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.

Court Information

Ontario Court of Justice

Date: 2018-03-29

Court File No.: Sudbury C-80-15

Between:

The Children's Aid Society of the Districts of Sudbury and Manitoulin Applicant

— And —

V.T. and R.T. Respondents

Before: Justice Penny Jones

Heard on: November 10, 2017 and February 5, 2018

Reasons for Judgment released on: March 29, 2018

Counsel

Dawn V. Dubois — counsel for the applicant Society

Barbara Burton — counsel for the respondent, V.T.

Lance Carey Talbot — counsel for the respondent, R.T.

Decision

PENNY JONES, J.:

Background

[1] On December 5, 2017, I released my ruling (see 2017 ONCJ 846, [2017] O.J. No. 6500) with respect to a summary judgment motion I heard November 10, 2017. The summary judgment motion was brought by the Children's Aid Society of the Districts of Sudbury and Manitoulin (Society) relating to the children E.G.A.T. born February 26, 2015 and V.R.T., born February 5, 2016.

[2] The Respondents, V.T. (mother) and R.T. (father) are the natural parents of these children.

[3] In my earlier decision, I reviewed the facts and the applicable law and determined that I was not prepared to grant summary judgment at that time as I was satisfied that the evidence contained in the Parenting Capacity Assessment represented a genuine issue on which the results of the trial might turn. However, rather than dismissing the summary judgment motion at that time, I directed that a mini-trial be held, on terms, pursuant to Rule 16(6.1) and 16(6.2) of the Family Law Rules, (O. Reg. 114/99, as am.)

1: BACKGROUND

[4] In that first motion, Counsel for the father argued that he should be granted the opportunity to cross-examine the assessor as his client did not agree with the factual underpinnings relating to the opinion proffered by the assessor, (i.e. that the father could not parent, either solely or as an equal parent with the mother, because of his "idiosyncratic thought patterns" which, according to the assessor, substantially impeded the father's judgment, reasoning and decision making as well as his capacity to effectively benefit from support and intervention to address any concerns. Counsel noted how central the findings in the Section 54 assessment were to the Society's case and that the parents were contesting those findings.

[5] He argued that professional opinion reports should not be accepted by the court without careful consideration, and if this were a trial, unless all parties agreed to the admission of the report without the assessor being called, the assessor would be subject to cross-examination. See Children's Aid Society of Algoma v. B.A., [2001] O.J. No. 2745 para 40, where Justice Kukurin wrote, "If a party insists that the author of the report be produced at Court for cross-examination, he or she has an absolute right to cross-examine."

[6] Counsel also pointed to the risk of a miscarriage of justice when a court places undue reliance on unchallenged expert reports. In this regard, he referenced the recent Motherisk hair analysis report scandal and the conclusion in the Motherisk Report that the court must always be cognizant of its role as gatekeeper with regard to the admission of expert evidence.

[7] As well, he questioned how the court could confidently evaluate, without cross-examination, the quality of the opinion evidence, and decide what weight to give to such opinion evidence.

[8] In deciding whether to grant a summary judgment motion that would have the effect of permanently severing the relationship between these children and their parents, the court must be confident that the evidence is such that the court can fairly resolve the dispute. See para 57 of Hyrniak v. Maudlin, 2014 SCC 7, para 57, where Justice Karakatsanis wrote:

"57 On a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute..."

[9] In this case, as previously mentioned, I decided that the evidence contained in the Parenting Capacity Assessment represented a genuine issue on which the results of the trial might turn. In my original ruling, I considered whether the genuine issue I identified required a full trial for its fair disposition or whether the genuine issues identified could be fairly resolved by employing the enhanced adjudicative powers contained in Rule 16(6.1) and 16(6.2) of the Family Law Rules, namely, the power to weigh the evidence, evaluate the credibility of the deponent, and/or to draw any reasonable inference from the evidence to determine this issue on the summary judgment motion short of a full trial, with the option of ordering a mini-trial to assist the court in exercising these enhanced adjudicative powers.

[10] I decided to order a "mini-trial" under Rule 16(6.2) on the following basis. Dr. Patricia Ross, the parenting capacity assessor, was to be called and she was to be made available for cross-examination by the parties. Her notes and records were to be made available to all counsel well before the mini-trial. Her report was in evidence under section 54 of the Child and Family Services Act (R.S.O. 1990, c. C.11, as am) (Act). As well, I proposed to hear from the mother and the father on their responses to the parenting capacity assessment report, and on their plans going forward. I limited the parent to one hour each in chief, although I noted that I was prepared to reconsider this time limit on submissions of counsel for the parents. I also noted that I would consider allowing the Society to call a reply witness.

[11] The "mini-trial" was held on February 5, 2018. This was not a trial in the usual sense. I, not counsel, maintained control over the extent of the evidence and the proceeding and determined what evidence I required to hear and the issues to which the evidence was directed. When counsel did not ask questions germane to my decision-making, I asked those questions. See para 61 of Hyrniak supra when Justice Karakatsanis wrote:

"... The decision to allow oral evidence rests with the motion judge since, as the Court of Appeal noted, 'it is the motion judge, not counsel, who maintains control over the extent of the evidence to be led and the issues to which the evidence is to be directed...'"

[12] I must now decide whether a full trial is required, whether a trial of an issue in the usual course is appropriate, or whether to proceed to decide the case using the enhanced adjudicative powers available under Rule 16.

MINI TRIAL

2: EVIDENCE ADDUCED

2:1 Dr. Patricia Ross

[13] Dr. Ross' expertise was not challenged. A copy of her Curriculum Vitae, a copy of her acknowledgment of expert form, a copy of her section 54 report, a copy of the endorsement of Justice Humphrey dated January 18, 2016 which ordered the section 54 assessment and included the questions to be answered by the assessor, were all filed as exhibits at the mini-trial.

[14] Dr. Ross was cross-examined extensively by counsel for the parents. As well, counsel for the Society asked a few questions in an attempt to clarify certain areas of her evidence.

[15] Dr. Ross expressed concern that the father would be unable to safely and effectively parent his children, both on his own and even as an equal partner to V., due to his idiosyncratic thought patterns. She explained that his idiosyncratic thought patterns would be predicted to substantially impede his judgment, reasoning and decision-making as well as impede his ability to effectively benefit from support and intervention to address any concerns.

[16] Her opinion was based on her own observations, the results of her testing, and the evidence contained in the continuing record that she reviewed, including comments made by the mother about her concerns about the father's ability to parent and his tendency to become overwhelmed when he was required to care for two children. According to the mother, when the father did not know what to do, he would just sit there and do nothing.

[17] Dr. Ross was able to give clear examples from her own conversations with the father as to why she had used the term "idiosyncratic thought patterns." For example, Dr. Ross wrote at p. 21 of the Parenting Capacity Assessment report (PCA) 'when asked if he understood why the CAS had apprehended the baby, he acknowledged he did. He stated: "the baby would have been more sick than anything with all the garbage. We would have needed a portable sink with us." Another example, on p. 22 of the PCA, Dr. Ross commented on her unsuccessful attempts to explain the results of the PCA to the father. She wrote:

"Attempts were made to discuss the results of the assessment with R. His cognitive profile was explained, including his very weak verbal skills. He responded, 'if the CAS would have told me this earlier, I could have done something, like gone to Cambrian College to get these skills. Despite explaining to him several times that these deficits are brain-based and are not something that can be "fixed" through any program. R. continued to discuss attending College to gain these skills.'"

[18] She described the father as friendly, cooperative, sufficiently self-assertive to refuse to answer questions he said had "gotten him into trouble in the past when he answered those questions", not shy and showing no evidence of being afraid or uncomfortable in the presence of his wife. She felt he was able to understand her questions.

[19] In her opinion, his disjointed, confused responses could not be explained fully by his very limited verbal intellectual skills. She noted that, in other assessments, she has been able to make suggestions to address parenting deficits for other clients with similar limited verbal intellectual skills who did not exhibit such an "idiosyncratic thought pattern". She agreed that, as she was not able to understand the origin of this confused, disorganized thinking, or his disjointed thoughts, she was not able to say there was nothing that could be done to address this issue and she agreed that it was possible that something could be done. However, it was her opinion—qualified, because of insufficient information available to her given the father's inability to answer the questions due to his confused thinking—that short of a psychiatric diagnosis she was not able to provide clear recommendations going forward as to interventions that might be successful in addressing this father's parenting deficits. With no psychiatric diagnosis, she concluded that this was simply how R. functioned and that it was her opinion (qualified due to the insufficient information and contradictory testing results) although supported by her clinical observations and impressions that, "someone with such confused thoughts could not parent." (p. 75 transcript line 25.) Her opinion in this regard remained unshaken.

[20] Dr. Ross was cross-examined on her findings as they related to the mother. She felt that her findings relating to the mother's cognitive abilities and her recommendations as to how the mother should be approached by the Society going forward were very solid. She testified that the cognitive testing showed that the mother was not cognitively delayed, and that there were no areas of deficits that would substantially impair her capacity to either parent, or to benefit from interventions. After interviewing the mother and collecting her history and reviewing the mother's test results, she was confident in recommending an approach that would best secure a positive response from the mother to Society intervention. The assessor noted that the mother had felt disrespected in the past because of the Society's mistaken notion that the mother was cognitively challenged.

[21] Dr. Ross acknowledged the limitations in her report relating to the mother. She was not able to make clear recommendations going forward in the area of parenting. She testified that she did not understand the parenting of the mother. She expressed grave concerns about the mother not leaving the unsanitary and unsafe conditions of her home when she knew she was about to give birth and not seeking proper medical care while pregnant. She felt that V. needed some counselling and the assessor was not able to say whether the mother was really willing to engage in such counselling because she would have to deal with the long-standing issues. She could not say whether a short-term fix would be sufficient to move forward. Dr. Ross identified a number of emotional factors affecting the mother's functioning, including depressive functioning and anxiety, but agreed that the assessment, including the test results, did not give a good understanding of V. She did opine that she did not think that this was just simple depression, and that much more was going on.

[22] When questioned about the children transitioning home, Dr. Ross testified that she did not have enough information about the mother's parenting skills, or what the continued concerns were, to give any recommendations about whether the children should be transitioned home, and left that to the court. However, she did agree that if a decision were made to transition the children home, the transition should be gradual (if current access was as limited as it had been at the time she interviewed the mother and wrote the report). (At that time the report was written, access was at the office and fully supervised as it has remained until today).

[23] Dr. Ross did not say that the mother could not parent—she simply could not say. She agreed that the mother was cognitively capable, but that was the only conclusion she felt comfortable in making.

[24] She testified that the mother did not provide a lot of information during her interviews, was very guarded, and her psychometric tests results were very inconsistent. Given her lack of a clear psychological understanding of the mother, there were many questions that she could not answer about the mother's prognosis for successful parenting. She felt the mother should work through her grief, her learned helplessness, feelings of inadequacy and all the factors that could substantially impact parenting. She felt that she did not have a clear enough understanding of the mother and her emotional functioning to make a recommendation about what the mother would need to do to help her to become more successful in raising her children. All she could do was recommend personal counselling. (p. 95 transcript Feb. 5, 2018).

2:2 The Father

[25] The father testified at the mini-trial. A number of issues were raised in his testimony.

[26] When questioned about the assessment process, he testified that he was unaware that the assessor felt he was not answering the questions asked. He said that he guessed she didn't explain it enough. He said he just took the questions as asked and he "tried to make them as short as he could." (p. 159 line 28 of transcript supra). He said that he did not know what Dr. Ross was referring to when she referred to his idiosyncratic thought patterns. He said that he was going to go home and look it up on his computer and see if someone could explain it better to him. He said that he thought he understood and that he can express himself. When asked about parenting, he said that he was more able to expand on it now as he has had more experience with kids. He felt he was now able to parent. For example, he said he could pick up the girls' cues as to when they wanted a bottle or a diaper change. He described his access visits. He said they, "play tag, read books, play dollies". (p. 169 transcript supra)

[27] The father was asked about the circumstances surrounding the birth of his first daughter and why he remained in such deplorable conditions when the birth of a baby was imminent. He testified that he and the mother had arranged to go and live with his mother and sister in Woodstock and the baby simply came earlier than expected. In contradiction to the mother's testimony, he said that there was no plan to rent an apartment at 375 Meade in March, 2015 as sworn to by the mother.

[28] The father testified at length about his experience with domestic violence at the hands of the mother. It was his evidence that the domestic violence began after the assessment report was delivered in 2016. He said that the mother would physically and verbally abuse him, and referred to a number of specific incidents of abuse. He denied ever physically assaulting the mother. He testified that the mother had hit him with a frying pan on the back, hit him in the face, smacked him on the lip, and bit him. He adopted the allegations of assault contained in the police report made October 31, 2016, reproduced in my earlier decision and confirmed that the mother had caused the injuries shown in the graphic photograph attached to the Society's material. He agreed that the mother had sent him threatening text messages. He said that he couldn't recall how the stab wound on his leg happened because he could not explain why the only blood found by the police was in his apartment. He said that he was experiencing a black out around this incident.

[29] Although the father denied ever having assaulted the mother, he testified that there were times he experienced "black rage". He agreed that on October 31, 2016, when he suffered significant injuries at the hands of the mother, he was in a "black rage." When asked to describe what it feels like to be in a black rage, the father said that, "it feels like I'm on fire. I have no control." .... "And I don't remember it afterwards." (p. 182 lines 1-28). He testified that there may be times he experienced both a black rage and a black out at the same time. (p. 192 line 22-28 transcript supra).

[30] The father set out his plan for the custody of the girls. He indicated that his plan was now different than the one contained in his original plan of care considered at the first summary judgment motion. No longer did he wish to have the girls placed with their mother. He felt that this plan was not safe given the mother's violent tendencies.

[31] His amended plan of care was to take the girls to Woodstock and live with his mother and sister. If the society would not agree to him living with the girls and his mother and sister, he proposed to live separately and assist his mother and sister with the care of the girls.

[32] Eventually he hoped that the girls would live with him. He suggested that he might have the girls during the school year, and their mother would have custody of the girls during the summer in a co-parenting arrangement.

[33] The father acknowledged that this plan to place the girls with his mother and sister was not a new plan and that this plan had been considered twice by the Society in the past and that two kinship reports had been prepared, one in 2015 and the other in 2016. He agreed that on one occasion he and the mother had withdrawn this plan and on the other occasion this plan had not been approved of by the Society.

[34] No legal steps were taken by the father to execute this plan until he once again raised the issue at the mini-trial.

[35] He provided no cogent evidence as to what had changed since the same plan had been rejected by the Society.

[36] If the Court was not prepared to place the girls with him or with his mother and his sister, he said that he did not wish the girls placed with their mother and would prefer that the girls be adopted by their foster mother because he did not trust their mother to raise them given her anger issues and violent tendencies. He said:

"... after all the violence ... that has been going on between me and her, I don't think she could, if the kids did something like that, I don't know if she could stop herself from not doing something to the kids or putting something in the wall .... (Putting slamming something down on the counter or throwing something.)" (P.193 line 22-29 transcript supra).

(He did not seem to understand how this position and his co-parenting proposal were inconsistent).

[37] The father testified that he had not seen or communicated directly or indirectly with the mother since August, 2017 when he reinstated the communication ban contained in her 12-month probation order. He told the court that he expected to be in contact with the mother around co-parenting of the children once the communication ban ended in April, 2018. The father testified that he still loved the mother and was not sure whether he would reconcile with the mother or just co-parent (p. 189 line 22-25 transcript supra).

2:3 The Mother

[38] The mother testified at the mini-trial. Her testimony covered a number of issues including her plan of care for the children.

[39] The mother testified as to her plan of care for the girls. She indicated that she is now living in a two-bedroom apartment suitable for herself and her daughters. She would like the girls to be returned to her care.

[40] She agreed that to date, she has been exercising only supervised access to her daughters. She testified that she currently sees them every week, either once or twice on a two-week rotational basis. When asked what she does with the children, she responded:

"We play. We go on the slide. We play tag or we build blocks. They have like these little activity things where they have clips to help children learn how to do up a belt buckle and everything. We play with those. Tag. Colour. We do plenty of activities."

The mother also indicated that she brings food for the children. (P.116-117, line 30 and following, transcript supra). She indicated that the girls are very happy and they always give her hugs and kisses and they yell mommy. (p. 116, line 27-28 transcript supra).

[41] She agreed that the girls should be reintegrated slowly given that her access has been supervised to date. She suggested that in the beginning the girls come to her house Monday, Wednesday, and Friday 8:30 a.m. to 5:30 p.m., initially supervised. That would occur for a couple of months or whatever is deemed appropriate. Then, the children would come for the weekend, initially supervised then unsupervised and eventually come home permanently.

[42] Once home, she testified that she expected that her father and her sibling as well as her extended family would provide her with support. She also testified that once the communication ban is lifted, she would expect the children's father to assist her with parenting when he is available. She told the court that she was prepared to enter into counselling with the father to assist them to work together as co-parents.

[43] When asked about her current activities, the mother described an average week. She said that she would visit the children, see her counsellor, visit friends and family, and exercise by walking to stay healthy. She expressed a wish to go back to school, and to do volunteer work.

[44] The mother testified about her past, and briefly touched on her problems as a child, and the death of her mother. She agreed that counselling was helpful in assisting her to deal with her issues. She testified that she had been periodically seeing a psychiatrist for anxiety and depression after the parenting capacity assessment was released. When questioned further, the mother clarified this response by indicating that she actually saw the psychiatrist once in the summer of 2016 and once in the spring of 2017 and that she had been told by the psychiatrist that it was open to her to see her again if she felt it was necessary. She testified that she currently is seeing Maureen Eddie, B.A., a counsellor with the Manitoulin Family Services every two weeks for half to 1½ hours. She says that the counsellor is very helpful and they talk about the traumatic issues in her life. She said that she is feeling better about herself and "Instead of me allowing the helpless and hopelessness to arise, I stop and tell myself that I can do it and that to keep trying and that, you know, there is hope and, you know, to avert those unhealthy feelings and make it into a healthy positive feeling. That's the extent of what I've been working on and it's been working very well. Like excellent." (p.149 line 21-26 transcript, supra)

[45] The mother denied having an anger problem. She characterized her relationship with the father as a conflictual one in which they both put hands on the other. She admitted that she hit the father in the face one time when she backhanded him, and, during the same incident, that she bit him in an attempt to break free, when he had her in a head lock. She denied stabbing the father, giving the father black eyes or threatening the father.

[46] The mother testified that she was willing to work with the Society. However, she acknowledged that she did not trust strangers and that she had become angry with R. for telling Society workers private and intimate details of their lives. She did agree that recently a number of home visits had not taken place for various reasons. She denied having an anger problem, and when confronted with an email in which she threatened R. and her Society and mental health workers, she told the court that she wasn't denying it, but was experiencing a memory block. The email addressed to R. was read into the record:

"…… I'm ready to kick the shit out of anyone who annoys me that includes that bitch Shannon and Melissa Raymond. Ill fucking kick the shit outta anyone who dares to punch my fucking buttons that include you, you stupid fucking lazy deadbeat jobless bastard." (p. 133 lines 11-17, transcript, supra)

[47] The mother indicated that she still loved the father but told the court that she could not be with him. She said that she would like to go into counselling with R. so that they could co-parent. She did not rule out the possibility of getting back together if he attended counselling.

3: ISSUES TO BE DETERMINED

[48] The following are the issues to be determined:

a) Is this an appropriate case for summary judgment?

b) If so, what is the appropriate dispositional order in the children's best interests?

c) If a Crown wardship order is made, should an access order be made, and if so, to whom?

4: SUMMARY JUDGMENT RULE

[49] The relevant portions of Rule 16 of the Family Law Rules reads as follows:

WHEN AVAILABLE

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1(7.2)

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).

5: DISCUSSION

[50] In my ruling released December 5, 2017, I found, on the motion material filed, a genuine issue on which the results of the trial might turn. In order to determine whether the genuine issue identified could fairly be resolved short of a trial by employing the new fact-finding powers as set out in Rule 16, I ordered a "mini-trial" on terms as set out in my previous ruling. The mini-trial was held, and I am now in a position to consider the entire record as augmented by the evidence adduced at the mini-trial.

[51] For the following reasons, I am now satisfied that this matter may be disposed of summarily.

[52] In finding the material facts necessary to decide the case, I reviewed the entire record, including the evidence adduced at the mini-trial. I have relied upon first-hand evidence, whenever possible, and if such evidence was not available, I have relied upon credible evidence otherwise corroborated, and have drawn reasonable inferences and conclusions on the evidence I accept. I have relied upon the opinion of Dr. Ross, (as qualified and clarified through cross-examination), as I found that her opinion on parenting remained essentially unshaken after cross-examination and was supported by the observations of the Society and my impressions of the parties on the witness stand. I found the viva voce evidence of the parents and Dr. Ross very helpful in answering questions which I felt had remained unanswered after reviewing the paper record and hearing the submissions of counsel. If counsel did not ask questions that I felt were germane to my decision-making, I felt free to ask such questions within the context of this mini-trial.

[53] I find that the state of the evidence is now such that I have confidence that I can fairly resolve this case.

5:1 Uncontested Facts

1. The finding was resolved on consent on May 29, 2017. The parties signed an agreed statement of facts in support of the finding outlining the following areas of concern: poor hygiene and lack of housing, lack of prenatal care, domestic violence, and lack of stability in parents' relationship.

2. The only issue is disposition.

3. The children are now 3 years and 2 years respectively and both were apprehended at birth and have never been in the care of either parent.

4. As both children are under the age of six years, and both have been in society care for a period in excess of one year, unless the court is prepared to extend the time for the granting of a society wardship order under Section 70(4) of the Act, the only available dispositions under section 57 of the Act are return of the children, with or without supervision or to make a Crown wardship order, with or without access.

5. Neither parent has exercised unsupervised access to the children.

6. Both parents are regular in their access and are loving and devoted to their children.

7. The children are meeting their milestones and are very adoptable.

5:2 Findings of Fact Using the New Fact-Finding Powers

8. The father and mother have exercised access to their children in a supervised, therapeutic setting since the birth of their children. Notwithstanding these learning opportunities, they still require careful monitoring and have to be cued and/or redirected with respect to safe play, feeding, diapering, and, especially with respect to the father, the use of the telephone during access.

9. At access, the father shows little insight into his child care responsibilities and either has relied on the mother to direct his interactions with the children or on the Society supervisors.

10. I accept the finding of Dr. Ross that father's idiosyncratic thought patterns would be predicted to substantially impede his judgment, reasoning and decision-making as well as impede his ability to effectively benefit from support and intervention to address any concerns. Further, that the father would be unable to safely and effectively parent his children, both on his own and even as an equal partner to V., due to his idiosyncratic thought patterns.

11. The evidence adduced by the Society raises concerns about the father's ability to benefit from Society intervention and point to the lack of progress made by the father in the area of parenting.

12. The father and the mother have been involved in a conflictual domestic relationship which has included bullying, threatening and physical assaults on the part of the mother towards the father. The most significant assault occurred on October 31, 2016 when the mother assaulted the father causing significant injuries as evidenced by the photographs attached to the Society's material. The father has been inconsistent in his version of events and at various times has recanted to the police and to the Society and has denied that the mother was responsible for his injuries. After the father recanted, the Crown agreed to accept a plea by the mother to simple assault and she was granted a conditional discharge with a twelve month probation. At the mini-trial, the father testified to the mother's assaultive behavior and confirmed the original police complaint.

13. The father testified that he would not feel that the children would be safe if placed into the custody of the mother given her violent tendencies.

14. The mother testified that the father was also physical with her and described a situation in which both parties would put their hands on one another.

15. The father told Dr. Ross and the court about his "black rages." Before me, the father testified that he had been in a black rage on October 31, 2016. When asked what a black rage felt like, he said that he felt like he was "on fire and out of control". On October 31, 2016, the mother testified that the father had assaulted her by putting his arm around her neck and that she had bit him in an attempt to break free, although she apparently had no injuries and the father had quite serious injuries on that occasion. Given the statements of the father about his black rage, and the findings by Dr. Ross that psychometric testing had indicated an increased risk of a "destructive outburst of rage" on the part of the father, I am concerned about the future possibility of serious assaultive behaviour by father towards the mother.

16. The mother and father have had no contact with one another since the end of August, 2017 when the no contact ban was reinstated. However, both parties testified that they still loved one another and intended to contact one another, ostensibly for the purposes of arranging co-parenting, once the ban expired on April 9, 2018. The potential for further violence between the parents cannot be underestimated given the stress these parties are experiencing.

17. The father has not seen a counsellor since he moved from Espanola in the fall of 2017.

18. The mother is seeing a counsellor who is neither a psychiatrist nor a psychologist. She is seeing Maureen Eddie, B.A., who is a counsellor with Manitoulin Family Services. The mother testified that she is dealing with her feelings of "helpless and hopelessness" by telling herself there is hope and thereby averting those unhealthy feelings. Dr. Ross testified that the mother needed personal counselling to deal with her long-standing issues and the emotional factors affecting her functioning, including depressive functioning and anxiety. I am not satisfied that this type of counselling is sufficient to deal with the emotional issues identified by Dr. Ross.

19. The children enjoy their time with their parents. However, the day to day parenting is being carried out by the foster parents, who have been the caregivers of the younger child since she was discharged from the hospital, and the caregivers of the older child, since she was placed in their home in the summer of 2016. I find that the psychological parents of the children at this time are the foster parents and not the biological parents.

6: DISPOSITIONAL ORDER

[54] Given the length of times these children have been in care and the fact that both these children are under six years of age, the court must either return the children to the parents, with or without a supervision order, or make a Crown wardship order with or without access.

[55] The mother's counsel asked the court to gradually return the children to the mother over a number of months with a view, if all goes well, to placing the children with the mother under a supervision order. To keep the children in care during this process would require the court to extend the time for the making of a Society wardship order under section 70(4) of the Act. Section 70 limits the court's ability to make a Society wardship order for a child under six if that child has been in the care of the Society for a period in excess of twelve (12) months. Section 70(4) grants discretion to the court to extend the time for the making of a Society wardship order for a period not to exceed six (6) months if it is in the child's interest to do so.

[56] Without deciding whether an order under Section 70(4) would be available, given the fact that both children have been in care for over 18 months, I do not feel that this is an appropriate case to make a section 70(4) order, as I do not feel that such an order in this case would be in the children's best interest. In my view, generally, the purposes of section 70(4) of the Act is to provide for those situations where something is expected to reasonably occur in the near future, or at least within six months, that would allow a parent to resume care of the children. For example, the court may be told that the parent is expecting to obtain appropriate housing, move, obtain a job, recover from an injury, get out of jail etc. and the reunification of the family is in the children's best interests and is reasonably expected to be successful. Here, placing the children with their mother would be an experiment that has never been attempted to date. If attempted, the success of the experiment remains very much in doubt.

[57] The father seeks to have the children placed under a supervision order with him and his mother and sister, or alternatively, with his mother and sister. I accept the opinion of Dr. Ross and the Society that the father is not able to parent alone. The plan to place the children with his mother and sister is not a new plan. This would be the third time this plan has been proposed. No one, including the parents or the father's mother or sister, took any steps to request court implementation of this plan after this same plan had been rejected by the Society in 2016. These children have never been in the care of the father's mother and sister. In fact, the father's mother has only seen the children three times since their birth. To place them there now would be an experiment, the outcome of which has all the hallmarks of becoming a failed experiment, given the position of the children's mother against such a placement, and the past kinship assessment reports that recommended against such a placement for cogent reasons, including the grandmother's statement that she was not prepared to put forward a long-term plan of care for the children. The father provided no evidence as to what had changed since the plan was rejected in 2016, and in my view, his plan represented a last minute attempt to cobble together a plan of care that did not include the mother of the children.

[58] The children have the right to a timely decision about their future. The time for experimentation is over. These children are in need of a secure, permanent home where they may reasonably expect to grow to maturity.

[59] If Crown wardship is granted, the Society intends to place these children for adoption together in the same home. On the evidence, I find that the Society's plan of care is to be preferred and is in the children's best interest, as it is a plan that offers the best chance to provide a secure, permanent home for these children.

7: ORDER

[60] Accordingly, the court finds that the least intrusive order consistent with the best interests of these children is an order for Crown wardship.

[61] The only issue left to be decided is whether this order should be with or without access. Having made a Crown wardship order, all prior access orders terminate and the Act provides for a presumption against the making of a further access order. The operative test for access post Crown wardship is set out in subsection 59(2.1) of the Act which reads as follows:

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[62] The onus to rebut the presumption against access is on the person asserting the right to access. In order to be granted access, the claimant must satisfy both prongs of the test. See Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (C.A.).

7:1 Prong Number 1

[63] Is the relationship between the children and the mother and the father beneficial and meaningful to E.G.A.T. and V.R.T. (the children)? (I propose to consider the issue of access as it relates to the children collectively, rather than individually, given the young ages of the children and the fact they have shared the same experience with their parents around access, i.e. neither child has ever lived with, nor enjoyed unsupervised access with, either parent.)

[64] Hundreds of access visits have occurred between the parents and their children. Many aspects of the visits have been recorded in the affidavit material filed and I have considered that evidence. The mother and father speak of how happy the girls are to see them and the fun that they have during the visits. At par. 79 of the affidavit of the mother sworn June 14, 2017, the mother wrote:

79. "My relationship with my children is very loving and joyful. The children greet her with big smiles, reaching for her for hugs and kisses they call her Mom, they are happy and loving when they are together. When the children are hurt or sick they reach for their mother for comfort, support and hugs."

[65] A different perspective is provided by the Society. The Society workers acknowledge that the parents love their children and enjoy their visits, and that the children generally enjoy their time with the parents. However, the affidavit material filed by the Society contains many instances when the parents had to be redirected or cued to respond to the girls relating to safety issue, feeding and diapering issues and use of the cell phone. The access visits remained fully supervised and the supervisors fulfilled a teaching role as well as a supervisory role at all visits.

[66] Pamela Mailloux directly responded to para. 79 of the mother's affidavit reproduced above. In her affidavit sworn September 22, 2017, para 17 and 18 she wrote:

17. "I have observed E. and V. to hit V.T. in the face and bite her when she attempts to hug the girls on occasion. I have observed the children to be reluctant to attend access with their parents. E. also calls the foster mother "mom". On September 8, 2017, V.T. observed E. call the foster mother "mom" and V.T. appeared to be upset and continually corrected E., telling her that she was her foster mother and that she was E.'s mother not the foster mother and she stated to E. "I told you Lizzie that I am your mommy."

18. V.T. is always correcting the girls and telling them that she is their "mom". The girls do call R.T. "daddy". When the girls are not feeling well they cry out for their foster mother and want to go home with their foster mother. V.T. has attempted to console the girls if injured, but when she holds them they struggle and squirm and push V.T. to get down, especially V."

[67] This is probably not an unusual reaction where very young children exercise access to their parents, for short periods of time, in an access room at the Society offices or, as in this case, a church basement, pursuant to a court order. Such access may be sufficient to maintain a parent's bond with the infant/toddler. However, it is hardly surprising that such minimal access in such an artificial environment is not conducive to creating a secure bond between an infant/toddler and a parent. Babies and young children know who their psychological parents are—they are the ones who look after them on a daily basis, who put them to bed, feed them and comfort them when they are sick. I do not need a viva voce hearing to assess the quality of this relationship. Although I am satisfied that the relationship between the parents and the children is meaningful and beneficial to the parents, can the same be said from the perspective of the children?

[68] Justice Quinn, in Children's Aid Society of Niagara Region v. M.J., K.S and S.S., [2004] O.J. No. 2872, is frequently quoted on the meaning of "beneficial and meaningful" in the context of this section. He wrote in paras 45, 46 and 47 as follows:

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

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

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

[69] Justice Corbett, on appeal, in Children's Aid Society of Toronto and J.L., 2017 ONSC 2380, considered part (a) of the 59(2.1) test for access. In that case, the court was considering the issue of access in the context of a nine year old child who had lived with his parents for half of his life and had expressed a consistent wish to remain in contact with his parents, notwithstanding the fact that his parents had serious drug addiction issues and, with respect to his father, violent tendencies.

[70] Justice Corbett quoted the above noted decision of Justice Quinn with approval. He went on to say that a court, when considering whether the relationship between a child and his parent is "meaningful" and "beneficial" to the child, should undertake a two-part analysis. The first question to be answered is whether the relationship between the child and his parent is meaningful to the child, and in answering this question, the court should assess the subjective importance of the relationship to the child. The second question the court must consider is whether the relationship between the child and his parent is beneficial to the child and this requires the court to assess the objective importance of the relationship to the child—simply put, whether continuation of the access relationship would be good for the child.

[71] In this case the children are too young to express their wishes and preferences about access. I accept that they generally attend access voluntarily and enjoy their time with their parents and there are many aspects of the visits that are positive. However, in my opinion, this is not enough to conclude that the access relationship is "meaningful" within the meaning of this section of the Act.

[72] Whether the relationship is beneficial to the children, I must consider this question in the context of the existing relationship and not whether the relationship might become beneficial to the children as they grow older and begin to ask questions about their natural parents.

[73] Given the ages of the children, and the fact that it is the intention of the Society to place these children for adoption in the near future, I am unable to find, on an objective basis, that the relationship between the children and their parents is a beneficial one to the children at this time.

[74] The children's ability to securely bond with their adoptive parents will be of paramount importance in the near future and will determine the success of the adoption. Continuing access to their parents at this time may be confusing as the parents are not in support of adoption and my decision not to return the children will be very disappointing to the parents.

[75] In the circumstances of this case, I do not find that the access is either meaningful or beneficial because it is not a relationship that is significantly advantageous to the children, nor does it provide the children with a "positive advantage." See Children's Aid Society of Hamilton v. W.M., [2008] O.J. No. 4052, and Children's Aid Society of Toronto v. L.D.E. & D.S., 2012 ONCJ 530. Therefore, I find that the parents have not satisfied this first prong of the access test.

7:2 Prong Number 2

[76] Would ordered access impair the child's future opportunities for adoption?

[77] Since the 2011 amendments to the Act, an access order post Crown wardship no longer disqualifies a child from being placed for adoption. Now, children subject to an access order may be placed for adoption, and once placed for adoption, the access order is automatically terminated. However, an access holder will be accorded the opportunity to apply for an openness order under the terms of the Act.

[78] This second prong of the test for adoption was considered by Justice Benotto in Children's Aid Society of the Regional Municipality of Waterloo and C.T. and J.B. and Brigitte Gratl, 2017 ONCA 931 in 44 where she wrote:

44. "…Second, the access must not impair the child's opportunities for adoption. Courts have interpreted the words "will not impair" to require that access not diminish, reduce, jeopardize or interfere with the child's opportunities for adoption: See e.g. Catholic Children's Aid Society of Toronto v. M.M. and J.P, 2012 ONCJ 369, [2012] OJ. No. 2717, at para. 180 and CAS of Haldiman and Norfolk v. RD and SCM, 2011 ONSC 4857, [2011] O.J. No. 4082. The test for access clearly emphasizes the success of the adoption once the necessity of adoption has been established.

[79] In Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, I compiled a list of reasons why courts might reject a claim for access on the second prong of the test. In para 71, the following list is included. The list is clearly not exhaustive:

"1) Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved.

2. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placement might find their access request refused because of their past disruptive behaviour. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child's future opportunities for adoption."

[80] I have considered this second prong of the test for access from the perspective of potential adoptive parents who will no doubt be advised of the history of this case before deciding to commit to a child who is subject to an access order to the natural parents. Potential adoptive parents will be told that the natural parents will have the opportunity of applying for an openness order on their child if such child is placed in their home on an adoption probation basis. They would have to be told that if an openness order were to be made, they would be consulted, but that the terms of such an openness order would not require their consent. As well, they would be told that if and when an openness order were made, they would be required to comply with the terms of such an order without having the Society available to facilitate the contact, (unless the Society were to specifically agree to do so) and no judge would be able to order the Society to perform this function. In such circumstances, I expect that they would be provided with the following information before being asked to commit to the child:

• That the child's parents have been involved in a relationship scarred by domestic violence;

• That the parents are having great difficulty in terminating that relationship, and have told the court that they love one another and intend to renew contact with one another once the no contact order ends. In the circumstances, it would be difficult to make an access order that would only favour one parent to the exclusion of the other if the parents were to reunite;

• That the mother has some untreated emotional problems that have contributed to her unbridled anger against the father;

• That the father had suffered some significant injuries at the hands of the mother;

• That the mother, in a fit of anger, threatened to assault her social worker and her mental health worker in a text message sent to the father;

• That the father has spoken of experiencing "black rage" a condition he describes as a "feeling of being on fire,… and out of control";

• That the mother has claimed that the father has assaulted her and it is unclear whether the father assaulted the mother while subject to a "black rage" as he testified that there were times he had black outs;

• That it was unclear whether the mother is receiving appropriate counselling to deal with her emotional issues;

• That the father is currently not in counselling;

• That the mother is not supportive of adoption;

• That the father says that he would be supportive of an adoption, but it is unclear whether he appreciates how limited his role would be after adoption, and whether he would be able to adjust to such a diminished role;

• That stress has triggered violence between these parties in the past. The potential for future violence/disruptive behaviour by the parents is uncertain.

[81] In the circumstances, I find that potential adoptive parents might think twice before committing to the children if an access order were made in favour of these parents. Accordingly, the parents have not satisfied the onus of establishing that an access order would not impair these children's future opportunities for adoption.

[82] As I find that the parents have not rebutted the presumption against access, the parents' claims for access orders post Crown wardship are dismissed.

[83] I am, however, prepared to make the following order for access as I am satisfied that the relationship between the two children is meaningful and beneficial to them both and an access order between the children would not impair their future opportunities for adoption. In the best of all worlds, these children would be adopted together.

[84] Accordingly, I make the following access order:

(a) E.G.A.T. born February 26, 2015 shall have reasonable access to V.R.T. born February 5, 2016,

(b) V.R.T., born February 5, 2016 shall have reasonable access to E.G.A.T. born February 26, 2015.

Final Order

[85] I understand how disappointed the parents will be with my decision. These decisions are never easy. However, I have made this decision in accordance with my view of what would be in these children's best interest. My sympathies to the parents. My thanks to counsel for their assistance in this matter.

Released: March 29, 2018

Signed: Justice Penny Jones