WARNING

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

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

87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

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

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

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

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Toronto v. R.I., 2022 ONCJ 612

DATE: 2022 12 22

COURT FILE No.: Toronto C31112/19

BETWEEN:

Children’s Aid Society of Toronto Applicant

— AND —

R.I. and B.I. K.R. N.J. and S.J. Respondents

Before Justice D. Szandtner

Heard on: November 14 – 17, 2022

Reasons for Judgment released on December 22, 2022

Chithika Withanage........................................ counsel for the applicant society R.I. (mother).......................................................................... on her own behalf B.I. (father of N.M. and A.I.) ................................................ on his own behalf S.J. (maternal grandfather) ................................................... on his own behalf N.J. (maternal grandmother) ............................................... on her own behalf Sheila MacKinnon counsel for the Office of the Children’s Lawyer, legal representative for the child J.R. Jean Hyndman counsel for the Office of the Children’s Lawyer, legal representative for the child N.M. K.R. (father of J.R.) .................................................................... not appearing

SZANDTNER J.:

Part One – Introduction

[1] This case is an Amended Protection Application about three siblings, J.R. (born […], 2009), N.M. (born […], 2014) and A.I. (born […], 2017).

[2] The applicant is the Children’s Aid Society of Toronto (“CAST”).

[3] The respondent parents are the children’s mother R.I., J.R.’s father K.R. and N.M. and A.I.’s father B.I. The respondent maternal grandparents are S.J. and N.J. (“the grandparents”). Neither the respondent parents nor the respondent grandparents were represented by counsel.

[4] J.R.’s father K.R. was noted in default and did not participate in the proceeding.

[5] J.R. was represented by child’s counsel Sheila MacKinnon. N.M. was represented by child’s counsel Jean Hyndman.

[6] CAST seeks an order that there be no further order pursuant to s.101(8) of the Child Youth and Family Services Act (“the Act”). This would terminate the involvement of CAST and any existing Ontario Court of Justice orders.

[7] The parents R.I. and B.I. support the Society’s position that there be no further order.

[8] The grandparents seek a final supervision order placing J.R. in their care. They seek orders that they can obtain government issued identification and to renew passports and travel with J.R. without his parents’ consent.

[9] The grandparents also seek an order for specified access to N.M. and A.I. on a bi-weekly basis including an overnight visit. They seek an order that N.M. and A.I. attend public school and not be home-schooled. They want CAST to remain involved with the case until all matters pertaining to J.R.’s custody, sibling access and their access are resolved.

[10] J.R.’s counsel seeks a 12-month supervision order with terms and conditions placing him in the care and custody of the grandparents. The supervision order sought includes an access provision for specified contact with siblings N.M. and A.I. and access with his mother R.I. and step-father B.I. in accordance with J.R.’s views and preferences.

[11] J.R.’s counsel also seeks a 12-month supervision order with terms and conditions placing N.M. and A.I. in the care and custody of their parents B.I. and R.I. One of the terms and conditions is that the parents ensure that access between N.M. and A.I. and J.R. takes place. The order sought also stipulates that R.I. take steps to amend the Newmarket Superior Court order governing J.R.’s custody. Once this is completed, the order would stipulate that the maternal grandparents are to withdraw their Oshawa Superior Court application for access to N.M. and A.I.

[12] N.M.’s counsel seeks a final supervision order with terms and conditions placing N.M. in the care and custody of her parents B.I. and R.I. One of the conditions is that the Oshawa Superior Court order is either terminated or finalized during the term of the order. The order sought also provides that N.M. shall have access to her grandparents in accordance with her wishes as arranged by the parents and grandparents. The order sought also specifies sibling access between N.M. and J.R., as arranged by the parents and the grandparents in accordance with the wishes of both children and at a minimum once every two weeks for a minimum of one hour. The access is to be facilitated by the parents and grandparents.

[13] The parties consented to a protection finding under s.74(2)(b)(i) and (ii) based on a Statement of Agreed Facts on January 21, 2020. The issues before the court are what, if any, disposition and access orders are in the children’s best interests.

Part Two – Background

[14] J.R. was born in 2009. He resided with his mother and his grandparents from three months of age (when his parents R.I. and K.R. separated) onwards.

[15] On June 26, 2012, R.I. secured a final custody order placing J.R. in her sole custody at the Newmarket Superior Court of Justice.

[16] In the fall of 2014, R.I. moved in with her new partner B.I. She gave birth to their first child N.M. on December 28, 2014.

[17] In August of 2015, J.R. left the care of the maternal grandparents and moved in with his mother R.I., step-father B.I. and sister N.M. He was five years of age.

[18] On August 31, 2016, the family became involved with the York Region Children’s Aid Society (“York CAS”). On that date, the maternal grandfather reported to the York CAS that six year old J.R. disclosed to him that he was being hit with a spoon by his step-father B.I. which resulted in a visible marks.

[19] Following this disclosure, the York CAS provided service to the family on a voluntary basis. J.R. (6 years old) and N.M. (2 years old) were voluntarily placed with the grandparents in August of 2016. They remained there for almost two years until June 15, 2018.

[20] From August 2016 to June of 2018, the B.I. and R.I. worked voluntarily with York CAS and completed Triple P parenting programming to develop an understanding of alternative discipline techniques.

[21] B.I. and R.I.’s third child A.I. was born […], 2017. She remained in the care of her parents following her birth.

[22] On June 15, 2018, N.M. and J.R. were returned to their parents’ care as part of a York CAS reunification plan.

[23] On June 15, 2018, the grandparents initiated court proceedings to secure their access to the children. A temporary access order was made on June 15, 2018 by Justice Leef of the Oshawa Superior Court of Justice granting the grandparents access to the children once per week for five hours.

[24] The family moved to Toronto and into CAST jurisdiction in or about May 2019. The York CAS transferred their file to CAST.

[25] On August 21, 2019, the grandfather reported to the CAST worker that J.R. had a mark on his bottom and had disclosed that his step-father B.I. beat him. A joint investigation of the allegation was conducted the same day by CAST and police from the Child and Youth Advocacy Centre. During the interview J.R. disclosed that B.I. had hit him. J.R. also disclosed that his mother R.I. hit both him and N.M. with a hanger because they weren’t unpacking clothes fast enough.

[26] On August 21, 2019, B.I. was charged with assault against J.R. R.I. was also charged with assault with a weapon against her children J.R. and N.M. B.I. and R.I. were released on bail with conditions relating to and restricting their access to the children.

[27] On August 21, 2019, the three children J.R., N.M. and A.I. were placed with the grandparents who were deemed a place of safety by CAST.

[28] On August 23, 2019, CAST issued its Protection Application seeking a finding and a six-month supervision order placing the children in the care of the grandparents.

[29] On August 26, 2019, Justice Paulseth made an order placing the children in the care of the grandparents under a temporary supervision order on consent of the parties.

[30] On January 21, 2020, the parties consented to an order finding the three children in need of protection under s.74(2)(b)(i) and (i) of the Act. It was agreed that the children were in need of protection due to a risk that the children were likely to suffer physical harm inflicted by the person having charge of them.

[31] From August 2019 onwards, the parents worked with counsellors from Millan and Associates and CAST workers with a focus on their punitive parenting and discipline. The parents had weekly access to the children supervised by CAST which later expanded to in home visits supervised by CAST and Millan counsellors from January to March 2020.

[32] On July 8, 2020, B.I. and R.I. both plead guilty and were each criminally convicted of assault. B.I. was convicted of assault against J.R. and R.I. was convicted of assault with a weapon against J.R. and N.M. On January 13, 2021, they were each sentenced to probation for three years. They have completed almost two years of their three-year probation terms.

[33] On July 22, 2020, Justice Paulseth varied the temporary orders such that J.R. was to remain in his grandparents’ care and N.M. and A.I. were to be placed in the care of R.I. subject to Society terms of supervision. Justice Paulseth ordered that N.M. would have a minimum of two overnight visits per week at the maternal grandparents’ home and A.I. would have one overnight visit per week.

[34] On August 20, 2020, Justice Paulseth ordered that R.I. vaccinate both N.M. and AI. This term was made a condition of her temporary supervision order.

[35] On May 29, 2021, R.I. gave birth to K.I., her third child with B.I. She has remained in the care of her parents to date. K.I. is not the subject of the within Amended Protection Application.

[36] On May 31, 2021, a temporary order was made placing the children N.M. and A.I. in the care of both of their parents.

[37] On September 8, 2021, Justice Paulseth ordered that sibling access was to occur for 30 minutes biweekly with R.I. and the grandparents observing from a distance.

[38] On November 8, 2021, Justice Paulseth ordered on consent that the sibling access should occur biweekly for 30 minutes alternating between the Malvern and Markham libraries.

[39] J.R. continues to reside in the care of the grandparents under a temporary supervision order. N.M. and A.I. continue to reside in the care of their parents under a temporary supervision order.

[40] On June 27, 2022, the Society filed an Amended Child Protection Application seeking an order that there be no further order pursuant to s.101(8) of the Act.

Part Three – Disposition

The Law

[41] The legal test for making a disposition order is found at s.101(1) and s.102 of the Act:

101.(1) Order where child in need of protection – 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.

1. Supervision order – 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 no more than 12 months.

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

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

4. Consecutive orders of interim society care and supervision – 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.

[42] Subsection 101(7) provides guidance with respect to a supervision order:

101(7) Terms and conditions of supervision order – If the court makes a supervision order under paragraph 1 of subsection (1) the court may impose,

(a) Reasonable terms and conditions relating to the child’s care and supervision;

(b) Reasonable terms and conditions on,

(i) The child’s parent,

(ii) The person who will have care and custody of the child under the order,

(iii) The child, and

(iv) Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) Reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

[43] Subsection 101(8) of the Act provides that where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect a child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

[44] 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.

[45] Subsection 104(1) of the Act provides that the court may, in the child’s best interests, make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Disposition - Threshold Issue

[46] The legislative pathway clearly sets out in s.101(8) that if a court order is not necessary to protect the child in the future, the court shall order that the child be returned to the person who had charge immediately before the intervention. Therefore, the threshold issue of whether a court order is needed to protect these children must be addressed prior to turning to the best interest test.

[47] The Supreme Court of Canada in Catholic Children’s Aid Society of Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (para. 37) addressed the importance of emotional ties between a child and the child’s caregiver. The case was a status review application, not a protection application, but similarly required a finding that there is a continued need of protection before a disposition order can be made, and the court held that said finding did not have to be grounded only on whether the initial protection concerns still existed:

….the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. As the Court of Appeal further noted:

We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the caregivers, whom the child recognizes as her psychological parents, is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.

This flexible approach is in line with the objectives of the Act, as it 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.

CCAS v. C.M. 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (para. 37).

[48] CAST’s position is that the evidence does not support a finding that a court order is necessary to protect the children in the future.

[49] To support this position, CAST and the parents rely on the following evidence:

a) The parents have worked cooperatively with Sonia Mills Minster of Millan and Associates.

b) The parents testified that they have learned disciplinary techniques which do not involve corporal punishment or punitive parenting. They currently practice these techniques and stated that they will continue to do so in the future.

c) The children, N.M. and A.I., who have been in the physical care of their parents since July 22, 2020 under a temporary supervision order, have not reported any corporal punishment since their return home.

d) N.M.’s views and preferences at this time.

[50] To support this position that no further court order is necessary with respect to J.R., CAST relies on the following evidence:

a) J.R. is currently happy residing in the care of his grandparents.

b) CAST supports his permanent placement in the home of the grandparents.

c) The parents testified that they support his continued placement in the care of the grandparents.

d) The grandparents have testified that they can provide a permanent home for J.R.

e) The January 2021 probation order that governs the parents (for one more year) prohibits the parents from communicating directly or indirectly with J.R.

[51] It is the CAST submission that the Newmarket Superior Court order (June 26, 2012 of Justice Olah) that would legally place J.R. in the sole custody of his mother R.I. once the child protection orders terminate is not evidence which creates a need for a further court order for him. CAST submits that J.R.’s legal custody reverting to the mother R.I. is a “theoretical issue.” The Society points to the 12 months remaining of R.I.’s probation order as sufficiently protective for J.R. CAST submits that “no one is planning to wield those orders as a sword.”

[52] I make the following findings of fact which are relevant to the threshold issue of whether or not further orders for J.R., N.M. and A.I. are necessary to protect them in this case:

a) It is not disputed that N.M. and A.I.’s contact with J.R. has been “stop and start” since their return to their parents’ home. At the time of trial, they do not have a reliable schedule for sibling access with J.R. There has been no sibling contact since mid-September 2022.

b) It is not disputed that N.M. and A.I. do not have any schedule for access or regular contact with their grandparents.

c) The mother’s testimony provides a host of reasons and excuses to explain why the parents have failed to establish and adhere to a regular schedule for sibling access. These reasons include the following: N.M.’s views and preferences, J.R.’s behaviour, their busy family schedule and the communication breakdown with the grandparents. B.I. was direct in his testimony that he did not want to support his daughter’s contact with J.R. as he is “ungodly.” I find on the evidence that the parents’ past behaviour reflects a lack of commitment to sibling access.

d) The father has testified that his Israelite beliefs identify the grandparents as “ungodly” people who will not join him and his family in the Kingdom. The mother testified that she considers her parents’ decision to report her assault on her children to the authorities as the “ultimate betrayal.” I find that there is clear evidence of a lack of trust and respect between the parents and the grandparents. I find on the evidence that the parents are overtly opposed to contact between N.M. and A.I. and the grandparents.

e) It is not disputed that J.R. does not have any reliable access or contact with his mother.

f) The Superior Court Order from Oshawa (June 15, 2018 of Justice Leef) which will come into force if no further order is made stipulates access for N.M. and A.I. of five hours per week with the maternal grandparents. No party appearing in court is seeking this access order.

g) The Superior Court Order from Newmarket (June 26, 2012 of Justice Olah) which will come into force if no further order is made assigns sole custody for J.R. to the mother R.I. No party appearing in court is seeking this order.

h) The grandparents lack status as legal guardians of J.R. which renders them dependent post-termination on the cooperation of R.I. to secure government documentation for him (including passports and health cards).

i) There is evidence before the court that R.I. was aware of the significance of the Newmarket Superior court order as set out above and failed to vary the custody order prior to trial.

j) There is evidence before the court that R.I. was aware that her parents wanted to renew J.R.’s passport during the past year. Her evidence is that she tried to renew it but was unsuccessful, leaving the matter unresolved to date. As a result of her inaction, J.R. is unable to travel outside of the country.

[53] Based on the above evidence, the court finds that the following is likely to occur if no further order is made by this court:

a) N.M. and A.I. will not have contact with J.R. with any consistency. Their sibling relationships with their brother will not develop further and will likely deteriorate over time.

b) J.R. will not see his mother with any consistency and this relationship will be further compromised.

c) N.M. and A.I. will not see their grandparents with any consistency and their relationship with their extended family and maternal ethnicity and heritage will wither.

d) J.R.’s caregivers, the grandparents, will struggle with their lack of decision-making responsibility for him. They will encounter issues with respect to securing his documentation (passport and health cards), and in having the authority to make decisions with respect to his health care and education. There is no evidence that R.I. will cooperate with her parents to manage these challenges, rather there is strong evidence that she will fail to assist them in varying the Superior Court order on consent or working with third parties when required.

e) Once the litigation in the Ontario Court of Justice ends, the inappropriate and outdated Superior Court orders will govern. The family will be left in legal disarray. In the absence of cooperation and consent, litigation will have to be renewed in one of the Superior Court sites, subjecting the unrepresented parents and unrepresented grandparents to significant legal complexity and potential cost.

[54] In light of the above evidence, the court finds that the threshold has been met in this case. A further court order is necessary to protect all three children in the future from the logical harmful outcomes for the children that will flow if no further order is made in the context of this family.

Disposition – Best Interests of the Child

[55] I turn now to what disposition would be in the best interests of the children. A non-exhaustive list of factors is set out in s. 74(3) of the Act:

[56] 74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

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

(b) In the case of a First Nations, Inuk or Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis 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.

[57] In assessing the best interests of a child, the court needs to consider the harm a child might suffer in losing a relationship with a parent, caregiver or sibling. Children’s Aid Society of Toronto v. G.S., 2012 ONCA 783.

[58] The court must consider the risk of emotional harm each child may suffer by being kept away from a parent or other significant person in their life. CAS v. Hamilton v. C.(K.), 2016 ONSC 2751.

J.R.

Plan of Care for J.R.

[59] A clinician from the Office of the Children’s Lawyer, (“OCL Clinician”) Ms. Barlas, was called by J.R.’s counsel to provide evidence to the court. She described J.R. as a happy, social 13 year old who enjoys school and playing with his peers. J.R. has many interests, including sports, art, video gaming and action figures and movies.

[60] Ms. Barlas’ evidence is that J.R. has special needs. He has been identified as having Mild Intellectual Delay. He is academically below grade level and receives support through the SSP (School Support Program) class where he attends for half the school day and then is integrated into the regular classroom for the other half of the school day.

[61] J.R. has resided in the care of his grandparents for 11 of his 13 years. The only two years of his life that he has resided with his mother were from 2015 – 2016 and from 2018 – 2019. During both of these periods he was beaten by his parental caregivers.

[62] J.R.’s grandparents are happy to continue to provide a permanent home for him. B.I. and R.I. are not seeking his return to their care at trial and agree that he should remain with the grandparents. The CAST family service worker Ms. Grundy-Evans and CAST kinship worker Ms. Allison both testified that they support his permanent placement with his grandparents.

[63] There is no plan before the court that involves a change in J.R.’s current placement with the grandparents.

J.R.’s Relationships and Emotional Ties to a Parent, Sibling, Relative, other Member of his Extended Family

[64] The CAST relied on Millan and Associates to assist with its work with the family. Nicola Harris was the associate whose role was to provide therapeutic counselling services for J.R. and secondly for J.R. and his mother. She had individual therapeutic sessions with J.R. and two sessions with R.I. and J.R. She also met with the grandparents as part of her work.

[65] In her final report, dated October 21, 2020, Ms. Harris recommended that J.R. should remain in the care and custody of his grandparents. She also described J.R. as conveying to her an intense need to re-establish a relationship with his siblings. J.R. further stated that he was open to seeing his mother with certain safety precautions in place (i.e. meeting in a neutral place and/or having his grandparents or siblings present). Ms. Harris recommended that sibling access between J.R. and his siblings occur as soon as possible.

[66] It is not disputed that J.R.’s contact with his sisters in the 2.5 years since they left the grandparents’ household in the summer of 2020 has been “stop and go.”

[67] The case management judge made a number of temporary orders in an effort to maintain sibling access.

[68] The court heard evidence that the CAST family service worker Ms. White played an important role with respect to facilitating sibling and extended family access. For example, following a period of no access from August 2020 to October 2020, J.R. began to have visits with his sisters in the community supervised by her. These visits moved to the CAST offices in November of 2020 due to the COVID lockdown. At the end of December 2020, the grandparents joined the visits with J.R., N.M., A.I. and R.I. at the CAST office.

[69] The CAST planning and assistance with these visits (i.e. appropriate location, low level supervision) led to enjoyable sibling visits for the children on October 28, November 12, 23, December 3 and 17, 2020 and January 13, 2021.

[70] The court heard evidence that Sonia Mills Minster developed an access plan with the participation of the parents and grandparents in January of 2021. The access plan provided that face to face access between the grandparents and N.M. and A.I. and R.I. and J.R. was to take place in the grandparents’ home for 2.5 hours biweekly from 4:00 to 6:30 pm. The family access plan was intended to facilitate sibling access, contact between N.M. and A.I. and the grandparents and contact between J.R. and his mother R.I.

[71] The access plan was in place from January 2021 to March 2021. It came to an abrupt end when R.I. was placed on bed rest due to her pregnancy with her fourth child K.I. The plan was never returned to by the parties following the child’s birth and the resolution of R.I.’s health issues.

[72] From April 2021 to mid August 2021, the sibling visits were moved to the community for two hours per week with the grandparents responsible for transportation to and from the visits.

[73] The OCL clinician observed the June 15, 2021 park visit involving the grandparents and the siblings J.R., N.M. and A.I. She observed the grandfather playing cricket with N.M. and J.R. while the grandmother was playing with A.I. and throwing balls back to the grandfather and the children. She observed N.M. and A.I. enjoying piggy-back rides with their grandfather. They enjoyed a meal together while A.I. sat in the grandfather’s lap. She observed that the children appeared to be relaxed and in good spirits.

[74] No sibling access occurred for three months between mid August 2021 and November 12, 2021.

[75] On September 8, 2021, Justice Paulseth ordered that sibling access was to occur for 30 minutes biweekly with R.I. and the grandparents observing from a distance.

[76] On November 8, 2021, Justice Paulseth ordered on consent that the sibling access should occur biweekly for 30 minutes alternating between the Malvern and Markham libraries.

[77] From November 13, 2021 to June 2022, sibling access continued off and on at the library.

[78] From June 2022 to September 14, 2022, sibling access occurred for one hour in the community/park in alternating weeks.

[79] The OCL clinician observed the June 8, 2022 park visit involving the siblings with the grandparents and the mother observing from a distance. She observed J.R. and his sisters playing on the playground equipment. They smiled, jumped up and down with excitement, talked with each other and J.R. held A.I.’s hand. She observed that the children appeared to be relaxed and happy to spend time with one another.

[80] There has been no sibling access since September 14, 2022.

[81] The court heard evidence of the sibling access being derailed by challenges that were beyond the control of any party – specifically changing COVID restrictions and R.I.’s health issues (including a difficult pregnancy with her fourth child K.I. requiring bed rest.)

[82] The court also heard testimony addressing the sibling access from R.I. R.I. acknowledged the importance of sibling access and the fact that there had been multiple positive access visits with J.R. and the girls. R.I.’s evidence is that there is nothing in the Israelite faith in which she is raising her daughters which would preclude them from enjoying Marvel movies, fun fairs, or children’s restaurants with their brother.

[83] When asked to explain the failure to maintain consistent sibling access, she took no personal responsibility for any action or inaction on her part. Rather, she offered a list of barriers to sibling access including N.M.’s evolving views and preferences, J.R.’s behaviour during visits, communication breakdowns between caregivers, and her busy family schedule.

[84] R.I.’s explanations differed depending on what time period of access she was addressing. For example, N.M.’s evolving views and preference loomed large in her initial explanation. However, an unsuccessful summer visit was blamed on J.R.’s behaviour when he was distracted by other children in the park. Moreover, her failure to organize sibling access in the fall of 2022 was explained by Israelite high holidays and a communication breakdown with the maternal grandfather. She failed to explain why sibling access had not occurred in October or November 2022.

[85] The court finds on the evidence that the children have enjoyed their contact with one another when it can be arranged by CAST and/or the parents and grandparents. Any issues that have arisen can be managed by proper planning (of venue and activity) and supervision.

[86] The court finds that B.I. and R.I. are not committed to maintaining sibling access and cannot be relied upon to facilitate same in the absence of a court order.

J.R.’s Views and Preferences

[87] According to OCL clinician, J.R. would be content with a minimum of full day visits (6 – 8 hours) with his sisters N.M. and A.I. once per month on a non-school day such as a Sunday or a PA day. J.R. would like to see his mother at the beginning and the end of sibling visits.

[88] Ideally, J.R. wishes that the sibling visits would occur at the grandparents’ home. However, he would be content if visits take place in the community where they could go on outings such as the zoo, movies, strawberry picking etc. J.R. would also like to meet his new younger sister K.I.

Disposition in J.R.’s Best Interests

[89] There were no competing plans of care offered for J.R. at trial. CAST, the parents, the maternal grandparents and his counsel all agreed that a permanent placement in the care of the grandparents is in his best interests.

[90] The Act creates a pathway under s.102 to permit a custody order to be made as a dispositional order. This would appear to be the logical order to make for J.R. on the facts of this case.

[91] However, in June 26, 2012, R.I. secured a final custody order placing J.R. in her sole custody at the Newmarket Superior Court of Justice. The final order also specifies parenting time for J.R.’s father K.R. This final order has not been varied and still stands.

[92] This pre-existing Superior Court order impedes this court’s ability to make a custody order in favour of the maternal grandparents under s.102. According to s.102(6)(b) of the Act, no order shall be made under section 102 if the order made by the Ontario Court of Justice would conflict with an order made by a superior court.

[93] The CAST and the parents are seeking no further order. This outcome would allow the Superior Court order to govern going forward. Society counsel submits that this is merely a “theoretical issue” and that “no one is planning to wield those orders as a sword.”

[94] Decision-making responsibility for J.R. is the polar opposite of a theoretical issue. This order is required on a day-to-day basis to permit the maternal grandparents to care for J.R. Renewal of J.R.’s government documents (health card, passports), enrolment in school, signing permission forms for field trips, getting disclosure from third parties, the ability to travel outside the country and applying for supportive services are some of the fundamental caregiver responsibilities that are grounded in decision-making responsibility.

[95] CAST further suggests that R.I. will not wield this order as a sword. The evidence before the court is that she already has done so. R.I. was fully aware of the implications of the Superior Court order as the importance of varying it was raised repeatedly with her by the CAST worker and in court appearances by the children’s counsel. However, over the past year she has failed to take steps to vary the order. Her explanations for the failure to vary the order are spurious – that she filled in the wrong forms, or that she did not like the grandparents’ Answer to the application before this court. Further, there is evidence that she was approached by the grandparents with respect to J.R.’s passport prior to the trial. Similarly, she failed to assist with the passport for vague reasons and as a result, J.R. does not have a valid passport at the time of trial.

[96] There is no evidence before the court to suggest that R.I.’s recalcitrant behaviour and low level of cooperation with respect to J.R.’s guardianship limbo will improve in the absence of CAST involvement and a further court order.

[97] It is in J.R.’s best interests that a 12-month supervision order placing J.R. in the care and custody of his grandparents is made. The supervision order will specifically permit the grandparents to secure government documentation on his behalf and to travel with him outside of the country without the consent of his parents R.I. and K.R.

[98] It is in J.R.’s best interests that the supervision order sets out a specified and regular routine for sibling access with N.M. and A.I. The evidence is that the CAST has a role to play in this effort. They have successfully directly overseen the scheduling and supervision of access visits in the past. Furthermore, the consultants they hired (Millan and Associates) generated an Access Plan with the input of the family which could be resumed.

[99] Without this access order, the lack of commitment of J.R.’s mother and step-father to permit him to see his sisters will terminate the further development of these crucial sibling relationships. This would not be in J.R.’s bests interests. An access order can also provide some parameters for J.R.’s safe contact with his mother which he seeks.

N.M. and A.I.

Plans of Care for N.M. and A.I.

[100] N.M. was described as an engaging, intelligent and thoughtful 7 year old girl. A.I. is five years of age and was described as affectionate and playful. N.M. resided in the full-time care of her grandparents for three years. A.I. resided in the full-time care of her grandparents for one full year.

[101] Neither child has reported any further physical discipline since they were returned to their parents’ care in the summer of 2020.

[102] N.M. and A.I.’s parents are happy to continue to care for their daughters in their home. CAST is supporting this plan for N.M. and A.I. The grandparents are supporting this plan for N. M. and A.I. but are seeking regular access to the girls for themselves and J.R.

[103] There is no plan before the court that involves a change in N.M. or A.I.’s current placement with their parents.

N.M. and A.I.’s Race, Creed, Ancestry, Ethnic Origin, Cultural and Linguistic Heritage

[104] B.I. and R.I. were not raised within the Israelite community. They testified that they began identifying as Israelite and keeping the laws in 2015. They are raising their children within the Israelite community.

[105] R.I. was raised by her parents (the grandparents) within a different religious and cultural framework. The report by Sonia Mills Minster dated September 12, 2020 identifies N.M. as “bi-racial” and recommends that she be supported in building her identity in “both cultures.”

[106] There is no evidence before the court that Ms. Mills-Minster did any work with N.M. towards this goal. There was a dearth of evidence before the court with respect to N.M. and A.I.’s ethnic identity on their maternal side. The grandparents’ evidence is that they baptized J.R. and he attended Sunday school in their care.

[107] N.M. and A.I. are home-schooled by their mother and are being raised within the Israelite community.

[108] The father B.I. testified that he considers it a “risk factor” that his children are being instructed to go outside of their family realm. He does not want N.M. or A.I. to alter their beliefs and identity to maintain a relationship with their brother. He explained that those who are not following the commandments are “ungodly.”

[109] The parents both testified that on April 14, 2020, they showed an apocalyptic fire video from the “Terminator 2” movie to the three children during video access. In the video clip, a massive fire ignites and a girl is burned to death and turned into ashes. The children were told by the parents that this is what will happen to them if they break the laws of their religion and that lying was against the laws.

[110] When the CAST worker followed up with the parents about the video, the father said that his culture is fear-based and he is just as fearful about this happening as the children should be. R.I. explained to the CAST worker that she wants her children to understand that if they do not follow the laws of the Bible that they will burn in the end.

[111] In his testimony at trial B.I. vaguely recalled that the transgression they were addressing with the apocalyptic fire video was the children lying about having Easter candy. He shared that he had showed the video to the children on three occasions. In her testimony at trial R.I. was also a little bit vague about the reason for the punishment and minimized the incident as the “famous fire video” with a smile.

[112] Both parents testified at trial that they now consider the video inappropriate for the children who were 11, 5 and 3 years of age at the time of viewing.

[113] B.I. testified that he did not want his daughters to see their grandparents. He said that it was his firm belief that the girls should stay away from “ungodly” people. He testified that he personally would not facilitate this contact without a court order.

[114] B.I. testified that he has told N.M. and A.I. that the Bible says that they should not be around non-believers and should separate themselves from them. He agreed that these lessons impact how N.M. and A.I. view access with their grandparents.

[115] Under cross-examination, R.I. was asked if she would facilitate a relationship between N.M. and A.I. and the grandparents if they wanted it. She said that she would not. At another point in her testimony, she referred to her father’s decision to alert the authorities to J.R.’s abuse by B.I. as “the ultimate betrayal.”

[116] The court finds that in the absence of a court order, N.M. and A.I.’s bi-racial and complex ethnic heritage will not be respected by her parents and she will not have the contact with her maternal grandparents to allow them to fill this void and develop a relationship with them.

N.M.’s Views and Preferences

[117] The evidence before the court is that N.M.’s views and preferences with respect to sibling and grandparents access have evolved over the course of the proceeding. There seems to be general consensus that she initially wanted overnight visits with her grandparents and J.R. following her return to her parents’ home. However, her current views and preferences are that she is reluctant to attend sibling access and that she does not want to see her grandparents.

[118] This is an unusual case in that N.M.’s father has given direct evidence that he teaches N.M. to avoid and fear contact with her “ungodly” grandparents and J.R. The parents have seen fit to show her (at the age of 5) a video of a girl being burned alive who failed to follow the laws.

[119] Given that N.M. is seven years old, has been home schooled and living with this overt parental messaging since the summer of 2020, it is impossible for the court to reasonably ascertain N.M.’s independent views and wishes. The court finds that her views and wishes can be afforded little weight in the circumstances of this case.

N.M. and A.I.’s Relationships and Emotional Ties to a Parent, Sibling, Relative, other Member of their Extended Family

[120] The court finds on the evidence that the children J.R., N.M. and A.I., have enjoyed their contact with one another when it can be arranged by CAST and/or the parents and grandparents. Any minor issues that have arisen can be managed by proper planning (of venue and activity) and supervision.

[121] The court finds that N.M.’s three years and A.I.’s year residing in the full time care of their grandparents amplifies the significance of this family relationship to them. The court heard credible evidence from the OCL clinician that N.M. and A.I. enjoyed their time with their grandparents this past summer.

[122] The court finds on the evidence that B.I. and R.I. are not committed to maintaining sibling access for N.M. and A.I. with J.R. and cannot be relied upon to facilitate same in the absence of a court order.

[123] The court finds on the evidence that B.I. and R.I. plan to sever contact between N.M. and the grandparents. They cannot be relied upon to facilitate same in the absence of a court order.

Disposition in N.M.’s Best Interests

[124] The plan that N.M. remain in the care of her parents B.I. and R.I. is the only plan before the court. CAST and the parents suggest that no further order is required for N.M.

[125] However, the court has found on the evidence that N.M.’s parents are not committed to maintaining her relationship with her sibling J.R. and plan to sever her contact with her grandparents. The severance of contact with the grandparents disrupts an importance relationship and also has the effect of closing off N.M.’s understanding of her maternal cultural/ethnic identity.

[126] The least disruptive order for N.M. is a 12 month supervision order that places her in the care and custody of her parents and sets out a specified and regular routine for sibling access with J.R. and the grandparents.

[127] The evidence is that the CAST has a role to play in this effort. They have successfully directly overseen the scheduling and supervision of access visits in the past. Furthermore, the consultants they hired (Millan and Associates) generated an Access Plan with the input of the family.

[128] Without this access order, the lack of commitment of N.M.’s parents to permit her to see her brother and the grandparents will terminate the further development of these crucial familial relationships. This would not be in N.M.’s best interests.

Disposition in A.I.’s Best Interests

[129] The plan that A.I. remain in the care of her parents B.I. and R.I. is the only plan before the court. CAST and the parents suggest that no further order is required for A.I.

[130] However, the court has found on the evidence that A.I.’s parents are not committed to maintaining her relationship with her sibling J.R. and plan to sever her contact with her grandparents. The severance of contact with the grandparents also has the effect of both disrupting an important familial relationship and closing off A.I.’s understanding of her maternal cultural/ethnic identity.

[131] The least disruptive order for A.I. is a 12 month supervision order that places her in the care and custody of her parents and sets out a specified and regular routine for sibling access with J.R. and the grandparents.

[132] Without this access order, the lack of commitment of A.I.’s parents to permit her to see her brother and the grandparents will terminate the further development of these crucial relationships. This would not be in A.I.’s best interests.

Superior Court Orders

[133] The twelve-month supervision orders are also in the best interests of J.R., N.M. and A.I. because they prevent the Oshawa Superior Court access order and the Newmarket Superior Court custody order from coming back into force and effect.

[134] The twelve month period provides time for each the parties involved to take the necessary steps to address these orders.

[135] CAST will have the time to consider whether or not a transfer of J.R.’s case to Oshawa is appropriate given that he lives in Oshawa and the Oshawa Superior Court would be in a position to make a s.102 custody order on Status Review in favour of his grandparents.

[136] R.I. will have the time to take steps to vary the Newmarket custody order to reflect the grandparents’ decision-making responsibility for J.R.

[137] The grandparents also will have the time to take steps to vary the Newmarket custody order and to secure their decision-making responsibility for J.R.

[138] In the event that any or all of these necessary steps are taken in a timely fashion, CAST could consider bringing an early Status Review Application before this court to vary the final orders made.

Part Four – Final Orders

Re: N.M. and A.I.

1. The children N.M. (born […], 2014) and A.I. (born […], 2017) shall be placed in the care and custody of R.I. and B.I. subject to the supervision of the Children’s Aid Society for 12 months on the following terms:

a) B.I. and R.I. shall consent to announced and unannounced home visits and shall allow the Society worker and the children’s lawyers to meet the children privately.

b) B.I. and R.I. shall sign consents reasonably requested by the Society after having the opportunity to review consents with counsel.

c) B.I. and R.I. shall ensure that N.M. and A.I. shall have access with J.R. and the maternal grandparents in accordance with the access order set out below.

d) B.I. and R.I. shall not use any type of physical discipline or punitive parenting at any time.

e) B.I. and R.I. shall notify the Society of any change in contact information.

2. The children N.M. and A.I. shall have access to J.R. and their grandparents S.J. and N.J. as follows:

a) Once per month on the 3rd Sunday of every month from 10 am to 6 pm at the grandparents’ home or in another location as the parties may agree. The grandparents are to be responsible for all transportation to and from the visits.

b) If there is a missed visit due to illness or vacation, there shall be a makeup visit on the next Sunday following the missed visit.

c) If all parties agree the monthly visit can take place on a school PA day or other day of the week.

d) Such further or other access as the parties may agree.

Re: J.R.

1. The child J.R. (born […], 2009) shall be placed in the care and custody of his maternal grandparents S.J. and N.J. for a period of 12 months subject to the supervision of the Children’s Aid Society of Toronto. The terms of supervision are as follows:

a) S.J. and N.J. shall consent to announced and unannounced home visits and shall allow the Society worker and children’s lawyers to meet the children privately.

b) S.J. and N.J. shall sign consents reasonably requested by the Society after having the opportunity to review consents with counsel.

c) S.J. and N.J. shall ensure that J.R. has access with his sisters N.M. (born […], 2014) and A.I. (born […], 2017) in accordance with the access order set out below.

d) S.J. and N.J. shall be permitted to obtain J.R.’s passport and any other government documentation without the consent of his parents K.R. and R.I.

e) S.J. and N.J. shall be permitted to travel outside of Canada with J.R. without requiring the consent of his parents K.R. and R.I.

f) S.J. and N.J.. shall inform the Society of any change in address or contact details.

2. J.R. and the grandparents S.J. and N.J. shall have access to N.M. and A.I. as follows:

a) Once per month on the 3rd Sunday of every month from 10 am to 6 pm at the grandparents’ home or in another location as the parties may agree. The grandparents shall be responsible for all transportation to and from the visits.

b) If there is a missed visit due to illness or vacation, there shall be a makeup visit on the next Sunday following the missed visit.

c) If the parties agree the monthly visit can take place on a school PA day or other day of the week.

d) Such further or other access as the parties may agree.

3. J.R. shall have access to his mother R.I. in accordance with his views and preferences. The frequency, duration, location and level of supervision to be at the discretion of the maternal grandparents.

4. Status Review Date before the expiry of 12 months to be arranged through the Trial Coordinator’s office.

Released: December 22, 2022

Signed: Justice D. Szandtner