WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2019-10-23

Court File No.: Woodstock C224/17

Parties

Between:

Children's Aid Society of Oxford County Applicant

— AND —

E.M.T.

M.A.R.

H.L.J.M.

Respondents

Before the Court

Justice S. E. J. Paull

Trial Heard on: March 26, 27, June 19, 20, 27, 28, September 16, 17, 2019

Reasons for Judgment released on: October 23, 2019

Counsel

Jane Hegney — counsel for the applicant

James Battin — counsel for the respondent(s), M.A.R.

Gary D. McQuaid — counsel for the respondent(s) E.M.T.

Susan Gordon — Office of the Children's Lawyer

PAULL J.:

Introduction

[1] Before the court is the trial in this matter which was heard over 8 days between March 26 and September 17, 2019.

[2] This matter was commenced by way of a protection application dated November 20, 2017 seeking findings and a supervision order placing the 3 children with their mother E.M.T. with discretionary access to M.A.R. with his biological children J.R. (male born […], 2009) and O.R. (female born […], 2011), and his step-child M.R. (female born […], 2006), and with discretionary access to H.L.J.M. with his biological child M.R.

[3] The Society seeks findings in need of protection on the basis that the children suffered harm pursuant to section 37(2)(a)(i) and (ii) of the CFSA (which is now section 74(2)(a)(i) and (ii) of the CYFSA), that there is a risk that they will likely suffer physical harm under section 37(2)(b)(i) and (ii) of the CFSA (which is now section 74(2)(b)(i) and (ii) of the CYFSA), that they are at risk of emotional harm under section 37(2)(g) of the CFSA (which is now section 74(2)(h) of the CYFSA).

[4] The Society alleges that M.A.R. and his partner at the time, T.E. exposed the children during access to excessive alcohol use and domestic violence, and used excessive and inappropriate discipline on the children. The children were apprehended on November 16, 2017 and placed with their mother where they have remained since that time. M.A.R.'s access continues to be supervised.

[5] E.M.T. supports the position taken by the applicant.

[6] H.L.J.M. has not participated in these proceedings and was noted in default on January 23, 2018.

[7] M.A.R. denies the allegations and opposes the findings and seeks that the application be dismissed. Alternatively if findings are made he seeks a custodial order in favour of E.M.T. with his periods of care and control of the children as outlined in a domestic agreement dated October 23, 2017 between himself and E.M.T.

[8] Counsel for the children does not oppose the findings and supervision order sought by the applicant and advised that any access by M.R. to M.A.R. ought to be according to her wishes. With respect to J.R. and O.R. she advised that their views and preferences were that they want increased access with their father in his home, but they were content if access remained supervised.

The Law

[9] In cases where the Society is alleging that the child is in need of protection due to physical harm or a risk of physical harm, the following principles have been applied.

[10] Actual physical harm suffered by the child is the foundation of the grounds in clauses (a), (a)(i) and (a)(ii) of s.74(2) CYFSA. This must be proved on a balance of probabilities. Children's Aid Society of Algoma v. J.B., 2019 ONCJ 6.

[11] Clause 74(2)(b) involves a risk of physical harm to the child. The risk is that the child is likely to suffer physical harm. "Likely" to suffer has the implied connotation of "more probable than not". There are three separate circumstances which may qualify for a finding on (b) grounds. The risk may be a likelihood that:

(a) the physical harm is inflicted by the person having charge of the child; or

(b) the physical harm is as a result of the failure of the person having charge in adequately caring for, providing for, supervising or protecting the child; or

(c) the physical harm is a result of a pattern of neglect by the person having charge in caring for, providing for, supervising, or protecting the child.

[12] The Society must prove causation by act, omission, or pattern. It is not necessary to prove intention: Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903. Physical harm caused by neglect or error in judgment is still physical harm. But, it must be more than trifling physical harm. CAS Niagara v. P.T., 35 RFL 290; Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458.

[13] The risk of harm must be real and likely, not speculative. Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T..

[14] A child may be at risk even if the conduct is not directed specifically towards that child. Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.).

[15] A pattern of allegations is not sufficient to prove a finding if the underlying facts of the allegations are not proven. Kenora-Patricia Child and Family Services v. L.(N.), 2005 ONCJ 247.

[16] Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, inadequate shelter/food are common circumstances leading to findings of physical harm/risk of physical harm.

[17] Verbal abuse, aggression, and inappropriate situations that children are exposed to can constitute risk of physical harm: Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, at para. 380.

[18] In Children's Aid Society of Toronto v. L.E. [2012] O.J. 3770, the court outlined that the use of physical discipline was discussed by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76. This was a criminal law case, but the court's comments about the use of physical discipline are helpful. The court wrote at paragraph 37:

Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful (emphasis mine). These types of punishment, we may conclude, will not be reasonable.

[19] With respect to the risk of emotional harm the harm must be demonstrated by a serious form of one of the listed conditions or behaviours. The Society must establish prescribed symptoms of emotional harm and must show a real likelihood of harm on a balance of probabilities. Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458.

[20] In Children's Aid Society of Algoma v. A.B., 2018 ONCJ 831, the court noted the following:

[12] The Society wishes the court to make a finding that T. is a child in need of protection under s.74(2)(h) CYFSA (formerly s.37(2)(g) CFSA) as well. This is, in my view, one of the more difficult grounds for a Society to establish. It is even more difficult when the child is a newborn.

[13] Firstly, the Society must show that there is a risk is that the child will suffer at least one of the emotional harms specified in the subsection. The harms are anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development.

[14] Secondly, not any degree of these possible future harms is sufficient. The Society must establish that the degree of the harm is one that is serious, as opposed to minimal, mild or moderate.

[15] Thirdly, it has to establish that the risk of whatever emotional harm it is alleging, is causally connected to, or, in the words of the subsection, is "resulting from" the parents, who are admittedly the persons who had charge, and specifically by the actions, failure to act, or pattern of neglect of these parents.

[18] Finally, the Society must prove that the risk of at least one of these harms, in the required "serious" degree, would result from acts or omissions or a pattern of neglect by the parents….

[21] Clause 74(2)(h) is a ground that involves risk of emotional harm to the child. Therefore it looks to the future. The type(s) of harm, the degree of the harm, and the causal connection of the harm to the parents' conduct, pre-requisites for a finding under (h) grounds, are all necessary for the Society to prove to the court with respect to this ground. Although no actual emotional harm symptoms are needed to be shown, the Society cannot rely only on the existence of reasonable grounds to believe that a risk exists. This ground requires the Society to show that the risk does exist, and to do it on the balance of probabilities. "Risk" has been said to mean "more likely than not". In Children's Aid Society of Algoma v. J.B., 2019 ONCJ 6, the court rejected this ground because:

1. The Society did not present anyone with the credentials to provide the kind of evidence that would persuade the court that such a risk exists.

2. The child had been in the mother's care through several horrific incidents that the mother experienced, and she apparently did not suffer any of the emotional symptoms required by clause (h). Why would the court believe that there is a risk of this in the future when the child is now three years older, much more mature, and has support and assistance that she did not have when she was with her mother?

3. The Society did nothing to show that the emotional harm would be demonstrated by at least one of the symptoms listed (other than perhaps anxiety), and that it would be a serious demonstration.

[22] In order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required: Children's Aid Society of Ottawa v. P.Y.; Re S.(D.); Catholic Children's Aid Society of Hamilton-Wentworth v. C.L..

[23] Expert evidence is not a mandatory requirement, but is generally preferred. This applies to both risk of emotional and sexual harm. Children's Aid Society of Toronto v. R.M., 2019 ONSC 2251 – appeal decision.

[24] With respect to the need for expert evidence for a finding of a risk of emotional harm I agree with the court in Chukwunomso v. Ransome, 2017 ONCJ 121 which stated the following:

I am aware of the recent decision in the case of N.V.C. v. Catholic Children's Aid Society of Toronto 2017 ONSC 796. In paragraphs 101 and following of that decision, Wilson, J., seems to suggest that a court is precluded from deciding that a child is at risk of emotional harm without evidence from an expert. If I correctly understand that to be the learned judge's reasoning, I must respectfully disagree. Courts will often make decisions about emotional harm – or risk of emotional harm – to a child based on panoply of evidence. That panoply may include an expert's report. But an expert's report is only one piece of evidence. In my view, the presence or absence of an expert's report regarding harm, or potential harm to a child, is neither conclusive nor, in many cases, even mandatory in order to permit the court to arrive at a correct conclusion. For example, in Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 ONSC 7039, Quinlan, J. stated at paragraph 18: "Expert evidence will sometimes [my emphasis] be required to establish a risk of emotional harm, but it is not a necessary prerequisite". As well, see paragraphs 31 and 32 of the decision of Parfett, J. in Children's Aid Society of Ottawa v. P.Y. for a similar opinion. Furthermore, courts are required to consider not only the available evidence in any case – expert or otherwise - but, as well, judges should employ intelligence and common sense in drawing logical inferences from their general understanding of life itself. This application of intelligence and common sense is often referred to as taking judicial notice. An example of this application of judicial notice in the context of satisfying a court that emotional harm has occurred, can be found in the decision of MacAdam, J. in A.B.C. v. Nova Scotia (Attorney General), 2011 NSSC 475, where the learned judge stated in paragraph 50: "Experts are not required to establish that ABC suffered psychological and emotional harm as a result of the assaults by Lalo. The court is entitled to take judicial notice that such effects can be expected [my emphasis] albeit they may not occur in every case."

[25] This view was strongly endorsed by Justice Zisman in Catholic Children's Aid Society of Toronto v. N.N., 2019 ONCJ 8, writing:

[129] The court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over time. However, even if the need for protection at the initial stage was found to have been resolved that does not change the court's ability to make a finding of need for protection. For example, in this case although the initial concerns were ameliorated by placing the children in the care of the mother, the fact the children were at risk of harm initially in the shared care of both parents and as a result of the father's behaviour can result in a finding of need for protection.

[26] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm: Children's Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 (O.C.J.), aff'd, [2005] O.J. No. 4718 (S.C.), aff'd 2007 ONCA 474, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 462; Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903.

[27] Sometimes, the evidence of a child's distressed reactions to parental behaviour is sufficiently clear that a finding of a risk of emotional harm can be made without the opinion of an expert. Children's Aid Society of Ottawa v. P.Y. and A.S.; Catholic Children's Aid Society of Toronto v. E.S..

Evidence

[28] On December 3, 2018 a voir dire was held on the issue of necessity regarding the admissibility of the children's statements to third parties. It was also agreed that the evidence heard during the voir dire would be part of the evidentiary record for trial.

[29] In Reasons for Judgment released on December 20, 2018 the court found that the test for reasonable necessity had been met with respect to the younger children, J.R. and O.R., subject to threshold reliability, and that the test for reasonable necessity was not found with respect to the child M.R.

[30] M.R., who was 13 years old at the time, testified at the trial. She confirmed that the status quo was that she lived with O.R., J.R., and their mother and her partner, M.H., and his son, C. who visited regularly.

[31] M.R. also testified to the following:

1. After E.M.T. and M.A.R. separated, she, O.R. and J.R. were living with their mom and visiting with M.A.R. regularly on weekends. By the time the Society became involved and she and her siblings were interviewed she had stopped attending visits. She believed she stopped going the day before her birthday in January 2017.

2. She confirmed that there was no corporal or physical punishment in her mother's home and stated that when the rules are broken at M.A.R.'s home, "sometimes he would hit us". This did not happen all the time as "sometimes he would yell at us but sometimes he would hit us". She was clear she was referring to M.A.R. not her stepdad, M.H., who both have the same first name.

3. She testified that she referred to her stepdad as "Mike or Mikey", as did O.R. and J.R., and denied that any of them refer to him as "dad". O.R. and J.R. call M.A.R. "Dad", as she did up to the time she stopped going.

4. She stopped attending access, "because I couldn't take any hit anymore because it really hurt and I had like marks on me from him hitting me [sic]."

5. M.A.R. lived in the basement of his mother's home (R.R.), where there was a bathroom, living space, one-bedroom, and a room for storage. M.A.R. and his girlfriend T.E. slept in the bedroom and sometimes O.R. and J.R. did also. She slept on the couch in the living room.

6. During visits O.R. would go upstairs and play with M. and A., their cousins who live with R.R. J.R. would generally help M.A.R. outside and in the garage, and she would remain in the basement or on the front porch and make crafts.

7. She rarely went upstairs and rarely did anything with T.E. who was usually in the bedroom where she stayed for long periods or outside having a smoke.

8. R.R. generally made the meals, but M.A.R. would sometimes prepare meals but he had to do it upstairs because there was no kitchen in the basement, only a fridge.

9. If the rules were broken M.A.R. would yell or hit, with his hand or foot which would sometimes leave a mark. She recalled an example from when E.M.T. and M.A.R. were together living on Arbor Lane when M.A.R. slapped J.R. and left a hand print. J.R. was crying and showed her the marks later.

10. She could not recall if M.A.R. ever hit her with anything other than his hand or foot. When M.A.R. did hit them he would, "either call us rude names that were not appropriate or he would -- personally he would tell me to go and find my real dad because I didn't share his DNA because I'm not his kid by blood [sic]."

11. He repeatedly made these kinds of comments to her about her real dad. She testified that, "he would call me a female dog or an A-hole or to go F-myself or like get out of my F-ing face right now before I hit you or punch you or something [sic]." These comments upset her and made her cry.

12. M.A.R. and J.R. usually got on better because they had interests in common, but M.A.R. would usually hit J.R. when he misbehaved. This generally involved a slap on the back or face.

13. When M.A.R. would hit them it was, "usually one whack because after he hit us because he had a lot of power, we would usually drop to the ground."

14. T.E. did some "girly" stuff with O.R. like dying their hair and playing with makeup. When T.E. and M.A.R. were fighting, that's the only time I saw her being rude.

15. The fridge in the basement only contained alcohol and beer which M.A.R. and sometimes T.E. would drink. They also drank liquor. When M.A.R. and T.E. drank they usually got angrier at the kids about things that would not make them angry if they were not drinking.

16. She stated that M.A.R. and T.E. "did weed, like marijuana". She knew this because she saw it on the table and it looked like "this green sort of puff thing… It was like a bud that you would pick off of a plant that's like dried up." She observed them to have this in a bag and roll it in paper at the coffee table. This involved them cutting it up and stuffing it in a piece of paper. M.A.R. and T.E. usually smoked it outside or in the garage.

17. She often heard conflict between M.A.R. and T.E. This sometimes occurred in the laundry room or the bedroom and sometimes included them hearing stuff banging. Sometimes R.R. would come downstairs as a result of the yelling and banging when M.A.R. and T.E. argued.

18. The last time she visited there she went home early crying. M.A.R. had picked them up from school and seemed "off". When they got to his house he "cracked open a beer" and went outside for a smoke. M.A.R. became angry with her and lashed out and hit her either on the arm or the back. She told him she was going to call her mom and M.A.R. initially took the phone away and when she again said she wanted to call her mom he gave it to her, told her to go find her real dad, and walked away. She called her mom who picked them up.

19. After she stopped going for visits she felt scared for J.R. and O.R. because she was not there to stop anything bad happening, or to tell anyone.

20. She had attempted to intervene when M.A.R. was angry and hitting O.R. and J.R. by telling him to stop which resulted in him hurting her.

21. The hitting that occurred at M.A.R.'s house never occurred at her mother's house. The hitting at M.A.R.'s was not rare and at "most visits somebody got hit". She believed T.E. lived there because she told her she did and T.E. and M.A.R. slept in the bedroom.

22. Her decision to stop going for access was her decision and no one else's. She had difficulty remembering which year she stopped visiting but was sure it was the day before her birthday. She acknowledged in cross-examination she told her mother about the hitting and yelling. They also showed their mother the bruises caused by M.A.R.

23. She recalled that M.A.R. was hitting and yelling prior to M.A.R. and E.M.T. separating when they all lived together.

24. She was aware that her mother went to court for custody and access issues and believed it was because of M.A.R.'s hitting and yelling. She was unaware these issues were not referred to in E.M.T.'s court papers and did not know why they were not.

[32] Ms. DeVos testified on behalf of the Society. She is a child protection worker who has been employed by the applicant since March 2007. Her involvement in this matter was acting as the intake/investigative worker. She took carriage of this matter on November 7, 2017 until December 5, 2017 when it was transferred to ongoing service worker Loretta Collins.

[33] Ms. DeVos was the responding worker when the Vice Principal from […] school reported on November 7, 2017 that O.R. was having significant challenges in the classroom and made disclosures concerning M.A.R. and T.E.

[34] She conducted an interview with the children separately on November 13, 2017 in their home.

[35] A voir dire was held during the trial regarding the threshold reliability of J.R.'s and O.R.'s statements. In oral reasons given a finding of threshold reliability of the statements was made. It was also agreed that the evidence heard during the voir dire would be part of the evidentiary record for the trial.

[36] During the interview J.R., who just turned eight at that time, disclosed the following to Ms. DeVos:

1. He sees his dad on weekends but not last weekend which he was happy about because he does not feel safe with his dad.

2. He feels safe at his mom's home.

3. He does not like T.E., she is rude and yells at him, and they are never left alone with her.

4. Both T.E. and M.A.R. have hit him more than once. He does not understand why he is hit but that it happens when his dad and T.E. are angry or drunk. He knows they are drunk because he observes them drinking beer, which they do every weekend.

5. He and his siblings try to stay away from them when they are drinking. T.E. and M.A.R. argue and throw things when they are angry and he does not feel safe with them.

6. He does not know what drugs are but has observed his Dad and T.E. cut things up, roll them in paper, and smoke it.

[37] Ms. DeVos interviewed M.R. on November 7, 2017 who stated to her the following:

1. M.A.R. is not her biological father. She stopped attending access with him in January 2017 because she was tired of the hitting and yelling that occurs there.

2. M.A.R. would call her names like bitch and whore, tell her to go find her real dad. She did not feel safe with M.A.R. or T.E. and worried for her siblings when they stopped going for access.

3. T.E. and M.A.R. would yell and scream at each other and throw things, including high-heeled shoes.

[38] Ms. DeVos interviewed O.R. on November 7, 2017 who stated to her the following:

1. She did not feel safe with her dad and there was a lot of yelling between her dad and T.E. and at them. It makes her feel sad and frustrated when her dad yells and swears.

2. She has had bruises on her in the past from her dad.

[39] At that time Ms. DeVos met with E.M.T., and she was provided with pictures which purported to be bruises on the children she had recorded (Exhibit 15).

[40] Ms. DeVos conducted a follow-up interview with each of the children separately at school on November 14, 2017 while accompanied by a fellow worker, Heather Gow.

[41] Ms. DeVos testified that on November 14, 2017 J.R. disclosed the following:

1. He has been hit by his father and T.E. in the head and elsewhere. He had a bruise from his dad hitting him once and a burn from a cigarette from T.E.

2. He said O.R. gets hit a lot more than him. He confirmed that M.R. does not attend access anymore and that sometimes his stomach hurts when he gets to access and that he felt safer when M.R. was there to.

[42] Ms. DeVos testified that on November 14, 2017 O.R. disclosed the following:

1. She has been hit in the head by her dad and also been hit "everywhere" by both T.E. and her dad. Sometimes this is on the face, or on the nose or back, with an open hand.

2. She had bruises on her arms from when her dad held onto her tightly when he was angry.

3. Her dad and T.E. would yell, swear, and throw things at each other. This would scare her and she would try not to watch.

4. She did not feel safe with her dad or T.E.

[43] During her investigation Ms. DeVos attempted to speak to M.A.R. without success. When she attended the home on November 15, 2017 T.E. was present and smoking marijuana in the garage. Ms. DeVos had met T.E. previously from another investigation and stated that T.E. had told her at that time that when she had "rages" from needing drugs she would go to M.A.R.'s. She spoke with T.E. about this on November 15, 2017 and T.E. refused to comment.

[44] On the basis of all these factors the protection application was commenced and the children were apprehended on November 16, 2017 with a warrant and placed with E.M.T.

[45] Another of the concerns the Society had at that time was that M.A.R. was residing with his mother R.R. who had custody of two other young children, M. and A. On November 15, 2017 R.R. was advised that if M.A.R. or T.E. were there the Society would have concerns for the children and may need to remove them from her care.

[46] On November 20 2017 Ms. DeVos received communication from E.M.T. that M.A.R. and called her that night from R.R.'s phone number. After hours worker Tracy Harnish went to the home that night, accompanied by police.

[47] Ms. DeVos attended the home again on November 22, 2017 as a result of concerns she had after interviewing the two children in R.R.'s care. On that date R.R. would not permit them to look in the basement, which was where M.A.R. lived.

[48] R.R. was subject to a protection order in another proceeding that placed her great-grandchildren in her care subject to an order dated December 12, 2017 which included a term that she ensure that M.A.R. and T.E. not reside in the home and have no contact with the children.

[49] Ms. DeVos finally met M.A.R. on December 5, 2018 to discuss the concerns. She observed that he appeared angry, with his fists clenched, and stated that he was almost at his breaking point, however, the meeting was able to be completed.

[50] It was at that time that the file was transferred to ongoing service.

[51] Tracy Harnish has been employed by the applicant since 2001. Her involvement in this matter was as an after-hours emergency worker.

[52] Ms. Harnish testified that she attended the home on November 20, 2017 at 11 PM with the police to investigate if M.A.R. was there. The house was dark and eventually R.R. open the door. R.R. came from upstairs and said she and the children were in bed. She denied that M.A.R. was present.

[53] M.A.R. was not located in the house but Ms. Harnish observed that the lights and TV were on in the basement with a cell phone, cash, and empties on the table. When asked why the lights and TV were on R.R. said she always leaves them on.

[54] Kate Slade has been employed by the applicant since December 2014 as a family service worker. Commencing December 13, 2017 she has been the family service worker for R.R. with respect to her great-grandchildren, M. and A., who were in her care subject to an order in a separate proceeding at that time. That proceeding has since been completed.

[55] Ms. Slade testified that she spoke to R.R. on January 22, 2018 and indicated that M.A.R. could return to reside in her basement subject to terms outlined in a letter of that date which was provided (Exhibit 18). Both R.R. and M.A.R. wanted M.A.R. to be able to move back in as he was otherwise transient. Ms. Slade confirmed that the basement was a separate and self-contained area, and the Society's position was that he could return to reside there subject to specific terms.

[56] One of the terms outlined in the letter was that M.A.R. was to reside in the basement and not attend the upstairs of the home when the children were present, and to ensure there was no unauthorized contact between the children and M.A.R. and T.E.

[57] As a result M.A.R. moved back into the basement of R.R.'s home on January 23, 2018 until approximately March 7, 2018. Ms. Slade attended for a regular visit to meet R.R. on March 7, 2018 and testified to the following at that home visit:

1. As she approached the house she saw a man she assumed was M.A.R. and identified herself. He did not stop or speak to her other than muttering something about not talking to the CAS.

2. She proceeded to meet with R.R., M., and A. While she was meeting with R.R. at the dining room table, with M. and A. playing in the living room, M.A.R. came upstairs and began preparing food.

3. She reminded R.R. of the terms that M.A.R. not attend upstairs when M. and A. were there. R.R. did not acknowledge the concern and simply closed the kitchen door saying, "there, now he's gone."

4. Ms. Slade expressed her concern that they were breaching the court order and the directions of the Society right in front of her. M.A.R. came into the dining room and addressed her angrily that he was heating up food and was going to call his lawyer. He also indicated he was going to record the conversation with Ms. Slade.

5. She attempted to engage M.A.R. and invited him to sit and talk to her about the concerns. She observed M.A.R. to be angry with his face tense and his fists clenched. He spoke loudly and accused the CAS workers of talking to his neighbours about "touching kids", and he waved his arms and shouted "touching. I don't touch kids".

6. Meanwhile M. and A., who were playing in the living room, went upstairs when M.A.R. started shouting.

7. Both R.R. and M.A.R. called their lawyer and spoke to his assistant, Laura Pilkey and requested a copy of the letter with the terms that required that M.A.R. was not to be upstairs. The assistant agreed to bring the letter over.

8. While waiting for Ms. Pilkey to arrive, M.A.R.'s behaviour began to frighten Ms. Slade. M.A.R. told her that it was "bull shit" and circled the main floor while yelling and slamming doors. While she was sitting at the dining room table M.A.R. also stood at the table while posturing, yelling, and slamming his phone repeatedly on the table. She felt intimidated by this behaviour. R.R. minimized M.A.R.'s behaviour and did not intervene.

9. Ms. Slade was clear when challenged in cross-examination that M.A.R. was yelling rather than simply talking loud.

10. After speaking to her manager by phone Ms. Slade left the home and contacted police for her own safety before reentering the home to ensure the safety of M. and A.

11. Meanwhile Ms. Pilkey arrived and went into the home while Ms. Slade waited for police assistance. When police later arrived she went back in the home and R.R. advised that M.A.R. was no longer there. Ms. Slade advised that in the circumstances the Society was revoking its consent for him to live in the basement. R.R. denied the protection concerns and that she or M.A.R. had acted inappropriately.

[58] Ms. Slade later attended at R.R.'s home on March 15, 2018 and observed that all M.A.R.'s belongings were removed from the home. She communicated with M.A.R. by text requesting a copy of a rental agreement to confirm his new residence and he responded that he did not have one.

[59] Hank VanGalen is a Casual Protection Assistant, employed by the applicant and supervised access visits between M.A.R., O.R., and J.R. He supervised 8 visits between March 24, 2018 and May 12, 2018, all of which occurred at the Society's Tillsonburg office. He testified to the following:

1. M.A.R. and the children were very affectionate the loving towards each other. O.R. spent half the visits sitting on M.A.R.'s knee. They interacted positively and played games together.

2. He stated that O.R. is an excitable and loud child and is a struggle to control at times. He also observed M.A.R. to struggle at times to control the children's behaviour and not be able to redirect him when necessary. He recommended to M.A.R. that he discuss this with the worker because there were programs that he could access to assist him.

3. He proposed that M.A.R. spend some of the supervised visits in the community as a way of managing the children's energy and to provide more options for activities. He proposed that M.A.R. take the children into the community during the visit on March 24, 2018 and M.A.R. stated he was not interested.

4. Mr. VanGalen raised it again at the visit on March 31, 2018 and M.A.R. said he was not interested as he would be embarrassed to be seen being supervised with his children in the community. M.A.R. did take the children outside on April 28, 2018 and the children appeared to enjoy the visit.

5. On May 12, 2018 he delivered a letter to M.A.R. from fellow worker Bev VanDaele requesting a meeting with him.

6. During access he never observed M.A.R. say anything negative to the children about their mother and never observed him to yell in anger at them. He did observe an incident where M.A.R. was angry at the end of the visit and yelled so that the children could hear. M.A.R. was not able to get J.R. ready to leave and so Mr. VanGalen proposed that E.M.T. come into the visit to calm him down. She did, J.R. calmed down, and they left. Meanwhile M.A.R. was upset in another room and the children could hear him.

7. Overall he felt the visits were positive and generally enjoyed by the children.

[60] Anthony Gatecliffe is employed by the applicant as a Casual Protection Assistant and has been involved in supervising access visits since August 2018. He provided evidence of his observations which included the following:

1. He has generally observed positive and appropriate interactions between M.A.R., J.R., and O.R. The children are affectionate and comfortable with M.A.R. and he has never observed M.A.R. to be angry with the children. When the children misbehave he sometimes reacts with a raised voice and the children often will not listen. He did observe M.A.R. to be visibly upset on December 22, 2018 when the children's stepfather dropped them off rather than E.M.T.

2. His interactions with M.A.R. have generally been positive but have been complicated because he did not have a phone for several months from December 2018 until mid March 2019.

3. O.R. and J.R. have both said they want to see their father more. Supervised access was increased starting in mid April 2019 to Saturdays from 11:45 AM to 5:15 PM (from 12:30 PM to 4 PM).

[61] Kim Gosselin has been employed by the applicant as a Casual Protection Assistant since July 2016. She supervised visits between December 2017 and July 2018. She testified that she observed positive and warm interactions between M.A.R. and the children during access. She also stated that M.A.R. had advised her that after leaving R.R.'s home that he was couch surfing, and he never advised her of his address or provided her with contact information.

[62] Ms. Gosselin also testified to observing concerning interactions at visits including the following:

1. At the visit on February 3, 2018 M.A.R. appeared unhappy and told her he could not do it anymore. He moved into another room from the children and told her that he was being treated unfairly and that he was "outta here". He called the children into the room and told them that the visit was over and when O.R. asked why he stated "I can't take it anymore", and that they could ask their mother why. O.R. asked him to "pinky swear" that he would come back to visits and M.A.R. would not do this. O.R. said this made her angry. Ms. Gosselin attempted to debrief with M.A.R. after the visit and encouraged him to contact the worker.

2. At the visit on February 10, 2018 the children played mainly independently while M.A.R. sat in a chair, sometimes playing on his phone.

3. The visit on July 7, 2018 started at the agency and went into the community. She observed what she felt were inappropriate interactions between M.A.R. and the children. Some examples included when J.R. told M.A.R. he was in a summer program M.A.R. said, "that's gotta suck-- that's no fun". While M.A.R. helped J.R. tie his shoe he said that J.R. had almost done this before CAS became involved. He also made comments that she viewed as being critical of E.M.T. about the children having no bikes, no fireworks, and not attending the waterpark, and that they were not having any fun. He also stated to them, "I bet you guys don't even have table manners anymore, sit in front of TV in chairs while eating [sic]."

4. J.R. made a comment to M.A.R. that M.H., his stepfather, had hit him. M.A.R. asked him to repeat it and took out his phone to record it. M.A.R. appeared excited and said to J.R. that this "made his day". O.R. observed this exchange and said that M.H. also slaps her all the time. M.A.R. then spoke into his phone explaining that this was at a visit and then he hugged the children. She testified that she did not intervene as this incident occurred quickly but indicated to M.A.R. after that she would report the disclosures to After Hours. She observed M.A.R.'s fists to be clenched and his eyes wide. M.A.R. left angrily saying that CAS had got the "Mike's" mixed up.

5. As a result of M.A.R.'s behaviours, at the next visit on July 14, 2018 she advised him not to discuss court, or what happens outside the visits or at E.M.T.'s home. This appeared to upset M.A.R.

6. At the visit on July 21, 2018 she provided a letter to M.A.R. from fellow worker Loretta Collins directing him not to record the children at visits.

7. She confirmed that she has never stopped a visit because of M.A.R.'s behaviours.

[63] With respect to the statements by the children regarding M.H., counsel for M.A.R. confirmed that the statements were not being tendered for the truth of their content but the fact that they were made, and were offered to provide context of the later discussions between the parties and to provide a basis for their positions.

[64] Loretta Collins has worked with the applicant since 2006 and has been the family service worker with the family since December 5, 2017. She attended her first meeting with E.M.T. and the children on December 5, 2017 with Ms. DeVos. She has continued to meet with the children regularly since taking carriage of the file and feels she has a good rapport with them.

[65] The parties have been the subject of the interim supervision order dated January 23, 2018 that placed the children with E.M.T. on terms of supervision with access. Ms. Collins testified to no concerns with E.M.T. since that order was made and that she has complied with the terms.

[66] Ms. Collins testified that during the meeting on December 5, 2017 M.A.R. disputed the concerns and stated that he was frustrated about being involved with the Society. She observed that during the meeting his fists were clenched and shaking.

[67] After that brief meeting she had little contact with M.A.R. She repeatedly attempted to contact him including through his aunt, L.G., which was the contact information M.A.R. had provided her during the meeting on December 5, 2017, without hearing back.

[68] Ms. Collins testified that M.A.R. did not maintain communication with her, did not sign consents when requested, and did not follow through with drug screens or any programming recommended which were terms in the January 23, 2018 interim order. As a result of M.A.R.'s non-communication she has been unable to discuss the issues and make the referrals required. At times M.A.R. would not respond to her, and at other times messages she sent were not deliverable. As a result of these difficulties in May 2018 Ms. VanDaele wrote a letter to be delivered to M.A.R. at access about proposed meeting times (Exhibit 21).

[69] M.A.R. did not provide updated contact information until May 15, 2018. After that there were still difficulties contacting M.A.R. and Ms. Collins wrote a further letter to him dated July 20, 2018 which was hand-delivered by Ms. Gosselin, requesting to meet with him in order to move the matter forward. Her letter also noted that both J.R. and O.R. wanted more time with him. She proposed numerous dates and received no response.

[70] As a result she has no information on any programming M.A.R. may have done. There have been no drug screens as he has refused to sign consents. He also refused to sign a consent to permit her to communicate with his family doctor. She became aware from M.A.R. that he resides on Roger Street in Tillsonburg. She is not aware of how often he stays there as he also referenced coming in from out of town on other occasions. M.A.R. has not requested that she attend and observe his residence in Tillsonburg and he has not provided any information about his other out-of-town residence. As a result she has not observed his residence.

[71] Ms. Collins testified that she tries to work with parents so that access can be expanded but has not been able to do so in this case because of M.A.R.'s unwillingness to meet with her, share information, and undertake programs. Ms. Collins testified at trial on June 19, 2019 and stated she did meet with M.A.R. and the lead access Monitor on April 26, 2019 to discuss moving access forward. At that time M.A.R. agreed to sign consents and to attend programs, however, his work schedule has precluded this. He also subsequently refused to sign consents. She also confirmed that M.A.R. has never proposed alternate supervisors, indicating that he did not want anyone else involved.

[72] Ms. Collins investigated the disclosures by the children to their father about M.H. at the supervised access visit on July 7, 2018. She met the children separately and did not verify the concerns of physical discipline by M.H. as the children recanted and did not repeat the disclosures. She was also concerned with M.A.R. recording the children in this context and of being visibly excited at the time. She confirmed in cross-examination that M.A.R. never followed up with her regarding this.

[73] She testified that M.R. continues to express the view of not wanting to attend access with M.A.R., and that she was fearful of fights between M.A.R. and T.E. J.R. and O.R. both have expressed no fears or concerns with E.M.T. and M.H. They have indicated they enjoy their visits with M.A.R. and seek more time with him. They are currently not expressing any concerns about access.

[74] Ms. Collins confirmed in cross-examination that J.R. and O.R. have disclosed no concerns with alcohol or physical discipline by their father during supervised access. She also acknowledged that M.A.R. has remained consistent with her throughout this matter that he disputes the allegations in their entirety. She further acknowledged never speaking with T.E., and that there appeared to be a back and forth between E.M.T. and M.A.R. through the children of making negative comments about each other.

[75] E.M.T. testified as follows:

1. She and M.A.R. were together from May 2010 to February 8, 2016. The children have remained in her primary care since separation.

2. She acknowledged executing minutes of settlement dated October 23, 2017 to resolve the custody and access proceeding which included liberal access to M.A.R. with all the children.

3. She acknowledged having counsel assist her with the custody proceeding and that she reviewed the minutes of settlement before signing them.

4. She stated there were significant issues related to physical abuse by M.A.R. before and after separation which she did not raise in the CLRA application dated August 17, 2016 or in her 35.1 affidavit. She stated that M.A.R. consumed a lot of alcohol when they were together and this was a major source of conflict. In cross-examination when asked if she had lied on her 35.1 affidavit she stated that she did not lie but just did not disclose.

5. She acknowledged never calling CAS in spite of her concerns, because she hoped M.A.R. would stop and change. She stated that she took pictures of the injuries on the children caused by their father but did not disclose them until November 13, 2017 when she gave them to Ms. DeVos. She never called the police with her concerns, disclosed them to CAS prior to the current proceeding, or in court during the custody matter because she was embarrassed and afraid, and "wanted to put it behind her". She also stated she wanted to get through the court process as quickly as possible. She also stated that she never contacted the Society with her concerns as she was thinking of everyone's safety.

6. She had significant concerns with T.E. because of her criminal conviction, and believed she was M.A.R.'s girlfriend,. She stated that she never met T.E. She confirmed M.R. had chosen not to attend access since January 30, 2017.

7. She acknowledged that since the supervised access started that J.R. and O.R. are generally excited about visits with M.A.R. and that they enjoy them. She stated that J.R. enjoys the access and gets frustrated not being able to do more things with his father. She stated that O.R. enjoys her visits and talks sometimes about missing her dad and wanting longer visits.

8. She began dating her current partner, M.H. in November 2016. He would stay over at her home at times. She and the children moved in with him in St. Thomas in September 2018.

9. She acknowledged calling Ms. Harnish on November 20, 2017 after receiving a call from M.A.R. from R.R.'s phone number. She provided phone records confirming that phone calls came from R.R.'s number and that M.A.R. left a message for her (Exhibit 26).

[76] M.A.R. testified as follows:

1. E.M.T. never raised concerns with him and never stopped his access from occurring. He was of the view that all issues were resolved in the custody proceeding by way of minutes of settlement and he seeks to return to this arrangement.

2. He disputes the allegations of protection concerns in their entirety. He has never been physically or verbally abusive to or in front of the children, and only ever raised his voice if there were safety concerns.

3. He acknowledged smoking marijuana but never when the children were present. He last saw T.E. in October or November 2017, and the children last saw her in September 2017.

4. In his direct testimony he stated he did have arguments with T.E. about her "being high on whatever she was taking".

5. After the Society brought the application and he was having supervised access, he stated he did ask for access outside CAS because the facilities at CAS were "not humane", but it was CAS who refused. Once the visits went outside they were very positive.

6. He acknowledged periods of time after the apprehension that he was homeless. He now lives at 17 Roger Street in a two-bedroom apartment with a roommate named S.H.

7. He denied the allegations of Ms. Slade regarding March 7, 2018. He stated he went upstairs to talk to the worker and to get food. Ms. Slade made him feel uncomfortable and told him that he was not allowed to be there so he left after a couple minutes. He denied he got a letter from CAS outlining the terms permitting them to reside in the home. He disagreed with Ms. Slade's testimony about his escalated behaviour and stated he was acting calmly.

8. He acknowledged having limited contact with the workers and that he refused to sign consents or attend programming on the basis that he had done nothing wrong. He did not communicate much with Ms. Collins because she was "demanding".

9. He disputed that there were any times at access that he is unable to manage the children's behaviours. He wants to be able to return to his active lifestyle with the children which included camping and motorbikes.

10. He denied abusing alcohol and stated he only drinks socially and never to excess, but acknowledged pleading guilty to a DUI on October 31, 2017.

11. T.E. is an old friend and he did not view her as ever having been his girlfriend.

12. By October 2017 his relationship with T.E. was bad as she was lying a lot and under the influence of cocaine, however, she never used cocaine in front of the children.

13. He acknowledged that he was aware T.E. had been in jail. T.E. told him she pled guilty but said it was not her but rather "the system". His relationship ended with her around the time he became aware of this.

14. T.E. never lived with him. She was there approximately 50% of the time when the kids were visiting. He testified that he did not consider her his girlfriend and they never slept together. When questioned about the children's observations that they both slept in the bedroom, he agreed he "apparently" slept in the same bed as T.E. but nothing was going on.

15. He stopped talking to T.E. in September 2017 and no longer wanted her in his home. When asked about Ms. DeVos finding her there smoking marijuana in November 2017 he stated he was unaware that she was there.

16. He acknowledged he was charged with an assault against T.E. in late 2016. He also acknowledged that T.E. used police assistance to get her belongings from his residence when she left.

17. He acknowledged videotaping the children and making the comments attributed to him by Ms. Gosselin on July 7, 2018, but he disagreed that he responded in an excited fashion.

18. He acknowledged never asking Ms. Collins to come over to see his residence on Roger Street, and agreed that he spends alternate weekends out of town helping out at his aunt's.

19. He adamantly denied any physical discipline of the children and denied calling M.R. derogatory names and believed that M.R. was coerced to say the things that she did.

20. He acknowledged in cross-examination that in hindsight E.M.T. was right about T.E., and that T.E. lied about her past, and about drugs. He observed her to be wide-eyed and sleeping all the time.

[77] T.E. testified on behalf of M.A.R. as follows:

1. She acknowledged she was incarcerated for accessory after the fact to murder and was released from prison on May 26, 2014.

2. She has a child named C. who is a crown ward and been adopted, but who mostly lives with her now.

3. She met M.A.R. in February 2016 and began a dating relationship with him which developed quickly. Three or four months after starting to date she moved in with him in R.R.'s basement in about June 2016. She stayed there until November 6, 2017 when she moved out because C. was returning to her care. However, after only five days the Society removed C. from her care again even though she had met all the requirements.

4. She got along really well with M.R., J.R., and O.R., and between June 2016 and November 2017 she was there every weekend that they were.

5. She never observed M.A.R. strike the children and she has never done so. She has never raised her voice or been rude to them. M.A.R. would only yell at the children if they went to the pool area unsupervised, did not go to bed, or went into the garage when they were smoking.

6. She denied ever throwing things, and stated that she does not drink alcohol and only observed M.A.R. to drink casually and never to excess. The children never told her that they felt unsafe.

7. She disputed all the allegations of drug use, except marijuana when the children were not present, and disputes comments that Ms. DeVos testified she made to her about going to M.A.R.'s when she rages and needs drugs.

8. She left M.A.R.'s home on November 6, 2017 and when asked if she left on good terms with M.A.R., she indicated that she was "okay" with M.A.R. She stated the relationship ended because her daughter C. did not want her and M.A.R. to be together.

[78] In cross-examination T.E. stated she never lived with M.A.R. but spent nights there. She further denied that M.A.R. was ever charged with assaulting her, but that the police were involved approximately 5 times during the relationship when she needed to get away and to assist her in retrieving her property. However she then stated that she did not live with him and only had one bag of belongings there.

[79] When questioned by Ms. Hegny about her comments regarding her drug use to Ms. DeVos in November 2017, she stated that she lied and faked the withdrawal symptoms to keep CAS involved even though this resulted in C. being removed from her care again.

[80] She further acknowledged that on November 15, 2017 Ms. DeVos had seen her at M.A.R.'s smoking marijuana. T.E. also stated that she called the police in November 2017 for assistance in removing her belongings from M.A.R.'s home.

[81] In cross-examination with Mr. McQuaid regarding her guilty plea to accessory after the fact she stated she was duped by the criminal justice system, and lied about her involvement in criminal court to get a lesser sentence than was being sought. She also denied that she slept all day while she was at M.A.R.'s or used drugs other than marijuana.

Credibility Assessment

[82] Where the evidence of E.M.T., M.A.R., and T.E., conflict with that of the Society workers I accept the evidence of the workers for the following reasons.

[83] There were no significant inconsistencies between the observations made by the workers who all testified to generally positive interactions between M.A.R. and the children, that they enjoyed visits, and also that M.A.R. had difficulty controlling the children's behaviours at times. The workers were also consistent in noting that when M.A.R. was challenged or angry his fists would be clenched and shaking. The evidence of the Society workers remained consistent in cross-examination. Further, the Society worker's, and particularly the access supervisors, offered balanced evidence and acknowledged the positive observations between M.A.R., J.R., and O.R., and the fact the children expressed the desire for more time with their father.

[84] More importantly, however, I have serious concerns about the credibility of E.M.T., M.A.R., and T.E. for a number of reasons.

[85] With respect to E.M.T. the positions she offered the court regarding M.A.R. in this and the prior custody matter were entirely contradictory. In her application for custody, which was filed as an exhibit, she stated the parties never lived together. In her testimony at trial she stated that she and M.A.R. cohabited from May 2010 to February 2016.

[86] She also filed a 35.1 affidavit in the custody proceeding swearing to no issues of domestic violence or other concerns. In this proceeding she acknowledged providing inaccurate information under oath in that document and that there were significant safety concerns with the children seeing M.A.R. that she was aware of at the time.

[87] When asked if she had lied on her 35.1 affidavit she stated that she did not lie, she just did not disclose. I disagree with this characterization. She was dishonest in a sworn document and misled the court on important matters in a way that put her children at risk of harm.

[88] She was also not consistent in her testimony regarding her interactions with T.E. In direct evidence she stated she had never spoken to her but had received insulting texts from her. In cross-examination she acknowledged speaking to T.E. at exchanges.

[89] On the basis of these factors I am left in considerable doubt regarding her evidence where it conflicts with the evidence of the Society workers or the children's. However, she now acknowledges her prior dishonesty and that her choices put her children at risk of harm as a result.

[90] I have similar concerns with the evidence of M.A.R. which contained numerous and material inconsistencies including the following examples:

1. In direct testimony he stated that J.R. did not like T.E. and wanted nothing to do with her, however, at paragraph 28 of his trial affidavit (Exhibit 31) he stated that T.E. did a good job with all the children including J.R. This was further contradicted by his testimony given during the voir dire on necessity wherein when asked about J.R.'s disclosures that T.E. yells at him to stop bugging her, he responded that J.R. "was after her" quite a bit and that she always hid in the bedroom and slept a lot.

2. In his affidavit at paragraph 19 he stated that at no time did he or T.E. ever yell or scream at each other. In his direct testimony at trial when asked about yelling and swearing with T.E. in front of the children he stated that he did have arguments with T.E. about her being "high on whatever she was taking".

3. In direct testimony he referred to T.E. as an old friend and not his girlfriend, but referred to her in his affidavit at paragraph 22 as his "former partner". In his answer in this proceeding he states he began to date T.E. in December 2016. At paragraph 20 of his affidavit he also states that neither he nor T.E. were physical with the children "when I was in a relationship with her".

4. He also stated that he and T.E. never slept in the same bed. However, in cross-examination when challenged on the basis of his children's observations that he did, he then agreed that he "apparently" slept in the same bed as T.E. but that nothing was going on.

5. He also stated at paragraph 19 of his affidavit that at no time did he or T.E. yell or throw objects. However, in his testimony during the voir dire on threshold reliability of the children statements on March 26, 2019 he stated that T.E. liked to throw things when she was frustrated and angry.

6. He stated at paragraph 17 of his affidavit that there were no concerns with T.E.'s contact with J.R. and O.R. However, he acknowledged in his testimony that T.E.'s status of using drugs was "not good" and that "she came to my house to get off of it". He said this in response when questioned about the comments T.E. made to Ms. DeVos about her rages, needing drugs, and going over to M.A.R.'s house at those times.

7. In cross-examination by Ms. Hegny he was asked if he had any concerns the children were being exposed to someone who was "stoned" and sleeping all the time. He responded that when she was stoned the children were not there and when the children were present there were no concerns because she was "passed out". This depiction is in marked contrast to his affidavit where there was a conspicuous absence of any reference to drug use by T.E., and wherein he states there was no concern with her contact with the children and that they all got along well together.

8. The 35.1 affidavit dated January 17, 2017 that M.A.R. swore for the custody proceeding, which was prepared with the assistance of counsel, outlines "None" under the heading of any criminal offenses he has been found guilty of. This was clearly not accurate as he has a criminal record with several entries predating his 35.1 affidavit which was attached as Exhibit E to his trial affidavit.

[91] Overall, I found his varying and evolving answers on these issues to be evasive and self-serving. He was dishonest in his sworn 35.1 affidavit. The numerous inconsistencies were not the type that have little or no adverse impact on his credibility. Indeed I must conclude that the inconsistencies have completely eroded any confidence the court has in his evidentiary narrative where it conflicts with that of the Society workers or his children.

[92] T.E. was called as a witness for M.A.R., although he referred to her in his evidence as dishonest, and much of their evidence contradicted each other (including with respect to the drugs, yelling, throwing objects, how T.E. got along with the children, when she left, and why she ultimately left in November 2017).

[93] There were numerous concerns with T.E.'s evidence which negatively impacts her credibility. In her direct evidence she stated that she lived with M.A.R. from about June 2016 to November 2017. Then in cross-examination she stated to Ms. Hegny that they in fact never lived together because "on paper" she had maintained an address elsewhere.

[94] With respect to her criminal conviction she stated she lied about her involvement to the criminal court to ensure she would get a shorter sentence. I took from this that she is prepared to be dishonest if she feels her personal interests are at stake.

[95] Further, I found parts of her testimony to be inherently unbelievable. She testified that she left M.A.R.'s home in November 2017 because her daughter C. was being placed with her. She then testified that C. was removed five days later even though she had done everything she was supposed to. She then stated, when asked about her comments about drugs, rages, and withdrawal symptoms to Ms. DeVos in November 2017, that she did make the statements but that they were lies and that she had "faked" her withdrawal symptoms because she wanted CAS to remain involved. This evidence lacked rationality or plausibility since the result was that C. was once again removed from her care, something she stated she did not want and felt was unfair.

[96] Overall and on the basis of these considerations, I have serious doubts about the veracity of E.M.T., M.A.R., and T.E.'s evidence where it conflicts with that of the Society workers and the children's.

Assessment of Children's Evidence

[97] The applicant's case is largely dependent on the evidence of the children. It is therefore important to evaluate it carefully. For reasons which follow, I accept that the evidence of M.R. is ultimately reliable and credible about the circumstances and treatment she and her siblings received at M.A.R.'s home. M.R. clearly had the opportunity to observe the events she did as she attended regularly up until January 30, 2017.

[98] I found M.R.'s evidence to be clear, convincing, and cogent. She presented herself in a straightforward and forthright fashion and was unequivocal on the central issues regarding the physical and verbal abuse at M.A.R.'s home. Her testimony remained consistent when challenged during cross-examination. She was adamant she was not lying about M.A.R. and T.E., or that she was influenced by anybody to make the disclosure she did. She remained consistent throughout her testimony regarding the hitting, yelling, and abusive behaviour she and her siblings regularly experienced from M.A.R. and T.E. Her evidence at trial was also consistent with her prior disclosures made to Ms. DeVos in November 2017.

[99] I agree with the observations of Dr. Harris, who testified regarding M.R. during the voir dire on necessity, that M.R. presents with an above average understanding for someone her age, and that she had no issues focusing during her testimony or articulating herself in response to questions.

[100] Most importantly, M.R.'s disclosures were also strikingly similar with the independent disclosures of both J.R. and O.R., which I also accept as ultimately reliable and credible.

[101] The disclosures of J.R. and O.R. remained consistent during their interviews with the worker, and most importantly were largely corroborative of each other's and with M.R.'s.

[102] There was also a plausibility to the children statements when considered in the context of their knowledge base and stages of development. The children's statements regarding drugs and alcohol in M.A.R.'s home were also compelling. J.R. did not know what drugs were but was consistent with M.R. regarding his observations of M.A.R. and T.E. cutting something up and rolling it in papers. M.R.'s description of this was also particularly detailed.

[103] Both M.R. and J.R. noted differences in M.A.R.'s behaviour when they saw him consume alcohol. M.R. said alcohol made M.A.R. angrier about things than usual. J.R. stated that he and his siblings tried to stay away from M.A.R. and T.E. when they were drinking.

[104] That the children knew to avoid their father when he was consuming alcohol and that it made him generally angrier, satisfies me that M.A.R.'s consumption of alcohol was more than casual and that it impacted his ability to regulate himself in front of his children.

[105] The children's evidence is challenged by M.A.R. on the basis of his and T.E.'s evidence which denied the substance of the children's statements regarding the hitting and yelling.

[106] One basis for this challenge is that the children may have been influenced to make these reports by E.M.T. I do not find this argument persuasive. There was no evidence to support a finding that they were influenced by E.M.T. M.R. remained clear about this in her testimony including during cross-examination. Further, E.M.T. made no effort to prevent the children from attending access or to address the allegations of abusive behaviour by M.A.R. she now admits that she was aware of. E.M.T. did not instigate the CAS intervention in November 2017. The referral came from the school and at that time E.M.T. had just resolved the custody application with M.A.R. having made no reference to these issues. That E.M.T. would be influencing the children when she herself was clearly unwilling to act upon their disclosures is not reasonable or inherently believable in the circumstances.

[107] The second and more important challenge that M.A.R. makes to the credibility of his children's disclosures relates to the fact that there were variations in details and a lack of specifics of when these incidents occurred.

[108] The issue of the judicial assessment of children's evidence was succinctly outlined by Parry J. in Children's Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852 as follows:

[92] Historically, both the common law and statutory law treated the evidence of children treated as inherently unreliable. Indeed, the Criminal Code made corroboration a prerequisite for the court's reliance upon the evidence of a child. Such statutory provisions have long since been repealed, and the common law has evolved over the last thirty years.

[93] The old rule that the testimony of children suffers from inherent frailties is just that, an old rule. It is no longer the law either in statute or at common law. Testimony is not suspect merely because the witness is a child. However, there also does not exist a presumption that children's evidence is inherently reliable. The same standard of proof applies to the evidence of children and adults; and, just as with adults, a judge is free to treat a child's evidence with caution where the circumstances of the particular case indicate caution is appropriate. [See: R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.)].

[94] Having said that, the appellate courts have urged the judiciary to take a common sense approach to the evidence of children. Courts are encouraged to understand that children may sometimes have a decreased capacity to make observations; to recall events; and to communicate. [see: R. v. E.(A.W.) (1993), 83 C.C.C. (3d) 462 (S.C.C.)].

[95] In recognition of the different ways in which children experience the world and interact with it, Wilson J. provided the following guidance with respect to the assessment of the evidence of children:

... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults . However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult . I think his concern is well founded and his comments entirely appropriate . While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it . In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

R. v. B.(G.) (1990), 56 C.C.C. (3d) 200 (S.C.C)

[109] I am not persuaded in the circumstances that the lack of specific dates and times in the children's evidence materially undermines their credibility. The evidence of all the children, which was given separately from each other, was strikingly similar in terms of the hitting and yelling, and the general circumstances present in M.A.R.'s home.

[110] Most importantly the observations and feelings of J.R. and O.R. in November 2017 were expressed in a manner that suggested the inappropriate behaviour was ongoing and not isolated. They were also both clear that they did not feel safe at that time with M.A.R. and T.E. J.R.'s comment that his stomach would hurt sometimes when he had to attend visits, and O.R.'s comment that it made her sad and frustrated when her dad yells and swears were compelling, particularly when considered in the context of all the children's disclosures. Both J.R. and O.R. also stated that they would try not to watch when M.A.R. and T.E. would fight.

[111] The same can be said for M.R.'s evidence about why she stopped attending access before her birthday on January 30, 2017. She spoke of the behaviours by M.A.R. and T.E. as a regular and frequent part of the visits. With respect to her final visit she testified to being hit by M.A.R. and that he once again told her to go find her real father and that this made her cry. She was also clear that at most visits someone got hit, and that "because he had a lot of power, we would usually drop to the ground".

[112] That M.R. feared for her siblings when she stopped attending, and that J.R. felt less safe when M.R. was not there, further reflects the current and ongoing nature of the inappropriate behaviours by M.A.R. and T.E. The children's expressions of concern and fear were reasonable in the circumstances.

[113] A further argument raised by M.A.R. with respect to the children's statements relates more to their reliability than their credibility. He was of the view that the children were referring to their stepdad, M.H., and not to him when they made the disclosures because he and M.H. share the same first name.

[114] I do not find this argument persuasive. It was clear the children, even M.R., referred to M.A.R. as "dad", and to their stepdad as "Mike or Mikey". Further, the disclosures by the children referenced their dad and T.E. together, which clearly were not referring to their stepfather. The children's disclosures were referencing M.A.R.

[115] In my view the issue of whether T.E. was living with M.A.R. or not is one of semantics. I accept that they were in a relationship and that she was generally always there when the children were present from June 2016 to November 2017 when the Society became involved and directed that M.A.R. and T.E. have no unauthorized contact with the children. I find that T.E. was present in the home up to November 2017 and only left after intervention by the Society and not because M.A.R. asked her to leave previously or because of her daughter C.

[116] I also accept on a balance of probabilities that M.A.R. was present at R.R.'s after she was directed that he not be there on November 15, 2017. I accept that he was there on November 20, 2017 as evidenced by the phone records outlining calls he made to E.M.T. from R.R.'s phone number.

[117] Further, later on November 20, 2017 when Ms. Harnish attended with police at 11 PM after R.R. and the children were in bed, she did not find M.A.R. present, however, the lights and TV were on in M.A.R.'s basement apartment and there were other signs that someone had very recently been there. In all the circumstances I accept on a balance of probabilities that M.A.R. had been present at R.R.'s home around that time prior to the worker's attendance.

[118] Ms. DeVos testified that R.R. also refused to permit the worker to look in the basement on November 22, 2017 when she attended to investigate concerns that M.A.R. was once again there following interviews with M. and A.

[119] R.R.'s refusal to permit the worker to search the basement where M.A.R. lived is strongly suggestive, when considered with the entirety of the circumstances, that the term that M.A.R. not be there was being actively breached.

[120] Further, I accept that on March 7, 2018 M.A.R. and R.R. were in breach of the terms which permitted M.A.R. to return to reside in R.R.'s basement, and particularly the term of not being upstairs when M. and A. were present. M.A.R. reacted aggressively when confronted causing the worker to justifiably fear for her safety. I further find that M.A.R. and R.R. were aware of the terms at that time, which were the basis for the applicant permitting M.A.R. to return to R.R.'s basement because he was transient. Kate Slade spoke to R.R. on January 22, 2018 about the terms and provided them to her in writing. Further, their counsel had the letter from January 2018 outlining the terms, because his assistant provided it to M.A.R. and R.R. that day when she attended the home.

[121] R.R. was not called to testify to refute any of the workers' evidence in spite of M.A.R. naming her as a witness during the trial management conference. In the circumstances of M.A.R. and R.R.'s reaction to the worker on March 7, 2019, I find it more probable than not that they were breaching the terms throughout the period from January to March 2018.

Findings of Fact

[122] Based on the foregoing the following findings of fact are made:

1. T.E. and M.A.R. were in a relationship and she was present in his home when the children were there from June 2016 to November 2017 when the Society intervened.

2. M.R., until June 30, 2017 when she stopped attending, and J.R. and O.R. up to November 2017, were subjected to regular adult conflict between M.A.R. and T.E., and the effects of drug use on T.E. which M.A.R. was aware of throughout. T.E. would hit and yell at the children.

3. The children were also exposed to marijuana by M.A.R. and T.E., and the children observed it in the home while they prepared it for use.

4. The children were hit and yelled at by M.A.R. when he was angry at them, and this was a regular occurrence in the home. This inappropriate behaviour increased when he was consuming alcohol which was also a routine occurrence. This was frightening to the children, and as M.R. noted, usually someone got hit during access. M.R. was sworn at and called derogatory names by M.A.R., and he repeatedly told to go find her "real dad".

5. The children were exposed to regular domestic conflicts between M.A.R. and T.E. including yelling, swearing, and throwing objects.

6. The culmination of these ongoing concerns caused the children to not feel safe in M.A.R.'s home. This caused M.R. to fear for her siblings when she stopped attending and for J.R. to be more fearful when M.R. was not there.

7. E.M.T. was aware of the abusive behaviour in M.A.R.'s home and misled the Court, including under oath, in the custody and access proceeding. She did not disclose it to the Society until November 2017 after the referral from the school, and she failed to act protectively of the children.

Analysis

Statutory Findings

[123] The information concerning the statutory findings was not disputed and accordingly an order shall issue pursuant to page 3 of the protection application found at tab 1 of Exhibit 6.

[124] As the Court is being asked to make orders regarding both finding and disposition, in accordance with section 93(2) of the CYFSA, it is important that the court only consider evidence with respect to the findings and not the disposition at this first stage.

Findings in Need of Protection

[125] The Society seeks findings in need of protection on the basis that the children suffered harm pursuant to section 37(2)(a)(i) and (ii) of the CFSA (which is now section 74(2)(a)(i) and (ii) of the CYFSA), that there is a risk that they will likely suffer physical harm under section 37(2)(b)(i) and (ii) of the CFSA (which is now section 74(2)(b)(i) and (ii) of the CYFSA), that they are at risk of emotional harm under section 37(2)(g) of the CFSA (which is now section 74(2)(h) of the CYFSA).

[126] For reasons which follow the applicant has established on a balance of probabilities that the children have suffered actual physical harm and are at risk of physical harm.

[127] With respect to the finding regarding actual physical harm the evidence establishes that the atmosphere in M.A.R.'s home was one of yelling, swearing, hitting, and throwing objects, and that these were regular occurrences in the home. The excessive physical discipline by M.A.R. towards the children involve hits or slaps to the back or face of the children and would occasionally result in bruising.

[128] The evidence did not suggest that the children suffered any physical injuries beyond occasional bruising or ever required medical attention. However, a consistent pattern of repeated physical discipline, coupled with yelling and swearing and exacerbated by alcohol use, all of which caused the children to fear for their safety, represents more than trifling harm and is sufficient to establish actual physical harm to all the children.

[129] Further, the behaviour was not only a regular part of visits but it occurred over a significant period of time as M.R. stopped attending in January 2017 because she could no longer tolerate being hit and yelled at, and her siblings reported similar ongoing concerns and of not feeling safe with their father in November 2017. This suggests to me that this inappropriate behaviour exhibited by M.A.R. was not isolated, occurred over a significant period of time, and was ongoing at the time of Society intervention.

[130] A finding of physical harm is also supported in that M.A.R. failed to protect the children from T.E. who also engaged in the hitting and yelling at the children, and further because E.M.T. was also aware of the physical discipline and failed to act protectively.

[131] On this basis a finding under section 74(2)(a)(i) and (ii) is made out.

[132] For the following additional reasons, I am of the view that the children are at risk of physical harm.

[133] The environment in M.A.R.'s home was one marked by yelling and swearing between M.A.R. and T.E., and towards the children. The children were exposed to the effects of excessive alcohol use by M.A.R. which made him angrier and motivated his children to avoid him at those times. M.A.R. also permitted the children to be exposed to the effects of drug use on T.E., whose drug status M.A.R. acknowledged was "not good" and a source of conflict between them. T.E. would yell at the children and engage in conflict with M.A.R. which included throwing items. That M.A.R. did not consider it inappropriate that T.E. have contact with his children, even on the basis of his own evidence about her, calls into question his judgment in the circumstances.

[134] While both M.A.R. and T.E. minimized the conflict between them they both agreed that during their short relationship the police were involved on more than one occasion. T.E. testified she needed to call the police 5 times to retrieve her belongings including following their final separation in November 2017.

[135] A finding that the children are at risk of physical harm is also supported by E.M.T.'s failure to adequately protect them. She was aware of the concerns in M.A.R.'s home from the children and failed to take any reasonable steps to protect them until after the Society became involved in November 2017.

[136] On the basis of the foregoing the applicant is established on a balance of probabilities that the children are at risk of physical harm pursuant to section 74(2)(b)(i) and (ii).

[137] With respect to the risk of emotional harm the applicant must establish the prescribed symptoms of emotional harm and must show a real likelihood of harm on a balance of probabilities. This includes establishing that the degree of harm is both serious and causally connected to the parent's behaviour.

[138] I am not convinced that the children are at risk of emotional harm on the basis of the evidence presented. If a child is at risk of physical harm it does not automatically follow that the child is also at risk of emotional harm.

[139] While expert evidence is not always required, it is preferable, and the Society did not adduce evidence from anyone with the credentials to establish that such a risk exists.

[140] Further, the Society has not shown there is a risk that any of the children will suffer emotional harm as demonstrated by at least one of the symptoms listed (except perhaps anxiety if it is inferred from their expressions of fear prior to November 2017), or further that it would be a serious demonstration, rather than minimal, mild, or even moderate one.

[141] There was a brief reference by the intake worker, Ms. DeVos that the original referral from the school was made on the basis of O.R. making disclosures concerning M.A.R. and T.E. and having "significant challenges" in the classroom. No direct or additional evidence on this point was provided. There was little other evidence of the children's behaviours in their home, school or in the community that would establish that the children are at risk of emotional harm.

[142] This is not to say that expert evidence is always required, or that the risk of emotional harm may not be made out in appropriate cases solely on the basis of the exposure to domestic violence or on the basis of the child's distressed reactions. However, in this case the evidence presented was not sufficient to establish that the risk exists and would be demonstrated by at least one of the listed symptoms, and that it would be a sufficiently serious demonstration.

[143] On the basis of these considerations the claim for a finding of a risk of emotional harm is dismissed.

Disposition

[144] For the following additional reasons the applicant has satisfied the burden of establishing that the least intrusive order consistent with the protection and best interest of the children is that they remain in their mother's care subject to a supervision order with access to M.A.R. at the discretion of the Society (with any access by M.R. being subject to her wishes), until M.A.R. has established that the protection concerns have been addressed.

[145] Sections 101 and 102 of the CYFSA provide that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders:

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

2. that the child be placed in interim Society care and custody for a specified period not exceeding 12 months;

3. that the child be placed in extended Society care until the order is terminated under section 116 or expires under section 123;

4. that the child be placed in interim Society care and custody 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 a total of 12 months; or,

5. that one or more persons be granted custody of the child, with the consent of the person or persons.

[146] The court's decision must take into consideration the paramount purpose of the CYFSA, as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.

[147] The court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of children.

[148] The governing principle when considering the placement of a child is the "best interests of the child". The factors to be considered in determining best interests of a child are contained in section 74(3) of the Act, which provides as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

a. consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

c. consider any other circumstance of the case that the person considers relevant, including,

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

ii. the child's physical, mental and emotional level of development,

iii. the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. the child's cultural and linguistic heritage,

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

vi. 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,

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

viii. 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,

ix. the effects on the child of delay in the disposition of the case,

x. 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, and

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

[149] 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 well-being of children. Under section 101(2) of the Act a court is required before making a disposition to consider what efforts the Society or other agency has made to assist the child before making an order that would remove a child from a parent's care.

[150] The evidence in this case sets out significant efforts by the applicant to support the family, particularly in terms of making the appropriate referrals for programming, offering regular access, and attempting to engage M.A.R. so that the issues could be addressed and his access expanded. In the circumstances I am satisfied that the applicant has fulfilled its duty in this regard.

[151] The Society's plan, supported by E.M.T., is that the children remain in her care while it continues to attempt to work with M.A.R. to address the issues in his home. The Society has no present protection concerns with E.M.T. and view her as having been compliant with the terms of the interim order. E.M.T. and the children have been referred to and engaged in programming to address domestic violence.

[152] The Society has made significant efforts to engage M.A.R. in addressing the concerns but has been unable to do so because of M.A.R.'s continuing refusal to engage.

[153] Indeed, M.A.R.'s refusal to cooperate has been a major impediment to moving this matter forward, perhaps more so than the fact that he has been unable or unwilling to acknowledge the protection concerns that are apparent on the evidence.

[154] Other than attending access, he has taken no meaningful steps to work cooperatively with the Society. He failed to maintain contact with the workers and went for significant periods of time without updating his contact information. He ignored repeated requests to meet with workers, some of which were made in writing and hand delivered to him.

[155] After the apprehension on November 16, 2017 he did not make himself available to meet with the worker until December 5, 2017, and after that had a significant period of limited or no contact with her. M.A.R. has not signed consents or engaged in any programming recommended in spite of the terms of the interim order which required it.

[156] On April 26, 2019, during the trial, he did meet with Ms. Collins and the lead access Monitor at their request, and committed to signing consents including for drug testing and for his family physician. M.A.R. further committed to engaging in parenting programming. However, he did not follow through. He has also not requested that the worker attend his home, or otherwise proposed any alternate supervisors for his access, citing that he did not want to get anyone else involved.

[157] He also did not immediately pursue access in the community when it was offered in early 2018 because he said he would be embarrassed to be seen in the community being supervised with his children.

[158] While his access has generally been positive, there are times when he has not been able to always control the behaviours of the children. His inability to control his own emotions in front of the children has also been a concern. Telling them on February 3, 2018 that he was not coming back to access and refusing to "pinky swear" with O.R. was not child focused and would no doubt have been upsetting for the children.

[159] His behaviour on July 7, 2018 when he made numerous negative comments to the children about their mother and the Society, and then proceeded to get visibly excited and record them when they made negative comments about their stepfather is further evidence of M.A.R. lacking insight into the concerns, and of not recognizing that his approach to this matter is often not child focused.

[160] Even if M.A.R. were not willing to acknowledge the concerns, greater engagement, cooperation, and adherence to the terms of the interim order would have, in all likelihood, moved the matter along quicker.

[161] His failure to follow the directions of the Society regarding no contact with his nieces in the care of R.R., and either not residing at R.R.'s or residing there pursuant to clearly outlined terms provided in writing is also a major concern.

[162] In spite of the direction to not be at R.R.'s on November 15, 2017 he was there on November 16, 2017. When he was permitted by the Society to return to R.R.s basement in January 2018 because he was transient, he and R.R. were in blatant breach of the terms on March 7, 2018 when the worker was present. His aggressive behaviour on that occasion created additional protection concerns for his nieces and safety concerns for the worker.

[163] In addition to these times I find that it is more likely than not that M.A.R. was in breach of the directions at other times prior to March 7, 2018. It was clear from M.A.R. and R.R.'s reaction to the worker on March 7, 2018 that they did not see any issue with their behaviour and both attempted to minimize or mislead the Society about the circumstances in the home.

[164] These examples are strongly suggestive that there is a concern for M.A.R. following, without exception, terms of an order even if he feels it is unfair or unnecessary for him to do so. In all these circumstances, that M.A.R. has not used physical discipline or alcohol during supervised access does not mean the issues would not recur if access were unsupervised. They are not sufficient on their own to establish that the risks posed by his highly inappropriate behaviour previously at access have been addressed. Without evidence that he has followed through with programming to address his parenting and anger issues, established a track record of cooperation and engagement with the Society, and of following through with court ordered terms, I have little confidence that the circumstances in his home would be any different, even if he is no longer involved with T.E.

[165] However, in spite of all these issues, M.A.R.'s plan to return to the arrangements outlined in the custody agreement is not without merit and one that I believe is achievable by him in the relatively short order if he changes his approach and engages with the worker and follows the terms of the order.

[166] Apart from the concerns outlined herein with respect to his supervised access, the evidence was compelling that he clearly has a loving and warm relationship with J.R. and O.R., and that they enjoy spending time with him. The evidence was clear that they have not expressed any safety concerns with their father since supervised access began after November 2017. They have consistently stated a desire to spend more time with their father. He also has much to share with them including his active lifestyle of camping and other outdoor activities.

[167] The court has also taken into consideration the children's views and wishes, given due weight in accordance with the children's age and maturity pursuant to section 74(3) of the Act. Ms. Gordon reports that O.R. and J.R. have consistently expressed a desire to have more access to their father, although they are content that it remain supervised at this time. Virtually all of the Society's witnesses, and even E.M.T., shared the view that J.R. and O.R. have consistently expressed the desire to have more time with their father, and are not expressing any fears or concerns with the supervised access that has occurred since November 2017.

[168] M.R. has also expressed the strongly held view that she does not wish to see M.A.R. at this time and that any access be pursuant to her wishes. In the circumstances her views and preferences should be given significant weight.

[169] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1(1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74(3) of the CYFSA.

[170] However, the factors in subsection 74(3) of the CYFSA are subject to the paramount duty in s. 1 to protect the best interests of an apprehended child. In other words, family and parental relationships are to be recognized only to the extent that they are "consistent with the best interest, protection and well-being of the children". Syl Apps Secure Treatment Centre v. D.(B.), 2007 SCC 38.

[171] The protection concerns evident at the time of intervention have not been sufficiently ameliorated primarily as a result of M.A.R.'s non-engagement and not following through with programming. His failure to acknowledge any concerns, and not adhering to the directions of the Society regarding his presence in R.R.'s home are also a significant concern.

[172] In terms of disposition, when the evidence as a whole is considered the least intrusive order consistent with the adequate protection of the children and consistent with their best interests is an order placing the children with E.M.T. subject to terms of supervision, with access to M.A.R. at the discretion of the Society. Hopefully M.A.R. will begin to cooperate with the Society and take more meaningful efforts to address the protection concerns that are abundantly clear on the evidence so that access can move forward as he and J.R. and O.R. seek.

[173] The basis of all this circumstance as outlined herein, there shall be a final order as follows:

1. The statutory findings are made pursuant to page 3 of the Protection Application found at tab 1 of Exhibit 6.

2. Findings in need of protection shall be made on the basis that the children suffered physical harm pursuant to section 74(2)(a)(i) and (ii) of the CYFSA, and that there is a risk that they will likely suffer physical harm under section 74(2)(b)(i) and (ii) of the CYFSA.

3. The claim that the children are at risk of emotional harm under section 74(2)(h) of the CYFSA is dismissed.

4. The children shall be placed in the care of their mother, E.M.T., subject to supervision for a period of six months pursuant to terms 1 (a-d, g-q) starting at page 2 of the applicant's Plan of Care found at tab 2 of Exhibit 6.

5. Access by M.A.R. to J.R. and O.R. at the discretion of the Society pursuant to term 2 and 2(a) at page 4 of the applicant's Plan of Care found at tab 2 of Exhibit 6.

6. Access by M.A.R. to M.R. at the discretion of the Society and subject to the wishes of the child.

Released: October 23, 2019

Signed: "Justice S. E. J. Paull"