally abusive…it was usually via text, or on the phone or after the children were in bed and sleeping."

[104] That claim is contradicted by the mother's report to Ms. Benalick in late 2013 that she and DJ were getting along well. Those reports continued until MM and DJ separated in February, 2014.

[105] In fact far from being pushed out of the home, DJ chose to leave MM. He left her for another female. Rather than feeling relieved by DJ's absence, she was taking the initiative to maintain their relationship. MM reported to Ms. Benalick of the HCAS on March 21, 2014 that she had arranged to start marriage counselling with DJ. She was also picking him up by car and driving him to her home each weekend by car. On April 22, 2014 MM told Ms. Benalick that she and DJ were still having sex on those weekends.

[106] None of that speaks to compulsion or distance. Rather it speaks to MM's continuing desire for intimacy with DJ.

[107] Another area in which MM was not honest was with regard to why DJ was coming to her home each weekend. In her trial testimony, MM stated that this was done for the children, that AM in particular missed his father. She saw her role as supervising DJ. She claimed at par. 126 of her trial affidavit that Ms. Benalick insisted that she supervise her husband's access.

[108] But as Ms. Benalick testified, she only insisted that DJ not be left alone with the children because of MM's claims about his spousal abuse, controlling behavior and mental health issues. She did not ask MM to bring DJ into her home or to supervise his access in her home over full weekends.

Credibility Regarding MM's Motivation for Admitting to Sexual Assaults

[109] In her trial affidavit, MM explains her motivation for admitting to the sexual assaults. She states at par. 127 that she was unable to provide the HCAS with details of what happened until her confession of October 28, 2014. She states:

At this point I spoke to [JB] and we agreed that we had to go to the police to protect AB, AM and MM from DJ having unsupervised access to them.

[110] In other words, MM claims that she consulted with JB before confessing to the authorities. Mother and son altruistically decided together that she would come clean for the sake of the children. But there are two problems with this story.

[111] First, nothing in the account that she gave to the author of the Gladue report indicates that she consulted with JB before owing up to her crimes. In fact, the Gladue report quotes JB as saying that after DJ moved out, he and his mother "…didn't really talk about what happened…" MM offered a similar account in the presentence report. Ms. Kennedy states:

[MM] relayed that after the offences she and the victim never spoke about what happened.

[112] Second, MM did not go to the police after this alleged consultation with her son. Instead she spoke to JB's father, then AB's father. As a result, the Society was notified, but not by MM. Ms. Benalick next called and met the mother at her home during AM's fourth birthday party. MM had yet to contact the authorities. She told Ms. Benalick that she had been trying to call her, but the worker never confirmed having received any messages from MM. Ms. Benalick then directed her to the police.

[113] In the end there is no proof of JB's involvement in her high minded decision to go to the police or that she went directly to the police after speaking to JB. It is not clear that she would have gone to the police at all had JB's father not intervened.

Conclusion Regarding Credibility

[114] For all of the reasons set out above, I do not find that the mother's evidence is credible. Where it contradicts that of the evidence of the Society and her fellow respondents, as well as Ms. Kennedy in the presentence report, I prefer their evidence.

Why the Mother Presents a Risk of Sexual Molestation or Exploitation to the Children

[115] I find that the mother posed and continues to pose a risk of sexual molestation or exploitation to the children. I make that finding for the following reasons.

Egregiousness of the Sexual Assaults

[116] First, and put bluntly, MM breached a very clear societal and legal boundary against parent-child sex. She likely committed the first assault when JB was 13 years old. To make matters worse, both sexual assaults involved a clear element of compulsion against her child. In the second assault, MM allowing herself to be simultaneously penetrated by both the child and her adult husband.

[117] The court cannot ignore the obvious: that MM was capable, for her own needs, of knowingly participating in the sexual assault of her own son and doing so twice. As Woolcombe J. scathingly described MM's conduct in her sentencing decision,

65 How M.M. could have agreed to participate in the second episode of sexual intercourse with J.B. is, for me, completely inexplicable and unfathomable. I cannot accept that she had no choice but to accede to D.M.'s will. She had options and chose not to take them. I find that she chose loyalty to D.M. over her duty to protect her child. In so doing, she violated the most sacred of trusts that she had as a mother. Her conduct can fairly be characterized as both depraved and heinous. It must be denounced.

MM Could Have Stopped the First Sexual Assault When the Blindfold Fell Away

[118] It should not be forgotten that MM could have stopped the first sexual assault of JB after her blindfold fell away. Instead she continued until the conclusion of the sexual act. She does not claim that her completion of the sex act with her son was motivated by any threats. All that she could say at her sentencing (and her trial affidavit) to explain her continuing and now knowing incestuous sexual assault on her child is that she was so shocked that she did not know what to do. So she continued. She could have been so shocked that she instead stopped what she was doing.

MM Failed to Protect JB and the Children After the First Sexual Assault

[119] Even after the first assault concluded, MM could have taken steps to protect JB and the children. She could have reported the conduct to the Society. Even if she were afraid of exposing herself to legal repercussions, she could have chosen to separate from DJ. She was poor but unlike many other spousal abuse survivors, she was not financially dependent on her spouse. There is no evidence that DJ was even working.

[120] Even if she couldn't do any of those things, she could have sought help for JB. But she took none of those steps to protect any of her children.

[121] MM claims that she protected the children from DJ by not leaving them alone with him. There is no independent corroboration for that claim. If MM truly believes it, she is deluding herself. There is clear evidence and a finding that her child, JB, was left alone with DJ a number of times. As a consequence the child was sexually abused by his step-father. If MM were truly trying to protect her son this would not have occurred.

[122] MM then had sex with JB a second time.

[123] Even after the second assault, MM took no steps to protect her children. She did not even end her sexual relationship with DJ. He was the one who separated from her for reasons unrelated to the two sexual assaults.

[124] With DJ gone from her home, MM could have taken steps to help and protect her children. She could have sought treatment for JB. She could even have gone to court to seek an order that DJ not attend at her home or be alone with the children. She did none of that.

[125] Even when she confessed to Ms. Benalick, she downplayed the impact of the assaults on her son. She told Ms. Benalick, after describing her crimes, that JB was doing fine.

Even After Their Separation, MM Tried to Reel DJ Back in

[126] Not only did MM fail to protect her children after DJ left her, she tried to reel him back in. She arranged for marriage counselling between them. She even drove him to her home each weekend, where she had sex with him.

[127] MM explained her reluctance to let go of the man whom she blames for all manner of abuse, including her son's sexual abuse, to the author of the Gladue report. She stated that she did not want her children to grow up fatherless. She preferred cohabiting and co-parenting with a man who orchestrated the sexual abuse of her son to single parenthood. Recall that she was not even financially dependent on DJ.

[128] MM only complained about DJ and later confessed to authorities after it was clear that their relationship was over. She told Jillian Collins, the Gladue report author, that when they argued at that point, she threatened to go to the police. But she never did so. The authorities only came to her after JB's father alerted them.

[129] I note that it was Ms. Benalick who contacted the mother to discuss the abuse, not vice versa. The mother asserted that she had already attempted tried to contact the worker to discuss the abuse. But I have no independent evidence that the mother contacted any authority, as opposed to JB's father and JC. In any event, the mother did not come forward to anyone until she felt some element of risk of discovery.

MM's Sexual Assault of JB Part of a Pattern

[130] As the expression holds it, once is a mistake, twice is a pattern. Three times is a habit. That expression applies to MM. She admits to having sex with her son, not once but twice. That in itself can be seen to be a pattern.

[131] The argument then goes further. MM skirted close to the incest boundary in what both JB and DJ saw as sexual texts between mother and son. While the court is unaware of the contents of these texts, JB was clear about their import to him. According to Woolcombe J's decision, DJ felt the same way.

[132] This skirting of boundaries also occurred when MM flattered JB's budding manhood by feeling his muscles and then publicly comparing the size of his penis to that of her husband (the man who had, in her telling, orchestrated her son's sexual abuse). That form of communication can be seen as a form of grooming her son for or in the context of a sexual relationship.

[133] Recall as well that MM participated in a sexual threesome with a sixteen year old girl and DJ. MM was about twice the girl's age at the time. She justified this sexual encounter as a consensual one, arguing that the child had reached the age of consent.

[134] All of these acts make up a pattern, if not a habit of MM's interest in sex with children.

MM's Unconvincing Explanations for the Sexual Assaults

[135] As set out above, MM has offered many contradictory explanations for her decisions to participate in two separate sexual assaults of her son. Even accepting that both assaults were choreographed by DJ, MM contradicts herself on why she chose to participate.

[136] I discuss MM decision to continue in the first assault above. With regard to the second assault, if MM was capable of saying no to threesomes and making her denial stick, and not letting DJ be alone with the children, as she claimed in her affidavit, why couldn't she say no to that sexual assault?

[137] At times MM explains her participation in the second crime by referring to a chimerical sex video of the first event. Yet she does not claim to have seen DJ filming her, even after the blindfold fell off. She does not claim to have ever seen the tape itself. She offers no independent evidence of its existence. DJ was in court each day. She could have called him to testify to confirm its existence.

[138] Further, Woolcombe J. pointed out that the criminal statement of agreed facts contains no mention of that alleged video motivating the second assault.

[139] I note as well that in this trial, the mother introduced a new element of DJ's alleged compulsion to explain the sexual assault. She claimed for the first time that DJ threatened to take her phone away. She explained that this would have "isolated" her. She tried in cross-examination to justify the threat of losing her phone as a motivation for the sexual assault.

[140] I simply am not convinced that a sex video existed or that MM's participation in the second sexual assault of her child was motivated by a threat of its exposure. There is simply no credible evidence to support those claims.

If MM Could do this to her Son Twice, Why Not Again?

[141] MM's behavior towards JB raises this key question. If she could do this with JB, when she had every opportunity to escape from or stand up to DJ, why could she not do it with one of her other children, if the circumstances were right (or more to the point, wrong)?

[142] I acknowledge that Woolcombe J. referred to a progression of MM's personal insight into her level of responsibility in her sentencing decision. But the only evidence before her was the statement of agreed facts. She did not have the opportunity of observing Dr. Mamak give evidence or the cross examination of MM. Further Woolcombe J.'s concerns were with regard to sentencing not child protection principles.

[143] Here the court acknowledges that MM has taken a number of programs while in jail, most of them one day courses. Few deal directly with diminishing the risk of further sexual abuse of children. The mother claims to be unable to find the psychologist who offered her counselling while in jail. At the end of the day there is currently no independent evidence that the mother has fundamentally changed from the person who abused her son.

[144] Ironically the mother makes this point herself, and points again to her inability to take full responsibility for her conduct, in the presentence report. Ms. Kennedy writes:

Regarding her offending behavior, the subject [i.e. MM] expressed that she did not know if she could have done anything differently.

Dr. Mini Mamak's Concerns About MM's Risk of Further Sexual Abuse

[145] I have considered the written and oral evidence of Dr. Mini Mamak, a forensic psychologist, who prepares risk assessments for Corrections Service Canada. Dr. Mamak assessed MM in November, 2016, at the Grand Valley Institute for Woman. The assessment occurred six to seven weeks after MM's sentencing.

[146] MM filed Dr. Mamak's report, sought to qualify her as an expert and asked her to testify as to MM's level of risk of reoffending. I ruled that Dr. Mamak is qualified as expert in forensic psychology, able to opine with regard to the risk of re-offence by those convicted of sexual offences. Dr. Mamak was also qualified to offer expert testimony on the treatment and rehabilitation of sex offenders.

[147] Perhaps it is a tribute to her work that each of MM and the Society seek to rely on Dr. Mamak's evidence. MM relies on the following evidence from Dr. Mamak:

1. on a balance of probabilities, the risk of MM sexually re-offending is between 20-40%;

2. for women who have committed sexual offences, the literature shows a base rate of re-offence which tends to be 3.5%;

3. an important consideration regarding risk of re-offence is MM's lack of history of offence against a child under 14 years of age (although as set out above, it is possible that JB was still 13 at the time of the first assault);

4. MM's risk towards children would be considered "low" at this time. That risk could be mitigated by a number of factors such as supervision and treatment.

[148] The Society relies on other evidence provided by Dr. Mamak to rebut the notion that there is a low risk that MM could again sexually abuse children. That evidence includes the following:

1. While MM's risk of general, violent, and sexual recidivism is low, she has a number of risk factors. Those factors are both static (that is unchanging and usually historical) and dynamic (changing over time). A proper risk assessment considers both. While risk itself is not static, static factors are the best predictor of future risk. That appears to be another way of phrasing the maxim that past behavior is the best predictor of future behavior. But what is happening now will tell someone like Dr. Mamak whether that risk is raised or lowered.

2. While the static risk is low for MM, particularly given her lack of previous offences, given the right circumstances, her risk will increase.

3. Examples of MM's dynamic factors include:

(i) Her involvement with a deviant, antisocial male (like DJ). With MM's openness to a wide range of sexual activities, if she found someone who was not criminal but had deviant sexual interests she could be shaped to re-offend;

(ii) MM's vulnerability to such men because of other factors such as low self-esteem and intimacy issues;

(iii) Substance abuse. For all offenders, marijuana use is a risk factor because of disinhibition or poor impulse control. It is a particular risk factor for MM;

(iv) her lack of insight or awareness of her limitations or her problems;

(v) Dr. Mamak noted that psychological testing revealed that MM has cognitive distortions regarding sexual offences in general. This is a risk factor. While not serious, these distortions merit discussion. That is because MM likely experiences more distortions than those captured by the testing.

(vi) The fact that MM may have no sexual interest in pre-pubescent children does not mean that the children (i.e. AB, AM and MM) are free of risk when they get older.

4. Dr. Mamak pointed out that MM may have accepted responsibility for JB's sexual abuse, but that her remorse was "superficial". If she had accepted no responsibility, her risk of re-offence would be high and set off alarm bells. As it is, her appreciation of her offence and remorse require further development.

5. Dr. Mamak could recommend no other manner of protecting the children if the mother was permitted to see them, than supervising her contact. Her offence was coercive and took place in a familial context. It was against a child who was dependent on her. Thus her risk of re-offence also takes place in a familial context.

6. MM requires long term treatment and monitoring to ensure that she does not offend. She should participate in a sexual offender program while in prison. She should also work with a psychologist on her various issues both before and after her release from prison.

7. The key test for MM upon release will be the persons whom she associates with after her release from prison.

[149] While the factors relied upon by MM are more general in nature and are of the static variety, those relied upon by the Society are more dynamic and specific to MM. They are at this time the more compelling factors. That is because of the mother's failure to take full responsibility for her conduct, problems with reliance on actuarial figures regarding female pedophiles, and the mother's jailhouse choice of potential romantic partners. I discuss those factors below.

Mother's Only Partial Acceptance of Responsibility

[150] The court remains concerned by what Dr. Mamak described as MM's superficial remorse for her offences. This can also be seen as a failure to take full responsibility for her actions. Much has been said about that above. Two comments in MM's trial affidavit underscore this point.

[151] At par 82(e), when speaking of her present understanding of the offences, MM states that:

I realize now that I should not have put so much trust in DJ and should not have let him blindfold me. I should not have agreed to threesomes just to please DJ.

[152] Far from accepting full responsibility for her acts, MM subtly shifts the blame to DJ, even while ostensibly accepting responsibility.

[153] Later, at par 82 (g), after having expressed remorse "…that this happened to my son…" in the previous subparagraph (as if someone or something else were responsible), she states:

I should have convinced [JB] to attend counselling then and should have taken him to counselling immediately after the first incident. I too should have attended counselling for myself and should have done so during my relationship with [JC, AB's father] thereafter.

[154] Again there is a subtle shifting of blame, first to the teen-aged victim for the fact that he was not provided with counselling. MM's statement implies that JB was reluctant to attend counselling. It ignores the fact that his adult parent, aware of what she had put her child through, failed to offer counselling to him. Recall that MM stated that she never raised the sexual abuse with JB – leaving the child to fulminate in his own sorrow and shame.

[155] MM then added that she should have attended counselling during her relationship with AB's father, before even starting up with DJ. The context of this statement raises two concerns. First, MM equates her need for counselling with that of the child whom she had harmed. Second, it may be true that MM needed counselling after her relationship with AB's father. But the statement subtly makes JC, who had nothing to do with it, share in the blame for what MM (and DJ) inflicted on JB.

[156] MM did not make her half-hearted expressions of remorse in a factual vacuum. She know or should know just how profoundly her actions have harmed her son. JB's victim impact statement for her criminal sentencing hearing describes that harm. Woolcombe J. describes JB's statement as follows:

37 In his Victim Impact Statement, [JB] explains that the offences have made him unable to trust others and that this affects all of his relationships. He says that his family has been destroyed and that he is no longer able to live with his siblings, who he misses. He feels that he has lost much including his home and many of the possessions that were there. He speaks of having been terrified by [DJ], and about how knowing that the offence was committed by his mother made him unable to eat. He still has trouble sleeping. He attends weekly counselling and his counsellor notes that he has done incredibly well. [JB] recognizes that dealing with all of his feelings will take time. It seems clear that he is hopeful to one day have a relationship with his mother again, but he says:

I need mum to take responsibility for the sexual abuse and get counselling before we can have a relationship more than supervised phone contact.

[157] MM fails to show that she fully takes the responsibility that JB spoke of. Much of what she says represents only a half-throated admission of responsibility and expression of remorse.

[158] I add that at par. 59 of her trial affidavit, MM baldly claims that "…there is no risk of sexual, physical or emotional harm to [the children] from me." After all that has happened, she is able to simply deny that her actions raise any risk at all to her children. It is as if the past has been washed away by a guilty plea, jail, and a number of courses that do not address her specific risk issues. That may be fine for punishment, but it is not sufficient when it comes to the risk of her harming another of her children again.

Two Notes of Caution Regarding Reliance on Actuarial Figures to Determine MM's Risk of Re-Offending

[159] Further the court needs to provide two notes of caution to whatever positive comments Dr. Mamak offers regarding MM's risk of re-offending. First, Dr. Mamak points out that it is more difficult to assess female pedophilia than its male counterpart. That is likely because of the fact that there is a far lesser sample size of female pedophiles than their male cohorts. The actuarial figures for risk of re-offence come from studies of males. Generally there are no such tables for women.

[160] While Dr. Mamak is up to date on the psychological literature regarding female pedophilia, there is little of it relative to males. Further, Dr. Mamak has only worked with three female pedophiles.

[161] For those reasons, even with Dr. Mamak's expertise and experience, the court must be wary about relying on statistics that predict a low rate of recidivism for MM. The sample size to which MM is being compared is still a rather small one.

MM's Problematic Choice of Potential Romantic Partners While in Prison

[162] A matter of perhaps even greater concern than actuarial calculations of risk is MM's choice of potential romantic partners since her incarceration. Dr. Mamak said that MM's judgment in this regard may be the key issue in determining her future risk of sexually offending against her other children. Recall that MM has tried to shift responsibility for her offences onto her male partner, DJ. She even hinted at leaving a dollop of blame at the feet of AB's abusive father.

[163] MM testified that she is not seeking romantic partners at this time, preferring to work on her rehabilitation. She spoke of taking courses or programs in jail to help her make better choices in this regard. Yet Dr. Mamak testified that MM developed relationships with three men while in prison. All three are criminals, whose offences should have given her pause because their crimes tie in to her vulnerabilities. They were convicted of crimes of deception as well as real or potential violence. One is a domestic abuser.

[164] Seeking to downplay them, MM describes the three relationships as platonic (without using the word). She affably describes them as "pen pal relationships"; as if she were a teenager writing to another girl in another part of the world.

[165] Yet MM's choice of potential romantic partners, her inability to see the red flags that those relationships raise and her attempts to play down their danger all point to her continuing faulty judgment about romantic partners. They also point to her particular lack of credibility or reliability in regard to this issue.

[166] MM struck up a relationship with a man named Ryan for about a year after she was incarcerated. Ryan was convicted of credit card fraud. She appears to have been undaunted by the fact that he has a history of criminal deception. Even before actually meeting him, MM wanted Ryan to get to know her children. Even though Ryan has no children, she said that he wanted to take a parenting course while in prison. She approached Mr. Benalick of the Society to determine what steps he would need to take to be approved for contact with her children.

[167] MM stated in her affidavit that she dropped Ryan when he was writing inappropriately to her. She later admitted that he actually lost interest in her when he was released from jail.

[168] MM's second "pen pal" was Anthony. He was jailed on weapons charges. MM managed to soft peddle the risk that such a criminal conviction raises. She said at one time that she did not know the reason for his charge and later that it was for an unlicensed rifle. She appears to have made no further inquiries about why he would require such a weapon, what caused him to be convicted of a weapons offence, and whether he may be violent.

[169] MM claimed that Anthony was not her boyfriend. But she did tell AB's father that she really likes him. She later claimed that she was not expressing her own opinion so much as seeking that of AB's father. That claim is not credible. She asked AB's father to send her photo to Anthony. MM also wanted Anthony to drive AB and her father up to visit her in prison.

[170] MM had or has a third and potentially even more dangerous "pen pal". He is unnamed but cited by Dr. Mamak. This man was incarcerated for domestic violence. Despite claiming to be the victim of such violence, MM was willing to accept the assurance of her "pen pal" that he was the true victim in the relationship. She did not consider that his incarceration indicated much to the contrary.

[171] If one of MM's biggest risk factors is her vulnerability to relationships with deviant antisocial men, her romantic history while in jail shows that the risk continues unabated. MM's attraction to men who have committed crimes of deception and real or potential violence shows that she has learned little of profound significance about her crimes. It also shows that all of her jailhouse religious, self-improvement and actualization courses have done little of substance to reduce her risk of reoffending with the wrong man.

Conclusion re Risk of Sexual Molestation or Exploitation

[172] In considering all of the evidence, it is clear that MM continues to pose a risk of sexual molestation or exploitation of the children. She did just that to one of her children, twice. In doing so she demonstrated an exceptional lack of boundaries, even with a child in her care.

[173] Despite some steps in the proper direction, MM has failed to fully confront her deeds and accept the full measure of her responsibility for them. She does not even understand the risks she poses and the distance she would have to travel before she is free from risk towards her children. Any counselling that she has taken has thus far been inadequate to the task.

[174] The proof of that statement is in the pudding: since arriving at prison MM has struck up romantic or proto-romantic relationships with three criminals. Each carries levels of risk of harming her and her children. Yet she is as blithe towards the risks of her entanglements as she is self-deluded in denying her own risk to her children.

[175] Those factors create a very dangerous level of risk of further sexual violence by MM (and/or one of her future partners) against her children. If she cannot see the risk, how can she guard against it? Here she fails the key test that Dr. Mamak believes that MM now confronts. MM clearly presents a risk of sexual molestation or exploitation to the children.

Risk of Emotional Harm

[176] CFSA s. 37(2) (f) speaks to actual emotional harm that has befallen a child while s. 37(2) (g) speaks to the risk of such harm occurring in the future. The emotional harm must be demonstrated by a serious form of one of the listed conditions or behaviours. The Society must show a real likelihood of harm on a balance of probabilities.

[177] As stated above in regard to risk of physical harm, it is not necessary to prove a parent's intention to cause that harm. It can be caused by an act, omission or pattern of conduct by a parent.

[178] In Jewish Child and Family Service of Toronto v. K.(R.), Sherr J. laid out the following principles that apply to claims of risk of emotional harm arising out of domestic violence, as follows:

[28] … A pervasive pattern of exposing a child to domestic abuse is sufficient …

[29] Domestic violence places children at risk on a number of levels. Witnessing violence perpetrated against the mother may have an abusive and detrimental impact on a child's development. Children may feel guilty, blame themselves and feel depressed. They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence. They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss.

[179] In order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required.

[180] Even when a child suffers or is at risk of emotional harm, absent expert evidence, the court should not assume that the harm or risk arises because of the conduct of the child's parents. The onus is on the Society to prove, on a balance of probabilities, that there is a real likelihood that the child will suffer emotional harm if returned to the care of his or her parent.

[181] The time frame for the court to consider with regard to risk of harm is the time of trial, not apprehension. The issue is one of present risk of harm. In assessing that risk, the court may consider any relevant evidence, whether prior to apprehension or up to the date of trial.

[182] Further, the court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of litigation.

[183] The Society argues here that the risk of emotional harm arises from the level of conflict that the children witnessed in their home with MM and DJ. The aunt, uncle and DJ's mother each spoke of a high level of conflict between the parents in the children's presence.

[184] MM responds that the evidence of conflict was shallow, lacking in specifics and never reported to the Society at the time of the events. She denies the allegations.

[185] I do not accept MM's assertions that the children were spared from witnessing episodes of verbal domestic abuse, likely coming from each of MM and DJ towards each other. The aunt described their mutual verbal abuse as "vicious". There is no evidence of physical abuse by either towards the other. AM did hear DJ use a vulgar expression of contempt towards MM.

[186] All that being said, the evidence of the conflict that the children observed is not clear or detailed enough to meet the test for risk of emotional harm. Much of the verbal abuse between MM and DJ was by way of text messages unread by the children. There was no expert evidence that pointed to the effect on the children of their having witnessed conflict between their caregivers.

[187] Further, MM and DJ are not together any longer. Because of their incarceration, they will not be in any foreseeable future. Despite very real concerns about MM's inappropriate choice of partners, she is not with a partner right now.

[188] Of course the most substantial risk of emotional harm for these children arises from the risk of sexual molestation or exploitation. But that risk is captured by my finding above under CFSA s. 37(2) (d).

Parents Unable to Exercise Custodial Rights

[189] The parties concede that the mother and DJ are imprisoned and unable to parent the children. That ground for a finding applied at the time of their arrest and has continued to date. They have effectively abandoned the children.

[190] However AB has been in the care of her father, JC, since August, 2016. All parties agree that she should remain in the care of her father permanently. Since JC is a parent available to care for AB, I do not see how this provision applies to her. She is no longer effectively abandoned by her parents. There is a parent available to care for her.

[191] That being said, AM and MM are not in the care of a parent. There is no parent available to care for either of them. Even with their current residence with the aunt and uncle, they are in need of protection under CFSA s. 37(2) (i).

Conclusion Regarding Findings

[192] All three children are found in need of protection under CFSA s. 37 (2) (d). AM and MM are also in need of protection under s. 37(2) (i).

Issue No. 2: What should be the legal status of AB's placement with her father (i.e. supervision order or custody order)?

[193] Under CFSA s. 57, once a child is found to be in need of protection, the court must next consider whether intervention through a court order is necessary to protect a child in the future. Clearly that is necessary for all three children, and the point is conceded.

[194] Further under CFSA s. 57 (3) the court must consider whether less disruptive alternatives are available before making an order removing a child from the parent who had charge of him or her before Society intervention. That point is effectively conceded for all three children as well.

[195] Once those two hurdles are cleared, the court must choose a disposition that is in the child's best interests. The alternatives are:

1. placement with a parent or other person for a period of between 3 and 12 months, subject to the supervision of the Society (s. 57(1)(1) );

2. Society wardship for up to 12 months (s. 57(1)(2) );

3. Crown wardship for an indefinite period of time (s. 57(1)(3) );

4. Society wardship for a specified period of time followed by return to a parent or other person, all for a period or periods of time not to exceed an aggregate of 12 months (s. 57(1)(4) );

5. a custody order that is deemed to have been made under the Children's Law Reform Act (s. 57.1(1) and (2) ).

[196] No parent but JC presently has a plan for AB before the court. MM withdrew her plan during the course of this trial, conceding that the children should be raised in the homes of their present caregivers. The aunt and uncle offered to take all three children into their care. But during the course of the trial, they took the position that their plan for AB, who is not their blood relative, was only an alternative to the plan of JC, her father. They are no longer pursuing a plan regarding AB.

[197] The issue before the court is whether AB should be placed with JC under a s. 57.1 custody order or a supervision order. The Society and JC seek the s. 57.1 custody order. The mother's preference is for a supervision order but she is open to a s. 57.1 order as well, provided that there are certain conditions. Ms. Sirivar, OCL counsel for the children argues forcefully for a supervision order. I agree with the arguments of Ms. Sirivar.

[198] The Society offers a number of compelling arguments in favour of a custody order for JC. They include:

1. custody to AB's father is the least disruptive option to the child;

2. JC has demonstrated his ability to meet AB's needs over the period since she was placed in his care in August 2016;

3. JC has demonstrated his commitment to AB. He has taken numerous steps to improve his parenting ability, as recommended by parenting capacity assessor, Dr. Nicole Walton-Allen;

4. AB clearly loves and wishes to live with her father;

5. The time that AB has been with JC has been under a temporary supervision order. JC has been successful during that time.

[199] The Society argues that the only reason to consider a supervision order is when a specific risk of harm to the child is found to exist. It relies on the decision of Sherr J. in Children's Aid Society of Toronto v. TM, where he states at par 29:

Supervision terms, in particular, should be proportionate and address a specific risk concern.

[200] The Society concedes that it would have a concern about risk to AB if access were allowed, and the possibility of a return to MM's care were considered. But since it opposes any access let alone a return to MM, it feels that there is no concern.

[201] JC agrees with the Society's arguments. He feels that he has already effectively proven himself with over eight months of a supervision order. He has fully cooperated with the Society for over two years. He has made great changes in his life to prepare for and assume his role as AB's sole caregiver. The Society is satisfied with his progress.

[202] In arguing for her first choice of a supervision order, the mother pointed to AB's need for a psycho-educational assessment and tutoring. She hopes that the tutoring will be paid for by the Society. However CFSA s. 57 (8) (c) states that in imposing reasonable terms of supervision on a children's aid society, a court shall not "…require it to provide financial assistance or purchase any goods or services.

[203] The mother also argues that the Society referred to JC as "… still leaning to be a full time caregiver of AB."

[204] Ms. Sirivar for the children picks up from that point. She states, citing the report and evidence of psychologist, Dr. Nicole Walton-Allen, that JC has overcome a great deal of adversity. Ms. Sirivar argues that his ability to parent AB could still be compromised by "…his past trauma, anxiety, post-traumatic stress, and past substance abuse." She states that a supervision order is necessary to ensure that JC continues to make progress.

[205] She also argues that both father and daughter can gain from continuing to receive HCAS resources:

… by helping [JC] identify, manage and address any challenges AB experiences. Additionally, the Society can assist [JC] in connecting with the appropriate resources to follow through on the recommendations to the PCA.

[206] I adopt each of Ms. Sirivar's points. I add that AB will continue to have some contact with her mother, despite the Society's requests to the contrary. That contact may be challenging, both in managing AB's responses to her mother, and in managing MM herself.

[207] MM has shown herself to have trouble with appropriate boundaries. She has already tried to involve JC as a go-between in her romantic life. She has spoken to him of moving up north so that he and AB can be closer to her if she moves in to MBQ territory. He is at risk of manipulation by MM. He can use the assistance of the Society in dealing with MM.

[208] Even the Society conceded that if AB were to have access to her mother, a supervision order may be appropriate. That is what I am ordering.

[209] At my request, counsel agreed on terms of supervision that would apply should I grant a supervision order regarding AB. I adopt those terms and set then out below.

Issue No. 3: What should be the legal status of AM and MM's placement with the aunt and uncle (Crown wardship for the purpose of adoption, supervision order, or custody order)?

[210] When it comes to AM and MM, the parties are once again in apparent agreement with regard to placement with the aunt and uncle but not with regard to the format of the placement.

[211] The Society seeks an order of Crown wardship for the purpose of adoption. But while the Society says that it "… seeks to have the children adopted by paternal family members …" that result would not be assured if it obtains the order it seeks. The aunt and uncle would have to pass the Society's adoption assessment process.

[212] The mother seeks AM and MM's placement with the aunt and uncle under a supervision order, or in the alternative, a s. 57.1 order. The aunt and uncle themselves seek a supervision order, a position favoured by OCL counsel for the children.

[213] The Society endorses Crown wardship for a variety of reasons. Financial advantages would be available to the aunt and uncle through adoption that would otherwise not be available to them. Crown wardship would provide much needed finality for AM and MM. It would avoid further litigation from MM, whom the Society sees as "litigious" and potentially seeking to relitigate custody in the future.

[214] There is key caveat to the Society's plan. It is set out in the opening words of this sentence in the Society's factum:

If [the aunt and uncle] are approved as adoptive parents… [emphasis added]

[215] The word "if" looms large in the Society's position. It offers no certainty that the aunt and uncle will be approved by the Society's adoption department and thus that the adoption would take place. What then?

[216] This point is taken up by the aunt and uncle, who could benefit from the Society's financial largesse, but choose not to accept it. They fairly point out that the Society assessed and rejected them as kin caregivers three times; the last assessment taking place during the course of the trial. The Society's original concern was that the aunt and uncle did not accept that JB had been sexually abused by DJ and MM; they felt that the sex acts were consensual.

[217] But the Society's last rejection followed the aunt and uncle's acceptance, after DJ and MM's convictions, that they had sexually abused JB. They permanently severed their ties with DJ, and expressed heartfelt remorse for their previously uninformed views. In light of the HCAS's last rejection, it is not surprising that the aunt and uncle are not confident that it would leave AM and MM in their permanent care after an order of Crown wardship.

[218] It was only when MBQ social worker, Brandi Hildebrand, conducted her own positive home study of the aunt and uncle that the Society relented. Ms. Hildebrand offered forceful testimony that strongly disagreed with the Society's third home study. She unambiguously recommended the aunt and uncle as caregivers for AM and MM.

[219] It is clear that it is in AM and MM's best interests to be permanently placed with the aunt and uncle, just as AB should be similarly placed with her father. Neither placement should be touched unless there is a significant and deleterious material change in the placement. If the Society were able to guarantee a permanent placement for the boys with the aunt and uncle I would be inclined to the order it seeks.

[220] But rather than offering stability, a Crown wardship order introduces an unnecessary element of uncertainty and instability into these boys' lives. The Society could internally decide to reject the aunt and uncle for adoption, leaving them in limbo. It could even place the two boys with another family for adoption, all without any recourse to the courts.

[221] This position is not speculative. Two different Society social workers (and their supervisors) have already rejected the aunt and uncle three different times. Although the Society now says that it supports the placement, it's use of the "if" word "is telling and fatal to its claim for Crown wardship.

[222] I note at this point that the Society also attempted to paint MM as "litigious". It cited that litigiousness as a factor in favour of Crown wardship. In other words, a Crown wardship order would prevent further litigation from MM. It would, as the Society puts it, prevent her from trying to take a "back door" to custody. The mother and Children's Lawyer strongly object to that portrayal of her procedural approach to this case.

[223] Finding an adjective to describe MM's litigation strategy is unnecessary and irrelevant at this stage. In that regard, I agree with this comment in Ms. Sirivar's factum:

Litigation strategy should not inform decision making for AM and MM's placement.

[224] Further, the mother has conceded through her counsel that she will not be parenting the children. They will be raised by their present caregivers. That is a wise concession. In any event I have found that custody of any of the children by anyone but their present caregivers would be highly deleterious to their best interests.

[225] That finding does not simply apply to the next 12 months, it is true for the foreseeable future as well. The mother has not parented these children for over 2¾ years. They are just getting settled into their new placements with loving family members. It would be devastating to rip them away from these new homes. In addition, the mother is very far from being able to safely parent the children. She has way too much work to do to deal with her own issues, as described above. The sole parenting issue for her is and will be what, if any, access would be in the children's best interests.

[226] Accordingly AM and MM will be placed with the aunt and uncle under a 12 month supervision order. The terms of supervision will be similar to those that apply to JC's parenting of AB, with modifications to meet the aunt and uncle's circumstances.

Access to JB and the Maternal Grandparents

[227] Access is determined under s. 58 of the CFSA. The key determinant of access is the child's best interests. The relevant portion of s. 58 reads as follows:

Access order

58 (1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[228] In considering what access order to make, the court should also consider the paramount purpose of the CFSA as articulated in s.1 (1) of that act. It is the promotion of the best interests, protection and well-being of children.

[229] The CFSA contains additional purposes, which apply so long as they are consistent with the primary purpose. They include supporting to the autonomy and integrity of the family unit, consideration of the least disruptive course of action available and appropriate to help a child, the provision of services in a manner that is respectful at a number of levels. It also includes a provision at CFSA s.1 (5) calling for the provision of services to "Indian and native people" that recognizes their culture, heritage and traditions and the concept of the extended family.

[230] In assessing the children's best interests, the court should consider the relevant factors set out in CFSA s. 37(3).

[231] One area in this case in which all of the parties agree is in regard to bi-weekly overnight access by the children to their brother, JB and to their maternal grandparents. Those visits have been taking place since the children came into care. They occur at the home of the maternal grandparents.

[232] For the reasons that follow, those visits will continue:

1. The children are very close to their big brother, JB. They look up to him. They clamour to see and be with him.

2. By all accounts, JB is a good and loving big brother. His affection and concern for his siblings is a central part of his life;

3. The children also greatly enjoy their time with their grandparents. They have a close and nurturing relationship with their grandparents;

4. The grandparents have always been able to care for the children in an access context;

5. The children would be emotionally harmed if they were to lose the continuity that their access to their close maternal relatives entails.

6. It is clearly in the children's best interests for the access to JB and the maternal grandparents to continue.

Issue No. 4: What Access, if any, Should the Mother be Granted to the Children?

[233] Perhaps the area of greatest controversy is what access, if any, the mother should have to the children. The Society seeks no access at all. The mother seeks a continuation of her present access by correspondence and telephone only. Upon her release (or when granted escorted passes from prison), she seeks in-person or physical access to the children, twice per month. She concedes that it should initially be supervised by the Society or the MBQ or at a supervised access centre. After some time she then wishes the access to be supervised by her parents. The mother is supported in her position by the MBQ which actually seeks access for the purpose of reunification.

[234] JC favours some supervised access for AB (and her siblings), with the supervisor being the Society or a professional supervisor. He wishes the terms of access to be at the discretion of the Society. As he wrote in his trial affidavit:

If so ordered by the court, I would be agreeable to facilitate some access between MM and AB after her release from custody, but the matter must be handled delicately and appropriately. I would certainly wish to see a professional and/or Society supervision for a substantial period of time before any graduation of access. I would also like to see MM undergo substantial offence-specific treatment and/or counselling ... I would also like MM's access to be at the discretion of the Society and I am deferential to the terms and conditions they would be inclined to impose.

[235] The aunt and uncle take no position regarding access.

[236] The OCL wants the mother's present access to continue until her release. Then it wants her to enjoy physical access at least once per month, supervised by the Society.

[237] While the test for the mother's access is the children's best interests, considered in the context of the CFSA's paramount and other purposes, further provisions of the CFSA apply as well. Under s. 59(1) there is a presumption in favour of access to the mother here. That is because she had charge of the children immediately prior to the Society's intervention and the children are not placed with her under a supervision order. Section 59(1) reads as follows:

Access: where child removed from person in charge

59 (1) Where an order is made under paragraph 1 or 2 of subsection 57 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with him or her would not be in the child's best interests.

[238] But this presumption may be attenuated by CFSA s. 59.2, which seems to presume that any access by a parent convicted of a Criminal Code of Canada offence involving violence against a child must be supervised. The onus seems to be on the person arguing against supervision.

Restriction on access order

59.2 If a society has applied to a court for an order under this Act respecting access to a child by a parent of the child and the court makes the order, the court shall specify in the order the supervision to which the access is subject if, at the time of making the order, the parent has been charged with or convicted of an offence under the Criminal Code (Canada) involving an act of violence against the child or the other parent of the child, unless the court considers it appropriate not to make the access subject to such supervision.

[239] In making my decision, I place no reliance on this provision as no party in this case has made reference to it and I am unaware of any cases that interpret it. Further all parties agree that if there is going to be in-person access between the mother and the children it must be supervised for the terms of the order. Thus there is no reason to rely on this section.

Analysis of Arguments and Evidence Regarding MM's Access to the Children

[240] In considering the evidence at trial and the presumption in favour of access, the court does not accept that a "no access" order for the mother is in the children's best interests. But it also does not accept that the relatively generous access suggested by the mother, MBQ, or even the more limited access suggested by OCL is in the children's best interests either.

[241] Rather the court finds that a very limited form of access, one focused squarely on the children's present need for stability and security, is in their best interests. That will mean that the mother's present access will be curtailed in light of the limited significance that the access presently holds for the children. Once the mother is released from prison, any expansion of her access must be considered in light of the individual needs of each child, including his or her level of stability at home and any progress that the mother has made to deal with her level of risk to the children. This process will allow the children further space to settle into their new homes. It will also allow their caregivers time to parent and bond with them without added interruption or interference.

[242] The current access regime was originally ordered by Starr J. on May 13, 2015, just over six months following the mother's arrest. Starr J.'s order grants the mother temporary access to the children by way of weekly pictures, cards, letters and gifts, and well as telephone calls. The number of calls has accelerated from one to two to three calls per week. They may last up to 30 minutes. Starr J. adjourned the issue of physical access to allow further access and to allow the access that she had granted to be implemented.

[243] On August 5, 2016 Starr J. made a consent order that applies to AB's access only. It allows MM access to the child:

… by letters and pictures once a week, and three telephone calls a week, for half an hour each time. The telephone calls shall be supervised by [JC].

That order is not substantively different than the access ordered for all three children on May 13, 2015.

[244] In a motion argued on January 26, 2017, at the end of the evidence portion of this trial, I refused to grant the mother temporary in-person access while she is imprisoned. I refused that request for the seven following reasons:

(1) Access at that time would create instability for the children at a time that they require stability;

(2) The assumption that the mother would soon be out of jail is far from certain;

(3) The access requested by the mother will impinge on either access by JB and the grandparents, or time with the children's new caregivers;

(4) I found that the case law cited by the mother in favour of jailhouse access was clearly distinguishable;

(5) There is limited evidence that the children are being harmed by their limited access to their mother;

(6) Granting that access may delay the final determination of this case as it may lead to a reopening of evidence;

(7) At the end of the day the anticipated gains from such access did not outweigh the risk of emotional harm to the children from such access.

Each of the Children has a Different Relationship with the Mother

[245] I have been asked by all parties but the Society (which simply opposes access) not to arrange separate access regimes for the children. Their thought is that the children will talk amongst each other. This will lead to confusion because of the notion that one will have more contact with MM than the other. In light of the children's divergent relationships with their mother which I describe below, I am not convinced by those parties' arguments.

[246] The evidence heard at trial shows that each of the three children have a different relationship with their mother. The differences are clearly correlated to their ages and the amount of time that each child spent in her care.

[247] MM has little to no interest in or tie to his mother. He was apprehended when he was about 11 months old. He is now 3¾ years old. He has not seen his mother in about the last ¾ of his lifetime.

[248] MM's former foster mother, TDC, testified that she believes that MM may not know who his mother is. He showed little to no interest in her telephone calls. His main participation in phone calls with MM while in the foster home was to say hello at the beginning and goodbye at the end. For most of the remainder, he was not on the call.

[249] AM has more of a tie to his mother than MM, but it is not as strong as his tie to his siblings or even his maternal grandparents. He has some memory of his mother, but he has not seen her for the last 40% of his life.

[250] Unlike MM, AM actually participates in phone calls with his mother. AM has told his child and youth worker, Linda Cummins, that he likes his calls with his mother. But his former foster mother, TDC, said that he is easily distracted during those calls. While he looked at his mother's pictures, he then put them away. They were placed in a memory box in his room. Ms. TDC did not believe that he looked at them again. She also felt that he was not fully engaged in creating pictures to respond to those he received from his mother. This view was echoed by Ms. Cummins, who asked him a number of times whether he had pictures for his mother. He generally responded in the negative.

[251] AM did not spontaneously tell his mother than he loves her. However when his mother has prodded him a number of times, repeating that she loves him until he responds, he would finally reciprocate.

[252] Ms. Cummins' evidence is that AM has been unable to articulate any strong feelings in response to his mother's letters and cards or to spontaneously seek to respond to them. In their many meetings, he never once told her that he wants to see his mother.

[253] Ms. TDC testified that AM's conversations about his access telephone calls focused more on AB than his mother. AB is more talkative during the calls than AM. When it came to letters and pictures, Ms. Cummins felt that AM was more interested in responding to AB than his mother.

[254] Ms. TDC noted that AM is generally able to reflect and comment about things that occur in his life. If there was something he liked, AM would speak about it to his foster parents. But he spoke little to them about the calls or his anticipation of them. He did not seem to her to reflect on either the letters or the calls he receives from his mother.

[255] When AM first got a letter from his mother, his lip quivered. He seemed sad to Ms. TDC. He obviously remembered his mother, perhaps with sadness at the loss. But he never asked where she was. He never asked for in-person access.

[256] AM's reaction to contact with his mother is in marked contrast to his reaction to his big brother, sister and even his maternal grandparents. Ms. Cummins, spoke of how he "forever" speaks about JB and how happy he is to see his older sibling. She also spoke of AM's excitement at seeing AB. AM spoke to Ms. Cummins of wanting to call his sister. Ms. TDC said that he would discuss his disappointment if AB was not on the line during his calls with his mother.

[257] Ms. Cummins stated that AM was quite excited in anticipation of two Christmas parties that he knew AB would attend. The same was true for a visit at a MacDonald's restaurant. He and AB greeted each other happily.

[258] When his grandparents were away at their trailer, AM spoke about it and wondered where they were.

[259] AB is the child most interested in contact with her mother. She has spoken of enjoying both the calls and the letters. She tells her mother, in a manner seemingly more spontaneous than her siblings, that she loves her. AB's father, JC said that the child loves her mother and that they have a connection.

[260] AB is also very close to each of her siblings, particularly JB. JC described their relationship as "particularly important" to AB. She loves to see him and sit on his lap. She is also very close to AM and laments any of his absences from calls to MM. Sibling access is very important to AB.

[261] It is hard to find a middle ground that fits all three children. If I limit the access, am I depriving AB? If I offer generous access, am I harming AM and MM? The access should be tailored to the needs of each child.

[262] I would be far more concerned about this issue were it not necessary, in any event, as set out below, to take a very cautious and limited approach to access at this time.

Access must fit Each Child's Needs

[263] I agree with the principle articulated by Justice Phillip Clay of this court in Children's Aid Society of the Region of Peel v. A.R. There he wrote at par. 90:

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

[264] Admittedly I am not ordering Crown wardship here, and the considerations regarding access to a Crown ward are somewhat different than they are in the case of a supervision order. But the principle set out by Clay J. remains the same where it is clear that the children will be raised in a home different than that of the mother.

[265] The access that was ordered by Starr J. was generous in the circumstances. It was clearly intended to leave the door open to the mother's plan at the time to resume parenting the children. It was made at a time before her criminal trial, when she was still presumed innocent. Since that maternal parenting plan is no longer on the table, the calculus of each of the children's best interests must change. The focus must be in the context of each child's adjustment to and stability in his or her new home. The success of that placement must rank high in the considerations of the child's best interests.

[266] Here there are many additional reasons to be very careful about allowing an access regime that may imperil the children's newfound and tenuous stability. They include the following factors:

1. Under CFSA s. 37(3) (12), a key consideration in determining the best interests of children is "[t]he degree of risk, if any, that justified the finding that the child is in need of protection." Here MM has a long way to go before she can be said to have eliminated or even significantly reduced the risks that she poses to the children The court relies on its full discussion of this issue set out above.

2. As Justice Ellen Murray wrote in a different but still applicable context:

An access order cannot be merely a consolation prize for disappointed adults.

Yet the mother's request seems more focused on her needs than those of the children. She sought to introduce at least one or two of her criminal "pen pals" to her children before she ever met them in person. She has tried to manipulate AB's father, JC, to be her romantic go between. She has even attempted to persuade him to move with AB closer to the MBQ reservation for her convenience. MM has been open to having access that could cut into the children's time with JB despite the strength of the siblings' bond. When challenged about this, MM suggested that JB could simply join the access, blithely ignoring all of the barriers to that occurring at this time. Nowhere in her presentation is there an acknowledgement of the stress or risk that her increased involvement with the children may pose to them.

3. The children's relationships with each other are far stronger at this stage than their relationships with their mother. That is likely even true for AB, and is certainly true of AM and MM. No order should risk diminishing those relationships. Similarly the children's relationship to JB and their maternal grandparents has been a Gibraltar of stability to them; one that cannot be diminished.

4. The children are still facing a time of extraordinary loss and change. Over the past year, all three have left their long time foster homes to join family members. Each is likely still grieving the loss, as they attempt to adjust to the new placement. This of course follows the loss that they suffered at apprehension less than three years ago.

5. The children are still facing the challenge of a new home with their new caregivers. Even AB has been in her father's care for less than a year after never before living with him. AM and MM have been with their aunt and uncle for only about six months. They continue to require an extraordinary level of stability and security in their placements after so much tumult.

6. For their part, as I have found above, the children's new caregivers, JC and the aunt and uncle, still face their own challenges. For JC there are personal challenges that he has been overcoming but he still has a distance to go. For the aunt and uncle, they are caring for one child on the autism spectrum and another who may also be a special needs child. The element of access introduces additional challenges, stresses and risks into their lives. The most important step that the court can take to meet the best interests of the children is to make their permanent placements work, not to make things more difficult for their caregivers.

7. The children have a limited period of time for maternal access. Their access to JB and their grandparents must be sacrosanct so that they can maintain the family ties and stability those visits promote. Their caregivers have to have their own family time with the children. In addition the children have been enrolled in numerous programs that are important to their development.

8. It is far from clear that a maintenance of, let alone an increase in MM's access is in the best interests of all three of the children. While it is true that both AB and AM enjoy the calls with their mother, there is little clear bond between AM and his mother. There is none or virtually none regarding MM. Even the depth of AB's relationship cannot be taken for granted.

[267] It must be remembered that the issue of whether and what access is in the children's best interests must be considered from the perspective of the children. Here its value to them is no longer to keep the door open for the mother as a potential caregiver. Rather it is to allow them to maintain a sense of continuity and to feel that they have not been abandoned by their mother. Perhaps in meeting that need, they can build a meaningful and beneficial relationship with their mother. But the quest for that relationship cannot be allowed to trump the children's needs for stability and security in their present homes.

[268] For those reasons, the court finds that it is in the children's best interests that their access to MM be at a level that merely lets them know that their mother is alive and well in the world and that has not abandoned them. For that reason, her present access will be:

1. Once weekly telephone call of up to 30 minutes;

2. Letters, including drawings and gifts once monthly.

No Order of In-Person Access

[269] At this point, the notion of in-person access is somewhat speculative, since it will not occur until the mother is released from prison. The children's stability is too tenuous, their time too circumscribed and their mother's progress too shallow to allow in-person access at this time. In saying that such access is not in the children's best interests at this time, I adopt the reasons that I gave in the motion for such access on a temporary basis at the end of the trial.

[270] I will not order any in-person access at the time of the mother's release from prison because there are too many unknowns at this time. In particular, I do not know:

(1) when MM will be released from prison. Her counsel has been forecasting her immanent release for close to a year, without success;

(2) where the mother will be living when she leaves prison, and what her plans are for a return to non-prison life;

(3) whether the mother will have made any gains in her insight and offence specific treatment for her risk to her children. This element is crucial because without such gains, the benefits of her access as set out above may be outweighed by their costs and risk;

(4) how the children will be doing in their new homes when she is released, how stable they will be and whether their placement will be jeopardized by in-person access;

(5) whether their relationship with their mother will have changed since the time that I last received evidence in this trial;

(6) what each child's needs will be with regard to access to their mother at the time of her release. In saying this, I am not simply accepting that access for all children should be uniform. It may be that AB, for example will have a different access arrangement with her mother than MM.

In short I have not been convinced that any in-person access to MM will be in the children's best interests at the unknown time that she is released from prison.

[271] If the mother choses to bring an application for access under CFSA s. 58 before the expiration of this supervision order, the court will wish to receive expert evidence of the mother's progress in any treatment that she has received. It will also desire evidence as to the progress of the children in their new homes, any risk that access may pose and any manner in which it may be in their best interests.

[272] If any in-person access is ordered, following Dr. Mamak's strong recommendation, it will have to be supervised by a professional, whether from a children's aid society or a professional access supervisor.

[273] The mother has asked that her parents be allowed to supervise her in-person access to the children. That issue is highly speculative at this time as there is no in-person access to supervise. But because I have heard extensive evidence through this lengthy trial, and because the issue may arise in the future, I offer these comments.

[274] Although they are clearly fine and honourable people, who have a lot to offer the children during their own access, asking the maternal grandparents to supervise any of MM's access that would be a bad idea. I say this because:

1. It places the grandparents in a difficult position; one where they may have to choose between the interests of their daughter and their grandchildren. The grandfather testified that he feels that he is in a very difficult position with his daughter having sexually abused his grandson. He felt that he had done nothing to come to terms with this. His wife is having an even more difficult time coming to terms with this notion than he. Yet he would still like to see the children return to MM if she meets all of the "applicable criteria".

2. The concern about the grandparents' loyalty bind has already manifested itself in action. The grandparents have allowed MM to speak to the children while they were at the grandparents' home. This is contrary to the express instructions of the Society and not allowed by the access orders of Starr J. Both MM and her parents should have known better. I accept that they will not likely repeat that mistake, but the point is made.

3. While the grandfather previously worked in a prison (running a cafeteria), that gives him no extra insight into his daughter's behavior. He and his wife saw his daughter and grandchildren in their home almost daily. Yet unlike the aunt, he observed nothing askew between his daughter and grandson. He was also unaware of MM's daily marijuana use. As he put it, MM pulled the wool over a number of people's eyes, including his own. He has never discussed the sexual abuse with his daughter subsequent to her incarceration.

4. MM appears to be quite capable of manipulating others, including her parents. That is why professional supervision is necessary.

5. The resources of the grandparents are best utilized in their own access to the children, and facilitating JB's access.

[275] I note that the MBQ have taken the position that it supports access to the mother for the purpose of reunification. Undoubtedly that position is well intentioned and aimed at preserving the children's tie to their indigenous community. But it was not arrived at after having witnessed a great deal of the trial. Presumably the MBQ is unaware that the mother herself has conceded that she will not be parenting the children; that they are now in their permanent homes. I assume that if the MBQ were aware of the full extent of the concerns set out in this decision, its position would be quite different.

[276] In addition, the caregivers have each indicated that they will attempt to inculcate the children with their Aboriginal heritage. The maternal grandfather, who has the biological link to MBQ, is still exercising access and is able to share his heritage with the children.

Access to DJ

[277] DJ has not requested any access to the children and there is no evidence that such access would be in the children's best interests. Accordingly there will be an order that he have no access to the children.

CONCLUSION

[278] For the reasons set out above, I find that the children are:

• AB, born […], 2009,
• AM, born […], 2010, and
• MM, born […], 2013.

[279] AB's parents are MM and JC. AM and MM's parents are MM and DJ.

[280] There is no evidence that the children were raised in any religious faith, so I find that they have no religion for the purpose of the CFSA. They have already been found by Starr J. to be "Indian" as defined in the CFSA. Their Band is the Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory.

[281] I find that AB is in need of protection pursuant to CFSA s.37 (2) (d).

[282] I find that AM and MM are in need of protection pursuant to CFSA s.37 (2) (d) and (i).

[283] AB shall be placed in the care of her father, J.C. subject to the supervision of the Society for a period of 12 months. On consent, the following terms of supervision will apply:

1. JC shall continue to work cooperatively with the Society;

2. JC shall continue to allow the Society to conduct visits to his home and to meet privately with AB in his home, at school, or elsewhere as required;

3. JC shall continue to notify the Society of any changes in family constellation and contact information at least seven days before such change, and where advance notice is not possible, within 24 hours of such change;

4. JC shall continue to sign reasonable consents for disclosure of information to/by the Society pertaining to himself and AB as required;

5. JC shall continue to access reasonable programs and services recommended for him by the Society and any collaterals involved with the family, including any counsellors, mental health professionals, and AB's school.

6. JC shall, with the assistance of the Society, enroll in trauma counselling, and provide confirmation that he has signed up for this service. He shall follow through with trauma counselling.

7. JC shall, with the assistance of the Society, locate a therapist or counsellor for AB.

8. JC shall abstain from using illegal substances while in a caregiving role to AB, except in accordance with a valid medical prescription. In any event, his judgment shall not be impaired by any such drug while in a caregiving role with AB.

[284] I added the last sentence to the consent terms of JC's supervision because virtually anyone can obtain a prescription to medical marijuana at this time, and the substance may become legal before the matter is next in court.

[285] AM and MM shall be placed in the care of the aunt and uncle, subject to the supervision of the Society for a period of 12 months. The following terms of supervision will apply:

1. The aunt and uncle shall continue to work cooperatively with the Society;

2. The aunt and uncle shall allow the Society to conduct visits to their home and to meet privately with AM and MM in their home, at school, or elsewhere as required;

3. The aunt and uncle shall notify the Society of any changes in family constellation and contact information at least seven days before such change, and where advance notice is not possible, within 24 hours of such change;

4. The aunt and uncle shall sign reasonable consents for disclosure of information to/by the Society pertaining to themselves and AM and MM as required;

5. The aunt and uncle shall access reasonable programs and services recommended for them by the Society and any collaterals involved with the family, including any counsellors, mental health professionals, and AM and MM's school.

6. If recommended by the Society, the aunt and uncle shall, with the assistance of the Society, locate any therapist or counsellor needed by AM and MM.

7. The aunt and uncle shall abstain from using illegal substances while in a caregiving role to AB, except in accordance with a valid medical prescription. In any event, their judgment shall not be impaired by any such drug while in a caregiving role with AB.

[286] The children shall have access to each other, to JB and to their maternal grandparents, GB and SB. The access shall occur for one night, overnight on alternate weekends on dates and times as agreed between JC, the aunt and uncle, JB, and the maternal grandparents. During their access, the grandparents and JB shall not allow any telephone contact by the children to MM.

[287] MM is entitled to the following access to the children:

1. One telephone call per week to be supervised by one of JC, the aunt or uncle, or a Society protection worker;

2. One letter from the mother to the children per month, which may contain pictures and gifts. The children may write to their mother as often as they wish.

[288] If there are any disagreements with regard to the logistics of any of the terms of access set out above, the matter may be brought before me by 14B motion to determine the next steps.

Closing Note

[289] This has been a very long and difficult trial. I would like to gratefully thank counsel for their civility, good humour and fine work. I particularly thank them for their excellent and useful final submissions.

Released: July 4, 2017

Signed: Justice Marvin Kurz J.