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: April 9, 2018

Court File No.: Toronto CFO 16 13930 B3

Between:

CHILDREN'S AID SOCIETY OF TORONTO Applicant,

— AND —

K. M. and G.G. Respondents

AND

K.GU. Respondent

Before: Justice E.B. Murray

Reasons for Judgment released on: April 9, 2018

Counsel

Ms. Christine Doucet .................................................... counsel for the applicant society

Mr. James Herbert .......................................................... counsel for the respondent K.M.

Ms. Roxanne Soica ........................................................ counsel for the respondent G.G.

Ms. Sheila MacKinnon................................................. counsel for the respondent K.GU.

Judgment

MURRAY, E. B. J.:

Introduction

[1] K.M. and G.G. are the parents of two daughters, "Lucy"[1], born August 22, 2014, and "Sophie"[2], born September 23, 2015.

[2] On January 20, 2016 there was a crisis created by conflict between K.M. and F.G., G.G.'s mother. The Society became concerned that the children were not safe in K.M.'s care. At a family meeting facilitated by Society worker Kim Begg, it was decided that the children would live temporarily with G.G.'s sister, K.GU., and her husband F.GU. The girls moved to their home on January 22, 2016. They have lived there ever since.

[3] K.M. and G.G. separated on May 24, 2007.

[4] On December 1, 2017 the case management judge Justice Scully made a finding on consent of all parties that the children were in need of protection pursuant to s. 37(2)(b)(i) of the Act.

[5] The issue to be decided now is what disposition is in the children's best interests. The Society asks for an order pursuant to s. 57.1 of the Act placing the children in the custody of K.GU., with access to K.M. and G.G. K.GU. and G.G. support that request. K.M. does not. She asks that the children be returned to her care, with Society supervision, with access to G.G. and to K.GU.

[6] At trial I heard evidence from Society workers Kim Begg, Natalia Sosa, Aiden Haw, Cassandra Bantoc, and Cliff Davis, as well as from Gina DeMarchi, manager of Breaking the Cycle; from K.GU. and F.GU. and from F.G.; from G.G.; and from K.M. and from her grandmother, Mrs. D.M., Sandra Costa, the Family Support Coordinator at Central Neighborhood House, and two students working with Ms. Costa. I received evidence in videos and still photos from two private investigators; the evidence was offered to support allegations that, despite their separation, K.M. and G.G. are still in very much in contact. Also entered into evidence as business records are notes from Society workers from January 27, 2015 to July 30, 2017.

[7] The Society commenced its protection application on January 28, 2016 seeking a finding that the children were in need of protection pursuant to s. 37(2)(b)(i) of the Act. The Society alleged that they were at risk of physical harm because concerns about:

• conflict between K.M. and G.G. and between K.M. and the G. family, conflict to which the children had been exposed;
• K.M.'s mental health and limited cognitive ability;
• failure by the parents to follow through on professional recommendations over the prior year; and
• the parents' use of marijuana.

[8] The Society asked for a 6 month order placing the children with K.GU., with access to the parents at its discretion.

[9] On February 4, 2016 a temporary order was made on an unopposed basis placing the children in K.GU.'s care subject to Society supervision. Access to the parents was at the discretion of the Society, a minimum of 3 times weekly, twice at the Society's offices and once at a location selected by K.GU. in consultation with the parents and supervised by K.GU. or Mrs. D.M. or some other person approved by the Society.

[10] The matter was adjourned to April 1, 2016, with time set aside to argue a temporary care and control motion. That motion was never brought.

[11] On May 19, 2016, the Society increased mid-week access to 3 hours per visit, and weekend access on Sundays was increased to 2 hours. Visits continued to be supervised. The Society referred the parents to the Therapeutic Access Program (TAP).

[12] After weeks of delay caused by the parents' failure to attend intake appointments, TAP began on August 10, 2016. The parents left the program after three months without completing the program.

[13] On May 24, 2017 G.G. and K.M. separated. K.M. left the G. family home, and stayed with Mrs. D.M. On July 1, 2017 K.M. moved in to the 1 bedroom apartment she and G.G. had secured on Swift Drive, in the same building in which Mrs. D.M. lived.

[14] After separation, G.G.'s access to the children was no longer supervised by the Society, but by F.G. or K.GU.

[15] On July 17, 2017 K.GU. was made a party.

[16] In late August 2017 the Society used its discretion to expand access to K.M. significantly—the children began seeing K.M. twice a week overnight, and on Saturdays from 9 a.m. to 1 p.m. K.GU. found that the children did not tolerate this change well, and brought a motion seeking to restrict Society's discretion.

[17] On November 17, 2017 Justice Scully granted an adjournment of the motion at K.M.'s request, providing that her access on the adjournment be restricted to the parameters suggested by K.GU.: Wednesdays and Saturdays from 9 a.m. to 5 p.m., to be semi-supervised by Mrs. D.M.

[18] On December 1, 2017 Justice Scully made a finding that the children were in need of protection pursuant to s. 37(2)(b)(i) of the Act, based on an Agreed Statement of Facts. The protection concerns identified were:

• K.M.'s "mental health concerns", including anger management, for which she was seeking treatment;
• Ongoing conflict between K.M. and G.G. and between K.M. and the G. family, to which the children had been exposed;
• The parents' failure to follow through with directions and recommendations from the Family Service Worker and the Infant Nurse specialist.
• The parents past use of marijuana, which "contributed to their parenting capacity and their capacity to deal with conflict/issues in their lives."

[19] The parties agreed that the children were doing well in K.GU.'s care.

[20] After argument of K.GU.'s motion on December 7, 2017, access to K.M. was ordered one overnight a week (Tuesday at 9 a.m. to Wednesday at 5 p.m.) and Saturday from 9 a.m. to 1 p.m. Supervision was not required. This access schedule continues.

[21] The Society completed its assessment of K.M.'s plan in January 2018, and concluded that it was in the children's best interest that they remain in K.GU.'s care. The Society amended its application to request a 57.1 order in K.GU.'s favour on January 18, 2018.

Positions of the Parties

The Society

[22] The Society says that K.M. has largely failed to address the protection concerns that have been present since the beginning of this application, concerns acknowledged in the Agreed Statement of Facts.

[23] The Society acknowledges that K.M. has shown some insight into her mental health challenges and has made limited progress in dealing with the children. However, serious protection concerns remain. K.M. has failed to follow through with any program designed to assist her. There is a continued concern about potential conflict with G.G.; K.M. has regularly had contact with him in contravention of terms of her recognizance and has concealed this contact from the Society.

[24] The Society is happy with the care that K.GU. has provided for the children, and sees continued placement with her as their best route to a healthy, stable upbringing.

[25] The Society asks for an order placing the children with K.GU., and granting her the authority to obtain passports and government documentation for the children and to travel outside Ontario with the children without the prior consent of the parents. With respect to access, the Society requests:

• an order of access to K.M. for a minimum of 5 hours weekly, the schedule and any additional access to be as agreed upon by K.M. and K.GU.; and
• an order of access to G.G. as agreed upon by him and K.GU., the level of supervision to be at her discretion.

K.M.

[26] K.M. says that it was conflict with the G. family and particularly with F.G. that is at the root of the problems that concern the Society. She says that F.G. and her husband belittled her, that F.G. tried to take control of the children without her consent, and that F.G. ultimately assaulted her. She says that G.G. backed up his mother and failed to support her, and that G.G. himself was sometimes abusive towards her. K.M. submits that now she has an independent residence and that it is in the children's best interests to return to her care. K.M. disputes the allegations that her use of marijuana is a protection risk, that she has mental health difficulties that impair her ability to parent, or that she is unable to meet the children's needs on a full time basis.

[27] K.M. asks for an order that he children be placed in her care, subject to the Society supervision. She says that she will attend any programming recommended by the Society. She acknowledges that the children have developed a "significant bond" with K.GU., and suggests that they have access to K.GU. on alternate weekends and one evening a week, overnight. She asks that G.G. and other members of the G. family see the children when they are with K.GU.

G.G.

[28] G.G. said in his trial affidavit that K.M. is mentally and emotionally unstable, that she has physically assaulted him, and that she had repeatedly engaged in violent behaviour in front of the children. He says that she becomes frustrated when required to care for the children for any period longer than a short visit. G.G. says that the children are "thriving" in K.GU.'s care.

[29] G.G. supports the Society's request that the children be placed in K.GU.'s custody under a 57.1 order, and G.G. says that K.M.'s access should be limited to 3 hours at a time and should be "semi-supervised". He asks for unsupervised access for himself to the children a minimum of three hours per week, and more as agreed with K.GU.

K.GU.

[30] K.GU. says that she and her husband F.GU. have been caring for the children for over two years, and that the children are doing well in their care and are securely bonded to them. She agrees with all the protection concerns alleged by the Society and is emphatic in arguing that K.M. has done little or nothing to deal with those concerns.

[31] K.GU. says that K.M.'s access should be limited to 6 hours on a weekend day every two weeks until she has made some progress in dealing with the protection concerns. K.GU. is willing to provide transportation for the children to and from K.M.'s home. K.GU. would be open to access every weekend if K.M. takes some responsibility for transportation.

[32] Because of K.M.'s history of emotional disregulation and explosive behaviour, K.GU. is worried about her going to the children's schools or daycare, or coming to K.GU.'s home. She asks that K.M. not be permitted to do this.

[33] K.GU. says that she and G.G. can work out appropriate access for him. She says, however, that his access should be supervised by herself or F.GU. while he continues to use marijuana.

Statutory Framework

Options on Disposition

[34] Section 57 of the Act provides that if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, that the court shall make one of the following orders, or an order pursuant to section 57.1, that is in the child's best interests:

Supervision order

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

Society wardship

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

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71 (1), and be placed in the care of the Society.

Consecutive orders of Society wardship and supervision

4. That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[35] All parties agree that a further order is required for the future protection of the children.

[36] S. 57.1 provides as follows:

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act

Permanency Planning

[37] Section 70 of the Act constitutes statutory recognition that permanency planning is of paramount importance for children, particularly young children. It limits the time that a child under 6 years of age may be in temporary Society care[3] to 12 months. Lucy and Sophie have not been in Society care, but they have been living in a temporary situation for over 26 months. The philosophy behind the Act dictates that the court should aim to provide not just children in Society care but all children dealt with under the Act with permanent homes in a timely manner.

Other Considerations on Disposition

[38] Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and wellbeing of children. A court is required before making a disposition to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent's care.[4]

[39] Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child's best interests and whether it is possible to place the child with a relative or member of the child's community or extended family.[5]

Best Interests

[40] The decision as to disposition must be based on what is in the child's best interest. Section 37(3) of the Act provides that in determining best interests the Court shall take into consideration the following circumstances that are considered to be relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child's physical, mental and emotional level of development.
3. The child's cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance.

Background Facts

K.M.: History

[41] K.M. is now 22 years old. She and G.G. met when she was 17. She began living with him in his parents' basement apartment when she was 18.

K.M. was raised for the first two years of her life by her biological mother. She has no memory of her mother, and understands that as a result of Society intervention she was transferred into the care of her maternal grandparents, D.M. and G.M., when she was two years old because of her mother's inability to care for her.

[42] K.M. has suffered from anxiety since she was a small child. In her evidence at trial she said that this occasionally led to panic attacks in which her heart raced and she stopped functioning well. K.M. testified that when she was 14 years old she was placed in a residential children's mental health centre, Youthdale, because she had been running away from home.

[43] After 9 months at Youthdale, K.M. returned to live with her grandparents. She continued to run occasionally, however; she described this period as her "party years".

[44] In 2012 K.M. was charged with stealing her grandfather's car. Mrs. D.M. was her surety. Her bail included a curfew. When K.M. breached the curfew in November 2012, Mrs. D.M. contacted police. K.M. was detained overnight, and when she was released G.G. was waiting for her. K.M. had met G.G. a few months previously. She moved into the G. home. She continued to attend high school until she became pregnant with Lucy in 2013.

G.G. and the G. Family: History

[45] G.G. was 35 years of age when he and K.M. met. He had completed high school and attended community college for a real estate sales program, which he did not complete. By 2012 he had worked at a number of jobs – at an air conditioning company, the LCBO, a bank, and running a cleaning business. In 2012 he was working as a security guard.

[46] Except for a brief period of time, G.G. has always lived with his parents, F.G. and M.G., in their home at 18 P. Street, Toronto. F.G. and M.G. immigrated to Canada in 1964 when they were newly married teenagers. F.G. worked in the tracing department of the Bank of Montreal for many years, retiring just about the time that K.M. moved into the G. home. F.G. is now 70 years old. M.G. is 72 years old and still works 3 days a week.

[47] F.G. was concerned in 2012 when G.G. came home with K.M. and announced that she was moving in. She had not met K.M. before. The difference in their ages troubled her. However, when G.G. told her that K.M. had nowhere else to go, she acquiesced.

[48] F.G. and M.G. have two other children. V., who is now 50 years old, is a mortgage broker. She is married and has no children. V. was living in a bedroom in the basement of the P. home when K.M. moved in. She moved out in 2013 when she married. She and K.M. got along well.

[49] K.GU. is 46 years of age. K.GU. and her husband F.GU. were married in 1995. They have one daughter, S.GU., who is 20 years of age and lives with them in their home in Concord, Ontario. K.GU. is a senior manager of a dental corporation. She has flexible hours of work. F.GU. works at an auto repair shop. S.GU. is a university student.

Conflict After K.M.'s Pregnancy with Lucy

[50] After they began cohabiting, G.G. and K.M. decided that they wanted to have a child. K.M. became pregnant with Lucy in late 2013.

[51] In May 2014 K.M. and G.G. had an argument. K.M. left the house, and G.G. went after her in the car. He ran a stop sign and was stopped by police. Despite their warning to stay at the scene, he left. He testified that he was worried about K.M., and told police that "my wife's life" was more important to him than staying. G.G. was arrested later that day. K.M. told police that he had assaulted her. G.G. was charged with assault and with a traffic offence. He eventually took the Partner Assault Response program (PARS) program. As a result of the charges, G.G. lost his licence as a security guard and his job.

[52] Lucy was born on August 22, 2014.

[53] G.G. has been in receipt of Ontario Works (OW) for the past three years. After Lucy's birth, K.M. also began receiving OW support of approximately $600 monthly.

[54] G.G. and K.M. agree that following Lucy's birth they argued frequently, often about money. F.G. and M.G. bought many items for K.M. and G.G. and the children. F.G. also often gave G.G. money. K.M. testified that although she appreciated the financial support, she was frustrated that G.G. remained unemployed and was not taking financial responsibility for her and Lucy.

[55] In the fall of 2014, K.M. and G.G. and Lucy went to visit K.M.'s father P. M. and his wife A.M. at their home in St. Catharine's. They had been arguing frequently before this trip. After 2-3 days in St. Catherine's, G.G. left, at K.M.'s request, for a trial separation. He continued to visit them. On one visit, P.M. called police to have him removed.

[56] In late December 2014 K.M. and A.M. had an argument. K.M. called G.G. and asked him to come and get her right away. He did.

[57] He and K.M. and Lucy returned to 18 P. to live. A.M. called the Society and reported her concerns that K.M. used marijuana and was partying and sleeping in. A.M. said that she had to wake K.M. up to get her to attend to Lucy.

Early Society Intervention

[58] In January 2015 Society worker Grace Chanicka attended at the P. home and met with G.G. and K.M. An infant nurse specialist, Krista Slater, also visited. G.G. and K.M. agreed to work voluntarily with the Society. A worker attended approximately once a month.

[59] Ms. Chanicka and Ms. Slater noted that the parents seemed well-bonded with Lucy, and were reading her cues. They also had concerns. Despite parental denial of marijuana use, they noted the smell of marijuana, sometimes partially masked by heavy air freshener, when they came to the apartment. When K.M. became pregnant with Sophie, her doctor expressed concern that she was still smoking marijuana, and warned that use of marijuana could cause low birth weight.

[60] The workers emphasized to G.G. and K.M. that an infant is totally dependent on a parent to meet all her needs and that it was a risky to try to care for an infant while high.

[61] Ms. Sosa assumed carriage of the file in August 2015; she went on sick leave at the end of October, 2015, and the file was transferred to Kim Begg. Ms. Sosa summarized the Society's concerns when she transferred the file.

• K.M.'s anxiety, her use of marijuana to manage the anxiety. K.M. was referred to a psychiatrist.
• Marijuana use by the parents. They were counseled not to use marijuana while in a caregiving role, and they agreed not to do this.
• Domestic conflict between G.G. and K.M., and on one occasion, with M.G.;
• Parenting skills. For example, Ms. Sosa observed that the parents kept Lucy in a swing for excessive periods, and allowed her to sleep in the swing. She advised that this was unsafe. The parents agreed to follow this advice.

Credibility and Reliability

[62] Many of the facts in this case are not in dispute. Some are, to wit:

• Who was Lucy's primary caregiver before the children went into K.G.'s care;
• Whether K.M. assaulted F.G. on January 20, 2016, or whether F.G. assaulted K.M.;
• Whether K.M. assaulted G.G. on May 17, 2017;
• The extent of either parent's marijuana use, and any effect on parenting ability of such use;
• The nature and extent of K.M.'s and G.G.'s current relationship.

Society Witnesses

[63] The Society workers and Ms. DeMarchi from Breaking the Cycle were credible and reliable witnesses. None have a personal interest in the outcome of this litigation. All of them kept detailed notes, notes they are required to by their employment to maintain, notes which assisted them in the preparation of their litigation affidavits and in cross-examination. All of them demonstrated a consciousness of an obligation to be fair to the parents, and not to reach conclusions that in their opinion were not supported by the evidence. For example, Ms. Begg suggested that she be replaced as family service worker because she recognized that the parents' antagonism towards her might hamper them in doing the work necessary to have the children returned.

K.GU. and F.GU.

[64] Most of K.GU.'s evidence did not deal with issues that are in dispute. She was careful to be accurate in the evidence that she did give. For example, when questioned about the allegation that M.G. had hit G.G. during an argument prior to Lucy's birth, K.GU. acknowledged that her father might have been belligerent when drinking.

[65] K.GU.'s evidence was internally consistent. Cross-examination did not expose any significant inconsistencies in K.GU.'s evidence.

[66] F.GU.'s evidence dealt with his role in the care of the children and his observations of their experience in their home. He was clear, and unshaken in cross-examination.

F.G.

[67] I have no evidence that F.G. would intentionally misrepresent the facts as she saw them. However, given F.G.'s marked antipathy to K.M. and her uncritical sympathy for G.G., it appears to me that she might have difficulty accurately perceiving and remembering K.M.'s behaviour in some circumstances. F.G. had difficulty saying anything positive about K.M. She testified that she blamed K.M. for ruining G.G., destroying his self-esteem. Despite clear evidence that G.G. had lied about his contact with K.M., F.G. testified that she did not believe that G.G. could lie.

[68] In my view, F.G. tended to exaggerate K.M.'s deficiencies as a mother and partner. However, for reasons set out further below, I do not find that F.G. misrepresented K.M.'s behaviour as regards the altercation on January 20, 2016 or the damage done to F.G.'s home.

G.G.

[69] G.G. was not credible or reliable in a number of respects.

1. G.G. gave viva voce evidence (in chief and on cross-examination) that was at odds with his affidavit evidence for trial.

   a. In his trial affidavit G.G. said that after Lucy's birth K.M. would at times of stress "flip out and yell", take off with Lucy in anger"; throw things at him and yell; and lie down and "just yell". In his examination in chief, G.G. testified that he was perhaps being "unfair" in these comments, that they were new parents, and that he could not think of any examples of these behaviours. G.G. then went on to admit that K.M. lost her temper "a little" and threw garbage at him.

   b. In his trial affidavit G.G. testified that after Lucy's birth there was significant conflict between him and K.M., fueled by K.M.'s unreasonable and demanding behaviour. In his viva voce evidence, G.G. said that he did not have much conflict with K.M., and that any conflict was "due to circumstances "("the CAS taking our children"). Then later G.G. testified as to a number of serious arguments between him and K.M., including an assault on him in May 2017 in which his head was bloodied.

   c. In addressing the issue of the cause of their many missed visits with the children, G.G. said in his trial affidavit that K.M. was often too sick or upset to attend, and that she would "fall to pieces" and be unable to leave the home when it came time for a visits. In cross-examination, G.G. said that he 'must have been confused" when he said this. He then went on to say that K.M. definitely "wasn't happy" to go to supervised visits, and offered the opinion that her access to the children should be supervised.

2. G.G. has consistently lied about the issue of contact between him and K.M. since the incident on May 24, 2017 in which she was charged. K.M.'s bail provided that she have no contact, direct or indirect, with G.G. except incidental contact at required court appearances.

   Phone records show that G.G. and K.M. were contact within 3 days of bail being granted. It appears that contact has continued regularly and intensely to this date, with both G.G. and K.M. initiating contacts. Phone records for August 1- October 31, 2017 show over 5,000 contacts.

   K.M.'s bail was varied on October 24, 2017, at G.G.'s request, to allow contact with his consent; G.G. gave his consent.

   After the bail variation, the Society remained concerned about contact between G.G. and K.M. because of the history of conflict between them and their failure to pursue counselling. Despite K.M.'s and G.G.'s initial representations to the Society that they did not have contact after the variation, contact continued unabated.

   Surveillance videos and photos for just 3 random days (two days before and one day after the bail variation) show in person contact, with G.G. going to K.M.'s residence.

   G.G. has continued to misrepresent the frequency and duration of contact between himself and K.M.

3. G.G. denies obvious facts that are inconvenient for him. For example, when questioned about the phone records referred to above, his response was "Are you sure you have the right date?" He went on to grudgingly admit some contact, and deny or say he had no memory of many others.

[70] I attribute the inconsistencies between G.G.'s evidence in his trial affidavit and his viva voce evidence in court to a reluctance to criticize K.M. to her face. This may be because G.G. entertains thoughts of a reconciliation. When asked about how he saw his and K.M.'s relationship developing in the future, he said that their future plans were "unknown". He and K.M. appeared friendly throughout the trial, sometimes sitting together in court.

[71] I treat G.G.'s evidence with caution.

K.M.

[72] K.M. was a far better witness than G.G. She was well-organized and articulate. She listened carefully to the questions, and answered those questions. In many respects, she appeared careful not to exaggerate. For example, she acknowledged that F.G. had been some help to her when she was pregnant with Sophie.

[73] However, I found that K.M. was not credible and not reliable when giving evidence on some important issues. I say this for the following reasons.

1. K.M. participated in the lies about her contact with G.G.—both before and after the change in her bail which allowed contact—in the same manner as G.G. did. I treat her dishonesty on this point more seriously, as it is she and not G.G. who was bound by the "no contact" order in her bail.

   Just like G.G., when K.M. was forced to admit contact because of phone records or surveillance reports, she admitted only what she had to, only to be later found again to be misrepresenting the extent of communication with G.G. when further evidence of contact surfaced.

2. K.M. contradicted Society witnesses on simple matters of fact, matters on which I accept their evidence.

   • For example, K.M. hotly disputed that Shannon Deacon of TAP had witnessed four visits despite Ms. Deacon's notes and her evidence that that was the case[6].
   • Another example—K.M. claimed to have seen Gina DeMarchi for counselling for many weeks, weeks during which Ms. DeMarchi's records showed no contact with her. K.M. stubbornly maintained her claim, even after the disparity between her evidence and Ms. Demarchi's was put to her.
   • Another example-- K.M. routinely denied making comments to Society workers, comments which were documented in their notes. For example, K.M. denied telling Kim Begg that while living with G.G. she had been so anxious that she often could not leave the house without him, and that she avoided using public transit.

3. Although K.M.'s evidence was generally internally consistent, this was not the case in her evidence about her anxiety and use of marijuana. At first, K.M. said that she used marijuana only to allay anxiety when it reached the point that she had a panic attack. Later K.M. testified that she has had very few panic attacks—one immediately after the fight with F.G. in January 2016, and nothing since. Later K.M. testified that she still used marijuana for help in sleeping or eating, and perhaps dealing with anxiety at a level below that of the panic attack.

[74] I have difficulty accepting K.M.'s evidence about disputed issues if that evidence is not supported by that of witnesses whom I do find credible.

Sandra Costa

[75] Ms. Costa's role with K.M. was to assist her in completing the work necessary to have the children returned. She tried to help K.M. and G.G. obtain housing and made referrals for programs dealing with mental health, parenting, and substance abuse. Ms. Costa was trusted by the Society to supervise some visits either at Mrs. D.M.'s house when she was unavailable, or later at K.M.'s apartment.

[76] Ms. Costa clearly likes and wants to help K.M. She acted as K.M.'s advocate in meetings with the Society. I regret to say that Ms. Costa was not a reliable witness. In some respects, her credibility was in question.

• Although in her affidavit Ms. Costa testified that she had supervised "most of the access visits" and that her notes were attached, this was not the case. In cross-examination it was established that Ms. Costa did not supervise most of the visits, and that most of the notes attached to her affidavit were notes taken by student interns of visits which Ms. Costa did not attend. Ms. Costa admitted that she had lost most of her notes, and only had notes for five visits which she supervised.
• Although Ms. Costa testified that she was required in her employment to maintain notes of her interactions with clients, she acknowledged that she did not do so in this case. If Ms. Costa observed behaviour by K.M. outside the children's presence, she did not note the behavior, even if it related to protection concerns identified by the Society. For example, Ms. Costa observed K.M. and G.G. together on October 3, 2017. Ms. Costa admitted that she knew that this contact violated K.M.'s bail and that this contact was a protection concern for the Society. Despite this, Ms. Costa did not make a note or report this contact to the Society.
• Ms. Costa also instructed her placement students that they were not to make notes of any behaviours observed when the children were not physically present (such as this sighting).

[77] I am concerned that Ms. Costa's notes offer inadequate support for her memory of what she observed with K.M. and the children, and that her partiality for K.M. may affect the accuracy of her recollection. I place little weight on Ms. Costa's evidence of K.M.'s behavior with the children.

[78] Two Ryerson students supervised by Ms. Costa testified that they did not agree with the observations of K.M.'s behaviour on visits made by Society social workers. I place little weight on this evidence because these students do not have the training and experience of Society workers in assessing parenting behaviour as it affects child development and risk. I also note that the students' role when attending visits was not just to observe, but to actively assist K.M. in child management.

Mrs. D.M.

[79] Mrs. D.M. was a careful witness. She did not attempt to give evidence about incidents for which she was not present. When she did not remember, she said so. She was clear in saying that she did not approve of some of K.M.'s behaviour, such as her use of marijuana or her relationship with G.G. She acknowledged that there are difficulties in the expanded access now in place, difficulties with getting the girls to eat dinner or take a nap, although she expects those difficulties will be resolved when the children are with K.M. full time.

[80] There are, however, two difficulties with Mrs. D.M.'s evidence.

• First, Mrs. D.M. was evasive in dealing with the evidence indicating that K.M. has and continues to have difficulties with maintaining supportive contact with her family—evidence about past terminations of contact between herself and K.M. or K.M. and her father and A.M.
• Second, Mrs. D.M.'s evidence with respect to K.M.'s progress in her own emotional regulation and self-control relies on what K.M. tells her about, for example, contact with G.G. or use of marijuana.

The Facts: Care of Lucy Prior to January 20, 2016

[81] I speak here primarily about Lucy, as Sophie was only 4 months old and was clearly cared for primarily by K.M. at the time the children were moved to K.G.'s care.

[82] K.M.'s evidence is that she was Lucy's primary caregiver, doing everything—feeding, bathing, changing, and going to medical appointments. K.M. says that G.G. helped a little. She acknowledges some help from F.G. with Lucy in the last couple of months before Sophie's birth, when she had to spend a lot of time in bed. K.M. says that F.G. would compete with her, going in to the basement before she was awake, and taking Lucy upstairs without K.M.'s consent. K.M. complained about this to G.G., and he talked to his mother; the behavior lessened, but did not end.

[83] F.G.'s evidence is that she was Lucy's primary caregiver. She portrays an environment in which both K.M. and G.G. slept in late. F.G. would hear Lucy crying, and retrieve her from the basement to feed and change her. When K.M. and G.G. arose, according to F.G., they often went out or sat in the garage and smoked cigarettes and marijuana, leaving Lucy's care to her. Once they even went out without telling F.G., leaving Lucy alone in the basement. F.G. retrieved the child and told them never to do this again.

[84] G.G.'s evidence is that he and K.M. cared for Lucy, with assistance from F.G. He is adamant that they were not "bad parents". He testified that F.G. regularly (about 2-3 times a week) came to get Lucy when the child woke, before they awoke, and care for her. G.G. acknowledges that K.M. complained about this behaviour; subsequently he took Lucy upstairs to his mother in the mornings, before K.M. was awake. F.G. would then feed her.

[85] Despite K.M.'s claim that she did most of Lucy's feeding, she acknowledged that she and G.G. did not have a functioning kitchen in the basement, and that meals for everyone were prepared by F.G. in the kitchen upstairs. She and G.G. also testified that they would sometimes hang out in the garage during the day, monitoring Lucy by propping up an iphone in front of the child's swing or crib.

[86] I do not make a finding as to whether one individual was Lucy's primary caregiver. I find that F.G. provided meals for Lucy regularly provided other care for the child when the parents slept in in the mornings or were out of the house. I find that K.M., assisted by G.G., was also involved in Lucy's care, and provided most of the care required in certain respects, such as to attend to the child when she awoke at night or to take the child to medical appointments.

The Facts: Tension at 18 P. Prior to January 20, 2016

[87] I find that there was significant tension in the G. home as between K.M. and F.G. and Mike, and between G.G. and K.M. G.G. and K.M. were arguing frequently about G.G.'s unemployment and their lack of funds and about her desire to move from the G. home.

[88] There is evidence that arguments between K.M. and G.G. sometimes led to violence. For example, K.GU. testified as to one incident before Lucy's birth in which she received a panicked call from G.G., saying that K.M. was hitting him as he drove on the highway.

[89] There was conflict between G.G. and K.M. and Mike because G.G. and K.M. made noise in the garage late at night. On one of those occasions, police were called.

[90] The tension was defused when K.M. went to St. Catharine's to live with P.M. and A.M. in the fall of 2015. In late December 2015 she and Lucy returned, and the temperature in the house rose again.

[91] On January 19, 2016, Kim Begg made her first visit to K.M. and G.G. at the P. home. Ms. Begg found that the children looked healthy and well-cared for.

The Facts: January 20-22, 2016

The Attack on January 20th

[92] There is no doubt that there was a physical altercation between K.M. and F.G. on January 20, 2016.

[93] It began with an argument between G.G. and K.M. that morning. K.M.'s baby bonus cheque had just arrived. G.G. and K.M. were going out, leaving Lucy and Sophie with F.G. G.G. asked K.M. for money to buy cigarettes; she refused. G.G. said he would get the money from his mother. He went into the house and returned with $20.

[94] This upset K.M. She angrily jumped out of the car and returned to the house. G.G. went to buy cigarettes. When he got back 10 minutes later, he found his mother and K.M. on the floor, screaming. He got K.M. off his mother, and K.M. went downstairs. Lucy stayed upstairs with F.G. and G.G.

[95] What happened: according to F.G.: K.M. entered the house, fuming, yelling at her because she had given G.G. money. K.M. grabbed her glasses, hit her, and threw her on the floor. K.M. bent over to hit her again, and F.G. grabbed her. They were rolling around the floor when G.G. came in. K.M. scratched her on the arms and neck.

[96] What happened: according to K.M. F.G. threw the first punch; they fell to the floor and rolled around, hitting each other, until G.G. came. K.M. sustained a black eye from one of F.G.'s punches.

[97] I find that K.M. attacked F.G. in anger. I say so for the following reasons.

• K.M. admitted in her intake interview with Ms. DeMarchi that the incident on January 20, 2016 started when she was "aggressive" to F.G.
• K.M. admits that she was very angry – with G.G. and with F.G. There is no evidence that F.G. was angry with K.M.
• Both G.G. and Kim Begg, who attended at the home within a few hours of the fight, noted the scratch marks on F.G. Neither noted a black eye or any injury on K.M. K.GU. and Mrs. D.M. were there within hours that day, and over the next two days. Neither of them saw a black eye on K.M. K.GU. also noted scratches on F.G.

Chaos: January 20-22nd

[98] The remainder of the day January 20th was chaotic; the chaos continued January 21st and 22nd. Everyone now acknowledges that K.M. was not able to care for the children during that period.

[99] Ms. Begg came to the home that afternoon, after receiving a call from K.M. K.M. had what she describes as another "meltdown" soon after Ms. Begg arrived. K.M. screamed, swore, and threw the children's belongings and some furniture into the hallway. K.M. threatened self-harm, and declared that she did "not want the kids". Ms. Begg called police. Lucy was exposed to this behavior.

[100] K.M. displayed out-of-control behavior of this type on and off over the next two days. She failed to recognize that Lucy needed medical attention for severe diarrhea; F.G. took the child to a doctor over K.M.'s protests. Ms. Begg was concerned that G.G. did not recognize that K.M. could not safely care for the children. G.G. refused Ms. Begg's suggestions that he and F.G. care for the children, and that K.M. go to Mrs. D.M.'s home. There were periods over these three days on which K.M. or K.M. and G.G. simply left the scene, once to spend the night in a hotel, another time to go shopping at Yorkdale. K.M. and G.G. left care of the children to F.G. during this period.

[101] Ms. Begg convened family meetings on January 20th and on January 22nd, to help the family plan for temporary care of the children.

• On January 20th the meeting included K.M., G.G., F.G., K.GU., and Mrs. D.M. K.M. was again very upset, swearing and calling the G. family vulgar names. Mrs. D.M. tried to calm K.M., without success. She said that she had seen K.M. like this before. Mrs. D.M. suggested that K.M. come with her that evening.

  K.M. left the house for a smoke. G.G. followed her, and returned, saying that they were going out for dinner. G.G. confirmed with Ms. Begg that he intended to return that evening to help F.G. care for the children. He did not do so.

• On January 22nd, after F.G. was able to take Lucy to the doctor, Ms. Begg went to the home, intending to meet again with G.G. and K.M. They were at Yorkdale shopping.

• Ms. Begg called them, asking that they return to make a plan for the children's care. Ms. Begg suggested that they go temporarily to K.GU.'s. K.M. and G.G. agreed, and left the home.

[102] The children were taken that evening to K.GU.'s home by a worker and F.G.

The Facts: Events After January 2016

[103] After the children went into K.GU.'s care, K.M. and G.G. were given referrals to Huma Quereshi, a counsellor with the Canadian Mental Health Association (CMHA) who worked in the Healthy Families program, to Sandra Costa of Central Neighborhood House, and to the John Howard Society (for G.G.).

[104] G.G. and K.M. made little progress in addressing the Society's protection concerns in the year and a half following the crisis of January 2016.

• K.M. told Ms. Sosa that she continued to have panic attacks. K.M. and G.G. told the worker that they smoked marijuana regularly when the children were not with them, but did not do so immediately before visits. Although K.M. told the Society she wanted to get help for her anxiety and to manage marijuana use, she did not follow through. (More information about this is set out below.)
• Conflict between G.G. and K.M. continued. Ms. Sosa's evidence is that the arguments took place in meetings with her, during visits, and even outside the courtroom at court appearances. K.M. and G.G. went to walk-in couples counselling once or twice, and stopped. K.M. became pregnant. She worried about the pregnancy, and ultimately decided to have an abortion. She and G.G. argued about this.
• Ms. Costa steered G.G. and K.M. to possibilities for an apartment of their own; she reported to the Society that they were slow to follow up on leads. K.M. decided that she wanted to move to St. Catherine's. G.G. did not agree.

[105] The Society convened several family group conferences involving the parents and some family members during this period in an effort to plan for the children's return home. At K.M.'s request, in February 2017 an assessment of P.M. and A.M. as possible caregivers was begun. They withdrew their application in March 2017.

[106] On May 24, 2017 K.M. and G.G. argued, and she was charged with assaulting G.G. with a weapon and with mischief. The genesis of this argument occurred on May 23rd when they disagreed about what station the car radio should be tuned to. K.M. scratched G.G. during the dispute. On the 24th, G.G. and K.M. were in the car, going to get a coffee. G.G. declined to go to the visit scheduled for later, afraid that the worker would see his arm and ask questions. K.M. was angry, and hit him on the head with an object, drawing blood. She jumped out of the car, slamming the door repeatedly, and breaking it.

[107] K.M.'s bail conditions stipulated no contact with G.G.; she left 18 P. and went to live with Mrs. D.M.

[108] G.G. amended his Answer to support the children staying with K.GU. He has tried to avoid communication with Society workers since he and K.M. separated.

[109] By July 1, 2017 K.M. moved into her own 1 bedroom apartment in the same building in which Mrs. D.M. lived.

[110] In January 2018 K.M. started a parenting program, Nobody's Perfect. She also started the PARS program, with the expectation that if she successfully completed the program that charges against her will be withdrawn, or at least reduced.

Visits

[111] Since the protection application was commenced in January 2016, visits have always been at the Society's discretion. Neither K.M. nor G.G. ever moved to change this.

[112] For the first two weeks that the children were with K.GU., there were no visits. K.M. refused to see the children. She said at trial that it would have been too painful to see them.

[113] Visits started in early February 2016. Two 2-hour visits weekly were scheduled at Society offices, as well as weekend visits of 1-2 hours supervised by Mrs. D.M. at her home.

[114] K.M. and G.G. missed numerous visits at Society offices, and were late for many others. The reasons given were multiple.

• At times K.M. said she felt unwell, physically or emotionally.
• K.M. and G.G. were in an accident, and had to attend court.
• G.G. had car trouble, and they would not use TTC. K.M. told Ms. Sosa that she did not like TTC, because "odd people" used it. G.G. said that it made K.M. anxious to be on public transit.

[115] On one occasion the children were late in arriving for a visit. K.M. became angry, and left without waiting to see them.

[116] K.M. asked that visits be moved to the afternoon, as it was too hard for them to get to Society offices in the morning. This schedule did not work as well for the children as a morning visit, but in June 2016 the Society agreed to make the change.

[117] When K.M. and G.G. did attend, there were positive interactions with the children noted, although the visits were interrupted by their expressions of anger with the Society or with K.GU. There were times noted when K.M. had difficulty engaging with the children. K.M. agreed that she and G.G. needed help handling Lucy's tantrums.

[118] In August 2016 G.G. and K.M. started the Therapeutic Access Program (TAP). TAP requires that parents attend two 4-hour visits weekly during which they work intensively with program staff. The goals of the TAP program included stress management, safe communication, emotional regulation, and awareness of the children's' experiences.

[119] K.M. and G.G. did not attend TAP regularly, missing 10 of 26 visits. They left the program without completion in early December 2016. Ms. Deacon, TAP coordinator, saw some improvement in their abilities to perform instrumental tasks and in their communication with each other. They still had difficulty in dealing with the children when they were in distress—tired, cranky, or hungry. Ms. Deacon said:

"At the time the assessment was completed, I remained worried that the parents struggled to cope with stress and show the children they were available to attend to their distress. Their lifestyle, Ms. M.'s anxiety, and their ability to solve daily stressors and take responsibility for the children also continued to put the girls at risk. They were unable to make progress on the worries identified by the Society and could not implement interventions provided."

[120] Ms. Deacon gave numerous examples of her concerns.

[121] A visit which took place during the parent's attendance at TAP illustrate how K.M.'s temper interfered with her ability to meet the children's needs. K.M. had planned a 3-day visit with the children in St. Catherine's. The Society initially acquiesced, but later said only a 2-day visit would be possible. In a fit of pique, K.M. said that if she could not have the 3-day visit, she would see them for only 2 hours. She stuck to that position.

[122] K.M. and G.G. told Ms. Deacon that they did not needed any help in their parenting, and saw no need for any counselling. They agreed that TAP be terminated.

[123] After TAP, visits of 4 hours, twice weekly, continued to be fully supervised by the Society. Aiden Haw assumed carriage of the file in January 2017. K.M. told Ms. Haw that she had started counselling at Breaking the Cycle. Ms. Haw observed that the parents improved in their ability to redirect the children if they began to act out. Their attendance at visits improved. She made visits semi-supervised, allowing the parents to leave the office with the children for part of the visit.

[124] In May 2017, after K.M.'s bail conditions prevented contact with G.G., the parents were supposed to exercise access separately. When K.M. got her own apartment in July 2017, her weekend visit was expanded to 4 hours, still supervised by Mrs. D.M. or Ms. Costa, but taking place in her own apartment.

[125] Ms. Haw went on maternity leave at the end of August, 2017, and Ms. Bantoc assumed carriage of the file. K.M. assured Ms. Bantoc that she was in continued counselling with Ms. DeMarchi at Breaking the Cycle. (This was not true.) Ms. Bantoc observed some visits at K.M.'s home, and thought they went well.

[126] Ms. Bantoc approved regular overnight access to start at the end of October, 2017. She made scheduled and unscheduled visits to check on the children, including visits during and after overnight stays. She found that K.M. was doing well in some areas. For example, she was improving in her abilities to redirect the children appropriately.

[127] Ms. Bantoc, however, had ongoing concerns about K.M.'s ability to care for the children well on a full-time, long term basis. She observed as follows.

• K.M. continued to struggle to be able to respond to the children when they were distressed. For example, on one occasion, Lucy and Sophie fought over a crayon. K.M. put Lucy in a timeout. Lucy cried at length. K.M. was unable to soothe her.

  On another occasion Lucy turned to Ms. Bantoc—a relative stranger—rather than to K.M. when she was distressed and needed comforting.

• K.M. had difficulty adjusting if there were disruptions to the schedule. For example, on one occasion K.M. became agitated when she learned that K.GU., rather than the volunteer driver, would be picking the children up. K.M. had planned to have a walk with the children, Lucy had not finished lunch. Despite Lucy's protests, K.M. put the child's coat on and made her go on the walk.

• K.M. sometimes made negative comments about K.GU. in the girls' presence (e.g., "K.GU. is a crappy caregiver…that's why she only has one child.") This showed insensitivity to the children's emotional well-being.

• On longer visits K.M. had difficulty maintaining a routine for the children. She had problems with time management and food preparation.

[128] K.M.'s lawyer elicited from Ms. Costa evidence that contradicted that of Society workers Ms. Sosa, Ms. Bantoc, and Ms. Deacon on whether K.M. was able to engage with the girls, even when they were distressed, and "read their cues". For reasons set out above, I have concerns about the reliability of Ms. Costa's evidence. I also note that she has observed K.M. with the children much less often than Ms. Bantoc, and in particular that she has not had the opportunity of observing K.M. at multiple times during overnight visits.

[129] Mrs. D.M. notes that K.M. has come a long way in her ability to handle the children. She did not observe the deficiencies in engagement or ability to read the children's cues noted by Society workers. However, Mrs. D.M. acknowledges that difficulties K.M. continues to have with establishing routines and getting the children to nap and eat properly.

[130] By January 2018, the Society had concluded that it could not support K.M.'s plan that the children be placed in her care. The Society accepts that K.M. is able to manage shorter daytime visits with the children well. It is the longer visit involving a day followed by an overnight and another day that Society says she cannot manage

K.M.'s Mental Health

[131] As set out above, there have been issues about K.M.'s ability to regulate her emotions and her anxiety since she was a child. K.M. has not followed through with getting the professional help she says she needs for her anxiety and emotional regulation.

[132] With Ms. Qureshi's help, K.M. applied to CAMH and started seeing Dr. Quesnel, a psychiatrist. After three months, she stopped seeing Dr. Quesnel. K.M. was inconsistent in the reasons offered for stopping treatment.

[133] She told Ms. Sosa that the doctor had terminated the treatment because she was missing appointments. She said that she had seen many counselors, and did not feel that seeing another person would help. At trial, she testified that she had stopped seeing Dr. Quesnel because the doctor had prescribed medication, and she was against this, preferring natural alternatives. She has not followed up on alternatives.

[134] Ms. Sosa suggested that K.M. explore other types of treatment, such as dialectical behavior therapy, and arranged for her to be placed on a waiting list for this therapy at CAMH. K.M. has not pursued this therapy.

[135] At the urging of Ms. Costa and Mrs. D.M., K.M. applied to Breaking the Cycle in early 2017. Breaking the Cycle is a Mothercraft program serving women with problems with substance abuse and appropriate parenting. It has two phases, a referral stage in which the suitability of the applicant for the program is assessed, and, after acceptance, active treatment. Eligible cases are those in which there is no pending application for Crown wardship and in which the applicant attends regularly at the referral stage. Regular attendance requires at least 4 consecutive attendances at scheduled appointments.

[136] Once the referral process is completed, a client is receives both individual counselling and parent/infant therapy. Children in their mothers' care see a developmental pediatrician four times annually and get a yearly developmental assessment.

[137] Ms. DeMarchi met with K.M. for the first time on January 23, 2017. She explained the program's process to K.M. at the outset.

[138] K.M. did not follow through with Breaking the Cycle. She was inconsistent in attending referral appointments, despite Ms. DeMarchi's reminders to her of what was required. Her file was closed in early May 2017. Ms. DeMarchi noted that before the file was closed, K.M. wavered in her commitment to the program; sometimes K.M. wanted to reduce her dependence on marijuana, but at other times she said that marijuana use for her was beneficial.

[139] Ms. DeMarchi did not hear from K.M. at all until she received a phone call from her on September 12, 2017, wanting to re-start the referral process. Her first appointment was October 16, 2017.

[140] K.M. has continued to be inconsistent in attendance, and has not passed the referral stage. Ms. DeMarchi testified that she thought K.M. a good candidate for treatment, if she managed to complete the referral process.

[141] K.M. misrepresented to the Society and to the court her participation in Breaking the Cycle. She told Society workers that she was actively involved in counselling when she was not. She told the court that she engaged in telephone counselling with Ms. DeMarchi when she was not attending the program in person. Ms.DeMarchi testified that this was not true.

[142] Mrs. D.M. recognizes that K.M. needs professional help in managing her anxiety and her anger. Mrs. D.M. testified that she hopes to get K.M. into treatment with a psychologist or psychiatrist, to help her deal with the root cause of her problems with anxiety.

K.M.'s Support Network

[143] K.M.'s failure to get help for her anxiety and anger has led to disruptions to the network of people available to support her. K.M. has suffered breakdowns in her relationships with her grandmother, Mrs. D.M., her father P.M. and his wife A.M., and with G.G.

[144] Mrs. D.M. testified that after leaving Youthdale and returning home, K.M. would disappear for days at a time. Mrs. D.M. acknowledged that she and K.M. have had arguments, arguments about K.M.'s relationship with G.G., or her use of marijuana, or her failure to finish secondary school. Sometimes after those arguments they do not speak for days.

[145] There have been two such disruptions of K.M.'s relationship with Mrs. D.M. in the past year.

• In the spring of 2017 Mrs. D.M. advised the Society that she would be unable to continue to supervise visits. In her trial evidence, Mrs. D.M. attempted to explain this as just "needing a break", not a problem in her relationship with K.M. I do not accept this, given the other evidence that indicates acrimony at the time in K.M.'s relationship with Mrs. D.M. and other maternal relatives—K.M.'s email to Aiden Haw saying that all these people should not be considered her supports, and Mrs. D.M.'s email to Ms. Haw saying that they were using "tough love" on K.M.

• In November of 2017, Mrs. D.M. arranged an "intervention" at K.M.'s home, facilitated by Ms. Costa and attended by P.M., A.M., their sons, and Mrs. D.M.'s other child, T.M. Each member of the family read a letter to K.M., their concern and love for her. One concern was that K.M. was prioritizing her relationship with G.G. over her commitment to getting the children returned to her.

  K.M. was furious at what she saw as a lack of respect. She listened to her relatives for ten minutes, and then told them to leave and locked herself in the bathroom.

  K.M. still is not speaking to P.M. and A.M.

[146] Difficulty managing emotions, particularly angry emotions, disrupted K.M.'s relations with G.G. and the G. family. The court heard several stories involving K.M. becoming angry and leaving the home, with G.G. following her because he was afraid for her safety.

[147] After the children went to live with K.G., there were two occasions when K.M. argued with G.G. that ended with K.M. damaging the G. home (a broken window and a broken door). The bail restrictions resulting from the charges of May 24, 2017 are a further example of the disruption to K.M.'s support network cause by her failure to get help in managing her emotions.

[148] The evidence indicates that, in addition to causing disruptions in her support network, K.M.'s anxiety has imposed other restrictions on her functioning.

• K.M. told workers that she was afraid of being alone and doing things on her own.
• Prior to their physical separation. K.M. said that she was afraid of doing things without G.G.
• As set out above, K.M. was unable to take public transit because of her concerns about other riders.
• K.M. was too anxious to meet with her Ontario Works worker or to meet with Ms. Quereshi of CMHA without a worker accompanying her as a support.

K.M.'s Use of Marijuana

[149] K.M.'s evidence about how often she uses marijuana varies considerably, and does not address how much is used on each occasion.

[150] K.M. herself identified early that she considered her use of marijuana to calm herself problematic. She wanted to stop it, or at least reduce it. She acknowledges that she continues to use marijuana for anxiety, for panic attacks, and to help with problems eating or sleeping.

[151] K.M. is adamant that she does not use marijuana when the children are in her care. The many workers who have had contact with her all say that, although they may have smelled it when at her home, they have never seen her use it.

[152] None of the workers identified any occasion on which they thought her parenting ability was compromised because of its use.

G.G.

[153] G.G.'s current situation is not clear.

[154] It is unclear where he is living. F.G. testified that she thought he was living elsewhere, returning to the home only every few days for brief periods. G.G. said he was still living at 18 P., but came home at night very late and left early in the morning. The Society suggests that G.G. is in fact living with K.M., but K.M. and G.G. deny this.

[155] It is unclear what G.G. is doing during the day. He is not working. He has not been engaged in any counselling or programming.

[156] G.G.'s time with the children—at least scheduled time known to the Society or K.GU. or F.G.—has decreased dramatically since July 2017. At that time, G.G. was seeing the children two days a week under F.G.'s supervision. He now sees them there irregularly, for short periods of time.

[157] G.G. has declined to have much contact with Society workers since July 2017.

[158] The extent of G.G.'s marijuana use is unknown. G.G., when he was speaking to Society workers, told them that he used marijuana frequently when the children were not with him, but would stop its use when they were returned or when he was in a caregiving role.

[159] Although workers testified that on two occasions G.G. slurred his words and they suspected he was high, none said that they ever observed him with the children when they were concerned that he was unable to care for them because of drug use.

[160] G.G. seems to believe that his use of marijuana should not be a concern, because at one time he had had a medical prescription for its use. He explained that he used marijuana for back pain and insomnia. K.GU., who acts as G.G.'s dentist, said that he had no medical condition that required a prescription for marijuana.

[161] Both K.M. and K.GU. have said at various times that, because of concerns about G.G.'s marijuana use, they believe his contact with the children should be supervised. K.GU. is particularly concerned about the possibility of G.G. driving the children; she points to the fact that he has had two accidents in the past two years.

K.M.'s Relationship with G.G.

[162] After the charges against K.M. on May 24, 2017, K.M. and G.G. assured the Society that there was no contact between them. They continued to offer that assurance when asked. It was only in late October 2017, as a result of phone records obtained by K.GU.'s lawyer and reports from a private investigator hired by her, that it was discovered that contact between K.M. and G.G. began just 3 days after her release on the charges in May. That contact was intense, and continued up to October 31, 2017 (the last period covered by the phone records obtained by K.GU.'s lawyer). K.M. objected when K.GU. tried to re-open her case to file more recent phone records. I find that the contact continues.

[163] G.G. obviously hopes for a rekindling of his former relationship with K.M. K.M. told Ms. Bantoc that she "didn't know where the relationship was going".

[164] Whether the relationship at this point is an intimate one is not particularly important. K.M. has few supports among family and friends. G.G. is an important support for her, one of her only supports. The importance of the relationship to K.M. is clear, from the fact that she risked breaching her bail for months in order to maintain contact with him. In January of 2018 when Cliff Davis on an unannounced visit discovered G.G. at K.M.'s apartment, they explained that she had called him to care for the children while she took a smoke break. G.G. in his evidence said "I'm the only one she has".

[165] The question remains as to whether K.M.'s relationship with G.G. is a positive and stable support.

Mrs. D.M.'s Support for K.M.

[166] Mrs. D.M. loves her granddaughter dearly. She regrets that because of her husband's illness and her grief after his death in February 2015 that she was unable to give K.M. much support when Lucy and Sophie were born and the Society became involved with the family.

[167] She now is able to offer more support. She lives in the same building as K.M. She works full time as a customer service representative in an old age home, but is often able to assist K.M. with the girls when they visit.

[168] Mrs. D.M. plans to retire at the end of the year, and says that then she will be able to devote all her time to helping K.M. She may even be able to retire earlier, in July.

[169] Mrs. D.M. acknowledges that she and K.M. have had their arguments and periods of estrangement in the past, but says that this happens in all families and that she and K.M. will be able to work through problems.

Lucy and Sophie

[170] K.GU. believed at first that the children would be with her and F.GU. temporarily, while K.M. and G.G. got the help they needed. After the children had been with them for more than a year and K.M. and G.G. were not ready to have them back, the Society asked if they would be willing to plan long term for the girls. She said they were.

[171] All parties agree that for the children, K.GU. is a psychological parent. They call her "Nina".

[172] All parties agree that K.GU. and F.GU. have consistently provided good care for Lucy and Sophie. Kinship worker Cliff Davis's evidence is:

"I have observed Ms. Gu to be very loving with the children. She continues to meet all of the children's needs, including physical, emotional, and medical needs". I have no concerns about Ms. Gu's care of the children and I support the Society's recommendation that the children remain with Ms. Gu pursuant to a custody order."

[173] Lucy and Sophie are meeting their milestones in K.GU.'s care. Sophie suffered a serious illness in August 2017. She was hospitalized at Hospital for Sick Children and put into an induced coma. Ultimately she was diagnosed with coronavirus with febrile seizures. K.GU. remained at the hospital the entire four days the child was there. Sophie appears to be fully recovered, but K.GU. is monitoring her situation carefully.

[174] F.GU. is involved in all aspects of the girls' care, and is committed with K.GU. to raising them to adulthood.

[175] K.GU. has supported access between the girls and K.M. and G.G. K.GU. voluntarily provided transportation for the visits when the children first came to her home. However, K.M. objected to seeing K.GU. when transfers of the children took place. She and G.G. made disparaging remarks to K.GU. about her abilities as a parent. The Society arranged for volunteer drivers to provide transportation. When those drivers are unavailable, K.GU. still drives the girls for visits with K.M. K.GU.'s evidence is that with in the last two months she and K.M. have been able to establish a civil email exchange about issues relating to the girls.

[176] K.GU. testified that she is careful to let the children know that K.M. and G.G. are Mommy and Daddy. Society workers agree that K.GU. supports their status as parents with Lucy and Sophie. When Sophie was hospitalized, K.GU. went out of her way to make K.M. feel welcome at the hospital.

[177] Both K.GU. and F.GU. testified that since regular overnight visits started between the girls and K.M. that the children's behaviour has regressed. This evidence is uncontested. K.GU. and F.GU. described the following:

• The children cling to K.GU. when they return.
• They come home very tired, and sleep an unusual amount – 12 -14 hours a night.
• There are more tantrums.
• Lucy and Sophie are aggressive with each other; after a recent visit, Lucy attempted to choke Sophie in a fight over a toy.
• The children's clothes reek of cigarette smoke and air freshener after visits.
• The children settle down after a couple of days, but the problems recur when they go on an overnight visit again within the week.

[178] K.GU. proposes that if the children are placed with her, that visits be limited to daytime only. She is open to extended access after K.M. completes some of the work that has been pending for the last two years—professional assistance to deal with her anxiety and anger and parenting courses. K.GU. is open to additional access on holidays and special occasions.

[179] K.GU. proposes visits at this time on alternate Saturdays. Although she is willing to provide transportation for the children because K.M. does not have a car, she does not wish to make the round trip (about 45-60 minute drive each way) every weekend. If K.M. was able to provide transportation some of the time, K.GU. would be open to access every Saturday.

[180] Because of K.M.'s history of explosive behaviour and her hostile behaviour to K.GU. at various times since the children were in her care, K.GU. asks that K.M. not attend at her home or at the children's school.

[181] K.GU. is willing to cooperate with G.G. to arrange visits for him.

Application of Law to the Facts

[182] I turn to an assessment of the two plans before the court, and begin with a review of the children's needs.

[183] Lucy and Sophie are 3 ½ and 2 ½ years old. They require close supervision. They are at critical developmental stages, stages at which the care they receive will determine their ability to relate to others and to function as healthy adults. It is important they receive not only good physical care, but care which supports their intellectual, emotional, and social development.

[184] The girls have no identified special needs. There is some suggestion, however, that Sophie requires especially vigilant care because of the illness she suffered last August.

K.M.'s Plan

[185] K.M.'s plan has many strengths.

• K.M. loves the children dearly. Lucy loves her. Although K.M. at one point worried to Ms. DeMarchi that Sophie did not like her, the observations of visits by workers indicate a loving relationship has developed between them.
• A placement with K.M. means the children will be raised by family and be able to maintain contact with both sides of their family.
• The evidence indicates that on daytime visits the children enjoy their time with K.M. and do well in her care.
• Mrs. D.M. is an important support for K.M.'s plan. She is committed to K.M. and to the girls, and sees them daily. The risk of harm to the girls if placed with K.M. is buffered by Mrs. D.M.'s role in the plan.
• A placement with K.M. would entail some continuity of care. K.M. has visited with the children since they left her care in January 2016.
• K.M. recognizes that she needs assistance in dealing better with her anxiety, anger, and parenting skills. Although there is no evidence that K.M.'s use of marijuana negatively affects her parenting, K.M. is careful and wants to get help to reduce her reliance on the drug.
• K.M. has begun to access the supportive services that she requires. She has begun both PARS and a parenting program. She intends to complete the referral stage at Breaking the Cycle, and when she does she will enjoy their impressive range of services in dealing with her mental health, marijuana use and parenting.

[186] The concerns about K.M.'s plan are, however, significant.

• Anxiety has been a major challenge in K.M.'s life. Although K.M. has not had a comprehensive assessment, from her history it appears likely that anxiety has played an important role in her impulsive and angry behavior in the past. That anxiety has prevented K.M. from being emotionally available to the children in the past.

  K.M. says that now that she is out of 18 P., her stress is reduced. She will, undoubtedly, encounter other stressful situations. How her anxiety will affect her functioning when she finds herself in those situations is still a concern.

• It is a question whether K.M. will follow through with any treatment or programs that would help her deal with anxiety. She has had over two years to get help, and has not done so. She stopped attending with the CAMH psychiatrist. She did not follow through with Breaking the Cycle. She says that she wants to explore "natural" treatments, but has not yet done so.

• K.M. has not been able to consistently meet the children's needs when they spend times with her longer than a day visit, particularly when they are distressed or when there is a change in the schedule. On overnight or more extended visits K.M. has difficulty establishing and following routines for sleeping and eating. The children regress in their behaviour after these visits.

• K.M. is a single parent with few supports. K.M. acknowledges that she needs supports, if only to care for the children during the times she uses marijuana or has smoke breaks. K.M. has no arrangements for daycare in place now if the children are placed with her.

• K.M.'s history of disruptions in family relationships suggests that the supports she has will not be consistently reliable. K.M. and Mrs. D.M. have had periods when they did not communicate in the past. Further, Mrs. D.M.'s ability to assist K.M. is limited by K.M.'s failure to be honest with her. For example, Mrs. D.M. thought that K.M. was getting ongoing help managing her anxiety from Gina DeMarchi. It was not until she heard evidence in court that she realized that K.M. had not followed through and was not getting this support.

• Reliance upon G.G. as a support does not strengthen K.M.'s plan. We know that in the past G.G. and K.M. argued frequently about big and little things, and that their arguments could quickly escalate – witness January 20, 2016 and May 18, 2017.

  K.M.'s lawyer says that this dynamic has changed since K.M. left the G. house. We only have K.M.'s and G.G.'s word for that, in that they concealed their relationship and continue to insist that it is superficial. Aside from one or two attendances at couples counselling, they have done no work on the relationship.

[187] The negatives in K.M.'s plan threaten its stability and the promise of permanency for the children.

[188] Further, there are real questions about the viability of a supervision order placing the children with K.M. would not be viable because of K.M.'s persistent failure in the past to comply with court orders (her bail) and her failure to be honest with the Society.

K.GU.'s Plan

[189] K.GU.'s plan is strong.

• The children are doing well in K.GU.'s care now, in every respect.
• K.GU. is the children's psychological parent. Their relationship with her is strong and positive. They love her; she loves them.
• K.GU. had strong family support in implementing the plan.
• K.GU.'s plan means continuity in care for the children. Both children have been in K.GU.'s care for most of their lives. There is good reason to fear that removal from their psychological parent's care could be harmful to them.[7]
• A placement with K.GU. means the children will be raised by family and be able to maintain contact with both sides of their family.

[190] K.M.'s lawyer raises concerns about K.GU.'s plan.

[191] He submits that a status quo in K.GU.'s favour was unfairly created by the Society's failure to return the children to K.M. after what he calls her "meltdown" on January 20, 2016. He argues that the Society should have proposed placing the children with K.M. and Mrs. D.M. Alternatively, he says, the Society should have returned the children to K.M. and G.G. a few days after the crisis was resolved.

[192] This argument ignores the facts:

• Neither K.M. nor Mrs. D.M. proposed placing the children with them on January 20th (or 21st or 22nd).
• Neither K.M. nor G.G. proposed any changes that might insure that a similar crisis did not recur.
• K.M. never brought a motion before this trial asking that the children be placed with her, or even asking for increased access.

[193] In any event, a child-centered analysis is not focussed on who created the status quo. A child-centered analysis must focus on the importance of a status quo when seen from the child's point of view. For more than two years, Lucy and Sophie have been in K.GU.'s care. They experience K.GU. as their parent. All their needs have been met in her care. A change in their care would be a major disruption in their lives.

[194] K.M.'s lawyer also points to K.GU.'s refusal to support K.M.'s request (in the alternative) for alternate weekend access. He argues that K.GU. cannot be trusted, that she will marginalize K.M.'s role in the children's lives.

[195] I do not agree. K.GU. opposes overnight access at this time, as does the Society, for cogent reasons given the problems such access has caused for the children. K.GU.'s position – that she wants to see that K.M. gets the mental health assistance she needs before agreeing to expanded access—is a position that reflects a careful assessment of the children's interests, not a desire to harm K.M. K.GU. has gone out of her way to facilitate access. Society workers who have worked with this family for over two years say she supports K.M.'s place as a parent in her interactions with the children. Unlike K.M. in her comments about K.GU., K.GU. has not been overheard to denigrate K.M. in front of the children.

[196] K.M.'s lawyer points to caselaw that holds that the fact that a litigant is a biological parent to a child is a relevant factor in assessing best interests.[8] I do not disagree, but the importance of this factor will vary from case to case. In this case, the factors of proven ability to meet all the children's needs, stability, and continuity of care are more important than biological parentage.

[197] I see no negatives to K.GU.'s plan for the children. As noted above, she will support both K.M.'s and G.G.'s relationship with the children. She is willing to agree to expanding access when K.M. follows through with getting some of the help that she herself agrees is required.

Conclusion

[198] I find that the least disruptive alternative that will meet the children's best interests is an order placing them in K.GU.'s custody. I make that order.

[199] K.M.'s lawyer suggested that an order should allow K.M. some authority to make or share in decisions about the children. I do not think that such an order would be in the children's best interests. K.M. and K.GU. have no history of shared parenting and no relationship which would lead me to think that they could cooperate in decisions. I am happy to hear that they have begun to have civil email discussions about the children, but I think that any attempt to coerce cooperative decision-making will only lead to conflict within the family.

[200] K.GU. may obtain passports and other government documents for the children without the consent of K.M. or G.G., and, subject to the restrictions set out below, may travel outside Canada with the children without the prior consent of K.M. or G.G. The children may travel with K.GU. for a maximum of 30 days per calendar year, no more than 15 days consecutive. K.GU. shall advise K.M. and G.G. of the particulars of the trip planned.

Access to K.M.

[201] Prior to a final disposition in a protection case, the objective of an order for access to the parent who had charge of her prior to Society intervention is to gradually increase contact to the extent that it is safe, with the objective of returning the child home. This allows a child to maintain and develop a relationship with the parent and the Society to evaluate the parent's ability to care for the child under different circumstances[9].

[202] After a final disposition, if the child is not returned to the care of the person who had charge of her prior to Society intervention, the objective of an access order changes. In those circumstances, an access order should continue contact between the child and the parent with whom the child lived prior to Society intervention at a level that is in the child's best interests and which supports the stability of the child's permanent home. This does not necessarily mean that the access order will or should reflect the terms which were in place immediately before the final disposition was determined.

[203] Given the difficulties K.M. has had in implementing a routine for longer visits, the problems noted with the children after overnight visits, and the need to maintain stability for the children in their home with K.GU., I find that the access to K.M. which is in the children's best interests at the present time is daytime access. For children of Lucy's and Sophie's age, weekly access is appropriate.

[204] I do not think it is feasible for K.M. to provide transportation for visits at the present time. The distance between K.GU.'s and K.M.'s homes is significant, involving a 45-60" drive each way. K.M. has no access to a car; Mrs. D.M. does not drive. Although K.M. says that she now travels on TTC, I have my doubts as to whether she would successfully be able to manage the children on a long trip with multiple transfers. Even if she could manage, the travel time on TTC would like be approaching 1 ½-2 hours each way.

[205] I acknowledge that the drive is a burden. In my view, the importance of the children maintaining regular contact with K.M. is sufficient that I order access each Saturday, from 10 a.m. to 4 p.m. K.GU. will be responsible for providing transportation unless she and K.M. agree otherwise.

[206] If K.GU. wishes to take a vacation, or travel out of Toronto on a weekend, or if there is a special family occasion involving the children on a Saturday, then she shall advise K.M. of these plans in advance, and make-up access shall be provided.

[207] K.M. shall also have overnight access to the children each year from December 26 at 10 a.m. to December 27th at 5 p.m.

[208] K.GU. and K.M. may agree to further access as so advised for holiday periods.

[209] I do not make an order providing that K.M. is not to attend at K.GU.'s home or at the children's daycare centres or schools. I do not expect K.M. to attend at K.G.'s home unless she is invited by K.GU. I direct that K.M. shall be entitled to receive information about the children from the children's doctors, dentists, daycare providers, school staff and other service providers, and that she shall be able to attend special events at the children's daycare or school. I expect that K.M. will behave in an appropriate manner in exercising these rights. If she does not do so, a motion may be made to me.

[210] K.M.'s lawyer requested that, in the event I made an order granting custody to K.GU., that he be allowed to make submissions for a multi-directional order. He shall be permitted to serve and file his request for such an order within 20 days. The other parties may respond at a teleconference date, which counsel shall arrange with the trial coordinator. If the other parties wish, they may also serve and file a written response before the teleconference.

Access to G.G.

[211] As requested by him, G.G. shall have access to the children a minimum of three hours weekly, at times to be agreed upon by him and K.GU., as well as time with the children and the G. family during Christmas, Easter, Thanksgiving, and the children's birthdays.

[212] G.G.'s access to the children shall be supervised at K.GU.'s discretion. He shall not drive the children in a motor vehicle without K.GU.'s prior consent.

[213] G.G. shall be entitled to receive information about the children from the children's doctors, dentists, daycare providers, school staff and other service providers, and he shall be able to attend special events at the children's daycare or school.

Released: April 9, 2018

Signed: Justice E.B. Murray

Footnotes

[1] A pseudonym

[2] A pseudonym

[3] As a Society ward or pursuant to a temporary order or agreement

[4] C.F.S.A., s. 57(2)

[5] C.F.S.A. s. 57(3)

[6] in addition to parts of other visits she observed

[7] As was recognized by the Supreme Court of Canada in Catholic Children's Aid Society of Metropolitan Toronto v. C.M.

[8] McGlade v. Henry, 2015 ONSC 3036

[9] See J. Sherr's comments in C.C.A.S. of Toronto v. R.M., 2017 ONCJ 784, at para. 79