Children’s Aid Society of Toronto v. A.J., 2022 ONCJ 236

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 DATE: March 17, 2022 COURT FILE No.: CFO 19-15346

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant

— and —

A.J. Respondent father (of G.M.)

— and —

M.H. Respondent father (of Y.M. & L.M.)

— and —

L.M. Respondent maternal aunt

Before: Justice M.B. Pawagi

Heard on: January 10-14, February 22-25, 28, March 1, 8 and 14, 2022 Reasons for Judgment released: March 17, 2022

Counsel: Chithika Withanage ................................................................. counsel for the applicant society Oleksiy Bykov …………………………………………counsel for the respondent father A.J. Samir C. Patel …………………………………………counsel for the respondent father M.H. Tammy Law and Katherine Long………….……counsel for the respondent. mat. aunt L.M. Helen Kurgatnikov Miller…………………..counsel for the Office of the Children’s Lawyer, legal representative for the child G.M.

PAWAGI, J.:

PART ONE – OVERVIEW

1.1 Nature of the Case

[1] The Protection Application before this court concerns three children: a 10-year-old boy (GM), a 7-year-old girl (YM), and a 3-year-old girl (LM). The society is seeking a finding that the children are in need of protection and an order granting final custody to their maternal aunt with whom they have been residing for the past three years.

[2] The children’s mother was shot outside of her apartment in the early hours of February 10, 2019 and died three days later as a result of her injuries. She had been the children’s primary caregiver. The maternal family had been caring for the children the night of the shooting. The children have been residing with them ever since.

[3] The girls’ father MH was initially a person of interest to the police with respect to the shooting because he had sent the mother a series of text messages five days before the shooting in which he threatened to kill her because he did not approve of her working at a strip club.

[4] MH is no longer a person of interest to police in the murder, which remains unsolved. He has been exercising regular access with the children, which was expanded 1 ½ years ago to include overnights. MH seeks custody of the two girls, which is the main issue in dispute in this trial. It is not disputed that the eldest child will remain with maternal aunt and have access with his stepfather MH and his biological father AJ.

1.2 Positions of the Parties

[5] The society seeks an order that the three children be found in need of protection pursuant to s. 74(2)(b)(i), (h), and (k) of the Child, Youth and Family Services Act and an order granting custody of the three children to the maternal aunt pursuant to s. 102 of the Act, with access between the girls and their father MH on alternate weekends, every Wednesday overnight and half of all school holidays. The society also seeks an order that MH shall have access to the child GM during his access with the girls, subject to GM’s wishes; and that AJ shall have access to the child GM as agreed between AJ and maternal aunt.

[6] Maternal aunt supports the society’s request except with respect to the access provision relating to MH. She seeks an order that access between the children and MH be specified only for alternate weekends and otherwise be as agreed between her and the father.

[7] The girls’ father MH agrees that the three children are in need of protection (though only pursuant to 94(2)(h) and (k), not (b)(i)), but seeks an order granting him custody of the two girls, with access between the girls and their aunt and brother GM, to be a minimum of two weekends per month.

[8] An Agreed Statement of Facts with respect to the child GM was filed at the outset of the trial. Counsel for the child GM, and the child’s father AJ consent to protection findings and custody to maternal aunt for the child GM.

PART TWO – BACKGROUND AND CHRONOLOGY OF EVENTS

[9] The following facts are not disputed.

[10] On February 5, 2019, the mother attended at 22 Division and reported to police that MH had sent her a text saying, “I will kill you inside the strip club. Call the cops, anybody. I don’t give a fuck,” after he learned she was working at a strip club despite his disapproval.

[11] The mother and MH had been in a relationship for about six years starting in 2013. They separated several times during the course of their relationship. They separated for a final time on January 27, 2019. There were at least six involvements with police due to allegations of domestic violence by MH against the mother.

[12] In October 2016 MH was charged with assault which was resolved by way of a peace bond.

[13] In February 2019 MH was charged with threatening death and held for bail as he was on probation following a conviction for dangerous driving the previous year. The charges were withdrawn following the mother’s death.

[14] On February 10, 2019, the mother was shot multiple times while she was in a car outside her apartment. That night, the grandmother was taking care of the youngest child (then age 9 months) at the mother’s apartment, while the two older children (then ages 7 and 4) were on a sleepover at the maternal aunt’s home, a one-bedroom basement apartment where she resided with her partner.

[15] Following the shooting, grandmother moved into aunt’s home to help aunt and her partner take care of the three children.

[16] On February 13, 2019, the mother was declared legally dead. She had been on life support since being taken to hospital.

[17] MH was initially a person of interest to police in connection with the shooting as a result of the threatening text he had sent days before the shooting. Police advised the society around August 2019 that MH was no longer a person of interest.

[18] The society first became involved with this family on February 11, 2019, following calls from police about the threatening texts and from the hospital about the shooting.

[19] Society worker Ms. Singh first spoke with aunt on the telephone that day about establishing a detailed safety plan for the family. The plan included flagging the family’s address by the police and the police doing courtesy drive-bys as it was not known at the time whether the maternal family in general was in danger.

[20] After receiving a request for access from MH’s lawyer, aunt permitted MH to visit the three children at her home on the weekend of February 17, 2019, once she confirmed with police and the society that this was allowed.

[21] MH first called the society on February 20, 2019. He had not seen the children from the date he and their mother separated on January 27, 2019, to his visit at aunt’s home on February 17, 2019.

[22] On March 15, 2019, maternal family moved to a larger residence. The society assisted by providing the money to pay first and last month’s rent. Aunt registered the child GM for school which he started on March 18, 2019. Aunt registered the child YM to start kindergarten in the same school in the fall of 2019.

[23] The society’s initial protection application, issued February 26, 2019, sought a six-month supervision order with maternal aunt for all three children. The society’s amended protection application, issued March 26, 2021, sought custody of the two girls to MH and custody of the child GM to aunt.

[24] On July 30, 2021, the case management judge dismissed the society’s motion to withdraw its protection application

[25] The society further amended its protection application on November 23, 2021, to seek custody of all three children to aunt. It is this application which is before the court.

[26] MH initially started with supervised visits which went well. The visits were moved into the community with the support of aunt as she thought the children would enjoy such visits more than visits at the society offices. MH was subsequently successful in his motion to expand to overnight visits which started in September 2020 for one overnight every two weeks. In December 2020, on consent, the access was expanded to one overnight three weekends out of four. To accommodate MH’s work schedule (he worked until late on Friday nights), the visits were scheduled for Saturday 1 p.m. to Sunday 1 p.m. The eldest child GM, at his request, currently attends for only two out of the three weekends.

[27] MH has never had the children for more than one overnight in a row in the past three years, with the exception of one occasion where a visit of two overnights was arranged to make up for a missed visit.

[28] MH made frequent allegations about aunt, her partner and maternal grandmother regarding their care of the children, none of which were verified by the society.

[29] In October 2021, MH advised parties in writing through his counsel that he will henceforth communicate with aunt only through the society, alleging that she was harassing him.

PART THREE – EVIDENTIARY ISSUES

3.1 Children’s statements

[30] A voir dire on children’s statements was blended with the trial. Counsel made submissions on the voir dire on March 8, 2022. I ruled that all of the statements were admissible (with the exception of statements by MH to society worker Tara Stepien about what the child GM told him, which point was conceded by counsel for MH), with reasons to follows. These are my reasons.

[31] Children’s out of court statements can be admitted for the truth of their contents as an exception to the hearsay rule if necessity and reliability are established as set out in R. v. Khan, [1990] 2 S.C.R. 531.

[32] Courts have found that reasonable necessity can be established without requiring expert evidence regarding adverse consequences that might result from requiring the children to testify at trial. Indeed, no one here suggested calling the children as witnesses. They are 10, 7 and 3 years old. They are still recovering from the traumatic loss they suffered when their mother was murdered three years ago. I am satisfied that reasonable necessity is established in these circumstances.

[33] With respect to reliability, the legal test is whether the circumstances surrounding the statements achieve threshold reliability, that is, whether a particular statement in sufficiently reliable to be admitted: R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57.

[34] Counsel for aunt and counsel for MH provided the court with charts setting out the children’s statements they seek to have admitted. I find that the test for threshold reliability is met, and the statements are admissible, with two exceptions: 1. The double hearsay statement set out in paragraph 30 above, and 2. The alleged threat to aunt by MH addressed at paragraph 65 below. The basis for my finding the remaining children’s statements to be admissible is the following: The statements were made to society workers who have experience in interviewing children; the workers interviewed the children privately and took notes within 24 hours of the interviews; and the workers were cross examined with regards to these statements.

[35] I will address the issue of ultimate reliability when the children’s statements are considered in detail below.

3.2 Expert evidence

[36] A voir dire on expert evidence was also blended with the trial. Counsel made submissions on the voir dire on March 8, 2022. I ruled that the expert evidence was inadmissible with reasons to follow. These are my reasons.

[37] The Supreme Court of Canada set out the test for the admission of expert evidence in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The first step involves the consideration of the four factors in R. v. Mohan, [1994] 2 SCR 9:

(1) Relevance; (2) Necessity in assisting the trier of fact; (3) Absence of an exclusionary rule; (4) A properly qualified expert.

[38] The evidence of Valda Lopo proffered as expert evidence by maternal aunt does not meet the test for admissibility with respect to factors 2 and 4.

[39] Ms. Lopo’s opinion is not necessary as she does not provide information that is likely to be outside the experience and knowledge of a judge; for example, she concludes in her report that grandmother and aunt are in a parental relationship to the children and the severance of this relationship “will impact them the same way as any other child who is separated from their biological mother.” In cross examination by counsel for MH she said at one point that you don’t have to be a psychologist to figure this out, and I quite agree. She writes in similarly general terms about the sibling bond between the children: “To separate the siblings, particularly given their young ages, could lead to emotional and mental distress for each of them.”

[40] She is not a qualified expert. According to her CV, she has not published or presented in the area of attachment. She has a PhD in psychology from Brazil which was not recognized in Canada. She has never been previously qualified as an expert in court. While I agree with counsel for maternal aunt that expertise may also be acquired through experience, her experience in assessing attachment was presented in only the most general of terms. She testified that she is “constantly assessing attachment” as part of her work, but in her CV it is simply part of a list of many types of assessments she does: assessments of children and adults involved in personal injury and work-related accidents; assessment and treatment of children and adults who have a mental illness; psychoeducational, developmental, psycho-vocational, attachment and trauma assessments; assessments for rehabilitation, disability, immigration, criminal matters and independent medical examination purposes; etc.

3.3 Credibility

[41] The Society called five society workers as witnesses: Tara Stepien, Arshdeep Singh, Robert Rockey, Tiffany Allison and Linda Lewis. Aunt testified on her own behalf and also called her partner, maternal grandmother, therapist Lina Vishnevsky, assessor Valda Lopo, and family friend E.H.. Counsel for the child GM called one witness, the OCL clinical investigator Jennifer Moses. Father testified on his own behalf and also called paternal grandmother.

[42] I found the evidence of the professional witnesses - the five society workers, therapist Ms. Vishnevsky, assessor Ms. Lopo (with respect to her observations only, not opinion) and OCL clinician Ms. Moses - to be credible for the following reasons: It was clear and factual; it was based on notes they had a professional obligation to make and which they made contemporaneously with the events they described; and they were not shaken in cross examination. I further note that the four society workers who dealt with MH were balanced in their testimony. They included positive evidence about MH as well as the negative. Society worker Ms. Stepien in particular gave MH the benefit of the doubt in every instance where his motive was called into question; for example, in his taping of the youngest child LM when she cried at access exchanges.

[43] I found the father was not a credible witness.

[44] He was inconsistent and evasive:

• He deposed in his trial affidavit that the October 13, 2016 incident in which he was charged with assault occurred in the presence of the child GM, but then testified that he did not see the child there;
• He deposed that he has no obligation to repay aunt for the $4000 loan she took out on November 21, 2018 to assist him and the mother with their living expenses and childcare; and he testified that aunt gave the money to the mother, not to him. However, in his police interview he said aunt gave the money to him and the mother, and that he does have to repay her;
• He testified in chief that it was not his signature on the loan document, but in cross examination he said he did not recall if he signed it;
• When asked in cross examination if his relationship with the mother was “on and off” he said no. However, in the police interview he said, “we’ve been together on and off”;
• In his police interview relating to his dangerous driving conviction, his response regarding whether or not he had consumed alcohol changed over the course of the one-hour interview. At trial he acknowledged he had blown over 80;
• He resisted answering why he alleged the case management judge was “profiling” him; whether he would repay aunt the remaining $2,000 outstanding on the loan; and how he would communicate with the aunt about the children when the society was no longer involved following the release of the within decision. And when asked in cross examination if he would share his tax returns (aunt had served him with a domestic application on January 30, 2021, seeking child support to which he has not responded) he said, “I am not going to answer that question.”

[45] He gave contradictory and self-serving justifications for his actions: (1) When cross examined about his frequent negative comments about the maternal grandmother’s weight and his belief that she acted as a pimp to the mother when the mother was young, he gave the following differing explanations:

• The reason he called her “big mama” was because that was what the mother called her, and it was meant in an affectionate, humorous way;
• The reason he told his probation officer she weighs “300 lbs.” (which she does not) was because he was concerned about the impact her weight could have on her own health and on her ability to care for the children;
• The reason he called maternal grandmother a “fat hoe” in his texts to the mother was because of his emotional state during the texts as he was upset when he learned mother was, among other things, working in a strip club;
• The reason he alleged maternal grandmother was a pimp was only because AJ had told him so in a video call they had during MH’s first access visit (February 17, 2019) with the children after their mother’s death.

(2) When cross examined about the reason he told the society worker he would forego his visits with GM so GM could see his biological father AJ while the girls were seeing him (MH), he gave the following inconsistent explanations:

• He was not comfortable with his girls being around AJ in part because the society did not look into AJ’s criminal background;
• Yet, he was “super happy” for GM that AJ is involved, and that GM needs more time to be closer to AJ;

(3) When cross examined about why he is raising objections now about aunt letting maternal grandmother care for the children when he and the mother routinely did so in the past, he gave the following explanations:

• He only let maternal grandmother care for the children in the past despite his concerns about her mental health because her partner was there, and he trusted her partner;
• But then he acknowledged that he had concerns about the partner’s mental health as stated in his texts to the mother and in his interview with police: He texted: Or leaving my kids with two retarded people that cannot take care of themselves but you’re going to let a 9 month old be taken care of them; He texted: Ur leaving ur kids at home alone with Ur crazy mom and crazy dad that u need to be scared; He told police: the partner was “in and out of crazy institutions many times.”
• Then he implied that grandmother bore some responsibility for her partner’s mental health issues because, when the partner’s sister died, the grandmother said, “fuck that bitch,” and while he wasn’t blaming her for the partner’s mental health issues, her comments were “not helping”.

(4) To support his assertion that maternal family should have known not to feed the children pork even prior to his raising it in September 2021, he testified that the mother had agreed, at his request, never to feed the children pork right after they started dating in 2013. However, to support his assertion that he was not responsible for any protection concerns regarding the children when he was with the mother, he testified, “I never had control of the kids, what they ate, where they went to school…”.

[46] His evidence was contradicted by his own witness, paternal grandmother:

• He testified that while the mother was alive paternal grandmother saw the child YM three times: when driving her home after her birth, and at two of YM’s birthday parties. Paternal grandmother testified that she saw her just once;
• He testified that the mother was to blame for the fact that paternal family did not get to see the children much prior to the mother’s death; however, paternal grandmother testified that the reason she did not visit was because she did not approve of MH and the mother having children before they were married.
• He testified that he worked as an independent contractor for a company called Deliver and that he started working at noon and finished at various times depending on the job. Paternal grandmother testified that he worked three days a week doing deliveries for Amazon and his hours were 9 a.m. to 2 p.m.

[47] Consequently, where there was a contradiction between the evidence of MH and that of the other witnesses, the evidence of the other witnesses was preferred.

[48] I found the paternal grandmother to be a credible witness, but extremely limited regarding her knowledge of her son and his life. She noticeably hesitated when recalling the names of the two girls, referring to them at times as the big one and the little one. She had no knowledge of MH’s criminal charges for assault and threatening death, or of his conviction for dangerous driving. She had no relationship with the girls until they started having access with MH at her home.

[49] I found maternal grandmother, aunt, aunt’s partner and family friend Ms. E.H. to be credible witnesses. They distinguished between what they observed firsthand versus what they were told by the mother. They did not exaggerate or speculate. They were clear and factual and were not shaken in cross examination. Aunt and her partner (who were the ones who dealt with the society as grandmother does not speak English) were always forthright and honest with the society.

PART FOUR – PROTECTION FINDING

[50] The trial was conducted as a blended hearing with respect to finding and disposition. I did not consider any evidence that solely related to disposition in determining whether or not the children are in need of protection.

[51] I find the children are need of protection pursuant to section 74(2)(a)(i), (b)(i), (h) and (k) based on my findings of facts as set out below.

s. 74(2)(a)(i): Child has suffered physical harm resulting from the person having charge of the child failing to adequately care for the child

[52] I find the children suffered physical harm in the damage to their teeth that required significant repair work as a result of the mother’s failure to attend to their dental health.

[53] After the mother’s death, the children required the following dental work: 7-year-old GM had 4 teeth pulled, 11 cavities filled, metal crowns installed on two teeth and a spacer placed for one tooth; 4-year-old YM had 5 teeth pulled, 4 cavities filled, metal crowns installed on three teeth and a spacer placed for one tooth. The cost of the total dental work was more than $13,000. It was covered by the aunt’s insurance.

[54] While the society did not seek this particular protection finding, I agree with counsel for aunt that the court has discretion to make a finding that a child is in need of protection pursuant to a clause of the Act not pleaded, if justified by the evidence, and if the parent had prior disclosure of the relevant evidence, is not caught by surprise and has had a full opportunity to test this evidence. Durham Children’s Aid Society v. R.S. and J.M., [2005] O.J. No. 570 (SCJ) and Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754 (SCJ-Family Court).

[55] As Justice Czutrin noted in the latter case, While it is better practice, and the sections are set out in the forms, to plead the subsections relied on, the court cannot be prohibited from finding a child in need of protection if the appropriate box has not been checked off, especially where the facts support such a conclusion. Events in a child's life are ever evolving and not frozen to events that existed at the beginning of the court process. It is open for me to find a child in need of protection where the evidence supports the facts that fall under any subsection of s.37 [now s. 74] where the evidence and facts have been established, and as in this case, cannot come as a surprise.

[56] The evidence about the dental work required did not come as a surprise to MH as he attended one of the initial appointments with YM.

s. 74(2)(b)(i): Risk of physical harm resulting from the person having charge of the child failing to adequately care for the child

[57] I find the children are at risk of physical harm as a result of the neglect of their dental care and immunization health, and exposure to domestic violence.

[58] In addition to the dental issues, it was also learned after the mother’s death that the children were not up to date on their childhood vaccinations; specifically, their MMR (Measles, Mumps Rubella) immunizations. MH advised society worker Mr. Rockey on March 7, 2019 that the children GM and YM had received their complete MMR vaccination, when they had not. And MH provided contact information for Dr. Yaacov Feldman as the children’s doctor when that doctor’s clinic had no record of the children ever attending there.

[59] Toronto police have been involved in six incidents of alleged domestic violence by MH against the mother: May 17, 2014; May 18, 2016; August 24, 2016; October 13, 2016; August 18, 2017; and February 7, 2019. The October 13, 2016, and February 7, 2019, incidents were the only ones where MH was charged.

[60] On October 13, 2016, the mother called police to report that MH pushed her to the ground and spat on her. The child GM, then age 5, witnessed the assault. MH was charged with assault. The charges were resolved by way of a peace bond in 2017.

[61] The child GM told society workers Ms. Singh and Mr. Rockey he did not like it when his parents spoke alone as there would be screaming. He said they would call each other names and there were fist fights where “they hurt each other.” When asked how often it happened, he answered, “I get up a lot.” He could hear the noise and yelling and would peek from the door. After the fighting, his mother would cry. GM said he would punch MH and fight him, and MH would respond by slapping him. MH would hit him with his hand on his arms and his thighs. When GM was asked if it would leave marks he said it did leave marks. When asked how often, he said MH hit him “a lot” and “so much.”

[62] The child YM told society workers Ms. Singh and Mr. Rockey that MH and her mother would “fight with their hands” and made a motion of hitting with her hands.

[63] I find these statements by GM and YM to be ultimately reliable. The workers were interviewing the children generally, not about domestic violence, and the statements were spontaneously made. They are corroborated by the testimony of other witnesses and by the police occurrence reports. The worker found no evidence the children were coached.

[64] The statements by GM and YM of MH hitting their mother is also corroborated by the mother’s evidence. I agree with counsel for the society that the hearsay statements by the mother to the operator in the recorded 911 call, to the police in their recorded in car interview with her, and her statements to aunt, her partner, maternal grandmother, Ms. E.H. are admissible. They are necessary as the mother is deceased, and they are reliable as they are consistent: Children’s Aid Society of the Regional Municipality of Waterloo v. N.H., 2021 ONSC 2384. I note however, that even if the mother’s out of court statements were deemed inadmissible, my finding, that the children are at risk of harm as result of exposure to domestic violence, would still stand.

[65] The society also relies on a statement made by the child YM on March 29, 2021, to society worker Ms. Allison that YM heard MH say he was going to get a knife and kill maternal aunt. However, I find this statement is not ultimately reliable for the following reasons: (1) Aunt told Ms. Allison during a home visit on March 29, 2021, that she had called MH during his access visit with the children to ask him to bring his loan payment to her when he returned the children. He told her he was not paying it. YM then heard MH say he was going to get a knife and kill maternal aunt. YM told her brother GM who told maternal grandmother. Maternal grandmother told aunt. (2) Aunt then called the children and asked them to tell Ms. Allison what maternal grandmother had been told. Ms. Allison deposed that YM then repeated the threat and GM confirmed that this was what YM had told him. (3) Aunt did not wish to report this allegation to police as she did not want to involve the children and subject them to police interviews. The evidence provided is incomplete and important context is missing such as details of grandmother’s conversation with YM and with aunt.

[66] Maternal aunt, her partner, maternal grandmother and family friend Ms. E.H. all described witnessing verbal altercations between MH and mother.

[67] One such incident occurred during a Christmas eve dinner and was described in detail by Ms. E.H.. Present at the dinner were maternal aunt and her partner; maternal grandmother; MH, mother and the children; Ms. E.H. and her children. MH and the mother had a huge argument over money while the others were all sitting at the dinner table. MH was screaming and yelling and ripped his shirt off that the mother had bought him that day. The mother was crying a lot and the children started crying. Ms. E.H. tried to calm him down telling him that the children were scared and crying. After a chaotic five to ten minutes, he left while swearing at the mother quite badly. MH minimized the altercation in his testimony but acknowledged that some of the children were crying as a result of witnessing the incident.

[68] On February 7, 2019, police charged MH with threatening death based on a series of text messages he sent to mother over a five-hour period on February 2, 2019. The charges were withdrawn after the mother’s death. The following are excerpts from the texts. As counsel for maternal aunt pointed out, they contain multiple threats in addition to the death threats for which MH was charged.

Threats to kill mother and her family

• I find out u working for Ur mom again I will end everyone
• Don’t think I don’t know what Ur up too… Remember what I told u if u do that shit u have done in the past I will end uuuuuu
• U and Ur pimp mom will be ended
• … see you suck someone dick for money and then I will end u right there in the mix of u doing what u do
• … u get it from Ur mom and ur sis is the same lmao I will find u in there one day and on my kids life I will end u right there
• I will make sure my kids don’t have a hoe for a mom remember that end of story
• I will kill you inside the strip club… Call the cops anybody I don’t give a Fyck
• Will catch you inside there with your clothes off your stinky pussy in the air that’s when I’ll catch you

Financial threats - to not pay back loan to maternal aunt - to get maternal grandmother’s ODSP cut off

• I will not give a fucking $ to Ur sis… The money u make of that used up pussy pay Ur sis
• You mom is going to get a tooth I will contact her f**** ODSP I tell her what a fraud she is

Threats to destabilize mother’s housing

• It’ll be nice for your landlord to find out 6 people live in the one bedroom

Threats to have the children removed from mother’s care

• …whays more important me going to jail or u having ur kids
• U dumb all this time u sell Ur ass under the table and u thing government will be ok with that
• And when I take my kids from you they will know that their mother was a drug addict prostitute

Threats of what will happen if mother turns to the police for help

• Report it go for it and let them know what you’re doing as well we’ll see who put the they in jail

Threats regarding mother’s immigration status

• U scared that I know Ur back to Ur hoe shit and I will take my kods. Kids. Lol so u plan this so I look bad kol. It will not beat Ur Cass Ur is immigration. Lol. Bye.

[69] The above texts by the father are interspersed with short responses from the mother:

• Don’t msg me no more
• Don’t threat me
• Don’t talk to me
• Don’t msg me
• Ok
• Stop texting me
• Stop bothering me
• You shouldn’t talk like that that’s threatened me
• Stop msging me
• Before I report it u already said enough
• Am done talking to you. I will go report it. Am scared you threatened to kill me u putting me and kids in danger

[70] The mother reported the threats to the police, to her employer, and to the concierge at her apartment building to whom she also provided a photo of the father.

[71] On February 21, 2019, society workers Ms. Singh and Mr. Rockey met with MH at the society office. He said he experienced anxiety and depression before the shooting and a doctor prescribed medication, but instead he was dealing with it through controlled breathing. He had panic attacks when he learned that mother was dancing in clubs.

[72] MH told the workers that mother would leave for work at 7 pm. and return round 2 or 3 a.m. He said he would search her wallet, purse and phone without her knowledge, and he found things that worried him about her lifestyle and possible involvement with the sex trade such as cash and condoms. She would have unexplained money in her wallet and when he confronted her she said she was working as a cleaner. He said maternal grandmother worked as a sex worker in the Czech Republic and she approved of her daughter working as an exotic dancer.

[73] He said that when he threatened mother by saying “I’ll end you” he meant if he saw her at the strip club he would report his concerns to the society, he did not mean he would physically harm her. He said he loves her and considers the child GM to be his son. He said he never did anything wrong to make mother “get mad at me or not love me.” He said he drank heavily the night he learned of her death, and contemplated suicide. He said his parents locked the door to their balcony as they were afraid he would jump.

[74] MH testified at trial that he regrets “most of these messages”. He explained that mother was cheating on him, working in strip club, working as prostitute in hotels doing things she shouldn’t be doing and thus “anybody would be upset and say things they would regret” and “anybody would be in heated moment that they wouldn’t recall”.

[75] His trial affidavit dated February 11, 2022 was the first time he acknowledged sending the threatening text. As recently as his June 13, 2021 affidavit opposing the society’s motion to withdraw, he deposed that he did not have any involvement in her murder, “ nor did I threaten to kill her ” (emphasis in the original). When asked in cross examination if he lied in this affidavit he simply said, “I should have emphasized more of the details”.

s. 74(2)(h): Risk of emotional harm resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or person having charge of the child

[76] I find the children are at risk of emotional harm as a result of the history of domestic violence by MH against their mother as set out above.

[77] They are also at risk of emotional harm as a result of the instability in their housing. The mother and MH moved multiple times resulting in 8 different school placements for the child GM, leading to him being significantly behind.

[78] They are also at risk of emotional harm if they are removed from the care of maternal aunt. The Court of Appeal has held that the risk of removal from a long-term caregiver may ground such a finding: Children’s Aid Society of Toronto v. S.A.P., 2020 ONCA 208, at para. 6.

s.74(2)(k) the child’s parent has died and not made adequate provision for the child’s care and custody

[79] The mother died as a result of her gunshot wounds on February 13, 2019.

[80] Maternal family had been caring for the children the night of the shooting and have continued to care for them since that time. But there was no formal agreement between the parties or court order regarding care and custody of the children until the society became involved.

[81] I find the children are in need of protection because adequate provision for their care and custody was not made as a result of their mother’s sudden and violent death.

PART SIX – DISPOSITION

[82] Subsection 101(1) of the Act 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, before making a disposition order.

[83] I find a court order is necessary to protect these children in the future. A final custody order is required to provide the children stability and permanency and shield them from adult conflict by specifically delineating the access schedule.

[84] Once a court finds that an order is necessary to protect the children in the future, the Act directs that a court shall make a disposition order pursuant to s. 101 or s. 102.

[85] Section 101(3) provides that a court shall not make an order removing the child from the care of the person who had charge of the child immediately before the society’s intervention unless the court is satisfied that alternatives that are less disruptive would be inadequate to protect the child.

[86] I find that aunt had charge of the children immediately before the society’s intervention as evidenced by her making all the decisions about the children regarding where they would live and with whom they would have access. And she was clear from the start that she was not assuming this role as a temporary measure but was committed to the three children long-term. I find father acknowledged this point when he asked aunt’s permission to see the children after the mother’s death. I further note that when the society first had contact with this family the mother was on life support in the hospital and MH had not seen the children since he and the mother had separated on January 27, 2019, thus there could have been no person other than aunt who had charge of the children. Consequently, the court cannot make an order removing the children from aunt’s care unless the court finds that this less disruptive alternative would be inadequate to protect the children.

[87] When making an order in the best interests of the child, the court is directed by the Act to first consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained, pursuant to s. 74(3)(a).

[88] Court have found that that children’s views and preferences can be admitted through the state of mind hearsay exception to the rule against hearsay: Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124; N.P. v. D.B., 2019 ONCJ 291.

[89] The child GM is 10 years old. His wishes, as set out in the affidavit of the OCL clinician Ms. Moses, are consistent, strong and independent to remain in the care of his aunt. It is not disputed that an order placing him in the custody of his aunt should be made in accordance with his wishes.

[90] The child YM is 7 years old. MH testified that YM indicated to him that she wants to live with him but that “she can’t tell the worker because aunt’s around or GM is around, and GM tells on her”. No details were provided regarding the circumstances of this conversation. However, the children’s therapist Lina Vishnevsky testified that YM told her she would be worried about letting her father know if she wants to live with her aunt. I find I do not have evidence of YM’s views and preferences which are strong, consistent and independent.

[91] The child LM is 3 years old. MH testified that she cries at the end of each visit with him and even the night before because she knows the visit will end the next day. Aunt, in her evidence, pointed out that the child also cries at the end of a visit with a friend. I find that LM is too young for the court to be able to ascertain her views and preferences regarding custody.

[92] The court is next directed to consider any other circumstances the court deems relevant including but not limited to the factors set out in s. 74(3)(c)(i) to (xi). I have addressed the relevant best interest factors below.

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; and (ii) the child’s physical, mental and emotional level of development

[93] The aunt, with the assistance of her partner and her mother, has demonstrated that she has been meeting the children’s physical, mental and emotional needs for the past three years as follows: (1) She and her partner immediately (within a month) moved from their one-bedroom apartment to a larger residence to accommodate the three children, and maternal grandmother who had moved in with them to assist them in taking care of the children; (2) The family moved on a Friday, by the Monday the child GM was enrolled in his new school. The child YM was enrolled to start school in the fall; (3) She enrolled the child GM in summer school in the summer of 2020 and hired a tutor for him in the summer of 2021. GM was in grade 2 at the time of his mother’s death but was in ESL (English as a Second Language), despite being born in Canada. He was on an IED (Individual Education Plan) for math, language, writing and reading. He was four levels behind in reading. Aunt and/or her partner help him with his homework every night; (4) She ensured the children received the immunizations they were missing; (5) She ensured the extensive dental work GM and YM required was completed; (6) She had the children’s eyes examined and obtained glasses for the two older children as prescribed; (7) She obtained orthotics for the children as prescribed; (8) She enrolled the child GM in taekwondo because he enjoys it. She is looking into art classes for the child YM as she particularly enjoys art. She purchased an inflatable swimming pool for her backyard so the children could engage in physical activity during the pandemic when many activities were cancelled; (9) She found grief counselling for the children, and when the initial counselling terminated due to the pandemic she found alternate counselling; (10) She has photos of the children’s mother all around her home. She and her partner talk to the children about their mother and take the children to visit their mother’s grave. The child GM has written his mother letters and the child YM has drawn her pictures, which aunt arranges for them to leave on her grave. The children sleep with a photo of their mother under their pillow; (11) She ensured they maintained their relationship with their father, even allowing him to have access in her home days after the mother’s death when he was still a person of interest in the murder; (12) She and her partner are engaged but put off their own wedding plans, and any plans to have children of their own, in order to focus on the needs of these three children. (13) She and her partner have been paying for all of the expenses for these children without any financial contribution from MH other than the $500 provided at the time of the mother’s funeral. This despite the fact that MH has been working during this period and resides with his parents without having to pay any rent. Aunt is employed as a hotel cleaner temporarily laid off due to the pandemic; her partner works nights as a security guard; and grandmother is in receipt of ODSP.

[94] It is of particular note that aunt and her family were able to prioritize the children’s needs while they were dealing with their own trauma and grief over the murder of their sister and daughter whom they were very close to and seeing on a weekly and sometimes daily basis prior to her death.

[95] Aunt and her family have a history of caring for the children prior to the mother’s death. Maternal grandmother often stayed with the mother to care for the baby LM., being the one to wake up in the night to feed her and acting as her “second mother.” Aunt and her partner would have the two older children for sleepovers at their place often on a weekly basis (which is where the two older children were the night of the shooting). In addition to the loan aunt provided to the mother and MH, aunt would also give cash any time she could in order to help with the children.

[96] When MH first met with society workers Ms. Singh and Mr. Rockey on February 21, 2019, he acknowledged as much. He told them that aunt would sometimes care for the two older children GM and YM while maternal grandmother cared for the baby LM. He spoke positively about aunt saying she does not do drugs, she provided financial help to his family when they were in need, and she was always nice to the children. He did not have any concerns about the children being in her care.

[97] MH did not look after the children’s needs while he and the mother were together. He blamed the mother for everything as follows: (1) YM has asthma because mother was smoking when she was pregnant; (2) The loan from aunt was for both of them to help with the children but “[mother] used all the money”’; (3) The reason they moved around so much was because mother wanted to be away from maternal grandmother as they were taking care of all of grandmother’s “errands” and aunt was not assisting; (4) He blamed the children’s dental problems on the mother saying she would let YM fall asleep with a bottle of juice and never took her to the dentist and that was one of the things they argued about. He said mother received $12,000 from the child tax credit for GM and YM and used it for breast surgery for herself rather than on dental work for the children. He testified that when he confronted her about it she told him it was for her own self-esteem; (5) He even blamed his marijuana and alcohol use on the mother. He deposed that he previously smoked marijuana “as I was struggling with a number of anxiety and depressive episodes which flowed from the challenges [mother] and I endured in our relationship, my discovery that she was involved in the adult industry, and ultimately, her untimely and tragic death. I relied upon my usage as a means to numb the emotional pain I was experiencing. This was also the case for alcohol as well”; (6) When asked about the children’s missing vaccinations, he said since they were in the care of their mother he assumed she would take those steps; (7) He said he was dismissed from his job as collections agent for Global Credit & Collections for frequent lateness and absences and deposed that “both of which were due to the constant quarrels [the mother] and I would find ourselves in.” He testified that he could not attend work regularly because he was taking care of the mother and the child GM. He said he had to make payments for their rent and food and therefore could not make car payments, which meant his car got repossessed and he then could not attend work.

[98] He claimed the mother regularly used cocaine, yet he left the children in her care because he believed he “had no choice.” He did not call the society or the police, saying “If I brought it up she would threaten me with false accusations of assault.”

[99] After the mother’s death, he never provided any financial assistance to aunt to help with the children. When cross examined about it he said he did not provide any support because there was no court order to do so. When asked why he did not voluntarily provide any support, he responded, “I was never asked for assistance, I always ask [aunt] if she needs anything and she says no.” However, he acknowledged he was served with her application for child support in January 2021.

[100] He has demonstrated an inability to consider the children’s emotional needs: (1) In his November 10, 2021 affidavit opposing the production of his police records, he deposed that the society did not require the records regarding the October 13, 2016 incident because the child GM could testify about it. When cross examined about whether he thought it was a good idea that GM be interviewed about witnessing MH’s alleged assault of the child’s murdered mother, MH responded that “It will help him… getting his feelings and emotions out. Never good for kids to hold in information about the past”’; (2) As recently as January 29, 2022, in the midst of the within trial, there was a misunderstanding between the parties about whether the access visit was for all three children or just the two girls. All three children were ready with their backpacks on when MH arrived. He raised his concern that GM should not be part of this visit in front of GM and got into an argument with aunt about it. GM, to his confusion, ended up not going on the visit. This despite MH’s evidence that he had always treated GM as his own child and GM was always welcome on visits.

[101] Other than attending one dental visit with YM, he has never spoken to the children’s dentist or doctor and testified, “I don’t have a clue where they are”. He does not know the name of YM’s school or her current teacher.

(iii) the child race, ancestry and creed; and (iv) the child’s cultural and linguistic heritage

[102] Maternal family is Catholic (not practicing). Paternal family is Muslim (practicing). MH acknowledged that he and the mother had not made any decision to raise the children in one religion or the other.

[103] MH testified that mother had agreed that the children should never eat pork as this was important to MH given his Muslim faith. Aunt, her partner and maternal grandmother testified that the mother and the children routinely ate pork, and it was never raised as an issue in the past. Given the issues with MH’s credibility canvassed at length above, I accept maternal family’s evidence that the children used to eat pork regularly. It was based on their direct observations of the children and the mother eating pork which they had cooked for them.

[104] However, the evidence is clear that once father raised it as an issue with society worker Ms. Stepien in September 2021, maternal family have ensured that they do not feed the girls pork. MH alleges they continue to feed the girls pork but provides no evidence in support of same. He simply assumed that when YM told him her aunt gives her sausage that she must have meant pork sausage and that when YM referred to pepperoni pizza it was recently.

[105] Society worker Ms. Stepien deposed that aunt told her she has a problem with the Muslim religion because they are “okay with killing.” Aunt testified that she did not say that to Ms. Stepien and her remarks were misconstrued. As I had earlier found both Ms. Stepien and aunt to be credible this discrepancy is difficult to resolve on the basis of credibility.

[106] However, it is clear on the record as a whole that aunt is respectful of the girls’ Muslim heritage. Society worker Ms. Allison testified that she would be very surprised to hear if aunt had said anything negative about Islam. Aunt stopped feeding the girls pork as soon as MH raised it as an issue with the society in September 2021. YM has a necklace symbolizing Islam which MH gave her. When the necklace broke, aunt offered to MH that she would have it fixed. She has always been open to MH having access to the girls for any Muslim holidays, but he has never asked. Indeed, other than the request not to feed the girls pork, MH has never advised aunt of any other Muslim practices he wishes his girls to learn. I further note there is no court order requiring aunt to refrain from serving pork; and, as counsel for aunt points out, there is no authority that supports one parent being able to impose their religious practices on another.

[107] Furthermore, aunt would like to take the children to church on occasion but has refrained from doing so out of fear of upsetting MH.

[108] The children’s maternal side is of mixed Roma and Czech heritage. Maternal grandmother does not speak English. She and the children communicate with each other only in Czech. The children’s parental side is of Afghani heritage. Paternal grandmother speaks Farsi to the children, and they are learning words from her.

(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

[109] Aunt has been the children’s primary caregiver for the past three years. Aunt, her partner and maternal grandmother have been unwavering in their unconditional embrace of the three children as secure members of their family.

[110] MH deposed that during his relationship with the children’s mother he was very much involved in parenting all three children even though GM was not his biological child, as GM’s biological father AJ was not involved. He deposed that “we shared the domestic and parental responsibilities. I would regularly ensue that the home was cleaned and assisted with meal preparation, changing the children’s clothes, bathing them, putting them to bed, ensuring they were fed, and attending for scheduled medical appointments.”

[111] However, as set out in the protection finding section above, it is clear that the children’s medical needs were not being met. He did not take them to the dentist as evidenced by their dental neglect, and he did not take them to the doctor’s as evidenced by their gap in immunization and the fact that he did not know the correct name of their doctor or clinic.

[112] It is clear from the evidence that MH’s relationship with the children before their mother’s death was one in which he played with them, not provided instrumental care to them. For example, GM described enjoying playing video games with MH. GM and YM called him daddy (LM was a baby) and they went to him easily and affectionately from their first access visit. Paternal grandmother, whom MH relies on in support of his plan, had no relationship at all with the children prior to their mother’s death.

[113] Aunt has supported the continuation of the same relationship the children have always had with MH. In December 2020, she consented to expanding the overnight from two weekends out of four, to three weekends out of four. MH acknowledged that aunt has offered that he can keep the children longer which he took advantage of two or three times, and when he asked aunt if he could return them 1 ½ hours later and she said yes.

(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,

Children’s relationship with father and paternal family

[114] MH started with supervised visits which went well. Society worker Ms. Lewis observed right from the beginning of her involvement that father was loving and affectionate and had a close relationship with all three children. He was consistently on time or early. The one time he was late he notified Ms. Lewis in advance. He came prepared with food and activities for the children. He engaged with them throughout each of the visits. He did not need any parenting assistance. The one time Ms. Lewis provided feedback (regarding not to let the child GM attend the bathroom in the society office alone as there were other parents using the space who may pose a safety risk) he was receptive.

[115] The following are some representative observations: (1) On April 10, 2019, the child GM who had arrived early was “very excited” to see MH. MH hugged the child and they cuddled together at reception while waiting for the girls to arrive. MH had brought pizza and snacks and a backpack full of activities to do during the visit. (2) June 10, 2020, MH brought snacks, water, toys and a Go Pro camera to take videos and have them make videos as well. He was encouraging to the children and gave them “pep talks,” telling them to practice and try for what they want, and hard work will pay off.

[116] Ms. Lewis observed that MH was a loving and caring father who attended all visits eagerly, usually arriving well before the start time. He always had the children organized and ready to depart on time. He was always prepared for access with activities to do that were child focused and in which he participated. Examples of activities include soccer, reading, board games, playing with playdough. The children and father were always excited to see each other. They appeared to have a close family bond from the first time she met them all together. The visits moved to semi-supervised which meant she would just check in every 20-30 minutes as opposed to remaining with them the entire time.

[117] Ms. Lewis never observed any conflict between aunt and MH during the access exchanges. Both parties always polite and civil with her. She never observed MH to be under the influence of alcohol or marijuana.

[118] Aunt approached Ms. Lewis multiple times to push for longer access visits: on May 27, June 10, June 17 and July 13, 2020, when Covid restrictions had lifted slightly, and it was safe to have longer visits.

[119] Ms. Stepien met with father, paternal grandmother and the children at his home on September 19, 2021. She observed the child LM cuddling with father and playing hide and seek with him. YM and GM appeared very comfortable in the home. MH told her if he wasn’t awarded custody it would be very difficult for him to maintain a relationship with the children as LM cried every time she needed to return to aunt. He said he sometimes wondered if it would be better to wait and see them when where older, for example 15 or 16 years old.

[120] The child GM’s relationship with MH has changed over the course of this proceeding. In MH’s first meeting with society intake workers Ms. Singh and Mr. Rockey on February 21, 2019, MH said he felt he was a father to GM because “as far as I’m concerned I am.” The society workers also noted that GM called MH “daddy.” When MH and the mother began their relationship GM was two years old. His biological father AJ was not involved at all. MH was the only father he knew until recently.

[121] Over time, GM has described feeling sad that MH treats him differently than he treats the two girls, that he spends more time with them during access visits and that he buys more things from them than he does for GM. MH denied treating GM differently but acknowledged that GM “recently started showing me distance.” MH is only seeking custody of the two girls.

[122] MH resides with his parents and his sister. They had no relationship with the children prior to the mother’s death. They now see the children during MH’s access visits with them. MH and his mother described the activities they do with the children and the enjoyable time they spend together. MH’s other sister and her family did see the children prior to the mother’s death as they lived close by, and the cousins would play together. Other than paternal grandmother, none of MH’s family members testified so it is difficult for the court to ascertain how close they are to the children.

Children’s relationship with maternal family

[123] Aunt, her partner and maternal grandmother have a close and loving relationship with all three of the children. Even before the children began living with them full time three years ago, they were close to the children and would visit them or have them stay with them frequently. Maternal grandmother resided with the mother at times and was the primary caregiver for the baby LM, getting up in the night to feed her and acting as her “second mother.” LM is particularly attached to her grandmother whom she has been cared for since her birth.

[124] The children’s therapist Ms. Vishnevsky noted that the aunt is a stable, consistent, predictable caregiver in the children’s lives which is likely the reason the children are feeling calm and able to explore the world around them.

Sibling relationship

[125] The three children are close. GM takes his role as big brother seriously and will often sit with YM and LM and teach them what he knows; for example, he will try to explain something YM is learning from school. He is protective of LM and helps her when she needs it. MH acknowledged that GM “looks out for his sisters.”

[126] GM and YM share a room. YM follows her brother around. LM observes her siblings closely and likes to mimic them. LM is affectionate and cuddles and hugs all of them.

[127] The children often sit together and play together. Aunt described how it is difficult to separate them; for example, when YM goes to bed, she will complain and tell them to bring GM. Similarly, if GM goes to bed first, he will ask and wait for YM to come to bed as well.

[128] YM has told aunt on several occasions she does not wish to go on visits with MH without GM. And after she comes home, she says she missed GM. And GM misses the girls when they are away. He sometimes tells them to take the Nintendo switch so they can pay online together while they are at MH’s home.

[129] Maternal family has demonstrated that they support the children’s relationship with, and emotional ties to, their father. Meanwhile, there is no evidence that MH will maintain the girls’ relationship and emotional ties to their brother, aunt and her partner and maternal grandmother, or to the memory of their mother. He has been unable to say a single positive thing about their mother over the course of his involvement with the society and in this trial. And he has made it clear he does not even wish to communicate directly with aunt.

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

[130] The child GM attended eight different schools in four years (from kindergarten to the middle of grade 2) which corresponded to eight different residences as his school enrollment was as per the catchment area. The moves were between Toronto, Peel, York Region and back to Toronto. The children YM and LM were too young to be in school at the time, but YM experienced several of the moves in residence.

[131] For the past three years, the children have been in one home, the longest they have ever resided in one residence. The child LM was nine months old when she began residing with aunt. She would have no memory of ever residing anywhere else.

[132] Aunt described YM has having only a few friends at school and it being difficult for her to make friends. She has one particular best friend that she is frequently together with at school, and they have exchanged gifts. Aunt has spoken to her teacher about her shyness as she wants to ensure she is doing well socially.

[133] Moving the two girls would disrupt the continuity of not only their residence and relationship with their primary caregivers, aunt, aunt’s partner and maternal grandmother; but also the continuity of YM’s school and relationship with her friends; as well as the girls’ relationship with their brother GM whom they have resided with their entire lives, not only the past three years.

(viii) the merits of a plan for the child’s care proposed by the society compared with the merits of the child returning to a parent

Society’s plan

[134] The society’s plan is for the three children to remain permanently in the care of their aunt with whom they have been residing for the past three years.

[135] The children have had a close and loving relationship with aunt, her partner and maternal grandmother even before they began living with them. As set out above, aunt, with the help of her partner and her mother, has ensured all of the children’s physical, mental and emotional needs have been met, and she has done so without any financial assistance from MH. The society has had no concerns about maternal family’s care of the children.

MH’s plan

[136] MH’s plan in not viable in any respect. He has never been the primary caregiver for the children. He has expressed no interest in them outside of his access visits. His plan would involve separating the three children when they have always resided together.

[137] MH plans to reside with his parents where he would share a bedroom with the two girls. He plans to eventually find a place of his own. MH’s plan would thus involve at least one change, and possibly two, to the children’s school.

[138] MH has not investigated where he would enroll the girls. In his Answer, he provided the name of Elmlea Junior School, but in cross examination, when it was put to him that the school in his catchment area is actually Braeburn Junior School, he acknowledged he might have made an error. When asked if he has gone to any of the schools, he answered no, because he does not know yet which way the case will be going. His plan also does not address childcare for LM who is not old enough to attend school. He testified that his mother, who works full time at Tim Horton’s, will look after her. His mother testified that she could change her work schedule but provided no details.

[139] When asked in cross examination if he had ever taken the child YM to school he first responded that he was “never invited to.” But he then acknowledged that aunt had in fact asked him if he would like to take YM to school for her first day of kindergarten. He also said aunt did not give him the date and time, but then acknowledged he did not follow up to obtain that information.

[140] When cross examined about his alarm over the scrape on the child GM’s arm, he said the reason he did not seek medical attention despite his alarm was that he did not have the children’s health cards. He acknowledged he had never asked for their health cards.

[141] When cross examined about his involvement in the children’s medical care he said he went to YM’s initial dental appointment but that he was never updated after that. But he acknowledged that he never asked for an update.

[142] MH is not vaccinated himself and he testified that he was opposed to the girls receiving the COVID-19 vaccination because he heard a parent on the TV news say it would affect their menstrual cycles. He has not followed up with the children’s pediatrician. He said he would take “other methods” of protecting the girls from COVID-19. When asked what other methods, he answered “home schooling” but he had not yet looked into what homeschooling would entail. He was not able to explain why he would rely on information he heard another parent say on TV rather than speaking with the children’s pediatrician.

[143] Paternal grandfather has health issues and is immunocompromised. When he had heart surgery over a year ago, MH temporarily suspended his access so as not to put his father at risk. His plan does not address how he will keep his unvaccinated girls apart from his immunocompromised father.

[144] He testified that he believes he is better equipped than aunt to meet the children’s needs because biological parents have “parent senses”. He believes aunt and her partner need parenting classes because they “never parented” and these are not their biological children. He asserts that maternal family members don’t care about the children, they just want money. He said that they weren’t there when the kids were “made” and you “can’t compare a parent’s love to an aunt or uncle’s love.”

[145] Another concern about MH’s plan is his historic lack of stability. Over the last 12 years he has had at least 8 different jobs and also periods on EI and social assistance. He has changed residences with the mother many times. His commitment to the children is also unstable. He went from describing the child GM as being like his own child to suggesting he would forego all visits with him to avoid his girls coming into contact with GM’s biological father AJ. He mentioned to society worker Ms. Stepien that if he does not get custody of the girls he may stop seeing them until they are older. When the society amended its protection application to seek custody to aunt, he cancelled his upcoming access visit with the girls because he was upset.

[146] His plan would also likely rupture the girls’ relationship with their grandmother entirely as they communicate only with her in Czech and MH has given no consideration as to how he would support their Czech language skills in his care.

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

[147] The children need a final resolution. They have been in litigation limbo for three years, the impact of which is evident on GM as he is old enough to be aware of the uncertainty, and he worries about being separated from his sisters.

(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

[148] I find the children would suffer emotional harm from being separated from aunt and maternal family and from being separated from each other.

[149] MH’s allegations that the children are being “emotionally abused” by aunt are completely unfounded. There is no evidence that she ever spoke negatively about the MH in the children’s presence.

[150] MH has repeatedly made unfounded allegations against maternal family throughout this proceeding: (1) He alleged grandmother has untreated mental health issues. The society investigated and determined that she has been taking medication for depression for the past 10 years. The society has never had a concern about her care of the children. (2) He alleged grandmother was emotionally abusive when GM told MH she “yelled” at him. The society investigated and determined that grandmother raising her voice on occasion did not constitute abuse. When GM was asked how scary her yelling was on a scale of 1 to 10, with 10 being not scary, he said 10. (3) He alleged aunt’s partner was physically abusive when GM told him aunt’s partner “pinched” his ear. The society investigated. Aunt’s partner readily acknowledged he had pinched GM’s ear when YM was crying that GM had punched her in the stomach. He and maternal aunt readily acknowledged that his action was inappropriate. It never occurred again. (4) He alleged aunt’s partner was physically abusive when GM scraped his arm during an incident when aunt’s partner was called into the bathroom when GM and YM were in conflict. The society investigated and determined that GM’s scraping his arm on the bathroom door was accidental. (5) He alleged aunt’s partner was responsible when YM injured her arm and that aunt delayed taking her to the hospital. The society investigated and determined that the injury was accidental and occurred when YM fell off the sofa, and that aunt took her promptly to the hospital for x-rays. (6) He alleged that maternal family were not following government COVID-19 protocol when a relative was visiting them from the Czech Republic. The society investigated and determined that all government rules were being followed.

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

[151] The findings of risk of physical and emotional harm were due in significant part to MH’s conduct.

[152] Despite MH attending the PAR (Partner Assault Response) program in 2017 and the Caring Dads program in 2020, he continues to demonstrate an inability to take responsibility for his actions or to control his anger. He continues to blame the mother for everything, including his own threatening texts to her. He has threatened the society on more than one occasion that he will go to “the media” when they took a position with which he disagreed.

[153] His conflict with maternal family continues to place the children at risk of emotional harm.

[154] On October 1, 2021, MH advised society worker Ms. Stepien through his counsel that he was no longer agreeable to communicating directly with aunt. He explained at trial that he took this step because aunt was “harassing” him as follows: she served him with her application for child support on […], 2021, which was the child YM’s birthday; and she called to during an access visit to ask for a repayment of the loan she had taken out for him and the mother.

Conclusion: The evidence is overwhelming that it would be in the children’s best interests to be placed in the custody of maternal aunt. I further find it would be in the children’s best interests to specify only the alternate weekend access to MH as that is consistent with, and actually more generous than, the access he currently enjoys, and to leave any expansion of access to be as arranged by the parties. Aunt, rather than this court, is in the best position to determine what expanded access going forward will be in the best interests of the children, as she, with the support of her partner and maternal grandmother, has always prioritized the needs of the children and demonstrated an unwavering, unconditional commitment to them.

PART SEVEN – ORDER

Final order to go as follows:

1. Statutory findings for the children GM, YM and LM as set out in the society’s amended amended protection application issued November 23, 2021.
2. Protection findings for the children GM, YM and LM pursuant to s. 74(2)(a)(i), (b)(i), (h) and (k).
3. The children GM, YM and LM shall be placed in the custody of their maternal aunt pursuant to s. 102 of the Act.
4. Maternal aunt shall be permitted to apply for and renew all government-issued documents, including but not limited to passports, health cards, social insurance numbers, and birth certificates for the children GM, YM and LM without the consent or signature of any other person.
5. Maternal aunt shall be permitted to travel with or authorize travel for the children GM, YM and LM outside of Canada without requiring the consent of or notice to any other person.
6. MH and maternal aunt may obtain information, records, and report cards relating to the children YM and LM directly from their teachers, doctors and any other professionals involved with the children, about their health, education and general welfare without the consent of any other person.
7. AJ and maternal aunt may obtain information, records, and report cards relating to the child GM directly from their teachers, doctors and any other professionals involved with the children, about their health, education and general welfare without the consent of any other person.
8. Access between AJ and the child GM shall take place at a minimum of once per month either in-person or virtually, as agreed between maternal aunt and AJ in accordance with their availability and in consideration of the child GM’s wishes.
9. Access between MH and the children YM and LM shall be as follows: a. Alternate weekends from Friday at 5 p.m. to Sunday at 5 p.m. (or Monday at 5 p.m. if Monday is a statutory holiday) commencing Friday March 25, 2022; b. MH shall have the children for two additional overnights for Eid; and any other Muslim holiday as agreed upon by MH and maternal aunt in advance. The children shall be with maternal aunt from December 24 to 26 each year. This holiday paragraph shall override the regular access schedule in paragraph (a) above. c. Additional or other access to be as agreed between maternal aunt and MH in advance. d. Maternal aunt may cancel MH’s weekend access in the event of illness, to accommodate travel or other special events for the children, or for unforeseen circumstance. Maternal aunt shall arrange make-up access for any cancelled access. If MH cancels a visit, the time shall not be made up. e. MH and maternal aunt shall communicate in writing via text or email to discuss access arrangements or any other issues concerning the children.
10. MH shall have access to the child GM during his parenting time with the children YM and LM, in accordance with GM’s wishes. If such access time conflicts with GM’s access with AJ, GM’s access with AJ shall prevail.

Released: March 17, 2022 Justice M.B. Pawagi