Children’s Aid Society of Peel v. T.R., 2022 ONCJ 268

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.

DATE: 2022 05 30 COURT FILE No.: Brampton 20035-16

ONTARIO COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of the Region of Peel Applicant

— AND —

T.R. and A.S. Respondents

Before: Justice S.V. Khemani

Heard: August 10, 11, 12, 13, 16, 17, 18 and 19, 2021, February 8 and March 16, 2022 Written Submissions: on August 27, September 7, 9, 2021 and February 28, 2022 Reasons for Judgment released on: May 30, 2022

Counsel: Amanda Rozario........................................................... Counsel for the Applicant Society Gregory Jones................................................................ Counsel for the Respondent T.R. Mark Trenholme.............................................................. Counsel for the Respondent A.S.

KHEMANI J.:

PART 1: OVERVIEW

Introduction

[1] The children before the Court are 5 year old J.N.G.S. (“J”), born […], 2016, and 4 year old M.A.R.S. (“M”), born […], 2018 (collectively “the children”). T.R. and A.S. are their parents.

[2] A.S. is also the father of four older children aged 11, 9, 8 and 7.

[3] All of these four children were placed in the extended care of the Children’s Aid Society of the Region of Peel (“the Society”) following protection proceedings.

[4] A.S. has contact with the elder two children.

[5] A.S. does not have contact with the younger two children; namely, T and Z.

[6] On February 11, 2019, the Society removed J and M from T.R. and A.S.’s care in exigent circumstances without a warrant of apprehension.

[7] The Society’s removal of the children triggered the Society’s Status Review of Justice M.M. Cheung’s December 5, 2018 Order.

[8] The children have remained in care since February 11, 2019.

[9] The Society’s initial Status Review Application filed February 14, 2019 sought a 6-month order for interim care of both children.

[10] Subsequently, in its Amended Status Review Application filed April 2019, the Society sought a 6-month order for interim care of M and an order for extended care for J.

[11] In its Amended Amended (2x) Status Review Application filed November 2019, the Society sought an order for extended care for both children and an order for access at the discretion of the Society.

[12] Which brings me to the proceeding before the court which is an Amended Amended Amended (3x) Status Review Application seeking an order for extended care for both children and an order for specified access with both parents and the children as holders of access was filed in February 2021.

[13] The Society is seeking an order that access shall:

(1) occur three (3) times per year in person;

(2) occur two (2) times per year virtually;

(3) occur two (2) times per year by email update; and

(4) any additional access shall occur at the discretion of the Society as to location, duration, frequency, and level of supervision, and subject to any other court order or conditions of release on any recognizance of bail or undertaking.

[14] T.R. and A.S. oppose the Society’s request and are seeking a return of the children to their joint care, or, alternatively to A.S.’s care.

[15] J and M are placed in a foster home operated by R and A.

[16] R and A are the adoptive parents of T and Z.

[17] T and Z were placed in the Society’s extended care and adopted by R and A several years ago and prior to J and M being placed in their foster home.

[18] J and M have resided with R, A, T and Z for over 3 years.

[19] The Society’s permanency plan for J and M is for them to be adopted by R and A.

[20] This trial, spanning eight days of evidence was conducted in person and via videoconference and concluded on August 19, 2021.

[21] Closing written submissions were filed by the applicant and the respondents respectively on August 27, 2021 and September 9, 2021.

[22] In reasons released on March 21, 2022, I ordered that the evidence in the trial of this matter be reopened to include the evidence that T.R. was acquitted of aggravated assault on or about January 19, 2022. [1]

[23] I commend court staff, counsel, and the witnesses for making the virtual and in person trial process flow smoothly despite minor technical difficulties.

[24] I acknowledge all counsel on their cooperation and organization throughout the trial. Counsel exemplified civility and discharged their duties as officers of the court to the highest standard.

Witnesses and Evidence

Oral Evidence

[25] I have carefully considered the evidence of the 15 witnesses who testified at the trial, namely:

1. T.R.
2. A.S.
3. A [Foster Parent]
4. R [Foster Parent]
5. Deonne Sargeant (“Ms. Sargeant”), Society Worker
6. Halisha Johnson (“Ms. Johnson”), Society Worker
7. Lynnette Oxley (“Ms. Oxley”), Society Worker
8. Maria Robinson (“Ms. Robinson”), Society Worker
9. Marian Amponsah (“Ms. Amponsah”), Society Worker
10. Nadine Helgason (“Ms. Helgason”), Team Leader [as she then was]
11. Rhonda Grimsby (“Ms. Grimsby”), Society Worker
12. Sheryl Williams (“Ms. Williams”), Society Worker
13. Theresa Tonon (“Ms. Tonon”), Society Worker
14. D.S., aka D.K., paternal grandmother
15. M.S., paternal aunt

Documentary Evidence and Written Materials

[26] Twenty-five Exhibits were filed during the trial.

[27] On August 27, 2021, pursuant to the Court’s Endorsement dated August 19, 2021, the Court received the Society’s Written Closing Submissions dated August 27, 2021.

[28] On September 9, 2021, pursuant to the Court’s Endorsement dated August 19, 2021, the Court received:

(1) Final Submissions of T.R. dated September 7, 2021.

(2) Closing Submissions on behalf of A.S. dated September 9, 2021.

[29] I have carefully considered the documentary evidence and written materials which were filed at the trial.

[30] On March 16, 2022, the Court heard a Motion to Reopen trial evidence.

[31] Four Exhibits form part of the motion record and are considered by the Court as part of the trial evidence.

Summary of the Court’s Findings

[32] In my view, the Society’s removal of the children from the T.R.’s and A.S.’s care on February 11, 2019, was unjustified.

[33] I find that the children were not at risk of physical harm in the care of T.R. and A.S. when they were removed on February 11, 2019.

[34] On the evidence before me the, the children are not at risk of physical harm in T.R. and A.S.’s care.

[35] The children shall be forthwith discharged from the care of the Society and to the care of T.R. and A.S.

[36] As a result of circumstances that have arisen since February 11, 2019, the children are at risk of emotional harm and require a court order for their continued protection.

[37] For the reasons that follow, it is in the best interests of the children to be placed in the care of T.R. and A.S. subject to supervision by the Society and on terms and conditions of supervision.

[38] Access, between J, M and their siblings, T and Z, and the foster parents, R and A, shall be determined by the Court and on further evidence.

[39] The Court orders the appointment of the Office of the Children’s Lawyer (“OCL”) to represent J and M.

Part 2: THE FACTS

The Current Order & Background

[40] On December 5, 2018, and pursuant to a Statement of Agreed Facts, Justice Cheung made statutory findings identifying the children’s names, their dates of birth, and the locations of their removals from the parents. The Court also found that the children are not First Nations, Inuk or Métis (“FNIM”).

[41] On that date, the children were found to be in need of protection pursuant to sections 74(2)(b)(i) and 74(2)(b)(ii) of the Child, Youth and Family Services Act (“CYFSA”) on consent of the parents pursuant to a statement of agreed facts.

[42] By way of disposition, the following Order was made by the Court:

The children, J.S. born […], 2016 and M.A.R.S. born […], 2018 are placed in the care and custody of the Respondents, T.R. and A.S. for a period of six (6) months plus one (1) day, subject to the of the Children’s Aid Society of the Region of Peel and subject to the following terms and conditions:

a. The Respondents, T.R. and A.S., shall ensure that the medical needs of the children, J.S. and M.A.R.S., are met;

b. The Respondents, T.R. and A.S., shall allow for the Children’s Aid Society of the Region of Peel into the home for announced and unannounced visits and shall allow the Children’s Aid Society of the Region of Peel to meet privately with the children, J.S. and M.A.R.S.

c. The Respondents, T.R. and A.S., shall participate in and engage with community services, as necessary, to support parenting skills; and

d. The Respondents, T.R. and A.S., shall provide written consent to allow the Children’s Aid Society of the Region of Peel to confirm their participation in and level of engagement with community service providers.

[43] T.R., A.S., J and M are Canadian, Caucasian and have identified that they are not religious.

[44] The Court previously found that T.R. and A.S. do not identify as a First Nations, Inuk or Métis person and neither they nor the children have any connection to a First Nations, Inuk or Métis Band or community.

[45] T.R. and A.S. have been in a relationship since 2015 and they reside together in Mississauga, Ontario.

[46] T.R. is 35 years old, she is a homemaker and she was primarily responsible for the day to day care of J and M until their removal on February 11, 2019. T.R. is currently employed as a cashier at a bakery in Mississauga earning $16.00 per hour for a 40 hour week.

[47] A.S. is 34 years old and he works as a mechanic.

[48] If the children are returned to their care, the family will reside together in the same home from which the children were removed in February 2019.

[49] Additionally, the parents’ day to day plan for the children is that the children will be enrolled in school and daycare close to their home, and T.R. and A.S. will jointly care for the children, they will meet the children’s instrumental, social and behavioural needs and, together, they will make decisions for their children.

[50] T.R. and A.S. have some family support from paternal aunt, M.S., and paternal grandmother D.S. aka D.K., however, they will be primarily responsible for caring for J and M.

[51] T.R. and A.S. are willing to cooperate with the Society, they are willing to comply with recommendations made by the Society and they are prepared to work with supports and services deemed appropriate by the Society.

[52] T.R. is also the mother of a now deceased child, B.R. (“B”), born […], 2015.

[53] Although not his biological father, A.S. was a parent to B.

[54] On March 3, 2017, B died of natural causes and specifically due to vascular abnormalities and malformation in his brain.

[55] J first came into the Society’s care immediately following the death of his brother B in March 2017. He was 8 months old at the time.

[56] J remained in the Society’s care for the following 7 months and or October 11, 2018 he returned to the care of T.R. and A.S. pursuant to a supervision order.

[57] T.R. was pregnant with M at the time of B’s death. M came into care immediately following her birth in February 2018. She remained in the Society’s care until October 5, 2018 when she returned to the care of T.R. and A.S. pursuant to a supervision order. M was 8 months old at the time.

[58] On February 11, 2019, M sustained a laceration to her forehead. On that same date, the Society removed J and M from T.R.’s and A.S.’s care without a warrant and with police assistance.

[59] On February 14, 2019, a Place of Safety Hearing proceeded. On this same date Justice P.J. Clay made a Temporary and Without Prejudice Order placing J and M in the care of the Society with the children’s right of access to T.R. and A.S. at the discretion of the Society as to location, duration, frequency and level of supervision.

[60] Between February 14, 2019 and April 25, 2019, the Society, in its discretion pursuant to the Temporary and Without Prejudice Order, has supervised all access between J, M and both of their parents.

[61] On April 24, 2019, two months after the children’s removal, the Society learned from police that T.R. would be charged and police would seek a no contact order between T.R. and the children.

[62] On or about April 24, 2019, T.R. was charged with aggravated assault in relation to M’s injury.

[63] From April 24, 2019, until July 2, 2019 and pursuant to T.R.’s Undertaking Given to a Peace Officer, T.R. was prohibited from having any form of contact with either of the children.

[64] On July 2, 2019, and before Justice E. Martin, both parents consented to the continuation of the Court’s Temporary and Without Prejudice Order made on February 14, 2019.

[65] On July 2, 2019, T.R. obtained an exception to her Undertaking and she was permitted to have contact as follows:

(1) EXCEPT in the direct and constant supervision of the CAS while at the CAS Access Centre or Office.

[66] On July 7, 2019, T.R.’s access visits resumed under direct and constant Society supervision at the Society’s offices.

[67] From February 14, 2019 until April 24, 2019, T.R.’s access visits with the children were Thursdays from 10:00 A.M. until 12:00 P.M. and Sundays from 1:30 P.M. until 3:30 P.M. at the Society’s offices. T.R. did not miss a single access visit until April 25, 2019, having been charged on April 24, 2019.

[68] Between April 25, 2019 and July 2, 2019 only A.S. attended for access visits. His visits were fully supervised by the Society in its discretion exercised in accordance with the Temporary and Without Prejudice Order issued by the court in February 2019.

[69] Once T.R.’s undertaking was varied in July 2019, she resumed access with the children; in accordance with her Undertaking, she had fully supervised visits with the children on Thursdays from 10:00 A.M. until 12:00 P.M. and Sundays from 1:30 P.M. until 3:30 P.M. at the Society’s offices.

[70] All in person access visits stopped between March 2020 until July 2020 as a result of the COVID-19 pandemic. For the first month, the children’s access with their parents was limited to a weekly phone-call.

[71] Then, approximately one month later, ZOOM visits started. The children had two visits per week via ZOOM.

[72] In July 2020 in person visits resumed at the Therapeutic Access Program (“TAP”) House in Brampton. Access took place every two weeks on a Sunday from 10:00 A.M. until 12:00 P.M. The visits were limited to T.R. and A.S. only; extended family members were not permitted.

[73] At the time of trial, T.R.’s criminal charge was outstanding, and she was bound by the terms of her Undertaking.

[74] At trial, the Society admitted that they did not have concerns relating to T.R.’s mental health.

[75] The Society’s position was that A.S.’s plan for the children was ill-informed, lacking in detail and not feasible. They argued that T.R.’s judicial interim release conditions prevented the children from being returned to the joint care of the parents.

[76] On January 19, 2022, T.R. was acquitted of the outstanding criminal charge.

[77] On March 21, 2022, the Court ordered the evidence at trial be reopened to include the evidence that T.R. was acquitted of committing an aggravated assault against the child M on or about January 19, 2022. [1]

[78] On March 21, 2022, the Court found that, as a result of T.R.’s acquittal, she was no longer bound by any orders prohibiting her contact with either child.

[79] The Society submits that the fact of the acquittal does not change its trial position with respect to extended care and access.

[80] The Society argues that the children continue to be at risk of physical harm in the care of T.R. and A.S. and that it is in the best interests of the children to be placed in its extended care and to be adopted by R and A.

[81] There is no evidence to suggest that the Society has taken steps to increase the duration or frequency of access the children have with T.R. and A.S. or that they are no longer supervising J’s and M’s access with T.R. and A.S.

[82] J has been in care in excess of the statutory timelines and approximately 1,790 days.

[83] M has been in care in excess of the statutory timelines and approximately 1,439 days.

[84] J and M have lived with R, A, T and Z for most of their lives.

[85] A number of extended family members exercised access with or otherwise were involved with J and M including paternal grandmother, D.S. aka D.K., paternal aunt, M.S., maternal grandmother, K.R., maternal grandfather, W.R., and maternal step-grandmother, C.R.

Legal Considerations on Disposition

[86] This status review was first returnable on February 14, 2019. New legislation, the Child, Youth and Family Services Act (“CYFSA”) came into force on April 30, 2018. Pursuant to section 11(1) of Ontario Regulation 157/18, a proceeding commenced under Part III of the Child and Family Services Act (“CFSA”), but not concluded prior to the entry into force of the CYFSA, shall continue under Part V of the CYFSA.

[87] The Society has brought this application pursuant to section 113 of the Act.

[88] The Society filed, and the Court considered, the Society’s plan of care pursuant to section 100 of the Act. That plan is consistent with the position it took in this case.

[89] Section 114 of the Act 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 Act.

[90] 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. 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.

[91] 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 T.R. and A.S.

[92] 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.

[93] In determining if a protection order is necessary to protect the child in the future, the importance of emotional ties between a child and the child’s caregiver are an important consideration. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., the Supreme Court expressed, at para. 37, that the Child and Family Services Act “seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail”. Because of this goal, the best interests of the child is “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 absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children’s Aid Society of Toronto v. S.A.P. et al., 2019 ONSC 3482 at para. 28.

[94] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act, 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 Act 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. See: Children’s Aid Society of Toronto v. H.F., 2020 ONCJ 526.

[95] Subsection 101 (1) and subsection 102 (1) of the Act read as follows:

Order where child in need of protection

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

Supervision order

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

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

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

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[96] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the child before intervention under Part V of the Act.

[97] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless it determines that these alternatives would be inadequate to protect the child.

[98] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.

[99] In determining the appropriate disposition, the court must decide what order is in the child’s best interests. The court considered the criteria set out in subsection 74(3) of the Act in making this determination.

Best Interests Determined from the Child’s Perspective

[100] Section 74(3) of the CYFSA further provides that best interests are to be based on the following factors:

74(3) Best interests of the child

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.

[101] In determining a child’s best interests, the court has to assess, from the child’s perspective, the degree to which the risks and concerns that existed at the time the society commenced its application continue to exist. See Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 at para. 36.

Original Order Presumed Correct

[102] The Society submits that there is ample evidence establishing that the children continue to be at risk of physical harm, which is the ground upon which they had previously been found in need of protection on December 5, 2018. I disagree with this submission.

[103] The Society submits that while they were in the care of their parents, both J and M sustained serious injuries of varying severity requiring medical attention and how the parents responded to the injuries depended on who was home when the injury occurred. I disagree with this submission.

[104] The Society argues that the current order is no longer in the best interests of the children and it therefore seeks orders of extended care and specified access for both children. I reject the Society’s argument.

J’s Injury Christmas Eve 2018

[105] There is evidence that on Christmas Eve 2018, when J hit his head, maternal grandmother and paternal aunt were able to assist getting A.S. and J to the hospital. At trial, the Society did not raise any issue with respect to the timeliness or the adequacy of the parents’ response to J’s injury on this date.

M’s Injury January 10, 2019

[106] On January 10, 2019, when M hit her head, A.S. arrived home as the incident was unfolding and was able to help M get immediate medical attention. At trial, the Society did not raise any issue with respect to the timeliness or the adequacy of the parents’ response to M’s injury on this date.

M’s Injury February 11, 2019

[107] On February 11, 2019, and while in T.R.’s care, M sustained a cut to her forehead which required stitches. After M was treated for her injury, she was released by the treating physician to T.R.’s and A.S.’s care.

[108] The Society alleges that when M sustained the laceration to her forehead on February 11, 2019, T.R.’s response was untimely, inadequate and that it was only after A.S. returned home from work that M received the attention she required.

[109] The facts are that T.R. was alone at home with both children on February 11, 2019, when M sustained her head injury.

[110] T.R. testified that M sustained her injury at approximately 10.45 A.M. This is the only evidence with respect to the time M sustained her injury.

[111] After M became injured, T.R. called A.S. at 10.52 A.M., A.S. arrived home soon thereafter, and T.R. arrived at the walk-in clinic with M at 11.20 A.M.

[112] At the walk-in clinic, after assessing M’s injury and determining that she required stitches, medical staff directed T.R. to take M to hospital as they were unable to treat the wound for a child of M’s age. Immediately thereafter T.R. and A.S. called an ambulance, and approximately six minutes later, T.R. and M arrived at Trillium Hospital; A.S. and J met T.R. and M at the hospital a short while later.

[113] At the hospital, M and T.R. were observed by RPN Sarah Termini and M was treated by Dr. Mann for her injury. M received 9-10 stitches, parents received aftercare instructions and M was discharged.

[114] The walk-in clinic did not call CAS to report any concerns with T.R. and M.

[115] Hospital staff did not contact CAS to report concerns with respect to T.R. and M.

[116] T.R. called Society Worker Ms. Oxley from the hospital and informed her that M had fallen while strapped in her highchair, that M had screamed a lot and that there had been a lot of blood. T.R. informed Ms. Oxley that M had not vomited and that she was alert.

[117] In the same phone call T.R. informed Ms. Oxley that she called A.S. right away as she was thinking about her deceased child B and that she was very worried because M had sustained a head injury.

[118] Immediately after speaking with T.R., Ms. Oxley consulted with her Team Lead Michael Ansu (“Mr. Ansu”). Contemporaneously, Ms. Oxley learned that the Society’s Screening Department received a referral from the paramedic who transported M and T.R. to the hospital. The paramedic reported that, in his assessment, M’s injury did not match T.R.’s explanation.

[119] Mr. Ansu and Ms. Oxley discussed the fact of T.R.’s decision to wait for A.S. to return home was “the same as what happened when B was in crisis”. It was determined that Ms. Oxley would go to the hospital, speak with T.R. and with the doctor who treated M. Ms. Oxley contacted police. She then headed to the hospital.

[120] Shortly thereafter, Ms. Oxley received another telephone call from T.R. who informed her that they had just left the hospital, M received stitches as the cut was deep, they were to monitor M overnight, wake her every 4 hours and T.R. was told that she could apply polysporin on M’s wound when she changed M’s bandages. T.R. was directed to have M seen by their family doctor the following Saturday to have the external stitches removed and that the internal ones would dissolve on their own. T.R. consented to Ms. Oxley receiving a copy of the doctor’s discharge summary; she also agreed to Ms. Oxley coming to their home to check on M.

[121] At the hospital, Ms. Oxley and police jointly met with Dr. Mann and RPN Termini.

[122] RPN Termini informed Ms. Oxley and police that she did not have concerns with T.R. and M.

[123] It is admitted that RPN Termini expressed to Ms. Oxley and to police that she was unsure why the paramedic, i.e. Emergency Medical Staff (“EMS”) had called CAS. RPN Termini observed T.R. as being appropriate and showing the right amount of concern. RPN Termini described M as being clean and not fearful of her mother.

[124] M was treated by Dr. Mann at the hospital. There is no dispute with respect to the fact that M sustained a 3 cm oblique laceration to the middle of her forehead, that it was straight and that there was no pattern.

[125] It is admitted that Dr. Mann described the cut as “not a serious injury”. Dr. Mann told police and Ms. Oxley that T.R.’s explanation for M’s injury was not inappropriate, but that it could also fit other scenarios.

[126] Following these discussions, Ms. Oxley consulted with Mr. Ansu and with Senior Service Director, Ms. Mary-Beth Moellenkamp. Ms. Oxley’s evidence is that based on “past history” and questions around how M sustained the laceration to her forehead, they jointly determined that the children would come into care in order to determine more information about the circumstances of the injury.

[127] Shortly thereafter Ms. Oxley contacted R and A and asked if J and M could be placed in their foster home. Ms. Oxley did so prior to speaking with T.R. and A.S. I note that J and M were not placed with R and A that day; however my finding that the Society contacted R and A that day, prior to speaking with T.R. and A.S. and the fact that T.R. and A.S. requested that J and M be placed with R and A are relevant to my overall assessment of the evidence.

[128] Ms. Oxley attended at paternal grandmother’s home with police on February 11, 2019, and both children were brought into care without a warrant of apprehension.

[129] At trial the Society argued that M’s injury was sustained in unclear circumstances. I disagree. The parents adequately explained how the injury took place.

[130] Society argued that T.R.’s response to the injury raises concerns with respect to the parents’ ability to recognize and mitigate risks. The Society asks me to conclude that T.R. did not and could not, on her own, respond adequately to what they suggest was a “serious” injury.

[131] Ms. Oxley’s evidence is that T.R. did not know the severity of M’s injury until she took M to the walk-in clinic and then to the hospital for treatment. The Society alleges that T.R. knew immediately that when the injury occurred, it was a head injury and that there was enough blood on the floor that wiping it up was a priority for her during the incident.

[132] In its argument, the Society, relied on the fact that, M sustained a head injury and as with B, T.R. and A.S. failed to respond adequately. That argument fails because of the evidence that B died of natural causes and there is nothing that either parent could have done differently.

[133] In my view, when T.R. shared her fear with Ms. Oxley, it was incumbent on the Society to re-focus T.R., and re-assure her that M’s injury and B’s death were not the same experience. Instead, in her consultation with Mr. Ansu, and Ms. Moellenkamp, “what happened with B” factored into the Society’s assessment.

[134] The Society’s argument that T.R.’s response was delayed is indefensible as Ms. Oxley’s assessment did not consider the time M was injured in her overall assessment of T.R.’s response to M’s injury. When asked by the Court when M became injured, Ms. Oxley told the Court that she did not know.

[135] On the evidence before me, I conclude that there was no delay whatsoever by the parents in ensuring that M received appropriate and adequate medical attention for her injury. From the time M sustained her injury, to the time T.R. contacted A.S., to the time A.S. returned home and T.R. arrived with M at the walk-in clinic, no more than 35 minutes and no less than 26 minutes elapsed.

[136] With respect to the adequacy of T.R.’s response to M’s injury, T.R.’s evidence is that after the highchair fell, she removed M from the highchair, attempted to calm M down and stop the bleeding, she immediately looked to cleaning up the surrounding area to prevent further injury to J, M or herself. After that, T.R. called A.S. to tell him what happened and for moral support; T.R. felt better after speaking with A.S. and they agreed that he would return home to care for J so T.R. could take M to the walk-in clinic. T.R. and A.S. made this decision because it was a cold winter day and T.R. wanted to avoid taking both children in the stroller to the walk-in clinic, but, had it been necessary, she would have done so.

[137] When T.R. was asked why she called A.S. immediately after M became injured, T.R. testified that she chose to call A.S. immediately after M fell because she was upset, frightened and because it triggered her memory of what happened with B. T.R. testified that she relied on A.S. to help calm her down and she took comfort in the fact that he said that he would take a cab home immediately.

[138] A.S. testified that he and T.R. called an ambulance to transport M because he had already taken a cab home, they had limited money, they could not afford to pay for another cab and so, they called 911 to get M to the hospital as soon as possible to treat her injury.

[139] The Society argues that their removal of the children was due, in part, to the parents’ failure to comply with the October 2018 Safety Plan which included keeping the home environment safe, keeping adequate supervision, calling on supports when they felt overwhelmed or stressed, calling 911 or going to the walk-in clinic when the children got hurt.

[140] In my view, the Safety Plan was not ordered by the Court and it was not incorporated into the December 5, 2018 Supervision Order which the parents were required to follow.

[141] Further, the December 5, 2018 Order does not contain a provision directing them to call 911 if the children became injured.

[142] If I am wrong and the parents were required to comply with the Safety Plan as part of the overall intent of the court order, then according to the Safety Plan, calling 911 was discretionary. The parents were to contact 911 or attend a walk-in clinic, reach out for support and contact the Society.

[143] In my view the sole purpose and intent of any safety plan is to ensure the safety and well being of the child(ren) in whose [best] interests the plan is made. In my judgment, the parents were in strict compliance with the Society’s Safety Plan.

[144] On my review of the evidence, I find that while in T.R.’s care, M sustained an injury following which T.R. tended to the child, assessed the child’s injury, she ensured the safety of the surrounding area for J, M and herself by cleaning up the area, she contacted A.S. for support, and he immediately returned home to care for J. Then, after M had been treated at the hospital for her injury, T.R. immediately contacted Ms. Oxley, she reported the incident to her, she informed Ms. Oxley that she had brought M to the hospital, that M had been treated and the doctor’s instructions. Despite the fact that M’s injury triggered T.R., I find T.R. acted responsibly, and she kept Ms. Oxley apprised of the situation in a manner that was timely and forthright.

[145] I have given great weight to the admitted evidence that neither the walk-in clinic nor the hospital contacted CAS to report concerns with T.R. and M.

[146] The Society’s evidence that EMS reported the incident to CAS is hearsay, unreliable, and untrustworthy. I give no weight to that evidence. From the Society’s presentation of its case, it seems the Society relied to some extent on the report from the EMS worker in its decision to remove the children on February 11, 2019. In my view, the Society ought to have called the EMS worker to give evidence at trial.

[147] After carefully considering the totality of the evidence I find that the Society’s removal of the children from the care of their parents on February 11, 2019 was unjustified. T.R.’s response to M’s injury was timely, adequate and appropriate.

[148] In my view, T.R. and A.S. were adequately caring for J and M, they were fully compliant with the terms of the operative Order and also with the Society’s Safety Plan.

Society’s Failure to Properly Assess Risk of Physical Harm

[149] In my view, the Society failed to properly assess the children’s risk of harm in T.R.’s and A.S.’s care.

[150] On February 14, 2019, M was seen at SCAN. Ms. Oxley shared photos of M’s injury taken by police and M was examined. Ms. Oxley provided SCAN Resident Brittany Howson-Jan and SCAN Dr. Sarah Schwartz with T.R.’s explanation of M’s injury. SCAN medical staff did not testify at trial. There is no evidence that SCAN met with T.R. to hear her direct explanation of the injury.

[151] On February 14, 2019, a skeletal exam survey was conducted on M and revealed no concerns.

[152] On February 21, 2019, Ms. Oxley confirmed with SCAN Resident Ms. Howson-Jan that J did not need to be seen by SCAN.

[153] In the days that followed Ms. Oxley met with both parents and continued to impress upon them that their failure to call 911 was in contravention of the October 2018 Safety Plan.

[154] On March 7, 2019, Ms. Oxley and Child and Youth Worker (CYW) Ms. Donna Robinson (“Ms. Robinson”) met with the parents. T.R. and A.S. reiterated to Ms. Oxley that they thought they had responded appropriately to M’s head injury, but next time they would be sure to call 911.

[155] On this same date Ms. Oxley informed T.R. and A.S. that this had been their last chance with their children and while they were not at fault with B’s death, their response to M’s injury had been the same as what happened with B.

[156] During this same meeting, Ms. Oxley informed T.R. and A.S. that the Society did not feel that the children could be returned to their care and asked whether any family members could present a plan for the children. Ms. Oxley also told T.R. and A.S. that the Society had to immediately explore permanency for the children given their ages and the length of time they had been in care.

[157] In my view, everything that happened after March 7, 2019 has been towards the fulfilment of the Society’s prophecy that the children would not be returned to their parents’ care. Regardless of when the Society amended its pleadings, the Society effectively ceased its assessment of the parents plan for the return of the children to their care on March 7, 2019.

[158] The Society’s evidence is that it’s investigation into M’s injuries continued until April 9, 2019 and that it took longer than expected as they were waiting for the final SCAN report.

[159] On April 9, 2019, and after consulting with Team Lead, Ms. Helgason, the following concerns were verified by the Society: Caregiver with problem (causing risk that the child would be harmed), and the concern of physical harm to the child.

[160] The verifications were made due to the unclear circumstances of M’s injury, combined with M being in T.R.’s sole care; and also as a result of T.R.’s response to the injury itself wherein she did not call 911 immediately but she called A.S. and waited for him to return home before seeking medical attention for M. One factor in the Society’s verification was the SCAN report which opined that the description of the incident did not fit the injury.

[161] Based on the foregoing and on the evidence before me I conclude that the Society stopped assessing the children’s risk of harm in their parents’ care 24 days after M sustained her injury, before the Society concluded its investigation into M’s injury, over a month before T.R. was charged with aggravated assault, and well before T.R.’s bail was varied to permit contact under Society supervision.

[162] If I am wrong and the Society’s assessment of the children’s risk of physical harm in T.R.’s and A.S.’s care is correct, then I am of the view that the children are at no greater risk of harm in the parents’ care than they were in December 2018.

[163] The Society led significant evidence from access visits prior to the children’s return to their parents’ care in October 2018 alleging that there were problems then and there are problems now.

[164] In December 2018, the Society recommended AND the Court endorsed the return of the children to T.R.’s and A.S.’s care. The Court’s endorsement of a disposition in a statement of agreed facts is, in my view, akin to accepting a joint position on sentence.

[165] Inherent in the presumption that the original dispositional order is correct is the presumption that the order is in the best interests of the children and that any risk is mitigated by terms and conditions of supervision.

[166] There is some authority to consider past parenting, and in so doing I find that there are some common themes with respect to positive observations and ongoing challenges that I have given some weight to.

[167] The Society’s clinical assessment that the parents are unable to adequately supervise the children is untenable given the injuries sustained by the children while in the care of the foster parents.

[168] This is glaringly apparent when I consider the level of scrutiny that T.R. has been subjected to by the Society.

[169] In arguing that T.R.’s parental instincts are wrong, the Society has, in my view adversely impacted T.R.’s confidence as a parent. This is evidenced by T.R.’s acceptance and implementation of all recommendations by the Society, even when contradictory.

[170] During access visits the children are observed running around with food in their mouths and the Society informs T.R. that this is dangerous; T.R. acknowledges the Society’s concerns and the Society’s recommendations; she directs the children to remain seated while eating. There is evidence that T.R. tries to closely supervise and manage meals and snacks and she directs and re-directs the children as needed. The parents are criticized for being unable to control the children; in my view, the parents had to repeat cautions and warnings to the children because of the children’s ages and stages of development and not because they lack the ability to parent or supervise.

[171] In 2016, the Society alleges that in some visits T.R. spent more time with J than with M and they directed that she focus on building her bond with M. This is not entirely accurate; there is some evidence that T.R. would focus on J when M was sleeping which in my view is appropriate. I also take issue with the fact that the Society’s assessment fails to consider the fact that M was apprehended at birth from the hospital and T.R. did not have a chance to bond with her newborn child. It is reasonable to infer that this could have impacted her ability to know and connect with M and the Society had an obligation to support and nurture T.R. knowing that to be the case.

[172] T.R. listens and incorporates the Society’s recommendations with respect to M and then the Society alleges that T.R. is at times overly focussed on bonding and continuing engagement with M to the exclusion of J. Which, again, T.R. receives, considers, and implements as evidenced by her efforts to ensure qualitatively better and consistent engagement with both children.

[173] The Society alleges that T.R. is unable to properly maintain physical control over M when holding her and she is directed to hold the child with M’s back towards her chest. T.R. accepts the assessment, she implements the recommendation, and she is subsequently told that in order to better engage with M, M should face her.

[174] The Society’s assessment is that both parents are unable to consistently manage and supervise J and M. There is evidence of the parents attempting to hold the children’s hands, directing and re-directing the children and cautioning them with age appropriate language with respect to their safety; and they do so when receiving the children, during visits and when sending the children away at the end of visits There is also evidence that J and M are young, active and accident prone and they are observed running around and bumping into things and injuring themselves in the foster home without the Society raising issue.

[175] In my view T.R.’s and A.S.’s parenting has been under such magnification by the Society that it has become distorted. Therefore, the Society’s assessment of T.R.’s and A.S.’s parenting is not accurate.

[176] It is also reasonable to infer that B dying in T.R.’s care, J’s and subsequently M’s removal from T.R.’s care and the Society’s reliance on “past history” in their work with this family might have impacted T.R.’s and A.S.’s “parenting confidence”.

[177] In addressing the Society’s concerns of “past history”, the only thing T.R. and A.S. could not do is change the fact that B died; I have no doubt that if they could, they would.

Children at Equal or Greater Risk of Harm in Care

[178] In my view, the children are at equal or greater risk of physical harm in care given the physical injuries they sustained in R’s and A’s foster home.

[179] It is alleged that prior to the children’s placement with their parents in October 2018, J sustained a “second degree burn” while in the care of his parents during an access visit. The parents’ account of the visit is that the visit went well, there were many family members in their home that day and J was fine throughout. Following the visit the Society received a report from the foster parents that J was fussy and when he awoke from his nap an injury was observed on his finger. The foster parents’ evidence is that J required medical attention, he was diagnosed as having a “second degree burn”, and he was prescribed polysporin to treat the injury.

[180] I take judicial notice of the fact that polysporin is a topical treatment often used to treat minor injuries in adults and in children.

[181] After receiving the foster parents’ report of J’s “injury”, the Society commenced an investigation. There is no evidence that the Society independently attended to meet with J and assess the “injury”, or received any independent evidence from the doctor who treated J. The Society accepted that J sustained an injury, the foster parent took him to a doctor and the doctor prescribed polysporin. The Society proceeded to ask T.R. and A.S. to explain how J may have sustained a second degree burn. What follows are the parents turning over every aspect of the visit and reiterating facts that only confirm that J was fully and properly supervised during the visit. At one point the parents said that it was a hot day, and perhaps while they were outside, unbeknownst to the many adults that were present, J might have touched a car parked in the driveway. While the children were ultimately and without a conclusive explanation of the “injury” returned to T.R.’s and A.S.’s care, this serves as another example of the Society’s unreasonable scrutiny of T.R. and A.S.

[182] This incident causes me to question the foster parents’ credibility and quite frankly, judgment. I am concerned with the foster parents’ report of J’s alleged injury and the Society’s ensuing investigation in 2018 given the foster parents’ response to J’s fall in the foster home on December 2, 2020.

[183] On December 2, 2020, while in R’s and A’s care, J broke his collarbone. Foster parents’ evidence is that J is very active and accident prone, that they were not present and supervising J when he fell, however, they believe that he climbed up on a chair in the kitchen and tried to reach for something that he was not allowed to have.

[184] Foster parents did not call 911 and they did not take J to a walk-in clinic. Both R and A testified that they did not take J to the walk-in clinic because the walk-in clinic was pre-screening patients due to COVID-19. They told the Court that, after speaking with the doctor, they determined that if J had been more seriously injured, he would be screaming and they were told to ice J’s bump and monitor to see if the injury got worse.

[185] Foster parents subsequently called J’s pediatrician to request a follow up. They also did a video call with T.R. and A.S. to inform them of J’s injury.

[186] On December 3, 2020, the foster parents testified that J’s pediatrician returned their call and told R and A to continue to ice J’s injury and monitor him. Then, on the night of December 3, 2020, J was fussy and would not sleep in his room and so the foster parents brought him into their room.

[187] Because of J’s fussy behaviour during the night, A took J to his doctor the next day, i.e. December 4, 2020, and following X-rays the doctor concluded that J had broken his clavicle. J’s arm was placed in a sling and A was told to ensure J kept his arm close to his body. This was followed up with a phone call to inform T.R. and A.S. of J’s injury.

[188] Since sustaining the injury, J’s arm has fully healed, and he is having no ongoing issues.

[189] There is no evidence that the Society took issue with the adequacy or timeliness of the foster parents’ response to J’s injury.

[190] There is no evidence that T.R. and A.S. took issue with adequacy or timeliness of the foster parents’ response to J’s injury.

[191] Applying the same standard the CAS applied to T.R. and A.S., one could conclude that J was not adequately supervised in the foster home, or that the foster parents’ response to J’s injury was inadequate. The question I am left with is why such a conclusion was not reached by the Society and why the children were not removed from the foster home.

[192] Both injuries required medical intervention, both injuries were described as being “serious” and also as being “not serious”. The difference being that J was seen by a doctor 2 days after he sustained his injury and wore a sling for approximately 2 months. And M was seen by a doctor approximately 35 minutes after she became injured, she required monitoring every 4 hours, application of polysporin to the injury, and follow up with her doctor to remove a few of the stitches a few days later as the rest would simply dissolve. It is impossible for me to accept the Society’s justification of their removal of J and M from their parents’ care on February 11, 2019 when I consider the foster parents’ response to J’s broken clavicle.

[193] I do not accept the foster parents as being credible given their response to J’s fall on December 2, 2020 compared with their alleged response to J’s “second degree burn” in 2018. With respect to the former and, in my view more serious of the 2 injuries, they waited 2 days to take J to a doctor; with respect to the latter and in my view less serious injury, J was allegedly taken immediately for medical attention. The only difference being that one injury was sustained by J while in the foster parents’ care and the other allegedly sustained while he was at an access visit with his parents.

[194] I am also concerned with the foster parents’ evidence that they determined it necessary to take J for medical attention for an “injury” to his finger that was ultimately treated by polysporin, but they did not deem it necessary to attend for medical attention when J fell and broke his clavicle. This is either a judgment issue or a credibility issue, either way it is an issue.

[195] J is described by the foster parents as having problematic behaviours, as being high energy, very active and requiring constant supervision. They have spoken with J’s doctors about their concerns with J’s impulse control and possible ADHD. They are availing themselves of support from the Reach Out Centre for Kids (“ROCK”) program. Whatever parental consents have been required by the Society to make referrals, T.R. and A.S. have provided.

[196] Foster parents testified that they have to constantly caution J about walking or running around, he often exhibits “toddler bruises”. They also have to constantly caution him about running around with food in his mouth.

[197] Similar behaviours are observed by the Society during access visits between the children and their parents and the Society’s position is that the children are at risk of physical harm in the care of their parents.

[198] In June 2020 while at the foster home, M fell while running and she cut her nose. A attended to the injury without calling 911 or having to call a doctor. A’s evidence is that M was fine after she tended to M’s cut and stopped the bleeding. The Society took no issue with the adequacy or timeliness of A’s treatment of M’s injury.

[199] Based on the foregoing, I reject the Society’s assessment of the inadequacy and delay associated with T.R.’s response to M’s injury on February 11, 2019, I do not accept the Society’s investigation, assessment and findings following the removal of the children on February 11, 2019 and I reject the Society’s argument that the children continue to be at risk of physical harm in T.R.’s and A.S.’s care.

Continued Intervention Is Necessary

[200] I find that continued intervention is necessary as a result of circumstances that have arisen since the making of the original Order and since the children’s removal on February 11, 2019 and the “status quo” that has existed for over three years.

Emotional Harm and Risk of Emotional Harm

[201] Foster parents make an invaluable contribution to our community by providing care for children removed from their families. My assessment of the foster parents’ evidence is not an indictment of the foster parents; it has, however caused me to question why, the Society did not apply the same standard of scrutiny to them and move the children from their placement.

[202] R and A testified that they never set out to become “foster parents”; R and A’s evidence is that they became foster parents in the process of adopting T and Z.

[203] In 2014 T was 18 months old and already in extended care. Z was born unexpectedly and so the Society shifted from looking for an adoptive family just for T to looking for a family that could also foster Z; at that point R and A became “foster parents” in order to care for Z. After the Society obtained an extended care order for Z, they adopted both T and Z.

[204] R and A very occasionally provided foster support for the Society when asked, but since adopting T and Z have only fostered a handful of other children.

[205] It is undisputed that R and A told the Society after adopting T and Z that they would be open to supporting any siblings that the children may have in the future, “whatever that support looked like”.

[206] R and A learned about J’s admission into care through T’s and Z’s extended family and they approached the Society and renewed their offer of support for the children even though when R and A first started caring for J and M, the Society was not seeking extended care.

[207] In October 2018, after J and M left their foster home, R and A fostered two young children at the request of the Society. Because these two children were in their care in February 2019, the Society did not immediately place J and M with R and A. While R and A were willing to take J and M, the Society determined, given the ages and stages of the children, R and A would not be able to provide the necessary supervision for the children. J and M were placed in R’s and A’s foster home in June 2019 and they have remained with them since.

[208] R and A allege that when J and M came back to their foster home, they had some challenges: J was lashing out with anger, he was having trouble sleeping, he would wake up screaming and he was “generally unsettled”. They described M as being “hesitant and anxious”.

[209] In June 2019, J and M had been in care for approximately four months with limited supervised contact with A.S. and with no contact with T.R. since April 24, 2019. Given the ages and stages of development of the children I conclude that J’s and M’s behaviours were attributable to something other than their contact with T.R. and A.S.

[210] Given the Society’s scrutiny of the parents, I am of the view that if there were any concerns with the parents’ contact with the children, the Society would have intervened and led evidence of same. If I accept the foster parents’ evidence with respect to the children’s behaviours, then I could, were I applying the same assessment standard, conclude that there was a deficit in the primary care the children were receiving in the foster home that was causing them emotional distress.

[211] A’s evidence is that, at times, the children both resisted access and that there were problems with access. She told the Court that J did not want to attend for access; while he did not express any reason why, he did not want to leave when it was time to go. A testified that she tried to be supportive, encouraging and tried to keep him in a positive frame of mind. When J returned from his visits he would “revert back” to his routine and he would have trouble sleeping. A testified that she informed Society workers what was happening, and she was told to continue doing what she was doing to support and to encourage J.

[212] The Society’s and parents’ evidence is that the children were, overall, engaging well during in person and video access. Generally speaking, the children greeted T.R. and A.S. affectionately, they engaged appropriately, and they participated in activities such as dancing, singing and reading. Presumably the Society Workers noted all concerns in relation to the visits; their concerns were with respect to inadequate supervision of the children by the parents and the quality of T.R.’s engagement with M and J.

[213] If I accept the foster parents’ evidence that the children were showing signs of emotional distress, then the Society had an obligation to look further into these concerns. Instead, the Society merely accepted the foster parents’ narrative and endorsed their response.

[214] If the children were having difficulty with access, I conclude that there were issues with the foster home given the fact that the children’s contact with their parents was limited, supervised and under heavy scrutiny.

[215] The children’s placement in the foster home is an order pursuant to the CYFSA. As such, the Society has a statutory obligation to ensure that the children’s placement is safe and that it is meeting the children’s physical and emotional needs. In this case, either the Society failed to ensure that the foster parents understood and complied with their obligations as foster parents within the meaning of the statute, or the Society failed to remove the children from the foster home once it was known that the foster parents were no longer acting as foster parents within the meaning of the statute. Either way, the children suffered emotional harm.

[216] This raises another issue. When the Society placed J and M with R and A, the foster parents were not prepared to disclose to A.S. that they were also the adoptive parents of T and Z. Again, I can accept that the foster parents’ decision to not share information until they were ready. However, A and R are not only T’s and Z’s adoptive parents; they are also J’s and M’s foster parents. And the evidence suggests that R and A did not maintain a separation between these roles and the Society was not monitoring them to ensure that they did.

[217] The foster parents’ evidence that “they are not really foster parents” is problematic and suggests that they were not acting as foster parents within the meaning of the statute. This exacerbates my concern that the children’s placement with R and A was not monitored by the Society as a “foster home”.

[218] There is evidence that T and Z are aware that A.S. is their father. There is evidence that J was asked questions by at least one of his brothers about why J and M had visits with A.S. and he did not. These are complex issues and neither the Society nor the foster parents satisfied me that any of the children’s emotional needs are being met in this regard.

[219] There is some evidence from the foster parents that a 3-4 year old J was asking about “adoption”. I can only assume that the concept of adoption was being discussed in the foster home given T.R.’s and A.S.’s access is supervised as there is no evidence to suggest that adoption was discussed during their access visits with the children. To accept the foster parents’ evidence that J was asking about adoption, is to also conclude that the foster parents, and by extension the Society, failed to meet J’s emotional needs because of his inappropriate and unnecessary exposure to the concept of adoption given his age and stage of development and the ongoing litigation.

[220] In my view, it was incumbent on the Society to ensure that the children were either not made aware of their biological connection to one another; or, once disclosed, to manage the complex issue for the young children involved. Again, a failure by the Society to protect the children in its care from emotional harm.

[221] There is ample evidence of the parents’ deference to and respect for R and A. They have sent gifts for the foster parents with the children, they have repeatedly maintained that if the children could not be placed with them, then they ought to be placed with R and A. When they learned of the injuries sustained by the children while in the care of the foster parents, they were respectful of the foster parents’ responses to same. When the foster parents preferred online school to in person school for J, the parents did not question their judgment. Parents have unfailingly consented to supports and services for the children to manage behaviours the children are exhibiting in the foster home. And, after learning that R and A were the adoptive parents of T and Z, they expressed some confusion with respect to why the information would not have been shared with them sooner and then expressed joy that the four siblings were placed together.

[222] Since coming into care and the making of the original order, I am of the view that the children have suffered emotional harm and that the children continue to be at future risk of emotional harm.

[223] In my view, any emotional distress the children have experienced in relation to access, placement, or adoption is as a result of their placement in the Society’s care.

[224] The children are also at risk of future emotional harm given their ages, stages of development, the length of time they have been in care, and their experiences while in care.

Return to T.R. and A.S. is in J and M’s Best Interests

[225] J is 5 years old. J has been cared for by same foster parents from March 2017 to October 2018 and then from June 2019 until present.

[226] M is 4 years old. M came into care at birth and remained in care until she was returned to parents when she was 8 months old in October 2018. M was cared for by T.R. and A.S. for a total of 4 months before returning to care in February 2019.

[227] M has been cared for by same foster parents from February 2018 until October 2018 and then from June 2019 until present.

[228] The following is my assessment of what disposition is in J’s and M’s best interests and the 74(3) best interests factors considered from the perspective of the children.

A. The Child’s Views and Wishes

[229] J is 5 years old. M is 4 years old. There is no evidence of the children’s views and wishes before the Court.

B. First Nations, Inuk or Métis Child

[230] This factor is not applicable.

C. Any other circumstances of the case that a person considers relevant, including:

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

[231] The parents were adequately meeting the children’s physical, mental and emotional needs before their removal on February 11, 2019.

[232] Since their removal, there is extensive evidence that the parents have been consistent with in person and remote access visits, they have attended on time or early, they have been loving, they have been attentive, they have cancelled only due to illness, and they have attended prepared with food and activities.

[233] T.R. and A.S., individually and jointly, have demonstrated a willingness to cooperate, understand, implement, and reflect on what is necessary to care for their children.

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

[234] There is considerable evidence that the parents meaningfully engaged with the children more than appropriately and based on the children’s ages and stages of development, in person and remotely, and despite the limited time the children spend with them.

[235] When the COVID-19 pandemic became a barrier to in person access visits, again the parents rallied. T.R. and A.S. managed to engage the small children over video visits. There is evidence of the children kissing the video screen hello and goodbye, singing, dancing, playing games and engaging in activities with T.R. and A.S. I give great weight to this evidence given the challenges many parents experienced when exercising video access visits with children of similar ages and stages of development and in less complicated circumstances.

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

[236] The children come from a blended family. They have lived with their half-siblings for over three years.

[237] Also, by virtue of the length of time the children have been in care, they have established relationships with their foster parents.

[238] I consider this to be a factor related to the children’s “family diversity” and have given it some weight in my determination of disposition.

iv. the child’s cultural and linguistic heritage

[239] Every family has a “culture”. There is a family culture in R’s and A’s home. There is a family culture in T.R.’s and A.S.’s home.

[240] The children have a right to learning and growing in their family of origin’s culture.

[241] By returning to T.R.’s and A.S.’s care, they will grow and evolve within their family of origin’s culture and heritage.

[242] T.R and A.S. have supported and encouraged the children’s experiences in their foster home, with their foster parents, and with their half-siblings.

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

[243] It is paramount for J and M to be returned to their family of origin as soon as possible; it is also necessary for the children’s transition to cause them minimal emotional distress.

[244] The children have been with a foster family for over three years; and, undoubtedly have strong attachments with their foster parents and siblings.

[245] I would prefer to transition the children to their parents’ care slowly and order a schedule of gradually increasing access so the children could emotionally adjust to the significant change in their lives. That is what would be best for the children.

[246] But I cannot do that as there is no evidence that the foster parents would be able to transition J and M to their parents’ care in a manner that is emotionally safe and healthy for the children. I have some concerns with respect to the foster parents’ ability to communicate this decision to the children in a child focussed way. They told me as much: they are “not really foster parents”.

[247] Given the length of time these children have been in care, their ages and stages of development and their need for permanency, I am not prepared to implement a graduated reintegration schedule.

[248] Based on the foregoing, I am of the view that it is in the children’s best interests to be immediately returned to T.R. and A.S. and without a graduated schedule and on the condition that T.R. and A.S. follow any recommendations made by the Society and sign any consents or authorizations and follow up with any referrals made by the Society related to the children’s emotional and behavioural needs.

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

[249] Since coming into care, and despite the limited access the children have had with their parents and extended family, and despite allegedly exhibiting “challenging behaviours”, these children have a bond with their parents, and prior to COVID-19, also with extended family members. This is based on the ample evidence of the parents showing up and engaging with the children. The children know them. The children respond to them. And regardless of the limited quantity of time the children spent with their parents, and despite disruptions to access, the children were able to pick up and continue their relationships with T.R and A.S.; the children were able to re-engage meaningfully and demonstrate affection, not mere recognition. The parents have been trying to satisfy the Society that they love the children, that they can keep the children safe, and that are prepared to cooperate with the Society and in fact, do whatever is asked of them, except give up on their children.

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

[250] I repeat and rely on my reasons set out above.

[251] T.R. and A.S put their children’s needs first. There is no evidence of either parent demonstrating any unreasonable frustration, anger or confusion during the last three years, despite the Society’s scrutiny. And, despite being told over three years ago that the children would not be returned to their care; despite having been charged with aggravated assault and being prohibited from having contact with the children for a period of time; despite COVID-19 which brought an abrupt end to in person contact for approximately 2 months, and then only having weekly telephone calls with children who were two and three years old at the time, and then having weekly ZOOM visits after that, and before eventually returning to two 2-hour visits a week. T.R. and A.S. persevered for their children. The children have a right to be parented by people who would persevere like that for them.

[252] There is no doubt that this order will significantly disrupt the children’s lives. There have already been two previous significant disruptions to the children’s lives. And these disruptions have been to protect the children. And yet, the children seem to be exhibiting some challenging behaviours in care despite their very limited and appropriate contact with T.R. and A.S.

[253] On the evidence before me, I believe that any behavioural challenges the children may have as a result of their return to their parents’ care can be managed by T.R. and A.S. with consistent patience, love and compassion, and with the continued support of the Society.

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

[254] Strictly speaking, I am asked to determine whether it is in the best interests of the children to be placed in extended care. However, I believe this factor allows me to consider the “merits” of the adoptive plan.

[255] In this case, the Society argues that it is in the best interests of the children to be placed in extended care, to be adopted by the foster parents and for the court to order access for the children and the parents in accordance with the foster parents’ access proposal.

[256] I accept that R and A love J and M very much, that they have cared for them for most of their lives, that R and A have exposed the children to different activities and life experiences, and that J and M are valued members of their household. I accept that R and A want to adopt J and M.

[257] R and A testified that they are very open to the concept of adoption and that both T and Z have openness with a few members of their family of origin. This was a general assertion made by the foster parents and it is given little weight as they did not provide the Court with any detail.

[258] I have difficulty accepting R’s and A’s openness to the concept of adoption. They gave no evidence with respect to what openness looks like between T, Z and their families of origin; therefore, their statement is a vague assertion. I can, therefore, only consider their evidence with respect to their access proposal for J and M.

[259] The evidence is that A.S. does not have any access with T and Z, T and Z have some contact with “extended family”, A.S. has some contact with his 2 elder children, and the Society supports ongoing access between A.S. and J and M.

[260] With respect to T and Z having contact with A.S., the foster parents’ evidence is they do not and that there is no order for access.

[261] With respect to whether they would ever want T and Z to have access with A.S., the foster parents testified that, at their ages, i.e. 9 and 7½, access was not in their best interests.

[262] I can accept that the foster parents made a parental decision for T and Z and concluded that contact with A.S. is not in their best interests. However, they did not give me reasons why. In the circumstances of this case, I believe the Court is entitled to know their reasons given the fact that the four children are related and share a parent. Neither the Society nor the foster parents gave any evidence with respect to how they planned on managing this, in my view, complex issue of two siblings having access with a parent and two siblings not having access with that parent on a “forever” basis.

[263] The foster parents told the Court that their access proposal is based on their own comfort level. They believe that more access would “overwhelm” the children and that the children would be unable to immerse themselves in their lives if there was more contact with T.R. and A.S. As such, R and A came up with a schedule that they believe is in the best interests of their family, their lives and their routine.

[264] The Society’s evidence is that the foster parents have a positive relationship with T.R. and A.S. In my view, if the foster parents genuinely had a positive relationship with T.R. and A.S., and in light of the extensive evidence of T.R.’s and A.S.’s respect for and deference to the foster parents, there would be some evidence that they, at minimum, considered access between A.S. and T and Z. There is no such evidence.

[265] Somewhere along the way, R’s and A’s desire to adopt J and M overwhelmed their ability to support J’s and M’s relationship with T.R. and A.S.

[266] In my view the access proposal does not reflect the qualitative extent of the children’s attachment to their parents; it also does not reflect T.R.’s and A.S.’s deference to the foster parents. There is no evidence whatsoever of the parents’ interference in the children’s relationship with the foster parents. There is some evidence of the foster parents interfering in J’s and M’s relationship with their parents and there is also evidence of both children exhibiting “challenging behaviours” requiring community supports. The children are currently struggling in care.

[267] The access proposal lacks insight; it fails to consider how J’s and M’s long-term relationship with T.R. and A.S. will be nurtured given the foster parents’ decision to not support a relationship between T, Z and A.S.

[268] This conclusion is supported by the Society’s deference to the foster parents’ access proposal, their lack of follow up with respect to the foster parents’ reports regarding the children’s alleged struggles with access, the Society’s unrelenting scrutiny of the parents in the face of their hands off approach with the foster parents, the Society’s failure to intervene when J allegedly started asking about adoption. So many people have been adversely impacted by the Society’s failure to monitor J’s and M’s placement with R and A.

[269] The Society bears the onus of establishing that the order sought is in the best interests of the children. In my view the Society failed to discharge its’ evidentiary burden.

[270] There are very concerning issues related to the foster parents’ primary care of the children that the Society, at best, failed to recognize or, at worst, overlooked.

[271] The children have resided with the R, A, T and Z for over three years. In my view they need to be able to say goodbye to all of them properly.

[272] Ultimately, it may be best for the children to have ongoing access with T and Z and that may require them to have continued contact with R and A. But that is for another day. There is insufficient evidence before me to address this issue.

[273] In the circumstances of this case, the Society bears the onus of informing the children about this order in a manner that is sensitive to their ages and stages of development and based on my finding that the children are at risk of emotional harm given the significant change to their lives returning to their parents will be for them.

[274] Based on the foregoing, I am of the view that the children’s need for emotional safety justifies an order that the Society shall not communicate this decision to the foster parents until such time as the Society is prepared to immediately communicate the decision to the children and implement a fulsome plan with respect to their departure from the foster home.

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

[275] I repeat and rely on my analysis as set out above.

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

[276] I repeat and rely on my analysis as set out above.

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

[277] I have worked in Brampton and specifically with the Peel Children’s Aid Society for over 20 years. In all of the cases that I have been involved in, it has been my general experience that the Society assesses risk, protects children, and supports families in a manner which is strength-focussed, inclusive, least intrusive and consistent with the CYFSA.

[278] They failed to do it in this case. In its’ decision to remove J and M based on “past history”, the Society failed to discharge its duty in a manner which is consistent with the the paramount purpose of the CYFSA: to promote the best interests, protection and well-being of children.

[279] In my view, the Society failed to recognize that T.R. and A.S. needed support given the trauma they had experienced with B. And, based on my findings, the Society’s removal of the children was inconsistent with the Society’s duty to support the autonomy and integrity of the family unit and the children’s need for continuity of care and for stable relationships within their family of origin.

[280] I have reviewed the facts surrounding B’s death and the history of the Society’s involvement with T.R. and A.S.

[281] When B was born on […], 2015, the Society became involved with T.R. as a result of concerns related to T.R.’s mental health/post partum depression and safety within the home environment.

[282] B came into the Society’s care pursuant to Part I of the CYFSA: a temporary care agreement. B remained in the Society’s care for 6 months on a voluntary basis.

[283] In March 2016, the Society commenced a Protection Application pursuant to Part III of the CYFSA alleging that B was a child in need of protection and sought an order placing B in the interim care of the Society.

[284] On March 9, 2016, and with the consent of T.R., Justice L.S. Parent made an order placing B in the temporary care of the Society, on a without prejudice basis.

[285] Between March 2016 and December 2016, T.R. participated in programming to increase her parenting capacity.

[286] While the Society was working with T.R. she became involved with A.S. and he joined T.R. in working voluntarily with the Society.

[287] T.R. and A.S. completed the Society’s Therapeutic Access and Assessment Program (“TAAP”) and they engaged in services with the VITA Centre.

[288] T.R and A.S. welcomed J in […] 2016. The Society worked voluntarily with T.R. and A.S. regarding J. The Society did not file a Protection Application relating to J and J did not come into the care of the Society.

[289] On September 7, 2016, B returned to T.R.’s care pursuant to the temporary order of Justice A.W.J. Sullivan and pursuant to terms and conditions of supervision.

[290] Three months later, on December 7, 2016, Justice P.J. Clay made orders for the withdrawal of the Society’s Protection Application and for termination of all existing orders relating to B.

[291] Child protection cases under Part III of the CYFSA are quasi –criminal proceedings. The Society exercises statutory authority pursuant to the CYFSA. The Society is the State.

[292] I am assisted by Justice Kukurin in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.R., 2021 ONCJ 41, who provides that an analogy can be made between a finding that a child is in need of protection in a child protection case, and a finding of guilt of a criminal offence in a criminal case. These are the critical findings that move the cases on to their next steps: a disposition order in the child protection case and sentencing in the criminal case. Without these pivotal findings these cases (almost) always end.

[293] However, unlike the Crown, the Society does not have the discretion to withdraw an application.

[294] As the Society exercises State authority, and the unilateral nature of the notice of withdrawal would be contrary to the statutory scheme of the Act and the duty imposed on the court to conduct a “hearing” by subsection 47(1) of the Act, Rule 12 of the Family Law Rules (giving party unilateral right to withdraw all or part of pleadings) does not apply to child protection cases under Part III of the CYFSA.

[295] Subsection 47(1) reads as follows:

47. Child protection hearing. — (1) Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

[296] The Act does not define the term “hearing”. The Court of Appeal in Catholic Children’s Aid Society of Metropolitan Toronto v. Lisa Marie O. and Michael P., 1997 ONCA 4445, confirmed the jurisdiction of the court to give summary relief in a protection hearing, and that a hearing need not always take the form of a trial, although that would be desirable in most cases.

[297] The withdrawal of a child protection case, therefore, needs permission of the court.

[298] There is no doubt that the Society removed the children from T.R.’s and A.S.’s care on February 11, 2019 based on its view of the parents’ “past history”, which necessarily includes their involvement with B and his death.

[299] On December 7, 2016, Justice Clay heard the Society’s Notice of Motion seeking orders that:

(1) The Children’s Aid Society of the Region of Peel’s Protection Application, dated March 3, 2016, as it pertains to the child, B, born […], 2015 is withdrawn.

(2) All temporary orders made under the CYFSA with respect to the child, B, born […], are terminated.

[300] In Children’s Aid Society of Toronto v. D.B., 2002 ONCJ 53290, Justice P. Jones of this Court lists four factors that the court may wish to consider in granting or withholding permission.

In considering what factors might be relevant to a determination that a withdrawal would be the appropriate disposition, the court identified the following factors:

(a) Whether any continuing protection concerns exist;

(b) Whether all parties consent to the withdrawal;

(c) The reasons for the withdrawal; and

(d) How the withdrawal would affect fairness of any other pending custody litigation.

[301] On December 7, 2016, Justice Clay granted the Society permission to withdraw its application and terminated all temporary orders endorsing as follows:

Society seeks to withdraw and work with Respondent Mother voluntarily. She has signed a Voluntary Service Agreement (“VSA”) today. I read the Notice of Motion filed today and the supporting affidavit of M. Ansu dated December 6, 2016. The Respondent Mother advised that she sees her counsellor every 2-3 weeks and the psychiatrist every 4-6 weeks. The Respondent Mother is in a stable relationship with Mr. S. who is the father of the second child who was born in […], 2016. Application is withdrawn.

[302] There was no finding that B was in need of protection in T.R.’s and A.S.’s care. There was no finding of “guilt” against the parents.

[303] So, what is the evidence of past history?

[304] On March 3, 2017, the night of B’s death, J was apprehended by the Children’s Aid Society of Toronto (“CAST”) and protection proceedings were commenced relating to J.

[305] On […], 2018, T.R. and A.S welcomed M and she was immediately removed from their care and placed in a foster home with J.

[306] On April 11, 2018, and after a post-mortem report confirmed that B’s death was as a result of natural causes and that neither T.R. nor A.S. could have done anything to prevent the child’s death, police concluded their investigation into B’s death.

[307] J and M remained in the Society’s care for the next 6 months, until October 2018. During this time the parents worked extensively with the Society to understand and address the Society’s concerns to ensure the return of the children to their care.

[308] In October 2018, and in planning for the children’s return to T.R.’s and A.S.’s care, the Society and the parents agreed to a safety plan which included keeping the home environment safe, keeping adequate supervision, calling on supports when they felt overwhelmed or stressed, calling 911 or going to the walk-in clinic when the children got hurt.

[309] On October 10, 2018, and pursuant to a Consent filed with the Court, Justice Clay made a temporary order placing J and M with T.R and A.S. under the supervision of the Society.

[310] On December 5, 2018, and pursuant to a Statement of Agreed Facts executed by the Society and the parents, Justice Cheung accepted the following facts:

(a) The Society first became involved with Ms. R. on August 20, 2015 when the Society received a telephone call from Public Health regarding B. The Society was advised that T.R. had reported that she was concerned that she was experiencing post-partum depression following B’s birth.

(b) B was in care pursuant to a voluntary agreement from August 21, 2015 which was extended on November 19, 2015 and expired on February 21, 2016.

(c) B’s natural father, C.H., did not put forward a plan for B’s care.

(d) On March 3, 2017 B passed away at the Hospital for Sick Children (“HSC”). At the time the injury causing B’s death appeared to be suspicious and unexplained.

(e) On April 11, 2018 the Peel Regional Police closed the criminal investigation relating to B’s death, as the post-mortem report confirmed that B’s death was caused due to natural causes. Neither Ms. R nor Mr. S could have done anything to prevent B’s death.

(f) Outside the now-resolved concerns relating to B’s death, the Society’s primary concerns with respect to Ms. R and Mr. S’s abilities to meet the needs of the children [are] as follows:

(i) T.R.’s mental health;

(ii) The unstable and unsafe nature of T.R.’s accommodations; and

(iii) Ms. R and Mr. S’s overall parenting skills.

[311] And based on the foregoing, Justice Cheung found J and M to be children in need of protection pursuant to section 74(2)(b)(i) and 74(2)(b)(ii) of the CYFSA.

[312] After finding the children to be in need of protection, Justice Cheung made an order with the consent of the Society and the parties, placing J and M in the care of their parents for a period of 6 months subject to supervision by the Society and on terms and conditions of supervision.

[313] This brings me to the removal of the children from the care of their parents on February 11, 2019 after M was discharged by medical professionals to her parents’ care.

Warrants are the Rule not the Exception: Society’s Failure to Obtain a Warrant

[314] On February 11, 2019, the Society attended with police to remove J and M from their parents’ care and without a warrant of apprehension pursuant to section 81 (2), (3) and (4) of the CYFSA:

(2) A justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a child protection worker’s sworn information that there are reasonable and probable grounds to believe that,

(a) the child is younger than 16;

(b) the child is in need of protection; and

(c) a less restrictive course of action is not available or will not protect the child adequately.

(3) A justice of the peace shall not refuse to issue a warrant under subsection (2) by reason only that the child protection worker may bring the child to a place of safety under subsection (7).

(4) Where the court is satisfied, on a person’s application upon notice to a society, that there are reasonable and probable grounds to believe that,

(a) a child is in need of protection, the matter has been reported to the society, the society has not made an application under subsection (1), and no child protection worker has sought a warrant under subsection (2) or brought the child to a place of safety under subsection (7); and

(b) the child cannot be protected adequately otherwise than by being brought before the court,

the court may order,

(c) that the person having charge of the child produce the child before the court at the time and place named in the order for a hearing under subsection 90 (1) to determine whether the child is in need of protection; or

(d) where the court is satisfied that an order under clause (c) would not protect the child adequately, that a child protection worker employed by the society bring the child to a place of safety.

[315] The Statute directs that warrants are the rule, and not the exception.

[316] There is no evidence that the children were at exigent risk of harm. The children were seen by at least three separate professionals at separate times on February 11, 2019; each of these professionals had a duty to report; no such reports were made. In fact, the Society was aware that M had been discharged to her parents’ care by virtue of T.R.’s telephone call; notwithstanding, Ms. Oxley elected to attend at the hospital rather than immediately and in “exigent” circumstances attending to remove the children from their parents’ care.

[317] Given the consultations that Ms. Oxley engaged in with Mr. Ansu and Ms. Moellenkamp while the children continued to be in T.R.’s and A.S.’s care, and the interviews she conducted at the hospital, I find that the Society had time to attend before a judicial officer and obtain a warrant of apprehension for the children.

Joint Investigations with Police: Society and Police are Separate Entities

[318] On February 11, 2019 Ms. Oxley contacted police on her way to the hospital, she met with hospital staff with police and she attended with police to remove the children.

[319] The Society’s investigation continued until April 9, 2019 when the Society made their findings with respect to T.R. and A.S. On April 24, 2019 police contacted the Society and informed them that T.R would be charged and that police were seeking a no contact order between her and both children.

[320] The Society and the police are, legislatively, two distinct entities with two distinct mandates. Crime is against the public while Children’s Aid matters are against the parents. While investigations between the Children’s Aid Society and police may often have their genesis in the same allegations, each entity must conduct its’ respective investigation and assessment in accordance with their respective mandates. One entity cannot allow the other entity to dictate the other’s investigation and case management direction. In addition to being without legal basis, the consequences are too devastating.

[321] Certainly there is a public interest in protecting our children, but the Society cannot exercise its authority over children in the public interest.

[322] The Society can ONLY exercise its authority in a manner which is consistent with the promotion of the best interests, protection and well-being of children (s. 1 (1) of CYFSA), and;

(1) So long as it is consistent with the best interests, protection and well-being of children, with the recognition that:

(a) While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

(b) The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

(s. 1 (2) of CYFSA)

The Society’s Exercise of Authority and the Basis of Legal Inferences

[323] By virtue of the fact that the Society and the court exercise power or authority over another person we must be vigilant about our inferences and conclusions.

[324] I found the following test helpful in assessing the evidence before me:

(1) WHAT is my inference?

(2) WHAT is the basis for the inference?

(3) Does that basis lead to a legally supportable inference?

[325] On the facts of this case, I believe the Society relied on a past history that did not support the inferences leading to the intrusive measures taken.

The Society is the State: Parties are not equal in a child welfare proceeding

[326] We are talking about the most vulnerable members of our Society: OUR CHILDREN. Nothing could possibly hit closer to home. Based on our legislative commitment to protect children, the CYFSA, gives the Society more power than the police in some instances.

[327] When charged with a criminal offence, and if held for bail, the person charged must be brought before a judicial officer within 24 hours of arrest.

[328] By contrast, once the Society removes a child from the care of a parent, with or without a warrant, the Society has five days to bring the matter to court. In the life of a child that is a very long time.

[329] I cannot emphasize enough the fact that the Society and the court exercise a great deal of power over other people’s children. Sometimes it is necessary to remove a child from the care of a parent without a warrant. However, when exercising authority over another person’s child, it is incumbent on every single person who exercises that authority to ensure that the intervention is necessary and proportionate to “risk”.

[330] At every stage of the proceeding and at every court appearance, we must critically ask whether the assessment we have undertaken is fair and balanced and the intervention is justified.

[331] I do not believe that any of us have the privilege of not asking “why”, every time we exercise some sort of power over another person. Especially when we are dealing with children’s lives.

[332] In a criminal case, the Crown must prove its case beyond a reasonable doubt. At a bail hearing, however, the Crown is entitled to rely on evidence that is “credible and trustworthy” as it is not dealing with the ultimate issue: the guilt or innocence of the person charged with a criminal offence.

[333] In a child welfare case, the civil burden of proof, i.e., balance of probabilities applies when deciding whether a child is in need of protection. The civil burden presumes that the parties are equal. How can parties be equal when the Children’s Aid Society is the State, and they are exercising statutory authority against a parent?

[334] Children who are disproportionately represented in the child welfare system are black, Indigenous, or otherwise racialized; they are from families marginalized by poverty, mental health, addiction, physical disability and/or trauma.

[335] I find the J and M are in need of protection as a result of their separation from their parents for over 3 years, that the parents need to be supported in their parenting, they need to have resources allocated to them immediately to ensure their parenting is strong, confident and geared towards meeting their children’s needs, and also to help them grieve and heal from B’s passing. The Society must immediately assess and implement a case management direction that is strength focused and rehabilitative and one that is not unjustifiably filtered by past history.

[336] As for T.R.’s unspeakable trauma of having not lost one son but both on the same night, and then her daughter upon delivering her; and then losing J and M a second time, I have no words. I can only say that T.R. has persisted.

[337] T.R. and A.S., on the evidence before me, there is nothing that would suggest that either of you could have done anything to prevent B’s death. No one has the power to give you back your son or the last three years of your lives or of your children’s lives. For that I am truly sorry. On the evidence before me I have no doubt that you will work with the Society to ensure that the transition of the children to your care is healthy and successful.

[338] And, if I am wrong, and I have misapprehended the facts, the law, or my authority, then every single day this family was kept apart is justified.

[339] Moving forward, the Society must assess the needs of these children and this family based on my finding that the children are not at risk of physical harm in T.R. and A.S.’s care.

[340] The Society must immediately implement steps to rebuild trust with the parents and shore the family up for success because of the need to ensure the children’s transition to their parents’ care is as smooth as it can be given the significant change I have determined to be in their best interests.

[341] I am satisfied that it is in the best interests of the children to be returned forthwith to the care of T.R. and A.S. and with the support of the Society.

Conclusion

[342] Based on the foregoing reasons, and in the circumstances of this case, I have concluded that the children are no longer at risk of physical harm in the care of T.R. and A.S.

[343] J and M, no longer being at risk of physical harm, however, being at risk of emotional harm, are forthwith returned to the care of T.R. and A.S. on the following terms and conditions:

ORDER:

(1) Office of the Children’s Lawyer (“OCL”) shall be appointed to represent J and M on an expedited basis.

(2) Court’s Administration shall forthwith send these Reasons and herein Order appointing the Children’s Lawyer to the attention of Katherine Kavassalis, Personal Rights Legal Director, OCL.

(3) Unless otherwise ordered by the Court, OCL shall be responsible for communicating the change of placement to the children in a manner consistent with J’s and M’s age and stage of development.

(4) Unless otherwise ordered by the Court, OCL shall be responsible for communicating with the children about this order, the issue of access, and these reasons for judgment in a manner consistent with the ages and stages of development of the children.

(5) T.R. and A.S shall follow all recommendations made by the Society and the OCL. They shall sign all consents and authorizations, and they shall follow up with any service referrals made by the Society and the OCL related to the children’s emotional and behavioural needs.

(6) So long as the J and M remain in a foster home run by R and A, no person shall communicate this decision to the foster parents or to T and Z until such time as the Society, in consultation with OCL, is ready to facilitate J’s and M’s return to T.R.’s and A.S.’s care.

(7) Court’s Administration shall release these Reasons forthwith to Parties via Counsel.

(8) Court’s Administration shall release these Reasons to the attention of Ms. Deana DeGrace, Legal Director, Peel Children’s Aid Society and A/Executive Director, Ms. Mary Beth Moellenkamp, Peel Children’s Aid Society.

(9) Following their return to T.R.’s and A.S.’s care, and in consultation with OCL, the Society shall arrange and fully supervise one 2-hour supervised visit for J and M so that they may assure themselves that R, A, T and Z are doing well and still love them.

(10) I remain seized with this matter.

(11) A return date shall be scheduled before me in accordance with the Court’s and Counsel’s availability.

Released: May 30, 2022

Signed: Justice S.V. Khemani

[1] Peel Children’s Aid Society v. T.R., 2022 ONCJ 122.

[2] Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.R., 2021 ONCJ 41.

[3] Catholic Children’s Aid Society of Metropolitan Toronto v. Lisa Marie O. and Michael P., 1997 ONCA 4445, 102 O.A.C. 232, 149 D.L.R. (4th) 464, 30 R.F.L. (4th) 16, [1997] O.J. No. 3041, 1997 CarswellOnt 2742 (Ont. C.A.).

[4] Children’s Aid Society of Toronto v. D.B., 2002 ONCJ 53290, [2002] O.J. No. 2318.