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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 05 31 COURT FILE No.: Toronto C30225/19

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant,

— AND —

S.R. (mother), S.C. (father), P.H. (grandmother) Respondents

Before: Justice Szandtner

Heard on: March 20 – 24, 27, 2023 Reasons for Judgment released on: May 31, 2023

Counsel: Katherine Georgious, counsel for the applicant society Lauren Israel, counsel for the respondent mother S.R. Alissa Boffo, counsel for the respondent father S.C. Roger Rowe, counsel for the respondent grandmother P.H.

SZANDTNER J.:

Part One: Introduction

[1] This case is about two girls, A.C. born in 2017 and S.L.C. born in 2016 (the “children”). The children were apprehended from the respondent mother S.R.’s (the “mother”) care on February 1, 2019 by the Children’s Aid Society of Toronto (the “Society”). They have resided with the respondent paternal grandmother P.H. (the “grandmother”) under a temporary supervision since their apprehension.

[2] The parties consented to a protection finding for the children under subclauses 74(2)(b)(ii) and clause 74(2)(h) of the Child, Youth and Family Services Act, S.O. 2017 (the “Act”) at the outset of trial.

[3] The Society and the mother seek a supervision order placing the children in the care of the mother with access to the grandmother and respondent father S.C. (the “father”)

[4] The grandmother and the father seek a custody order in favour of the grandmother pursuant to s.102 of the Act with access to the mother.

[5] The remaining issues for the court to decide are as follows:

(a) What disposition is in the best interests of the children? (b) What access orders are in their best interests?

Part Two: Review of the Evidence

2.1 Background

[6] The mother and father met in 2007 in high school. In 2008 they began a relationship but broke up in 2009. During this pause in their relationship, the mother became pregnant with her first daughter, K.C-R. with a different partner. K.C-R. was born in 2009. The mother and father reconciled in 2009. When K.C-R. turned three months of age, the father was arrested for gun charges and spent the next three years in jail. During the father’s incarceration, the mother had her second daughter H.R. by a different partner in 2012.

[7] When the father was released, he and the mother continued their relationship. In June of 2015, the mother moved to an apartment and the father resided with her and her daughters K.C-R. and H.R. The parties’ children, S.L.C. (born 2016) and A.C. (born 2017) were both born during this period of cohabitation from 2015 to 2018.

[8] Following their separation in 2018, the mother charged the father with uttering death threats against her in February of 2018. As a result, there was limited contact between her and the father for the following ten months due to criminal conditions. On January 17, 2019, the mother attended criminal court and she dropped the charges against the father.

[9] On January 31, 2019, the mother went out for the evening and left the four children with her friend R.C. as a babysitter. R.C. brought her son with her to the apartment. The mother’s children were 9, 6, 2 and 1 years of age at that time. The babysitter called the mother later in the evening and told her that she had to go home because her son had to go to bed. The mother was on the highway coming home and gave the babysitter permission to leave.

[10] On February 1, 2019, the Society received a referral from the Toronto Police regarding the four children being left home unattended. The police reported that they were called the evening of January 31, 2019 after the babysitter left the apartment. They contacted the mother by phone and she claimed that she was at home and refusing to open the door to police. The officers made a forced entry and found the four children in the mother’s apartment alone. The children revealed that this was not the first time that they had been left alone.

[11] The Society worked with the family to develop a plan. The family put a plan in place for the father and grandmother to care for the two youngest children S.L.C. and A.C. The two older daughters K.C.-R. and H.R. were left in the care of the mother.

[12] On February 14, 2019, the older children K.C-R. and H.R. were brought to a place of safety following confirmation that they were left unattended again by the mother at home overnight from Sunday February 10, 2019 until Monday February 11, 2019. The children missed school and there was not adequate food in the home.

[13] The Protection Application was commenced for all four children on February 19, 2019 by the Society. The Protection Application recommended a six-month supervision order placing S.L.C. and A.C. in the joint care and custody of their father and the grandmother.

[14] On February 19, 2019 the court made a temporary order placing S.L.C. and A.C. in the joint care and custody of the grandmother and the father under a supervision order. They have remained in the grandmother’s care to date. The court also made a temporary order for access to S.L.C. and A.C. by the mother at the discretion of the Society a minimum of four hours per week.

[15] On January 6, 2020, the court made a temporary order for mother’s access on consent of the parties. The mother was to have access on alternate weekends from Friday to Sunday.

[16] Mother’s second oldest daughter H.R. was placed in the care of her father C.C. on January 8, 2021 pursuant to an order made under s.102(1) of the Act on consent and is no longer involved in these proceedings.

[17] Mother’s eldest daughter K.C-R. was placed in the care of her paternal grandmother D.C. on December 13, 2022 pursuant to an order made under s.102(1) of the Act on consent and is no longer involved in these proceedings.

[18] At the outset of trial, the parties filed a Statement of Agreed Facts consenting to a finding that S.L.C. and A.C. are children in need of protection under subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h) of the Act. The grounds of risk of physical and emotional harm relate only to the respondent mother.

2.2 Evidence of the Society

[19] The mother had six family service workers over the course of this Protection Application. The Society led evidence from each worker with respect to their involvement with the family. The workers were as follows:

(a) Kasia Kaczmarek from March 2019 – October 2020 (b) Diana Stucchi from October 2020 – October 25, 2021 (c) Japneet Kaur from October 25, 2021 – May 11, 2022 (d) Wajeeha Ahmad from May 11, 2022 – August 17, 2022 (e) Katrina Hofstra from August 17, 2022 – February 21, 2023 (f) Nicola Takay-Nichols – February 21, 2023 – to date.

[20] The Society also led evidence from Vera DiGiandomenico who was assigned as the family service worker for the grandmother from September 14, 2021 to date.

[21] Ms. Kaczmarek gave evidence that the mother requested a new worker which brought her involvement to an end. The other workers each gave evidence that the subsequent changes in worker were as a result of factors unrelated to the mother.

[22] The evidence of these workers is relevant to the issue of disposition as it reflects the mother’s cooperation with the Society, her access to her children, any ongoing protection concerns and the relationship between the mother and the extended family during their tenure.

[23] Ms. Kaczmarek’s evidence is that the mother was initially willing to meet with her. However, on July 17,2019 she advised that she would not book any further appointments with Ms. Kaczmarek. She resumed visits with Ms. Kaczmarek in October of 2019.

[24] The court order was that mother’s access was to be at the discretion of the Society. During Ms. Kaczmarek’s involvement, it was initially hoped that the mother and the grandmother could arrange mother’s access to the children without a court order specifying the access. This was not the case. During the summer of 2019, the mother reported to the Society that she only saw the children on two occasions. On January 6, 2020, the parties agreed to a temporary consent order that the mother would have access on alternate weekends from Friday to Sunday.

[25] Ms. Kaczmarek’s evidence also reflected the allegations made by the mother with respect to the father and the allegations made by the grandmother and father during her tenure. For example, in July of 2019 the mother alleged that the father was a drug dealer and that he had a gun. In October of 2019, the father alleged that the mother was an escort and that an ex-boyfriend had broken a door and a television within mother’s home. The father’s allegation was investigated, but not verified. In February of 2020, the grandmother alleged that the girls were eaten by bedbugs at mother’s home, the toilet was broken, there were men in the home, and the mother was intoxicated and crazy. The mother’s sister E.R. also reported the presence of young men in her sister’s apartment. Ms. Kaczmarek investigated the concerns reported with respect to the mother by speaking to the mother and visiting the apartment. The concerns were not verified.

[26] In March of 2020, the mother’s in-person access was on hold due to the COVID pandemic. In June of 2020, arrangements were made for the mother to have access every weekend starting in mid-June.

[27] On August 24, 2020, Ms. Kaczmarek visited the mother’s home during an access visit. She observed that the home had a door missing in a bedroom, another door was hanging on the hinges, the curtain rod was hanging and there were floor tiles missing. The mother explained that “the boys” did it. Ms. Kaczmarek visited the bedroom and noted that there were no screens on the windows despite the fact that it was on the 12 th floor. Ms. Kaczmarek called building management and emergency services to ensure that the windows were secured immediately.

[28] Ms. Kaczmarek received a call on August 25, 2020 from the building manager who reported that the mother’s home was the subject of a police raid/search warrant due to men coming and going from her unit.

[29] Ms. Kaczmarek was able to confirm that on July 15, 2020, the Toronto Police Service executed a search warrant on the mother’s home. The mother was not present. Two adult males were found in the unit. A satchel was located which contained fentanyl, cocaine, heroin, codeine and crack. The mother was not charged in relation to the search warrant, but the two men who were present in the unit were arrested and charged.

[30] The Society suspended the children’s in-home access with the mother as a result of the information received by the Society on August 24, 2020 relating to the police raid.

[31] On September 1, 2020, Ms. Kaczmarek spoke to the mother about the concerns expressed by the police and building management. The mother indicated that it was true that in the past men sold drugs from her apartment, but this was not recent and this was no longer the case.

[32] On September 22, 2020, the mother was charged with uttering threats and criminal harassment against the father and his partner N.P.

[33] Ms. Stucchi assumed the role of family service worker from the family from October 2020 to October 2021. This was due to a request for a change of worker from the mother.

[34] At the time of the transfer, the mother’s access was supervised day access. On October 23, 2020, the mother’s first access visit was scheduled from 10:00 am to 6:00 pm to be supervised by her friend R.C. This access visit was intended to be with all four children. However, the grandmother (caregiver for the younger children) notified the worker that she would not be sending S.L.C. and A.C. because she had not received a call from the Society earlier that week confirming the visits.

[35] Ms. Stucchi stated that on November 5, 2020, the father opposed R.C. as an access supervisor. He also alleged that the mother’s toilet was broken, the children contracted ringworm from a visit with the mother and that he believed that the mother is telling the children to lie.

[36] Ms. Stucchi testified that the Society verified that the children had visited Walmart with their mother and the visit was not adequately supervised by R.C. One of the children had reported going to Walmart with her mother and without R.C. As a result, Ms. Stucchi was looking for a new supervisor for access.

[37] Ms. Stucchi stated that on November 12, 2020 she met with the father and the grandmother to discuss access. The father reported his worries about the men in the mother’s neighbourhood, drug cooking in her apartment, the ringworm and the social media threats he had received that he believed were from the mother.

[38] Ms. Stucchi described her efforts to set up supervised access for the mother in the community with an approved supervisor and the continued offer for access at the Society’s office. She also testified that she communicated to the mother the Society’s expectations that she enter counselling, a positive parenting program and connect with a housing support worker at LAMP Community Health Centre. She described the mother’s desire to have access outside of the Society’s office.

[39] On April 1, 2021 the mother reported to Ms. Stucchi that she had attended Jean Tweed’s Mom and Kids Too Program. She was also attending sessions with Heather from Milan and Associates.

[40] On May 11, 2021, the mother began having supervised access twice per week at the Society’s office.

[41] On or around August 31, 2021 the father was charged with drug trafficking and gun charges in Sudbury Ontario. He has been incarcerated to date.

[42] Ms. Kaur was the family service worker from October 25, 2021 to May 2022. When she assumed responsibility for the family the mother’s access to S.L.C. and A.C. was twice per week at the Society’s office.

[43] Ms. Kaur’s evidence is that the barrier to moving the children’s access back into the mother’s home was the need to repair the locks in her home and to remove the mold. On November 20, 2021 the mother reported following through with these expectations.

[44] On November 29, 2021, the mother reported to Ms. Kaur that she had been charged with uttering threats against her neighbour and had to relocate so as to not violate her bail conditions.

[45] On December 9, 2021, the mother’s access with S.L.C. and A.C. was approved to move into her sister’s home as of December 13, 2021 twice per week. This plan was cancelled in January of 2022 due to the renewed COVID restrictions limiting gatherings to 5 people. The mother’s access was returned to the Society’s offices.

[46] Ms. Kaur recommended that the mother contact Farah Family Solutions for therapy. The mother agreed to do so but failed to do so during Ms. Kaur’s involvement.

[47] Ms. Kaur’s evidence is that the mother secured a new apartment in February of 2022. She described it as clean, bright and appropriate for the mother and the children. On February 28, 2022 Ms. Kaur observed the visit of A.C., S.L.C. and K.C-R. in mother’s new apartment. There were no concerns noted. She also fully supervised a visit on March 14, 2022 and no concerns were noted. On March 18, 2022 the mother’s access visits transitioned to being semi-supervised.

[48] On April 19, 2022 Ms. Kaur met with the mother to discuss the progression of access to Saturdays and the issue of transportation. The Society wanted the family to arrange its own transportation without relying on the Society volunteer drivers.

[49] The unsupervised visits were scheduled to commence on Saturday April 30, 2022. The unsupervised visit did not occur that day due to alleged confusion over transportation.

[50] Ms. Ahmad was the family service worker for the family from May 11, 2022 to August 17, 2022. Her evidence is that when she received the file, the mother was transitioning to unsupervised access visits every Saturday. Transportation was being provided by Society volunteer drivers.

[51] Ms. Ahmad’s evidence is that the mother obtained a two-bedroom subsidized unit at her old co-op building. Access visits moved to this apartment starting June 12, 2022 and continued throughout her involvement.

[52] Ms. Ahmad created an overnight access calendar for the children with overnight visits beginning on July 9, 2022 for one night as well as a day visit during the week. Her evidence is that the Society continued to provide transportation through its volunteer drivers. If the drives were not available, the visit would be cancelled as the mother and grandmother were not able to agree on a place to meet.

[53] The first overnight visit was July 9, 2022. On July 19, 2022 Ms. Ahmad testified that the grandmother asked that the mother take the girls from July 25, 2022 to August 2, 2022. Ms. Ahmad approved July 29, 2022 to August 2, 2022 as mother had only had two visits by that point.

[54] On August 10, 2022, Ms. Ahmad made a referral to Farah Family Solutions for individual counselling for the mother and counselling with her older daughter K.C-R.

[55] Ms. Hofstra was responsible for the family from September 2022 to February 2023. Ms. Hofstra’s evidence is that mother reported to her that she had completed the Mom and Kids Too program and the Strengthening Families Program at Jean Tweed and had completed counselling with Milan and Associates. The mother reported that she was also doing counselling at the Caribbean African Canadian Social Services but did not feel the counsellor was a good fit. The mother further reported that she continued to work with Debbie Bridge a Family Support Worker at LAMP Community Health Centre.

[56] Ms. Hofstra testified that the mother began counselling with Ms. Farah of Farah Family Solutions on October 31, 2022 and continues to attend on a weekly basis.

[57] Ms. Hofstra’s evidence is that the mother maintained her two-bedroom co-op apartment during her involvement. She has attended for both announced and unannounced visits to this home and there have not been any concerns about safety or cleanliness of the home environment. She has a room set up for S.L.C. and A.C. with a bunk bed for them to sleep in.

[58] Ms. Hofstra testified that during the summer the mother was having access visits for several days at a time during the summer. This changed when school resumed. The mother continued to have weekend access with S.L.C. and A.C. since September 2022 with additional time around professional development days and December holidays.

[59] Ms. Hofstra testified that she had monthly scheduled visits with mother. Her evidence is that there have been no communication challenges and the mother has been cooperative and responsive.

[60] In August of 2022, the grandmother made allegations that the children reported that there were men in the apartment when they visited. The men slept in their beds and smoked marijuana. Ms. Hofstra followed up on these allegations with the mother. The mother explained that her friend’s son and her nephew would sometimes sleep over when the girls were there. As a result of the allegations, the service team began to do unannounced visits on the weekends during the mother’s visits with the children. Five unannounced visits were made between September and November 2022. No concerns were verified.

[61] Ms. Hofstra also gave evidence that she discussed mother’s marijuana use with her on September 26, 2022. Mother reported that she typically smokes marijuana 4 times a day: when she gets up, in the afternoon, the evening and before bed but smoked less when the children are there. She stated that she uses marijuana more medicinally for herself, that she is still able to function, to get up and cook and take care of the kids. She said that she is better able to manage it when the kids are around and screaming, or one of them is having a hard time.

[62] On January 19, 2023, Ms. Hofstra discussed the impact of marijuana smoke on children and asked if mother could smoke outside. The mother stated that she would smoke less when the children were present and would smoke when she takes the dog for a walk or in her room with her door closed.

[63] Ms. Hofstra’s evidence is that there were six weekends since she has been involved where visits did not occur, one in each of September, October, November, December 2022 and January and February 2023.

[64] Ms. DiGiandomenico was the family service worker assigned to support the grandmother from September 14, 2021 to date.

[65] Ms. DiGiandomenico’s evidence is that she raised the issue of sibling access with the grandmother on September 24, 2021. She discussed it with her again on September 28, 2021. The grandmother alleged that the paternal grandmother caring for K.C-R. put dog poo in A.C.’s face and said that she will let the siblings see each other but she is not ready yet.

[66] On November 2, 2021 Ms. DiGiandomenico again broached the issue of sibling access with the grandmother. The grandmother refused to permit A.C. and S.L.C. to go to K.C-R.’s grandmother/caregiver’s home. She explained that it is because K.C-R.’s caregiver has a son in jail and one home from jail. Ms. DiGiandomenico indicated that if the grandmother continued to resist, the court might make an order. The first sibling access visit occurred on December 15, 2021.

[67] On August 18, 2022, Ms. DiGiandomenico spoke to the grandmother and told her that the mother was requesting that the girls return to her care under a nine-month supervision order with the grandmother having the girls on the weekend. The grandmother said that if the girls are going to their mother she has to have them full-time. The grandmother would see the girls on her terms. She has things to do on the weekend and would not just be “a dumping ground.” The grandmother objected to the girls moving so soon and suggested that they move in January.

[68] Ms. DiGiandomenico’s evidence is that a September weekend access visit with the mother was cancelled by the grandmother. The grandmother also cancelled the October 21 weekend because it was the girls’ grandfather’s birthday. Her evidence is that a January weekend was cancelled by the grandmother because it was the grandmother’s birthday weekend.

[69] Ms. DiGiandomenico’s evidence is that on November 9, 2022 she advised the grandmother that a motion would be brought by the Society to place the children in mother’s care. The grandmother said that “I will wash my hands, they can go to foster care I’m not doing weekends. If she wants her children, she has to have her children 7 days a week. I’m not sharing custody.”

2.3 The Mother’s Evidence and Plan of Care

[70] The mother left school after grade nine in 2008. Two years later she gave birth to K.C-R., her first child. While he was not the parent of K.C-R., the father was present at her birth and the parties were in a relationship. The father was arrested on drug charges and spent the next three years in jail. While he was in jail, the mother gave birth to her second daughter, H.R. with another partner. When the father was released, the parties continued their relationship. The children before the court were born in 2016 and 2017. The mother testified that the father was a good father to all four children.

[71] The mother’s evidence is that her relationship with the father was volatile. She described an incident when the father cut her hair as a punishment for talking to other men. This incident caused her to move to a shelter for 10 months. She stated that at S.L.C.’s birthday party in February 2018, the father was asked to leave after the cake. He became outraged and pulled out a gun. Ten days later, she was planning a birthday party for A.C. when the father called and threatened to shoot her. The mother contacted the police and the father was charged with uttering death threats. This led to a period of 10 months during which there was limited contact between the father and the children. Ultimately, on January 1, 2019, the mother attended criminal court to drop the charges against the father because she needed his help with the children.

[72] The mother admits that the incident in February 2019 that led to the apprehension of her children was a massive error in judgment. She testified that when the babysitter called to ask if she could leave the home to put her son to bed she agreed. She explained that she was on the highway coming home in an Uber and believed that she would be home shortly. She did not blame the neighbour for leaving the home and took full responsibility for the poor decision at trial.

[73] The mother describes working with the Society as difficult. She describes the challenge of having six different Society workers. She also identifies the pandemic as a factor that impacted access, court attendances and interactions. The mother testified that she also felt that the grandmother and father were often able to cancel her access time with the children leading her to feel frustrated.

[74] The mother acknowledged the presence of young men who were her friends in her home. She admits that the police raided her apartment in August 25, 2020. She was not present at the time of the raid but admitted that two of the boys were arrested. After this arrest those individuals were not allowed in her home.

[75] The mother also acknowledged that the screens in her apartment were missing in August of 2020. She explained that they were removed by the father to insert air conditioners and not replaced. She had asked for them to be replaced and filled out work orders. She got no response to the requests until the Society worker Ms. Kaczmarek got involved.

[76] The mother acknowledged her mistake in taking the children to Walmart in November of 2020 in a cab unsupervised. The impact of this incident was for the Society to shift all of her access to the office and for it to be supervised. She describes her reaction as follows: “I shut down and shut the Society out.”

[77] The mother testified that her relationship with her family service worker took a turn for the better in November of 2021 with the introduction of Ms. Kaur. (November 2021 – May 2022) She had a positive relationship with Ms. Kaur and the access visits were returned to her home.

[78] This positive relationship with the Society continued with the transition to family service worker Ms. Ahmad. During this period (May 2022 – August 2022) visits progressed to overnight again and she moved back into the apartment where she resides to date. The mother maintained this positive rapport with the following family service worker Ms. Hofstra (August 2022 – February 2023).

[79] The mother describes her supports as follows. In 2019 she connected with Milan and Associates. She met with Milan counsellor Heather Picart to discuss her grief following the death of her father and her relationship with her daughter K.C-R. and K.C-R.’s grandmother.

[80] The mother first connected to Debbie Bridge at LAMP in 2020.

[81] From March 1, 2021 to April 1, 2021, the mother completed the Mom and Kids Too Program through Jean Tweed. From March 30, 2021 to May 18, 2021, the mother completed the Strengthening Families Program through Jean Tweed.

[82] The mother began meeting with Ms. Farah at Farah Family Solutions for individual counselling on September 14, 2022. She sees her every Monday for one hour. Ms. Farah was a witness at trial. She testified that the mother is making great progress with the issues of her trauma, her anger and her parenting. Ms. Farah described the mother as very cooperative and receptive to the individual counselling. She described the mother as open and honest. Ms. Farah has never had a session in which the mother was unable to manage her emotions or she suspected mother was impaired. Ms. Farah testified that mother demonstrated insight into her behaviour and took initiative with raising issues as they arose. She is becoming aware of her triggers and how to address them. Ms. Farah is available to continue to support the mother into the future.

[83] The mother has also connected to Debbie Bridge at the LAMP program. Ms. Bridge appeared as a witness at trial. Ms. Bridge described herself as a family support specialist. She has worked at LAMP for 26 years. She testified that while she had contact with the mother in 2020, her consistent work with her began in early 2022. She works with the mother on parenting strategies. She described the mother as very open and honest, receptive to advice and willing to follow up with questions. She described her as a client who was able to explain and admit her mistakes in the past. She has visited the home on four or five occasions and found it to be tidy and clean. She described a whiteboard that mother purchased to assist with developing a routine for the children. Ms. Bridge is available to continue her work with the mother. One specific form of assistance she can offer is to connect the family with medical and developmental supports for the children in the mother’s neighbourhood.

[84] The mother was charged with two counts of criminal harassment and one count of uttering death threats by the father and N.P. The allegations relate to social media posts and direct messages. The mother denied that she ever posted or sent threatening images to the father or his partner N.P. Her evidence is that she would never post the grandmother’s address and would never put her children at risk because she is aware of the father’s drug connections. The criminal charges connected to these allegations were withdrawn by the Crown prior to trial.

[85] The mother addressed her marijuana use in her testimony. She testified that she does not smoke in front of the children. She is never impaired while she cares for them.

[86] The mother testified that she is very grateful to the grandmother for all of the care and love that she has shown both A.C. and S.L.C. She wants the grandmother to be an important part of the children’s lives as a grandmother. She is open to the grandmother seeing them for the full weekend three times per month.

[87] The mother’s plan is to continue to reside at her current two-bedroom home in a co-op. One bedroom has a bunk bed with a single on top and a double on the bottom. There is a park, a water park and a basketball court in front of her house. The children have made friends with other children in the co-op. The children will attend […] School. The school is a 15 minute walk from her home. A school bus is available. There is a community centre nearby at which the children can take swimming lessons.

[88] The mother’s eldest child, K.C-R. has been placed in the permanent custody of K.C-R.’s grandmother. This was K.C-R.’s choice and the mother supports her decision and consented to the custody order. K.C-R. visits the mother on the weekends.

[89] The mother’s second eldest child, H.R. has been placed with her father C.C. with the consent of the mother. She also visits the mother on weekends. The mother describes the four children as closely bonded.

2.4 The Father’s Evidence and Plan of Care

[90] The father is currently in custody in Sudbury, Ontario. He was arrested on or about August 31, 2021 in Sudbury. He was charged with possession for the purpose of trafficking fentanyl, cocaine and methamphetamine and possession of firearms. He plead guilty to possession for the purpose of trafficking fentanyl. He is currently awaiting sentencing. He was transported to Toronto to attend the trial in person.

[91] The father’s testified that his criminal charges are because he was in “the wrong place at the wrong time.” His explained that he was in Sudbury to paint a house. He was arrested in a vehicle with his good friend who also plead guilty to possession for the purpose of fentanyl trafficking. Under cross-examination he agreed that there were five cell phones found in the car and he didn’t know who they belonged to.

[92] The father is supporting the grandmother’s plan to care for S.L.C. and A.C. He testified that he has formulated a plan of care with the grandmother for when he is released from custody. The children will reside with the grandmother until he has served his sentence. When he is released, he and his partner N.P. will reside with the grandmother and the children as an extended family. The mother will continue to see the children on weekends, birthdays and holidays and have additional time during school breaks.

[93] The father denies any violence or abuse in his relationship with the mother. However, he did testify that he and the mother struggled to set a schedule for access following their separation and prior to the apprehension.

[94] The father stated that he and his partner N.P. noticed a series of photos posted on Instagram on an account called “724rat.” It was their belief that this was a fake account operated by the mother. He alleges that the mother posted a photo of N.P and him with his home address (where the children lived) stating “for the right price I’ll give you the door number.” Another post was a photo of him with the child A.C. and the caption reading “As much as I love him, I love my daughters more…. I rather see him dead before I miss my babies !!!”

[95] His evidence in chief was that these posts led to charges against the mother of uttering death threats and criminal harassment against him. These charges were withdrawn by the Crown prior to the within trial.

[96] As a result of the above posts, the father testified that the mother was not welcome in the home of the grandmother.

[97] Under cross-examination, the father agreed that he has not been in the home of the mother since their separation in 2017. He maintained that the mother was not a good mother due to safety concerns.

[98] The father testified that he speaks to the children on the phone on average three times a week. Calls are facilitated by his partner N.P. or the grandmother.

[99] Under cross-examination the father also testified that he has plans to move the girls and the grandmother from the grandmother’s neighbourhood to a new home upon his release.

[100] The father’s partner N.P. testified in support of the father and the grandmother’s plan. N.P. has been involved in a relationship with the father for the past five years since she was 19 years of age. They share a child together who is not the subject of this proceeding.

[101] N.P. testified that she has never formally met the mother, nor has she had a conversation with her. She has never visited the mother’s home.

[102] N.P.’s evidence in chief is that in the fall of 2020, she and the father noticed a series of photos posted on an Instagram account called “724rat” relating to them. It is her belief that this was a fake account operated by the mother. She described the two photos as detailed by the father. Her evidence is that these posts led her to visit the police to show them the photos. As a result the mother was charged with uttering death threats and criminal harassment against the father.

[103] N.P.’s evidence is that she works as a receptionist. However, she has been very involved in the care of the children and has assisted the grandmother since the father’s incarceration. She describes participating in transportation to and from school and appointments for the children, babysitting, doing their hair, assisting with homework and taking them out for activities.

[104] N.P. testified that she resides with the grandmother during the week and with her own mother on the weekends.

2.5 The Grandmother’s Evidence and Plan of Care

[105] The grandmother is seeking a s.102 custody order placing the children in her permanent care and custody. She is opposing the placement of the children full-time with the mother. Her position is that mother should continue to have weekend access with the girls and holiday time. She testified that she would follow a specific court order with respect to access for the mother.

[106] The grandmother’s evidence is that the children have been in her full-time care since their apprehension in February of 2019. They have enjoyed a stable and consistent home for this period of time. The grandmother’s evidence is that she relies on Ontario Disability Support benefits and is able to attend to their daily needs.

[107] S.L.C. has attended the same neighbourhood school for two years of kindergarten. She is now in Grade 1. A.C. has been at the school for Junior kindergarten. She is now enrolled in Senior kindergarten. The grandmother’s evidence is that the children’s medical professionals are also in the neighbourhood.

[108] The grandmother made a variety of allegations about the mother’s care of the children: hygiene issues, ringworm and children’s clothing smelling like marijuana. Under cross-examination the grandmother admitted that she had never been to the mother’s home or seen her parent at her home.

[109] The grandmother’s affidavit evidence in chief alleged that “When S.L.C. and A.C. eventually came home to me on Sunday March 5, 2023, they showed me a video they took of the mother assaulting S.L.C. on March 3, 2023.” The grandmother was given an opportunity to correct or amend her affidavit on the stand at trial and she declined to do so. Under cross-examination she changed her evidence. She agreed that when she saw the video it did not reflect the mother assaulting the child.

[110] Under cross-examination the grandmother also confirmed that the mother had reached out to her recently for assistance in managing S.L.C.’s behaviour. She provided the mother with advice at that time.

[111] The grandmother testified that the mother does not respect her and is often rude in her communications with her. Under cross-examination she would not admit that she ever spoke negatively about the mother in front of the girls. The grandmother confirmed that the mother is never welcome in her home because of disrespect.

[112] Under cross-examination the grandmother testified that any issues relating to the mother’s visits was connected to some type of problem created by the mother. She testified that it is always the mother’s fault and she is the problem all of the time. The grandmother also took no responsibility for any of the cancellations of mother’s access. She explained that any cancellation was linked to the mother or to the Society cancelling the volunteer drivers at the last minute.

[113] Under cross-examination the grandmother stated that the father’s charges and plea had no relevance to the placement of the children. She does not believe that her son was found with fentanyl on his person by police. She stated that her son is welcome to live with her when released from jail. She would only remove him from the home if it were court ordered. She does not worry about her safety or the safety of the children if he lives with her.

[114] Under cross-examination the grandmother denied saying to the worker that if the children return to the mother’s care and it does not work out that they cannot return to her home, that it is not her responsibility and they can go into foster care.

[115] Under cross-examination the grandmother was asked about whether or not the mother was ready for full-time parenting responsibility. She said that she was not. She agreed that she had listened to all of the evidence. She did not believe the Society workers. She believed that the mother was putting on a front in her interactions with Debbie Bridge.

[116] The Society recalled the current family service worker Ms. Takay-Nichols who gave evidence that she observed the grandmother outside in the hallway on the third day of trial and the day of the mother’s evidence on the stand. She heard the grandmother saying to N.P. “she is lying about everything” referring to the mother.

Part Three: Analysis and the Law

[117] The legal test for making a disposition order is found at subsection 101(1) and section 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.

[118] 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.

[119] 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.

[120] 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.

[121] 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.

[122] The mother seeks an order placing the children in her care and custody under a supervision order with terms and conditions. She is agreeable to a delay in their relocation to her home to permit them to complete the school year. She is open to the children spending three weekends a month with the grandmother.

[123] The Society is seeking an order returning the children in the mother’s care under a supervision order with terms and conditions. The Society seeks discretion over the father’s access to the children. The Society seeks an order that the access for the grandmother be as agreed between the mother and the grandmother or a minimum of three weekends per month for the grandmother if she seeks that access.

[124] The father and grandmother seek an order placing the children in the grandmother’s permanent custody under s.102 of the Act with liberal access to the mother.

[125] It is not disputed that the first part of the test has been met in that a finding that the children are in need of protection have been made on consent of the parties. A Statement of Agreed Facts was filed at the outset of trial. The parties have consented to statutory findings and a finding that S.L.C. and A.C. are children in need of protection under subclause 74(2)(b)(i) and (ii); and clause 74(2)(h) of the Act.

[126] The threshold issue that I must consider is whether or not I am satisfied that intervention through a court order is necessary to protect the children in the future.

[127] I find on the evidence that there are two plans of care being presented at trial, a placement with the mother or a placement with the grandmother.

[128] The placement with the mother that is being sought by both the mother and the Society is with a supervision order. Both parties advocating this order are implicitly acknowledging that a further order is required to protect the children in the future in the mother’s home.

[129] The placement with the grandmother that is being sought by the grandmother and the father is under a s.102 order with a specified access order for the mother. The grandmother’s position is that she would abide by a court order to not permit father’s residence with her post-release if required.

[130] I find that an order is necessary to protect the children in the future whether they are placed in the mother’s home or in the grandmother’s home. This finding is based on the undisputed evidence that the mother has not had full-time responsibility for the children since their apprehension four years ago. A supervision order is sought by both the mother and the Society to assist with this transition in the event that placement with the mother is ordered by the court.

[131] Further, maintaining the children’s placement in the grandmother’s home will also require both a custody order in the grandmother’s favour and may require a potential order to protect the children from the return of their father post-release and a specified access order given the lack of success between the mother and the grandmother in arranging access in the past.

[132] 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:

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.

[133] 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 and CAS v. Hamilton v. C.(K.) 2016 ONSC 2751.

[134] In the case before me, I have been presented with two family plans, one to live during the week with the paternal grandmother and father’s new partner N.P. (and eventually the father upon his release) with access to the mother on the weekend and holidays; and the second to live during the week with the mother and to see the paternal grandmother (and father) regularly on the weekend and holidays.

[135] In both scenarios the children have the benefit of connecting to their cultural and linguistic heritage on both maternal and paternal sides and the opportunity to develop a positive relationship with their parents and a secure place as a member of a family. Their strong connection they have forged with their grandmother will be maintained through either order that is being sought at the trial.

[136] No evidence has been led that either of these children have significant developmental needs that cannot be met in either of the plans offered at trial. It has been suggested that an assessment may be required for one of the children. However, at this point neither child is enrolled in anything other than the local public school and there is no plan for any different scholastic planning in September of 2023. Nor is there a medical or counselling service that was identified as being available in one home/plan and not in the other. The mother had a witness at trial from LAMP who expressly committed to being available to provide referrals to the appropriate medical and developmental supports in her neighbourhood. The grandmother did not lead any evidence of any specific programming for the girls only available in her care or neighbourhood.

[137] It is undisputed that the children have been continuously in the care of their grandmother for four years. This is especially meaningful given their young ages and their perception of time. This continuous care is comprised of two elements, the stability of the grandmother as caregiver and the stability of their current residence.

[138] I find that the children’s connection to the grandmother would be affected by a transition to their mother’s home during the week. However, this strong relationship can be maintained through liberal weekend and holiday access.

[139] Moreover, the father’s evidence is that following his release and return to grandmother’s home that he is planning to relocate from their current neighbourhood with the entire family. The grandmother was open to this idea when asked about the relocation on the stand. Therefore the weight of this factor as it pertains to consistent school and professionals for the children is less compelling.

[140] Risk must also be considered in this best interests analysis. What is the degree of risk that led to the finding that the children are in need of protection? In this case the apprehension was triggered by an incident in 2019 of the mother permitting a babysitter to leave early and leaving the four children unsupervised. There was also evidence that she left the older children unsupervised soon after the incident.

[141] While multiple allegations were made with respect to the risk posed by the mother by the father and the grandmother over the course of this proceeding, the Society only verified the following:

(a) Mother permitted male friends into her apartment with and without her presence following the apprehension. On July 15, 2020 two of them were found with drugs by police in the mother’s unit. They were arrested and charged. (b) On August 24, 2020, the Society worker observed that mother did not maintain her apartment in good repair and did not replace screens that had been removed for air conditioner installation in a timely manner. (c) Mother went to Walmart with the children and was unsupervised during the cab ride in November of 2020. This contravened the Society’s expectation that the entire visit be supervised at that time.

[142] I find that this evidence reflects a moderate degree of risk. However, none of these verified incidents occurred within the past two years and three months. The evidence before the court is as follows:

(a) There have been no incidents relating to mother failing to provide appropriate supervision of her children when they are in her care for access following the Walmart incident. (b) The mother currently keeps a very clean and tidy two-bedroom apartment in which she has resided since June 12, 2022. (c) The mother has enjoyed cooperative relationships with Society workers since Ms. Kaur in October of 2021 and with all of the Society workers that have followed. (d) The mother has completed parenting programming with Jean Tweed and counselling with Milan and Associates. She has also meaningfully connected with Ms. Farah and Ms. Bridge for ongoing counselling and parenting support. (e) The mother has insight into the mistakes she made in the past and the impact of her lack of cooperation with the Society. (f) There is no evidence that the mother has permitted male friends to use her apartment unit for illicit purposes since the 2020 incident.

[143] All of the evidence with respect to the mother in the past two years is that she has followed the Society’s expectations and has connected with all recommended supports to improve her parenting skills. She has shown insight into the protection issues and is working hard to improve herself as a person and as a parent.

[144] Another risk that must be considered is the risk to the children if they are kept away from another parent. The court needs to assess whether one custodial plan would lead to the children being deprived of contact with the other parent.

[145] The evidence before the court is clear on this point. While the mother acknowledges her frustration with the grandmother’s cancellation of visits in the past, she is positive and thankful for the assistance of the grandmother and is seeking to keep her involved in the children’s lives. She proposed three weekends out of the four should be spent with the grandmother each month. The mother describes a volatile history with the father and yet she still gives him credit for being a good father. She is not seeking an order that would prevent him from residing with his mother post-release.

[146] On the other hand, the father’s evidence is consistently negative with respect to the mother. He does not believe that she has changed and did not hesitate to communicate random allegations with respect to the mother to the worker regardless of their source. Given his incarceration, he has no first-hand observations of mother’s parenting or her residence to provide the court.

[147] The Instagram post evidence that was led by the father and his partner N.P. is relied on by the father to justify why the mother is not welcome at the grandmother’s home and poses a threat.

[148] This evidence was initially introduced in both of their affidavits as being threatening posts from an account identified as “724rat.” They both alleged in their evidence in chief that this was a dummy account for the mother and led them to bring the criminal charges for uttering threats laid against her.

[149] On the stand, the father’s partner N.P. asked that her screenshots of the threatening posts be entered into evidence. The screen shots she provided on the stand reflected the mother’s Instagram handle “Vwalkshawty”. This Instagram handle was not mentioned in either her evidence in chief or in the father’s evidence in chief.

[150] The mother entered into evidence the photos of the threatening posts that formed part of the Crown disclosure brief for the charges she faced. These photos showed N.P.’s hand holding the phone as they were taken by police. N.P. confirmed that the photos reflected her hand and her phone in her testimony. These police photos did not reflect either the mother’s Instagram handle “Vwalkshawty” or “724rat.” The Crown withdrew its charges prior to the within trial.

[151] Given the glaring inconsistencies between these three pieces of evidence at trial (that purport to reflect the same social media threats) and the assertion by N.P. that such posts are easily manipulated, the court is unable to place any weight on this evidence. Moreover, under cross-examination, N.P. stated that she does not fear the mother.

[152] I find that the Instagram posts do not provide any evidence of an ongoing risk posed by the mother. However, the father and N.P.’s reliance on these posts as evidence of ongoing risk is found to reflect their persistent negative attitude towards the mother.

[153] The grandmother overtly blames the mother for all issues that have arisen between them. She stated that the mother lied about everything under oath at trial. She believes that the mother put on a front with her support worker Ms. Bridge. She does not believe that the mother has changed and continues to make allegations against her. She made a particularly inflammatory accusation in her affidavit, namely that the mother had recently assaulted one of the children and that it was videotaped in March of 2023. On the stand she did not take the opportunity to correct this allegation until she faced cross-examination.

[154] Given the testimony of the father and grandmother, the court cannot trust them to ensure that the children have liberal access to their mother. They both completely lack insight into risks posed by the father’s own criminal behaviour and are laser focused on denigrating the mother. Both downplay the father’s repeated incarcerations and his guilty plea for fentanyl trafficking. They reject any suggestion that the father’s serious criminal history may pose a safety risk for the girls when father is released.

[155] I find that it is in the best interests of the children S.L.C. and A.C. to return to their mother’s care under a supervision order. The mother has addressed both the protection concerns that led to their apprehension and all other protection concerns that emerged over the course of the lengthy proceeding. She has learned how to work cooperatively with the Society workers in a sustained way over repeated worker changes. She has meaningfully connected with other professional supports recommended by the Society. These supports are available to work with her into the future. She has stable and appropriate housing. She exercises regular access to her two older children and can ensure that they can further build their relationship with their younger siblings. She is committed to keeping the grandmother and the father (when released) meaningfully involved in the children’s lives.

Part Four: Order

[156] The court makes the following statutory findings:

a) Statutory findings to go as set out in the Statement of Agreed Facts filed. b) A.C. and S.L.C. are children in need of protection under subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h) of the Act.

[157] The children, A.C. and S.L.C. are to be placed in the care and custody of their mother under a six-month supervision order with the following terms and conditions:

a) The mother shall allow the Society worker to attend at her home for announced and unannounced home visits and to speak privately with S.L.C. and A.C. b) The mother shall not permit any individuals to use or sell illicit drugs in or from her home, nor shall she permit any individuals to sell or use illicit drugs in the presence of her children. c) The mother shall not leave her children alone in the home, and shall make arrangements for her children to be cared for by an adult previously identified to the Society if she needs to leave the home for any reason while in a caregiving role; d) The mother shall ensure that the children attend school on a consistent basis, unless they are unable due to illness or appointments; e) The mother shall follow through with reasonable recommendations for additional services/support made by the Society and/or other collaterals; f) The mother shall sign consents for the sharing of information, after having the opportunity to consult counsel.

[158] Access to the father shall be at the discretion of the Society with respect to frequency, duration, and level of supervision, a minimum of once per week and subject to his incarceration.

[159] Access to the grandmother will be as agreed between the mother and the grandmother in consultation with the Society. Should the parties be unable to agree upon an access schedule, access shall be at the discretion of the Society, a minimum of three weekends per month from Friday to Sunday if requested by the grandmother.

[160] Transportation to and from the grandmother’s visits will be arranged by the mother and the grandmother through public transportation when transit by car is unavailable. The mother and grandmother will meet at a public transportation station that is located equidistant from their respective homes.

Released: May 31, 2023 Signed: Justice Szandtner