WARNING

The court hearing this matter directs that the following notice should 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 the Region of Peel v. R.J.R., 2021 ONCJ 477

DATE: 2021 09 08

COURT FILE No.: Brampton 17-20068-0001

BETWEEN:

THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL Applicant,

— AND —

R.J.R. (mother) AND P.K. (father) Respondents

Before Justice Lise S. Parent

Heard on August 16, 17, 18, 19 and 20, 2021

Reasons for Judgment released on September 8, 2021

Laura Shaw...................................................................... counsel for the applicant society

Glen A. Cook ................................................ counsel for the respondent R.J.R. (mother)

Samir Patel............................................ counsel for the Office of the Children’s Lawyer

No appearance by or on behalf of the respondent P.K. (father), having been noted in default

L.S. PARENT, J.:

1: INTRODUCTION

[1] This is an amended Status Review Application (ASRA) brought by the Children’s Aid Society of Peel (Peel Society), on March 10, 2020, seeking an order that the child, R.E.R. (R.E.R. or child), born […] 2010 be placed in the custody of a maternal aunt with a right of access to the Respondents pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (CYFSA).

2: BACKGROUND

[2] On May 17, 2017, the Society brought the child and a sibling, E.H.R.R., to a place of safety in the Region of Peel. The Peel Society’s Protection Application (PA) was filed on the same day. The PA sought an order finding the children in need of protection and placing them in their care for a six (6) month period with access to family members at their discretion.

[3] Khemani, J. granted a temporary without prejudice order placing both children in the care of the Peel Society with access to their parents at the society’s discretion. Khemani, J. also ordered the appointment of counsel for both children by the Office of the Children’s Lawyer (OCL).

[4] On February 1, 2018, the Peel Society filed an Amended Protection Application (APA) seeking an order making both children wards of the Crown and placing them in their care and custody.

[5] Both children remained in the same foster home from May 17, 2017 to July 17, 2018.

[6] On July 17, 2018, both children were placed in the care of their maternal aunt, R.R., in the Niagara Region pursuant to the temporary order of Sullivan, J which varied the existing temporary without prejudice order of Khemani, J. dated May 17, 2017.

[7] The mother, R.J.R., filed two (2) Answers/Plans of Care dated September 15, 2017 and February 14, 2018. In these documents, she sought the return of both children to her care.

[8] On August 31, 2018, Clay, J. granted a temporary without prejudice order placing the child E.H.R.R. in the Society’s care following the breakdown of the placement with the maternal aunt. The child, R.E.R. remained in the care of the maternal aunt and continues to do so today.

[9] On November 14, 2018, the Peel Society filed a further Amended Protection Application (APA) seeking an order placing the child, E.H.R.R., in the extended care of the Peel Society and that the child, R.E.R., be placed in the custody of the maternal aunt, R.R., pursuant to section 102 of the CYFSA.

[10] On May 8, 2019, I granted an order noting P.K., the father of the child R.E.R., in default.

[11] On May 8, 2019, the Society, OCL counsel, on behalf of both children, and the mother signed a Statement of Agreed Facts (SAF). In the SAF, the parties and OCL agreed that the children had been removed from the mother’s care due to several protection concerns.

[12] The facts contained in the SAF underlying the protection concerns included the following:

(1) Although the family has no prior history with the Peel Society, it did have a history of involvement with the Niagara Children’s Aid Society (Niagara Society);

(2) On October 17, 2013, the mother’s two older children were made wards of the Crown with no access for the purpose of adoption;

(3) On October 17, 2013, the child, E.H.R.R., was ordered to be returned to the care of R.J.R. under a supervision order. The return to the mother’s care was to be gradual;

(4) On November 21, 2013, the child, E.H.R.R. was placed in the full-time care of R.J.R. as ordered on October 17, 2013;

(5) From February to August 2014, the Niagara Society requested the termination of its court involvement with the family;

(6) From August 2014 to February 2015, the Niagara Society provided ongoing services to the family;

(7) In October 2014, the court involvement was terminated and thereafter the file was closed as the child, E.H.R.R., had completed counselling and R.J.R. would not engage with the Niagara Society;

(8) In May 2016, the child, E.H.R.R., disclosed that R.J.R. had scratched her above the eyes during a physical altercation. The children, E.H.R.R. and R.E.R, were interviewed and reported it was an accident. The Niagara Society did not verify the concerns, but continued providing support to the family to address R.J.R.’s coping abilities, her parenting issues and the behavioural issues with the children;

(9) The children, E.H.R.R. and R.E.R, were brought to a place of safety in the Region of Peel on May 17, 2017 due to parent-child conflict between the mother, R.J.R. and the child, E.H.R.R. and incidents of inappropriate physical discipline by R.J.R.;

(10) The children, E.H.R.R. and R.E.R, were discharged from care on July 17, 2018 and placed in the temporary care of their maternal aunt, R.R., in the Region of Niagara;

(11) The maternal aunt had difficulty managing the child E.H.R.R.’s behaviour and advised that she could no longer care for the child. E.H.R.R. was moved to her previous foster home in August 2018;

(12) In March 2019, the child E.H.R.R. was moved to a different foster placement due to exhibiting self-harming behaviour and difficulty following the rules of the initial foster home;

(13) The mother, R.J.R., acknowledged that due to E.H.R.R.’s self-harming behaviour and general defiance, she was not able to present a plan at this time for the return of the child to her care;

(14) The child, R.E.R., began having weekly unsupervised community access with the mother in January 2019 which transitioned to overnight access once a month;

(15) Sibling access also was arranged when the child, E.H.R.R., returned to foster care in the Region of Peel; and

(16) The father, P.K., initially presented a plan to care for the child, R.E.R., however chose to disconnect.

[13] On these facts, on default of the father, P.K. and on consent of the mother, the Society and the OCL, there was a finding that both children, E.H.R.R. and R.E.R., were in need of protection pursuant to sections 74(2)(b)(i) and (ii) of the CYFSA, namely that the children were at risk to likely suffer physical harm in the care of their mother. This finding of risk, was made due to the mother’s failure to adequately care for, provide for, supervise or protect the children and a pattern of such failure.

[14] A final order was made on May 8, 2019 placing the child, E.H.R.R., in the extended care of the Peel Society and placing the child, R.E.R. with the maternal aunt, R.R., pursuant to a six (6) month supervision order. The order provided each child with rights of access to their mother and respective fathers.

[15] The order also provided for the statutory findings pursuant to section 90(2) of the CYFSA including that neither child was First Nations, Inuk or Metis (FNIM).

3: HISTORY OF EVENTS – AMENDED STATUS REVIEW APPLICATION PRESENTLY BEFORE THE COURT

[16] It is within this context that a Status Review Application (SRA) was filed on October 30, 2019 to review the supervision order made on May 8, 2019 regarding the child, R.E.R.

[17] The initial SRA requested a further order of four (4) months supervision with R.E.R. remaining in the care of the maternal aunt with access to the Respondents at the discretion of the Peel Society taking into consideration R.E.R.’s wishes.

[18] The concerns outlined by the Peel Society in the SRA were:

(1) conflict between the maternal aunt and the mother;

(2) the maternal aunt’s co-operation with the society in making the child available for meetings with society workers;

(3) the maternal aunt’s commitment to access between R.E.R and her mother; and

(4) safety concerns of the maternal aunt regarding access visits including allegations that the mother was using drugs, was not able to care for the child, the behaviour of E.H.R.R. towards R.E.R. including disclosures by R.E.R. that her sibling has put a pocketknife in her overnight bag and tapped her to a chair while threating her with a knife.

[19] The safety concerns of the maternal aunt were not verified by the Peel Society. However, the SRA was seeking an order of further supervision to create, test and potentially implement a possible reunification plan for the return of R.E.R. to her mother’s care.

[20] On March 11, 2020, the Peel Society filed an Amended Status Review Application (ASRA) returnable on March 18, 2020 requesting an order that the child, R.E.R., be placed in the custody of the maternal aunt with rights of access to the Respondents and sibling, E.H.R.R. pursuant to section 102 of the CYFSA.

[21] On March 18, 2020, the mother filed her Answer/Plan of Care seeking an order returning R.E.R. to her care.

[22] The father, P.K., did not participate in the court appearances, including the trial, of the ASRA. The father was noted in default by the order of Clay, J., dated June 24, 2020. Evidence however was heard at trial that P.K. does have contact, facilitated by the maternal aunt, to R.E.R.

[23] The trial proceeded for five (5) days. The evidence was presented in both documentary form and oral testimony by witnesses appearing in-person and remotely by videoconference.

[24] The Peel and Niagara Society workers’, namely Alauna Pierce-Watson, Halisha Johnson, Laura Rossi-Diorio, Jordin Carriere and Victoria Carlson, direct evidence was presented by affidavits and they were subject to cross-examination.

[25] The child protection workers called as witnesses all testified that their respective affidavits were based on information taken from their case notes, that these case notes were made by each of them immediately following or shortly after their contact with the child, R.E.R., the maternal aunt, R.R., the mother, R.J.R., the youth, E.H.R.R. or any other person and not altered after being made.

[26] Ms. Pierce-Watson, Ms. Johnson, Ms. Rossi-Diorio testified that their respective affidavits filed at Tabs 1, 2, and 3 of the Peel Society Trial Affidavit Brief, filed as Exhibit 1, remained accurate as to their evidence.

[27] Ms. Jordin Carriere testified that the following three (3) corrections were required to her affidavit sworn July 9, 2021, filed at Tab 4 of Exhibit 1, namely:

1. Paragraph 2 – correction to commencement date as the family Kinship Services worker should read on or about July 20, 2018 and not October 18, 2017;

2. Paragraph 25 – correction to first sentence should read between July 2018 and December 2018 and not December 2019;

3. Paragraph 44 – correction to last sentence should read “I interviewed [R.E.R.] and she did not disclose concerns with [the mother] being under the influence of substances during her visits.

[28] Ms. Victoria Carlson testified that one (1) correction was required to her affidavit sworn July 9, 2021 filed at Tab 5 of Exhibit 1, namely:

1. Paragraph 8 – correction to first sentence should read “On February 24, 2021, I attended at [the mother’s] friend’s home during her visit with [R.E.R.].

[29] Following their respective corrections read into the court record, both Ms. Carriere and Ms. Carlson accepted their amended affidavits as being accurate.

[30] The child protection workers’ affidavits did introduce statements by R.E.R. on the issues of continued risk, placement and access. The statements were not objected to by counsel. Even in the absence of objections, I find that these statements meet the threshold requirement of necessity, given R.E.R.’s age, and reliability in view of the detailed evidence as contained in the affidavits outlining the circumstances surrounding the making of each statement by R.E.R.

[31] The evidence of the OCL clinician, Jacquie Iafrate, was also presented by affidavit and she was subject to cross-examination.

[32] Ms. Iafrate testified that her affidavit sworn July 16, 2021, filed as Exhibit 4, is based on information taken from her case notes, that these case notes were made by her immediately following or shortly after her contact with R.E.R and not altered after being made.

[33] Ms. Iafrate testified that her affidavit required the following two (2) corrections:

1. Paragraph 10 – correction to the second sentence to read “…and there would be a big dinner at her grandmother’s home” and not the uncle’s home; and

2. Paragraph 36 – correction by removing the word current as an adjective to the reference to “e-learning curriculum.”

[34] Following her corrections read into the court record, Ms. Iafrate accepted her amended affidavit as being accurate.

[35] The OCL counsel introduced statements by R.E.R. in the clinician’s affidavit as to the child’s views and preferences on the issues of placement and access. The statements were admitted on consent as having met the threshold requirement of necessity, in view of R.E.R.’s age, and reliability in view of the detailed evidence as contained in the affidavit outlining the circumstances surrounding the making of each statement by R.E.R.

[36] I accept counsel’s consent as being supported by the evidence on the issues of necessity and reliability.

[37] Submissions were not made as to the ultimate reliability of R.E.R.’s statements. I find that these statements meet the requirements of ultimate necessity and reliability for the following reasons:

1. The child protection workers, although not neutral, testified as to their extensive educational qualifications and significant years of professional experiences. I therefore accept their respective evidence, as contained in their affidavit and given during their testimonies, regarding statements made by R.E.R. to each of them during their role as an involved worker with this family; and

2. Ms. Iafrate is a neutral third party with fifteen (15) years of empanelment with the OCL in addition to being a registered social worker. I accept her testimony that she has many years of experience interviewing children in both her professional capacities.

4: THEORY OF THE PARTIES

[38] It is the theory of the Peel Society’s case that R.E.R. continues to be a child in need of protection for the following reasons:

a) the risk of emotional harm due to exposure to the longstanding and intensive sibling conflict between her mother and her maternal aunt;

b) although the mother currently is in a relationship, she has an extensive history of financial and housing instability which is likely to resume should this relationship end given her economic reliance on her partner; and

c) the resurgence of financial and housing instability increases the risk of the resumption of drug use by the mother.

[39] It is the theory of the Peel Society that the mother has been unable to provide stability and consistent care to R.E.R. This has resulted in R.E.R. being in the care of two child protection agencies, namely Peel and Niagara, for 539 days and with her maternal aunt since July 2018.

[40] It is the theory of the Peel Society that the mother, due to her parenting limitations, is unable to care for R.E.R. The Peel Society recognizes that their initial protection concerns regarding the mother’s drug use, housing instability, and anger management do not appear to be in significant existence currently. However, the mother is completely reliant on her current partner to address her financial and housing needs. The Society’s theory is that instability and drug use concerns may re-surface should this relationship end. Furthermore, the mother is unable to support, despite her initial consent, acceptance that the maternal aunt has been the only consistent and primary parent figure to R.E.R. since July 2018.

[41] The Peel Society submits that it is in R.E.R.’s best interest that there be a permanent order in place to end the protracted child welfare litigation for her and provide R.E.R. with assurances that she will remain in the care of the maternal aunt, which is where she has indicated she wishes to live, and have access to her parents.

[42] The Peel Society accepts that the mother and R.E.R. do enjoy access visits. The Peel Society submits that terms of access are in R.E.R.’s best interests. The Peel Society seeks an order specifying terms of access, including frequency, duration, location, and transportation responsibilities, given concerns that the maternal aunt has, at times, not fully encouraged R.E.R. to visit with the mother. The Peel Society submits that the maternal aunt will respect a court order which sets out the access terms.

[43] It is the theory of the OCL that R.E.R. continues to be a child in need of protection as submitted by the Peel Society. OCL counsel submits that R.E.R. has been consistent and clear in her views and preferences that she wishes to remain in the permanent care of her maternal aunt and have access with both her parents. The OCL supports that the best interests of R.E.R. is an order placing her in the care of the maternal aunt pursuant to a section 102 CYFSA custody order.

[44] It is the theory of the OCL, however, that any order regarding access should be left to R.E.R.’s discretion. OCL counsel submits that although R.E.R. enjoys access with her mother, she has clearly expressed a view that she wishes to decide when these visits are to occur given her school obligations, desire to spend time with her friends and her mother’s and her sister’s behaviour and actions during these visits.

[45] It is the theory of the mother that R.E.R is no longer a child in need of protection and should be returned to her care immediately. In the alternative, the mother supports the Peel Society’s position that an order for specified access terms be granted should an order be made pursuant to section 102 in favour of the maternal aunt.

[46] The mother submits that the pattern of housing instability, drug-use, and anger management no longer exists. The mother submits that she is in a stable relationship where her partner supports her commitment to her children. The mother submits that she has demonstrated throughout her consistent access time with R.E.R. that she is able to care for her child, without concern as to her safety, and ensuring all of her needs are met.

5: STATUTORY FRAMEWORK AND LEGAL PRINCIPLES

[47] The Peel Society’s application is brought pursuant to section 113 of the CYFSA.

[48] The Peel Society filed, and the court considered, the society's plan of care pursuant to section 100 of the CYFSA. That plan is consistent with the position it took at trial.

[49] Section 114 of the CYFSA provides that where a status review application is made under section 113, the court may, in the child's best interests, vary or terminate the original order made under subsection 101(1), make a further order under subsection 101(1) or make an order under section 102 of the CYFSA.

[50] Subsection 101(1) of the CYFSA provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future. The importance of taking this step in a status review application was set out by the Ontario Court of Appeal in Children's Aid Society of Oxford v. W.T.C., 2013 ONCA 491.

[51] The disposition sought by the Peel Society, and supported by the OCL, is for a custody order to be granted to the maternal aunt pursuant to section 102 of the CYFSA. The court is not limited to this disposition as an order could be granted pursuant to all options under section 101(1) including placing R.E.R. in the care and custody of her maternal aunt or mother subject to the supervision of the society for a further specified period of time of at least three (3) months and not more than twelve (12) months.

[52] Sections 101(2) and (3) of the CYFSA states as follows:

Court to inquire

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.

Less disruptive alternatives preferred

The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

[53] In determining the appropriate disposition under section 114 of the CYFSA, the court must decide what order is in the child's best interests. The court must consider the criteria set out in subsection 74(3) of the Act in making this determination which provides as follows:

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

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

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

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

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

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

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

iv. the child’s cultural and linguistic heritage,

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

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

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

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

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

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

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

[54] Subsection 101(8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act. In this case, that is the mother, R.J.R.

[55] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[56] Counsel for the Peel Society and for the mother, both directed the court to consider the decision in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.) 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 and submitted that this decision is the leading authority on status review applications. At page 74 of its decision, the Supreme Court stated:

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

Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place.

The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child’s desires, which the Act [Child and Family Services Act] contemplates as well.”

[57] Although the child protection legislation in Ontario has been amended since the release of M.C., I agree with counsel that the principles stated by the court remain relevant.

[58] In determining if a protection order is necessary to protect a child in the future, the importance of emotional ties between a child and the child's caregiver is, as stated in M.(C)., an important consideration.

[59] At paragraphs 134 and 136 of her decision in Children's Aid Society of Toronto v. H.F., 2020 ONCJ 526, Zisman, J. states as follows:

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

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

[60] With respect to access, section 104(1) of the CYFSA provides that the court may, in the child’s best interests, make, vary or terminate an access order in a proceeding under Part V of the Act (Child Protection) or on application under section 104(2).

[61] Section 104(3) must also be considered in cases where the court determines that a custody order should be granted pursuant to section 102:

If a custody order is made under section 102 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 will not be in the child’s best interests.

[62] In Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 (C.A.), Benotto J.A., at paragraph 64, adopted a wide definition of the concept of access, including the exchange of gifts, emails, video chats or phone calls, and that the form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes.

[63] In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630, the Divisional Court, at paragraph 38, confirmed that pursuant to section 104, it is the court that is to impose terms and conditions respecting access and that this role is not to be delegated and must included minimum terms of access “…as the court considers appropriate.”

6: ISSUES TO BE DETERMINED

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

1. Is there a continued need for protection for R.E.R.?

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

3. If there is a finding that R.E.R. be placed in the custody of her maternal aunt pursuant to section 102 of the CYFSA, what terms of access should be granted to the mother, the father and the sibling E.H.R.R.?

7: ANALYSIS

Issue 1 – Does R.E.R. continue to be a child in need of protection?

[65] The initial finding in need of protection pursuant to the SAF accepted by the court on May 8, 2019 was based on section 74(2)(b)(i) and (ii), namely the risk of physical harm due to the mother’s failure to adequately care for, provide for, supervise or protect R.E.R. and a pattern of neglect in caring for, providing for, supervising or protecting her child.

[66] I am satisfied that the initial concerns regarding risk of physical harm due to the mother’s failure and pattern of neglect continues to exist today.

[67] The child protection workers, namely Ms. Laura Rossi-Diorio, Ms. Jordin Carriere, Ms. Halisha Johnson. Ms. Victoria Carlson, Ms. Alauna Pierce-Watson, all involved with this family following the May 8, 2019 order provided evidence that ongoing protection concerns exist regarding:

(a) The use of illegal substances by the mother during access visits as reported by R.E.R, the maternal aunt and an anonymous caller;

(b) Police involvement due to conflict between the mother and the maternal aunt and also, the child, E.H.R.R. and the mother;

(c) R.E.R. engaging in behaviour simulating bruising and cutting with the involvement of her older sibling during access visits with her mother;

(d) Disclosures by R.E.R. that her older sibling had tied her to a chair with duct tape and threatened her with a knife during an access visit at her mother’s home on October 1, 2019;

(e) Conflict between the mother and E.H.R.R. during access visits when R.E.R. is present;

(f) Disclosures by R.E.R. that both her mother and E.H.R.R. were telling her to be “bad” so that the placement with her maternal aunt would break down and she could then return to her mother’s care or a foster home;

(g) The mother and the maternal aunt have disclosed observing cuts on R.E.R.’s arms;

(h) R.E.R. denying cutting her arms but showing only her right arm to the involved child protection worker, which had no cuts, but refusing to show her left arm;

(i) Concerns that R.E.R. was being left in the care of a maternal uncle who was known to have a substance abuse problem;

(j) Concerns regarding both the mother and the maternal aunt’s commitment, follow through and support of R.E.R. relationship with each of them, including access visits;

(k) The potential re-emergence of housing transiency, drug use and financial concerns should the mother’s current relationship end;

(l) Anger management issues of the mother such as displays of aggressive behaviour and use of offensive language towards the maternal aunt; and

(m) Anger management issues of the mother, specifically the use of racial slurs, when addressing certain child protection workers.

[68] The OCL clinician, Ms. Iafrate, testified that:

(a) R.E.R. reported feeling scared of her sibling, E.H.R.R., as she would hit her, and punch her during access visits at her mother’s home;

(b) R.E.R. reported that E.H.R.R. was rude to her and called her names during access visits at her mother’s home;

(c) R.E.R. she did not trust E.H.R.R.;

(d) R.E.R. reported that there was nothing uncomfortable or unsafe about her mother, but it would be easier if E.H.R.R. was not at the visits all the time;

(e) R.E.R. reported that she was getting along better with her sibling, but that she had no clue what happened or what prompted the improvement in E.H.R.R.’s behaviour;

(f) R.E.R. reported her mother’s yelling as unpredictable, unprovoked and that she finds the screaming loud;

(g) R.E.R. reported not trusting her mother and that her mother lies to her;

(h) R.E.R. described her mother as being angry the majority of the time and rated the frequency of her anger to be 70/100;

(i) R.E.R. reported that her mother brings out her own anger and that she now feels angry towards her mother which she ranked as 9/10 times;

(j) R.E.R. described her mother as loving to insult people and ignore strangers; and

(k) R.E.R. reported that her mother steals, has asked her to steal and her mother getting mad when she refuses to do so.

[69] The maternal aunt in her evidence testified that:

(a) The mother, R.J.R., directed R.E.R. to videotape her bedroom, her drinking alcohol and to copy her banking information;

(b) Had safety concerns for R.E.R. during access visits due to the mother being under the influence of illegal substances and alcohol abuse and not adhering to provincially mandated COVID protocols;

(c) The mother, attends at her home unannounced and is disruptive to the point of the police being called;

(d) The mother treats her children like friends rather than her children;

(e) The mother speaks ill of her and the maternal grandmother to R.E.R. and E.H.R.R.; and

(f) The mother has refused to bring R.E.R. back to her at the end of an access visit thereby resulting in police involvement.

[70] The mother in her evidence:

(a) denied any use of illegal substances even in the face of a urine drug-testing result revealing the presence of such substances being introduced as an exhibit at trial;

(b) denied influencing R.E.R. to sabotage her placement with the maternal aunt;

(c) denied leaving R.E.R. alone in the care of her maternal uncle, who she acknowledged having a substance abuse problem, but allowing in-person contact between them;

(d) denied discussing the maternal aunt with R.E.R.;

(e) did not recall which words she used with the child protection workers, but acknowledged that to her these workers “…took away her kids and told her what to do”;

(f) acknowledged that E.H.R.R. has “hidden aggressions”;

(g) acknowledged that the relationship with E.H.R.R.’s father involved domestic violence;

(h) admitted a history of housing transiency and financial instability however stated that these concerns no longer exist due to her current relationship;

(i) recalls signing the SAF in May 2019, but testified that she did not read it;

(j) denied the incident that E.H.R.R. duct taped R.E.R. to a chair, but acknowledged that “…some stuff happened by not the chair as I was there”;

(k) denied that she yells at or hits her children, but rather gives them time outs as a method of discipline;

(l) acknowledged that R.E.R. and E.H.R.R. take pictures of themselves playing dead;

(m) claimed that the maternal aunt and her partner’s aunt make up allegations against her and she does not know why they or anyone else is doing this; and

(n) presented a parenting plan for R.E.R involving her current partner and his parents’ support. She describes her relationship with her partner as stable; therefore, an alternate plan in the face of the end of her relationship was not needed as such a situation would not arise.

[71] I am further satisfied that the evidence supports a determination that R.E.R. continues to be a child in need of protection as she has suffered emotional harm as defined under section 74(2)(f) of the CYFSA.

[72] The child protection workers, namely Ms. Laura Rossi-Diorio, Ms. Jordin Carriere, Ms. Halisha Johnson. Ms. Victoria Carlson, Ms. Alauna Pierce-Watson, all involved with this family following the May 8, 2019 order provided evidence that the conflict between the mother and the maternal aunt is at a high and consistent level, is a relationship which can be characterized as having an absence of trust and respect, and that there are concerns surrounding the exposure of R.E.R. to this conflict resulting in anxiety and self-harming behaviour being demonstrated by R.E.R.

[73] The evidence of Ms. Rossi-Diorio is that the mother advised her on March 16, 2021 that R.E.R.’s attitude was changing, that she was “bitchy”, did not want to speak with her and flinching when being touched by her.

[74] The maternal aunt testified becoming recently aware that R.E.R. was engaging in self-harming behaviour and that she spoke to the Niagara Society workers, and also R.E.R. about this. She testified that R.E.R. disclosed to her that she cut herself while at her mother’s home as E.H.R.R. showed her how to do this.

[75] The OCL clinician, Ms. Iafrate, testified that:

(a) R.E.R. reported feeling scared about how mad her mother might become and worried that her mother might bully her at her next visit once being told about her wishes to continue living with her maternal aunt;

(b) R.E.R. reported that her mother is a lot more negative than her aunt and that she finds her mother to be her biggest stress;

(c) R.E.R. indicated not having thoughts of self-harm, but admitted to having cut or scratched herself during an access visit in 2021 at the demand of her sibling, E.H.R.R.;

(d) R.E.R. reported that her mother says her father is a “big jerk”, uses “swear words when speaking about him,” questions her why she loves him and claims that he is an “a-hole”;

(e) R.E.R. disclosed that she feels it is best not to tell her mother about contact with her father;

(f) The evidence from the maternal aunt, the mother and her partner, A.T., was consistent in demonstrating the high conflict relationship between the mother and the maternal aunt. Specifically:

i. The maternal aunt testified not getting along with the mother since 2008 and that they have “no relationship at all”;

ii. The mother testified that the maternal aunt and grandmother “treat me like sh*t” so she chooses not to be around them;

iii. The mother testified that she does not see herself as having anger issues although she does get angry, she “can control it better now” than when she was of school age; and

iv. The mother’s partner, A.T., testified seeing the conflict between the mother, R.J.R. and the maternal aunt, R.R. and knows that the mother hates her sister.

[76] In conclusion and for the reasons detailed above, I find that the evidence supports a determination that the child R.E.R. continues to be at risk of physical harm and emotional harm resulting from the actions, failure to act and/or pattern of neglect by her mother R.J.R.

Issue 2 – What disposition is in R.E.R.’s best interests?

[77] Having concluded that R.E.R. continues to require protection, it is necessary to address what order is in her best interests.

[78] The Peel Society’s plan with respect to R.E.R. is that she remain in the care of her maternal aunt under a custody order with specified terms of access to the Respondents pursuant to section 102 of the CYFSA.

[79] The maternal aunt, R.R., consents, through her testimony, to R.E.R.’s continued placement with her. She further testified that she will respect all terms of an order made by the court regarding contact between R.E.R. and her parents.

[80] The maternal aunt testified that:

a) she remains willing and capable to care for R.E.R. on a full-time basis,

b) she has resided the Niagara region at her current address for almost nine (9) years and has no plans to move unless required to do so as it is subsidized housing;

c) in addition to R.E.R., she lives with her daughter, who is twenty-three (23) years of age. Her son, who is twenty-two (22) years of age, also lives with her at times and is doing so currently;

d) R.E.R. has been attending the same local school near her home since being placed in her care. She testified that R.E.R. has lots of friends at school and in their community;

e) she had prior contact with the Niagara Society in 2007/2008 and their concerns were her custody battle surrounding her children and abuse of prescription drugs. She testified that she addressed her prescription drug addiction by attending a program at a methodone clinic, and that she has not used any drugs since R.E.R. has been in her care in 2018 and possibly before that time;

f) she has a criminal record with the most recent charge being in 2009 for shoplifting. A police vulnerable check was filed as Exhibit 1;

g) she presented a plan to care for R.E.R. and E.H.R.R. as they were “...her nieces and she was just getting to know them”;

h) she testified that she knew it would be hard to have R.E.R. and E.H.R.R. in her care as their mother is “not an easy person to get along with”;

i) she testified that she and R.J.R. have not had a relationship since 2018, and have not gotten along since 2008 when R.J.R. sided with her ex-husband in the custody dispute for her children;

j) she testified that she has always had and continues to have safety concerns regarding the access visits for R.E.R. as R.J.R. does drugs, is an alcoholic, she speaks ill of the maternal grandmother to R.E.R. and E.H.R.R., has anger issues and does not have a “mother’s instinct” as she treats her children like friends;

k) she testified that she has had to call the police on three (3) occasions due to R.J.R. refusing to return R.E.R. after an access visit and coming to her home without permission and screaming R.E.R.’s name;

l) she acknowledged the incident over Easter when she threw a basket of treats brought by R.J.R. for R.E.R. on the roadway. She testified that she was angry as R.J.R. arrived late at night despite being told not to come. She testified that R.E.R. did not see this conflict and that she regrets that she let her anger get the better of her;

m) she testified that she is concerned that the mother remains unstable as she has received information that the mother’s current partner was involved in domestic violence in his prior relationship, that the mother is using drugs, and the mother does not have a vehicle;

n) she testified that some visits between R.E.R. and her mother did not proceed given her concerns; however, she did not recall cancelling any visits except Christmas last year;

o) she testified that since early 2021, R.E.R. has visited her mother as “she knows she has to”;

p) she testified that she does not recall telling R.E.R. that she did not have to go on access visits with her mother;

q) she testified that she “will do what is necessary to make sure the visits go ahead.” She testified that her participation in mediation “helped a lot” to understand that her role is to support R.E.R.’s relationship with her mother;

r) she testified that she tells R.E.R., when she says she does not want to go on a visit, that she must go. She acknowledged that prior to mediation, she did not say that to R.E.R. She testified that when she says this, R.E.R. knows that she means it;

s) she testified that she has driven R.E.R. to visits with her mother in the past and continues to be willing to do so;

t) she testified that she agrees that R.E.R. is old enough and mature to decide when she sees her mother;

u) she denies speaking ill to R.E.R. about her mother or trying to stop their relationship; and

v) she has never used the removal of access visits and/or telephone calls with R.J.R. as a punishment to discipline R.E.R.

[81] The OCL supports the position of the Peel Society regarding R.E.R. remaining in the care of the maternal aunt under a custody order, but with any access to be at R.E.R.’s discretion.

[82] Ms. Iafrate testified that:

a) R.E.R. hates conflict, wishes it to end and wants everyone in her family to get along;

b) R.E.R. feels “stuck in the middle,” and that she is clear that her mother does not get along with her own family;

c) R.E.R. is concerned about hurting her mother’s feelings;

d) both her mother and her aunt are very important to R.E.R.;

e) R.E.R. has been consistent in her views about wanting to stay with her aunt, that these views are independently made and that she has not seen anything during her involvement in this matter to suggest that R.E.R. is being influenced directly or indirectly in expressing these views and preferences;

f) R.E.R. has not said or shown anything to suggest that she is fearful of her aunt or worried about disappointing her;

g) it is hard for R.E.R. to discuss her relationship with her sibling, E.H.R.R.;

h) She has concerns if the maternal aunt is granted sole decision-making responsibility given the conflict between R.J.R. and R.R However, that R.E.R. is mature and articulate;

i) R.E.R. views her mother as her biggest stress as R.J.R. is negative in general and specifically against the maternal family members;

j) R.E.R. stated that her mother speaks more negatively about things than her aunt;

k) R.E.R. is doing well at the local school she has attended since being in her aunt’s care;

l) That R.E.R.’s current school is a smaller one so this assisted in R.E.R. transitioning to this learning environment;

m) that from December 2019 to May 2021, R.E.R. did discuss about how she considered living with her mother and envisioned herself doing so. However, even during this period and currently, R.E.R. has been consistent that she wishes to remain living with her aunt; and

n) that R.E.R.’s views and preferences should not be dismissed by the court.

[83] The mother’s plan for R.E.R. is that she be returned to her care without the need of a court order.

[84] The mother has pled in her Answers/Plans of care that she would have R.E.R. return to her care pursuant to a supervision order. Details of such an order were not presented during her evidence.

[85] The mother has testified that if R.E.R. is not returned to her care, she supports the position of the Peel Society regarding specified terms of access with the addition that weekly visits can be at the discretion of R.E.R.

[86] In her testimony, the mother acknowledged her pattern of inability to obtain and keep appropriate housing for R.E.R., and her other children, and her financial challenges. She testified that she has been unable to secure and keep an independent residence until August 15, 2020 when she and her partner, A.T., rented the lower apartment in a house in Niagara Falls.

[87] Prior to the Niagara Falls residence, the mother testified that she resided in a shelter, shared accommodations, friends’ homes, short term rental units and A.T.’s parents’ home. R.J.R. testified that these frequent moves resulted in R.E.R. being in daycare and three (3) different schools.

[88] The mother testified that she is currently unemployed and in receipt of governmental assistance. She testified that her last employment was in a greenhouse approximately ten (10) years ago. She testified that she is hoping to obtain employment and is working with someone from Ontario Works to create her resume and look for employment.

[89] The mother acknowledged that her pattern of housing transiency and financial challenges resulted in all of her children being placed in foster care and/or with a family member.

[90] The mother testified that she is now stable, both financially and in her housing needs. She testified that she is fully capable to care for R.E.R. without concern. She presented the following parenting plan:

a) R.E.R. to remain in her current school in the Niagara Region as she would use A.T.’s parents’ address which is in her current school’s catchment area. The use of this residential address would be disclosed to the school by her;

b) A.T. would bring R.E.R. to school every day as his place of employment is nearby;

c) If assistance is needed for before or after school care, she has spoken to A.T.’s parents and they have agreed to assist;

d) R.E.R. would be followed by R.J.R.’s family physician in the Region of Peel who agreed, when asked in the past, to take R.E.R. as a patient;

e) R.E.R.’s dental needs could be met by R.J.R.’s dentist in the Region of Peel although this request has not yet been made; and

f) Neither she nor A.T. have any intentions of leaving their current residence in Niagara Falls, which is ample in size to provide for them, R.E.R. and E.H.R.R. when she visits.

[91] I find that the parenting plan presented by R.J.R. raises of concerns regarding stability. Specifically:

a) R.J.R. testified that she relies on A.T. financially given her limited income;

b) Conflict has arisen with the tenant, who is A.T.’s aunt, who resides in the upper apartment of the Niagara Falls house. R.J.R. testified that the aunt has called the landlord and the Niagara Society with concerns about them;

c) R.J.R. has permitted her brother, J.R., whom she acknowledges uses drugs, to attend at her home. R.J.R. testified that she does not allow him to see R.E.R. or E.H.R.R. if he is under the influence of drugs. She testified that she “can tell when he is using”. She denied the allegations that J.R. resides with her;

d) R.J.R. testified initially that she does not use any illegal or prescription drugs, but uses marijuana. She testified that the positive test introduced as Exhibit 3 at trial occurred due to her taking anti-depressant and two (2) other medications. She testified that she has not taken any drugs since this test;

e) R.J.R. testified that she is not certain who are R.E.R.’s friends and has no contact information for any of them;

f) R.J.R. testified that she has been in a relationship with A.T. for approximately two (2) years and this relationship is stable and is not likely to end;

g) R.J.R. did not agree during her testimony that if R.E.R. was returned to her care, it would be harder to limit her exposure to conflict with the maternal aunt;

h) R.J.R. did not agree during her testimony that should her current relationship end, it would be difficult to care for R.E.R.;

i) R.J.R. acknowledged that should a breakdown of her current relationship with A.T. occur she would not have the money to cover her current rent and other living expenses. When asked what her plan would be should a separation occur, she testified that she might need to stay with friends;

j) R.J.R.’s testimony was that she would be happier if R.E.R. was with her;

k) R.J.R. testified that she and A.T. do not argue about finances, domestic responsibilities or time with family and when arguments do occur, they are not in front of the children;

l) R.J.R. acknowledged that she suffers from situational depression and sleep disorder. She testified that the medication prescribed to her was to assist her in focusing, and that she stopped taking the drugs in 2019 without medical consultation or direction;

m) R.J.R. testified that she has not been depressed in the last six (6) months;

n) R.J.R. denied having anger issues as when she gets angry, she can control her anger better now than when she was of school age; and

o) R.J.R. testified that she does not have a plan for R.E.R.’s care if she obtained employment. She testified that she has friends who could help.

[92] I am further satisfied from hearing the testimony of R.J.R.’s partner, A.T., that the current home environment he shares with R.J.R., which he also describes as stable, could be impacted by certain factors:

a) A.T. testified that has two (2) children from his prior relationship. He testified that his youngest child, who is sixteen (16) years old, has never met R.J.R., and has never stayed over at the home he shares with her;

b) A.T. testified that he has a civil relationship with his former partner, that he does not pay child support as if there is a need for something for the children, they share the costs; and

c) A.T. testified that prior to his separation with his former partner, the local child protection agency was involved with his family as he “smacked” his eldest child for being “mouthy to his mom, me and everyone.

[93] In conclusion, I find that the evidence presented by R.J.R. is lacking to support her statement that she is stable and fully capable to care for R.E.R.’s needs without concerns arising.

[94] R.J.R. is in a relatively new relationship with A.T. Her parenting plan is heavily reliant on this relationship to continue, which it may. However, I find that given the history of transiency and financial challenges faced by R.J.R., during which she had care for both R.E.R. and E.H.R.R., the return of R.E.R. to her care is premature at this time.

[95] I draw this conclusion after considering A.T.’s testimony in addition to the testimony of R.J.R.

[96] A.T. testified that:

a) should R.E.R. be returned to R.J.R.’s care, he “hopes to be involved in decisions,” and that currently, he “does not boss her around but is kinda like a parent”;

b) he currently covers all expenses as R.J.R. contributes only the money she receives through Ontario Works;

c) R.J.R. did say R.E.R. was “bitchy” but that he would not use physical discipline as he knows not to; and

d) should he and R.J.R. separate, he would continue to assist her financially.

[97] The evidence strongly suggests that should R.E.R. be returned to her mother’s care, this will create new dynamics between R.J.R. and A.T., which they will have to address.

[98] These dynamics include A.T.’s testimony of wanting to be involved in the decisions taken for R.E.R. and addressing the continuation of his youngest child’s refusal to have contact with him. Also, A.T. would need to assume all the financial responsibility for R.E.R. which is a higher financial obligation than her currently has.

[99] The evidence before me demonstrates that conflict between R.J.R. and A.T. has already occurred in the context of R.E.R. returning to her mother’s care.

[100] The evidence is clear that A.T. was asked by various society workers, with the most recent request made by Ms. Rossi-Diorio on March 16, 2021, to produce a police vulnerable check verifying an absence of a criminal record. A copy of this document was not produced at trial.

[101] A.T. testified that he recently received an e-mail confirming the completion of the police vulnerable check and that the document would be mailed to him and the Peel Society within seven (7) days. He acknowledged that this document has been requested by the Peel and Niagara Societies for some time and finally attended to the matter only due to R.J.R.’s instance.

[102] I further find that both R.J.R and A.T. minimized the conflict between R.E.R. and E.H.R.R. during access visits. Specifically, R.J.R. testified:

a) he has never seen any conflict between R.E.R. and E.H.R.R.;

b) there is conflict between R.E.R. and E.H.R.R., however, that “now it is pretty calm”;

c) there is no need to discipline R.E.R. and that she has never disciplined any of her children or yelled at R.E.R.; and

d) that E.H.R.R. has “hidden aggression”, the siblings wish to see one another, but conflict occurs and when it does occur, she tries to “sit with them and deal with them”.

[103] On this issue, I accept the detailed evidence of the child protection workers and Ms. Iafrate which supports that conflict, which at times includes physical altercations, between R.E.R. and E.H.R.R., exists historically and currently between them and that this has been seen by their mother.

[104] I am also concerned about R.J.R.’s statement namely that she is at trial “…because she will not give the satisfaction to her sister of having custody.” This statement does not demonstrate an ability to place her child’s best interests before her own dislike of her sibling.

[105] I further find that this testimony by the mother does not support the declaration by R.J.R. that she does not discuss the maternal aunt with R.E.R.

[106] I find that evidence of the mother regarding her absence of anger management, behaviour to sabotage R.E.R.’s placement with the maternal aunt, level of conflict between R.E.R. and E.H.R.R. and her ability to manage these behaviours is not credible.

[107] The evidence before me overwhelmingly supports the conclusion that it is in R.E.R.’s best interest that she remain in the care of her maternal aunt pursuant to a section 102 custody.

[108] My conclusion that an order placing R.E.R. in the care and custody of her maternal aunt is in her best interests is based on the evidence supporting:

a) the longstanding nature of the protection concerns that I have detailed above;

b) their potential resurgence of some or all of these protection concerns should her current relationship end,

c) the mother’s inability to address these concerns fully;

d) the mother’s inability to present a parenting plan that permits her to fully provide for R.E.R. as an independent primary provider;

e) the mother’s unwillingness to recognize the role of the maternal aunt as a stable parent to R.E.R. since July 2018;

f) the mother’s inability to acknowledge the challenges in the relationship between R.E.R. and E.H.R.R.;

g) the mother’s inability to recognize the impact of changing R.E.R.’s current home environment on her school and her community; and

h) the mother’s unwillingness to recognize and accept that R.E.R.’s aunt and grandmother are important to her.

[109] I have also considered R.E.R.’s views and wishes, and the weight that I should give them having regard to her age and maturity.

[110] Ms. Iafrate testified that R.E.R. is “creative, funny, sassy, strong in her option, vocal about her views, inquisitive and has a strong love of animals.” She has testified that R.E.R. has been consistent in her views to wish to remain permanently with her maternal aunt to remain at her current school and in her current community where she has many friends.

[111] The maternal aunt described R.E.R. as being “funny, really stubborn and a ten year old who acts like a forty year old when she talks.”

[112] The mother agreed in her testimony that R.E.R. is capable of expressing her own views and preferences and has told her directly that she wishes to stay with her aunt. R.J.R. added however that she believes R.E.R. said this due “to being under pressure from other things” but did not provide any further details to support this statement.

[113] Although R.E.R. loves her mother, she has clearly indicated that she does not wish to return to her care. R.E.R. has expressed her views and preferences to Ms. Iafrate, several of the involved child protection workers, her maternal aunt and even her mother, despite a fear of hurting her.

[114] It is apparent from the evidence that R.E.R. is a sensitive, caring and somewhat insightful just recently turned eleven (11) year old who recognizes that, with the many hardship she has experienced in her young life, she has gained a level of stability since being placed in the care of her aunt in July 2018.

[115] Having regard for these considerations, including the absence of evidence other than the mother’s statement that R.E.R. has been influenced, I find that it is appropriate to give significant weight to R.E.R.’s views and wishes.

[116] I have carefully considered the evidence regarding RE.R.’s emotional ties to her maternal aunt, cousins, grandmother and her father.

[117] It is clear from the evidence regarding the mother’s behaviour, that despite testifying that she will facilitate the relationship between R.E.R. and her father and the maternal members of her family, she was unwilling to do so when R.E.R. was in her care.

[118] The mother testified that:

a) She does not have any issues with R.E.R. seeing members of the maternal family as the maternal aunt and grandmother called maybe once or twice when R.E.R. was in her care;

b) She would leave the decision to R.E.R. to see the maternal aunt then testified that R.J.R. does not like anything about her sister and has kept away from her;

c) She believes her relationship with her sister, R.R., has gotten worse since R.E.R. was placed with her as she “knows [R.R] is doing this to get to her”;

d) R.R. made up the allegations of E.H.R.R. duct taping R.E.R. to a chair and beat her. In cross-examination, she said that “some stuff happened but not the chair” and that she knows as she was present;

e) R.R. is “not a very nice person” and that she does not respect her as a mother;

f) If R.E.R. stays with her maternal aunt, she will not see her and R.E.R. “won’t have a good life”;

g) She denies having withheld any R.E.R. from seeing her father, that he was always welcomed to see his children; and

h) R.J.R. testified that she not certain how R.E.R. would maintain a relationship with her cousin, whom she has lived with at the maternal aunt’s home, should she be returned to her care.

[119] Given this evidence, I have little confidence that the mother will be able to or even has a sincere willingness to support R.E.R. in these relationships which are important to her. Ms. Iafrate testified that she is concerned that if R.E.R. is returned to her mother, that R.J.R. will not encourage contact with the maternal aunt or the father, P.K. which could create conflict for R.E.R.

[120] I do have concerns regarding the maternal aunt’s, R.R., ability to support in a meaningful manner, R.E.R.’s relationship with her mother.

[121] R.R. testified that:

a) She has always had safety concerns for R.E.R. during access visits. That these concerns were shared with Niagara Society workers; however, she feels these were not always addressed; and

b) Historically, she gave R.E.R. the impression that she did not have to go on visits with her mother if she did not want to.

[122] R.R. must recognize that R.E.R.’s emotional stability is equally important as providing her with a stable home/learning environment. The evidence is clear that R.E.R. wishes a relationship with her mother. R.R. must accept that her conflict with her sister negatively impacts R.E.R. to the point that one of her wishes is for everyone in her life to get along.

[123] The maternal aunt has testified that she will respect any order of the court. She must do more than that. R.E.R. deserves to be in a home that allows her to grow not only physically, but emotionally. She will not be able to do so if she continues to be exposed to conflict, whether directly or indirectly. The maternal aunt must recognize that she has been a contributor to the creation and continuation of this conflict which has impacted R.E.R. and will continue to do so unless she recognizes and accepts that R.E.R’s mother is an important part of her life.

[124] My concern surrounding the maternal aunt’s ability to support R.E.R. in her relationship with her mother is however, tempered by the evidence that R.E.R. has been in her care for over three (3) years and has done well. During this time, the evidence is that she has also supported R.E.R.’s relationship with her father, P.K. Ms. Iafrate also testified that she believes that the maternal aunt can be more neutral and if conflict occurs, will encourage contact between R.E.R. and her mother.

[125] The evidence did reveal some behavioural issues by R.E.R., however, the evidence is that this is tied to the access visits with R.J.R., and not while in the care of her maternal aunt. No concerns were raised regarding R.E.R.’s schooling and other needs. The mother testified that R.E.R. had a toothache during an access visit however this was attended to by the maternal aunt. Other than this testimony, no evidence was presented to question that all of R.E.R.’s needs are being properly met while in the care of her aunt.

[126] The evidence is clear that R.E.R. has been in the care of her maternal aunt on a consistent basis since July 2018. The evidence indicates that R.E.R. feels happy and secure in this placement, despite being aware of the conflict between her aunt and her mother.

[127] I find that it is critical to R.E.R.’s overall wellbeing that a permanent plan be implemented at this stage given her age. The evidence satisfies me that a disruption of her current placement would have a significant negative impact on R.E.R., especially given my determination regarding the current level of stability of the mother.

[128] The mother testified at trial that she considers herself and her children as having indigenous heritage. This evidence changed the position she took when signing the SAF on May 8, 2019 where she indicated that R.E.R. was not a First Nations, Inuk or Métis person.

[129] The maternal aunt is the biological sibling of the mother therefore shares the same indigenous heritage.

[130] I have also considered the evidence Ms. Carlson as detailed at paragraph 22 of her affidavit sworn July 9, 2021 and contained at Tab 5 of Exhibit 1. This evidence states that the mother and the maternal aunt supported a referral for R.E.R. to a local resource for programming and individual support to learn about her culture.

[131] I am satisfied by this evidence that R.E.R., , will be given and encouraged to access, should she wish to do so, the resources and support to learn about her cultural heritage while in the care of the maternal aunt.

[132] I have also considered the efforts of the Peel and Niagara Societies have made to assist R.J.R. in addressing the protection concerns over the years, and her ability to engage in a meaningful and productive way with the child protection workers and other professionals.

[133] The mother’s agreement to participate in mediation and/or counselling was always overshadowed by her belief that her sister was not able to properly care for her child. This evidence demonstrates that this belief is so strongly held by the mother that is has led to this matter proceeding to trial rather than engaging sincerely in the other settlement options she agreed to pursue.

[134] The evidence indicates that R.J.R..’s interactions with Society staff over the years have often been extremely challenging and strained. Until the transfer of the file to the current child protection worker, Ms. Rossi-Diorio, R.J.R. frequently became defensive and angry to the point where she used inappropriate language including racial comments, with the involved child protection workers.

[135] The evidence shows that the mother has been inconsistent in following through with meetings with the child protection workers, was not forthcoming in details surrounding access activities and locations in a timely manner, at times failed to follow the protocols regarding access, and not followed through with requests for drug testing and counselling services.

[136] The mother’s testimony revealed little insight into her behaviour as she claimed she did not receive a message about counselling, the changes in access plans were in her view were insignificant and could not always be available when requested by the Society workers. I find that the mother’s testimony on her history of co-operation with the Society workers was absent of specific details and defensive.

[137] Given this evidence, I am not satisfied that the concerns that I have discussed could be addressed by means of an order returning R.E.R. to the care of her mother subject to Society supervision. Furthermore, R.J.R. did not present any evidence supporting such a disposition although plead in her Answers/Plans of Care.

[138] For these reasons, I am satisfied that an order placing R.E.R. in the care and custody of her maternal aunt pursuant to section 102 of the CYFSA is clearly in her best interests at this time.

Issue 3 – What terms of access are in R.E.R.’s best interests?

[139] The final issue to be addressed is the question of access between R.E.R., her mother, her father, and her sibling E.H.R.R.

[140] All parties and the OCL agree that some form of access is in R.E.R.’s best interests. I agree.

[141] The Society, supported by the mother, seeks an order for a specified schedule of access which includes a term that the weekly Wednesday visits be at R.E.R.’s discretion.

[142] The OCL does not oppose an order for a specified access schedule. OCL counsel submits that an order for access to be at R.E.R.’s discretion is in accordance with her views and preferences and has a greater likelihood of occurring given this and the conflict between the maternal aunt and the mother.

[143] As I have indicated, the Ontario Divisional Court has held that upon determining that access is in the best interests of a child pursuant to the CYFSA, the court must establish at least the minimum amount of access that should occur and cannot leave this issue to the complete discretion of the Society or other third parties. This is particularly important where a permanent placement is being ordered.

[144] Ms. Iafrate acknowledged in her testimony that a child the age of R.E.R. should have a set schedule of access. However, she supports an order of discretion given R.E.R.’s issues with her sibling and her confusing relationship with her mother. She also testified that a set schedule may be difficult to comply with should R.J.R. move from her current residence.

[145] I am concerned that if R.E.R., at her young age, is left to determine if and when she sees her mother, and by extension her sibling, and/or her father, these visits will vary in frequency and duration. To give R.E.R., at her age of eleven (11) years such absolute responsibility may result in widening the ambit of conflict she is exposed to especially given my decision that she is not be returned to the care of her mother.

[146] Given the high level of conflict between the maternal aunt and the mother, the evidence that the creation of a specified access schedule through mediation resulted in more, albeit not absolute, consistency with access visits between R.E.R. and her mother, the recognition by the mother that the Wednesday visit can be difficult for R.E.R. and the evidence of Ms. Iafrate that she anticipates R.E.R.’s reaction to an order for a set schedule of access rather than at her discretion would be that she “would get used to it as this is the current situation”, I find that a set schedule of access, with only the weekly visits being discretionary, is in R.E.R.’s best interests.

[147] Given the evidence that R.E.R. only sees her sibling, E.H.R.R., when she sees her mother, and the evidence regarding their relationship, I find that a specific term regarding access between siblings is not required.

[148] Given the evidence that the maternal aunt has been facilitating access between R.E.R. and her father, P.K., and that P.K. has chosen not to participate in these proceedings, I find that a specific term regarding his access with R.E.R. is not required.

5: ORDER

[149] For the above referenced reasons, there will be an Order as follows:

1. The child, R.E.R. born […], 2010 shall be place in the custody of the maternal aunt, R.R. pursuant to s. 102 (1) of the Child, Youth & Family Services Act, which is a deemed order under section 29 of the Children’s Law Reform Act;

2. The maternal aunt, R.R., shall have sole decision-making responsibility for the child, R.E.R., born […], 2010, pertaining to her health, education, culture, language, spirituality, and extracurricular activities. R.R. shall keep the mother, R.J.R. reasonably informed of major decisions made by her pertaining to the child, R.E.R.;

3. The child, R.E.R., shall have her primary residence with the maternal aunt, R.R.;

4. R.J.R.’s parenting time with R.E.R. shall be subject of the following schedule:

a. Regular Schedule:

i. The mother, R.J.R., shall have the child, R.E.R. in her care on alternate weekends from Friday at 5:00 p.m. to Sunday at 8:00 p.m. commencing September 24, 2021;

ii. The mother, R.J.R., shall have the child, R.E.R. in her care every Wednesday evening from 5:00 p.m. to 8:00 p.m. at the discretion of R.E.R.; and

iii. The mother, R.J.R., shall be responsible for the access transportation arrangements, which can include the assistance of a third party, unless agreed to otherwise between R.J.J. and the maternal aunt, R.R.

b. P.A. Days:

i. Should there be a P.A. Day on the Friday at the start of the mother R.J.R.’s, weekend with the child, R.E.R., this weekend will begin from 12:00 p.m. on the Friday;

ii. Should there be a P.A. day on the Monday at the end of the mother R.J.R.’s weekend with the child, R.E.R., this weekend will end at 8 p.m. on Monday; and

iii. The mother, R.J.R., shall be responsible for the access transportation arrangements, which can include the assistance of a third party, unless agreed to otherwise between R.J.J. and the maternal aunt, R.R.

c. Summer:

i. The mother, R.J.R. shall have the child, R.E.R. in her care for the first week in July and the first week in August each year. The week shall from Friday to Friday 5:00 p.m. to 5:00 p.m. , and as per the regular schedule, R.J.R. shall also have one of the weekends attached to each summer week with R.E.R. ; and

ii. The mother, R.J.R., shall be responsible for the access transportation arrangements the transportation, which can include the assistance of a third party, unless agreed to otherwise between R.J.J. and the maternal aunt, R.R.

d. Thanksgiving:

i. The mother, R.J.R., shall have the child, R.E.R., in her care from Friday at 5:00 p.m. until Sunday at 1:00 p.m. every year; and

ii. The mother, R.J.R. shall pick up the child, R.E.R., on the Friday and the maternal aunt, R.R. shall pick up the child, R.E.R., on the Sunday.

e. Christmas:

i. In 2021, the maternal aunt, R.R. shall have the child, R.E.R., from 10:00 a.m. on Christmas Eve until 8:00 p.m.; and

ii. In 2021, the mother, RJ.R. shall have the child, R.E.R. from 8 p.m. on Christmas Eve until 10:00 a.m. on Boxing Day;

iii. The regular schedule as provided for in paragraph 2a) shall resume following the Christmas schedule detailed in 2e) i. and ii. above;

iv. The schedule detailed in 2e) i. and ii. above shall alternate on an annual basis; and

v. The mother, R.J.R., shall be responsible for the access transportation arrangements, which can include the assistance of a third party, unless agreed to otherwise between R.J.J. and the maternal aunt, R.R.

f. Spring Break:

i. The parties shall alternate the week each year with the mother, R.J.R. having the child, R.E.R., in 2022 from the Monday to the Friday from 5:00 p.m. to 5:00 p.m., as well as her regular weekend; and

ii. The mother, R.J.R., shall be responsible for the access transportation arrangements, which can include the assistance of a third party, unless agreed to otherwise between R.J.J. and the maternal aunt, R.R.

5. Any changes agreed to the parenting time schedule and/or transportation responsibilities of this order agreed upon shall be made by the mother, R.J.R. and the maternal aunt. R.R. in writing;

6. The maternal aunt, R.R., and the mother, R.J.R., will refrain from making disparaging remarks about the other, the father or any member of the maternal family to the child, R.E.R.

[150] At the conclusion of the trial, counsel for the Society and OCL counsel confirmed that they would not be seeking costs regardless of my decision. Counsel for the mother submitted that costs could be requested on her behalf. Given my decision, an order will also go that each party and the OCL shall bear their own costs.

Released: September 8, 2021

Justice Lise S. Parent