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.

(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.

(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

CITATION: Children’s Aid Society of Peel v. M.H., 2021 ONCJ 32

DATE: 2021 01 18

COURT FILE No.: Brampton 20108/16

BETWEEN:

THE CHILDREN’S AID SOCIETY OF PEEL Applicant,

— AND —

M.H. and S.H. Respondents

Before Justice Philip J. Clay

Heard on October 26-30, November 2-5, 10 and 12, 2020

Reasons for Judgment released on January 18, 2021

Ms. A. Rosario........................................................................... counsel for the applicant society

Ms. V. Younger..................................................................... counsel for the respondent mother

Ms. O.B. Vincents................................................................... counsel for the respondent father

CLAY J.:

PRE-TRIAL MOTIONS

[1] The society brought an Amended Protection Application with respect to the child N.H. born […], 2017 ("N.") and a Protection Application with respect to the child H. H. born […], 2019 ("H.") N. had been brought to a place of safety from the care of his parents on February 15, 2019 and H. was taken to a place of safety immediately after her birth on […], 2019. Both children have been in the temporary care of the Society ever since. Prior to the trial on these Applications there were pre-trial motions.

[2] The society brought a motion for a ruling that certain documents should not be admitted into this trial based upon the principle of res judicata.

[3] The Respondent father S.H. brought a motion for a ruling that;

(a) The court should not rely on the previous decisions of the courts between the parties as evidence of past parenting; and

(b) The said Respondent shall be permitted to adduce evidence with regard to the parenting of his children M. and Am., and the cause of death of M.

Brief background to the motions

[4] The parent's daughter M. died on February 25, 2011 when she stopped breathing while in the care of the mother. An autopsy was performed and the evidence of the forensic pathologists Dr. Pollanen and Dr. Huyer was admitted at the parent's criminal trial for manslaughter, failing to provide the necessities of life. The parents were convicted by a jury in October 2014 and the mother was sentenced to two years and the father two years less a day (the mother was pregnant at the time and asked for time in the federal system). Both were released on bail and they appealed their criminal conviction.

[5] A child protection trial was held before Justice J. Bovard and on December 31, 2015. His Honour released his decision placing the siblings of M., being Am. and Az. in the extended care of the Society without access. That decision was upheld by Justice McSweeney on appeal to the Superior Court of Justice (“SCJ”) and by the Ontario Court of Appeal.

[6] The children's sibling As. was apprehended at birth when the mother was in custody. After a 27 day trial, Justice L. Rogers released a decision that placed As. in the extended care of the Society. It is noted that the protection finding with respect to As. was largely based on the evidence of the parent's care of the child N., as N. had lived with the parents until he was taken to the Hospital for Sick Children (“Sick Kids”) and then to a place of safety.

[7] The decision of the Court of Appeal on the criminal appeal was released on September 29, 2020. The conviction was quashed, and a new trial ordered. The reasons for decision were provided to the court.

Decision

[8] I heard submissions on October 26 and delivered written reasons for decision which were released to the parties on October 27, 2020. I made an order the relevant portions of which were as follows;

ORDER

(1) The trial decision of Justice J. Bovard, the appeal decision of Justice L. McSweeney and the decision of the Court of Appeal with respect to the children Am. and Az. shall be admitted as evidence of past parenting in this proceeding pursuant to s. 93 (1) of the CYFSA;

(2) The trial decision of Justice L. Rogers with respect to the child As. shall be admitted as evidence of past parenting pursuant to s. 93 (1) of the CYFSA;

(3) The decision of the Court of Appeal quashing the conviction of the Respondents for manslaughter and ordering a new trial shall be admitted into evidence in this proceeding;

(4) The expert reports of Dr. Shkrum and Dr. Miller may be admitted as evidence in this proceedings as to the cause of death of the child M.; and

(5) No evidence shall be called as to the Respondent’s parenting of the children Am., Az., M. and N. in this proceeding and any documents referring to that parenting in the document briefs filed shall not be referred to.

THE PARTIES' POSITIONS

[9] The parties agreed on the statutory findings which will be set out below.

[10] The society sought an order that N. be found to be in need of protection pursuant to s. 74 (2) (a) and (b) of the CYFSA and that H. be found to be in need of protection pursuant to s. 74 (2) (b) of the said Act.

[11] The parents sought an order that there be no finding and that the children be returned to their care.

[12] Upon the making of a finding the society sought an order that both children be placed in the extended care of the society without access. If such an order were granted, the society intended to place the children with the paternal cousin who is caring for their siblings Am., Az. and As. If an extended care order was granted with access, the society intended to place the children through adoption. The parents’ primary position on disposition, was that the children should be returned to their care pursuant to a supervision order. Their alternative position was that the children should be placed in the care of a kin caregiver T.M.

PAST PARENTING EVIDENCE

Past conduct toward children

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[13] There has been a significant amount of case law with respect to the application of this section and its predecessor s. 50 (1) of the Child and Family Services Act. Justice Rogers referred to that case law in her decision in the trial of the As. which ended in October 2019. She said at paragraphs 30 and 34;

[30] The more recent the past parenting evidence, the more probative it is. See: Children's Aid Society of Simcoe (County) v. D. (B.), [2014] O.J. No. 1641 (Ont. Div. Ct.); Children's Aid Society of Toronto v. C. (S.), 2017 ONCJ 240, [2017] O.J. No. 1762 (Ont. C.J.).

[34] The case law has established the appropriateness of relying on court judgments regarding a parent's older children. See CAS Waterloo v. M. (A.) 2015 ONSC 2496, CAS Simcoe (County) v. D. (B.) 2014 ONSC 2140, and Kawartha-Haliburton CAS v. D.C. 2002 CanLII 53209 (ON SC), [2002] OJ No. 3864 (SCJ). At paragraph 18 of the Kawartha decision, Nelson J. refers to the identical predecessor to section 93(1)(b), section 50(1)(b) of the Child and Family Services Act, and states:

Although the purpose of subsection 50(1) of the Act is to ensure that the court hearing a protection matter has before it information of a party's past conduct towards children, this should not involve a detailed review of all of the evidence previously taken into account. This is especially so, where, as here, the judge hearing the earlier trial wrote a careful and detailed decision and made findings of fact with respect to the mother's mental health. The earlier decision forms the backdrop necessary from which to measure change [emphasis added]. To allow admission of the same evidence that has already been dealt with would be to invite relitigation of many of the points previously raised.

[14] The parents have had six children. Their second eldest child M. died in 2011. An autopsy was conducted, and findings made. Based upon evidence that the child died of malnutrition and vitamin deficiency, the parents were charged with manslaughter. Their conviction was recently set aside as fresh expert evidence has determined that M.'s cause of death was different than it was thought to be at the time of the criminal trial.

[15] After M.'s death there were child protection proceedings concerning her elder sister Am. and her younger sister Az. There was a trial before Justice J. Bovard. At the time of that trial Am. had already been found to be a child in need of protection. Justice Bovard was required to consider whether Az. was in need of protection. He wrote at paragraph 482;

[482] I am persuaded on a balance of probabilities by the evidence that Az is a child in need of protection under s. 37 (2) (b) (i), (ii) CFSA. I find that the evidence of the respondents' past parenting of M that resulted in her death from malnutrition, coupled with their unwillingness to change their dietary habits, and their reluctance to cooperate with the Society in this regard, proves that there is a risk that Az is likely to suffer physical harm inflicted by the respondents as set out in this subsection.

Lack of change of behaviour

[489] The respondents suspect that the medical personnel that dealt with M may have contributed to her death. This is a clear indication that they blame others for her death.

[490] Ms. H blamed the cortisone cream that the doctors prescribed for M when she had eczema for causing the wheezing in her chest. She told Ms. Vieira, one of the Society workers, that she disagreed with Dr. Huyer's finding that among the causes of death were complications due to rickets. She said that they had a healthy lifestyle.

[491] The respondents resisted many efforts on the part of the Society and the doctors that it worked with to run tests to check Am's health. For example, although I acknowledge the importance for the respondents of attending to the burial of M as soon as possible, they decided to both concentrate on that rather than one of them taking their surviving child to the hospital for a SCAN assessment while the other one attended to the preparations for the burial.

[16] The parents appealed Justice Bovard's decision to the Superior Court of Justice. Justice McSweeney addressed the background facts in paragraphs 16-20 as follows;

[16] At the time of M's death, the Appellants had one other child, Am, then age six. After M died, the Office of the Coroner contacted the Suspected Child Abuse and Neglect unit (SCAN) at the Hospital for Sick Children to have Am assessed.

[17] Although reluctant at first, the parents agreed to have Am medically assessed at SCAN on March 3, 2011. This was not due to suspected child abuse, but to assess the levels of micronutrients in her body. Blood work was completed. Dr. Emma Cory, the attending physician at the Hospital for Sick Children (HSC), determined that Am had severely low levels of Vitamin D and B12.

[18] As a result of Am's severely low levels of Vitamin D and B12, Dr. Cory advised the Appellant father on March 3, 2011 that dietary supplementation was necessary. The Appellant father declined at that time to sign a consent form that would have authorized Dr. Cory to speak with representatives from the Society.

[19] On March 17, 2011, Dr. Cory reported to the Society that Am had seriously low levels of Vitamin D and B12, and that there were potential health ramifications for her should this not be addressed promptly.

[20] Following an admission from the father that the parents had not given Am the vitamins recommended by Dr. Cory, the Society commenced a child protection application on April 13, 2011. They sought a supervision order with conditions that the Appellant parents cooperate with the Society, and follow the recommendations of the HSC.

[17] Justice McSweeney went on to write at paragraphs 90 and 91;

[90] The Appellants also argue that the trial judge erred in placing weight on evidence of past parenting, which in this case means their parenting of the deceased daughter M. They do not argue that evidence relating to M was inadmissible, but rather that as past parenting evidence, it "suffocated" the evidence of their subsequent parental conduct during access with the older daughter Am.

[91] A review of the trial judge's findings and the evidence as a whole does not support the Appellants' argument. The evidence of the Society witnesses at trial focused specifically and extensively on their interactions with the parents after the death of M. Indeed, the Society had not been involved with the family until after the death of M, so there was very little historic evidence to suffocate, or otherwise obscure, the evidence about their care of Am. I would give no effect to this ground of appeal.

[18] The parents then appealed that decision to the Ontario Court of Appeal. In paragraphs 19 to 22 the Court of Appeal stated;

[19] In our view, given the death of M while in her parents' care, the previous finding that Am was in need of protection, and the appellants' demonstrated inability to cooperate with the Society, there was ample evidence to support the finding made by the trial judge and affirmed by the appellate judge that Az was in need of protection.

[20] With respect to the order for Crown wardship, the trial judge gave detailed reasons in support of his finding that the test for such an order had been met. The reasons included an assessment of the children's physical, mental, and emotional needs, level of development, emotional ties to their parents, the merits of the plan put forward by the Society versus the parents' plan, as well as the degree of risk that justified the finding that the children were in need of protection. The appellate judge made no error in declining to interfere with that finding.

[21] The appellant submits that there was no evidence to support a conclusion that the parents were not prepared to work with the Society to ensure that their children received proper nutrition to keep them healthy and safe from harm. We disagree.

[22] The trial judge noted that in none of the plans put forward by the parents for their children's care was there any acknowledgment that they needed assistance in providing for the dietary needs of their children, nor was there any plan to improve their competence in this area. Instead, he found that they would take advice about nutrition only to the extent that it did not impede their criminal defence or conflict with their faith. The trial judge concluded, quite rightly in our view, that the parents were unwilling to put the children's well-being first. It was also clear on the record that they continued to believe that they fed their children sufficiently to prevent malnutrition and vitamin deficiency, despite all of the evidence to the contrary.

[19] The next child of the parents As. was born when the mother was in custody. He was immediately placed with the father's cousin D.H. which meant that he was placed with his siblings Am. and Az. The trial concerning protection findings and disposition for As. began in August 2019 and ended on October 9, 2019.

[20] After the parent's release from prison, pending appeal, they had their fifth child N on […], 2017. The Society relied upon evidence as to what happened to N in the care of the parents as evidence to support a child protection finding for As. The Society now relies upon this same evidence to seek a finding that N. and H. are children in need of protection. Justice Rogers summarized the background as follows;

[18] N remained in his parents' care after birth, though the society remained involved with the family because of the ongoing application regarding As. However, in June 2018, the Society determined that an application for a supervision order regarding N would be necessary, because of concerns the Society had regarding the parents' alleged failure to follow medical advice regarding N's eczema treatment.

[19] On February 14, 2019, as a result of escalating concerns regarding N's weight loss over recent weeks, the Society obtained a warrant to bring N to a place of safety and remove him from the parents' care. N was taken into the Society's care on February 15, 2019, and examined the same day at Toronto's Hospital for Sick Children. He remains in the care of the Society.

[20] On […], 2019, the mother gave birth to the child H, at home. The same day, H was taken to a place of safety by Society workers, and remains in the care of the Society.

[21] The applications for the children N and H are ongoing.

[22] The parents were arrested and charged in connection with the medical findings regarding N, when he was brought into care. The status of those charges are unknown to this court.

[21] Justice Rogers noted the following with respect to the evidence of the family services worker Ms. Michelle Bennett;

[47] It was Ms. Bennett's evidence that she became increasingly concerned with N's appearance from early January 2019 onward. His eczema had flared, and he appeared tired. She directed the parents to take N to a walk-in-clinic on February 1, 2019, as she had been unable to speak to Dr. Asady on January 31, 2019 when she called, and his office was closed until February 4, 2019. On February 8, 2019, Ms. Bennett learned that N's weight had gone from 11.61 kilograms in September 2018, to 11.08 kilograms on December 4, 2018, and then to 10.9 kilograms on February 1, 2019. The parents had not raised any concerns regarding the weight loss with Ms. Bennett, and she stated that N had not had any illness that could have explained it.

[48] As a result of this concerning information, the Society obtained a warrant of apprehension for N on February 14, 2019. N was brought by Ms. Bennett and a fellow worker into the Society's care on February 15, 2019, and was taken to the Society's office. Ms. Bennett stated that N did not look well, his eczema covered most of his face and he appeared very thin.

[49] A decision was made at Society that N should be taken to the Hospital for Sick Children (Sick Kids) and be assessed by the Suspected Child Abuse and Neglect (SCAN) team. According to Ms. Bennett, N's appearance once his clothes were removed was shocking. He was very thin, he had bald spots on his head where his hair had fallen out, and the skin on his buttocks was hanging. Photos were taken by the admitting doctor's assistant, which photos were entered into evidence, in this trial. Dr. Romy Cho, the admitting physician, had N weighed, and his weight was recorded at 9.9 kilograms, a loss of one kilogram from N's weight on February 1, 2019. N was admitted to Sick Kids and given intravenous fluids and a nasal-gastrous (NG) tube to provide nutrition. According to Ms. Bennett, N was refusing food by mouth during that day, when workers had attempted to feed him. Ms. Bennett testified that N was hospitalized from February 15, 2019 to March 11, 2019, when he was placed in foster care. He continued to be fed through the NG tube on discharge, until April 26, 2019. On that day, Ms. Bennett had accompanied N, and the foster mother, to see Dr. Emma Cory, who was providing N's follow up care as a member of Sick Kids' Infant and Toddler Growth and Feeding Clinic. N was weighed on April 26, 2019 and his weight was 14.3 kg, a gain of 1.8 kg from his weight of 12.5 kg on April 1, 2019 when Dr. Cory had last seen him.

[22] The drastic weight loss lead to an investigation. Justice Rogers set out the evidence of the worker who summarized what was done;

[53] Ms. Packiyanathan is a child protection worker with the Society and works in the Community Caregiver and Serious Incident Team. She testified by affidavit and was cross-examined. Ms. Packiyanathan stated that she was assigned to the H family file on February 19, 2019 to investigate the neglect concerns leading to N's hospitalization. She was part of a joint investigation conducted with Toronto Police, and attended case conferences at Sick Kids with N's doctors, Society workers and Police. According to Ms. Packiyanathan, the parents had been charged criminally with failure to provide the necessaries of life to N, and failure to comply with their recognizance from their previous release on bail.

[23] Justice Rogers heard evidence from Dr. Cory as to the cause of N's physical condition. She wrote;

[66] Dr. Cory is a pediatrician qualified to practice in Ontario, since 2004. She is a co-director and staff pediatrician in the Suspected Child Abuse and Neglect (SCAN) Program at the Hospital for Sick Children (Sick Kids), the staff pediatrician in the Infant and Toddler Growth and Feeding Clinic (formerly the Failure to Thrive Clinic) at Sick Kids, and an assistant professor at the University of Toronto, Faculty of Medicine. She has worked at Sick Kids since 2005. Dr. Cory has also obtained certification in pediatrics from the American Board of Pediatrics, along with a sub-specialty certification in child abuse pediatrics. Dr. Cory's CV was made an exhibit at trial.

[67] Dr. Cory was qualified as an expert in pediatrics, pediatric assessment, and feeding and growth of young children.

[68] According to Dr. Cory, N was referred to the Infant and Toddler Growth and Feeding Clinic (the Clinic) by Dr. Romy Cho who is a pediatrician on the SCAN team. Dr. Cho had completed the SCAN consultation of N on his admission to Sick Kids on February 15, 2019. She discussed N's care with Dr. Cory as part of the scan peer review process. Dr. Cory reviewed the hospital records related to N's admission and hospitalization, photographs of N taken on February 15, 2019 and towards the end of his admission, and the previous growth curves looking at N's pattern of growth over time obtained from his community physicians.

[69] Dr. Cory saw N in the Clinic on April 1, 2019, April 26, 2019 and June 3, 2019. Her reports from those visits were sent to the Society, and filed at trial as an exhibit.

[70] Dr. Cory testified that N's weight on admission to Sick Kids on February 15, 2019 was 9.9 kg, which put him in the 3rd to 10th percentile on a World Health Organization (WHO) standardize growth curve. On discharge from hospital on March 11, 2019, N weighed 12.1 kg which put him in the 50th percentile on the WHO growth curve. As the normal weight gain of a boy of the same age is expected to be 6.21 grams per day, N's 91.6 grams average daily weight gain demonstrated excellent catch-up weight gain in a hospital environment.

[71] As N had feeding difficulties, he had a NG (nasogastric) tube inserted to support his growth and administer a liquid formula. By discharge, N was also feeding orally, but received 60% of his energy needs by NG tube.

[72] According to Dr. Cory, N's weight gain from birth to 8 months of age was along the 97th percentile. Between 9 and 18 months, his weight gain tracked along the 75th percentile. This normal pattern of weight gain is indicative of the lack of a chronic medical condition. N was tested in hospital and found to have no underlying medical condition to explain his drastic weight loss.

[73] Dr. Cory testified that N's weight at the time of hospitalization (age 23 months) was equivalent to the weight of an average 13-month-old boy. His weight loss of 1.7 kg over a 5-month, one-week period of time, was highly unusual. The photographs of N at admission show his thin appearance and decreased subcutaneous tissue (loose skin in the buttock area) which are manifestations of his significant weight loss.

[74] As N's weight loss fell across 3 major percentiles on the WHO chart, from the 75th percentile to the 3rd percentile between 18 to 23 months of age, he met the definition of 'failure to thrive'. Dr. Cory states that N was not taking in the calories he needed in the home environment to sustain weight gain. She described N as malnourished with severe eczema, at the time of his hospital admission. According to Dr. Cory, eczema would not be solely responsible for the severe Failure to Thrive demonstrated in N She also noted that N had delayed feeding skills and significant language delay. His gross motor skills had significantly improved since his hospital admission, when he wasn't walking, to walking and running by April 1, 2019.

[75] Dr. Cory testified that by N's appointment on April 16, 2019, he had gained a further 1.7 kg, and his eczema was significantly improved. She discontinued the NG tube as N was constantly pulling it out, and provided instructions to N's foster mother to offer N a combination of formula and milk and protein in 2 of his meals daily. His gross and fine motor skills had improved, and he was using more words.

[76] At his June 3, 2019 visit, Dr. Corey noted that N's weight had dropped .3 kg. She was not concerned as this was normal after the removal of NG tube feeding. Dr. Cory stated that while N's language was still delayed, it had improved, and she recommended that N be enrolled in daycare to assist in his language and feeding skills. N had recovered from his malnutrition and appeared to be a normal toddler with a language delay. She was planning to see N again in September 2019.

[77] On cross-examination Dr. Cory described N as being 'severely malnourished' because of his drastic weight loss, developmental delays and the lack of protein in his blood on hospital admission. N's documented inability to chew and swallow, and feed himself food at 23 months of age was indicative of a lack of previous and repeated exposure to feeding processes in the home environment. When asked by father's counsel if N was at risk of death on hospital admission, Dr. Cory stated if N had not been admitted to hospital he would have developed more risk of a negative outcome, as children with severe malnutrition can die as a result of secondary infections, or as a result of the electrolyte abnormalities that may develop over time. While N did not have an infection or electrolyte abnormalities at the time of his admission, Dr. Cory was unable to say how long it would have been for him to develop them if left untreated.

[78] When father's counsel asked Dr. Cory if N's corticosteroid eczema medication could have contributed to N's osteopenia, seen on hospital admission, she responded no, that osteopenia, or decreased bone density, can be seen as a consequence of prolonged use of oral steroids, but that it was unlikely that steroids applied to the skin would be sufficiently absorbed into the blood stream to then have impact on the bones. Further, Dr. Cory testified that the severity of N's eczema raised a concern about whether the corticosteroids to the skin were being regularly applied. While she did not know whether the topical steroids were being used as prescribed, to Dr. Cory, the severity of N's eczema and the rapid improvement in hospital with the use of routine topical steroids suggest that there was previous underuse of them. To Dr. Cory, N's osteopenia was sensibly explained by his state of nutrition.

[24] Justice Rogers considered the parent's evidence that was given at the trial that concluded on October 9, 2019.

[80] The mother stated that she and the father do not accept that their daughter M died because of her diet. They also do not accept that N's weight loss was caused by his diet. She stated that the parents know that "someone else" was involved in M's autopsy before Dr. Huyer and Dr. Pollanen. The mother stated that she felt that if Justice Bovard had known that Am and Az were placed with D.H. he would have made a different decision, though she did not elaborate on what that would have been.

[81] Regarding her care of N, the mother stated that she and the father had taken N to 68 doctors' appointments, and that his pediatrician Dr. Asady never had a concern with N's weight. She testified that N was active, that he ran from room to room, and that he had stopped breastfeeding in January 2019, one month before his apprehension, which may have contributed to his weight loss. She said he had no problem with chewing, and swallowing prior to being apprehended, and that he had used a spoon. It was the mother's evidence that in addition to breastfeeding N, between the ages of 6 and 12 months he was fed pureed oatmeal, pureed navy bean and lentil soup, to which she had added vegetables, and that he was given Vitamin D drops. At about 1 year of age, the mother stated that N was also fed bread, cheese, eggs, salmon, whiting, mashed potatoes, rice and water and juice to drink.

[82] According to the mother, she complied with the treatment prescribed by Dr. Nag for N's eczema. She had asked at the May 2, 2018 visit, for N's medication to be changed. The mother testified that she knew that N would outgrow his eczema, and believed that his flare-ups of eczema were caused by the environment, such as the cold weather, and his clothing, which she changed to 100% cotton, which improved results in N's outbreaks.

[83] The mother testified that she did not agree to have gestational diabetes testing during her pregnancy with N, which was recommended by her midwife, though she could not recall why. She stated that she monitored her meals and tested her own blood sugar, but did not elaborate on how she did that. It was the mother's evidence that members of her faith do not believe in immunization, and Vitamin K needles for newborn. She stated that she consumed foods with Vitamin K during pregnancy.

[84] The mother confirmed that she and the father took N to see Dr. Asady the morning of February 15, 2019, prior to the apprehension. She could not recall if N was weighed at Dr. Asady's office.

[85] On cross-examination the mother maintained that her child M had died from Paget's disease, that she had acquired from a blood transfusion at birth. She stated that M was not a malnourished child because she saw her child and she knew she wasn't malnourished.

[25] Justice Rogers summarized the father's evidence as follows;

[91] According to the father, he and the mother did everything the Society requested to have N in their care, and to have As returned. They engaged Dr. Asady as their pediatrician, had a dietitian assist with a meal plan and signed consents for the Society to speak to all collaterals involved with the family. The father stated that he had all the prescriptions issued for N filled at the pharmacy, though the mother was the one who applied the prescribed ointments to N's skin.

[92] It was the father's testimony that the only condition that he and the mother did not agree to regarding As's return to their care, was for a child and youth worker coming in to their home. He stated that it sounded like Society supervision, to him, and that he may have said that he only wanted Ms. Bennett to visit their home, because other Society workers had been tainted by the family's history. The father testified that he believed that Ms. Bennett came onto their file with a 'clear heart', and that he believed she worked with his family until her Society supervisor turned her against them. He said that he would now agree to a child and youth worker coming into the home, as he planned to be present whenever that worker was there.

[93] It was the father's evidence that he did apologize for the mother's behaviour toward Dr. Nag's nurse on August 1, 2018. He did so while the mother was in the washroom. He stated that he did not recall the mother being rude or oppositional at Dr. Nag's office.

[94] The father described the family's routine prior to N's apprehension. He stated that he often left the home before the mother and N woke and worked until 7:00 pm when N was already in bed. The father said that he was also out a lot on weekends. It was the mother who changed, bathed, and fed N, as well as applying his eczema treatment. The father stated that he did 90% of the family grocery shopping, picked up all the prescriptions and drove the mother and N to appointments.

[95] While the father acknowledged that N had lost weight between September 2018 and February 2019, Dr. Asady did not raise it as a concern to the parents. He stated that Ms. Bennett should have alerted them to her concern about N's weight. According to the father, N's weight loss can be explained by his activity, the end of breast feeding by the mother, and N not having eaten while in Society care on the day he was apprehended.

[96] On cross-examination, the father stated that when As' return to the parents' care was discussed in June 2017, he and the mother were not agreeable to As attending daycare or nursery school as he had while in D.H.'s care. He confirmed that neither he nor the mother would ever agree that As was a child in need of protection. The father stated that he was unaware that for As to return to their care, both he and the mother would have to agree to a Child and Youth worker at times being present in the home. He testified that he did his own research on steroids and learned that steroids can cause weight loss.

[97] When shown the photos of N taken at Sick Kids on February 15, 2020, the father testified that he has never seen N's bottom, because he does not change his diaper. He stated that N's hair did not look like the photo taken on that day, when he was taken into care.

[98] The father testified that the Society wanted him and the mother to admit that diet had something to do with M's death, and that they will not do that.

[26] Justice Rogers also heard the testimony of Ms. Hope Udofe. The mother called Ms. Udofe as a witness in this trial, but her evidence was restricted to events after October 2019. In the As. trial, her evidence was summarized as follows;

[108] Ms. Udofe testified that she first met the mother in 2012 when she was asked to review a meal plan the mother had prepared for the child Am. Her next contact was on February 22, 2017, when the mother attended her office regarding a meal plan for the child As.

[109] Ms. Udofe is a registered dietitian who has her own private practice under the name "Nutrition and Fitness with Hope". She understood that the mother wanted her to assess the adequacy of the meal plan the mother had created for the child As.

[110] According to Ms. Udofe, the parents were egg and milk consuming vegetarians, so she wanted to ensure the child As was getting enough milk and milk products for Vitamin B12, as well as vitamin D and iron. She reviewed the mother's plan and recommended adding more variety of foods, and giving As food more frequently. Ms. Udofe suggested providing As with 6 small meals every day, to accommodate the child's small stomach.

[111] Ms. Udofe testified that the mother took her recommendations and comments and revised her original meal plan which Ms. Udofe reviewed and approved on February 23, 2017. She stated that the parents attended appointments at her office together, and that the mother was cooperative, and focused during their meetings. The meal plan she approved was intended for a child living full-time in the parents' care.

[112] On cross-examination by Society counsel, Ms. Udofe stated that she would expect a child using the meal plan she recommended to grow and gain weight. If that did not occur, Ms. Udofe testified that there would need to be an investigation for underlying medical issues, genetic issues and the child's environment. She acknowledged that she did not know if the parents followed the meal plan, and it was possible that it was not followed.

EVIDENCE SINCE OCTOBER 2019

[27] As a result of my decision with respect to the motions the parties were limited to calling evidence with respect to facts that occurred after the trial held by Justice Rogers. It should be noted that the trial evidence for that 27 day trial was completed on October 9, 2019, but the decision was not released until June 7, 2020. As both children were in the temporary care of the Society there was evidence called related to facts that occurred during this time period such as parenting during access visits, evidence of any changes in the parenting, and the society's and the parent's plans for the children.

SOCIETY'S EVIDENCE

[28] The society provided an affidavit brief with the affidavits of all of the workers who were involved in this matter during the relevant time. I will review their evidence in order of their involvement.

Michelle Bennett

[29] Ms. Bennett was the ongoing worker for the family in the period May 13, 2014 to June 25, 2019. She testified in the trial regarding the children's sibling As. and a large portion of her evidence in that trial concerned N. and H. Due to my pre-trial ruling Ms. Bennett was not permitted to revisit that evidence in this trial.

[30] Ms. Bennett was called as a witness in this trial because the parents did not consent to the admission of hospital records concerning H.'s birth without them being tendered through a witness. Ms. Bennett was the worker at the time of H.'s birth, and she obtained the records.

[31] Ms. Bennet stated that when H. was born, she received medical attention. The following reports were admitted into evidence;

(1) The Newborn Transfer Record Kensington Midwives-[…], 2019;

(2) Discharge Summary from Sick Kids Hospital-June 4, 2019; and

(3) Discharge summary from Credit Valley Hospital-June 10, 2019.

[32] The records showed that H. was delivered with no complications by a mid-wife at the parent's home. She was brought to Sick Kids as a place of safety at birth for newborn assessment. The discharge report showed that the child was born at 41 weeks and was delivered vaginally through meconium stained amniotic fluid. Her mother M.H. declined a topical anti-biotic and a vitamin K injection at birth.

[33] Upon arrival at the hospital H. was noted to be a large baby in the 90th percentile for both height and weight. She required some nasal prong oxygen for mild respiratory distress. She was found to have low blood sugar. She was given a vitamin K shot, but not anti-biotics. After 10 days at Sick Kids she was transferred to Credit Valley hospital with the following 'active issues'; feeding and hypoglycemia and resolving supplemental oxygen requirement. She did not require any medications at the time of transfer.

[34] H. arrived at Credit Valley on June 4. Her course in hospital was unremarkable with no major concerns. She was feeding well on demand and was discharged on June 10. Ms. Bennett confirmed that the reason for H.'s apprehension was what had occurred to N.

Shirley Asiamah

[35] Ms. Asiamah became the worker for this family from June 2019 to January 2020. She received the file from Ms. Bennett.

[36] Ms. Asiamah met the two children at the foster home. She observed N. to be happy and playful and saw him eating his lunch. He had been discharged from the physiotherapy program and was by then only attending ErinOak Kids for his speech therapy.

[37] Ms. Asiamah noted the parents to be well engaged with both children during supervised visits that she observed at the Society offices on July 4, 8, 12, 15, 22, 29 August 9, 12, 30, September 12, and October 16, 18, 28. The parents brought food, applied coconut oil to the eczema on N.'s face brought appropriate activities, and changed diapers. N. was fussy for some of the visits, but overall, they were positive visits.

[38] After a court attendance on October 30, 2019 the visits were expanded. The in office supervised visits on Mondays and Fridays remained at 10-12 p.m. and a Wednesday unsupervised visit was added from 10-3 p.m. A child protection worker would attend at the parent's home for part of the otherwise unsupervised visit.

[39] Ms. Asiamah attended at the family home on October 31. She observed the home to be clean and appropriate. There was a crib for H. and a playpen for N. for their naps. M.H. told her that she was going to meet with a dietician Ms. Hope Udofe to create a meal plan for N. The worker asked them to create a daily log of what N. and H. eat during a visit.

[40] The parents asked about the kinship assessment on their proposed caregiver T.M. Ms. Asiamah was then out of the office for a few weeks and Mr. Rachel Passey covered for her. She returned to this matter on December 5. On that date the worker shared the meal plan provided by Ms. Udofe. N.'s allergic reactions were discussed as well as the parent's insistence that he only wear 100 % cotton clothing.

[41] Ms. Asiamah then supervised visits on December 9 and 13. On the 13th, the foster mother was also in the building for training. She met the parents briefly and directly provided them with updates from the doctor, dentist and allergist. N. held on to the foster mother when she tried to leave and to her credit M.H. asked the foster mother to assist in getting him ready to leave. Ms. Asiamah provided permission for the foster mother to take the two children to the home of the father's paternal cousin D.H., where their three siblings reside, on December 26, 2019. The parents did not object to this visit.

[42] On January 3, 2020 M.H. e-mailed the worker with a number of concerns including; N.'s coat was too small, H.'s hair was not taken care of as she liked, and the doctor had recommended a flu shot. She noted that she and S.H. had been very clear that they do not vaccinate their children due to religious reasons and would appreciate it if their religious rights were respected. The mother stated that when N. was apprehended in 2019, he was given 4 vaccinations at Sick Kids "due to CAS lack of vigilance". The parents were then told that the Society would respect their non-immunization decision.

[43] Ms. Asiamah supervised more positive visits by the parents on January 6, 10 and 13. She confirmed that the parents brought healthy foods and allowed the children to each as much as they wanted. The worker admitted that N.'s eczema continued to bother him and required treatment even when he was in foster care, but she noted that the eczema was not nearly as bad as it was prior to him coming into care at which time the sores were actually oozing fluid.

Rachelle Passey

[44] Ms. Passey's initial involvement with this file was when she provided coverage for Ms. Asiamah in November 2019. She then succeeded Ms. Asiamah and became the family service worker from January 13 to April 22, 2020.

[45] Ms. Passey checked in on an access visit that the parents had at their home on November 6, 2019. She said that the home appeared to be safe for two young children and there was ample food in the fridge. When the worker spoke to the foster mother the next day, she said that the children returned to her care hungry with H. drinking an entire bottle and N. eating a big snack and then his full dinner. The food log that the parents were supposed to complete was not filled out. The following day M.H. said that the children had lunch and snacks throughout the visit. M.H. became upset and stated that accusations had started now that access had moved to their home.

[46] The foster mother reported that the children were generally good after access and they did not require any time to transition back into her home. She also said that N. was clingy before visits. Ms. Passey supervised a positive visit on November 14 and noted that the parent's brought lots of food which the children consumed during the visit. The children were noted to be comfortable with both parents and the parents were positively engaged with them.

[47] On November 22 the foster mother said that N. had returned from a visit early. He then took a nap and awakened screaming. His face was swelling and when Benadryl did not work the foster mother gave him his Epipen. He was diagnosed with hives at the hospital, but his symptoms were not anaphylactic in nature. The parents were informed, and they advised that they gave him the same foods at home as they did at the Society office. The parents noted that N. had not been wearing a 100% cotton sweater and they insisted that only Huggies wipes be used.

[48] The parents told the worker at a monthly visit in November that they would be exonerated in the trial with respect to their child As. (they were not, as is apparent from the child protection findings and extended society care disposition referred to above).

[49] As noted, Ms. Passey returned to this file in January. At a home visit on January 15, 2020 the parents told the worker that they wanted the foster mother to follow the meal plan made by the dietician to the letter so that the children had the same food in both homes. When Ms. Passey asked to view their fridge and cupboards to see what they had, the parents took offence and said that this was not necessary and did not allow her to look.

[50] The parents then took the opportunity to bring out old articles and court documents to explain the history of this matter and to argue that their child M. had a normal weight at the time of her death. They said she was given a blood transfusion without their knowledge. They did not believe that she was malnourished. They said they expected to be exonerated and to have all of their five children back in their care.

[51] On January 17, Ms. Passey spoke to Ms. Udofe who said she could do nutritional counselling although it would be difficult as the parents only had the children for a short period of time.

[52] Ms. Passey had positive comments about her supervision of the parent's access on January 30. On February 5 the foster mother noted that N. had vomited after coming home from a supervised access visit and he was diagnosed with gastroenteritis. H. was fine. N. recovered over the weekend.

[53] Ms. Passey observed positive visits on February 6,10, 21 and 24. There was very good engagement and the parents brought healthy food which the children consumed. The parents did have concerns about a possible link between H.'s diaper rash and the Huggies brand of diapers she was wearing. They wanted Huggies wipes, but President's Choice diapers.

[54] On February 24 the worker advised the parents that their proposed kin caregiver had not followed up with the assessment. The parents said that T.M.'s home renovations prevented her from completing the assessment.

[55] The parents declined the opportunity to attend a nutritional appointment with Dr. Cory from Sick Kids. They said that she was biased as she had testified at As.'s trial. They also said that they did not want the kids "traumatized" by meeting the foster mother and the parents together and then having to leave with the foster mother.

[56] N. continued to have allergy issues and the parents took him to a walk-in clinic and filled the prescription.

[57] The society's offices were closed on March 17, 2020 due to the COVID-19 pandemic. The access was changed to video access facilitated by the foster mother. She told the worker that the parents never missed a call. She noted that the parents can see that the children are affectionate with her, but they have never raised any concerns about it. On March 30 Ms. Passey noted that the parents had told the foster mother that she was doing a good job with the children. The parents stated that the video visits were going well, and they asked for a third weekly visit which was granted.

[58] Ms. Passey concluded by saying that she had a mutually respectful relationship with the parents. She said that they had strong religious beliefs, but they would politely disagree with the society when they felt that their values and views were not being respected.

Viviane Awuni

[59] Ms. Awuni had been the ongoing worker on the file since she took over from Ms. Passey on April 22, 2020. She was still the worker at the time of trial. She provided an affidavit dated October 5 and then was allowed to provide direct oral evidence with respect to events after that date.

[60] Ms. Awuni said that she has met with the parents via FaceTime and they had always been respectful to her and they speak lovingly about their children.

[61] On May 15, Ms. Awuni spoke to the parents about the closure of T.M.'s kinship assessment as there had been no movement on the file for a year and T.M. had not permitted the society worker to do a home visit. The parents were unable to provide the names of any other potential kin caregiver.

[62] On June 22, Ms. Awuni spoke to Ms. Udofe about providing nutritional counselling to the parents. She said that she would need to see the children first in order to assess them. She also said that she would require some bloodwork from the children to see if they had some kind of deficiency. No nutritional counselling had been undertaken at the time of trial.

[63] On June 30 there was a discussion about the resumption of in person visits. The parents suggested that the Monday and Friday visits could remain by video as they did not want the children to come to the society's office in order to reduce their exposure to the COVID-19 virus. They asked for a resumption of the Wednesday visits in their home. They proposed meeting the foster parent at a halfway point to exchange the children.

[64] On July 20, Ms. Awuni contacted the parents to tell them that in person visits could occur and that Wednesday visits would be extended by an hour due to travel time. The Wednesday visits moved to the home again with the foster mother sharing the driving.

[65] On July 31 the parents advised Ms. Awuni that they did not want the proposed resumption of in person supervised visits at the society's visit centre which was at a society owned home at a different location from their offices. The parents said that the children would be vulnerable to the virus outside of their own home and they needed to be assured of the children's safety before agreeing to supervised access at a society location. Their concerns included the safety of a volunteer driver's car and the safety of the society's visit location given that other families would also use that site.

[66] On September 10 Ms. Awuni told the parents that the society supervised visits could occur in the community as they had not wanted an indoor location. M.H. said she was not comfortable with visits in the community and preferred the video access. Subsequently the foster mother advised that she could no longer transport the children for the Wednesday access due to her own car issues. The parents declined a volunteer driver and so that 5 hour in person visit became a 30-45 minute video visit.

[67] On September 18 the mother reluctantly confirmed that she was pregnant. She did not say when she was due. On October 22 Ms. Awuni had a video call with the parents to inform them of N.'s appointment with a speech and language therapist. N. was not focusing and not using words to co-ordinate his environment. The parents provided a verbal consent for N. to see a developmental specialist. The parents again expressed concerns about vaccinations done when N. was admitted at Sick Kids as they said there were no issues with his development prior to that time.

Rhonda Grigsby

[68] Ms. Grigsby supervised the parent's access on five occasions in each of 2019 and 2020.

[69] Her evidence was that the parents arrived on time and prepared for each visit. They brought sufficient and nutritious food. They interacted very positively with both children and they addressed any parenting challenges appropriately. The children enjoyed the visits. Ms. Grigsby noted that the mother did the feeding and diaper changing and the father was more active in playing with the children.

[70] A decision was made to provide minimal supervision when the visits moved to the home on Wednesdays. This was due to the positive access that had been occurring.

V. – The foster mother

[71] V. is the foster mother for both children. She lives with her husband and the children. She had been a foster parent for 20 years. She provided an affidavit for the court. After hearing submissions, I redacted parts of the affidavit that addressed N.'s condition prior to his apprehension. That evidence was covered in the trial regarding the child As. and was subject to my past parenting ruling.

[72] V. first became involved with the family when N. was hospitalized at Sick Kids. She was asked to be his foster parent the day that he came into care, so she stayed with him at the hospital every day until he was discharged. When N. first came to her home, he was still using an NG tube for feeding. V. received support from ErinOak Kids for N.'s feeding. V. said that initially N. required medication for his severe eczema. She said that his skin is much improved, and he is no longer on any prescription medication.

[73] H. was born three months after N. came into care and when she was transferred to Credit Valley V. would stay with her at the hospital just as she had done with N. The foster mother said that H.'s health had been very good since her discharge from hospital. Her only health concern was mild eczema, but her condition is managed well, and she is not on medication.

[74] V. said that both kids eat a variety of foods and eat well. The foster mother said that she kept to the meal plan that the parents provided through the worker. She said that N. was a very active child whereas H. was much calmer and quieter. The children are very close to each other.

[75] V. said that she has had a respectful relationship with the parents throughout the time the kids have lived with her. She sends them photos of things the children are doing. Since March 2020 the foster mother has facilitated the video access, and she follows the children around with a camera while they interact with their parents for about 30-45 minutes.

[76] V. facilitated in person access by driving the kids to a mid-point between the residences and then exchanging them. She has not experienced any concerns after access visits.

Jessica Twidale

[77] Ms. Twidale is a kinship worker employed by the PCAS since 2003. Her role involves assessing and making recommendations for potential kin caregivers for placement of children. Her role in this matter was to assess the potential kin provider T.M.

[78] Ms. Twidale first met T.M. on April 26, 2019. T.M. was provided with information on the kinship process and given many forms to complete. She signed a consent to participate in the kin assessment process.

[79] The next meeting occurred on July 8. T.M was given more forms to complete including a vulnerable sector check. On October 29 T.M provided the completed records check and she stated that she was agreeable to a home visit once the society had received all child welfare checks. On December 19 T.M. said that she could do a home visit once she finished a January business trip. On February 5, 2020 T.M. e-mailed Ms. Twidale to state that she was still interested in completing the assessment, but her home needed some repairs first which her landlord was delaying.

[80] Ms. Twidale did not hear back from T.M. after that so she sent her an email on May 1. She said that unless she received some information on the progress of the home repairs the society would close the file to look at other options. On May 20 the kinship worker sent a letter to T.M. to tell her that her kinship assessment had been deemed to be withdrawn, but that she could contact the society and request that the file be re-opened.

[81] T.M called Ms. Twidale on June 3. She said the repairs were not done, but she would advise when they were completed. She explained why the repairs were necessary. T.M has six of her seven children living in her home.

[82] Ms. Twidale said that at the time the file was closed the following steps still needed to be done; vulnerable sector checks of adults in the home, completion of child welfare checks, a visit to the home for a safety assessment, an in-depth clinical interview of T.M., relevant collaterals needed to be contacted, a review was needed of the children's needs and progress and there needed to be an assessment of T.M's permanency plan and plan for access with the parents. In summary, Ms. Twidale said that after almost a year and a half the kinship assessment was still at a very preliminary stage.

[83] In response to cross-examination Ms. Twidale said that if she took the necessary steps T.M. could still be a candidate for kinship care. She noted that usually the process took about 60 days so this was a particularly long delay.

D. H.

[84] D.H. is the first cousin of the father S.H. Since 2015 she has been the caregiver for the children's siblings Am., Az. and As. Her adoption application for the two elder children is pending and she said she will move to adopt As. once the ongoing appeal of the extended care order that was made on June 7, 2020 is concluded. D.H. said that the three children have no access with their biological parents. D.H. said that the three kids are thriving both physically and emotionally.

[85] D.H. stated that she is willing to present a plan for N. and H. if there are no access orders made. She was very clear that she did not want to have an ongoing relationship with either M.H. or S.H. at this time.

[86] D.H. has two adult children of her own. She works full time as a registered early childhood educator and manages a daycare program. She said that while she can care for the two children, she was not willing to do so with what she called the "added stress" of dealing with the parents and being in the "limelight of the court system.”

[87] D.H. said that she had constant struggles with M.H. She said that the mother takes issue with how she is parenting the children and is unable to acknowledge that she is acting as their mother on a day to day basis. D.H. said that she has always told the children that they have two mothers. The mother who gave birth to them and herself.

[88] D.H. said that N. and H. had had some contact with their siblings while they have been in foster care. She had V.'s contact information so that they could arrange visits. D.H. was hopeful that in the future the parents will be able to acknowledge the reasons why the children are not in their care. She hoped that she could be supported as their mother. If that could happen then the children could have contact with their parents and rebuild their relationship so the entire extended family could move forward.

[89] D.H. said that normally she works 8 hours a day, but during the pandemic she is working about 3 hours a day. She said that she saw N. and H. twice in person prior to the pandemic. She had never seen them with their parents. She planned to do Zoom visits, then she did not initiate them once it was clear that the matter was proceeding to trial in the late summer or early fall. She confirmed that she had had no contact with the mother since October 1, 2019. She had spoken to the father on a couple of occasions since then.

[90] When cross-examined D.H. said that it made no difference to her position on access to learn that the parents had a positive, respectful relationship with V. She said past experience has taught her that she could not work with M.H. She admitted that she had a better relationship with the father historically and they had cordial communication at the time of the As. trial in the fall of 2019.

[91] Due to the pre-trial ruling D.H. was not questioned in this trial about her relationship with the mother and why she could not agree to access. The issue was addressed in the As. trial before Justice Rogers and she wrote at paragraph 175;

[175] … D.H. described the mother as "uncontrollably rude, unapproachable and very disrespectful". She stated that in a telephone conversation with the mother in December 2015, the mother yelled at her because the children had been given "puffers" for a recent illness. When she spoke to the father on the telephone, D.H. heard the mother making comments about her, and one time the mother said the children were worse off in D.H.'s care than in the parents' care. D.H. testified that the father has asked her to "bear with" the mother because she has lost her children. She admitted that the father had been pleasant to her when they encountered each other during the trial.

[92] In addition to the communication issues with the parents, D.H. said that access to the parents by N. and H. could have a significant impact upon their three siblings who do not have access. She said that it might open up some emotional issues for them and she did not want to take that chance. She said to have all five siblings in one home and to only have two of them see their parents would be very problematic. She reiterated that she will not present a plan for N. and H. if there is an access order.

Denisa Simpson

[93] Ms. Simpson is a kinship service worker with the society. Her role is to complete assessments on potential caregivers for children who are in the care of the society. She also facilitates the family finding program. Ms. Simpson had worked with this family since June 2020

[94] In June 2020 S.H. told Ms. Simpson that T.M was still an option and she just needed to complete her "home renovations". The kinship worker asked whether S.H. could speak to his siblings or M.H.'s siblings. After a few missed calls S.H. advised that he had "no luck yet" with his own siblings and as for M.H.'s siblings "they were not entertaining them because of their lifestyle" S.H. did not contact Ms. Simpson after that call.

[95] Ms. Simpson did social media and other searches to see if there were family members or friends who could present a kin plan, but she did not receive any responses. It should be noted that during this time D.H. had not confirmed to the society that she was prepared to make a plan for N. and H. When she did confirm her plan it was dependent upon a no access order being made.

Nadine Helgason

[96] Ms. Helgason is the manager of the Family Connections department and it is her responsibility to develop a permanency plan for children in the society's care. She reviewed the adoptability of N. and H. should an extended society care order be made.

[97] Ms. Helgason said that she reviewed the file material, observed the children virtually and spoke to V. the foster mother on September 30, 2020. Based upon this it was her assessment that the two children are adoptable.

[98] The worker said that in her experience very young children like N. and H. are able to transition well into an adoptive home. She noted that with the exception of N.'s delays with expressive and receptive speech the children are meeting milestones. Both children suffer from eczema that needs daily moisturizing. To this point neither had been identified with special needs and therefore the society was confident that it was in a position to move quickly to provide permanency with an adoptive family.

[99] Ms. Helgason said that of the 34 approved adoptive homes in Peel 11 of the families are Black. If a match could not be found internally there are outreach techniques with other agencies in the GTA and even province wide through Adopt Ontario. Presently there were five other Black families that could be potential matches.

[100] Ms. Helgason described the screening processes used, and the education provided, to potential adoptive families. She said that when looking at contact between a child placed on adoption probation and the birth family one of the key factors is whether the type of contact will undermine the adoptive parent-child relationship.

[101] The worker said that birth parents need to recognize that the adoptive parents are the child's psychological and emotional parent. In person contact is not in the child's best interests when a birth parent is unable to maintain appropriate relationship boundaries or tries to compete with the adoptive parent. Birth parents with an inability to resolve conflict could jeopardize the stability of a placement. That trait could also limit the number of potential adoptive families that are willing to present a plan.

[102] In response to cross-examination Ms. Helgason admitted that if the birth parents had a respectful relationship with the foster mother throughout her involvement and were not troubled by the children being affectionate with her that would be a positive factor. Furthermore, if the birth parents said that the foster mother had done a good job with the children that would also be a positive factor to take into consideration.

[103] The worker described other forms of contact that could be established by an openness order made after an adoption placement. She stated that ongoing contact with N. and H.'s older siblings will be an important way to maintain and enhance each child's identity.

[104] Ms. Helgason said that the society does look to the child's individual identity and how it relates to potential adoptive parent's race, culture and religion. In terms of time to placement if the home study is completed it could be as short as 30 days - if the potential adoptive family is registered with PCAS - to 3 months or longer if a family needs to be found from another region of the province.

[105] Ms. Helgason said that openness orders made at the time of adoption typically provided for parent-child contact twice per year. She said that the contact could be more frequent if the children are older and had formed a strong relationship with their birth parents. The worker said it was not common to have contact more than three times a year and 4 times a year would be the maximum amount if the adoptive family were not a kinship situation.

The mother M.H.

Background

[106] M.H. said that she and S.H had been married for 14 years. The live in a quiet, peaceful, family neighbourhood. She noted that Ms. Passey had observed her home and said it appeared safe for young children. M.H. described the fruits, vegetables and other organic food that they eat and said that sometimes they shopped daily and sometimes weekly.

[107] M.H. said that she had joined Nation of Islam in 2005. She said she was attracted to the way it was structured with a love of self and family. M.H. said that her religion's core values and beliefs are that the Black family has been destroyed by the dominant culture. She said that her faith taught that it is important to have both the males and females as heads of the family.

[108] M.H. said that a lot of parents in her faith home school their children. Her faith teaches that the mother is the nurturer and first teacher of the child. For this reason, she did not want her children in daycare and it they were in her home she intended to home school them. M.H. said that it was important for the children to socialize with other kids so she would expose the children to extra-curricular activities such as music and martial arts.

[109] With respect to home schooling the mother said she would obtain the curriculum from the Ministry of Education and home school the children from 9 a.m. to 3 p.m. She said that parents in her faith needed to prepare the children as they would attend a local high school.

Parenting time and access

[110] The mother said that she had a close bond with N. from the time of his birth. She spent one on one time home schooling him before he was apprehended. M.H. said that she had not seen any delays with N, but if he does have a developmental delay she would meet with the child's doctor and will follow up with any therapy recommendations.

[111] M.H. said that she saw her daughter H. at least twice a week since her birth. She knows that she is a very happy 17-month old child.

[112] With respect to access the mother said that since prior to October 2019 the access had been Mondays and Fridays for 2 hours at the PCAS offices. In mid-October 2019 the Wednesday home visits began and they went from being semi-supervised to unsupervised. Since July 2020 there have been 2 hour video visits on Mondays and Fridays as well as the unsupervised access at the home on Wednesdays from 10 a.m. to 3 p.m. During the trial the unsupervised visits shifted to Saturdays and one video visit went to Sundays.

[113] The mother said that all of the access went well. She noted that N. still had problems in foster care with his eczema and she had always known what to do. She spoke of all the things she and her husband did with the children during visits as noted in the positive supervision notes made by the PCAS workers.

[114] The mother said she has a strong attachment with V. She said she had no problems with N. and H. showing affection to V. in her presence. The mother said is was healthy for the children to have that bond. She said that in absence of their parents the children needed someone to give them affection. The mother said that V. exemplifies what a real mother is, and she is doing a great job with N. and H.

Nutritional counselling

[115] With respect to nutritional counselling the mother said that after N. was taken to Sick Kids on February 15, 2019 Dr. Cory the pediatrician responsible for his care said that the issue was that he had not received enough calories. The mother said she and her husband had worked with a nutritionist Hope Udofe in the past and the worker, Ms. Awuni, said that they could work with her again.

[116] The mother said that she and her husband had already spent $435 for Ms. Udofe's time in the development of the meal plan, but they needed help from the PCAS in paying for counselling. M.H. said that they met with Ms. Udofe on November 16, 18 and 20, 2019 just after the trial for As. had ended. There was an intake assessment on the first date and on the second occasion N. was present for an assessment.

[117] The meal plan developed was entered as an exhibit. The mother said she told Ms. Udofe the foods she would use and then the nutritionist set out the foods to be given at each meal and the portion sizes. The nutritionist mostly followed the mother's planned diet, but she added barley, quinoa and salmon. She noted that Ms. Udofe told her that N. was a bit overweight. The mother said she was told to start the day with vitamin D drops.

[118] M.H. said that she and her husband had always eaten the same foods as their children. The mother said that they organized and paid for the meal plan, but they did not have enough time to execute the plan given the pandemic and inability to expand home access.

[119] The mother said that at the request of Ms. Asiamah she had kept a "food journal" that set out what the children ate when having unsupervised access at her home. Copies of the journal were then sent to the foster mother. The mother said that what had changed since N. came into care was that she had been more focused on calories than she was before. She said she will ensure that the children get the right portions of food at each meal. To this extent she said she was following the professional advice of Dr. Cory from Sick Kids.

[120] With respect to why she would accept nutritional counselling when she believed M. and N. were not malnourished the mother said that she wondered whether the children had a vitamin absorption problem or other related issue. It should be noted that N. had not been found to have such a problem and he gained weight rapidly once in hospital and then in foster care. Nevertheless, the mother said that nutritional counselling could tell her what the food does and let them know if they need referrals for nutrition or vitamin absorption issues.

[121] M.H. said that prior to N. coming into care she did all of the feeding and almost all of the childcare. Now her husband S.H. is involved with the feeding. She still does the cooking. The mother said that if the kids were in her care, she would be sure to document their weight and would keep a journal to keep note of their growth and progress. She said that while the meal plan helps, she cannot really do nutritional counselling until the children are in her care. Notwithstanding this, the mother also said that she would give N. the same foods as she gave him prior to him coming into care at which point he had lost a lot of weight. The mother said that she would be more diligent about weighing N. and be more attentive to the portions of food he received. Navy bean pie or lentil soup would always be part of the plan as members of her faith relied on them as staples to their diet.

[122] M.H. said that most adult member of the Nation of Islam just eat one meal a day, but pregnant women and children should eat more than that. She said many members agreed that children should eat twice a day. The mother said that members of her faith are required to follow the "eat to live" philosophy of Elijah Muhammed. She conceded that not all members of her faith are able to do this. While children can eat more than once a day when they become 16, they are to follow this prescription.

[123] M.H. addressed the quashing of her criminal conviction by the Court of Appeal. She said that a re-trial of M's death and the criminal trial with respect to N. "will vindicate us in dealing with nutrition.”

Return home, Adoption and access

[124] The mother said that she wanted the children to be returned to the care of herself and her husband. She said that she had support from the members of her faith. She said that some believers know what they have been going through. The mother said that there were other people who could help out and she mentioned the paternal grandfather who had testified at the As. trial.

[125] With respect to D.H. as a potential adoptive home for the children M.H. said she had not had communication with the D.H. since the October 2019 trial. She was very clear that she did not want to have an ongoing relationship with her. The mother stated that she had no issues with D.H. until D.H. encouraged As. to call her "Mommy" and when D.H. changed the child's first name to J.

[126] M.H. said that D.H. is too emotionally involved in this entire matter and that she had made judgments about them after they went to prison. She claimed that she continued to have a good relationship with D.H. even after her conviction for manslaughter (since set aside), but after she was imprisoned the society talked to D.H. and a rift developed between them. The mother felt that D.H. had gone "overboard" with her role in this matter. She thought that D.H. should show respect for her as the children's mother and that D.H should see her own place as being the children's caregiver.

[127] The mother said that even if D.H. adopted the children she would be "greatly offended" if she heard D.H. referred to as the children's mother. M.H. said that if another person adopted her children, she would see the role of the adoptive parent as to be like a "guardian" for her children. She would not want anyone to replace her as the mother of the children. She also said though that she would not take any steps to harm the new guardian of her children.

[128] The mother said that she met T.M. in August 2018. They were put in touch with another member of their shared faith. She said she was looking for a kinship caregiver that was Black, Muslim and "respected the way that we eat."

[129] M.H. said she wanted someone who could give N. and H. love and affection. T.M. has seven kids which the mother said was not unusual for members of the Nation of Islam. She knows that T.M will care for her children even if she herself does not have access. She said that she saw T.M. about once per week at her clinic. She said she was aware that T.M. had "temporarily suspended" her kinship assessment as she still had to do home renovations.

[130] The mother said that if the children were placed for adoption, she would want an openness order. She said that she would respect medical advice though she would want a second opinion on any recommendations as "two eyes are better than one."

[131] The mother explained that she and her husband declined the in person access offered by the Society in the summer of 2020 because a they did not want too much interaction with other people. They did not want their children picking up things from the other kids who attended at the access location. She was also concerned that there would be different supervisors and she did not trust that they might not have the virus. The mother said that she declined community access for similar reasons. She said that there were people who went to park environments without masks.

Responsibility for medical concerns

[132] M.H. admitted that after H. was born, she declined the vitamin K injection and the antibiotic anthramycin. She said the mid-wife told her the shot was optional. The mother said that she had no problem with taking antibiotics, but she felt that they were overused. M.H. said that it was part of her religion not to have vaccinations. The mother said she would support N. being assessed at ErinOak for developmental delay and that she had just been told that a specialist had said that N. could have mild autism spectrum disorder (ASD). The mother noted that N. was given vaccinations without his parent's knowledge at Sick Kids and that after the vaccinations she noted that his speech was more delayed. She felt that vaccinations could have caused any developmental delay. She added that if a doctor says that N. has developmental delay, she would insist upon a second opinion.

[133] With respect to any medications that might be prescribed for the children the mother said she would ask about side effects before making any decisions. The mother said that she "does not want to be blamed for anything and wanted no responsibility if it goes wrong". The mother claimed that after she asked about side effects if the doctor still felt that medication must be taken, she would give the children the medication. The manner in which she made this statement suggested that she felt compelled to say it, but that it probably did not represent her true views.

[134] As support for her statement that she would follow medical advice the mother noted that N. was taken to 68 doctor's appointments in the 23 months in which he lived with his parents. The mother seemed to feel that it a doctor did not note that anything was wrong with her child then she was not responsible for his condition.

[135] The mother confirmed that she and the father have been charged with failing to provide the necessaries of life to N. She said she did not know when the next court date was.

[136] The mother was reminded of her of testimony in the As. trial that N.'s weight loss was not caused by his diet. M.H. said that she was prepared to address the caloric intake because that was what the doctors said was the issue. The mother maintained that N. was a fairly healthy child when he was apprehended. She said he was talking and walking. The mother said she had never seen N. look like the photos of him that were taken at Sick Kids the day after the apprehension.

[137] The mother said that she expected that there will be reports produced that prove that M. did not die of malnutrition. The mother said that she did not believe that either malnutrition or vitamin D deficiency caused M.'s death. The mother went on to say that there was no blood work that said that N. had a vitamin deficiency. She said that the new evidence she expected regarding M.'s death will impact how the evidence of N.'s health is viewed.

[138] The mother said she would want her friend T.M., who is a doctor of natural medicines, (not a licensed naturopath) to help with medical needs of her children. She was asked what she would do in the event that T.M.'s views conflicted with the advise of the child's pediatrician. The mother tentatively said that she would ask for another specialist to help her make a decision. I did not find her answer convincing on this point.

Cooperation with society

[139] When asked questions about her support system the mother said that her two siblings were too busy with work and family to put in a plan. They had seen the PGF a couple of times since N. was placed in care once prior to the pandemic and the other time during the pandemic. On the second occasion the parents took the children to his apartment building and took the elevator for a visit in his apartment. This evidence contrasted sharply with the mother's insistence that she could not trust the society visit centre, the volunteer drivers or other persons in a park to be COVID-19 compliant.

[140] The mother also admitted that pre-pandemic they took the children to see the father's brother at a construction site and post-pandemic they had a visit with T.M at a parking lot near her home. She said it was safe as the children did not get out of the car. The mother conceded that she had not told the society worker about these visits and could not recall if she told the foster mother.

[141] The mother admitted to keeping her current pregnancy a secret from Ms. Awuni until the worker found out from others. She said she did tell the society about her pregnancy with H because the PCAS had let her keep N. Then N. was apprehended, and H. was taken at birth so she said why would she tell the society about a new child when she knew that they would not allow her to keep the baby.

Input into care of children

[142] The mother conceded that while she gets along very well with the foster mother when the children were first with her she did express concerns; about their hair, their food and the clothes they wear (only 100% cotton as per their faith) The Society has told V. to follow the specific instructions that the mother has provided. These instructions include very specific issues like they type of soap and shampoo they use. The mother admitted that she has followed up on all of these details and V. has answered all of her questions.

[143] It was suggested to the mother that it the court made an extended society care order she will not be able to control what her kids eat or wear. When the conflict with D.H. over parenting issues was raised the mother stated that the society allowed D.H. to go overboard. She said that D.H. went "out her of her lane." The society should have told D.H. that she was the children's aunt not their parent. M.H. said she would still have a problem with the children calling D.H "Mommy" even if an extended care order was followed by an adoption.

[144] Despite her evidence about D.H. the mother said she could be supportive of adoptive parents no matter how little involvement she might have under the terms of a possible openness order. The mother saw support to an adoptive parent as including providing information from a cultural and religious perspective about how to raise a Black Muslim child.

[145] The mother said she would not be prepared to disclose her own medical history to a potential adoptive parent. She said that that was private information and she could not see how it was relevant. She said that if anything needed to be known that the society could obtain it for them.

[146] M.H. also felt that if adoptive parents renamed her children, she would not like it as it would be an insult and her "parental rights" would be diminished.

T.M.

[147] The mother called T.M. as a witness. She said she has been a doctor of natural medicine since 2004. She runs a wellness institute. She said she provides counselling and assessments to patients and works with them in their decision to use natural medicine to heal themselves. She gauges their ability to come back to good health. She said that the body can regenerate itself and she spoke of new age technologies from Russia, Japan and Korea that use sound, and light and electro-magnetic pulses T.M. stated that she provided counselling regarding feeding and nutrition.

[148] T.M. said she had 7 children and 6 of them reside with her-three of them are young adults. She said that some of her kids are now old enough to look after their siblings, so she was able to move out of her home office and she opened a clinic in January 2019.

[149] T.M. met the parents around the spring 2018 when they sought counselling and advice from her regarding N.'s eczema. In the late spring of 2019 T.M. applied for a kinship assessment. She said her dietary plan would be to maintain their vegetarian diet. She would home school the two children.

[150] T.M said she put the assessment on hold because her landlord refuses to address a mould problem in her home. She said she was set up to move to a 17- acre farm within 30-60 days. She is ready to sign a commercial lease for at least 5 years. In this environment she can create a true home school program and teach the children agriculture. She said that she could move as early as January 2021.

[151] In response to cross-examination T.M. admitted that in As.'s trial she thought that N.'s weight loss was caused by his eczema medication. She said that if N. does have developmental delay, she could work with him as she felt the brain could be supported by nutrition. T.M. said that there was a micro-nutrient product that was ground-breaking in this regard.

Hope Udofe

[152] Ms. Udofe is a registered dietician and has nutritionist degrees from Africa, Brazil and Ryerson University. She has worked at McMaster hospital as a registered dietician and is a member of the College of Dieticians of Ontario.

[153] She said that in her practice she sees clients with nutrition related health issues, and she helps them improve their health through prevention or management.

[154] Ms. Udofe said she does an initial assessment and comes up with the client's goals and a plan. She will assign homework and then they come back for follow-up. The amount of time spent depends on the individual and their condition.

[155] She met with the parents on November 14, 2019 and then assessed N. when they brought him in on November 18. Ms. Udofe prepared a meal plan. The mother's role was to advise her as to the type of food the family eats.

[156] The meal plan was for N. who at 2.5 years old needed a diet that promotes growth and development. She set out the meat alternatives that provide protein and she set out portion sizes. Ms. Udofe said that she follows Health Canada recommendations. Ms. Udofe said that the navy bean pie and the legume soup can be part of a healthy diet for N. She said the mother brought the recipe in to her.

[157] N. had been in foster care for 9 months at the time Ms. Udofe met him. She said that he was at the 97th percentile and overweight for his age and height. Ms. Udofe was not made aware as to how long N. had been out of the parent's care. One of the goals in the meal plan was to deal with the child being overweight.

[158] Ms. Udofe said that the society contacted her and discussed nutritional counselling for the parents after she saw N. She said that the PCAS did not follow up with her about counselling. She knew that there was an issue with the parents not being able to afford counselling, but the PCAS did not follow up by paying for it. Nothing was ever agreed to or even put in writing regarding potential counselling. She did note that the parents would need more time with the child in order to really benefit from any counselling.

[159] Ms. Udofe was not made aware of the fact that N. lost a great deal of weight while in the parent's care and that in February 2019 he was diagnosed with severe malnutrition. She was not advised that N. was in hospital for 25 days as a result and that he required an NG feeding tube while in hospital and in foster care afterwards. She said that if the parents followed her meal plan that it will ensure that weight loss will not happen again.

Dr. Prabo Dwight

[160] The mother called the children's pediatrician as a witness. The children's medical records were introduced through this witness. Dr. Dwight is a pediatrician at William Osler Hospital. He said he is not responsible for the children's primary care as they do have a family physician.

[161] The doctor said that he saw H in October 2020 and she is doing quite well. She may require some assistance in language development and given that her sibling N. needed speech therapy he made a referral to ErinOaks for her as well. He had no major concerns as she has good receptive language. Dr. Wright said that H. also had eczema, but it was not as bad as N.'s condition. He noted that she had no food intolerances.

[162] Dr. Dwight said that he was more concerned with N. He is now 2.5 years old and he has not developed any ability to even let his foster mother know when he needs toileting so it may be some time before he is toilet trained.

[163] N. has other developmental issues as he has less than 50 words of which probably less than 50 % are understandable. He is able to follow simple instructions, but that and his ability to play are not age appropriate. Dr. Dwight felt that N would need significant supports and he had made a referral to a behavioural pediatrician Dr. Ramchatesingh. He was not greatly concerned, but the delay he sees could indicate mild autism.

[164] Dr. Dwight said that N. had a good appetite and there were no problems with feeding. He had no concerns regarding his size as he was at the 90th percentile for height and 75th percentile for weight. He said that both N. and H. were bigger than average children.

[165] N. has eczema and it was moderate to severe when he first saw him. Since he has been involved in N.'s care, he has never had a super infection and never had to prescribe antibiotics. Currently N. has patches that flare up from time to time.

The father S.H.

Nutritional issues

[166] The father said that when N. came into care, they were told that calorie loss was a factor and that N. had a lack of micronutrients. He said that the details of the PCAS's concerns were not really made clear until As.’s trial in the fall of 2019 when Dr. Cory from Sick Kids gave her evidence.

[167] After hearing this evidence, he said that he reached out to the society worker who was probably Ms. Asiamah at the time and asked her about nutritional counselling so that the parents could address this concern. They were told that Dr. Cory could provide counselling. As they had been charged with a criminal offence of failing to provide the necessaries of life to N., he thought it best to consult with his criminal lawyer. Based on that advice he felt that he should not use Dr. Cory as she had testified at the As. trial and would likely be a witness at any criminal trial regarding N.

[168] S.H. said that if the children were in the parents care now there was no possibility that they would lose weight. He said that he would be vigilant and take the time to weigh the children frequently and would "double down" on the meal plan. If a child lost weight they would contact the doctor.

[169] The father said that he did not see N. to have low energy or to having any difficulty moving when the child was in his care. Both of these symptoms were noted on his admission to Sick Kids. The father said "whatever caused N. to be in hospital" he would ensure that it would not happen again as he would make sure that he was at home more often to help with childcare.

[170] S.H. gave his evidence in a careful way. He appeared to think through all the implications of his answers before saying anything. He was asked if there was a difference in the frequency of feeding of N. during the access visits compared to the frequency of feeding when N. was in the parent's care. S.H. paused for a long time before responding and he conceded that this was a very good question. He finally landed on saying that as the children eat throughout the access visits it is very difficult to compare to the situation when N. was at home.

[171] S.H. said that the parents believe that microwaves are not safe so they cannot easily warm up pie or soup. As they do not have a stove at the supervised access visits the food choices were more limited.

[172] When asked to explain the difference between how they will feed the children now as compared to previously S.H said that he now had a more "rounded knowledge" of diet. They will ensure that the children get the proper quantity of food now whereas previously they just fed N. until he was full. S.H. also said that he would personally be more involved with feeding. The father is a self-employed educator who promoted the Nation of Islam through the distribution of pamphlets and videos. He said that after N. was apprehended, he changed his schedule so that he is home more now and available to assist with feeding with the kids.

Access visits and foster mother

[173] S.H. talked about how much both he and the children enjoyed their visits. He said the children love to see their parents and he feels the same way about seeing them. The father said that he was very appreciative of what V. has done for his children. He said V. is exemplary. She even provides the parents with photos of the kids on holiday or just playing with each other. He can see that the children are very happy, and he has no difficulty with them bonding with the foster mother. The father said that V. has excellent communication skills.

[174] With respect to visits during the pandemic S.H. confirmed that he did not trust volunteer drivers because of all of the children they transported. As for moving to in person visits at the Society visit centre, he said that he had been watching updates on the virus and he thought it would it not be safe. He said that M.H. and himself asked a lot of questions to address their concerns and the society did not provide answers. The father said that he and the mother felt that the society should be cleaning access areas regularly and based upon a previous experience they did not believe that they did that. He admitted that they took the kids to see the PGF in his apartment during an access visit. He simply said that the PGF was part of his social circle and there are always risks.

[175] With respect to declining the opportunity for visits in the community the father said that he was still subject to bail conditions that prevented him from being around kids under 16 so it would not be safe to go to a park as he could risk going back to jail.

Responsibility for medical issues

[176] S.H. noted that even though N. has been in care for a long time he has numerous flare ups of his eczema. He produced photos that he had taken during access visits that showed eczema on N.'s face. The father was clear that he did not blame the foster mother for this. His point was that the society brought a protection application based upon his very serious eczema and yet the problem persisted.

[177] With respect to the criminal charges he was facing with respect to the death of M. and the physical condition of N. the father said that a decision would be made on December 7 as to whether there would be a re-trial on the former. S.H. said that he hoped the case would proceed to another trial as he wants further evidence to come out regarding how M. died. The father said that there was a lot of evidence that the jury did not hear as neither parent testified at the trial. He said the jury was presented with a false narrative and he wants to speak as to what really happened.

[178] With respect to N. the father claimed his son was never underweight while in his parent's care though he did have some weight loss immediately prior to coming into the care of the PCAS. S.H. said that before he came into care blood tests showed that N.'s D and B12 levels were fine. He said the allegation that N. was malnourished and suffered from a protein deficiency will be challenged.

[179] The father was asked whether any thing had changed from his position at the As. trial in which he stated that N.'s weight loss could be explained by activity levels and the fact that the child stopping breastfeeding. He maintained that N.'s diet had nothing to do with his weight loss, but as the matter is still before the criminal court he did not want to say more. He did say though that his daughter M. had never lost weight prior to her death and as the coroner held her body for 7 days prior to the examination the wasting of her body could have occurred then. He said that the criminal court was still missing a lot of evidence.

[180] The father said that while he knew a lot more about nutrition and meal plans than he used to know there is always more to learn and that is why he is prepared to do nutritional counselling. Both parents put a lot of emphasis in their evidence about their willingness to do nutritional counselling, but both of them denied that M.'s death or N.'s severe illness arose out of a lack of nutrition. This raised the issue of why they were so keen to do counselling if they did not think that they were deficient in providing nutrition to their children. When directly asked if he thought that if he did not do the nutritional counselling that the children would be at risk of poor health outcomes the father said that that was a great question and he took a very long pause as he appeared to think through the implications of his answer. He finally said that with the information that the parents now have he did not think that the children would be at risk even if they did not do counselling.

[181] With respect to not noticing any changes in how N. looked, the father said he had only ever changed N.'s diaper once, but he had been home when the mother changed him. S.H. said he had never seen N. in the condition shown by the photos presented at the As. trial. He admitted that he was shocked to see photos of N. with skin literally hanging off his buttocks. He said that when the mother changed N.'s diaper the child was lying on his back so he would have had no opportunity to see his body even if he did look like that when still at home. The father said that he planned to be much more vigilant and much more involved in the care of the children. He said though that he would never change H.'s diaper because she is female, and men of his faith do not look at their naked female children.

[182] S.H. still did not understand why he and his wife are being blamed for N.'s physical condition at the time of apprehension. He noted that his son was taken to the doctor three times in the week that he was apprehended, and the doctor did not say anything to him. He added that N. was not exhibiting any developmental delay before he was apprehended. He was walking and talking and then after apprehension it was said that he could do neither.

[183] The father confirmed that their religious beliefs do not allow them to agree to the children being vaccinated. He said that the things that they put in medications can cause abnormalities particularly in Black boys. The father said that N. was given 4 vaccinations in the same day at Sick Kids and he was never the same after that. S.H. said that N. had regressed significantly after the vaccinations. He also said that the eczema mediation that N. was prescribed before he came into care could have played some role in his condition as it was a medication that was not approved for use in the U.S. and had a "black box" warning label.

Adoption and access

[184] S.H. was asked about his position regarding the plan for D.H. to care for the children if an extended society care order is made. He said that he wanted his children returned to their parent’s care. If that was not possible, he supported them living with D.H. if he could have access. The father said that he felt that he could re-establish his relationship with his paternal cousin D.H. He said he was grateful that the other three children were in her care as opposed to being adopted by strangers. The father said he had communicated well with D.H. previously and thought he could do so again. He said that he sent her polite messages by text after the pandemic lockdown, but she did not respond. The father said that he used to call D.H. on her work phone and then she told him to text on her cell phone. She was the one that stopped responding to him not the other way around.

[185] S.H. said that if an extended care order was made, he would seek access. He understood that if the children were placed for adoption the access would end at which point, he would seek an openness order. The father said he was sure that he would be able to work well with any adoptive parent. He said he would support the adoptive parents. Unlike the mother, the father was quite willing to provide his own medical information if it is sought. Unlike the mother he understood that the adoptive parents make all of the decisions including whether to change the children's names or religion. He said he knew that his children would call the adoptive parents Mom or Dad and while he would always have a problem with that, he would never express it.

[186] The father said that if both N. and H. were with them, he would be receptive to them having access to their siblings who live with D.H. He said that he himself was a Crown ward and he did not have access to his siblings so he knew how important sibling contact could be.

ANALYSIS

The child protection issue

The Law

[187] The applicable sub-section of the Child Youth and Family Services Act is ss. 74 (2). In this matter the society sought a finding under ss. 74 (2) (a) (i) (ii) and (b) (i ) (ii) for N and under ss. 74 (2) (b) (i) (ii) for H. Those subsections read as follows;

Child in need of protection

(2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[188] Almost all of the evidence with respect to whether these two children are in need of protection can be found in evidence given in previous trials with respect to their siblings and in prior court rulings with respect to that evidence.

[189] This is a somewhat unusual situation in that N. was residing with his parents at home while his older brother As. was living in a kin care arrangement under a temporary order. As As. had never lived with the parents the "past parenting" evidence received by Justice Rogers in August to October 2019 was evidence of what had happened to N. in the care of his parents from his birth on […], 2017 to his being taken to a place of safety on February 15, 2019. Justice Rogers found that evidence excerpted above, together with the evidence of M.'s death in 2011, to be sufficient to ground a finding that As. was a child in need of protection.

[190] Justice Rogers made the following comments with respect to the proper use of past parenting evidence;

[138] The parents both testified to attending over 60 doctor's appointments for N, but denied ever being alerted by Dr. Asady that N's weight was a concern, an issue that Dr. Asady was certain he had raised with them. Both parents maintained in their testimony that they did not accept that their child M had died of malnutrition, but rather it was, according to the mother, Paget's disease, acquired by M from a blood transfusion at birth. The father testified that he and the mother would never admit that M's diet had something to do with her death.

[139] In the previously referred to Kawartha-Haliburton Children's Aid Society v. C. (D.) case, Justice Nelson stated that in looking at past parenting and court decisions that made findings regarding that parenting, that "The earlier decision forms the backdrop necessary from which to measure change".

[140] Clearly the Society was prepared to consider that the parents had learned from their child's death, and the loss of their older children, when the decision was made to plan to return As to their care and not to commence a protection application regarding N, and to have him reside in the parents' care. And the parents did make some changes in their behaviour in that they sought out medical treatment for N's eczema, they regularly saw Dr. Asady, they provided the Society with consents to speak to the doctors they consulted, they allowed Ms. Bennett to come into their home and they pursued a meal plan with Ms. Udofe. But the "backdrop necessary from which to measure change" was the requirement that the parents ensure that the child in their care, N, was gaining weight, and was not at any risk of experiencing what four courts have held to be the death by malnutrition of the parents' second child M. And yet, between September 2018, and February 2019, N's weight dropped, and his state of health, as a result of not being fed adequate calories required hospitalization for 25 days.

[141] Counsel for the father urged the court not to allow the past parenting of the children Am and Az to "suffocate" the evidence of current parenting. What the findings of Justice Bovard at trial, and the decisions of the Superior Court of Justice and the Ontario Court of Appeal have provided is the "backdrop" by which to measure the parents' demonstrated change in their parenting. Because the parents have not changed by not acknowledging that mistakes were made in their care of Am and M, and by failing to adequately care for N, the court must conclude that there is a risk that As is likely to suffer physical harm at the hands of the parents. As will be found to be in need of protection pursuant to subsections 74(2)(b)(i) and 74(2)(b)(ii) of the Act.

[191] I adopt this finding and rely upon it in my analysis of whether N. and H. should be found to be children in need of protection. As noted, the evidence given in the trial before me was restricted to facts that occurred after October 2019. I must consider whether the evidence before me demonstrated that the parents’ attitudes and behaviours have changed such that there is no longer a risk of the likelihood of physical harm.

[192] I begin by noting that there was evidence that the parents had become more co-operative with the society over the years. The evidence was that the parents and society workers spoke respectfully to one another even when they disagreed. The very positive access that occurred in the society's offices demonstrated that the hostility that led to society intervention during the investigation of M.'s death and its aftermath had waned somewhat. The parents worked well with Ms. Bennett so there was a change between the apprehension of the older siblings and N.'s birth that caused the society to not intervene when N. was born. However, despite this improvement there was one simple thing that the parents had to do and that was to ensure that N. was properly fed and did not suffer from malnutrition. This they could not do.

[193] The parents, particularly the father, were very guarded in their statements, apparently concerned about the implications of their evidence in the possible re-trial of M.'s death and the criminal charges arising out of N.'s malnutrition. They did have protection under the Charter of Rights and Freedoms to not have their child protection evidence apply to their criminal trials, but they still used the fact of upcoming trials to avoid difficult questions as to what had happened to the children in their care.

[194] The evidence before Justice Rogers in the fall of 2019 was that neither parent accepted that M. died from malnutrition or vitamin deficiency. This trial began with the parents feeling vindicated by the quashing of their manslaughter convictions by the Ontario Court of Appeal. As set out in some detail above, and in my separate ruling on the evidentiary issues, the appeal court simply found that some of the medical evidence put to the jury was no longer valid and that therefore a new trial should be ordered so the most accurate evidence of forensic experts could be set out. The forensic experts still believed that there was malnourishment even if the most proximate cause of M.'s death may have been rickets due to vitamin D deficiency.

[195] After reviewing all of the prior child protection decisions, I find that the “shadow of a manslaughter conviction” was not a factor in the court's findings on the protection findings made with respect to any of the three siblings that have been found to be in need of protection.

[196] The evidence with respect to what happened to M. is most relevant in that it formed the backdrop for the evaluation of what happened to N. This is addressed by Justice Rogers's decision.

[197] The focus of the parent's evidence as it related to the child protection issue in this trial appeared to be to emphasize that the parents would be relying upon a meal plan approved by a qualified nutritionist. There was also a great deal of evidence lead as to the quality and quantity of food brought to access visits and the children's unrestricted consumption of that food.

[198] There was no evidence before me that the parents failed or refused to provide the children with nutritious foods as recommended by Ms. Udofe. The simple fact was that I heard evidence for a period in which the children were in care with limited access to their parents. There was no opportunity during this time to determine if the parents would be able to nutritiously feed the two children for extended periods. The parents had taken steps immediately after the As. trial ended to re-engage Ms. Udofe in the development of a meal plan. The father said he would be at home much more and he would take a role in feeding the children. The mother said she would feed the children as much food as they wanted at each meal.

[199] As I heard no evidence that they had not fed the children properly I need to look at the past parenting to see if the parent's statements can be relied upon.

[200] There was no evidence from the parents in the trial before me that they accepted any responsibility for the death of M. or the severe malnourishment of N. In fact, they continued to deny that either child was malnourished. The parents continued to blame others for failing to notice N.'s weight loss. The mother said that M.'s retrial and N.'s trial will "will vindicate us in dealing with nutrition."

[201] As noted above, in this trial the father said that he did not see N. to have low energy or to have any difficulty moving when the child was in his care. Both of these symptoms were noted on his admission to Sick Kids. The father said he would need to be "doubly vigilant" in the future. He also said, "whatever caused N. to be in hospital" he would ensure that it would not happen again as he would make sure that he was at home more often to help with childcare.

[202] With respect to Ms. Udofe her evidence before Justice Rogers was that the parents had engaged her well before N became malnourished. The mother met Ms. Udofe in 2012 and attended her office on February 22, 2017 regarding a meal plan for the child As. This was just before N was born.

[203] At the time the society was concerned about malnutrition due to M.'s death. The mother wanted Ms. Udofe to assess the adequacy of the meal plan the mother had created for the child As. Ms. Udofe testified before Justice Rogers that she suggested providing As. with 6 small meals every day, to accommodate the child's small stomach. Ms. Udofe stated that the parents attended appointments at her office together, and that the mother was cooperative, and focused during their meetings. The meal plan she approved was intended for a child living full-time in the parents' care.

[204] Ms. Udofe testified that she would expect a child using the meal plan she recommended to grow and gain weight. If that did not occur, Ms. Udofe testified that there would need to be an investigation for underlying medical issues, genetic issues and the child's environment. She acknowledged that she did not know if the parents followed the meal plan, and it was possible that it was not followed.

[205] The evidence was that N. was a large child who initially gained weight appropriately. Then came a period between 18 and 23 months when he lost a great deal of weight particularly in the last few weeks before hospitalization. Dr. Cory's evidence before Justice Rogers was that N. did not have any underlying conditions that would impact upon maintaining an appropriate weight. This is supported by the fact that he had excellent "catch-up weight" once hospitalized and has remained at, at least the 75th percentile for a child of his age during the time he has been in care.

[206] This drastic weight loss that N. sustained occurred against the backdrop of M.'s death from malnutrition and the fact that the parents had a meal plan from Ms. Udofe and the benefit of her advice. The parent's only evidence of change is that they will be "doubly vigilant" in adhering to a meal plan from the same nutritionist. They stated this even though neither of them concedes that M. nor N. suffered from malnourishment despite the overwhelming evidence to the contrary.

[207] I find that there has been no change in the parent's fixed belief that they have done nothing wrong. With one child deceased and another requiring 25 days of hospitalization due to malnutrition, I cannot accept their evidence that no physical harm will come to N. or H. as a direct result of their actions or neglect.

[208] As N. has already suffered physical harm it is appropriate to make a finding under s. 74 (2) (a) (i) and (ii) and (b) (i) and (ii). With respect to H. as she never lived with the parents the finding is based upon what happened to her siblings and will be under s. 72 (2) (b) (i) (ii) only.

DISPOSITION

The Law

[209] Once a finding is made the court is directed to determining the disposition. The relevant sub-sections of the CYFSA to this matter are set out below;

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:

Supervision order

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

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Court to inquire

(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

[210] After making a disposition order the court is required to consider whether there should be an access order. The relevant sub-sections of the CYFSA to the facts or this matter read as follows

Access: where child removed from person in charge

105 (1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child's best interests.

Existing access order terminated if order made for extended society care

(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child's best interests.

[211] The best interests of a child are defined in s.74 of the CYFSA. These children are 3.5 and 1.5 years old respectively and the uncontested evidence is that they are of African Caribbean Canadian heritage. This means that the relevant sub-sections are;

Best interests of child

(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,

(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,

(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.

[212] When considering access for a child in extended society care there are additional considerations set out in s. 101(6) which read as follows;

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),

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

(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

[213] After an extended society care order is made s. 105 (9) permits ongoing communication as follows;

(9) If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) is in the best interests of the child and no openness order under Part VIII (Adoption and Adoption Licensing) or access order is in effect with respect to the person and the child, the society may permit contact or communication between the person and the child

[214] Finally, if an order is made for extended society care with access the provisions of s. 191 (1) govern any access order made;

Access orders terminate

191 (1) When a child is placed for adoption by a society or licensee, every order respecting access to the child is terminated, including an access order made under Part V (Child Protection) in respect of a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c).

Order needs to be made

[215] There is overwhelming evidence that a court order is necessary to protect these two children. The issue that brought them into care was the risk that they would likely suffer malnutrition which could lead to death if they remained in the care of their parents. For reasons set out above, this risk has not been ameliorated over the years. M. died of vitamin deficiency and malnourishment in 2011 and N. was taken to a place of safety in February 2019 due to severe malnourishment. The court cannot return the children to the care of the parents and must make a further order.

Efforts made by Society

[216] There was a great deal of evidence, both in this proceeding and in the proceeding concerning the sibling As., of the efforts that the Society made to assist the parents. It should be noted that notwithstanding M's death and the subsequent apprehension of her siblings the society made a decision when N. was born that with sufficient supports in place the parents should be given an opportunity to parent him. The parents accepted the services of an infant wellness nurse but declined the offer of a child and youth worker to attend at their home. As they had shown some cooperation with the society the latter only sought a supervision order when N.'s eczema became very serious and did not appear to be properly treated. N. was still living at home when he sustained the drastic weight loss in the fall of 2018 and in January and February 2019 that caused him to spend 25 days at Sick Kids.

[217] The parents were then offered nutritional counselling to be provided by Dr. Cory the director of the clinic at Sick Kids. The society supported their decision to obtain assistance instead from Ms. Udofe. The society workers co-operated with the family in ensuring that the foster home followed the diet developed by Ms. Udofe so that it would be possible to determine if it was the diet itself, or the compliance with the diet's portion sizes and vitamin supplements, that was most relevant to the health of the children.

[218] The society placed the children together with a very experienced Black foster mother of a similar heritage. That foster mother was prepared to accommodate all of the special requests made by the parents. The parents were pleased with this and they forged a positive relationship with the foster mother.

[219] The society supported in person access twice a week and expanded it to three times a week with 5 hours at the parent's home unsupervised. This meant that the parents were able to maintain a bond with N. and develop one with H. The supervised access was viewed to be positive. The only issue with access was the parent's distrust of the society which led to the parents not accepting access at the society's visit centre and not accepting volunteer drivers. The access evidence in this trial must be qualified by the fact of the pandemic and the need for every family to make their own risk assessments. The parent’s acted inconsistently as is set out below.

Community or family plans

[220] The mother presented a plan that if the children could not be returned to them that the court should consider placing the children with her friend T.M. This was the mother's alternate position at the As. trial as well. T.M. did not follow through with a kinship assessment for well over a year. She is living in a rented home with six of her children and she stated that she cannot have these young children there due to a mould problem that the landlord will not attend to. Her plan to raise her younger children and these two children on a farm property that she would acquire and make available by early 2021 was very unrealistic.

[221] T.M. presented a plan for the care of As. as well which the mother, but not the father, supported. The reason for that trial was the failure of the parents to provide N. with sufficient calories and nutrients to the point where he became seriously ill. In her decision Justice Rogers noted this about T.M.'s evidence;

[208] [Dr. M's] evidence is that she saw N with the parents, at her clinic, on four occasions between January 31, 2019 and February 11, 2019. She stated that it was very unclear why N was apprehended. It is her belief that N's weight loss and loss of appetite was caused by the eczema medication he was on.

[209] [Dr. M] has offered to be a caregiver for N and H, and was being assessed by the Society for a kin placement. She confirmed that she had historical involvement with the Children's Aid Society in Hamilton in 2007 and with Child Protective Services in New York State and Florida. She stated that all cases were closed by 2010. [Dr. M.] expressed her belief to the Society workers investigating her plan, that "CAS is used as a 'weapon' of sorts against good families".

[222] Notwithstanding T.M's failure to follow up with the society and her views about the medical diagnosis and the society's role I find that the society used due diligence and good faith in being open to meeting with T.M. and considering her plan. The fact is that there was no fully vetted and realistic plan before the court.

Supervision order not sufficient

[223] N. has been in care for 22 months and H. has been in care for her entire life. The parents have had positive access visits, but when they cared for N. in the first 2 years of his life, they failed him, and he became severely malnourished. While the parents cooperated better with the society and developed a respectful relationship with a very experienced and skilled foster mother the history is that they will not do anything for their children that is outside of their fixed belief system.

[224] I find, as have the other judges involved with this family, that the mother was much more rigid and inflexible in her views and much more difficult to communicate with than the father. The father was a good communicator and a thoughtful witness. He was clearly quite intelligent and very aware of the implications of every statement that he made with respect to his position not only in this child protection trial, but also in any criminal trials to follow.

[225] The parents appear to be willing to address issues. They engaged a nutritionist in 2017 and again in late 2019. Sadly, despite the advice that they received their son N. became severely malnourished in early 2019. The 2015 decision of Justice Bovard showed the parents to be very resistant to any medical advice. Over time they cooperated with taking the children to physicians and filling prescriptions. Notwithstanding, what are said to be 68 visits to doctors in just 23 months, N. still became very ill in the care of his parents. The parents used their compliance with taking N. to the doctor to deny any responsibility for their son's physical condition. They effectively said how bad could it have been if the doctor did not take action.

[226] The parents have cooperated where absolutely necessary and in the face of both criminal and child protection trials. Even in 2020 they did not want to show the worker the contents of their fridge. The parents remain secretive and unwilling to provide information even in the immediate pre-trial period. They turned down in person access at the society volunteer drivers for home visits and community access due to COVID-19 concerns. That might have been understandable but for the fact that at the same time they took the children to see the paternal grandfather in his apartment and they visited with T.M. with the children sitting in the car. They did not inform the foster mother or the society of these visits which just came to light under cross-examination. The mother failed to disclose to the worker that she was 4.5 months pregnant with her seventh child and she only reluctantly admitted it after a community member reported it.

[227] The risks in this case are too serious to be properly addressed by placing the children with their parents subject to a supervision order. Furthermore, I have no confidence that the parents would comply with any term of supervision with which they did not agree.

Extended society care

[228] The only realistic disposition open to the court is extended society care. These two young children need to have a permanency plan. Both of them settled well into foster care. N. had a traumatic experience when he had to spend 25 days at Sick Kids. He was fortunate that V. an experienced loving foster mother was there for him. H. joined him in V's home after her birth. All of the evidence shows that V. has provided a secure and loving home for the two children. They have bonded well with her and she has allowed them to remain quite attached to their parents through the regular and positive visits that they have enjoyed.

[229] The fact that N. and H. have been able build such a secure attachment with V. suggests that they will be able to do so with another loving caregiver who is able to meet all of their needs. Both children shall be placed into the extended care of the society.

[230] The society has presented a plan for the two children to be placed in the care of D.H. with a view to adoption. They will then live in with their three elder siblings. D.H. provided a permanent and loving home for the siblings. D.H.'s plan is predicated though on a no access order being made. I need to address the access issue.

[231] I note that even if I find that D.H.'s plan is supported by the evidence I cannot make an order for a specific adoptive placement. I will determine if there should be an access order and the society will then be required to find a placement that is in the children's best interests based upon the order.

Access

[232] Due to the provisions of s. 101 (4) of the Act the existing access order will end with this disposition of extended society care. I must then turn to s. 101 (1) and decide whether a new access order should be made. The legislation requires that an access order be made unless it is not in the children's best interests. This then requires a consideration of the best interest test as defined in s. 74 (3) and the additional factors in s. 101 (6) that are required to be looked at when considering access to a child in extended society care.

[233] It should be noted at this point that the society sought a no access order and the parents sought as much in person access as possible if an extended society care order were to be made. It is noted that these children are very young, and the society plans to pursue an adoptive placement. Any access order that I might make would end upon the children's placement for adoption pursuant to s. 191 (1). After notice of a pending adoption is given the access holders can seek an openness order.

[234] I will consider the factors set out in s. 74 (3)

Best interests test s. 74 (3)

The children's physical and emotional needs and development -(i) and (ii)

[235] The children have benefitted from the consistent, affectionate and positive access that they have enjoyed with both of their parents. They have also benefitted from a close bond with their foster mother. The children have been able to separate from the parents to go home to the foster mother and vice versa.

[236] N. does have some physical needs. He has a speech delay which is being addressed by speech therapy at ErinOaks. He has some developmental delay. That delay is just beginning to be fully explored. It is possible that he may have mild ASD. N. needs to be supported while all of the concerns are investigated and treated.

[237] N.'s parents did not notice, or did not take steps to address, N.'s severe weight loss in late 2018 and early 2019. They said he spoke normally and walked normally just prior to going to Sick Kids for 25 days. At Sick Kids he was noted to be too weak to walk and unable to speak coherently. The parents still have not accepted that there was anything wrong with him prior to his apprehension other than an eczema issue. They are opposed to vaccinations on religious grounds and believe that his developmental delay if any must be attributable to vaccinations he received while in hospital.

[238] H is a generally health child with a possibility of speech delay and some mild eczema. She does not have any underlying condition that should impair her growth and development.

[239] The parents were insistent with the foster mother that the children must eat from the meal plan they developed with Ms. Udofe. They have not acknowledged that their inability to provide their children with vitamins and nutrients led to the death of one child and the severe illness of another.

[240] I find that the parents will be incapable of having an access relationship with these two children unless they are constantly assured that the children are adhering to their principles of their faith. Their fixed belief system is such that they will not tolerate the children being vaccinated, or fed non vegetarian foods or wearing clothes that are not 100% cotton. With the possible exception of the father being open to the use of antibiotics now, the parents have not tolerated any deviation from what they consider the right way to live.

[241] The parents have also made it clear that they will not accept any medical decision unless they obtain a second opinion. The mother would not even commit to accepting a second opinion that accords with the first. This distrust of the doctors and medications will lead to conflict and delay when potentially adoptive parents need to make decisions based upon expert advice.

Place of origin and cultural identity- (iii) and (iv).

[242] The society was able to find a culturally appropriate foster home and the adoption worker Ms. Helgason stated that just within the Peel society there were 11 approved adoption homes in which the parents were Black. The society's primary position is that N. and H. should be placed with D.H. and their three siblings. Sibling access is almost always beneficial to children as it forms the foundation for what should be a life-long relationship. If the children were placed in another adoptive home, it could be difficult to foster sibling access especially since the three older siblings have had very limited contact with N. and H.

Loss of positive relationship with a parent -(v)

[243] There is no doubt that the children have a positive relationship with both parents as access parents. They saw their parents up to three times a week with most of that access in a structured setting. As will be set out below an access relationship when children are in foster care is much different than an access relationship when children are placed in a putative permanent home. It is very important to note that the children also have a very positive relationship with their foster mother. This speaks well for the ability to form an attachment apart from their biological parents.

Gain of a positive relationship with siblings and extended family-(vi)

[244] If the children are placed with D.H. they would be living with their three siblings. The evidence was that D.H. is connected to other members of the paternal extended family. The father used to have a good relationship with his cousin and they both have independent relationships with the PGF, and it appears with the children's paternal uncles. If the children were placed with D.H. they would not be able to see their parents for the foreseeable future but they would be able to grow up with their father's cousin and have access to their paternal extended family and be immersed in their Caribbean-Canadian heritage. D.H. is not a member of the Nation of Islam but the children are so young that they will not be aware that their caregivers are not raising them in a sect of the Islamic faith.

The effects of delay in disposition-(ix)

[245] The parents were very clear that if they were not given in person access that they would appeal any access order and subsequently any openness order that might be made. It is very clear from the record that the parents are very litigious. They did not concede anything even when a realistic examination of the evidence to be presented made their position untenable. I need only cite one example. Despite As. being found to be in need of protection after a lengthy trial-based largely on what happened to N. while N. was in the parent's care - the parents took the position at this trial that no child protection finding should be made with respect to N. (albeit in closing submissions the father's counsel conceded a finding). Every decision to this point has been appealed. The mother is expecting another child imminently which means that a society will have a decision to make and the parents may well not agree with that decision leading to more litigation.

[246] This proceeding has already been subject to too much delay. N. has been in care for nearly 22 months and H for her entire life. The society's plan for the children to be placed with D.H. could be effected immediately upon expiration of the appeal period. Even if the parents exercise their right to appeal the final order to be made herein terminates the pre-trial and trial access and access to the children post-trial is in the society's discretion pursuant to s. 101 (9) of the Act. The society could use that discretion to provide D.H. and the children's three siblings with extensive access as part of a graduated plan to placement.

[247] As noted, there are other adoption placements available. The parent's request for significant in-person access pre-placement, and for an openness order with in-person access should an adoptive placement be made, will likely cause a delay in permanency planning.

Harm from being removed from parents -(x)

[248] Given the frequency of access visits with the parents that the children enjoyed the termination of such visits will likely cause the children some emotional upset. This upset is likely to be mitigated by the fact that they are able to form an attachment with another caregiver and they may be placed with siblings who also do not see their parents.

Degree of risk-(xi)

[249] The degree of risk factor is more relevant to placement than to access. However, the parents fixed belief system and their distrust of medical professionals does put the children at risk if the parents have a continuing role in their lives. I find that it is likely that the parents will not accept an adoptive parent who is not prepared to comply exactly with the parents’ religious beliefs. Furthermore, the mother said if the adoptive parents changed her childrens’ names she would not use their new names and she would find it very difficult to hear their children refer to the adoptive parent as their "Mummy'. There is a risk that the parents’ actions could work to break down an adoptive placement if they had ongoing access.

Additional considerations (s. 101 (6))

Beneficial and meaningful

[250] The wording of the CYFSA with respect to the test for post adoption access is significantly different than it was in the CFSA.

[251] In Kawartha- Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 the Court of Appeal noted the following:

a) The changes to the access test are significant (par. 47).

b) The changes are not just semantics. They represent a significant shift in the approach to access for children in extended society care (par. 48).

c) The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child's future adoption opportunities (par. 49).

d) Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant (par. 49).

e) This means that it is no longer the case that a parent who puts forward no evidence will not gain access (par. 49).

f) Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests (par. 49).

g) The court should reference the best interest considerations in subsection 74 (3) of the Act in making its decision (par.53).

h) The "presumption against access" to "Crown Wards" test no longer exists (par. 53).

[252] The Court of Appeal considered whether the CYFSA changed access for children in extended society care in Children's Aid Society of Toronto v. J.G, 2020 ONCA 415. The court wrote;

[46] The new access test is no longer a "beneficial and meaningful" test. It is now a best interests test with a statutory requirement to consider whether the relationship is beneficial and meaningful for the child as one aspect of that analysis. When a court considers a child's best interests it should consider all relevant factors, including - as I discuss below - whether past, present or future. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.

[47] By adopting a best interests test to determine access, the legislature changed the previous highly restrictive test that had tended towards termination of access between children and those important to them. Access can be now be ordered for a child in extended care if it truly is in the overall best interests of the child. The overall best interests involve a consideration of the 15 articulated factors plus "any other circumstance of the case that the person [deciding the case] considers relevant": s. 74(3)(c). Under s.105(6), whether the relationship is "beneficial and meaningful to the child" and only if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption remain relevant, but only as viewed through a global best interests lens.

[253] In this matter, there was a great deal of evidence called about the positive access visits that the parents and children enjoyed both at the society offices and ultimately at the parent's home. The access began twice a week for two hours at the society offices. In October 2019, a third visit was added with five hours of access semi-supervised at the parent's home. The society moved to minimal supervision of that access as it was going well.

[254] The parents were always on time for access and did not miss visits. They came organized for visits with games and activities and a sufficient quantity of food for the children to eat. The evidence was that the parents re-directed the children when necessary, attended to their needs and were fully engaged with the children at all times. There were frequent mutual displays of affection between the parents and the children. The children looked forward to their visits, but they easily returned to their foster mother immediately afterwards.

[255] It was very unfortunate that in-person access had to be suspended when the pandemic closed the society offices. To their credit, and thanks to the facilitation of the foster mother, the parents were able to move fairly seamlessly into unsupervised video access twice a week from the home of the foster mother.

[256] When the society opened a house as a visit centre for in-person visits in the summer the parents chose not to attend. They said they were not confident that the society could ensure that the visit centre was safe from the virus as it was used by other families. For the same reason they turned down volunteer drivers and community visits. Fortunately, V. was agreeable to meeting with the parents and exchanging the children for access once a week. When V's car needed repairs that access has to replaced by video visits. At the time of trial, the once a week in person visits had been restored with two video access visits continuing.

[257] As noted above, it is difficult to criticize any parent for decisions that they might make to protect their children from a very virulent virus. There is no doubt though that the parents continued to mistrust the society. They had not taken the position that the children should not leave the foster mother's home during the pandemic. They did not complain when she took them out to visit places over the summer period when the health risk was decreased. They were prepared to see the PGM and TM.

[258] The only COVID-19 related issue that the parents ever expressed concern about was access provided at a society location or facilitated by a society retained volunteer driver. It appears from a review of the earlier child protection cases that the parents had become far less hostile and resistant to society involvement, but they were still wary and suspicious. I find that it is very unlikely that the parents’ mistrust of the society will ever disappear.

[259] The evidence demonstrated that the children enjoyed their access visits with their parents. It also showed that the children were easily able to separate from their parents and were not upset either before or after access. The children had a very close and affectionate relationship with their foster mother.

[260] The reality of this matter is that N. was so young when he became very ill in his parent's care that he does not link events, that would have been traumatic at the time, with his care by his parents. H. was taken to a place of safety at birth. Fairly frequent, but short access has been a feature of their entire lives.

[261] The evidence was that the children enjoyed the access. The law is now clear that even if that were to mean that the current access is meaningful and beneficial that that fact is, but one of a constellation of factors that the court is now required to consider in the application of the best interests tests.

Would Impair future opportunities for adoption

[262] This factor is no longer a barrier to extended society care access, but simply a factor to be considered in the holistic review of the children's best interests.

[263] In the Catholic Children's Aid Society of Toronto v. A.P. and E.S., 2019 ONCJ 631, Justice R. Zisman considered all of the factors set out in the Act and the recent case law, and determined that it was in the best interests of the 9 month old child who was the subject of the trial regarding the father's access, not to have access with the father. At paragraph 131 and 132 of the A.P. and E.S. case, Justice Zisman discussed the attributes of a parent that may impair a child's future opportunities for adoption with reference to the decision in Children's Aid Society of Toronto v. F. (A.), 2015 ONCJ 678. She set them out as follows;

1. The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

2. The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

3. The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

4. The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

[264] The society had an obligation to find a culturally appropriate foster home and to respect the parent's religious beliefs and accommodate them wherever possible. Both the society and the parents were very fortunate that V. agreed to be the foster mother. Based upon all of the reports from other witnesses, and my own observation of her evidence, they could not have found a person more suited to this difficult situation.

[265] The parents have historically been quite confrontational with the society and medical professionals. V's personality and communication skills meant that no conflicts developed. However, the parents remained very focused on ensuring that all of their wants and needs were accommodated by the foster mother. She appeared to do so willingly and without complaint. This included not only religious beliefs like feeding the children only vegetarian food, but it extended to complying exactly to the meal plan they provided. It also extended to the proper treatment of H.'s hair, the type of diapers and wipes that must be used, the type of oil to be used on N.'s eczema and the need to only dress the children in pure cotton clothes. The society workers involved also went out of their way to cooperate and accommodate all of the parents’ demands.

[266] The role of a foster parent is much different than that of a potential adoptive parent. The foster parent provides a temporary home subject to society regulation. The foster parent is involved at a time when the society is still assessing the parents and their plans. The nature of the role requires them to adjust to changing access schedules and to help the children in their care manage their relationship with their parents. A foster parent knows that the children may be returned to the care of the parents at any time. They are not providing a permanent home.

[267] A potential adoptive parent comes forward because they do want to provide a permanent home. They will know that they have to adapt to the children's unique needs and that if there is a chance of an openness order that they will have to work with the biological parents to some extent. However, an openness order might have up to four visits a year and for young children there may only be one or two visits if any. The potential adoptive parent cannot be required to accommodate all of the parents wishes.

[268] The society has an obligation to find a culturally appropriate placement and the adoption worker thought that could be done as there were a number of approved adoption homes with Black families. She said that there were two homes where Black families practiced Islam, but there was no evidence that any putative adoptive parents were adherents of the strict tenets of the Nation of Islam.

[269] The evidence as to the parents polite and respectful relationship with V. must be viewed with some caution. Based upon other evidence I am not persuaded that it can be seen as proof that the parents would not interfere with the adoptive relationship and the attempt by the adoptive parents to create a permanent home for the children.

[270] I find that I can look at the parents' experience with D.H. for evidence of the parent's inability to put their children's needs above their own needs. D.H. is the father's cousin. She was prepared to make a plan to care for As. even when she already had the two older siblings with her.

[271] The evidence was that the father had a good relationship with D.H. until the parents were convicted and sent to jail. After their release he was still in touch with D.H. as they both remain connected to their extended family in Canada. By way of contrast the mother is estranged from all of her family members.

[272] In the previous trial the father was able to see that D.H.'s plan could keep As. from being in an adoptive placement with strangers. He felt he could work with her and have access to all of his children. The mother resented D.H. for "going overboard" and thinking she was a mother to the parents’ children. The mother was very upset that D.H. allowed the children to refer to her as "Mommy". She could not work with D.H. at all and ultimately D.H. decided that she could not work with the mother.

[273] I find that it does not really matter if D.H. could work with the father as D.H. is not prepared to make a plan with access. It was clear that the father's position was inextricably intertwined with the mothers. There was no realistic way for the father to have access with N. and H. when the mother was not having access. I find that D.H. was insightful in recognizing that it would not likely work to have the two youngest siblings having visits with their parents while the three elder ones do not have access.

[274] The parents counsel submit that the court should see the parents as being able to cooperate with any adoptive parent because they were so grateful for the care that V. had provided for their children. It was noted that the parents were not uncomfortable with the children being affectionate with V. The society submits that the historic lack of cooperation with the society and with D.H. shows that it is much more likely that the parents would interfere with the ability of an adoptive parents to bond with the children and provide a permanent home.

[275] There was evidence in this trial about the parent's secretiveness or dishonesty. There was also evidence about their litigiousness.

[276] I find that the evidence in this case contains many of the features that were identified in Children's Aid Society of Toronto v. F. (A.) I find that if the children had access to their parents it would impair future opportunities for adoption.

Summary of access issue

[277] The parents and the two children have had positive access for some time. The one thing that was certain even before this trial began is that that access would change. The decision to be made is not whether this positive pre-trial access should continue. The decision is whether it is in the children's best interests to have access to their parents electronically, by video or in person for up to four times a year.

[278] I have considered all of the best interests factors. For all of the reasons set out above I find that it is not in the best interests of the children that they have access to their parents.

ORDER

[279] The court makes final orders as follows:

With respect to the child N:

1. (a) The name and date of birth of the child is N. H. born […], 2017.

(b) the child is not a First Nations, Inuit or Metis child.

(c) the location from which the child was removed was the Regional Municipality of Peel.

2. N.H. was previously found to be a child in need of protection pursuant to subclauses 74(2)(a)(i) (ii) and 74(2)(b) (i) (ii) of the Child, Youth and Family Services Act.

3. N.H. shall be placed in extended society care.

4. There will be no order for access to the child N.H. by the Respondents M.H. and S. H.

With respect to H.:

1. (a) The name and date of birth of the child is H.H. born […], 2019.

(b) the child is not a First Nations, Inuit or Metis child.

(c) the location from which H.H. was removed was the City of Toronto.

2. H.H. is found to be a child in need of protection 74(2)(b)(i)(ii) of the Child, Youth and Family Services Act.

3. N.H. shall be placed in extended society care.

4. There will be no order for access to the child H.H. by the Respondents M.H. and S. H.

Released: January 18, 2021

Justice Philip J. Clay