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:

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.

ONTARIO COURT OF JUSTICE

DATE: 2020-06-11

COURT FILE No.: Elliot Lake File No. 16/11

BETWEEN:

CHILDREN'S AID SOCIETY OF ALGOMA

Applicant,

— AND —

L.G.

M.J.H.

R.C. (Added Party)

Respondents

Before: Justice John Kukurin

Heard on: Sept 11, 12, 13, 16, 17, 18, 25, 26, 27, Oct 24, Dec 13, 2019

And on: written submissions

Reasons for Judgment released on: June 11, 2020

Counsel:

Anthony Marrato — counsel for the applicant society
George Florentis — counsel for the respondent mother, L.G.
No appearance by or on behalf of — Respondent father, M.H.
Eric McCooeye — counsel for the added party, R.C.
Andre L Berthelot — counsel for the Office of the Children's Lawyer, legal representative for the three children

REASONS FOR JUDGMENT

Kukurin J.:

[1] INTRODUCTION

[1] This is a decision on a status review application in which the applicant society seeks extended society care (ESC) – formerly crown wardship – for three sibling children: a girl M. (now age 15), a boy J. (now age 13) and a girl P. (now age 9). The sole participating respondent is the mother of the children who seeks their return. The named father (of M. and J.) did not participate, and he is allegedly in Quebec avoiding an arrest warrant from the Ontario courts. The added party, an aunt, withdrew. The children are represented by counsel from the Office of the Children's Lawyer. The children are not First Nation, Metis or Inuit.

[2] THE ISSUES IN THIS CASE

[2] There are a multitude of issues that have surfaced in this case. The major ones are set out below.

(a) What is the test that the court must apply at a status review hearing? Is it solely the best interests of the child test, or is it a two part test that includes a requirement that the court first find a continuing need of protection?

(b) If a continuing need of protection in this status review proceeding is required, are the grounds for this continuing need to be:

(i) the same grounds as in the formal finding of the court that heard the child protection application, or

(ii) other grounds, but only those listed in s.74(3) of the Child Youth and Family Services Act (the CYFSA), or

(iii) facts that do not form any of the grounds in the CYFSA statute?

(c) What does the court do with hearsay evidence of a child presented through other witnesses that is contradicted by the viva voce evidence of the same child at trial, when the child at trial is the witness of the party who is also presenting the contradictory hearsay evidence?

(d) What weight, if any, does the court accord to contradictory or inconsistent hearsay evidence of children, either of one child or of siblings?

(e) What weight does the court give to views and wishes of the children under the CYFSA, and is that weight any different than the weight that was to be accorded under the former statute, the Child and Family Services Act (the CFSA)? More importantly, do views and wishes of children have any higher or lower place in the hierarchy of all mandatory considerations that are placed on courts in applying the best interests test in s.74(3) CYFSA?

(f) Does the fact that the children have been in the continuous 'temporary' care of the society for over five years in the present status review proceeding create a current status quo for them, or is their current status quo one in which they were prior to being apprehended, namely, in the custody of their mother under a supervision order – and how does this affect the court's consideration of 'continuity' and 'disruption' in s.74(3)(c)(vii) CYFSA, namely "the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity"?

[3] THE PARTIES AND THE PLAYERS

[3] These Reasons require the reader to understand the context in which they are presented. That, in turn, requires an appreciation of the history of the child protection litigation which is lengthy and somewhat serpentine. It also requires a sort of Dramatis Personae listing and brief description of the major players in the litigation.

[4] The Respondent mother and the Respondent father are bioparents of the two older children M. and J. The name of the biofather of the youngest child P. is undisclosed and remains unknown to this date. Perhaps the mother knows, or perhaps she doesn't. She has never disclosed it. No paternity tests were ever done.

[5] The Respondent father is originally from Quebec. He has not participated in this status review proceeding. The mother and the father separated in 2010 or earlier. The mother initially contacted the society because the father overheld the two older children on his access visit, and was refusing to return them. Eventually he did return them to the mother. The society became actively involved when the father was charged with a sexual offence against an (unrelated) underage girl. The mother, in the society's view, was either believing the father's denials of, or was blind to, his sexual transgressions. In any event, he pleaded guilty, and the criminal case was adjourned for preparation of a pre-sentence report and sentencing. On the date of sentencing, he sought to change his plea. The case was then put over to another date. He never showed up and has not been seen in Ontario since 2011. It is pretty clear that he went back to Quebec and his arrest warrant has never been executed to bring him back. He has not seen the children, or spoken with them, or they him, since 2014. He is ethnically French Canadian.

[6] The mother, L.G., also has a French Canadian background. While she appears to have initially sided with the biofather in his encounter with the criminal justice system, once he pleaded guilty, and absconded to Quebec, she evidently changed her views of him. He and she never had a thriving or satisfying spousal (or common law) relationship, and she now views him as past (and pejorative) history. The mother became embroiled in a child protection proceeding commenced by the society in April 2011 when he was still around, and in several status review applications after he left town. It might be fair to describe the mother's attitude towards the society as outwardly co-operative, but inwardly as passive-aggressively hostile. In short, she has historically been minimally co-operative, but there is clearly an underlying antagonism for most of the society workers with whom she has come into contact (and there have been plenty). She, however, loves her children, and has been very faithful in exercising access to them when they have been in society care. Her 'hands on' parenting has been what one might expect from a small Northern Ontario (Elliot Lake) single mother of three rather difficult children. She has clearly had child management problems with all three children when they were in her care.

[7] She has family support from her mother with whom she is still close. She is somewhat estranged from her sister R., an added party in this case, of whom she does not have a great opinion, nor with whom she has a good relationship. The mother did work, at one time at a coffee shop. Whether, or where, she is currently working, if she is at all, is unknown. She was a recipient of Ontario Disability Support Program (ODSP) benefits, and likely is still. Her disability is physical in nature (lower back) and she was in considerable pain at one point in the trial. She does not have a vehicle and relies on friends or public transit.

[8] The third significant adult in this litigation is a male to whom I will refer as "G." because that is his name. G.'s history is less known. What is known is that he has a son, J.X., from a now defunct relationship, and he has apparently been exercising access to this son. G.'s relationship to his ex-partner, the mother of this son, has been a question mark, but it appears that she also is (or was five years ago) a client of the society. I infer from the evidence that the society has ongoing court proceedings involving this ex-partner and G. There are some indications that this ex-partner is not fond of, or friendly with the mother, particularly after G. began to spend time with her. The kind of time he spent with the mother is also somewhat of a question mark as it has never been explained in any clear detail. What can be gleaned from the evidence is that G. spent time with the mother and her three children while not residing with them in their home. His presence there became more frequent over time, until he was, at some point, living with the mother in her home. Over this time (which may have been as long as two years or so), he and the mother developed a relationship which I surmise was an intimate one, although reportedly (by the children) sprinkled at times with minor domestic disagreements and arguments. I surmise that this relationship provided each with some mutual benefits which, for a time, outweighed the detriments.

[9] One of these 'benefits' was claimed by the society to be the discipline of the mother's three children which G. is alleged to have undertaken, although it was still disputed at trial whether the mother authorized him to do so, acquiesced in his doing so, or even knew that he was doing so. In any event, the discipline of the children is the main reason why they were apprehended from the mother. G. is 'significant' because it was his alleged discipline of the children that was the primary cause of the society's protection concern, and the reason why it apprehended the children from the mother. Its initial primary protection concern was that the mother was the active disciplinarian, but by the end of this case, some five years later, the society seems to have backed off on the belief that it was the mother who was using abusive discipline on the children. However, she still remains a secondary concern of the society in that she either knew what G. was doing in disciplining them, or was willfully blind, and in either case, did nothing to interfere with, or stop him.

[10] G. was never named as a party respondent in this status review case, which is a bit of an oddity in the relevant legislation, the Child and Family Services Act (the CFSA), now replaced by the Child, Youth and Family Services Act (the CYFSA). The statute dictates who are parties, and G. apparently did not fall under any of the statutory criteria for party status. By far the greater part of the factual allegations on which the protection concerns in this status review case is based, stem from G., a person almost totally uninvolved in this status review case.

[11] The maternal aunt, R., is a fourth player of significance in this child protection saga. She was a major participant for about four years but her role is now reduced to almost nil. She brought a motion to be added as a party respondent. This was opposed by both the society and by the mother. Nevertheless, she was successful and was granted party status. Her position was that she wanted to have the children placed in her care and custody. In fact, she brought a motion and was granted interim access to them. Throughout, the society opposed her, and brought a motion, at one point, to reduce her access to nil. This aunt and her sister, (the mother) never did see eye to eye and were clearly at odds in their claims. Although the aunt participated in the case for a couple of years, she eventually dropped out and declined to advance any claims at trial. She was never completely formally removed as a party so far as I can tell, and she remains a formal respondent. Her counsel remains her counsel until such time as he prepares, serves and files with proof of service, an order removing her as a party.

[12] The last major actor in this status review proceeding is the Children's Aid Society of Algoma (the 'society'). Unfortunately, this actor is not one particular person as there have been numerous persons employed by the society who have interacted with the mother since 2011, including about a dozen different child protection workers. There appears to be some wide disparities in the relationships of these society employees with the mother, some sympathetic to her, and some more hostile to her. It is difficult to describe the society in terms of personal characteristics, but from several observations made below, an inference can be made of the society and of its role in this family. The society has been tenacious in its objective of keeping the children out of the care and custody of their mother, has been resolute in ensuring that she has never (or perhaps very rarely) been unsupervised with any of the children in the past almost six years, and has paid scant attention to any wishes of the children that do not fall into line with its own goals.

[13] Another minor player in the litigation, but a much more important player in this family, is the maternal grandmother, N. She was unsuccessful in her motion bid to be added as a party. She wanted to advance a plan for her care and custody of (the older two of) the children, presumably if the mother was unsuccessful. She is still the mother's formal choice as an alternate caregiver and custodian. The children, in their Answer filed in this proceeding, seek an order for their access to her. This grandmother has always had a close and loving relationship with the children, and they indicate in their Answer that they wish to continue their relationship with her, regardless of the outcome of this case. The society began a kin assessment of the grandmother in a prior proceeding. I doubt that it was ever fully completed although there is a reference of its being attached to a society affidavit. In any event, the kin assessment, if one was ever done, was back in 2012 and would be greatly out of date. The society has evidently rejected the grandmother as a custodian and caregiver. She is, however, still available and she attended a few of the mother's access visits with the children. Although she apparently owns a home in Blind River, she currently resides with her partner in Sault Ste. Marie.

[14] Then, of course, there are the children, who are not technically "parties". They are each different, one from another, and it behooves this court, and the parties, to remember that there is, in reality, a separate status review application with respect to each of them. Each may have differences from his or her siblings in his or her personal characteristics or traits, in his or her upbringing, in his or her relationships with others, in his or her views and wishes, and indeed, differences in terms of many of the best interests test considerations set out in s.74(3) CYFSA.

[4] THE LITIGATION HISTORY

[15] Individuals comprise only a part of the context needed to appreciate this status review proceeding and the issues involved. A review of court proceedings is of more than passing interest in the present case. I start with the child protection application in 2011, although the society had prior involvement with this family that did not involve court proceedings, dating back to 2004.

[16] Child Protection Application – was filed April 29, 2011 and was resolved about two months later, on July 4, 2011, with findings under s.37(2)(b)(i), s.37(2)(b)(ii) and s.37(2)(g) CFSA. I gather that these were on consent. The disposition that resulted was placement of the three children with their mother subject to a supervision order for 12 months with a number of terms and conditions. An order was also made for access to the father to his two biological children, also with conditions. Of note is that there was no formal reliance by the society nor any finding on a ground of risk of sexual harm. A review of the continuing record for this proceeding indicates that the mother did not file an Answer, was not represented by counsel, and had previously, on October 19, 2010, entered a six month Family Service Agreement with the society having terms with which she did not totally abide. Its six month expiry was April 19, 2011 and the application of the society was filed on April 29, 2011. In this application, the society made no secret that the mother had become uncooperative in working with the society and that the society was seeking a twelve month supervision order "to ensure that the mother follows through with services for her and the children" and "does not further expose the children to further domestic violence". The factual allegations underlying the finding and order were expressed to have been based on the affidavit evidence of Carla Park sworn 27 April 2011.

[17] Status Review Application No.1 – This was an early status review filed October 11, 2011 as the three children had been apprehended from their mother's care (without a warrant) two days earlier. Status review No.1 originally sought nine months wardship, but the society amended its claim to crown wardship with no access. It was eventually resolved after a contested trial almost two years later on July 3, 2013 by written Reasons of Justice R. Villeneuve who ordered the children to be returned to their mother by August 5, 2013, again subject to a supervision order with conditions, and once again with access to the father to his two biological children. The children were in society care the entire period of 22 months.

[18] Status Review Application No.2 – This was filed May 14, 2014 and was resolved by a final order dated October 20, 2014 which kept the three children in the care and custody of their mother subject to a supervision order for 9 months with conditions (which conditions were in force when the children were finally apprehended for the last time). It provided for no access by the father to any of the children without the society's consent. The endorsement record shows that this was an order made on consent of the mother and the society.

[19] Status Review Application No. 3 – The ink on the order of October 20, 2014 was scarcely dry when the society apprehended the children (again without a warrant) on November 28, 2014 from their elementary school. It started the present status review application on December 1, 2014 and the children have been in the society's 'temporary' care ever since. To date, that is a period of five years and six months, and still counting. The society sought crown wardship for all three children with no access to anyone. Service on the father was ordered substitutionally and he has never surfaced. Eventually, this application was heard by contested trial in September, October and December 2019 and on written submissions of counsel, the last of which was received Feb 7, 2020. These are my Reasons following that trial.

[20] Motion for Summary Judgment – The status review application No. 3 did not just spin its wheels in the meantime. There were a number of developments in the case, some of which were significant, and some of which were not.

The mother filed an Answer seeking return of the children, or alternatively, placement of them with their maternal grandmother, N. She also sought legal representation for them in the case.
The society filed and proceeded with a number of motions claiming, inter alia, temporary care and custody, substituted service or dispensing with service on the father in Quebec, police records production with respect to G., and variation of the interim access granted to the maternal aunt R.
The maternal grandmother brought a motion for party status as she wanted to advance a claim for placement of the children with her as kin. She was unsuccessful as the society opposed her. Her motion was dismissed.
The maternal aunt also brought a similar motion for party status and was successful, despite the society's opposition. She also sought interim access by motion, and was partially successful in this claim. The aunt remained involved in the case from July 2015 to roughly July 2019 when she chose to no longer participate, and essentially abandoned her claims with respect to the children – although she is still technically a party respondent.
The mother brought a motion for involvement of the Office of the Children's Lawyer (OCL) as legal representative for the children, and an order to that effect was made in February 2015. This turned out to be very significant as OCL counsel for the children took on a very adverse position to that of the society, and was, in my view, the main protagonist among the respondents to the society's claims.
The society eventually brought a motion for summary judgment in February 2017, over two years after apprehension. In this motion, it sought crown wardship and "orders" that the children cannot be placed with their mother or with their maternal grandmother. It also sought by summary judgment that there be no orders for access to any of the three children. This motion was not heard until March 2018 (over a year after it was filed) and was heard by Justice R. Lalande who, in April 2018 released written Reasons dismissing this motion by the society. The Reasons of Justice Lalande are a part of the continuing record. They dealt not only with the summary judgment motion, but also with the issue of the variation of interim access of the maternal aunt R. in contemporaneously heard cross motions. From a significance standpoint, at least in retrospect, it should have been more apparent to the society that bringing its summary judgment motion was dragging out the case unnecessarily, and that such motion had a relatively poor prospect for providing any finality or permanency for the children.
Appeal of Summary Judgment Decision – The following month, in May 2018, the society filed a Notice of Appeal in the Superior Court of Justice from the decision of Lalande J. This appeal was perfected in August 2018 and was heard by Superior Court Justice E. Gareau. The appeal court upheld the dismissal of the society's summary judgment motion. This appeal resulted in a further six month delay from May to December 2018 while the parties awaited the appeal decision.
Answer by the Children – OCL counsel sought leave to file a late Answer on behalf of the children. This was opposed by the society, but unsuccessfully. Their Answer was filed and included claims that they be placed in their mother's care and custody, subject to a supervision order (although they made it clear that they preferred no further continued society involvement with themselves). They also wished an order for access in which they were to be the access holders. The access they wished was to their mother, to their maternal grandmother, and to each other. The claims in this Answer were diametrically opposed to the claims of the society. These claims are dealt with in these Reasons.

[5] INFERENCES FROM PAST HISTORY

[21] From the litigation history, and from the judicial Reasons relating to the 2013 trial and 2018 summary judgment motion, several inferences can be drawn:

[22] The children have been in society care far too long. They had spent 22 months in foster care from 2011 to 2013. From 2014 to 2020, they have again been in foster care for another five years and six months. Cumulatively, they have spent over seven years in foster homes. This is well beyond the limits that the CFSA or the CYFSA ever contemplates for society care and custody of children (outside of crown wardship). Moreover, all of this time in society care has been "temporary". The society has never had care that has been ordered under former s.57 CFSA (now s.101 CYFSA) or what was referred to as "society wardship". For the youngest child P., now age 9 years, she has been much longer in society foster care than in her mother's care.

[23] The society has historically been opposed to the mother parenting these children and continues to be so. But for status review application No. 2 (above) and the short lived order that resulted therefrom, it has doggedly sought crown wardship with no access for the past eight years. Its current Plan of Care filed November 18, 2015 reflects these claims and remains formally unchanged. It is adamant in its position that the children cannot be returned to the mother. It also takes the position that they cannot be placed with the maternal grandmother or the maternal aunt.

[24] The society is aware of the long held views and wishes of the children to return to their mother's care, including their claim in their Answer for this resolution by court order. But it discounts these almost entirely (and, in fact, opposes such claims), preferring to rely on statements occasionally made by the children at various times that indicated that they liked their foster home placements, and did not want to return to their mother.

[25] The mother's and G.'s assertions that their relationship is over and that they are not, and do not intend to cohabit is disbelieved by the society which has gone to great lengths to prove that its belief is with good reason. Both G., and the mother testified under oath that it is over, and has been, for well over two years, despite what the society chooses to believe.

[26] The society has other reasons. It relies on the mother's breach of her supervision order conditions, her failure to address what it claims are mental health issues, her lack of co-operation with the society, her poor choice in partners, her tepid follow-up on society recommendations, and her eventual refusal to engage in a program recommended to her to assist her in parenting the children. In the past, it has apprehended the children because the mother permitted contact (by Skype) between the children and their absconded father in Quebec, contact that the society sees as a clear breach of a condition of the mother's then supervision order. Mostly, it feels that the mother simply cannot parent properly. It is clear that the society places nil faith in the mother and sees her as a difficult, if not hostile, client to service. It is equally clear that the mother sees most of the society workers in a reciprocal light, and does the least possible to work with them.

[27] Although not directly obvious, the society has relied in prior applications and motions on hearsay evidence. In the present status review, almost all of this child hearsay has its genesis in what the three subject children are alleged to have said at various times to adults, mainly adult employees of the society. While these hearsay statements may have been admissible as evidence in prior applications and motions (including the summary judgment motion), most (but not all) of these hearsay statements as trial evidence are subject to voir dire rulings on admissibility, of which there have been a number. The evidence at trial is further complicated by viva voce evidence of the oldest child M. who was called by the society as its witness, and whose viva voce testimony is not always consistent with the society's hearsay evidence (originating from the same child) with respect to the same factual occurrences.

[28] With respect to the maternal aunt, the society and she have been not only adverse, but antagonistic since the aunt declared her interest in having these children placed in her care. The aunt has been said by the society to have refused to sufficiently co-operate with, and to have essentially fought the kinship assessment process, to have displayed emotional volatility, and an inability to calm herself, to have displayed scant insight into her lack of coping skills and anger management skills, and to have been rude and prone to engaging in clashes and loud behaviour when others do not see things her way. On the other hand, the society has offered nothing but opposition to the aunt. It opposed her request for party status. It opposed her claim to have the children placed with her. It fought against her claim for interim access. Even when she was awarded interim access, it refused to permit her husband, the uncle of the children to accompany her on access visits although it was aware that her plan was that the children would reside with both of them, and that the children had no objection to having the uncle present at her access visits. The society opposed her access variation motion seeking unsupervised access and brought its own counter-motion to reduce her access to nil. In short, the society did whatever it could to stymie the aunt. Neither one acted with any spirit of co-operation.

[29] Ultimately, the major contest in this trial was more between the society and the children, than the society and the mother. The factual events that led to their apprehension in November 2014 happened almost 5-½ years ago. There have been a number of changes since then, one of the most significant is that the children are now over five years older, and they have legal representation. They have spent those five plus years in foster homes. They have seen their mother only on supervised access visits. There have been changes in the mother's life. There have been changes to the statute that governs this proceeding. There has been a significant change in the jurisprudence that applies to this proceeding, and that fairly recently.

[6] REASONS FOR THE APPREHENSION AND THE STATUS REVIEW

[30] What precipitated the apprehension of the three children on November 28, 2014? From the evidence, primarily of the mother, I have constructed the following chronology mainly to establish a temporal perspective:

July 1, 2013 – Mother meets G. on Facebook and is invited to Canada day festivities
July 20-31, 2013 – Mother moves to […] Court residence
August 5, 2013 – Children returned to mother following trial decision
Dec 5, 2013 – First sleepover by G. at home of mother and children
Jan 2014 to Oct 2014 – G. increasingly at mother's home including some overnights
July 2014 – Photo of G. and mother taken by G. aunt P.X. and later posted to mother's Facebook page
Oct 10, 2014 – Consent Order made on Status Review for 9 month supervision order with conditions
Oct 20, 2018 – G. moves into mother's […] Court home full time
Oct 28 – Nov 1, 2014 – Mother relocates to […] Crescent home
Early Nov 2014 – Mother tells G. she is involved with the society
Nov 27, 2014 – Society receive information from J.X.'s mother and J.X.
Nov 28, 2014 – Society interviews children at school, apprehends children – take children for interviews at OPP station – place children with Ms. Hukazalei as temporary foster home
Dec 1, 2014 – Society serves mother with status review application
Dec 2, 2014 – Status review returnable in court – interim without prejudice order made by Villeneuve J. for temporary care and custody to society

[31] G.'s son, J.X., with whom he had access visits, had been spending a number of them at the mother's home. According to the society's evidence, J.X. recounted to his own mother some of what went on during the time he spent there with his father. His mother, who had her own society worker at the time (Ms. Goulding), passed on to her, some information J.X. had provided. Ms. Goulding also spoke directly with J.X. It was this information that prompted the society to interview the three children. Neither what J.X. recounted nor what his mother recounted was sought to be introduced in this trial in their viva voce testimony, or as hearsay through the testimony of Ms. Goulding.

[32] The day following receipt of this information, the society went to the school of the three children. Two society workers, Ms. Siegwart, who was the child protection worker assigned to the mother, and Ms. Goulding, arranged with the school principal to interview each of the children privately. What the children recounted to the two workers was the type of discipline to which they were subjected at their home. This information was obtained from all three children, individually from each one, but not all provided the same story. Some was inconsistent; some was, in fact, contradictory in some respects. Disclosures by one child was more fulsome than what another child provided. What was recounted by them has been described by the society, in this status review as "cruel and inappropriate discipline".

[33] Among the disclosures the society claims that the children made with respect to how they were disciplined were the following:

Making the children kneel, noses to the wall, for long periods of time.
With respect to the eldest child M., making her kneel with her nose to the wall, and at times, holding soup cans, her arms at shoulder height, and, if her hands dropped, for an extended time. At one point, this went on for three days (after school until bedtime) without supper for M. for the first two days.
Locking the children J. and P. in the basement as punishment, and, on at least one occasion tying P. to the bar (handrail?) when she wouldn't stay quiet down there.
Putting the eldest child M. in the basement and not letting her out when she had to go to the bathroom resulting in her having an "accident" there.
Locking the children in the unheated garage as timeouts, with their hands tied behind their backs for lengthy periods, at times with no coats or jackets.
Locking the children in their bedrooms overnight, and when they had to go to the bathroom, yelling at them, and refusing to let them out.
Tying the children's hands behind their backs as punishment.
Making the child M. clean her own bedroom when she was being bad.

[34] The foregoing factual disclosures are included only to explain why the society did what it did. These are not included as findings of fact during the trial as these were clearly hearsay statements and were subject to admissibility rulings. More will be said later with respect to evidentiary issues.

[35] The society workers sent the children back to their classes and consulted with a society supervisor who apparently instructed them to apprehend the children and have them interviewed by the police. Ms. Goulding denied that she apprehended the children and said this was done by the lead society worker, Ms. Siegwart. Both workers then removed the children from their school and took them to the Ontario Provincial Police (OPP) Station, also located in Elliot Lake. There they were interviewed, each one individually, P. by Ms. Siegwart, and M. and J. by Cst. D. Croskery, both of whom participated in the police interviews. Ms. Goulding was not in the interview room as she was outside the interview room with the two children not being interviewed. The interviews were audio and video recorded and another OPP officer, Cst Beveridge, was monitoring the recordings from another room. The reason for the involvement of the police was, according to the society workers, for the police to investigate whether any crime had been committed in the discipline of the children, and if any charges should be laid.

[36] Discipline of the children was the precipitating, but not the only reason, why the children were apprehended and why the society is seeking extended society care orders. These other reasons I merely summarize here, but deal with them in more detail further below in these written Reasons:

The mother's failure to interfere with G.'s inappropriate discipline methods, and/or her implicit condonement of them.
The mother's failing to comply with certain conditions of her supervision order(s).
The mother's lack of co-operation with the society or with other service providers, including her denial of entry to them into her home, her failure to produce G. or to make him available to be interviewed by the society, and delaying and finally refusing to engage in the Intensive Treatment program.
The mother's coaching of the children not to speak to society workers or to answer their questions.
The mother's inability to manage the children and their behaviours, coupled with her failure to engage services to help her cope and parent.
The mother's mental health issues and her refusal to obtain a mental health assessment or treatment
The mother's lack of dental and medical care of the children.
The mother's failures to ensure that the children were consistently at school on time, or at all, and with wholesome lunches
The mother's poor choices of male companions and partners. In particular, her succession of inappropriate male relationships, her continuing her relationship with G. even after the children were apprehended, and the belief by the society that the relationship still exists or, if it does not, that it is only suspended and he will be back in the family, surreptitiously or otherwise.
The mother's lack of insight into the impact of her decisions on the children. Specifically, her continued relationship with the biological father of M. and J. even after he was charged, her ultimate refusal to engage in the Intensive Treatment Program, her blindness or endorsement of G.'s discipline of the children, her refusal to accept help available to better manage the children's behaviours, and her view of the society as her 'enemy'.
The fact that the children have statutorily "timed out" in society care

Some of the foregoing predated the present status review. Some were contemporaneous with their removal, and some post dated their removal. All were raised by the society either as historical reasons, or as current reasons why she should not have any of her children returned to her.

[7] THE TEST ON A STATUS REVIEW APPLICATION

[37] The status review is a creation of the CYFSA. It is one of the means by which the court maintains oversight of the state's intervention in the families of the nation that is otherwise justified by the need to protect children from neglect or abuse. The status review is intended to require a society to come back before the court once a protection order has been made, and to justify why another protection order is needed (or no longer needed), to protect the child. A status review may also be brought by others but only a society is required to bring one. The requirement is to bring one before the existing protection order expires. Moreover, the statute places time limits on the protection orders that a court can make. It is a maximum of 12 months, except in the case of an extended society care (ESC) order (formerly a "crown wardship" order). The scheme is that the status of a child who is subject to a protection order, must be reviewed by the court no longer than a maximum of 12 months from the time the immediately preceding protection order was made. Of course, it is always open to seek a court's review of a child's status earlier than just before the existing protection order expires. In fact, if a society apprehends a child placed under a protection order, then the CYFSA requires the society to bring its status review within five days of the removal of the child.

[38] The status review provisions in the CYFSA are found in s.113. The following section 114 CYFSA sets out what orders the court may make on a status review brought under s.113. These options are:

S. 114 Where an application for review of a child's status is made under section 113, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(d) make an order under section 102.

Section 101 orders are child protection orders. Section 102 orders are custody and access orders. The word "or" in this section clearly allows the court to choose only one of the four options listed.

[39] The only guidance in s. 113 or s.114 to assist the court in deciding what order to make on a status review is found in the words "in the child's best interests". This raises the application of s.74(3) CYFSA which requires any court making an order under s.113 in the best interests of a child, to take into consideration a number of listed circumstances, where they are applicable. These are set out in subsections (a), (b) and (c) of s.74(3). In the present case, the circumstances set out in subsection (b) do not apply as none of these children is a First Nation, Inuk or Metis (FNIM) child. Accordingly, in this status review, the court must consider the following circumstances:

S. 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) [Not applicable – No child is identified as FNIM]

(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.

[40] The listing of these circumstances does not mean that any one is more important than another, simply from its position on the list. One may be of more importance relative to another by reason of the facts in the case in which it is being considered. However, case law has repeatedly stated that there is no hierarchical priority by reason only of position in the statute. Accordingly, the weight that a court assigns to a particular circumstance set out in s.74(3) CYFSA can vary widely depending on the facts of a particular case.

[41] However, to assign proper judicial weight to any one of these considerations, the court has to have the information about it to be able to determine what weight to give it. It is the obligation of the parties to provide that information to the court in the form of admissible evidence.

[42] At first blush, it appears that whether there are, or are not, any protection risks existing when a status review hearing is held is a somewhat irrelevant consideration for the court. This is not exactly the case. "Best interests of a child" alone is not the determining factor to decide whether a further protection order is the proper one to make or not. Nor is it the proper basis for deciding what protection order is the proper one if a protection order is warranted. And finally, it must never be forgotten that an order for one child may not be the appropriate one for another child, even if they are sibling children in the case.

[43] The jurisprudence on the proper test on a status review is fairly well developed. The earliest definitive case, invariably cited with approval, is the C.M. decision of the Supreme Court of Canada in 1994. Madame Justice L'Heureux-Dube dealt specifically with the question of what is the test that the court must apply in a status review hearing. She stated (at paragraph 35):

"It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken into protection by the respondent society. The question to be evaluated by courts on status review is whether there is a need for a continued order for protection. This is why I cannot agree with the respondent society and the Official Guardian that, once a finding of the need for protection has originally been made, there is no requirement, upon a status review, to consider whether the child is or is no longer in need of future protection." (My emphasis)

[44] She continues (at paragraph 37) to clarify how a determination of a continued need for a protection order ties into the consideration of the best interests of the child:

"The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time."

[45] Of significance is the last sentence of paragraph [37] of the C.M. decision which states clearly that the need for continued protection may arise from the existence or absence of the circumstances that triggered the first protection order, "or from circumstances which have arisen since that time".

[46] This test was applied by the Ontario Court of Appeal in the W.T.C. case in 2013 where the main issue was what the test articulated in the C.M. case actually meant. The Court of Appeal stated rather explicitly, that, in a status review, although a determination that a child continued to be in need of protection was a requirement for a further protection order, that determination did not need to be based on the a "need of protection" as that term was defined in section 37(2) CFSA [now s.74(2) CYFSA]. It clarified what the Supreme Court of Canada said in C.M.:

'… the Supreme Court of Canada made it clear that, in addition to the factors enumerated in s. 37(2) of the CFSA, a finding of a continuing need for protection could also be premised on the need to protect a child from emotional harm arising from removing the child from caregivers to whom the child had become attached and whom the child regarded as psychological parents "'.

[47] It should be noted that when the C.M. case was decided, subsection 65(3) of the CFSA was then in effect. However, this subsection was repealed in 2000 and is no longer applicable. It was never carried over into the CYFSA. It set out certain things that a court was obligated to consider before making an order in a status review proceeding. While this provision clearly provided more practical and detailed guidance to lower courts, it no longer applied after 2000. The effect of the repeal was to cause some jurists to wonder whether the two part test enunciated in C.M. had become a one part test, namely, the best interests test only. However, the preponderance of judicial opinion seems to be that the two part test enunciated in C.M. still applies and remains the benchmark for what a court must do in a status review case.

[48] In summary, regardless of what the grounds the initial finding was made that the children were in need of protection under s.37(2) CFSA, whether those grounds continued at a status review hearing is not determinative of what the status review court may or must do. If the society was unable to prove that the child was in continuing need of protection on the initial grounds, it is open to the society to show continued need for protection on some other ground specified in s.37(2) CFSA, [now s.74(2) CYFSA] or to show a continued need for protection on some factual basis not even set out in s.37(2) CFSA [now s.74(2) CYFSA].

[49] It is critical not to brush by and overlook the actual wording of the C.M. decision. If facts not sufficient to establish a statutory ground for a need of protection are being relied on as the foundation for a need for a further protection order, those facts must, at the very least, establish that a continuing need of protection exists, and must identify what that protection is from. It is not enough that the facts only establish that it is in the child's best interests to make a further protection order. This would eviscerate the entire thrust of the 'protection of children' justification for further state intrusion in the family, and would reduce the functional role of the CYFSA in status reviews to simply comparing between competing placements on the basis of "best interests".

[8] THE CHILDREN

[50] The three children who are the subjects of this court proceeding are, in theory, the most important participants, even though not formally "parties". No judicial decision can really be said to be a truly informed decision without a full appreciation of who these children are, how they function in their everyday lives, what and who they think about, who inter-relates with them in the constellation of the many other persons who impact on them, and most importantly, what they want.

(a) The oldest child "M."

[51] "M." will be age sixteen years in June 2020 which is here now. She is a French Catholic high school student in Blind River. She states that she would prefer to be in an English High School which is available in Elliot Lake where her mother lives (and also available in Sault Ste. Marie where her grandmother lives). M. underwent a psycho-educational assessment in February 2019 which diagnosed her with a "specific learning disorder" having a moderate impairment in reading and written expression. Academically, she is nowhere near the top of her class. In fact, her assessment describes her at anywhere from average to extremely low range, this latter in reading French (1st percentile). She is expected to struggle with attentional difficulties and motivation to deal with academic challenges. Her school had some concerns but these seem to have abated somewhat. She had an IEP (Individual Education Plan) at her school. She is active and proficient in school sports and recreational activities and gets along socially at school. The society describes M. as "consistently compliant" and not a teen who creates waves. She is also described by other adults as being somewhat parentified in that she is concerned about, and tends to protect and care for, her younger siblings.

[52] After apprehension on Nov. 28, 2014, M. and her siblings were placed temporarily in the Hukazalei home as a sort of emergency place of safety where they stayed for about a month or so. Thereafter, M. and her brother J. were placed in the Chalifoux foster home in Dean Lake. They stayed there until June 2018 when M. was moved, at her request, and went to the Whitfield foster home in Thessalon. She has been there ever since. Her brother J. also left the Chalifoux foster home and is living in a more satisfactory placement with M. in the Whitfield foster home.

[53] M. was apparently the least troublesome of the three children when living with their mother. M. did have some difficulties when her biofather left the home. She had lived with him in Quebec for a time. She evidently had a relationship with him, and still had contact with him after returning to Ontario, some of which was unauthorized as the mother had entered into a Family Service Agreement with the society that purported to limit his contact with the children. After he fled in the midst of his criminal prosecution, she missed him and made efforts to maintain contact through electronic means. This put the mother between a rock and a hard place and ultimately precipitated court proceedings. M. presented typical teen behaviours: use/abuse/overuse of digital devices, surreptitiously smoking cigarettes (for which she was punished by her mother) and being mouthy. M. always had, and still has, a loving relationship with her mother and maternal grandmother.

[54] M. was over age 12 years at time of trial. Accordingly, she was presumptively entitled to be present at the hearing. She chose not to be. No party was intending to call her as a witness. However, the society's case involved a great deal of hearsay evidence, much of which originated with M. This hearsay was subject to voir dire rulings that basically ruled many (but not all) of her statements to others to be inadmissible at trial because the society had not met the pre-requisite criterion of "necessity". The society thereupon did an about face and called M. as its witness to give viva voce testimony at trial.

[55] M.'s trial testimony is troublesome. It is so because, while it confirms some of the factual details of the discipline in the mother's home as recounted in the child hearsay accounts that were admissible at trial, even those originating from her, it also conflicts with or contradicts other factual details, or qualifies them. What is clear from M.'s trial testimony, however, is that she wants:

to return to live with her mother, with whom she would feels safe, and if she cannot, to have frequent access visits, including overnight visits;
to live with her mother, even if G., of whom she has no current fears, still resides in her mother's home;
to live with her siblings J. and P. in her mother's home or if they cannot live there, to have frequent visits and contact with them;
to have frequent contact with her maternal grandmother with whom she feels absolutely safe, and to live with her if she can't return to her mother;
to have no, or minimal, society involvement in her life;
to go to an English High School in Elliot Lake, or perhaps in Sault Ste. Marie;
if she has to remain in society care, to have overnight visits with both her mother and her grandmother, and to see or have contact with her siblings every day.
with respect to being adopted, it would depend by whom.

(b) the middle child "J."

[56] The middle child, and only son, in this family is now age 13. He had just turned age 8 when he was removed from his mother's care in November 2014. He also was presumptively entitled to be present at the trial but chose not to attend. He was not called as a witness by any party. Any statements attributed to him admitted in this trial were hearsay statements ruled admissible after a voir dire, or were not subject to any voir dire ruling, or were 'state of mind' utterances that technically are not "hearsay" and/or are an exception to the rule against hearsay.

[57] From a cognitive standpoint, J. suffers from ADHD for which he takes medications Concerta and Abilify. He was also diagnosed in a June 2016 psycho-educational assessment with a learning disability in reading and writing. He has an Individual Education Plan (IEP) at school. He is, and always has been, in good health and apparently has no special needs. He is doing well academically as a "B" student, and belongs to the Bookworm Club. He has a fascination for all things electronic and digital, perhaps amounting, at times, to an obsession. He is seen by the society to require attention, consistency, structure and stability. He is described by Ms. St. Onge, his child welfare worker of four years as "consistently inconsistent". He clearly has an attachment for, and perhaps a dependence on, his older sister M. with whom he has almost always lived. He missed M. when she moved from the Chalifoux foster home, and he asked also to be moved to her new foster home.

[58] At age 8, J. was considered to be very argumentative, and somewhat of a liar. His mother describes him as a 'momma's boy'. He clearly misbehaved at times in the mother's home and was disciplined as a result. From descriptions of J. by several witnesses, he appears to be somewhat impulsive, at times, animated and excited, and at others, morose or depressed. My inference is that he is the more emotional of the three children and the more needy in terms of the need to belong.

[59] The consistent message that J. has expressed to the society has been his desire to return to live with his sisters and his mother in his mother's home. He has, at times, stated that he would run away if he was not returned to his mother. He has expressed being happy at his current (Whitfield) foster home since moving there to rejoin his sister M. at the start of 2019. He was not happy at his previous foster home of four years. He wishes to re-unite with his younger sister P. and to see her more often. I infer that he is starting grade eight in September 2020.

(c) the youngest child "P."

[60] The youngest child P. is now age 9 ½ years. She has been in society care most of her life and mainly in the Kirby foster home. An examination of the court record shows that she was with the mother from birth in October 2010 until she was apprehended in October 2011 (1 year). Then she was again with the mother from August 2013 until re-apprehended in November 2014 (16 months). Temporally speaking, parenting of this child by her mother has been rather minimal. She cannot have developed much of an attachment to the father of M. and J. as he was notably absent from her home in her first two years of life and totally absent thereafter. Her own biofather's identity has never been disclosed. The only adult male figure in her family seems to have been G. However, her relationship with G. is not described as having been a very positive one.

[61] Even with the absence of scientific information (i.e. paternity testing), it is a reasonable inference that P. is only a half-sister to M. and J. What she and they share is more in the realm of nurture than nature. She differs significantly from them in many ways.

[62] By all accounts, the child P. was (and still is) a substantial behaviour problem. Ms. S. Siegwart was assigned as the child protection worker for the family in the spring of 2014 when P. was still age 3 years. At that time, P. was "yelling, pinching, not paying attention and very unco-operative". She was not listening to her mother or to her re-direction, was openly defiant to her, and was using foul language calling her a "fucking bitch", a "cunt", and often telling her to "fuck off". She was non-compliant with discipline and would be openly disobedient. The child M. testified that P. would trash their bedrooms and this is the reason why the doors to the children's bedrooms were locked during the day. After the society directed the mother to remove the locks, P. went into M.'s bedroom in M.'s absence and killed M.'s pet hamster.

[63] P.'s behaviours were not restricted to her home environment. In her day care, she was quite a handful and was the subject of a number of misbehaviours. She slapped the worker Ms. Siegwart on one occasion, and the mother's redirection was ineffectual. P. did not become a model of behaviour once she was in society care after she was apprehended either in October 2011 or in November 2014. She was, according to the society itself, a substantial behaviour problem, and this did not abate for several years. She was the subject of many school bus incident reports, was at one point placed in an infant seat in the school bus to restrain her, and was suspended and eventually barred from taking the school bus. The society had to have her brought to and from school by taxi. Dr. Lefave, in his June 22, 2016 psychological assessment of P. notes she was reported by the society to be swearing, running up and down aisles, punching, struggling following directions, and keeping her hands to herself, and hitting her friends, and seeking negative attention. She requires constant supervision while in the community. The combined efforts of the Kirby foster parents seem to have somewhat reduced, but certainly not eradicated this behaviour.

[64] If the society is intimating that the mother is responsible for P.'s behavioural issues, I cannot totally agree. To the extent that the mother's genetic input into P. has causes some of such behaviour, I am prepared to concede to be a reasonable inference. However, the actual parenting of P. has been done more by the society than by the mother. I do not place the blame for P.'s behaviour totally on her foster family either. They clearly have struggled with P. over the last 5 ½ years and have done a creditable job in attenuating her nastiest behaviours. Thankfully, the evidence shows that P. has calmed down somewhat in the past two years, and her egregious behaviours are fewer and farther between. P. seems to have reached a level of comfortable functioning at her present foster home, and with her foster family. She clearly needs her medications to keep under control.

[65] The fact is that the child P. suffers not only from ADHD but also from Oppositional Defiance Disorder (ODD). These diagnoses were made by Dr. Kumar in January 2016 who placed her on several medications. Dr. K. Lefave conducted a psychological assessment of P. in June 2016, confirmed such diagnoses, and noted a number of behaviours related to Attachment problems. P. is now on three medications: Viviance, Respiradone and Dexedrine. Her behaviours as described by her foster mother, a person who has done the most parenting of P. includes:

causing hurt to other children,
difficulty keeping friends
acting impulsively
engaging in lengthy arguments
being bossy to others
throwing tantrums
making demands
obsession with control over others

These behaviours of P. in her foster home, with two foster parents whom the society views as being extremely gifted and dedicated to children placed in their care, are still concerning. One can only imagine the behaviours of P. in the care of her single parent mother, whom the society identifies as having parenting deficiencies and to whom the child P. was openly and brazenly defiant.

[66] Except for the brief period when the three children were placed in the Hukazalei emergency foster home, perhaps for a month or two, P. has never resided in foster care with her siblings. She has always been in foster care in the Kirby foster home which is on the outskirts of Iron Bridge. Nevertheless, P. still has expressed a desire to be reunited with her mother and her siblings, and this is in preference to remaining in her present foster home. P. has maintained her relationship with her mother through access visits, and also with her siblings, not only at maternal access visits, but also by respite exchanges between the foster homes of the children.

[9] THE CHILDREN'S VIEWS AND WISHES

[67] Any reasonable comparison of the CFSA and the new CYFSA can only lead to the conclusion that the legislators of Ontario have considerably expanded the rights, entitlements and the participation of children to whom services are provided and/or who are in society care. The views and wishes of such children are now mandatory judicial considerations in child protection proceedings, even on a first court appearance. The court is required to give to these views and wishes "due weight in accordance with the child's age and maturity", throughout the proceeding, not only in its final determinations. More importantly, the CYFSA has added to the "other purposes" of the CYFSA statute, a number of provisions that arguably enlarge the role that children have under that statute and the responsibility of those providing services to children. These are clearly children's aid societies, but also include the courts that apply the CYFSA provisions.

[68] "Views and wishes" can only play a role in proceedings under the CYFSA if those views and wishes can be ascertained. In fact, the statute states quite bluntly that this judicial mandatory consideration of views and wishes of children applies "unless they cannot be ascertained". This raises the immediate question of the circumstances in which views and wishes of a child cannot be ascertained. It also raises the corollary question of views and wishes "with respect to what". This "what" may include their custody, their care, their placement in a home or youth facility, whether they visit with bioparents, or with other extended family members, or with their own siblings, and in what circumstances, whether they have telephone, or nowadays, electronic contact with others, and more importantly, what restrictions are placed on them, what school they attend, and what entitlement to have access or contacts with others facilitated by their custodians and caregivers.

[69] Of particular relevance in this case is the determination of the court of what weight is "due" weight having regard to the age and maturity of each child. Clearly, there is a considerable age difference between the children. They are also at different levels of maturity, for reasons mentioned above, and which will be developed more fully below.

[70] The views and wishes of some children who are the subjects of child protection proceedings are not known. They are not known for a myriad of reasons. One reason may be that no one has asked them. Another, if the children are in society care, may be that the society has not included such information in the proceedings in its filed materials. Accordingly, no information may be available to the court because none exists in the evidence. Is this tantamount to "unless they cannot be ascertained"?

[71] My view is that it is not. There is a responsibility on each of the parties to make inquiries of a child as to whether the child has views and wishes, and to do so with respect to every aspect of the ultimate decision (placement, conditions of supervision orders, persons who will have access, the terms and conditions of such access) that the court has to make. Moreover, it is the responsibility of the party making such inquiry to present such expressed views and wishes to the court in that party's evidence. It is the responsibility of all other parties to present in their own evidence, the views and wishes of the child of which they are aware, particularly if the views and wishes contrast with those presented by another party. What I do not believe is appropriate is to equate "cannot be ascertained" with "was not ascertained". If views and wishes are not presented to the court in evidence, particularly by a society which is customarily the party on whom the burden lies to present all of the relevant evidence to the court, then there is a consequent responsibility to explain why such evidence is not presented to the court.

[72] The foregoing is to be tempered if a child has a legal representative in the proceeding. This is almost always a counsel appointed by the Office of the Children's Lawyer. The court presumes that an OCL counsel has the proper training to elicit these views and wishes from a child client, if they can express them, and to present them properly to the court. In fact, information about views and wishes of a child presented by the child's legal representative is preferable as it is more likely to be objective, less likely to be skewed by partisan interests, and is expected to be more accurate and more detailed than if the source is a party which has a partisan interest in the proceeding.

[73] How a child's views and wishes are communicated to the court I have addressed in other decisions. Viva voce testimony is usually the best method in some circumstances. The filing of an Answer and Plan of Care is an equally good method. If the child is mature enough, I would not be averse to an affidavit from the child being tendered. A recent evolution has been the VOC (Voice of the Child) report that some courts have found useful. I would rank admissible child hearsay evidence through other witnesses as another way to have such views and wishes as evidence before the court. If a child has a counsel and all parties are consenting, there is appellate authority to admit such views and wishes out of the mouth of the child's counsel or, as a formal 'Statement of Agreed Child's Views and Wishes'.

[74] In short, the views and wishes of a child should not be a secret. Nor should only one party be allowed to present them to the court. OCL counsel, if appointed, should be proactive in ascertaining and communicating such views and wishes, as well as any changes to them, not only to the court, but to all other parties. And the sooner in the proceeding this is done, the better.

[75] In the present case, the children have filed an Answer, albeit somewhat late in the day. It sets out what they are claiming in terms of a court order. It also indicates their positions on the claims of other parties. It adequately sets out their views and wishes as of the date of the trial. Their views and wishes at other times are set out in evidence of other persons. Some are admissible as "statements as to state of mind" but subject to the pre-requisites and limitations that jurisprudence has placed on "state of mind" evidence.

[76] With respect to these three children, I can accept that they have expressed their views and wishes from the time of their removal from their mother's care in November 2014 to the present on several occasions, and to several persons. These, to the extent that they reflect the wishes of the children as "state of mind" statements are accepted as reflecting their views and wishes "as of the time that they were uttered". However, in weighing these views with the express views and wishes of the children:

(a) as contained in their Answer and Plan of Care filed by their OCL counsel,

(b) as to the child M., in the viva voce trial testimony of the child M., and

(c) in the admission of the society witnesses (particularly that of the witness T. St. Onge) as to the persistent wishes of the children expressed over their past five years in society care, to be returned to their mother's care,

I accept that the views and wishes of the children, as of the hearing of this status review application to be those expressed by them in their Answer and Plan of Care, and that these supersede any views and wishes that may have been expressed by them, as statements of their state of mind, or otherwise, to anyone since the date of their apprehension from their mother over five years ago.

[77] This doesn't deal with the judicial weight that I ascribe to these views and wishes, and why I do so. Nor does it articulate what impact these have on my ultimate decision. That will follow below. For the moment, I merely accept that these are ascertainable, and that what they are has been satisfactorily identified.

[10] EVIDENTIARY RULINGS

[78] The preponderance of the trial of this status review proceeding involved the hearsay statements of the children mainly tendered by the society. This was not a surprise as there had been three trial management conferences in all three of which, the issue of admissibility of children's hearsay was discussed, with an acknowledgement that admissibility of such statements was likely to be contested by the mother as well as by OCL counsel, and that voir dire rulings would likely be necessary. In fact, this turned out to be the case not only with the children's statements on November 28, 2014, but also with respect to other statements made by them on subsequent dates to other persons. Counsel were forewarned to be prepared for the issue of contested admissibility of such statements.

[79] In the course of the trial, the court dealt with a number of voir dires on admissibility of statements made by the children to others and sought to be introduced by persons who heard these statements. The purpose was to establish the truth of what the statements stated. This was admittedly hearsay. The court chose to deal with each instance of the statements separately, rather than to hear all of the voir dire evidence and then deal with the statements cumulatively. There were reasons for doing so, even though it may have protracted the case. The main one was to compartmentalize each so that the ruling made would be specific to the statement(s) that was/were the subject of the voir dire.

[80] The society's first witness was Ms. Goulding who had been present at the school when the three children were interviewed. Ms. Goulding, in her testimony, confirmed that both she and Ms. Siegwart were asking questions of the children. Ms. Goulding also indicated that Ms. Siegwart was the child protection worker assigned to the family of the three children and was the "lead" worker. What "lead" meant was not totally clear. However, after they were interviewed, and after Ms. Goulding spoke with the society supervisor by telephone, they were apprehended by Ms. Siegwart. While the children were being interviewed, Ms. Siegwart was making handwritten notes. Ms. Goulding also confirmed (at trial) that she was also making her own handwritten notes during this time.

[81] After discussions with the supervisor of the society, the decision was made to remove the children from their school classes and to bring them to the OPP station for another interview by the OPP. At this point the apprehension had clearly taken place. No attempt was made by either society worker to seek a warrant to apprehend, and I presume from Ms. Goulding's testimony that the society supervisor with whom she spoke did not even discuss getting an apprehension warrant, or alternatively, instructed the workers to apprehend without a warrant. At trial, Ms. Goulding testified that it was not the society's practice to seek or obtain warrants to apprehend as it is well known that there are no Justices of the Peace in Elliot Lake except infrequently. Her knowledge of the closest Justice of the Peace was in Espanola, but she did not appear entirely sure of that.

[82] In any event, the children were transported to the OPP station where they were interviewed. The two older children, M. and J. were interviewed by OPP Cst. D. Croskery. The youngest child P. was interviewed by Ms. Siegwart. Ms. Siegwart was listening in on the interviews of M. and J. She made handwritten notes of these interviews, and also of the interview she conducted there of the child P. All interviews were audio and video recorded by the OPP on OPP recording equipment.

[83] The handwritten notes of Ms. Goulding made during the school interviews no longer exist. They were apparently destroyed and/or shredded. The handwritten notes of Ms. Siegwart at the school interviews of the children no longer exist. They were apparently destroyed and/or shredded. The handwritten notes of Ms. Siegwart of the interviews of the children at the OPP station no longer exist. They were destroyed and/or shredded. The audio and video recordings by the OPP no longer exist. No one knows what happened to them, but OPP practice seems to be that if they are not needed by the police for a criminal prosecution, or if a copy is not requested by the society, the OPP destroys them. They are either erased or jettisoned. This is what Cst. Croskery indicated likely happened to them. The society had no record that it asked the OPP for a copy. It had no copy in its possession. As a result, at trial, none of any handwritten notes or none of the audio-video recordings were available to be made exhibits in the case. Yet the society wanted the children's statements made five years prior to be evidence at trial and argued this evidence was critical to the ongoing need for protection it was alleging.

[84] So how does the society know what the children said five years ago, either at their school or at the OPP station? Well the answer is from "case notes" that are recorded in the society's computerized electronic record keeping system. This system was explained by Ms. Goulding and by Ms. Siegwart. From their testimony, the following is what system was then in place.

[85] A society worker was expected to make handwritten notes of (i.e to document) various matters of which they may have been a witness. It was also a society expectation that these handwritten notes would be typed into the society's computerized record keeping system within 24 hours. I am unsure of whether this was within 24 hours from the making of the handwritten notes, or 24 hours of when the events recounted in the notes actually took place, probably the former. These computerized notes are entitled "Investigation Case Notes". They have a format that indicates the "Author", the "Approved Status", the "Locked Status" and the "Time" and "Date" of the contact. They also require information to be inputted under the categories of "Created" and "Updated".

[86] In the case of the notes of the school interviews, the trial evidence indicated that Ms. Siegwart typed into these computerized case notes, the information from her own handwritten notes. The trial evidence also indicated she left these open and that Ms. Goulding subsequently reviewed and made editing changes to these notes and then locked them. One problem is that Ms. Goulding is shown on these notes as the "Author", not Ms. Siewart. Moreover, although Ms. Siegwart is shown as the person who "Created" these Investigation Case Notes, it also shows that Ms. Goulding "Updated" them and then "Locked" them. Ms. Goulding, however, did not recall what editing changes she made, or if she made any at all. Neither could Ms. Segwart say what editing changes, if any, were made by Ms. Goulding. Nor was any explanation given why Ms.Goulding did not make computerized case note entries from her own handwritten notes which she clearly indicated she had made. What Ms. Goulding confirmed at trial is that whatever "Investigation Case Notes" were made by Ms. Siegwart of the school interviews, such entries were correct and accurate, from Ms. Goulding's point of view, before they were finally "locked" by Ms. Goulding.

[87] The end result is that the typed Investigative Case Notes of the school interviews, copies of which were made exhibits at the voir dires, are somewhat suspect from the viewpoint of whether they are accurate as a reflection of what was said by the children. In addition, there is also the issue of what prompted the children to make the statements that they did. The trial testimony of both society workers were that they asked open ended questions. However, neither could specifically say what these questions were. Moreover, the computerized case notes do not show any questions that were asked of any of the children in the interview. The case notes are less a record of an "interview" than a list of what the children allegedly said, and mostly as responses. Each case note began essentially with "the child disclosed (or advised) the following :" followed by a number of factual statements. I find it hard to believe that a child would simply go to the subject of discipline in his or her home without some prompting or lead-in by the person conducting the interview.

[88] These computerized case notes may not have been that important except for the fact that both society workers had reviewed these notes prior to trial testimony and relied on them heavily, more so than on their own memory of five years ago. They form the crux of the society's main allegations of child abuse in the case.

[89] "The Investigative Case Notes" of Ms. Siegwart with respect to the interviews at the OPP station underwent a similar process except that Ms. Goulding was not involved in their creation or editing or locking. However, the court heard the viva voce trial testimony of Cst. Croskery who was called as a society witness. He was provided with statements allegedly made by the child M. at the OPP interview with respect to her being placed on her knees, and having to hold soup cans in her hands with her arms extended. This was clearly in the recording made by Ms. Siegwart of what the child M. said at her OPP interview. However, Cst. Croskery was equally adamant that this was not said by the child M. at this interview. He indicated that if this had come out at M.'s interview by him, it would have been significant for purposes of laying criminal charges. He was fairly certain that some of the information that the society indicated was disclosed by the child M. at the OPP interview did not come from that interview but came from "elsewhere". This raises some question of the accuracy of the interview and recording process.

[90] Cst. Croskery also indicated that statements by the child P. that M. and J.'s hands were tied behind their backs was of concern from a criminal investigation point of view. However, because of P.'s age (4 years), the fact that she was very antsy during the interview, and difficult to keep focussed and wanting to be elsewhere, cast some suspicion on this statement. Ultimately, the police found no basis for laying any criminal charges on anyone.

[91] This adds to the court's hesitancy to rely on what Ms. Goulding and Ms. Siegwart say that the children said on these two interviews. Both of these workers were experienced. Ms. Siegwart started with the society in 2006 and Ms. Goulding at least by 2011. There is almost a presumption that experienced society workers will be accurate in their notes of events, and that the notes will be as thorough as the circumstances allow. The notes that are available in this case are not the best evidence, not even the second best evidence, and they are made suspect by the evidence of the workers themselves and of Cst Croskery. Notwithstanding this, the court is left mainly with viva voce evidence of Ms. Siegwart and Ms. Goulding as to what they say that the children recounted to them at their school and at the OPP station.

[92] Ms. Goulding was the first society witness. When she began to recount what the child J. had said at the school interview, the court embarked on a voir dire. I gave oral Reasons after hearing voir dire evidence (which came from the society only) and arguments of counsel on the issues of the two pre-requisites for admission: necessity and threshold reliability. I ruled that the statements made by J. would be admissible even though they were hearsay. So far as I know, the reasons given by me orally were not transcribed into written form.

[93] The voir dire with respect to J.'s statements recounted by Ms. Goulding was initially not in a blended voir dire as the mother's counsel did not agree to this. However, this was subsequently amended by a further ruling, on consent of all counsel, that the voir dire evidence of Ms. Goulding with respect to the child J.'s utterances would be blended and would form part of the trial evidence as well.

[94] Subsequently, Ms. Goulding embarked on what the children M. and P. had stated in their school interviews. No objection was made by anyone to this evidence. Nor was a voir dire requested by anyone. She was cross examined by opposing counsel. As result, this evidence from Ms. Goulding became admitted as trial evidence unchallenged. I summarize, in chart form:

Child	Location	In Evidence of	Ruling	Evidence at
J	School	H. Goulding	VD - Admissible	Voir Dire and Trial
M & J	School	H. Goulding	None – No V.D.	Trial

[95] The foregoing was not the only voir dire held during the trial. In fact there were several more. I provided written Reasons for my subsequent rulings, which are elsewhere available. I summarize the next voir dires and the rulings thereon:

Child	Location	In Evidence of	Ruling	Evidence at
J	School	S. Siegwart	Admissible	Voir Dire / Trial
P	School	S. Siegwart	Not Admissible	n/a
J	OPP Station	S. Siegwart	Admissible	Voir Dire / Trial
P	OPP Station	S. Siegwart	Not Admissible	n/a
M	School	S. Siegwart	Not Admissible	n/a
M	OPP Station	S. Siegwart	Not Admissible	n/a

[96] This left the court with the child hearsay evidence of Ms. Goulding with respect to the child J. which was ruled admissible, and of P. and M. which was not subject to any voir dire and was not challenged as being child hearsay or as being not admissible at trial. It also left the court with the child hearsay evidence of Ms. Siegwart with respect to the child J. at both his school and at the OPP station, both of which were ruled admissible. It excluded, however, the child hearsay evidence of Ms.Siegwart with respect to the children P. and M. which were ruled inadmissible.

[97] There were other statements or utterances made by the children on later occasions and were subject matter of voir dires held during the testimony of the society witnesses who heard these statements. These are:

Child	Location	In Evidence of	Ruling	Evidence at
J	Hukazalei home	L. Hukazalei	Not Admissible	n/a
J	Access Visit	M. Stuckey	Not Admissible	n/a
M	Access visit	M. Stuckey	Not Admissible	n/a
J	Discussion	M. Urquhart	Not Admissible	n/a
J	Interview	C. Wilton	Not Admissible	n/a
M	Interview	C. Wilton	Not admissible	n/a
P	Interview	C. Wilton	Admissible	Voir Dire / Trial

[98] In summary, the evidence of Ms. Goulding as to statements of M., J. and P. made at the school of the children, of Ms. Siegwart of statements made by J. at the school and at the OPP station, and of Ms. Wilton of statements of P. are admissible as trial evidence. All other evidence with respect to voir dire rulings of statements made by the children to others are not proper trial evidence. However, this is subject to some exceptions to first hand visual observations (e.g. gestures, behaviour, demeanour) made by these witnesses which I may have ruled admissible as trial evidence on a particular voir dire.

[99] The society's evidence of the discipline to which these children were subjected is thus much less than it wished. The society argues that first hand observations (e.g of gestures) of its witnesses should be considered by the court and admitted as trial evidence, although it was evidence given in a voir dire, even if the ruling of the voir dire was that the statement(s) that were the focus of the voir dire was/were inadmissible. It wishes the court to admit and rely on such evidence even though its witnesses did not repeat such evidence as part of their trial testimony.

[100] An example of this is the observation made by Ms. Siegwart of the child P. at the OPP station interview. Ms. Siegwart testified that P. stated that when the children are in trouble they have to kneel on the floor and put their noses to the wall. Ms Siegwart also testified that she observed that the child P. contemporaneously "walked over to the wall and put her nose right tight against the wall".

[101] Another example is the observation of Ms. Siegwart of P. at her school interview. Ms. Siegwart testified that P. made the statement that "G. ties their hands behind their backs". Ms Siegwart also stated that she observed P.'s motion to physically place her hands behind her back during this interview. Ms. Siegwart made a notation in her Investigation Case Note of this interview "as she was disclosing this, the child made a motion with her arms to show that her arms are behind their backs".

[102] I am somewhat sympathetic to the society's argument. The voir dire ruling was not immediate. In fact, most voir dire rulings in this case were in written form and were not released on the same day as the voir dire was held. Accordingly, the society did not know what the ruling was until after its witness had been released. It would have been difficult to recall some witnesses to repeat their first hand observations as trial evidence. On the other hand, the parties were well aware from trial management conferences that voir dires were almost inevitable and were likely to be numerous. They should have been better prepared to indicate in advance whether they agreed that a voir dire was to be blended or non-blended and, if the latter, to take steps to have evidence it felt was essential as trial evidence to be repeated outside of the voir dire, regardless of the voir dire ruling.

[103] I do not admit evidence of first hand observations of witnesses of the society given in voir dire testimony as trial evidence except as I may have permitted in my rulings on the voir dires. To do otherwise would be to countenance an after-the-fact reversal of what had been established as the ground rules at the start of the voir dire. It may not be fair to the society, but it would be less fair to the mother and OCL counsel for the children, to re-set ground rules in this decision that are contrary to those that were understood to apply during the trial. I might add that the first hand observations of the society witnesses were not, in my view, critical in any event. They would merely have added colour to my ultimate findings of fact.

[104] Accordingly, the society's request to admit:

(a) the voir dire evidence of Ms.S. Siegwart as to observations she made of the child P.'s actions at her school interview,

(b) the voir dire evidence of Ms. L. Hukazalei as to observations she made of the child J.'s actions at the Hukazalie foster home, and

are denied as trial evidence in absence of agreement of all counsel - and there was no such agreement.

[105] My evidentiary voir dire Ruling with respect to statements overheard by access supervisor Mr. Stuckey was in the context of children's hearsay. These were utterances in conversations between the mother and the children. The society, unsuccessful on that count, asks that these same statements be admitted as trial evidence for the fact that they were made. The purpose of the society is to use these to attack the credibility of the mother with respect to when and how she claims she became aware of allegations of inappropriate discipline. I am not inclined to make another evidentiary ruling for a totally different purpose after the trial evidence is completed and without any participation of other counsel in this issue. Firstly, this issue should have been raised at trial, not in submissions after trial evidence was concluded. Secondly, other counsel opposed the request. Thirdly, from a cost benefit analysis, any mileage that the society might obtain in the area of attacking credibility of the mother is marginal at most for reasons I set out below with respect to my view of the mother's credibility.

[106] Finally, the society wishes the court to consider the evidence given by Ms. Wilton, who acted as an assist to OCL counsel, in her voir dire with respect to statements made by the child M. The request is to admit testimony of Ms. Wilton's stated unease as to whether the child M. was giving the full story or being forthright and candid when she was interviewed by Ms. Wilton. The purpose of this society submission was to persuade the court to take this into account when it considered the weight it would be giving to M.'s evidence at trial. I note that in my voir dire ruling, I indicated that this issue had arisen and that Ms. Wilton's disquiet could be elicited as trial evidence, and I believe it was. Moreover, it was Ms. Wilton's evidence of her own perception of M. in her interview with her that the society wishes to have before the court. I do take Ms. Wilton's evidence into account in weighing M.'s trial evidence.

[107] I realize that these Reasons would be difficult to comprehend unless one had the actual voir dire rulings. Accordingly, I attach citations to them to the extent that they are in written form.

[11] NEED FOR A CONTINUED PROTECTION ORDER

[108] The onus on a society seeking a protection order in a status review is:

Firstly, to show that there still exists a continuing need for protection, and

Secondly, to show that the best interests of the child justify the order sought. While this is the bottom line, it is a bare bones bottom line. The court has to apply this test to the review of the status of each child. It also has to do the following:

(a) ask under s.101(2) CYFSA what efforts were made to assist the child before intervention;

(b) consider, under s.101(3) CYFSA any less disruptive alternative dispositions for the child

(c) if it intends to remove the child from its pre-intervention caregiver, to consider under s.101(4) CYFSA the possibility of placing the child with 'kin', a neighbour or community member with such person's consent.

[109] Taking the society's list of reasons why it claims that an extended care order is needed here, I will deal with how the evidence supports each, not necessarily in the same order.

A. Inappropriate Discipline of the Children

[110] This is the allegation that the society, by far, relies on the most for its position in this case. It is also what consumed the most time in this case in terms of evidence. It is difficult to fairly present the mother's trial evidence in a nutshell However, there are some themes that run through such evidence.

[111] (a) Relationship to the Society – As mentioned above, there is no love lost between the mother and the society. She does not trust the society child protection workers. She sees them as her adversaries, if not enemies, even though recognizing that she has to deal with them. She feels that they have already judged her and blackballed her. She speaks of the society as always having some "trick up its sleeve". She feels she has been treated unfairly from the start as she was the one that initially went to the society for help. She feels that her access to her children has been compromised unfairly by the society, all or most of it supervised and meticulously recorded for over five years. She is forced to travel to another distant community to see her children when she does not have a vehicle and there is no public transportation from her home. She feels the society is vindictive not allowing the grandmother of the children see them, except very infrequently, simply because of the mother's unco-operativeness. She resents the society's intrusion in her family and does the minimum to co-operate with its workers. She feels the society does not believe her, especially when she says she and G. are no longer together in a relationship. She disparages the society for its ineffective and faulty investigations and what she considers its refusal to accept, or its twisting of the facts, to suit its own purposes. She questions why the society wants to see the inside of her home, especially after it apprehended the children, and when it makes it very clear that it has no intention to return them to her. She believes some of the workers have outright lied to her. She criticizes the society for its slowness in getting this matter to trial, for its delays in its unsuccessful summary judgment motion, and in its unsuccessful appeal of the decision on that motion, in its "kidnapping" of her children without a warrant, and without first consulting with her. It is my inference from this track record that, despite any claim by her to the contrary, she has abandoned any reasonable possibility of working co-operatively with the society and is relying totally on the court to get her children back. She is clearly adverse to the society.

[112] (b) Relationship with G. – G. and the mother met on July 1, 2013. According to the evidence presented particularly by the mother, he remained in the mother's life until about sometime late in 2016 or early 2017. I totally reject his testimony that he left the mother's home the day of, or only days after, the apprehension. During the three years of their relationship, the society never once actually met him face to face. I find this extraordinary as he was clearly residing in Elliot Lake this entire time, was not working, was living with the mother, or with his own mother, and was on social assistance for ten years - and Elliot Lake is not a big town. In short, he should have been readily accessible to meet with the succession of society workers, most of whom expressed their wish to talk with him. The same society also had an ongoing and active child protection file involving G. and his son J.X. and J.X.'s mother. The mother admits that the society asked her many times to facilitate its meeting with G. The mother says she passed on the message but she claims that he did not want to talk with the society. She also admitted that she did not really co-operate or feel that it was her function to facilitate that contact. Ultimately she advised that she couldn't make him do it.

[113] The mother's position at trial was that she never told G. that she was involved with the society until Nov 1, 2014. This alleged secrecy of an important fact, especially when she admits her association with him started in July 2013, is either false, or it says a lot about what kind of relationship they had. I believe it is false as the mother also testified that she had for some months before November 1, 2014, been asking him to meet with the society. G. could not have been so mentally dense that he could not have concluded she was involved with the society. She filed an Answer that contained her Plan of Care that included herself and G. and the children in one family. This remained her official Plan of Care throughout the trial. She changed it, only verbally, but could not say when it changed. What role G. actually played in the mother's family is still somewhat of a mystery. He became more involved with the children as an "almost dad". However, his relationship with them never crystalized. Depending on what evidence one prefers, he was a great guy, who would do activities with the kids (swimming, fishing, walks in the park, ice cream at the store, buying things for the kids) or he was a tyrant (locking the children in the basement or in the garage, making them kneel for lengthy periods, kicking the dog and not letting him in, tying the children's hands, yelling at the children and at the mother). What the mother admitted was that she let her then society worker (M. Lutton) know she had met G., and that she wanted to hear from the society whether it had any objections to him, or to her developing a relationship with him. On receiving a response that the society had no objections, she permitted the relationship to develop to the point that by October 2014, G. was sleeping over 2 or 3 times a week (or according to M., up to 5 times a month) and eventually moved in a week before she relocated to her […] Crescent address. He progressed from acquaintance, to boyfriend, to sleepover partner, to live in partner, and was, by November 2014, regarded by the children as the "dad" in the home. So far as can be determined, there was occasional discord between the mother and G., some minor yelling or arguing, but no physical violence and no police calls of a domestic nature. In short, the relationship was ostensibly within acceptable limits, and presumably mutually beneficial to all members of the household.

[114] (c) Discipline of the Mother – The mother herself had to impose some consequences on her children by way of discipline. The society's belief that she personally used inappropriate discipline methods is unfounded based on the evidence. Her discipline seemed to consist mainly of time outs, together with temporary deprivation of screen devices or electronics, and/or "groundings" for various durations depending on the behaviour for which the punishment was imposed. The mother sent the children to their bedrooms for a time out, as punishment, or to de-escalate. There was also some mention of "spanking" of the child P. which I do not find inappropriate in the circumstances of this family. Aside from one occasion when the mother put the child M. on her knees for approximately two minutes after the child M. was ranting in her bedroom for about two hours, I do not find that the society has shown any discipline imposed by the mother herself that could be classified as inappropriate or unacceptable, at least not of the kind that would justify apprehension of these children. The mother had the children in her care from August 2013 to November 2014 so whatever disciplining she, herself did, was restricted to this 16 month time period. During this time, a society worker was regularly in the home and saw or heard little or nothing of any unusual disciplining. The school authorities did not report discipline problems to the society. Neighbours of the mother did not raise any concerns about discipline. The children apparently did not do so either.

[115] (d) Discipline by G. – The discipline that was problematic was that allegedly imposed by G. There were some problems with determining if he imposed any discipline at all, and if he did, of what it consisted. G. testified that he did not impose any punishment on the children by way of discipline. He was not shaken in cross examination by any party on this point. He made it plain that he was not in charge of discipline, had no role in discipline, and did not take it upon himself to discipline the children. He did not recall even raising his voice at them. He stated that he left the discipline to the mother; that it was not up to him. In short, a complete denial.

[116] The mother testified that she never saw G. disciplining the children. She also claims that the various disciplines in her home alleged by the society came as a complete surprise to her. When she first learned about such discipline was when she was served with the society's status review application which the record shows was on December 1, 2014. She stated in her evidence that the children had not once disclosed being the objects of these kinds of discipline measures. If such discipline was going on, then it was when she was absent from the home. She said that she never gave G. any permission or authorization to impose any disciplinary measures.

[117] In contrast to the testimony of G. and the mother, the court has the "admissible" testimony of the three children presented to the court by society witnesses as hearsay. It also has the viva voce direct testimony of the child M.

[118] (e) Testimony of M. and Testimony of Hearsay Statements of M. – With respect to the viva voce testimony of the child M., it must be kept in mind that M. was a witness of the society. Accordingly, her testimony is part of the society's case. The viva voce testimony of M. as to her disclosures made to Ms.Siegwart and Ms Goulding at the school, differ in several significant respects with what they claim she said on this occasion. It would be simple to discount Ms. Siegwart's hearsay account of what she says M. said at her school interview as this was ruled not admissible. However, Ms. Goulding also recounted in her trial evidence what M. said when M. was interviewed at her school. Ms. Goulding was present throughout this interview. This evidence from Ms.Goulding was clearly hearsay, but was not challenged by anyone as being inadmissible as trial evidence. Accordingly, no voir dire was held on what Ms. Goulding alleged M. to have said. This turned out to be very close to the account Ms. Siegwart gave in her testimony as to M.'s statements at her school. Moreover, Ms Goulding also reviewed the Investigation Case Note that was created by Ms. Siegwart of M.'s interview at the school, while it was still unlocked for editing. Ms. Goulding made some editing changes, although what they were she could not remember, but she was fairly clear that this Investigation Case Note was accurate as to what M. disclosed at her school interview. Accordingly, I am confident that I have, in the combination of the Investigation Case Note of Ms. Siegwart, and in the viva voce testimony of Ms. Goulding, a fairly accurate version of what M. is reported to have said at her school interview.

[119] M. told the court in her viva voce testimony several things that were different than what Ms. Goulding says that M. had said in her school interview. She:

(a) denied that she had said that she had had to stay on her knees from after school until midnight, and in fact, said she was not consequenced at all for breaking the glass in the screen door;

(b) denied that she said that J. and P. were locked in the garage for an hour;

(c) denied that she said that her mother had told her not to say anything to the society workers when they were asking questions

[120] In her viva voce testimony at trial, M. also gave some variations on what she was alleged to have said in her school interview. For example, she denied that there was a lock on the basement door ([…] Court), that J. and M. were sent to the basement there as punishment for more minutes than their respective ages, that they were locked in their bedrooms, that they were ever locked in the garage, or that their mother was the person who was imposing these disciplines.

[121] M.'s viva voce trial testimony not only conflicted with the society's hearsay evidence of what she had said at her school interview, but it more drastically contradicted the testimony of G. who said that he never imposed any discipline on the children. M. clearly placed almost all of the disciplinary measures at the feet of G.

[122] Clearly this cannot be totally true. G. only lived in the […] Court home for a week, and was there only infrequently at first. He was a 'live in' only in late October and November 2014. The children were not well behaved children and the mother was the only disciplinarian for them at all other times. She must have imposed some disciplines because she herself says she did. She sent them to their bedrooms. She deprived them of their electronics. She put them in time outs. She spanked (at least P) on occasions. It seems improbable that she would cease being the disciplinarian parent once G. was in the home, and that she would totally delegate discipline to him. In fact, her evidence was that G. told her to follow through with disciplines she imposed, and not to relent or cave in, as this would only lead to more misbehaviours. As to whether the mother was absent and was unaware of any disciplines that G. was imposing, I disbelieve her as this protestation has no air of reality. I cannot believe that the mother could not have been aware that her daughter M. was kneeling on the floor with her nose to the wall (and holding two soup cans at shoulder height) for any length of time, much less from after school until bedtime, even if, as M. testified, she was just challenging herself in doing so. Moreover, the discipline imposed on her siblings, as recounted by M., casts much doubt on the mother's statement that she was ignorant of these. What mother would not know that her children were being sent to the basement or to the garage as punishment for bad behaviour. M.'s testimony at trial presents a significant problem in sorting out what she said at trial and what she is alleged by the society to have said at her school interview.

[123] I choose to believe that what is reported by the society witnesses to have been disclosed by M. at her school interview is closer to the truth than what M. said in her viva voce evidence at trial. The reason is primarily that the school interview had been documented whereas M.'s trial testimony was not, but relied on memory. They both were of events that happened over five years ago, and memory is simply less reliable over time. M. often gave "I don't recall" responses to questions in her viva voce evidence at trial. Moreover, the society's evidence of what was said was heard by two adult society workers, trained in dealing with and interviewing children, and with considerable experience between them. Ms. Wilton, aide to OCL counsel, testified that it was her impression that M. was not being totally forthright in what she was saying. Also, M. was only age 10 at the school interview and was described as being under some emotional stress when interviewed. The court has to make a determination of the ultimate reliability of hearsay statements that are admitted on a voir dire. This does not mean that I accept everything that M. is reported to have said at her school interview with respect to discipline in the home. Where there is a discrepancy, however, my inclination is to accept the school interview version. I also give some weight to the testimony of Ms. Wilton and her suspicions of the reliability of M.'s statements.

[124] (f) Testimony of J. and P. – Both J. and P. also made some disclosures at their school interviews. In the case of P., her statements to Ms. Siegwart were ruled inadmissible. However, P.'s statements were also heard by Ms. Goulding whose trial testimony as to such statements was not challenged nor subjected to any voir dire. Moreover, she basically approved of what Ms. Siegwart input into the society recording computer, and it was Ms. Goulding who closed the recording. P. also made some statements referring to discipline in her home when she was interviewed by Ms. C. Wilton, social work assistant to OCL counsel. At a voir dire of statements made by the child P., I ruled that these were admissible. I also ruled that the portion of Ms. Wilton's affidavit that referred to such hearsay statements would not be redacted from her affidavit (filed as Trial Exhibit 19). The child P. had described the form of discipline that G. would impose on her, and intimated that her mother only commented in a mildly disapproving way about such discipline.

[125] As for J. his school interview statements to Ms. Siegwart were ruled admissible after a voir dire, and were also effectively corroborated by Ms. Goulding before she "closed" the society recording. Having regard to these statements for the reasons above, I conclude that the records of the society in its Investigative Case Notes for each child is reliable from the point of view of presenting what actually was said then by each child. Whether what they said was true is another matter. As neither child testified at trial and as the mother had no evidence of what each child was reported to have said at the school interview, I am left with only the society's evidence. I have already ruled (in the voir dire) that the hearsay statements of P. did not meet threshold reliability. I find it difficult to conclude that they meet the ultimate reliability threshold to be relied upon as trial evidence. However, J. did provide some information, at age 8, in his school interview, that this court has ruled admissible. The child J. gave a more favourable account of G., but he did state that he was sometimes put on his knees, and that he was sent to his bedroom for punishment. He denied that his hands were ever tied behind his back. He did not identify his disciplinarian. I accept these at least, to be truthful.

[126] In summary, I find that G. was a person who was imposing discipline on the children, but not exclusively. When this started, I cannot say, but it clearly started when the mother still resided at […] Court, and it continued when she relocated to […] Crescent. The "inappropriate" discipline included making the three children kneel with their noses to the wall, and in the case of the child M., for lengthy (but otherwise unspecified durations of) periods of time, while holding soup cans at shoulder length for some of these. It also included sending the children down into the basement (on […] Court) and sending them to a sometimes cold garage (on […] Crescent) for durations that this court cannot ascertain for certain. I do not find as a fact, on the balance of probabilities, that G. tied the hands of the children behind their backs or P.'s hands to a railing when he imposed any disciplinary measures. Nor do I find as a fact, on the evidence in this trial, that he or the mother "locked" the children in the basement, in the garage, or in their bedrooms.

[127] I find, on the balance of probabilities, that the mother was aware of at least some of the disciplines that G. was imposing on her children. I also find that she did not interfere with such disciplinary measures, and it is a reasonable inference that she implicitly agreed with them.

B. Failure of Mother to Comply with Supervision Order Conditions

[128] The mother was subject to conditions of a supervision order when the children were apprehended on November 28, 2014. These conditions were contained in a supervision order dated October 20, 2014. It was an order that was made on written consent of the mother and the society. In fact, her consent is found in the Endorsement Record and is dated Oct 20, 2014. There is an order that was approved as to form and content on October 9, 2014 by the solicitor for the mother. It could not be any clearer that the mother knew what her conditions were in that order, or that she should have known what they were.

[129] The order of October 20, 2014 was different than the prior order of Justice Villeneuve dated July 8, 2013 which was made after a lengthy trial. This earlier order was geared more to the protection concerns that manifested themselves in the biological father of M. and J.

[130] The supervision order conditions that the society claims that the mother breached [slightly paraphrased] were in paragraph (1) of the Oct 20, 2014 order using the same lettering as set out below:

(c) to follow all reasonable recommendations of the society or other service providers involved with her or the children;

(f) to continue to work with the society child protection worker and to follow all reasonable recommendations of the society;

(j) to immediately advise the society of any changes in their living arrangements

(i) to be involved with community programs such as Health Babies Healthy Children, and parenting programs recommended by the society and to follow the recommendations and strategies taught [in such programs]

(q) to work with the Intensive Treatment Services Program until such time as they close the file, always being honest with her worker and following recommendations

(s) to ensure that the children attend school regularly and on time.

[131] It should be noted that these conditions were in effect for only 40 days. They began when the order was made. They ceased to exist on Dec. 2, 2014 when an order was made shortly after they were apprehended, on a without prejudice basis, for temporary care and custody of the children by the society.

[132] Ms Siegwart was the society child protection worker for the mother from May 7, 2014. Her testimony is that she was subject to a society and/or ministry protocol to visit at least once per month, but was actually visiting the mother once a week. Her visits in this 40 day period were only two, on October 23, 2014 and November 7, 2014. Nothing about parenting programs was discussed on either of these dates. However, Ms. Siegwart had been speaking with the mother about several programs since she took over this file on May 7, 2014 and prior to the date of October 20, 2014 when the operative supervision order was made. Specifically, she discussed with the mother on May 15, 2014 the Healthy Babies-Healthy Children program (HB-HC), the Intensive Treatment Program (ITP) and the Triple P parenting program. On June 4, 2014,the mother signed a consent for release of information to the society by East Algoma Counseling Centre so the reasonable inference is that this program was discussed on that date. On July 25, 2014, Ms. Siegwart advised the mother that the Children's Rehabilitation Centre was trying to arrange an appointment for the child J. so this was also discussed. The mother agreed to attend this with J. On August 28, 2014, Ms. Siegwart and the mother again discussed the ITP program. The mother expressed her reluctance for engaging with the ITP program, but agreed to a referral to Algoma Family Services (under whose auspices ITP was offered) to this program provide that Ms. Siegwart made such referral.

[133] The mother testified that she did follow up and complete the "Triple P" parenting program. She said that she also completed a follow up "Triple P for Teens" parenting program. She did attend for personal counseling with counsellor Therese Boisvenue at East Algoma Counseling Centre from early in 2015 until Ms. Boisvenue left that employment. She attended and completed a program recommended by Ms. Boisvenue entitled "Women For Change". She also indicated that she had met with personnel at the HB-HC program and declined this as it was not seen by her as being helpful. It was a program that would have applied only to her child P. The mother also spoke of the 1-2-3 Magic parenting program and claimed it did not help with her management of the children. Evidently, it is a program she took at some point. She, or the society, also arranged for her child M. to meet with Marsha Ledyit, a counselor at Algoma Family Services and insists that Ms. Ledyit did meet with the child M., on occasions picking M. up at her home for sessions. She never did engage with the ITP program. At first she stated she wanted to try other alternatives. Later she simply refused. Her reason was that she did not want any more people in her home. ITP apparently has a program worker attend the home as part of its program protocol. On the whole, the mother did participate with a number of community service providers in several programs and venues, almost all of which were recommended by the society. When she did so is not so clear.

[134] From the perspective of conditions of a supervision order, the mother failed to engage with the ITP program. This was a specific term of the order. It was not specifically set out in any prior order. It was new. The inference is that it was important and was needed. The mother failed to take steps to follow this condition. Her excuse was that that she was unaware that this was a condition of her supervision order. This is simply unacceptable as a reason or an excuse, particularly in view of the several efforts made by Ms. Siegwart to have her engage with this ITP.

[135] The mother is also alleged to have failed to advise the society of changes to her living arrangements. This condition was also a new one in the Oct 20, 2014 order. Presumably it was intended to address the involvement of G. whose relationship with the mother was known by then, although in vague terms, to the society. The mother did not keep the society informed of G.'s moving into her home, much less "immediately" after he did so. In fact, the evidence suggests that she hid this from the society much more than disclosing it, at least in the 40 days in which this condition was in force. This is seen as even more egregious as G. apparently moved in within days of the making of the order that contained this condition.

[136] During the time that the supervision order conditions were in place, the mother was still permitting her child protection worker into her home. She was not being unco-operative. She was not under any obligation under the supervision order to facilitate a meeting between G. and her society worker. In fact, prior to the date of the order, she indicated that she would ask G. (May 23, 2014), then she tentatively agreed to have Ms. Siegwart meet with G. (July 3, 2014) and finally advised that G. did not want to meet with any society worker (Sept 23, 2014). Any attempts by the society to meet with G. after the apprehension cannot be laid at the feet of the mother. It was up the society to deal with his refusal.

[137] The mother became unco-operative much more so after the apprehension. She stated that when she met Ms. Siegwart on November 28, 2014 after the children were apprehended, she "wanted nothing to do with the CAS after that". However, in doing so, she did not breach any supervision order condition as they no longer existed.

[138] The mother was not under any condition that required her to attend for mental health assessment or counseling. There was a condition of her previous order that required her to attend for personal counselling to address issues with respect to healthy relationships. In fact, the mother did undergo some counseling at the East Algoma Counseling Centre and she did sign a release in favour of the society. She also completed a follow up recommended program entitled "Women for Change". The evidence does not disclose that the mother suffered from any mental health condition. The society has never provided one iota of evidence of what mental condition it felt the mother suffered, and did not provide any proof of the existence of such "mental health" condition.

[139] That the mother told the children not to say anything to the society was a disclosure made by the child M. at her school interview. However, M. denied, in her viva voce testimony that she ever said this. Moreover this statement was never intimated to have been uttered by the other two children. Finally, it is clear that if this direction was ever given by the mother, it was not at all followed. I decline to consider this as it was not proven anywhere close to level of the balance of probabilities.

[140] While J. had a half dozen cavities that needed dental attention after he was apprehended, this does not necessarily translate to neglect on the part of the mother. The dentist who provided the dental services apparently did not feel that this was out of the ordinary. Moreover, the children had only been in the mother's care since August 2013 and there was no evidence from which a court could conclude that any tooth decay was causally connected to the time the children were in the mother's care or the society's prior foster care. The mother's uncontradicted testimony was that the children normally had semi annual checkups. The society had supervision orders in place since 2010, when it did not have actual custody of the children. An accusatory finger of dental neglect could as easily be pointed at it.

[141] As for medical care, the society points to a rash or boils on P.'s buttocks and leg areas when she was apprehended. The mother says she either was unaware of these or that they were not unusual or that significant. The condition was eradicated shortly thereafter by measures taken by the foster home. I conclude that it was not a serious matter, and was restricted to the child P. The preponderance of the evidence is that the children have always been reasonably healthy whether in the mother's care or in foster care, except for situational incidents (M. broke her leg) that are not unexpected in the raising of children generally.

[142] While the society produced records that showed some concerns of school lateness and absenteeism, this was not that excessive during the 40 days that the supervision order was in effect. If the society is looking at other times, these may be relevant, but not to the issue of breach of a condition. The same applies to having suitable lunches. The evidence is not specific, is not to the relevant period of time, and is answered partly by the mother's evidence that there were good reasons for some lateness and absenteeism. The society has the onus to prove that the unexplained reason was as a result of the breach of the supervisory order condition on the mother. I do not see this as a major consideration and certainly not sufficient to say it was a breach of a supervision order condition.

[143] There was nothing in the supervision order conditions about any restrictions on the mother's choice of male companionship or partners. The mother claims that there were only two relationships in any event. The society was quite correct in being concerned about any person who would be in a care giving or contact role with the children. However, on the uncontradicted evidence, the mother gave the society (CPW M. Lutton) G.'s name and asked if the society had any objections to him. She was advised that the society had no objections to him and she acted accordingly. This show some foresight, exercise of caution, and her taking steps to minimize any risk for her children. As for the biological father of M. and J., he was, in hindsight, not a good choice as a partner. However, it is clear that he was the "bad guy" and the mother was more "his victim" in their relationship. The mother considers the past to have been a learning experience for her. I do not accept that there were any other significant or even non-significant relationships that the society can say were poor choices on the part of the mother. As for the mother's remaining in a relationship with G. after the children were removed, and in putting him forward in a co-parenting role with her if she got the children back, this may or may not have been a good decision. Subsequent developments rendered it a bad idea. Nevertheless, this is clearly not a breach of any of her supervision order condition.

[144] There is some merit to the concern that the mother was unable to manage the behaviours of the children, but not as a breach of any condition of any supervision order. The mother clearly had substantial problems managing her children, as do most parents in this province at times, and that also includes the foster parents of these three children. The mother did not leave the children unattended. She dealt with issues as they came up. Perhaps she may have gone overboard sometimes, such as grounding M. for an entire summer. If, as I believe, she let G. take on the role of disciplinarian in her home, it was likely because she was less suited to be the disciplinarian, and it relieved her of that burden, one that she probably was happy to avoid.

[145] In summary, in terms of breaching supervision order conditions, the society has succeeded in demonstrating only two: the mother failed to advise the society immediately of changes in her living arrangements, and she failed to engage in the ITS program. She also failed to work co-operatively with the society, but that was less the case during the 40 days that the conditions were in effect than after the apprehension. If she can be faulted as a mother, it is in her taking much too long to arrive at conclusions that she ultimately arrived at. A case in point is the realization that the father of M. and J. was an inappropriate partner for her, that he did engage in sexual misconduct with a neighbourhood minor, and that he was a source of domestic problems that were not about to go away. An equally significant example is her apparent refusal to believe that G. had disciplined her children as the society alleges, her standing by and cohabiting with him for almost two years after the children were removed, and her realization very late in the day (when her oldest daughter was testifying at trial) that G.'s disciplining had been going on. The mother's insight is very slow to develop and this put her children at risk.

[146] The mother's protestation that she was unaware of some of the conditions of the supervision order that applied at, and just before, the children were apprehended is incredible. This was her third, not her first supervision order. Moreover, the society had sought to permanently remove her children from her before. She should have been hyper vigilant in complying with all conditions placed by the court. If she did not have a copy of the order that contained her conditions, it was due to her own lethargy or negligence. I find on the balance of probabilities, that the mother deliberately failed to comply with the conditions of engaging with the ITP program and of advising the society forthwith of changes in her living arrangements.

[12] THE SOCIETY

[147] The CYFSA requires in s.101(2) that the "court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention". This is not a question that I recall actually putting to any party or to counsel. My practice is to listen to the evidence and the answer is often contained in such evidence. In this case, the evidence was more concerned with the society workers and the mother than with any assistance to the children. The society has done quite a bit for all three children after removing them from the mother. But this is not the question that the court is directed to ask. The proper question is to ask what effort was made to assist the children before they were removed.

[148] The ostensible reason why such order is to be asked is to help the court to determine what protection or custody order it is to make in the case. The efforts to assist a child are the efforts of the society, but not solely of the society. It could be the efforts of anyone, and not just a party. In the case of these children, I don't recall hearing in the evidence what efforts were made by the society to assist any of the children. The society clearly had a supervision order in place before the children were apprehended. The child protection worker, Ms. Siegwart, attended at the home on three occasions while this supervision order was in effect:

October 23, 2014 – The discussion with the mother was with respect to texts and telephone messages from the biofather of M. and J., wanting to see these children.

November 7, 2014 – The mother had just moved into the home on […] Crescent. Ms Siegwart attended with Collina Terry, another society worker. The home was in disarray with boxes all over, many partially unpacked. The children were noted to be outdoors without mittens. The discussions revolved around the kind of discipline the mother utilized in the home. The mother responded that she sent the children to their bedrooms and/or took away their video games for a while.

November 21, 2014 – Although this was a scheduled home visit, and the children were all present, the mother was not. The children were being babysat by Dylan, an adult cousin of the mother. Ms. Siegwart did not speak with the children on this visit. It appeared there were no discussions of any substance.

[149] While it might be unfair to limit the s.101(2) question to the relatively short time frame that the statute seems to, it is the time frame I am looking at. The answer, at least based on the evidence presented, is that the society did little if anything to assist any of the children during this time. Its most notable act of assistance was to apprehend these children from their school, to bring them to the police station for a joint society-police interview, and to place them in a 'temporary foster home' all without notice of any of this to their mother.

[150] This leads to the matter of the apprehension of these children. The society did not seek a warrant to apprehend these children. It did not, in fact, even claim to have made even the minimalist of efforts to do so. Its policy on apprehension in Elliot Lake is to simply remove a child without any effort to obtain a warrant. The reason given – because there is no Justice of the Peace available in Elliot Lake. That there are Justices of the Peace available elsewhere but still within the territorial jurisdiction of this society seems to have been an inconvenient truth for the children's aid society in Elliot Lake. Nor can any reliance on exigent circumstances form any excuse for apprehension without a warrant. The society knew the day before it apprehended, of the allegations of discipline in the home. It did nothing that day or overnight. It left all three children in their home where the allegations of discipline abuse were reported to have taken place. This does not sound like exigent circumstances. The next day, it learned of the details of discipline from its interviews of the children at their school in the morning, between 10 and noon at the latest. They did not apprehend then. They sent the children back to their classes. It was only after speaking with their society supervisor and received the go ahead that they (or at least Ms. Siegwart) removed the children. The interviews at the OPP station were between 2:22 pm and 3:10 pm. The children did not get off the school bus that day. The mother called the school which told her to call the society and then hung up. The mother called the society and the person she spoke to said she'd get back to her. She never did. It was only after supper time that the society sent someone to get clothing for the children, and that the mother first verified that her children had been apprehended. It is little wonder that the mother accuses the society of having "kidnapped" her children. The warrantless apprehension of children by the society in Elliot Lake is, no doubt, sometimes justified. The CYFSA statute provides the criteria to justify a warrantless apprehension. The description of the apprehension of these three children suggests that there is a systemic failure in the policy of this society to apply the statutory requirements in all of its apprehensions, at least in Elliot Lake. Worst of all, there appears to be no accountability for the society for those occasions when it does not fall within the statutory exceptions that allow for apprehension without a warrant. Indeed, it is not even held accountable to explain why it falls within any such exceptions.

[151] The absence of evidence of assistance by the society to the children prior to intervention and its warrantless apprehension are not the society's only faults in this case. It had others. I have already commented on the society's shredding of the original hand written case notes of Ms. Siegwart and Ms.Goulding, at both interviews of the children. What this does is that it forces the court to rely on less than the best evidence, namely the recording in the society's computer. However, even that has been made somewhat suspect as half of the computer case notes were edited before being locked, and no one can say what editing changes were made, or if the original author approved of such changes. I have also commented on the joint society-police interviews. The only reasonable inference that I can reach for the absence of the audio-video tapes of these interviews in the evidence is that the society never requested a copy. This again forces the court to rely on less than the best evidence, namely, computerized case notes. Overall, the society can be faulted for not obtaining and/or not safeguarding potentially better evidence to which it had access, knowing that the case it was litigating was ongoing and that it might eventually need this evidence at a trial.

[152] The society must surely have realized five years ago that the major thrust of its protection concerns revolved around the discipline to which these children were subjected. The society's only significant evidentiary source of information about such discipline comes from the children themselves. It does not take a Sherlock Holmes to realize that there are some serious discrepancies in what the children were recorded to have disclosed. Did the society conduct any follow up interviews to clarify what the children said initially, or to dispel such discrepancies? For example, the child P. clearly disclosed that the hands of all three children were tied behind their backs, and in fact, visually demonstrated this with her own hands and her gestures. Yet the two older children M. and J. denied that their hands were ever tied, much less behind their backs. The society never seemed to have pursued this discrepancy. Other examples include the locking of the children in the basement (of […] Court), of the garage (of […] Crescent) and in their bedrooms (at both locations) when the mother's uncontradicted evidence indicates that there were no locks on door to the basement, no locks from the home side of the door to the garage, and that the bedrooms had the locks removed and were only on the […] Court property in any event. Again the society did not seem to investigate to clarify these inconsistencies that seem very crucial to the issue of inappropriate discipline. In addition, there are the disparities in the viva voce evidence of two witnesses of the society. OPP officer D. Croskery's recollection casts some doubt on what Ms. Siegwart's computerized notes state about what transpired at the OPP station interviews. It is apparent that no criminal charges were ever laid. This should, at the very least, have been a tip off to the society that it got a garbled story from the children that needed to be straightened out. It never was – at least not with the children themselves.

[153] Perhaps the most incomprehensible omission of the society was the fact that it never did ask G. anything about the topic of discipline of these children. He was, after all, the person that the children identified as the one who imposed whatever the society alleged was cruel and inappropriate discipline. What is fairly well established is that the society had a succession of (at least ten) child protection workers assigned to the mother since 2011. G. became a person with some ties to this family on July 1, 2013 and according to the mother, was gone by the end of 2016 or early 2017. The society was advised about G. by the mother, and she asked if it had any objection to him. It apparently didn't. I infer that during this time, the society had independent involvement with G. because he, his ex-partner, and their son J.X., were also involved with the society. In fact, it is my inference that G. was a party in an unrelated child protection proceeding for which the society had to serve him with "papers". So he was known to the society for several years.

[154] Not one society witness ever actually saw G. at the mother's home in all of his period of involvement with her. This was despite the fact that the society had a right to unannounced visits to the mother's home continuously from July 8, 2013, a week after the mother and G. met for the first time, up to the time that the children were apprehended, on November 28, 2014. For well over a year, no one from the society ever talked to him, even though the society alleged that he was in the home often, and eventually moved in full time. In fact, even after the children were apprehended and the society no longer had the right to enter the mother's home, it never did meet or speak with G. about the relationship he had with the mother and with the children. It did not seek to examine him as a non-party under Rule 20. Nor did it seek to cross examine him on an affidavit of which he was the affiant and which was filed by the mother (at Volume 8, Tab 3) in the Continuing Record. It is somewhat astounding that the society would rely on the mother and her rather wishy washy efforts to persuade G. to speak with the society when it could easily have done so through other means. I say this despite the degree of non co-operation shown by G. to having any meeting with the society. In fact, the society cross examined G. only because he came to court, summonsed by the court, as the last witness in this trial.

[155] The society also bears, in my view, the bulk of the fault for the excessive length of time that this case took to come to trial. This was a status review case. I acknowledge that the involvement of the maternal aunt was a significant cause of delay. However, in considering delay, I see the overall timeline of this case from November 2014 to December 2019 – five years that should not have been allowed to elapse. That the society did not place this case on a trial list much earlier is incomprehensible.

[156] One last matter that deserves some criticism is the position that the society has taken on access to the children. While I acknowledge that the society never had any intention of returning any of these three children to the care of their mother, this is no reason to minimize or to make difficult the maternal access that has been ongoing for over five years. The society's actions have resulted in the following:

(a) The children being separated in two different foster homes.

(b) The foster homes being geographically distant from the mother's home.

(c) The mother being forced to travel to exercise access when she had no vehicle and when public bus service is unavailable from her residence (although it provided the mother with some travel expenses assistance)

(d) All access being fully supervised, monitored and recorded by access supervisors

(e) Over five years, no, or very little, access has ever been expanded by the society in terms of duration or frequency, except if court ordered

(f) The society has at times denied the maternal grandmother to accompany the mother on access or attend some function relating to the children.

(g) So far as the evidence has disclosed, the mother and the children have seldom been in contact by telephone or by digital devices, although all of them seem to have facility with such devices.

[157] Objectively, it is possible to infer from the foregoing that the society's objective was to curb and repress the mother-child relationships. If this inference has any foundation, it did so in the face of the mother's requests to expand her access visits, but more importantly, it did so contrary to the wishes of the children which the society has admitted were well known to the society throughout the entire five years from the date of apprehension.

[158] In short, the society in this case seems to have chosen the least that it must in terms of access, and has been very tight in exercising the discretion it had with respect to any expansion of, or liberalizing of. maternal access.

[13] RETURN OF CHILDREN TO THE MOTHER

[159] Enough evidence was admitted to convince the court, on the balance of probabilities, that the children did suffer actual physical harm in the guise of inappropriate discipline imposed by G., of which the mother was, in part, aware, or of which she ought to have been aware. From the evidence presented, it appears that this discipline was ongoing at the time of apprehension, and accordingly, there was also a risk of physical harm. Although that risk had disappeared by time of trial, it persisted for at least two years after apprehension as the mother was putting G. forward as her prospective co-parentor. Moreover, the mother did not comply with the court imposed conditions of engaging in the ITP program, and of notifying the society forthwith of changes in her living arrangements.

[160] On the first part of the two part test on a status review, the conclusion is that there is an ongoing risk of protection at the time of this trial. G. no longer appears to be a participant of any significance in the mother's life. From his testimony and his demeanour at trial, it is apparent that he is in bad physical and mental shape, including his impaired ability to remember the past. His prospects for improvement are not optimistic, and I do not foresee him ever residing with the mother again, whether she has any of the children with her or not. However, that is not a guaranteed outcome. It is possible that G. may have been putting on a bit of an act when testifying in this trial. I note, for example, that he often clung to the excuse of deficient memory as a result of head trauma he has recently suffered. However, his recollection was crystal clear on the question of whether he, at any time, had disciplined the three children.

[161] With the present and future absence of G. in the family, both actual harm and the risk of actual harm to the children (at least from a discipline perspective) abate to the point that they are no longer significant considerations. However, the mother remains a source of risk of harm. Perhaps the circumstance that causes the court to fear the most if these children are returned to their mother is her lack of insight, and her delayed lack of realization of things that are potentially harmful to them. What is expected from all parents is adequate parenting. This mother has unfortunately been inadequate as a parent, often making choices that have not led her to be or become a better parent. Among the most significant of these choices have been her refusal to engage with the ITP program, her choosing to believe both G. and the father of M. and J. when faced with allegations made about them (which turned out to have some veracity), and her attitude of non-co-operation with society child protection workers.

[162] The society attempted to assist the mother in a number of ways. It started with a voluntary Family Service Agreement which had a number of conditions. The mother did not comply with these conditions, by not pursuing personal counseling and by letting her sister baby sit the children. The society then sought and obtained a supervision order with conditions imposed by the court. The mother did not comply totally with these either, in particular, by permitting the father of M. and J. to sleep over in her home, without knowledge of the society. The society apprehended the children and they were in society care for almost two years. They were returned to her, again with conditions. On the most recent status review, the court's conditions were not only changed, but they were agreed to by her. She still did not comply with them. The conditions were changed finally, and yet again the mother failed to comply. She did not follow through with the ITP program and did not notify the society of her changed living arrangements. Throughout all of this ongoing interplay between the mother and the society and the court run uninterrupted threads of lack of insight, poor choices, late realizations, minimal co-operation to outright refusals, and conduct that I can only describe as surreptitious and secretive, certainly not upfront and forthright.

[163] Another disturbing thread that wends its way through the mother's relationships, and in particular, her relationship with the society and the court, is her casual and cavalier understanding of the conditions that she is placed under, and her compliance with those conditions. She seems not to realize that conditions are imposed for a good reasons. She appears quick to agree to conditions, but does not seem to take them seriously. In fact, her assertion that she did not have a copy of the order which contained the conditions she is alleged to have breached that resulted in the most recent removal of her children, seems to emphasize the nonchalance she exhibits in her attitude to such orders. The court's expectation is that she will attentively and diligently comply, to the letter, with all conditions it imposes on her. This mother does not, and historically has not done so. It is no wonder that she and the society have made little progress over the past decade. The court can have little confidence that this mother will comply with yet another set of conditions should the children, or any of them, be returned to her. Even more importantly, she cannot be trusted to be open and forthright, and has demonstrated that she cannot work with the society. She may say that she will comply, but her proven history shows the contrary.

[164] From the perspective of returning these children to the mother, it is impossible to imagine that this would be with no supervision order and no conditions. The inevitable conclusion is that these children cannot live with their mother as their primary caregiver and custodian. Another solution will be required and that solution (or those solutions) must have some permanence. Moreover, the ultimate dispositions of this court must take into account the CYFSA provisions in s.1 (purposes), in s.74(3) (best interests), and how access will best work for all involved.

[14] DISPOSITION - THE CHILD "M."

[165] The court is statutorily obligated to comply with the provisions of the CYFSA when making an order under this statute. I have already considered s.101(2) relating to efforts of assistance by the society, or others, to the children before apprehension. Section 101(3) requires the court to consider less disruptive alternatives before removal of a child from its custodian and caregiver. The less disruptive alternatives considered in this case for the child M. would be placement with the society or placement with the maternal grandmother, N.

[166] In terms of "less disruptive alternatives", placement with either the society or with N. are equally disruptive for M. from a statutory consideration. How can that be when M. has been in society care for over five years? Disruption, in the framework of s.101(3) should mean disruption from the placement of the child M. with her custodian and caregiver at the time of the society's intervention. That custodian and caregiver was then M.'s mother.

[167] Does the five or so years that the child was in "temporary" society care accrue to the benefit of the society as a "less disruptive alternative" than placement with the grandmother, N.? Or, put differently, did this five plus years in the society's care create a new status quo for the child M? And would an order placing M. with N. be more disruptive than leaving the child in the care of the society? This argument is certainly one that merits some scrutiny. After all, placement of children with a society for so long a time is bound to create in most children a feeling of stability, or continuity, or a sense of 'this is the way my life is'. In this sense, it is an actual and child centred 'status quo' that is different from that which the child had with its pre-intervention custodian.

[168] Section 101(4) requires the court to consider placement with a relative, neighbour or other member of the child's community or extended family with the consent of the relative or other person. Having concluded that the mother is not a candidate for the care and custody of these children, I look to other alternatives. In terms of options, I count only four:

Extended Society Care by the society
Care and Custody by the maternal aunt with a supervision order
Care and Custody by the maternal grandmother with a supervision order
Custody by the maternal grandmother under s. 102(1) CYFSA

[169] I reject any placement with the maternal aunt. All of the evidence shows she is not an acceptable person for placement in the estimation of everyone involved, even of the child M. This leaves the society and the maternal grandmother.

[170] The choice in s.101(4) is preferential. If placement with any of the persons listed in this subsection is a possible placement for a child, the reading of this subsection suggests that this placement should be chosen in priority to placement with the society. In the present case with respect to the child M., the maternal grandmother (N.) has to be seriously considered as a candidate for M.'s placement.

[171] The consideration of the maternal grandmother includes the following:

(a) M. and N. have enjoyed an enjoyable and beneficial grandmother-granddaughter relationship throughout M.'s entire life persisting to date.

(b) M. has expressed, at trial, a wish to reside with N. if she cannot be returned to her mother.

(c) N. has expressed a wish to have M. (and her brother J) reside with her. In fact, N. brought a motion, albeit unsuccessful, to be added as a party respondent so that she could make a claim for this very purpose. The court's inference is that N.'s consent to such placement is inherent from her motion efforts.

(d) Placement of M. with N. is an alternative claim of the mother in her Answer and Plan of Care (which has not been withdrawn or amended), in the event that M. is not returned to her mother.

(e) N. has at least one home in Blind River, and perhaps shares ownership, or at least residency, of another home in Sault Ste. Marie. I infer that she has the space and the amenities to provide a home for M.

(f) Residence of M. with N. would facilitate M.'s educational opportunities as well as accommodate her wishes as she would be able to be bused to Elliot Lake (if living in Blind River) or to Sault Ste. Marie (if residing there) to attend an English High School.

(g) From the evidence at trial, there is no ostensible impediment to M.'s residence with N., from the perspective of a child protection concern, or any other concern (such as age, infirmity, parenting ability, financial means or any other household problems that might be present in N.'s household)

(h) Residence of M. with N. would open up much greater opportunities for access visits between M. and her mother than those that have been afforded to either of them to date by the society. Any expansion of access would have to be in accordance with the wishes of the grandmother, the mother and M., and perhaps the society as well.

(i) Residence of M. with N. could conceivably also increase the opportunities for sibling access and sibling contact, a claim that is made by all of the children in this case.

(j) Residence of M. with N. would preserve M.'s family ties, would be less disruptive than if she were in extended society care, and would likely foster familial relationships with at least her maternal family, and possibly with her extended paternal family.

(k) The society would still be able to monitor and to supervise placement of M. with N., by way of an appropriate supervision order, and probably with more facility and co-operation than if M. were in her mother's care.

(l) M. is almost age 16 years, two years away from adulthood, and her wishes should be accorded considerable judicial weight.

(m) The society has not adduced any significant evidence in this status review proceeding to convince the court that N. is not a suitable placement for the child M. Perhaps it was too focussed on the mother and G., or perhaps it did not have such evidence. It certainly was aware of the mother's claim, even if made in the alternative – and it had enough time to accumulate and adduce any evidence that it felt was relevant on this issue.

[172] Section 1(1) of the CYFSA requires the court to consider how its disposition will promote the best interests, protection and well being of the child M. There is no evidence that the protection of M. will be compromised if she is in the care and/or custody of her grandmother. In fact, if there were any protection concerns relating to the grandmother, they were minimal and noticeably underemphasized. Well-being is undefined in the statute, but I take it to mean the positive physical, emotional and mental states of the child. For M., her mental and emotional inclinations are to reside with her grandmother in preference to remaining in a society foster home. From a physical point of view, there is no evidence that the grandmother would not be able to attend to any physical needs of M. I deal with best interests further below.

[173] Section 1(2) recognizes and advocates, inter alia, the autonomy and integrity of the family unit, a child's needs for continuity of care and stable relationships within a family, the child's ancestry and cultural and linguistic needs, and includes participation of the child's relatives and members of the child's family where appropriate. In addition, services to children under the CYFSA should be provided in a manner that builds on strengths of families. Even without considering best interests, all of these forgoing provisions in section1 of the statute favour, in perhaps different degrees, a disposition for M. that involves living with her grandmother, who is both a relative and a family member, rather than in extended society care in a foster home.

[174] But the CYFSA also mandates decisions on disposition to be in the best interests of the child. The best interests test was recently amended in the various circumstances that the court is required to consider when applying this test. I use the current provisions of this test which are found in s.74(3) and refer to the clauses and sub-clauses in this subsection as found in the Act.

[175] The child's views and wishes, if ascertainable, must be given "due" weight by the court in accordance with the child's age and maturity. [Clause (a)]. M. is almost age 16. From an age perspective, her views and wishes deserve substantial judicial weight. The court had a chance to observe M. testifying viva voce in court, and being cross examined by counsel. She performed reasonably well, even though I may have disbelieved or had misgivings about some of what she said. She is in high school and, although scholastically not an honour student, academically she has progressed, with assistance of the educational system, in an acceptable fashion to date. She appears to have good social and recreational skills among her peers. She prefers an English high school education and, at her age, her views on this deserve some respect. There is no substantial mental impairment so far as I can determine that would justify discounting M.'s wishes. M. seems to be a down to earth student and in her middle teens. It must be remembered that it is M.'s future life that is at the crux of the decision on disposition. M. has made her preferences known and has been more consistent about these over time than not. She has a positive family history with her grandmother, and her family, both maternal and paternal, seem to be important to her. Overall, I accord a great deal of weight of M.'s wishes. To live with her grandmother would preserve and foster M.'s ties not only to her grandmother, but also permit her to better maintain her ties her own mother, and her siblings, and in the future if she wishes, to her paternal family.

[176] There are a number of circumstances [in clause (c) fo s.74(3)] that are relevant to the court's consideration of the appropriate disposition with respect to M. Many of these are equally served whether she was in extended society care or in the care of her grandmother. Others, not so. There is no question, for example, that the society is financially better equipped than the grandmother, who is a recipient of social assistance benefits, to provide for M.'s physical needs. It can provide a foster home which currently appears satisfactory. It provides medical, dental and vision care to ministry standards. It can provide M., within reason, with any educational, recreational or social needs, guidance and counseling for post secondary pursuits, and even transitional funding to adulthood beyond age 18. It also has an assigned child service worker and foster parents who monitor her progress and work with her now, or in the future, if and while in extended society care.

[177] What the society cannot do, and what it has traditionally not done for M. was to provide M. with the sense of family that comes only with living with and interacting with, family members. It has minimally provided M. with contact with her mother, and almost invariably in a setting that also included M.'s siblings and a society supervisor. It has only meagrely permitted M. contact with her grandmother, reluctantly with her maternal aunt's family, and none with her paternal family.

[178] The society placed M. in a foster home for about four years which was not a particularly comfortable one for her, as she herself requested that she be moved from there. Moreover, her foster home placements have all been some geographical distance away from any family members (except her brother). There does not seem to be any francophone linguistic ties by M. to the foster family with which she has been placed. While the society may suggest that the mother coached M. and her siblings not to speak with, or not to co-operate with society workers, the court has not found this to be a finding of fact, and M.'s feelings currently do not include any great need or want to have future society involvement in her life. In summary, the society has come up somewhat short in providing for M.'s emotional needs [clause (c)(i)], in addressing M.'s emotional level of development [clause (c)(ii)], in fulfilling M.'s cultural and linguistic heritage [clause (c)(iv)], and in satisfying the importance to M. of her development of a positive relationship with either parent, or of her development of a sense of a secure place as a member of her family [clause (c)(v)]. The society has tended more to curb than to encourage M.'s relationships and emotional ties to her parents, siblings and other extended family members [clause (d)(vi)]. Continuity of care and disruption of that continuity does not seem that large a factor [clause (d)(vii)] with respect to M. She has been moved three times by the society since she was apprehended, albeit for sound reasons, and her moves do not seem to have had adverse effects on her. Another move, to a location and to an environment to which she wishes to move, would arguably be much less disruptive to her. Unfortunately, a comparison of plans for M. under the CYFSA is not possible [Clause (c)(viii)]. Firstly, the comparison is of the merits of a plan which has the child returning to her parent. That is not a possibility here. Secondly, the merits of the society's plan for M.'s care are not well developed in the evidence, and it suggests that either long term care in her present foster home, or adoption by persons as yet unknown, are the alternatives.

[179] The remaining clauses of s.74(3) are of marginal relevance with respect to M. The effect of delay in disposition [clause (c)(ix)] is somewhat ironic in light of the 5 ½ year delay in this case to date. Clearly, both the statute and the jurisprudence strongly favour a timely and permanent resolution in child protection matters. For M., any delay at this stage of this case is of little consequence. However, there is no denying that extended society care has more permanence than a time limited protection order. Risk to a child in being returned to, or being kept away from a parent [clause (c)(x)] is only partially applicable. The court does not intend to return M. to her mother (or father). Being kept away from her mother carries as much risk of harm to M. whether she is in society care or her mother's care. Frankly, I do not believe there will be any risk of suffering harm either way. Finally, the degree of risk that justified a finding [Clause (c)(xi)] is of no, or of marginal relevance as the circumstances that existed when such findings were made are changed today.

[180] In summary, my inclination is to order that the child M. be placed in the care and custody of her maternal grandmother, N. But I have some reservations and comments about this disposition.

[181] Firstly, such a disposition is only possible with the consent of the grandmother. While I inferred such consent from the grandmother's unsuccessful motion to be added as a party, that was some time ago, and I would require the grandmother to again provide that consent now.

[182] Secondly, as the grandmother was denied party status, she was not able to file an Answer and Plan of Care. The mother's Answer included an alternative claim for placement of M. with M.'s maternal grandmother, but the mother was less than generous (as a party) in providing the details of her Plan of Care for M. residing with the grandmother. In such plan, for example, I would normally look to what financial resources would be available, what residential space and what amenities would be provided, what transportation the child could utilize, what health care benefits the child would have, what school she would attend: in short, what kind of life would M. enjoy living in her grandmother's home.

[183] Thirdly, the society apparently undertook what I believe was a kinship assessment of the grandmother a number of year sago. It did not file this in the present proceeding, and I am not even sure if it was actually completed. The society appears to be required by Regulation to complete such assessment where placement of a child is proposed with a relative. While the society may be under such obligation, the court is not. This leads to the question of whether the court should review such an assessment before making an order placing a child with a relative. In the present case, I do not feel any compulsion to do so. The grandmother has been in the picture for almost the entirety of the society's involvement with M. The plan for placement with the grandmother was an option proposed from the inception of this status review proceeding. The grandmother herself tried to intervene to advance such a disposition. It was not a secret. The society led little, if any, evidence detrimental to the grandmother as a caregiver and custodian. All of the evidence indicates that the grandmother's relationship to M. has been appropriate, affectionate and nurturing. In the circumstances, I accept as a default position, that placement with the grandmother is an acceptable placement, rather than that placement with her has first to be vetted and approved by a kinship assessment.

[184] Fourthly, if the placement of M. with her grandmother proceeds, it will be a placement disposition under s. 114(1) which permits the court to make an order under s.101 (a supervision order for up to 12 months) or under s.102 (a deemed custody order). In either case, I have received little or nothing by way of evidence of by submissions of counsel. I have no indication of how long a supervision order should be, nor of what terms or conditions should apply in such order. With respect to a deemed custody order, I do not know if that is what either M. or the grandmother want, nor do I know what the position of the society and the mother is on such an order, nor do I have any submissions if such an order would be in the best interests of M. rather than another protection order.

[185] Fifthly, such placement, if it materializes, will do so after the start of the current Covid-19 pandemic. Actually, the pandemic did not start until all of the trial evidence was heard. I heard no evidence that relate to Covid-19. In the extraordinary circumstances of this global pandemic, I am more than anxious to hear what the parties, and particularly OCL counsel for M., feel about how this pandemic may affect whatever decision the court may make with respect to M.

[186] In summary, my preference is to make an order of disposition with respect to M. that places her in the care and custody of her maternal grandmother, subject to a supervision order in favour of the society, with a reasonable duration, and with reasonable conditions. This is subject, of course, to my comments in the five immediately preceding paragraphs. It may require additional submissions from all participants.

[15] DISPOSITION – THE CHILD "P."

[187] The child "P." is very different from the child "M.". For one thing, P. is considerably younger, is considerably less mature, and has been living for over five years in a very different environment than M. The child P. has different needs than either of her siblings, many of which are what I would consider "special needs". I have already provided a brief description of P. in paragraphs [60] to [66] above. In those paragraphs, I intimated my view that the mother would have a very difficult time parenting the child P. if she was returned to the mother's care and custody.

[188] While P. is the mother's child, biologically, she is only the half sister of M. and J. Does this matter? It does, as she has a different gene pool. Genetic makeup is a major determinant of who a person is, no matter what those that ascribe more to nurture than to nature might argue. Even then, an examination of nurture shows that P.'s life, for the most part, has not been with her half siblings, or with her mother. The history shows that P. was in her mother's care (and consequently in the family that also consisted of her half siblings M. and J., for the first year of her life when she was an infant, and for only 16 months thereafter, which included her year as a three year old. Even when she was in society care, she was primarily residing elsewhere than either M. or J., and continues to do so to date.

[189] In considering P.'s actual behaviour or performance as a child in this family, it has been fraught with difficulties and dysfunctionalities. From the society's evidence, it is clear that P. has ADHD (diagnosed), predominantly Hyperactive-Impulsive Type, as well as ODD (diagnosed). In addition, on psychological testing in June 2016 at age 5 ½ years, she was clinically elevated on Pervasive Development problems, and there were suspicions of attachment issues overlaying all of the above. Her cognitive functioning was in the low average range (12th percentile) and her verbal ability and perceptual ability were in the borderline range (5th percentile). What this shows is a young girl, now 9 ½ years old, who has multiple intellectual, emotional and psychological problems that typically affect behaviour in an adverse way. She is on three prescribed medications that control her behavior, but do not eradicate her condition. She clearly needs help. Dr. Lefave, the psychologist who prepared the 2016 assessment report included 14 recommendations for P.'s caregiver(s).

[190] The anecdotal accounts of P.'s behaviours in the evidence in this case amply confirm that she is, and has been, a handful for her caregivers her entire life. This includes at her mother's home, at her society foster home, at her day care, at her school, on her school bus, and even on her access visits. Her mother has not been able to control her behaviour although she did not have all that much time with P. actually living in her home. The ITP program, in which the mother refused to engage, might have been of some help, but it was never implemented. Even the foster parents of P., who have been the most constant as P.'s caregivers, have always reported troubles with her, and continue to do so, although now to a lesser extent. The notes of access visits that include P. show she is still prone to be a disruption, to bicker with her half brother, and to be defiant and display tantrum behaviours requiring time outs to be imposed.

[191] While I can draw no inference of what effect discipline imposed by G. had on P., there is a suggestion in P'.s 2016 psychological report that "trauma of severe discipline" might also contribute to P.'s behavioural presentation. The mother's attempts to correct P.'s behaviours were inadequate. There is no evidence that the mother even sought any prescribed psychopharmacological means, or any counselling assistance, or was even aware of P.'s diagnoses, and what they meant. Her own discipline efforts were limited and clearly ineffectual. The mother has not, to date, shown any effort on her own part to educate herself specifically on the kinds of problems her daughter P. has, or how to effectively deal with them. She discounted Healthy Babies-Healthy Children as not helpful in dealing with P., and did not even engage with this agency when she had the opportunity. It is too bad, as the evidence shows that even at age 3 years, P. was already telling her mother to "fuck off" and that she "hated her".

[192] My conclusion is that P. cannot be returned to her mother's care. Her mother could not handle her, no matter how much P. may want to return there. The mother is a single parent, with no reliable support system in place, and with limited financial means. She has poor prospects of improving her circumstances to the point where she might be able to adequately parent P., particularly as she is unable to work co-operatively with the society. Another placement than with the mother is needed.

[193] My understanding is that the maternal grandmother has not sought to have P. come to live with her. In fact, the only persons seeking this are the mother and the child P., both as alternatives if they cannot be re-united themselves. The court is mandated to consider subsections 101(2), (3) and (4) CYFSA for each child. In the case of P., the society did nothing to assist P. before intervention so far as I can tell. I have already indicated that the child P. cannot be returned to her mother for reasons stated above. Moreover, any return to her mother would necessitate the imposition of a supervision order, but the mother and this society cannot work together sufficiently for such supervision to be effective. Accordingly, the court has to consider other dispositions. I have already excluded the maternal aunt for M. and, for the same reasons, she is also excluded as a caregiver and custodian for P. This leaves the maternal grandmother or the society. However, the maternal grandmother firstly, would need to consent, and secondly, would have to satisfy the court that she could manage P.'s behaviours and adequately parent P. I have no evidence that she could do so, and what evidence I do have persuades me that the contrary would be true, particularly if M., a teenage sister of P., is contemporaneously introduced as a new member of the grandmother's household.

[194] From considerations of s.1 (paramount purpose) and s.74(3) (best interests), it would be optimal if P. could be raised with her "family" as opposed to foster care or in an adoption home. Section 1(1) of the CYFSA requires the court to consider how its disposition will promote the best interests, protection and well being of the child P. Given P.'s peculiar problems, I am skeptical that the grandmother, even with the help of the society, could as effectively promote P.'s protection and her well being, as has the society with the foster care it has provided.

[195] I foresee P. being more, not less, of a behaviour problem child as she gets older. I do not see the grandmother being able to keep up with, or to cope with P. particularly as the grandmother ages. P. has shown a propensity for disregarding supervision and caregiver authority. This pattern is likely to persist and requires considerably more than the grandmother can provide. The society will have a regular child care worker assigned to P. to help P. and her foster parents if P. stays in society care. In terms of s.1 CYFSA considerations, overall, these favours the child remaining in the society's care. The child P. is not easily adoptable, her current placement is apparently not limited by any time constraints, and her present foster family seems committed to her care, and has a good handle of P.'s needs and how to best handle them. Moreover, P. has a routine and has developed what I consider an actual if not a statutory "status quo" there.

[196] In terms of "best interests" circumstances set out in s.74(3) CYFSA, the child's views and wishes are a consideration. However, these are more to reside with her mother. Her grandmother is a back-up choice only, and P. has not even made a formal claim for this disposition. Nor has P. actually provided even the most rudimentary of details of her plan if living with her grandmother. The actual wording of clause (a) of s.74(3) CYFSA requires the court to give "due weight in accordance with the child's age and maturity" to the child's views and wishes. While P. is 9 ½ years old, she is still quite young, and the due weight the court accords to her views and wishes is tempered by that fact. From a maturity standpoint, M. is, from both her behaviour history as recounted in the evidence, her interactions with others, as described by a number of witnesses, all pretty much concurring, and her psychological make up, as described best in the 2016 report of Dr. Lefave, at a level of maturity that gives no comfort to this court. I feel compelled to give very little weight to P.'s expressed views and wishes, in particular, those that would place her with her grandmother, N.

[197] In considering the circumstances in clause (c) of s. 74(3) CYFSA, a number of these favour placement with her grandmother. For example, her emotional level of development [(c)(ii)], her ancestry and family diversity [(c)(iii)], her cultural and linguistic heritage [(c)(iv)], and the importance of her development of her ties to her grandmother as a relative [(c)(vi)]. On the other hand, even more of the circumstances in clause (c) do not favour placement with her grandmother or are neutral. For example, her physical and mental needs and the appropriate care or treatment to meet them [(c)(i)] are more likely to be provided in society care. Her mental and emotional level of development [(c)(ii)] argue for better responses from long term care with the society than with her grandmother. The development of a secure place as a member of a family [(c)(v)] is, in my interpretation, not restricted to a biological family. It may also mean a foster family, and in the case of the child P., her foster family has been, for a much longer time, much more of a secure place for her than has the home of the grandmother, or even the mother. Continuity of care and the possible effect on P. of disruption in that continuity [(c)(vii)] clearly favour continued placement with the society. Several other circumstances are inapplicable or are neutral. Others, including P.'s claims in her Answer, will be addressed in the consideration of access that will affect P., further set out below.

[198] In summary, I do not feel that placing P. in the care and/or custody of her maternal grandmother is going to further the protection or well being of P. Nor do I consider that P.'s best interests are best served by such placement. I discount her views and wishes to the contrary. There is almost no information in all of the evidence about how any plan would be implemented with P. residing with her grandmother. She is better off remaining in her present foster home where she is admittedly comfortable and secure and where her many needs have been best addressed. The statute gives no choice but to order that the child P. be placed in extended society care. Although the court cannot order where such a child should be placed, I would recommend that she remain in the Kirby foster home.

[16] DISPOSITION – THE CHILD "J."

[199] The child "J." is the only male child in this family. A psychological assessment of J. was performed in June 2016 in French, and an English translation and summary of that report dated Sept 8, 2016 sheds some light on how J. functions, at least academically. I have already, in paragraphs [56] to [59] above, provided a brief description of J. based on the evidence in this case. From a disposition perspective, I reject placement with his maternal aunt as there are no indications that this would be a desired or workable disposition. For reasons set out with respect to both of his siblings, I also reject placement with his mother. This leaves only the maternal grandmother and the society as the remaining viable options.

[200] Placement in the grandmother's home is a disposition that the mother has advocated as an alternative, if placement with herself does not happen. It is also the apparent request of the maternal grandmother. It would keep J. and his sister M. in the same household, something that has been fairly constant and consistent from J.'s birth, even while in society care. Both M. and J. seem comfortable living together as siblings and both have good relationships with their grandmother. It would simplify and possibly facilitate maternal access if both were residing with their grandmother. It could also simplify their sibling access with the child P.

[201] My understanding is that J. is entering grade 8 this September, assuming schools re-open by then. He attends a French language school and his education to date has been in French. He can continue to do so regardless of where, and with whom he resides. He is comfortable in his present foster home and indications are that the foster parents are not intending to adopt him, but are prepared to have him in their home as a foster child for the society to adulthood, if necessary. The child J. has not made a formal claim for a disposition that involves his residing with his grandmother, but, in his mother's Answer, this is set out as an alternative disposition to placement with his mother, if living with his mother is not possible.

[202] I have already considered the statutory implications of section 1 of the CYFSA in terms of the purposes of the statute. I need not repeat them but to state that these were reviewed with respect to the child M. in paragraphs [172] and [173] above and they are equally applicable to the child J. From a statutory point of view, the purposes of the CYFSA favour the disposition for J. of living with his grandmother, over living in foster care with the society. However, it is not just the purposes of the CYFSA that must be considered in making a decision on disposition. Of equal, if not greater importance are those circumstances set out in s.74(3) that comprise the 'best interests' test.

[203] The child J. is currently a youthful teen, age 13 ½ years. He will be 14 in November of this year. Clause (a) of s.74(3) CYFSA requires the court to consider a child's views and preferences. From an age perspective, his views and wishes warrant considerable weight, particularly as it is the direction of his life henceforth that hangs on the court's decision on his disposition. From the standpoint of maturity, however, his views and preferences deserve somewhat lesser judicial weight. Why would that be? For one thing, J. is assessed as functioning cognitively in the borderline to low average to average ranges. He is universally described as having attention difficulties, being easily distracted, and being impulsive. My impression is that J. operates in the here and now, and is only superficially concerned with his long term future. While that may not be so unusual for someone his age, it makes the court question how deeply he has considered his future. He is described by his society child care worker as being "inconsistent". The inference I make is that J.'s maturity level is such that the court should place a lesser weight on his views and wishes than it does on those of his sister M.. Nevertheless, his views and wishes are still worthy of considerable judicial weight. They are clearly ascertainable, have been consistent since he was apprehended, and they are to stay with family in preference to remaining in foster care.

[204] Clause (c) of s 74(3) CYFSA lists a number of circumstances that the court must consider, where relevant to a child, in applying the best interests test to determine the appropriate disposition. Like for his sister M., a number of these favour placement with the grandmother. However others favour continued placement with the society in foster care. These have been reviewed in paragraphs [186] to [189] above with respect to M. and, with some qualifications, they also apply to J.

[205] The end result of the statutory considerations, and the evidence presented in this case, is that placement of J. with the maternal grandmother is, in my view, a marginally preferable disposition than extended society care. The balance in favour of choosing the grandmother includes:

(a) preference for family care and milieu over institutional foster care;

(b) the child's wishes, even if discounted somewhat for his lesser maturity;

(d) greater opportunities for better, expanded maternal and sibling access;

(e) equal, and perhaps better, educational opportunities;

(f) likelihood of French heritage and language usage being fostered

[206] My concerns with respect to the grandmother as caregiver and custodian also apply to J. I have set these out in paragraphs [180] to [185] above. Foremost among them is the grandmother's current consent to placement of J. with herself, as well as J.'s current consent to reside with her in light of these Reasons. Moreover, I would prefer to have a more fulsome plan for J. living in her home, including details of how she plans to address, among other things, his educational shortcomings, his faithfulness in taking his medically prescribed medications, and his reported pre-occupation with electronics. I would also make placement with the grandmother subject to a supervision order with conditions. Optimally, I would like to know what the grandmother, the mother, the children and the society feel are appropriate conditions for such supervision order, and what each feels the proper length of such order should be. Virtually none of these has been the subject of any evidence or submissions of counsel.

[207] Finally, I am not only interested in, but have great concerns about the current Covid-19 pandemic and how this may affect the dispositions I am proposing in these Reasons. Protection of children is a primary justification for the CYFSA and it is immaterial in the end result if protection is from default of a parent, or from a globally and universally dangerous circumstance. I would have to be satisfied that the grandmother is taking precautions in her home to comply with the provincially recommended criteria for dealing with this pandemic. Moreover, I would need to be satisfied that the children M. and J. would also be compliant.

[208] With respect to J., and to M. as well, leaving the care and custody of the society has some significant consequences. The children's aid society is responsible for virtually every aspect of the lives of these children so long as they are in the society's care. This involves not only the basics of food, clothing and shelter, but all of the less tangible benefits to which a child in care has entitlement by statute. The maternal grandmother will be taking on the burden of providing the bulk of these if J. and M. are residing with her. I doubt that she has pockets that are as deep as are those of the society and consequently, the children will inevitably be subjected to some sacrifices. It would be advisable for OCL counsel to discuss with these children, and possibly with the grandmother, what possible consequences may result from their co-residence in the same household.

[17] DISPOSITIONS - SUMMARY

[209] By way of summary, I have concluded that there is a continuing need of protection for these children at the time of this status review. This is because of a risk of harm if they are to be returned to their mother's care and custody. The risk is not of any specific harm listed in any of the grounds under s.74(3) CYFSA. Any return to the mother would necessarily have to be subject to a supervision order with conditions. The society would supervise the placement with the mother. However, this society and this mother cannot work together sufficiently for the court to have assurance that the children will be adequately protected. Moreover, the court cannot have confidence that the mother will abide by all of the conditions that it may impose by way of a supervision order.

[210] Placement with the maternal grandmother is an option that, statutorily, the court must consider. It is an option that is not only available, but will satisfy the CYFSA provisions in s.1, that is, will meet the purposes of the statute, and S.74(3), that is, will be in the best interests of the children. The court must not only consider but must choose this option over the option of placement with the society. My inclination is to choose this placement option subject to consents of the grandmother and both children, and subject to hearing further submissions on the supervision order and conditions that will apply to such placements. I do not consider that this option is in the best interests of the child P. and, statutorily, her only remaining option is extended society care.

[18] ACCESS

[211] The issue of "access" has been raised in the pleadings in this case.

(a) By the society, in its Status Review Application, officially seeking an order of no access to the mother, but relenting in its submissions at trial, that there should be an order of maternal access, and that it be reasonable access on reasonable notice, supervised in the discretion of the society, at times and places determined by the society. Moreover, it conceded that there should be inter-sibling access and that the mother and the children should all be noted as access holders.

(b) By the mother, in her Answer, seeking generous access to her children, in the event that they are not returned to her care and custody.

(c) By the children, in their Answer, seeking that they be access holders to each other, and to their mother and to their maternal grandmother.

[212] Not surprisingly, except for the society, the submissions of counsel were almost totally devoid of any suggestions for the terms or details of any access orders. This is unsurprising because the parties were primarily focussed on the issue of care and custody, and, not having the benefit of the court's Reasons, were understandably uncertain on what access was in issue, and their positions thereon.

[213] The result of this is that the court is unable to make any access orders that are either sensible, practical or viable, not to mention ones that are in the best interests of these three children, unless and until the parties and OCL counsel (and possibly the maternal grandmother) provide further submissions, and if appropriate, additional evidence on this issue. Frankly, I would recommend that a further settlement conference be held with respect to access issues only, as this seems the route that would be quickest and would get all parties together for a thorough discussion of the pro's and con's for whatever access is to be ordered. Who knows, it might result in a consent order.

[214] I would also suggest that a case conference with respect to access be conducted with me presiding as the case conference judge. I do so primarily so that I can outline my concerns and my wishes for information and for positions of the parties, and non parties, on access issues. Alternatively, to avoid potential disqualification, I can provide a list of the matters I wish to be addressed that deal with access in this case., as well as further information with respect to placement.

[215] Ultimately, failing any consent to orders on access, I will require written submissions from all interested persons.

[216] In terms of conferencing, I advocate the use of ZOOM as a software application that may be useful and of benefit in these pandemic times.

[217] As I have stated in past Reasons, these Reasons are not equivalent to an order made in this case. They are an indication of what order(s) the court is inclined to make. They are meant to assist counsel and parties and interested non-parties. In that regard, I note that the maternal grandmother is not a formal party, does not have party status and is not even entitled to a copy of these Reasons. She will have to be contacted as she plays a key role in the resolution of this case. Her participation from this point on will be essential, and I welcome any suggestions, particularly if they are on consent of all parties, that would facilitate this.

Released: June 11, 2020

Signed: "Justice John Kukurin"

Children's Aid Society of Algoma v. L.G., M.J.H., R.C., 2020 ONCJ 297

Case Summary