WARNING

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

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

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

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

87.— (8) Prohibition re identifying child.

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

87.— (9) Prohibition re identifying person charged.

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

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

DATE: November 16, 2020

COURT FILE No.: C46936/09

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO

Applicant,

— AND —

H.F. (mother)

R.B. (father of JB)

G.W (father of NF and JF)

Respondents

Before: Justice Roselyn Zisman

Heard on: September 14-18 and 21-23, 2020 and November 3, 2020

Reasons for Judgment released on: November 16, 2020

Counsel:

• Alex De Melo — counsel for the applicant society
• Colin Tobias — counsel for the respondent H.F. (mother)
• Linda Choi — counsel for respondent R.B. (father to JB)
• No appearance by or on behalf of respondent G.W., service previously dispensed with

Reasons for Decision

Zisman, J.:

1. Introduction

[1] This Status Review Application involves three children JB who is 11 years old, NF who is 8 years old and JF who is 7 years old. All the children have special needs and the Children's Aid Society of Toronto (the society) has been involved with their parents for most of their lives.

[2] All the children have been in society care for cumulative periods of time that exceed the statutory time limits.

[3] Except for a very short time, none of the children have been in the primary care of the mother.

[4] They have been cared for by RB who is the biological father of JB and who assumed care of the children NF and JF.

[5] GW who is the biological father of NF and JF has not been involved in their lives and has not participated in this trial.

[6] The children were previously found to be in need of protection due to a risk of physical harm.

[7] As of the date of trial, JB has been in the temporary care and custody of the society since November 29, 2018. NF and JF were also in the care of the society as of November 29, 2018 but as of July 17, 2019 they have been in the temporary care of S.W., who is their paternal aunt, subject to the supervision of the society.

2. Position of the Parties

[8] The society in this Amended Amended Amended Amended Status Review Application seeks an order that JB be placed in the extended care of the society with access and that the children NF and JF be placed in the custody of their paternal aunt pursuant to section 102 of the Child, Youth and Family Services Act (CYFSA) with access to both the mother and RB. Although not formally pleaded, the society also sought incidental orders to enable the paternal aunt to obtain government documents and travel with the children without the consent of the mother, the biological father or RB.

[9] With respect to access for JB, it is the society's position that JB be the access holder and that any access be in the discretion of the society. Given his special needs there is no plan for adoption.

[10] With respect to NF and JF it is the society's position that access should be in the discretion of the paternal aunt with whom they will be living.

[11] Initially the mother supported the position of the society. However, just before she commenced her testimony, she instructed counsel that she had changed her position and that she no longer supported her children being placed with the paternal aunt but now supported the position of RB that NF and JF be placed with him. She did not change her support of the society's position that JB be placed in the extended care of the society.

[12] RB's initial position was that he was seeking an order that all three children be immediately placed in his care. Prior to the commencement of his testimony, counsel advised the court that as an alternate position, if the children were not returned to RB's care, then he sought an order with respect to JB that he remain in the further care of the society for 6 months pursuant to section 122 (5) of the CYFSA. With respect to the children NF and JF, it was his position that they remain in the care of their paternal aunt for a further 6 month supervision order.

[13] In closing submissions, father's counsel conceded that the children could not be placed in RB's immediate care and therefore his primary position was now that the children remain in their current placements for 6 months and there be a further Status Review at that time.

3. Theory of the Parties

[14] It is the theory of the society's case that all three children have special needs and accordingly need a caregiver that can provide consistent care and who is able to closely monitor them. They require a caregiver who can communicate and liaise with the children's service providers and with their school.

[15] It is the theory of the society that the mother due to her limitations is unable to care for the children although she is able with supervision to enjoy access visits with them.

[16] It is the theory of the society that despite RB being the primary caregiver for all of these children for most of their lives, he has not been able to provide the consistent care they need despite the many community supports that have been put in place and despite the supervision and supports provided by the society.

[17] It is the theory of the society that RB, despite his love and devotion to the children, has been unable to successfully seek and maintain his sobriety and as such he continues to place the children at risk of harm.

[18] It is the theory of the society that as a result of the same concerns that have been outstanding since 2009, the children have had instability and major disruptions in their lives. This has resulted in the children being removal from RB in 2015, a gradual return of all three children to his care in 2016 and the removal of them again on November 29, 2018. JB has remained in the temporary care of the society since that date and NF and JF remained in society care until July 17, 2019 when they were placed in the temporary care of their paternal aunt.

[19] The society submits it is in NF and JF's best interests that there be a permanent order in place to end the protracted child welfare litigation for them and provide them with long term stability. With respect to JB and in view of his high needs and the length of time he has been in care, he also needs a permanent plan.

[20] Further, NF and JF have made disclosures that RB hit them with a belt and put them in a cold shower as punishment. RB has been charged with assault with a weapon and is bound by the terms of a recognizance not to have contact or be near NF and JF, except under the direction of the society.

[21] It is the theory of RB that he has cared for all of the children for their entire lives and worked cooperatively with various service providers and with the society. In the last 11 years none of the children have incurred any injuries.

[22] It is further his theory that the children's disclosures are not true and that he has never harmed NF and JF. He believes they have been coached since they were removed from his care and he intends to plead not guilty to the charges.

[23] RB now admits that he is an alcoholic something he submits he was not able to do before and is now actively pursuing treatment. He is requesting that the court give him a further opportunity to prove that he can remain sober as he wishes all of the children returned to his care so he can resume parenting them.

[24] The mother agrees that due to her limitations is unable to present a plan for the children. However, she supports NF and JF being placed in RB's care as he has a loving relationship with the children and is a good father. She testified that she changed her position as she has had problems arranging access with the paternal aunt particularly since Covid-19 has interfered with her ability to have in person contact with the children.

[25] The mother took the position that NF and JF should be immediately placed in the care of RB. However, as she testified before RB testified, she was not aware that he had changed his position and was seeking that all the children remain in their respective placements for a further 6 months. She testified that if RB went into residential treatment for his alcohol addiction, his daughter could care for the children. As she did not attend the trial until she testified, she was also unaware the RB's daughter testified that the children should not be placed into her father's care until he had a long period of stability and sobriety.

4. Background of the Parties and Children

[26] The mother is 48 years old. She has been diagnosed as having borderline intellectual functioning or mild intellectual impairment. She also has an acquired brain injury resulting from a car accident when she was 12 years old. She has difficulty retaining information and has problems with her functional memory.

[27] RB is 55 years old. He immigrated to Canada from Guyana in 1987 when he was 23 years old. He was sponsored by his mother and brother. He has siblings who reside in the Greater Toronto Area. He has two adult daughters from a previous relationship in addition to JB. He has a Grade 10 education and subsequently obtained several certificates for various industrial skills. He is not currently employed and is in receipt of Ontario Works.

[28] RB met the mother at a bus stop in 1997 and immediately felt a strong love connection to her. They began to live together in their own apartment in 2008 and JB their son was born shortly thereafter. He was apprehended from the hospital. RB had no concerns about the mother's ability to care for JB as long as she had his help from him, the community and the society.

[29] JB who is now 11 years old, is non verbal and has been diagnosed with severe Autism Spectrum Disorder (ASD).

[30] It was not disputed that JB is doing well in the care of his current foster mother. She described him as a very handsome boy who does not have any bad or aggressive behavioural issues. He has good gross motor skills and is being taught to use an IPAD to speak for him by pointing to pictures. He self stimulates himself by flapping and spinning and it is a challenge to figure out what he wants and then how to calm him down. She has established routines for him, is teaching him how, with assistance, to dress himself and put on his shoes and his toileting routine is improving.

[31] JF who is 8 years old has also been diagnosed with ASD. But he is verbal and has well-developed motor skills. He has also been diagnosed with Attention Deficit Hyper Disorder (ADHD). Although he attends a regular classroom, he is very far behind academically. He needs to be withdrawn daily for special assistance. He has difficulties with aggressive outbursts.

[32] NF who is 9 years old has also been diagnosed with ASD and ADHD but to a much less severe degree. There is some divergence of medical opinion with respect to the cause of her behavioural issues as either being a result of ADHD or that it could be trauma related. She attends a regular classroom and is doing well in school. She is described by everyone as being very creative. She loves to read and colour. She rarely displays any behavioural problems at school but if this occurs, she can be accommodated.

[33] The evidence of the paternal aunt that both children are doing well in her care was not disputed.

5. History of the Litigation and Involvement of the Society

[34] In order to understand the evidence presented during this trial, it is important to understand the prior litigation history and involvement of the society.

[35] JB was born on […], 2009 and was apprehended from the hospital.

[36] On March 16, 2009 he was found to be in need of protection pursuant to section 37 (2) (l) of the CFSA [now s. 74 (2)(n) of the CYFSA] namely, that the mother agreed that she could not care for him. He was placed with the mother pursuant to a 4 month supervision order. RB was granted access once a week in the community or in the supportive residence where the mother was residing with the baby at the time.

[37] On April 23, 2009, that is after just about a month, JB was removed from the care of the mother due to concerns about the child's safety and the mother's inability to parent him independently.

[38] The mother and RB then began to reside together. Due to previous domestic violence between the mother and RB, there were concerns about domestic conflict between them.

[39] RB had pleaded guilty a year before, on March 28, 2008 to uttering a threat of bodily harm against the mother and failing to comply with his recognizance.

[40] On November 24, 2008 he pleaded guilty to assault with a weapon against the mother and a further count of fail to comply with his recognizance. After serving 25 days in custody he was sentenced to a further 30 days and placed on probation. He was required to complete the PARS program.

[41] There were also concerns about RB's alcohol consumption. He agreed to random urine samples and after several negative samples, the society determined that RB's alcohol consumption was no longer an issue.

[42] RB proposed a plan to care for JB independent of the mother and he had the support and assistance of his cousins who would babysit and provide respite care.

[43] RB also attended a parent/tot parenting group, attended access consistently and there was a growing attachment between him and JB.

[44] On July 12, 2010 an order was made placing JB in the care of RB subject to a 6 month supervision order. The terms included that RB continue to attend the parenting group, cooperate with random alcohol testing and continue to meet with the infant nurse specialist and the public health nurse. He was also required to apply for daycare and cooperate with the society.

[45] In June 2011, JB was diagnosed with autism.[1]

[46] On July 24, 2012, the supervision order was terminated. The Statement of Agreed Facts filed in support of the order states that RB complied with the terms of the supervision order. Since JB's diagnosis, RB began to educate himself about autism and worked with service providers to ensure that JB received the specialized services to meet his developmental needs. JB was attending daycare regularly. RB worked cooperatively with the society with respect to issues around transportation to accommodate the mother's access. RB further committed to continue to work with the society on a voluntary basis.

[47] NF was born on […], 2012. The mother asked RB to assume custody of her but at the time RB was unable to do so as he was coping with the challenges in raising JB. NF was therefore placed into the care of the society. Initially RB thought he could be NF's biological father but after DNA testing it was determined that GW was her biological father.

[48] RB later came forward and put forward a plan to care of NF.

[49] On February 26, 2013, NF was found to be in need of protection pursuant to section 37 (2)(b)(i) of the CFSA [now s. 74 (2)(b)(i)] namely, that there is a risk of physical harm based on her mother's overall inability to meet her needs. NF was placed in the care of RB subject to a 6 month supervision order. The terms of supervision required him to obtain a medical doctor and ensure her medical needs are met, involve her in a community program to assist with her development, cooperate with the society and sign consent forms for collaterals involved with him and the children.

[50] JF was born on […], 2013. He too was apprehended from birth and a temporary without prejudice order was made on June 4, 2013 placing him in the care of the society.

[51] On January 27, 2014 the order of supervision with respect to NF was terminated and she was placed in the custody of RB pursuant to section 57.1 of the CFSA [now s.102 of the CYFSA].

[52] The Statement of Agreed Facts filed in support of that order states that NF continued to do well in the care of RB and there were no concerns about her care or development from her medical doctor, the daycare or any other collaterals.

[53] RB at that time considered putting forward a plan to care for JF but recognized that having another child in the home may negatively affect JB and NF.

[54] However, he subsequently changed his mind and put forward a plan to also care for JF.

[55] On June 15, 2015, JF was placed in the care of RB subject to a 6 month supervision order. There was a finding that JF was in need of protection pursuant to section 37(2)(b) (i) of the CFSA [now s. 74 (2)(b)(i) of the CYFSA] based on a finding that he was at risk of physical harm in the care of his mother.

[56] Although the finding was made due to the mother's inability to meet the needs of JF placed him at risk of physical harm, concerns were noted about RB.

[57] The Statement of Agreed Facts in support of that order states that there had been a referral from the police on February 3, 2015 about RB behaving disruptively in his building's lobby in the presence of the children. Also, RB had advised the police that he did not have a criminal record but the society was aware of his convictions in 2008.

[58] But otherwise the reports from collaterals supported that RB was caring appropriately for both JB and NF. The terms of supervision included that a family doctor be obtained, that JF be involved in community programs, that RB cooperate with the society and sign consents to speak to collaterals and that the society approve any caregivers. Further, the children were not to be exposed to any form of physical or verbal violence and that RB not consume alcohol.

[59] On June 24, 2015, that is just 8 days after JF was place in RB's care, all three children were apprehended.

[60] The events that resulted in the children being apprehended are set out in the Statement of Agreed Facts namely, that the society received information from staff at the social service office that RB attended at their office appearing to be intoxicated and that he could not follow simple instructions and was belligerent with the staff.

[61] As a result of this information, a family service worker along with a colleague and the police attended on the same day at RB's home. RB was at times belligerent and aggressive. During the interview, empty and full bottles of alcohol were observed that RB claimed belonged to his friends. There were also concerns about the caregiver who had been watching NF while RB was out of the home and who had picked up JB from school.

[62] During the interview JB was observed to be running around and trying to crawl up on the fridge where there was food. RB did not seem to notice and the society workers and the police officer assisted in getting him down. NF was naked except for a diaper which was extremely wet and JF was wearing a dirty diaper. NF and JF were banging on the plates in the sink.

[63] The children were apprehended due to RB's history of alcohol misuse, RB's belligerent behaviour, the alcohol bottles in the apartment, concerns that RB's sobriety was compromised, the young age of the children, and the fact that RB who was the sole caregiver placed the children at significant risk.

[64] All three children were placed in the same foster home.

[65] RB continued to indicate that he did not have a relapse and that he does not drink. He stated that the incident on June 24 th was a mistake and he made an error in judgement.

[66] He was referred to CAMH for an assessment but as he did not admit that he had an addiction, CAMH was unable to assess him.

[67] RB did however, complete a Relapse Prevention Program with the John Howard Society and agreed to wear a ankle bracelet monitoring device. He wore this for 3 months during which time there was no concern with his drinking. RB then was resistant to either wearing the ankle monitoring device or switching to a breath monitoring device.

[68] There were other concerns noted such as RB's support persons no longer being prepared to assist RB and his only support was his older daughter SB. The society workers noted that RB was agitated, raised his voice and was belligerent in their meetings with him. Further, the access supervisors noted a shift in that initially his access went well and then it was noted that he appeared agitated in visits, difficult to calm down and he would not listen to suggestions so not a lot of teaching could be accomplished.

[69] Over the next few months, RB did comply with the ankle monitoring device and the breath testing device and all results were negative. Also, his daughter SB agreed to move into his home.

[70] Based on RB's willingness to work with the society, the assistance of his daughter and the negative alcohol test results, the society agreed to gradually transition all three children back to the care of RB.

[71] On March 9, 2016 JB was placed in the temporary care and custody of his father RB subject to the supervision of the society with terms that included that his daughter SB reside with him and that she immediately report to the society if RB consumes any alcohol. RB was also required to not consume alcohol, continue to utilize the breath device as requested by the society and participate in random urine screens. RB was required to engage and participate in community treatment programs as recommended by the society to ensure all JB's developmental needs were met and to sign consents as reasonably requested. All caregivers were to be approved by the society and RB was not to engage in any physical or verbal violence. There was an order for the mother to exercise access to NF and JF twice a week.

[72] The plan to transition NF and JF into the care of RB was delayed due to his apartment having an infection of bed bugs and as his daughter had not yet moved into the apartment due to the infestation. By June the home was found to be in good order and NF and JF began to have access visits in RB's home.

[73] After NF had an access visit at RB's home on June 27 th , a referral was received that NF made an allegation that RB had disciplined her with a belt across her bum. RB denied the allegation and his daughter SB stated she had not seen anything like that. Although NF maintained the allegations, she expressed no fear of RB and still wished to return to live with him.

[74] On July 27, 2016, a finding of risk of physical harm with respect to JB and NF was made pursuant to section 37 (2) (b)(i) of the CFSA and (ii) [now s. 74 (2) (b) (i) and (ii) of the CYFSA]. It is important to note that this finding of a risk of physical harm both regarding the failure to adequately care for, provide for, supervise or protect the children and a pattern of such of neglect was made with respect to RB's care of the children.

[75] A final order was made placing JB and NF with RB pursuant to a 6 month supervision order. The terms were the same as the terms in the temporary order made on March 6, 2016. A separate order was made the same day also placing JF with RB on the same terms of supervision.

[76] On July 27, 2016 when the children NF and JF attended at the society's office for a medical discharge, the children were hard to manage, displayed defiant behaviour, climbed over furniture and JF kicked the doctor. A developmental assessment was recommended and concerns were also noted regarding NF's speech.

[77] RB followed up and took the children to the family doctor who referred NF and JF to the ADHD clinic. Due to her young age, NF was difficult to assess but the psychiatrist felt her behaviour could be trauma related. JF was diagnosed with ADHD.

[78] With respect to NF, the family doctor stated the diagnosis was not as clear as she required structure, routine and consistent discipline. Both children were referred to a paediatrician. JF was assessed as being on the autism spectrum. Although RB was concerned that NF might also have autism, neither the school or the pediatrician assessed this at that time.[2]

[79] On December 8, 2016, the society received a call that RB may be drinking. When the society worker attended at his home the next day she found he was not intoxicated.

[80] However, as a result of the allegation, on December 10 th , the society worker contacted Driver Check and was informed that RB had not had a urine screen since September and he had missed a screen in October. An immediate request for a urine screen was made but RB did not respond to a text or a voicemail requesting he make himself available. RB testified that he could not recall getting any voicemail or text.

[81] On December 19 th , the society worker then attended at the home and found that RB was not intoxicated.

[82] On December 28 th the society worker again attended at RB's home. RB was not present but his daughter was there and the worker observed an empty cooler bottle, beer bottle, a can of VH juice and a red dixie cup in RB's bedroom.

[83] On January 6, 2017 the society worker again attended at RB's home, RB explained that the empty bottles of alcohol in his room belonged to his friends as he had a Christmas party.

[84] RB advised that he wanted the court order changed as he wanted to stop the urine screens. He also told the society worker that the screen on his cell phone was broken so he could not see text messages that were sent to him as an explanation as to why he did not respond to Drivers Check texts in December. He did not explain why he did not answer the voicemail messages.

[85] A new referral was made for urine screens but Drivers Check reported two further instances of RB being unavailable for January. For reasons that were not explained, the society as of February 16, 2017 cancelled the testing.

[86] Services were put in place for both JB and JF through Adventure Place and ABA Services Toronto. RB also agreed to take a parenting course.

[87] On March 14, 2017 a supervisor of the daycare where JB attended reported a concern that RB had been verbally aggressive with staff on two separate occasions as RB was not complying with their requests and RB complained about their care of JB. A meeting needed to be arranged with the society, RB and the daycare supervisor in order to maintain the daycare placement.

[88] Pursuant to a further Status Review Application, on March 30, 2017 an order was made that all 3 children continue to be placed with RB subject to a further 6 month supervision order.

[89] The Statement of Agreed Facts states that a further order of supervision was required so that RB could demonstrate that he could consistently meet the children's needs, maintain sobriety, and ensure that progress was made addressing the protection concerns with the support of the society. The terms included the requirement that RB's daughter reside in the home and that she immediately advises the society if her father consumes alcohol. RB was required to not consume any alcohol but also not have any alcohol in his home and that he continue to participate in random urine screens. The previous terms requiring RB to meet the children's needs and cooperate with the society were also included.

6. History of Events with Respect to the Status Review Application Presently Before the Court

[90] It is against this background that the Status Review Application was commenced in September 2017 to review the supervision order made on March 30, 2017.

[91] The initial Status Review Application requested a further order of supervision with the children remaining in the care of RB. The concerns outlined by the society were that RB's daughter was now working and RB would be solely responsible for the children, NF made a disclosure that RB had hit her with a belt and NF had overdosed on medication.

[92] The inappropriate use of physical discipline allegations was not verified. RB agreed that he would now lock up NF's medication. RB had made himself available for random drug screens that were all negative. He was obtaining support from Adventure Place, an organization that works with families to strengthen children's social, emotional, behavioural, developmental and adaptive functioning. Their intensive home based services began in the summer of July 2017 in RB's home. Both JF and NF attended the Adventure Place summer program. RB and the children were engaged in several other services.

[93] The society was seeking further supervision as RB needed continued guidance in his role as the primary caregiver and given his historic struggles with substance use a period of ongoing monitoring and support was necessary to ensure his continued abstinence.

[94] RB filed an Answer indicating that he sought a termination of the order. He stated that he had the support of his daughter and was meeting with addiction professionals through John Howard Society and was advised that their services were no longer needed.

[95] The society then filed an Amended Status Review returnable February 1, 2018 requesting an order that all three children be placed in the care and custody of RB pursuant to a section 57.1 of the CFSA [now s.102 of the CYFSA]. The society changed their position as it had confirmed with the John Howard Society that RB was doing well, he had not relapsed and no longer needed their services. As of November 2017, the society discontinued testing for alcohol.

[96] However, the society noted that it had received information on December 12, 2017 that RB attended the daycare with a strong smell of alcohol but he was still coherent. The society worker was unable to contact RB and accordingly there was no verification of this concern. RB denied the allegation. RB continued to work cooperatively with the society and Adventure Place.

[97] The society continued to recommend that the children be placed in RB's custody as they had been in his care for a prolonged period of time and were doing well in his care while he maintained continued abstinence from alcohol. The children were being raised together and RB continued to utilize services to meet their developmental needs.

[98] There were several adjournments dealing with procedural issues and the ongoing requests by the paternal aunt for access to her niece and nephew, NF and JF.

[99] On November 29, 2018 RB attended at the daycare to pick up the children smelling of alcohol and was yelling and belligerent. The daycare supervisor called the police as she believed that the children would not be safe in RB's care. Both the police and the daycare supervisor advised RB that the children could leave with him if he could arrange for another adult to pick up the children. As RB was unable to do so, a society emergency worker attended and the children were placed in a foster care.

[100] A temporary without prejudice order was made on December 4, 2018 placing all three children in society care with access to RB, the mother and the paternal aunt.

[101] On January 23 , 2019 the society filed an Amended Amended Status Review to seek an order that the children be placed in the care of the society for 4 months to complete a kin assessment of the paternal aunt and address any other permanency plans presented. The society also sought an order extending the time for JF to remain in care.

[102] A temporary care and custody motion was heard on April 4, 2019. RB sought the return of the children to his care. For oral reasons Justice Sherr held that the children would remain in the care of the society. The endorsement notes that RB historically has had challenges with alcohol, he relapsed in front of the children and was belligerent to daycare staff and the police. RB also had relapsed in January and February with his last admission to hospital on February 2 to 21, 2019. The court held that RB needed to establish a longer period of sobriety before he could seek to have the children returned to his care.

[103] On December 15, 2019 the society again amended its Status Review Application. The Amended Amended Amended Status Review Application sought an order that JB be placed in the extended care of the society with access and that NF and JF be placed in the care of their paternal aunt subject to a 6 month supervision order with access to their mother, JB and RB.

[104] The society again amended its Status Review Application. On April 24, 2020 the Amended Amended Amended Amended Status Review Application was before the court. The society amended its position with respect to NF and JF seeing an order that they be placed in the custody of their paternal aunt pursuant to section 102 of the CYFSA. This is Status Review that was the subject of the trial. The position of the society that JB be placed in the extended care of the society remained the same.

[105] The trial took place over 8 days. There was extensive evidence both in documentary form with 36 exhibits and viva voce evidence. The society workers' direct evidence was presented by affidavits and they were subject to cross-examination. The other witnesses called by the society presented their direct evidence orally and were also subject to cross-examination. The mother testified on her own behalf. RB testified on his own behalf and he also called as witnesses his adult daughter SB and a counsellor from the Yonge Street Mission.

8. Procedural and Evidentiary Issues

[106] A number of evidentiary and procedural issues arose during the trial as follows:

a) Effect of Mother's Change in Position

[107] Counsel for the mother had instructions to support the society's position and conducted his cross-examinations to support that position. The day before the mother's case was to commence, counsel received new instructions that evening to support RB's position regarding placing NF and JF in his care. The mother admitted in her testimony that RB had been asking her to help him and to support his position. She testified that she had been speaking to him daily, they had discussed it last night and that he had taken her out the that day for lunch to discuss his plan. Initially she admitted that they spoke about court but then changed her testimony and said they did not discuss court.

[108] It was submitted that RB had manipulated the mother into changing her position as the timing was suspect. RB's daughter SB was permitted to testify before the society was finished presenting its case in order to accommodate her employment schedule. SB testified that although she supported her father, he needed to get help for his addiction and he needed to have a long period of sobriety and stability before considering a return of the children to his care. The mother was not present for this testimony. But It was after this evidence, that the mother called her counsel to advise she had changed her position.

[109] The court does not need to make a finding that RB manipulated the mother. It was evident from her testimony that there was a lack of any details or specifics as to why she changed her position. In any event, I find that RB's position is not strengthened by the mother supporting him.

[110] Counsel for the mother was asked if he wished to have any witnesses recalled as the scope of his cross-examination may have changed if he had been aware that his client no longer supported the society's position. Counsel advised that he had instructions from his client that it was not necessary to recall any witnesses.

b) Request to Admit

[111] Prior to the commencement of the trial, society counsel filed a 14B requesting an order that RB be required to provide a proper Response to the society's Request to Admit that had been served on RB on August 21, 2020 or in the alternative that the court strike his response or provide directions regarding this issue.

[112] The issue was addressed at the commencement of the trial. The society's Request to Admit consisted of 157 paragraphs and the response simply stated that all facts were denied and that the society had an obligation to be fair and the facts RB's was requested be admit only partially told the truth.

[113] Counsel for RB was asked to review the facts as there were many non- controversial facts that could have been admitted. However, it was not until the evidence was completed that the Response was filed with the court. RB admitted about 32 facts. But as the society had needed to proceed with its case, the facts that RB admitted in the Response did not save any court time.

[114] The society's Request to Admit included many disputed incidents and allegations and it is understandable that RB would not admit these and in that respect, it was waste of time for the society to have prepared it and to have expected that RB would admit those controversial facts.

[115] The Request to Admit also contained alleged admissions and incidents between RB and the family service worker Stephanie Clement. It also contained statements allegedly made by JF and NF to Ms Clement regarding inappropriate physical discipline by RB. It later became clear that this was an attempt by society counsel to have Ms Clement's evidence before the court as she was on leave from the society and unable to testify. RB did not admit any statements, allegations or incidents involving Ms Clement.

c) Admission of Case Notes as Business Records

[116] The society then sought to file as business records 11 pages of Ms. Clement' case notes that included her interactions with RB, statements he allegedly made to her as well as disclosures allegedly made by NF and JF. These case notes were filed with the court at the end of all the oral testimony that is, after RB had testified.

[117] Although a society worker's case notes can qualify as business records, pursuant to section 35 of the Evidence Act as it would meet the criteria namely:

i) The record must be made in the usual and ordinary course of the business.

ii) It must be in the usual and ordinary course of the business to make the record at the time of the event or within a reasonable time thereafter and;

iii) The exception cannot be used unless 7 days notice has been given of the intention to introduce the records.

[118] A Notice to file the case notes as a business record with an affidavit of service was not presented to the court. However, as RB's counsel did not object to the admissibility of the case notes on the basis that she did not receive the required notice, I assume that service was not an issue.

[119] However, RB's counsel raised the issue of fairness. Just because a case note is admissible as a business record does not mean it should be admitted. The notes need to be relevant and probative. Further, the relevance of the evidence must outweigh the prejudicial value.

[120] In this case, counsel for RB was deprived of the opportunity to cross-examine Ms Clement. With respect to the alleged disclosures by the children it would have been important to be aware of Ms Clement's experience and training in interviewing the children and the circumstances surrounding the making of those disclosures as it is RB's position that the children were coached. With respect to statements RB allegedly made to Ms Clement or with respect to her interactions and observations of his behaviour, as the case notes were not filed until after he testified, it is not clear that he and his counsel were aware of what portions of the case notes the society would be relying upon. He was therefore deprived of the opportunity to dispute those statements. I find that on balance the prejudice to RB outweighs the relevance of the evidence of Ms Clement. Therefore, I find that the case notes are not admissible.

[121] The case notes of both Dr. Emily Kendall of the Centre for Addiction and Mental health (CAMH) and Matthew Rose a paramedic with the City of Toronto Emergency Medical Services were admitted on consent as both witnesses referred to and were cross-examined on those notes. It was also convenient for the court to have a written record of their evidence.

d) Police Records

[122] The police notes of an interview by Sgt. Plunkett of the children as to their disclosures resulting in criminal charges against RB were admitted on consent. Sgt Plunkett was available for cross-examination. However, a synopsis of the charges was not admitted as not meeting the criteria for a business record as it is a summary of evidence that the Crown intends to rely upon.

[123] The police notes of police constable Chris Langford, who was in attendance at the daycare on November 29, 2018 that resulted in the children being brought to a place of safety, were also admitted on consent. He too was available to be cross-examined.

e) NF's Statements Regarding Allegations of Physical Discipline

[124] The society introduced statements by NF to Sgt. Plunkett wherein she stated that RB hit her with a belt. The statements were admitted on consent as having met the threshold requirement of necessity, in view of the age of NF, and reliability in view of the circumstances surrounding the making of the statement and the lack of any motive of the child to fabricate.

[125] No submissions were made as to the ultimate reliability of the statements. I find that NF's statements meet the requirements of ultimate necessity and reliability. Sgt. Plunkett is a neutral third party with many years of experience interviewing children. The accuracy of her notes of her interview and the method of her interview were not diminished on cross-examination.

[126] RB alleged that NF was coached by the paternal aunt who reported the same allegations to the society. Her evidence was not diminished in cross-examination. I find that there is no evidence that the paternal aunt coached either NF or JF to make allegations against RB. The children's statements to the paternal aunt were tendered by the society not for their truth but as forming the context that led to the police investigation.

f) Statements of Agreed Fact

[127] In view of the lengthy history of the society's involvement, the society relied on and cross-examined RB with respect to statements and events he agreed to in the various Statement of Agreed Facts filed as part of the trial record. I have only relied on those events or statements that RB clearly did not dispute in the Statement of Agreed Facts. These statements are admissions against his interests and are admissible as an exception to the hearsay rule.

g) Credibility

[128] I found the evidence of RB to be evasive, rambling and contradictory on many issues. He would not answer questions directed to him by his own counsel and needed to be admonished several times by the court to simply answer the questions posed to him. Where the evidence of other witnesses or documentary evidence contradicts RB, I accept that evidence.

h) Post-Trial Events

[129] As the paternal aunt had not filed a caregiver consent or been offered independent legal advice, counsel for the society with the consent of other counsel, sought to file the Caregiver Consent by 14B after the trial concluded.

[130] The consent was received by the court shortly after the trial was completed. However, the next day the court received a further 14B requesting that the court not rely on the caregiver consent and not render its decision.

[131] I immediately requested that a conference call be arranged with all counsel. I was advised that a further meeting had been arranged for the paternal aunt to obtain further legal advice. I advised counsel not to tell me the issue in dispute.

[132] I proposed three possible solutions. If the issue was resolved a 14B should be forwarded to the court. If the issue was not resolved, the parties could arrange to attend before the case management judge to attempt to resolve the issue or the parties could request that the trial be reopened and further evidence called.

[133] On November 3, 2020, the court received a 14B with the caregiver consent signed by the paternal aunt after receiving independent legal advice. The form also indicated that the court could now release its decision.

9. Statutory Framework and Legal Principles

[134] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the CYFSA, as set out in section 1(1) which is to promote the best interests, protection and well-being of children.

[135] As long as it is consistent with the paramount purpose, other purposes of the CYFSA as set out in section 1(2) are also designed to support the autonomy and integrity of the family unit, to utilize the least disruptive course of action available and appropriate to help a child and to recognize that, whenever possible, children's services should be provided in a manner that respects the children's needs for continuity of care and for stable family relationship.

[136] As this is a Status Review Application, there has already been a finding that JF is in need of protection pursuant to section 37 (2)(b)(i) of the CFSA and NB and JB are in need of protection pursuant to sections 37 (2)(b( (i) and (ii) [now s. 74 (2)(b) (i) and (ii) of the CYFSA].

[137] It is well settled law that the court must now evaluate whether there is a continued need for state intervention to protect the children and consider what disposition would be in their best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parents' parenting ability.[3]

[138] Section 122 (1) of the CYFSA limits the available options for disposition. This is a statutory recognition that permanency planning is of paramount importance for children. The section limits the cumulative time in care for children under the age of 6 years to only 12 months and for children over 6 years of age to 24 months.

[139] However, Section 122 (3) of the CYFSA provides that the cumulative time in care does not include a period of 5 or more years that the child was not in society care.

[140] In this case, JB was in society care from January 28, 2009 to March 19, 2009, April 29, 2009 to May 17, 2010, June 24, 2015 to March 9, 2016 and from November 29, 2018 to the present. Not counting his 14.5 months in care in 2009 and 2010, since June 2015 he has been in care 30 months as of the commencement of the trial.

[141] NB was in society care from April 11, 2012 to February 26, 2013, June 24, 2015 to July 27, 2016, November 29, 2018 to July 17, 2019. Not counting the 10 months she was in care in 2012 and 2013, she has been in society care for 20.5 months as of the commencement of the trial.

[142] JF was in society care from May 30, 2013 to June 15, 2015, June 24, 2015 to July 27, 2016 and November 29, 2018 to July 17, 2019. Not counting the 19 months he was in care in 2013 to 2014, he has been in society care for 26 months as of the commencement of this trial.

[143] Section 122 (5) of the CYFSA provides that the court can grant a 6 month extension to these time periods. However, such an extension should only be granted in unusual, exceptional and for equitable considerations. The power to grant extensions should not be routinely used and the extension must be in the best interests of the child, understanding the importance of the promotion of stability in a child's life.[4]

[144] In this case, RB is requesting that the children remain in either society care or care of the paternal aunt for a further 6 months so that by then he will have had a period of sustained stability and abstinence so that the children could again be placed in his care.

[145] In considering RB's plan the court must consider that the test is not "beyond a reasonable doubt" or "is the parent completely hopeless". The test is on a balance of probabilities. As no one can predict the future with certainty, the court must decide whether the children's best interests are more likely to be served by JB remaining in society care for a further 6 months and NF and JF remaining in the care of their paternal aunt for a further 6 months and then going through another trial, if there is no consent. At the next trial the court would be asked to determine if all the children can be returned to the care of RB or if it is in the children's best interests for JB to be placed in extended care with access and for NF and JF to be placed in the care and custody of their paternal aunt.

[146] Section 74 (3) of the CYFSA lists a number of factors to be considered in determining the best interests as follows:

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

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

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

(c) consider any other circumstance of the case that the person considers relevant, including:

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

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

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

(iv) the child's cultural and linguistic heritage,

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

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

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

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

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

10. Issues to be Determined

[147] The issues to be determined in this trial are:

1. Is there a continued need for protection for the children?

2. If there is a finding that the children continue to be in need of protection pursuant to the original finding or based on evidence to support another or additional finding of need of protection, what disposition is in their best interests?

3. If there is a finding that JB be placed in extended care of the society with access, what terms of access should be granted to the mother and to RB?

4. If there is a finding that NF and JF be placed in the custody of their paternal aunt, pursuant to section 102 of the CYFSA, what terms of access should be granted to the mother and to RB?

12. Discussion

a) Is There a Continued Need of Protection for the Children?

[148] I find that there is overwhelming evidence that all of the children remain at risk of physical harm as a result of the inability of either the mother or RB to care and provide for or supervise and protect the children and there is a long-standing pattern of their inability to do so.

[149] The finding of risk of harm with respect to JF was made due to his mother's overall inability to meet his needs and not with respect to a concern that she would intentionally harm him. Due to the mother's cognitive challenges and lack of reliable supports she has never been able to assume primary care of him.

[150] With respect to JB and NF the finding of risk of harm was made due to RB's history of alcohol use that compromised his ability to meet the needs of the children. RB's lack of supports and aggressive and belligerent interactions with the society and other supports have compromised his ability to meet the ongoing needs of the children.

[151] NF and JB continue to remain at risk of harm due to RB's inability to sustain abstinence from alcohol use. JF is also at risk of harm based on the same concerns.

[152] The evidence at trial provided insights about the extent of RB's alcohol addiction and concerns about the situation of these children between 2015 and November 29, 2018.

[153] When the society placed the children back in the care of RB in 2016 it was on the basis that his daughter SB would be living in the home, that RB not consume any alcohol and that SB would report any use of alcohol. However, SB testified that she felt after a time that RB could meet the needs of the children that is, ensure that they went to their appointments and to daycare and she needed to carry on with her life. She testified that although she had not seen RB drinking, she was not home a great deal of the time. She did not get up in the morning until after RB had left with the children and as she was working and going to school she did not return until later at night when RB and the children were already asleep.

[154] Therefore, the level of oversight that the society had been expecting was not there.

[155] As the events of November 29, 2018 resulted in the children being placed in the care of the society after being in the care of RB since 2016, the evidence was important in examining the ongoing risk to the children.

[156] The daycare supervisor testified that the children had been in this daycare since July 2018 and there has been issues regarding communicating with RB as he became angry and would use vulgar language.

[157] On this day, RB arrived at about 5:30 pm to pick up the children. She approached RB as she needed to give him the daycare's Code of Conduct and warn him that if he did not follow the code the children would have to be removed from the daycare. When she tried to speak to him, he aggressively threw down a backpack and said, "you think you are bad" and tried to kiss her. She smelt alcohol on his breath. She testified that she is also from the West Indies and was aware that those words were a threat.

[158] She testified that in the 10 years she had worked in daycare, she had never had such an experience. She was traumatized and worried about her own safety and health as she was 3 months pregnant. She felt the children would not be safe with RB as he was intoxicated and if he was walking the children home it was already dark out. She was not aware he had a taxi outside waiting.

[159] She consulted with her supervisor and called 911.

[160] Police Constable Chris Langford and his partner were close by when the 911 call was received. As they arrived, the children were in a taxi and RB was trying to get into the taxi. He was told that he could not leave with the children and they all went back inside to the daycare.

[161] Constable Langford testified that RB smelt of alcohol, he was unsteady on his feet and his speech was slurred and nonsensical. His goal was to keep the peace and to let the children go with RB if there was a responsible adult who could attend to pick up the children. He called the mother, but she told him that she was not allowed to see the children. The mother told him that she was not surprised as this was not the first time RB was drunk.

[162] Constable Langford testified that it was a frustrating situation as he expressed in every way he could that RB needed to cooperate and find someone to come to pick up the children. RB was not cooperative and was verbally aggressive, loud and swearing. Although RB was on the phone he would not tell him if anyone was coming. RB also told the children not to talk to the police and told them that the cops would take them away and he wouldn't see them for 5 years.

[163] The police were there from 5:34 p.m. to 8:15 p.m. A society worker came and the children were removed. Both the daycare supervisor and Constable Langford testified that RB ignored the children, did not comfort them and had to be told to change JB's diaper.

[164] Constable Langford testified that the situation could have been easily handled if RB had just told him that someone was coming. He would have waited or taken the children to the police station to wait. SB testified that her father had called her and she arrived sometime after 8:00 p.m. but the children were already gone.

[165] In his testimony, RB blamed the police and the society for not trying to contact his daughter. He took no responsibility for what happened. Rather, he denied he was intoxicated and accused the police of assaulting him.

[166] RB confirmed that at the time, he was attending AA, and had not been drinking for several years.

[167] When counsel for RB asked him to confirm that he had not been drinking between the first apprehension of the children on June 29, 2015 until they were again removed from his care on November 29, 2018, he would not reply and made various rambling and incoherent statements. After several attempts to get him to answer and after the court intervened to ask him to simply answer the question, he finally stated that he had not been drinking during that time.

[168] When then asked by the court, why he relapsed on November 29, 2018 he replied that he only had a few sips of wine and had not relapsed but had only "lapsed". He explained that a relapse was a prolonged period of drinking and a lapse referred to just taking a few drinks. He stated that there was no triggering event that caused him to drink that day. He also denied that he was intoxicated and blamed the daycare supervisor, the society worker and the police for removing the children.

[169] If RB is to be believed that he was able to maintain abstinence from June 2015 to November 29, 2018 and then for no apparent reason began to drink again, there is an ongoing risk to the children. If in fact, he was drinking during this time, there is also an ongoing risk to the children.

[170] However, RB made admissions to various medical personnel that contradict his statements that he had abstained from the use of alcohol and admitted to a serious alcohol addiction.

[171] To his credit after the children were removed from his care on November 29, 2018 RB attended for an assessment at CAMH on January 25, 2019 to the Concurrent Outpatient Medical and Psychosocial Support Service program (COMPASS). He met with Dr. Kendell, a family doctor specializing in addiction medicine. She described him as looking disheveled and with an odour of alcohol.

[172] RB told Dr. Kendell that he had been drinking since an early age, that his father was an alcoholic and was abusive to him. He told her that he currently drank about 26 ounces of liquor a day but has non-drinking days when he sees his children. He reported that he had previously attended a program at Renascent and Humber River Hospital.

[173] RB was assessed with severe substance use disorder.

[174] On a subsequent attendance on February 22, 2019, RB reported that since the last appointment he had been admitted for detox twice from January 30 to February 2 and again from February 20 to 21, 2019.

[175] He reported that he had "alcohol poisoning" and had been drinking 40 oz. of liquor and beer a day. He also reported that he had a history of anxiety. He was referred to an Early Recovery group that met weekly. Dr. Kendell explained that the group has a harm reduction approach and focusses on working with people towards making changes to their substance use and improving their mental health. RB reported that he was motivated to obtain treatment and have his children returned to his care.

[176] RB continued to attend for outpatient treatment. He was prescribed anti-craving medications that had been prescribed in the past and that he found useful. He reported abstinence and that he was attending AA weekly.

[177] Dr. Kendall last met with RB on July 12, 2019. He was discharged from the program. It was recommended that he continue with AA and follow up with his family doctor for ongoing support.

[178] At that point RB reported being abstinent for about 6 months. Dr. Kendall also testified that RB had random urine screens. But in cross-examination it was clarified that he brought in his own samples for testing so they were not random.

[179] In RB's evidence he dismissed the history of his drinking as reported by Dr. Kendell in a sarcastic manner. However, in another CAMH report dated July 10, 2020, RB reported again that he had a longstanding history of alcohol use, that he had been drinking problematically since he was 16 years old. He also reported that his longest period of abstinence had been for one year in 2017 and that after completing "CAITS/Renascent[5] in 2019, he was sober for 3 months.

[180] In the CAMH report dated July 10 th , 2020 when there was an attempt to explore what triggered RB to drink he reported that, "things just piss me off." He was not able to further elaborate and was not able to identify any coping mechanisms. During that meeting, RB admitted that he had attended the daycare on November 29, 2018 "half drunk".

[181] In the records of Humber Hospital dated August 13, 2020, RB reported that he drinks 20 to 40 oz of alcohol a day. He stated, "I'm a drunk; an alcoholic." RB denied making these statements and laughed it off.

[182] Based on the records of CAMH, Humber River Hospital and his family doctor Dr. Dale Roehl, RB had a serious relapse after the children were removed from his care or it may be that he had been drinking all along but had controlled that drinking. On either scenario, he has a serious alcohol addiction.

[183] Based on the evidence presented it appears that RB has had the following admissions to hospital with respect to his alcohol substance abuse:

• January 30 to February 2, 2019 - no details provided
• February 20 to 21, 2019 - no details provided
• February 12, 2020 – he presented with elevated alcohol levels, hearing voices
• May 27, 2020 - he presented with alcohol withdrawal symptoms and admitted drinking
• May 29, 2020 - readmitted, having auditory hallucinations, conspiracy thoughts discharged at symptoms resolved
• June 25, 2020 - admitted for alcohol withdrawal
• July 7 to 10, 2020 – admitted to CAMH due to alcohol withdrawal symptoms after discharge form Etobicoke General Hospital. Discharged himself against medical advice and stated he was not interested in treatment. He reported that he had an appointment with Dr. Kendell at COMPASS but it was later confirmed that he did not have an appointment
• July 18, 2020 - 24 hour admission due to alcohol withdrawal
• August 1 to 8, 2020 – 7 day admission due to alcohol substance abuse
• August 13 to 14, 2020 - intoxication

[184] The most recent evidence concerns an incident on August 13, 2020. Matthew Ross a paramedic with the Emergency Services of the City of Toronto testified that he received a call of an unconscious male on the ground that had been dropped off by a taxi or car.

[185] He attended at the vicinity, but no one was there. He then received information that the Toronto Fire Services had arrived before him and found the male about a block away and woke him up. RB was found lying in the grass about 2 to 3 feet from the street with an almost empty bottle of vodka beside him.

[186] Mr. Ross described RB as in an altered state, he had not showered, looked disheveled, his pants were pulled down so his buttocks were showing, he was confused and did not know where he was or what happened. He had a small bruise on the right side of his head with some bleeding that was controlled. He assessed that RB was intoxicated.

[187] RB was aggressive and made very inappropriate and vulgar comments about Mr. Ross' children and his wife.

[188] It took 4 fire fighters and 2 paramedics to get RB onto the stretcher and into the ambulance. He was swinging his arms and spitting. Mr. Ross tried to put a mask on RB but he kept trying to take it off. Due to COVID -19 Mr. Ross was worried about his health and safety.

[189] RB was transported to Humber River Hospital. In the ambulance Mr. Ross asked him the same questions multiple times due to his altered state to make sure he understood him. RB initially denied he was drinking and then he admitted it. RB's rude and aggressive behaviour continued.

[190] As there was no bed available when they arrived at the hospital, Mr. Ross waited with RB and when he said he was hungry bought him a sandwich and drink. Despite Mr. Ross trying to help RB he was angry at him, rude and swearing to other people. He had to be moved away from other patients due to his behaviour.

[191] Mr. Ross was with RB from about 2:00 p.m. to 5:00p.m. He described the experience as "haunting" and that it stuck out for him due to the vulgar comments RB made about his family and his fear of being infected with COVID-19. It was apparent from Mr. Ross's testimony that despite his 15 years of experience he was still shaken up by the incident.

[192] RB in recounting this incident maintained that he was not drinking and that he had fallen hit his head and suffered a concussion.

[193] According to the medical report from Humber River Hospital of that day, RB admitted that he had been drinking that morning and found on the grass by a taxi driver. He reported that he sustained an injury to his right forehead but had not lost consciousness and felt no pain. He appeared disheveled, smelt of alcohol and his speech was slurred. He was administered various tests and no medical concerns were noted. He was assessed with alcohol intoxication.

[194] The report notes that he had been discharged from the Etobicoke General Hospital on August 8, 2020 after a 7 day stay. The supports that had been suggested that week before were discussed and according to the report, RB stated that, " I'm a drunk; alcoholic; I'm trying to get better, be patient with me." He reported that he had a bed available with Renascent Treatment Centre on August 27, 2020.

[195] RB told his family doctor, that he was entering a 30-day treatment program after court.

[196] RB testified that he was going to a 28 day in patient treatment program at Renascent Treatment Centre and there was no exact date but no later than November. No independent evidence was provided to confirm when or if RB was entering such a program.

[197] It is impossible to believe anything RB says due to the many contradictions in his testimony and the various admissions he has made to his doctor and hospital staff. On the one hand he maintains he did not drink from 2015 to 2018 and that something just happened on November 29, 2018. This is despite the fact that he maintains that he was going to AA, completed the relapse program through John Howard and had negative urine screens during that time. He states that he began to drink after the children were removed due to his pain and depression. But then he denies he was drinking in this latest incident on August 13 th . He refused treatment at CAMH in July but now states he is going to Renascent Treatment Centre.

[198] I conclude that RB has a serious and long-standing history of alcohol substance abuse despite his denials about his history of drinking or his denials about the amount he drinks. Despite his statements that he now accepts that he is an alcoholic and cannot drink any alcohol, I find that he has not acknowledged his addiction as he continues to deny or minimize the events that led to the children being removed from his care on June 24, 2015 and again on November 29, 2018. He continues to minimize or deny further incidents of intoxication that led to him being admitted multiple times since January 2019 to the hospital and minimizes the most recent incident on August 13, 2020.

[199] There is overwhelming evidence that all the children remain at serious risk of harm due to RB's serious and long-standing alcohol addiction.

[200] There are further risks to the children due to RB's inability or refusal to have a co-operative and honest relationship with the society and his own supports.

[201] RB withdrew his consent for the staff at Adventure Place to speak to the society as of July 27, 2018.

[202] On January 10, 2020 he also withdrew his consent for his doctor Dr. Roehl to speak to Stephanie Clement who was the family service worker at the time. It was not until September 1, 2020 that he consented to his doctor releasing his records to the society.

[203] He was not forthcoming with his own doctor. Dr. Roehl testified that RB had been his patient since April 2019. He advised him that he was going to AA and seeing a psychiatrist at CAMH. At times RB was receptive and other times missed appointments or cut them short. Although he did not see any alcohol use, Dr. Roehl testified that at times RB's demeanour was concerning. He was flippant and asking why Dr. Roehl was bothering him as everything was fine. Dr. Roehl made extra efforts to stay in touch with RB as he was aware that the society was involved.

[204] RB provided urine screens in Dr. Roehl's office that were negative. But Dr. Roehl agreed that the testing was not closely monitored and could have been manipulated.

[205] RB also has a history of difficulty working with the staff at his children's daycare.

[206] This lack of ability to work honestly and cooperatively with society staff and other community supports puts these children, who all have special needs, at risk.

[207] There is evidence of a further risk of physical harm to the children due to allegations that RB has used inappropriate physical discipline to NF and JF.

[208] Sgt. Sheri Plunkett has been a police officer for 21 years and is assigned to the Child and Youth Advocacy Centre that investigates allegations of physical and sexual abuse allegations. She received specialized training at the police college with respect to interview techniques and participates in ongoing peer reviews, mock interviews and other training. She testified that it was not unusual for children to make delayed disclosures.

[209] On October 30, 2019 she interviewed the children with respect to allegations NF and JF had earlier made to the family service worker Stephanie Clement.

[210] Sgt. Plunkett testified that JF was hard to interview and would not settle down. She was asked in cross-examination if she aware that JF had previously made a disclosure to Ms Clement. She was aware of that disclosure but was not surprised that he did not make a disclosure to her as he did not know her but did knew Ms Clement.

[211] NF did make a disclosure. She stated that RB had "slapped" her and JF with a belt on their legs and back. They would hide in the closet in the bedroom when RB became angry. He hit them as a form of punishment but he would not hit JB who was non-verbal. RB told them not to tell anyone.

[212] Sgt. Plunkett decided to charge RB with assault with a weapon as by telling the children not to tell anyone he knew what he did was wrong.

[213] Sgt. Plunkett called RB to advise him that charges were being laid and that he should get a lawyer and turn himself in. He was shocked and told her to come and arrest him. She then issued an arrest warrant. But his daughter then called her and arrangements were made for RB to turn himself in. He was calm and cooperative. The charges were still pending.

[214] The evidence of Sgt. Plunkett was not diminished in cross-examination. I find her evidence that NF made these allegations to be reliable. On a balance of probabilities, I also find that, despite his denials, RB did in fact hit both NF and JF with a belt as a method of discipline.

[215] In conclusion, I find that the children continue to be at risk of physical harm due to RB's alcohol substance abuse, his lack of honesty and cooperation with the society and community supports and that NF and JF are at risk of harm due to his use of physical discipline.

b) What Disposition is in the Children's Best Interests?

[216] The society's plan with respect to JB is that he be placed in extended care and remain in his current foster home where all his needs are being met.

[217] The society's plan with respect to NF and JF is to place them in the custody of their paternal aunt.

[218] Despite the many opportunities RB has had to provide a stable and consistent home for the children he has failed to do so. This has resulted in all the children being moved in and out of society care.

[219] Despite the many services provided to RB to assist him in meeting the physical, emotional and developmental needs of the children, there remain concerns that the needs of the children, in particular JB, were not being met while the children were in the care of RB.

[220] I find that the society's plans offer these children their best opportunity to meet their potential and is in their best interests.

[221] JB's foster mother testified everything is a challenge with him. He requires a strict routine and needs to be constantly and closely monitored. He cannot be left alone and a change of routine throws him off. He is very friendly and approaches strangers. He does not understand danger.

[222] JB's foster mother testified that a great deal of communication is necessary with his school and service providers. He is still on a waitlist for ABA therapy. He is also waiting for rectal prolapse surgery and may require dental surgery as it is hard to brush his teeth and he won't let the dentist examine hm.

[223] The foster mother testified that JB is an important part of their family and is included in all their family activities. She is prepared to keep JB as long as she can. The foster mother's older daughter has been inspired by JB to pursue a university degree to learn about helping children with ASD and believes she can help JB reach his full potential.

[224] With respect to NF and JF, their paternal aunt testified that when they were placed in her care, they were very active and had no routines or structure. There was a great deal of inappropriate touching between them and she needed to teach them to respect each other's personal space. NF also used inappropriate and adult language.

[225] The paternal aunt registered them in the school where her children attended as she wanted the school to know that they are with family.

[226] JF takes medication each morning and receives occupational therapy. He is very disruptive and aggressive in school.

[227] She expressed concerns about NF who told her that she used to get up early, climb on the counter to give JB and JF cereal. She also swept the floor and cleaned the bathroom like an adult. NF told her that she likes to do this and when she grows up she wants to be a maid. The paternal aunt tells her that this is not something to aspire to be.

[228] NF and JF spoke to her about RB giving them a cold shower and hitting them with a belt as punishment. She reported these statements to the society.[6] She also testified that she does not question them.

[229] The paternal aunt testified that the children are a pleasure to have in her home. They have made a lot of progress emotionally. Their behaviour has improved and they do not need to be redirected as much as before. They are both learning to be independent. JF is striving to do well in school.

[230] RB's plan is now to leave JB in foster care and to leave NF and JF with their paternal aunt while he enters a residential treatment program and works to maintain his sobriety.

[231] When asked in cross-examination if JB needed to be closely monitored as testified by the foster mother, he did not agree. He only felt JB needed to be supervised.

[232] RB did not agree that JB could be unpredictable and sometimes could run off but then stated he did not think he would run off and then said JB never ran off when JB was in his care.

[233] He testified that when he had the children in his care he would take then out using public transportation, a cab or walk and he never had a problem. He then stated that he now had a car so he could transport them. He then clarified that he needed to find cheap car insurance. He further then admitted that he did not have his license as his doctor reported him to the Ministry of Transportation.

[234] RB testified that if the children were returned to his care, he would not work in order to care for them. He then stated that he would work part-time and arrange for daycare and school. He felt he had a good relationship with the society and that the only problems he had were with the daycare as they were not doing their job.

[235] When asked about supports, he agreed that his daughter SB was busy with her employment but sometimes could babysit. He testified that she lives with him but it was clear he was confused and speaking of the past.

[236] When asked in cross-examination to confirm that if he was in detox, jail or at a treatment facility he would not be able to care for any of the children, he quibbled with the questions, stated the questions are silly and dumb. He continued to say the questions were dumb, rambled, became testy and sarcastic and needed to be directed by the court to just answer the questions.

[237] RB finally agreed that he could not have cared for the children in any of the scenarios presented but his friends or family could care for the children.

[238] However, there was no evidence that RB has any family members or friends that are willing or able to care for the children. RB did not provide the society with the names of any alternate caregivers.

[239] This is an important issue as given RB's failure to maintain sobriety on a consistent basis in the past, a back-up plan in the event he again becomes incapacitated due to drinking would be required. If not, the children would yet again be placed into society care.

[240] RB's plan to leave JB in care for another 6 months and leave NF and JF in the care of the paternal aunt for another 6 months so he can obtain treatment and prove he can maintain sobriety is not in the children's best interests. RB has had multiple opportunities to maintain sobriety and has been unable to do so. As of this trial, he has not even been able to admit or take responsibility for the chaos he has caused in the lives of these vulnerable children. The children have been in care beyond the statutory timelines and deserve some finality to this litigation.

[241] The evidence is overwhelming that to give RB another opportunity to prove that he can maintain sobriety and care for these children is to give the children one less chance to have stability in their lives and have the opportunities they deserve.

12. What Access Arrangements are in the Children's Best Interests?

[242] It is the position of the society that both the mother and RB have access to JB in the society's discretion. If he is adopted, which is not the present plan, JB would be the access holder.

[243] When JB was placed in care on November 29, 2018 the society provided supervised access to RB.

[244] Cliff Davis, a family support worker supervised the visits between RB and JB from December 2019 to March 2020. Mr. Davis testified that the quality of the access visits fluctuated. Some of these visits were appropriate as RB was able to concentrate on the visits. JB was happy, affectionate and excited to see him. RB brought food and modelled table manners, encouraged JB and was interactive with him.

[245] However, at other times RB spoke loudly and raised his voice. RB made statements to JB that suggested he did not understand his limitations, such a telling JB that the more they see each other the sooner he will be speaking.

[246] During one access visit, RB spoke of the society workers being wicked people, that he should be calling human rights and the police will charge all of them with child abuse. RB spoke of videotaping JB and sending it to City TV to sell them [the society] out. RB took the picture and said, "I got it." RB then told JB he needed to help him clean up and when JB did not move he raised his voice.

[247] During another visit, JB had a red nose and RB stated that he should post it on the internet to show how the society does not take care of JB.

[248] Mr. Davis stated that there were some gains and the relationship between JB and RB was strengthened. He felt that RB made gains because of the encouragement of the society and RB processed the suggestions he made and became better prepared for the visits and better able to navigate situations that arose.

[249] However, one wonders why after all the time JB had been in the care of RB and all the services he had already received why he was not able to understand JB's developmental challenges and how to deal with them.

[250] Kalpa Patel is JB's child service worker who testified that she supervised a few visits that were positive but there were others that were of significant concern.

[251] On February 7, 2019 she met RB for the first time and she was to supervise his visit with all the children. He arrived at about 11:00 a.m. She noted a strong smell of alcohol and RB admitted to having a few beers that morning. The visit did not proceed. She spoke to him of the importance of being sober when he attends an access visit. He committed to attending sober and behaving appropriately.

[252] On November 18, 2019 RB again attended under the influence of alcohol and the visit did not proceed.

[253] On November 21, 2019 Ms Patel and Ms Clement spoke to RB about the necessity of not attending under the influence of alcohol. He became angry when he learnt the children would not be attending that day due to the foster family having car trouble. He did not accept responsibility for his actions on November 18 th , including threatening a student intern. RB again committed to attending access visits sober and behaving appropriately.

[254] On December 19, 2019 RB attended an access visit and Ms Patel noticed him stumble into the room. From the observation room, she heard him swearing about the society workers. She entered the room and told him to keep the visit positive, he swore at her, told her to leave the room and at that point she smelt alcohol coming from him. She left the room and called security.

[255] She then came back with the security guard to tell him the visit was over. In front of JB, RB raised his voice, yelled loudly, swore and threatened her. The security guard then intervened to tell him he had to leave. Ms Patel tried to remind him not to yell in front of JB. Another security guard was called and eventually RB left.

[256] As of March 2020, the visits became virtual. Antonella Dicintio, a child support worker supervised the calls. Virtual calls were offered but RB stated that he was unable to arrange virtual calls as his phone did not allow them or was not working. The foster mother testified that she brings JB to the phone after the society worker calls her. She ensures that JB stays there and listens to RB and she holds the phone for him. She does not interfere with the call.

[257] Some of the phone calls were positive as RB would be engaged during the calls by reading stories, making sounds and talking to JB in a calm and positive manner. He spoke with affection, telling JB that he loved him and cared for him.

[258] However, there were calls that were concerning as RB would be late for the call or not answer the calls. At times he would speak loudly and yell with slurred speech. He appeared to be under the influence of some substance. He would also leave messages for the worker speaking loudly and yelling.

[259] On July 16, 2020 on a call with JB, RB asked the worker about his calls with NF and JF and she directed him to the family service worker who he was aware arranged those calls. He became upset while JB was still on the phone. He screamed that, "I know where ya'll are and I come to get you.. Me not afraid, ya no, ya no. I can get really mean I get mad. You better let me talk to my kids. You better." He then hung up the phone.

[260] When the foster mother testified she was permitted to only use her first name due to concerns about her safety or RB finding out where she lived.

[261] Ms Dicintio testified that as of August 27 th , RB has been appropriate on the phone calls.

[262] Geraldine Kulazikulabe was assigned as the new family service worker as of June 2020 taking over from Stephanie Clement. She supervised a few calls between RB and JB. Some of the calls were appropriate. A call on June 29 th was cancelled as she was told by RB's daughter that he was in the hospital and for other calls he either did not answer or was late.

[263] With respect to calls to NF and JF, on July 9 th RB left a message that he was at CAMH and someone would be calling her. Ms Kulazikulabe left 3 messages trying to arrange a telephone call.

[264] The following day, RB did not answer his phone at the arranged time of the call. However, the worker kept trying and his call was put through. The paternal aunt agreed to have the call even though it was late.

[265] Initially NF did not want to come to the phone, but she then came and called RB by his first name. RB told her to call him, "R Dad." He then reminded her that he had taken care of her. He then proceeded to tell NF and JF that their mother loved them, she says hi and will get you soon and reminded them that they had not spoken to their mother in a while.

[266] The paternal aunt then came to the phone and told RB that she would be disconnecting the call as he was confusing the children as they had just spoken to their mother the day before. She also felt he was making NF feel guilty.

[267] The paternal aunt also reported a call that NF and JF had with their mother where she heard RB in the background shouting, "JF Daddy is here…I want my fucking kids back". RB denied that he made the statement or that he was with the mother.

[268] However, the paternal aunt testified that she spoke to the mother who agreed that RB was there, that his comments were not appropriate and that it would not happen again.

[269] The paternal aunt testified that when there was in person access between the children and their mother there were no problems. She would go with them in the community and they loved spending time with her. She facilitated calls with the mother and the children can call her anytime. She is prepared to arrange access directly with the mother. She testified that she understands the mother's limitations and can work with her.

[270] However, she testified that with respect to access with RB she had a different relationship and he would have to arrange supervised access. She testified that she hates confrontations and if he exploded, she would not be able to handle it.

[271] The paternal aunt testified that RB also lied at a previous court attendance about her family harassing him. She and her family do not have his telephone number or know where he lives.

[272] With respect to the telephone calls, they are arranged through the society worker who places the call. In cross-examination by RB's counsel regarding missed calls, the paternal aunt stated that it was not her fault if RB does not answer the phone and the calls do not take place.

[273] The paternal aunt testified that the last 3 calls between RB and the children have been appropriate.

[274] I find that while JB is in extended care and not placed for adoption, access for both parents can be arranged through the society. JB should be the access holder and if he is placed for adoption, then the Office of the Children's Lawyer will be able to represent him on an openness application. To also make his parents access holders would invite further litigation as it is doubtful that RB would be agreeable to any mediated solution as he does not accept that JB should be placed in society care. With respect to the mother, given her cognitive limitations it would also be difficult to negotiate ongoing contact.

[275] I find that with respect to NF and JF that access should be in the discretion of the paternal aunt.

[276] The paternal aunt is prepared to arrange and supervise the access between the mother and the children.

[277] With respect to access by RB, any such access, virtual or in person, should be supervised and arranged through a supervised access centre. In view of the many incidents of RB being intoxicated, inappropriate on calls or being unavailable, it should not be the role of the paternal aunt to be involved in arranging or monitoring access.

[278] Incidents of custody were negotiated and filed with the court in the Caregiver's Consent signed by the paternal aunt and will be part of this order.

13. Order

[279] There will be an Order as follows:

1. The child JB born on […], 2009 shall be placed in the extended care of the Children's Aid Society of Toronto. Access by the child JB, who will be the access holder, shall be in the discretion of the Children's Aid Society of Toronto.

2. The children NF born […], 2012 and JF born […], 2013 shall be placed in the custody of their paternal aunt SW pursuant to section 102 of the Child, Youth and Family Services Act which is a deemed order under section 29 of the Children's Law Reform Act.

3. SW shall be permitted to travel outside of Canada with NF and JF without the written consent of any other party.

4. SW shall be permitted to obtain or renew for NF and JF government documents such as passports, passport renewals, health cards, SIN numbers, applications for name change and birth certificates without the consent of any other party.

5. HF, GW and RB may consult with and obtain information, records and report cards regarding NF and JF from teachers, doctors, and any other professional involved with the children about their health, education and general welfare without the consent of any other party.

6. Access by NF and JF to RB shall take place at Access for Parents and Children Ontario (APCO) or another similar supervised access centre once per month on a day available to the centre and convenient to SW and the children. Unless otherwise agreed by SW, this access shall take place at the supervised access centre closest to where she is residing. Unless otherwise agreed between SW and RB all necessary payments for APCO or another similar supervised access centre shall be made by RB. RB shall provide proof in writing that he has arranged for the intake appointment and paid any necessary fees. SW shall then immediately contact the access centre and make the necessary arrangements for an intake appointment. Both parties shall fully cooperate with the access centre. If a specific form of order is required by the access centre, the court can be contacted by 14B to prepare the order.

7. Access by NF and JF to HF shall be supervised by SW with location, duration, frequency, dates and times to be arranged between SW and HF.

8. Access between the siblings NF, JF and JB shall take place twice per month, supervised by SW. The siblings JB, NF and JF shall be mutual holders and recipients of access.

Released: November 16, 2020

Justice Roselyn Zisman

[1] At the time, the term autism was used and only since its inclusion in the DSM-5 in 2013 has the term been replaced by Autism Spectrum Disorder

[2] NF was subsequently deemed to meet the criteria of ADHD and being on the autism spectrum although who made this diagnosis was not clear based on the evidence at trial.

[3] Catholic Children's Aid Society of Metropolitan Toronto and the Official Guardian v. M. (C.), [1994] 2 S.C.R. 165

[4] Children's Aid Society of Toronto v. L.U., [2008] O.J. No. 2170 (SCJ)

[5] No explanation was provided for this reference but there was no evidence that RB attended Renascent in 2019. RB testified he had attended an in-patient program in the1990's

[6] No submissions were made as to the purpose for which these statements were being introduced. I have not considered them for the truth but as context for further steps then taken by the society.