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. S.E., 2023 ONCJ 344

DATE: 2023 07 26

COURT FILE No.: Toronto C40539/20

BETWEEN:

Children’s Aid Society of Toronto Applicant

— AND —

S.E., E.B. and P.B. Respondents

Before: Justice D. Szandtner

Heard on: May 29, 30, 31 June 1, 2

Reasons for Judgment released on: July 26, 2023

Counsel: Katherine Georgious................................................................ counsel for the applicant Society Alexei Goudimenko.................................................................... counsel for the respondent S.E. E.B. (paternal grandfather)............................................................................. on his own behalf P.B. (paternal uncle) ........................................................................................ on his own behalf Gary Gottlieb................................................ counsel for the Office of the Children’s Lawyer, legal representative for the children

SZANDTNER J.:

Part One – Introduction

[1] This Amended Status Review Application is about three children, B.E. born in 2011, A.E. born in 2012 and J.E. born in 2016 (the children).

[2] The children are presently in the care of the applicant, the Children’s Aid Society of Toronto (the Society). The respondent E.B. (the grandfather) is having in person visits with the three children at his home on alternate weekends.

[3] The Society seeks an order placing the children in extended society care. It seeks an order that the grandfather’s access to the children be at its discretion at a minimum of once per month. It proposes that the children be access holders and the grandfather be an access recipient. It seeks an order for access to the paternal aunt/adoptive mother S.E. (the aunt/mother) at its discretion a minimum of once per year. It proposes that the children be access holders and the aunt/mother be an access recipient. It will seek an adoptive home for the siblings.

[4] The grandfather is seeking a custody order pursuant to s. 102 of the Child and Family Services Act (the Act) placing the children in his care and custody.

[5] The aunt/mother is supporting the grandfather’s plan.

[6] The paternal uncle P.B. (the uncle) is supporting the grandfather’s plan.

[7] The child’s counsel is supporting the grandfather’s plan as it aligns with the views and preferences of the children.

[8] The trial was heard over five days. The court heard from three society workers, two of the children’s foster mothers, the grandfather, the aunt/mother and the uncle.

[9] The main issues for this court to determine are as follows:

(a) Is intervention through a court order necessary to protect the children in the future?

(b) If so, what dispositional orders are in the children’s best interests?

(c) If the children are placed in extended society care, what access orders are in the children’s best interests?

(d) If the children are placed in the grandfather’s care and custody,

(i) What terms or supervision are in the children’s best interests?

(ii) What access orders are in the children’s best interests?

Part Two – Background Facts

[10] The background facts were outlined in a Statement of Agreed Facts filed with the court within the Protection Application.

[11] The children spent their early years in Waterloo Ontario living with their biological mother and their father L.E.

[12] L.E. is the biological father of the two older children. He has been deported to Trinidad. The biological father of the youngest child J.E. is unknown.

[13] The children were apprehended by the Waterloo Children’s Aid Society due to substance abuse by their biological mother. They were placed in the care of the paternal aunt, S.E. in December of 2016.

[14] In January of 2019, the paternal aunt S.E. (the aunt/mother) adopted the children.

[15] In January of 2019 the Society received a referral from the Toronto Police Services reporting that officers attended the home of the aunt/mother. This was in response to a call from the uncle who had reported concerns about the children’s overall well-being.

[16] In February of 2019 the Children’s Aid Society of Peel Region (“Peel CAS”) was contacted by the children’s school which reported that B.E. and A.E. telephoned them from their home and disclosed that the aunt/mother hit them with a spoon/stick.

[17] In March 2019, the school called Peel CAS again to report that B.E. disclosed that the aunt/mother made her stand against a wall all night because she lost a phone.

[18] On August 16, 2020, the child B.E. called 911 and reported that she and her siblings were being physically abused in the home by the aunt/mother and her adult children H. and S. on an ongoing basis. The children alleged that they were not fed the day before and only given cereal on that day. The children said that they had not seen the “light of day” for months.

[19] B.E. reported that she was beaten with a belt on her head, neck and buttocks. She said her head was smashed against a wall. She said that the aunt/mother hit her and said that all three children were being hit by different relatives.

[20] A.E. had an old scar on her cheek which she said was caused when her adult cousin S. scratched her face. She reported to police that her cousin grabbed the back of her head and neck, slapped her and left a mark on her face. She said that there were two times when S. threw her up and down which caused her to hit her head. She said that he also pushed her off a piece of luggage and she hit her head.

[21] The aunt/mother and her adult children H. and S. were charged with assault offences. The aunt/mother was arrested on August 19, 2020 and released with conditions that precluded her from having any communication with the children. She was charged with two counts of assault with a weapon, three counts of assault and failure to provide the necessities of life.

[22] As a result of these events, on August 21, 2020 Justice Paulseth made a temporary supervision order placing the children in the care and custody of the grandfather.

[23] On December 2, 2020, Justice Paulseth made the statutory findings for the children. The parties agreed to an order that the children were in need of protection.

[24] The older children B.E. and A.E. were found in need of protection pursuant to subsections 74(2)(a) and (b) of the Act. The children were found to have suffered physical harm inflicted by the person having charge of them and at risk of suffering physical harm due to a failure to provide for their needs.

[25] The youngest child J.E. was found to be in need of protection pursuant to subsection 74(2)(b) of the Act. He was found to be at risk of suffering physical harm due to a failure to provide for his needs.

[26] On March 2, 2021, Justice Paulseth made a six-month supervision order placing the children in the care and custody of the grandfather with terms and conditions.

[27] On July 28, 2021, the Society filed its Status Review Application seeking a custody order under s. 102 of the Act placing the children in the joint care of the grandfather and the uncle.

[28] On February 25, 2022, the Society amended its Status Review Application to seek an order placing the children in the extended care of the Society with access to the grandfather and the aunt/mother.

[29] On March 28, 2022, Justice Paulseth heard a contested motion brought by the Society who sought to bring the children into care. She made a temporary order placing the children in the care of the Society.

[30] The grandfather is the only family member with a plan before the court. His plan is supported by the aunt/mother and the uncle.

Part Three – Legal Considerations for Disposition

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

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

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

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

[35] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act, as set out in subsection 1 (1), which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1 (2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available. See: Children’s Aid Society of Toronto v. H.F., 2020 ONCJ 526, per Justice Roselyn Zisman.

[36] Subsection 101 (1) of the Act read as follows:

Order where child in need of protection

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

Supervision order

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

Interim society care

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

Extended society care

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

Consecutive orders of interim society care and supervision

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

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

[38] 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.

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

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

Best interests of child

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.

[41] An order placing a child in extended Society care is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children’s Aid Society of Hamilton- Wentworth v. G. (J) (1997) 23 R.F.L. 4th 79 (SCJ- Family Branch); Catholic Children’s Aid Society of Toronto v. G.O., 2014 ONCJ 523.

Part Four – The Children

4.1 B.E.

[42] B.E. is the eldest child. She was born in 2011. Her biological mother is White Canadian and her father is from Trinidad. She is Christian.

Behaviour in grandfather’s home (August 2020 – March 2022)

[43] B.E.’s behaviour during her placement in the care of her grandfather under a supervision order was challenging. For example:

(a) On October 13, 2021, the grandfather reported concerns about B.E.’s internet use to society worker Ms. Letofsky. He discovered that ten year old B.E. was speaking to older men online and posting photos giving the illusion that she was not wearing clothes. The grandfather shared with the society worker a letter written by B.E. in which she described performing oral sex.

(b) On November 8, 2021, the grandfather reported that he was worried about B.E’s behaviour. On Sunday she dropped J.E. on his knees and they were bleeding. The uncle reported that B.E. was getting aggressive with the other children when he is not around.

(c) On November 29, 2021, Ms. Letofsky received a call from B.E. who reported that she had been suspended from school. The grandfather expressed worries about B.E. bullying others and leaving the school property at lunch.

(d) On March 14, 2022, A.E. disclosed to the society worker that she and J.E. had built a fort tent in their room and B.E. came in and destroyed the tent. B.E. hit J.E.’s head against the wall. A.E. went into the bathroom. B.E. followed and hit her (A.E.’s) head against the bathroom sink. A.E. said that grandfather did not do anything.

B.E. in Foster Care (March 2022 to date)

Placements

[44] B.E. was initially placed in a foster home with her two siblings. The children were removed from the foster home at the request of the foster parents. The removal was due to the physical conflict between the sisters. The new foster home had a specialty in behavioural skills to manage the girls’ ongoing physical conflict.

[45] The second foster mother F. testified. She stated that B.E. resisted the rules of the home, was dishonest and used extremely foul language. She swore in the home, in the school and with the neighbours. She disrupted the household by expressing her anger and frustration. She ripped off the toilet seat, put holes in the wall and ripped the ice maker off the fridge. She would not follow direction. She moved the furniture in her bedroom against the door. She moved her mattress together with her sister’s mattress to sleep on the floor without covers. A.E. would follow her direction and misbehave as well. B.E. would take food to her room and allow it to rot. She would not do laundry. Her clothes were piled up in the room. As a result, the second foster mother asked that she be removed from her home.

[46] On March 1, 2023, B.E. was placed in a third foster home apart from her siblings. The third foster mother M. testified. There are two other foster children aged 16 and 17 in the home. B.E. is described by the third foster mother as compliant with the expectations of the home. B.E. is interactive and friendly and has adapted to the routine very well. The third foster mother has noted that B.E. has a short attention span and is hyper-vigilant. She tries to be an adult and expresses concern about court and her siblings.

[47] B.E. is being tutored by the third foster mother’s daughter for two hours a week. She is enjoying school. She has made many friends. She plays basketball in the neighbourhood with her friends. She has a phone but there are rules around phone use. She has access to her phone for 15 minutes in the morning and leaves it at home when she goes to school. After school she has internet privileges from 7 – 9 pm at night. Devices are left in front of the foster parents’ bedroom. Parental controls notify the foster mother of what websites she visits. On Mondays B.E. has basketball, on Tuesday she attends art classes. She attends a girls’ group once a month and occasionally attends dancercise classes. She attends counselling weekly. She enjoys attending church with the foster family.

[48] B.E. enjoys her alternate weekends with her grandfather and siblings.

Assessments

[49] When B.E. was admitted to the Society’s care following her year and eight months with her grandfather, she had extensive dental work completed in July and August 2022.

[50] B.E. underwent a Trauma Assessment at BOOST Child and Youth Advocacy Centre (BOOST) in September 2022. B.E. reported arousal/reactivity symptoms which are a common symptoms of post-traumatic stress. She reported yelling, slamming doors, hitting things and sometimes saying mean things to people. She reported being frequently angry. At times she cries and feels out of control. She acknowledges having difficulty concentrating at school. B.E. is experiencing significant anxiety. B.E. reported somatic problems: headaches, body aches, nausea and skin problems.

[51] The BOOST recommendations included the following:

(a) B.E. needs a safe and consistent caregiver or adult in her life to make sense of her experiences and to support her as a “neutral person” who maintains routines and rituals, gives her autonomy and can read her emotional cues.

(b) B.E. requires in person trauma informed attachment therapy.

(c) It is recommended that B.E.’s caregivers set up safety cues. This can be done by maintaining routines and rituals and identifying words or signals for her to communicate her needs and providing a safe space when she needs to decompress.

(d) Caregivers need to assist B.E. in identifying healthy coping strategies to manage anxious feelings and depressed mood.

(e) B.E. should be encouraged to participate in sports, clubs and social activities both inside and outside of school.

(f) Once a reasonable amount of safety and stabilization has been achieved, it is recommended that B.E. and her sister A.E. have access to therapy together.

(g) Opportunities to communicate and engage with members of B.E.’s family of origin must be done with a consideration of her physical and emotional safety as well as her views and preferences.

[52] On February 24, 2023, B.E. underwent a psychiatric assessment with Dr. Mitesh Patel. B.E. reported symptoms of hyper-vigilance and hyper-sensitivity to certain triggers. The triggers often involve issues pertaining to her biological family. She engages in avoidance behaviours as well. There is also a degree of high sensitivity to external triggers resulting in prominent anger and mood symptoms. She experiences flashbacks on an almost daily basis.

[53] Dr. Patel reports that these symptoms are consistent with post-traumatic stress disorder (PTSD). B.E. has continued episodes of low mood symptoms. She ranks her mood at about 2-3/10. These mood symptoms are best encapsulated by her diagnosis of PTSD though an underlying diagnosis of depressive disorder, unspecified cannot be ruled out and should continue to be monitored over the course of time.

[54] Dr. Patel’s recommendations are as follows:

(a) Psychopharmaceutical Interventions: It may be appropriate to consider a trial of Seroquel to assist with sleep and to assist with a reduction in the number of flashbacks. If her symptoms do not improve with psychotherapy, it would be appropriate to consider an SSRI medication.

(b) Psychotherapeutic Interventions: Further trauma informed psychotherapy is recommended. She needs to learn new management techniques for her anger symptoms.

(c) Social Considerations: Social supports in the community are important. Engagement on organized sports teams will be important. Further mentoring programs are also of assistance to her.

4.2 A.E.

[55] A.E. was born in 2012. She is the middle child. Her biological mother is White Canadian and her father is from Trinidad. She is Christian.

Placements

[56] A.E. was initially placed in a foster home with her two siblings. The children were removed from the foster home at the request of the foster parents. The removal was due to the physical conflict between the sisters. The new foster home had a specialty in behavioural skills to manage the girls’ ongoing physical conflict.

[57] A.E.’s second foster placement was with F. She has resided in this home to date. Her second foster mother testified at trial.

[58] When B.E. was in the foster home A.E. was following B.E.’s lead and was extremely defiant and using foul language like her sister.

[59] Since her sister B.E. was placed in a new home in March 2023 A.E.’s behaviour has transformed. Her room is very clean and she does her laundry. There have been no behavioural issues for 6 – 7 weeks. She has two hours of tutoring per week at Sylvan. A.E. has lots of friends in the neighbourhood. They go for walks and bike rides together. They visit each other’s homes. She attends extra-curricular activities at the Boys and Girls Club. She attends counselling once a week. She is permitted to be on the internet from 7 – 9 pm each night. Parental controls are in place.

Assessment

[60] A.E. also underwent a Trauma Assessment at BOOST on September 8, 2022. The report indicates that A.E. identified symptoms of hyperarousal and reactivity including an increased startle response and irritability. A.E. also displays a number of externalizing behaviours including fighting and lying. The assessor posits that A.E.’s frequent lies are likely a result of a stress response and a desire to be seen positively by others in order to maintain relationships.

[61] The BOOST recommendations included the following:

(a) A.E. needs a safe and consistent caregiver or adult in her life that can provide her with an opportunity to safely engage with the world, help her make sense of her experiences and support her with self-expression.

(b) A.E. requires in person trauma informed attachment therapy.

(c) It is recommended that A.E.’s caregivers learn how to respond to her compulsive lying without punishment or shame. They should be educated with respect to the connection between this behaviour and her trauma history.

(d) A.E. should be encouraged to participate in sports, clubs and social activities both inside and outside of school.

(e) Once a reasonable amount of safety and stabilization has been achieved, it is recommended that A.E. and her sister B.E. have access to therapy together.

(f) Opportunities to communicate and engage with members of her family of origin must be done with a consideration of her physical and emotional safety as well as her views and preferences.

4.3 J.E.

[62] J.E. was born in 2016. His biological mother is White Canadian and his father is unknown. He is Christian.

Placements

[63] When J.E. came into care he was not yet toilet trained. He wore pull ups and wet his bed at night. He also required extensive dental work.

[64] He was initially placed in a foster home with his two siblings. The children were removed from the foster home at the request of the foster parents. The removal was due to the physical conflict between the sisters. The new foster home had a specialty in behavioural skills to manage the girls’ ongoing physical conflict.

[65] J.E. continues to reside in the second foster placement to date. His second foster mother F. testified. She described him as a very nice and sweet boy. However, he needs constant reminders. Safety is a big issue. She cannot send him out without a parent to play because he is unable to cross the street safely. He needs constant monitoring. If a television show is too long or exciting he will get alarmed. She limits his television time to ½ hour only.

[66] J.E. has his own circle of friends and is close with the foster mother’s son. She has not had to manage any behavioural issues in the past two months because he is busy outside in the neighbourhood. He plays basketball in the neighbourhood. He attends the Boys and Girls club in Brantford for rock climbing twice a week. The foster mother meets with the teacher regularly and he has tutoring for one hour a week. He is very weak in math. The foster mother has signed him up for a summer camp with her son. She is trying to toilet train him so that he can attend without pull ups. When he came to her care he was still wearing them every night.

Assessment

[67] J.E. was referred for a psycho-educational assessment with Dr. Fitzgerald. An Individual Education Plan (IEP) and tutoring were recommended. The results of the testing are as follows:

(a) J.E.’s cognitive ability falls in the average range. His verbal and nonverbal reasoning ability are relatively good while his working memory is not consistent and this can impede the acquisition of new knowledge and skills. Academically, J.E. has made limited progress in acquiring his core literacy and numeracy skills. His overall profile is consistent with a Learning Disability.

(b) J.E. displays high levels of hyperactivity, impulsivity, distractability which is indicative of Attention Deficit Hyperactivity Disorder (“ADHD”).

(c) J.E. is reported to have a number of symptoms which would suggest possible Autism Spectrum Disorder. He does not display a normal range of emotions, seems indifferent to pain and has a limited interest in social relations with others. He is described as having a tendency to dissociate and is very rigid.

(d) He presents with the following DSM Diagnoses: ADHD, Learning Disability (combined type), Query for Fetal Alcohol Syndrome Disorder (FASD) and Query for Autism.

(e) He should receive treatment for his ADHD. An updated assessment of his neurodevelopmental status with a focus on possible Autism should be undertaken in one year’s time. Consistent monitoring of his progress will be important.

[68] On January 31, 2023 and February 15, 2023, an IEP meeting was held at the school. J.E. is receiving the necessary supports such as regular teaching check ins and breaks when needed.

Part Five – Services provided by the Society to assist the parents and the children

[69] The family had the assistance of two family service workers and one children’s service worker:

(a) Jordan Letofsky, family service worker (July 22, 2020 – December 16, 2020; September 2021 – June 2022; and August 2022 – present.)

(b) Annpriya Anton, family service worker (December 16, 2020 – September 2021)

(c) Rebecca Richman, children’s service worker (August 12, 2022 – present)

[70] The court finds that the Society has made significant efforts to support the grandfather and the children while they were in his care.

[71] The efforts have included the following:

(a) The Society referred the children to Yorktown Family Services for counselling.

(b) The Society registered the children in school.

(c) The Society provided the grandfather with subsidy information for a daycare placement for J.E. and a letter of support for his application for the Child Tax Benefit.

(d) The Society set up a psychiatric appointment with Dr. Patel for the children.

(e) The Society connected with paternal aunt and uncle to ensure they understood the children’s needs.

(f) The Society scheduled Family Group Conferences to attempt to involve the extended family in planning for the children.

(g) The Society repeatedly reminded the grandfather to secure government documentation for the children.

(h) The society worker eventually drove him to Service Ontario to obtain updated health cards for all three children.

(i) The Society referred the family to home services for the grandfather through Bartimaeus including therapy for the children.

(j) The Society contacted Calvary Child and Family Services to arrange for services two times a week to help grandfather with the children after school.

(k) The society worker attended the home to set up the video call for the child’s counsel to meet with the children.

(l) The Society contacted Surrey Place and completed a referral for J.E. to be assessed for FASD.

(m) The Society referred the family to the Child at Risk of Exploitation (CARE) team after B.E.’s in appropriate online activity.

(n) The Society liaised with the Crown office to set up the appointment for the children after school as part of the criminal proceeding against the aunt/mother.

(o) The Society referred the family to Big Brothers and Big Sisters of Toronto.

(p) The Society followed up with the school to ensure that the children got laptops to allow them to engage in online schooling.

(q) The Society referred the two older children to BOOST for a trauma assessment.

(r) The Society referred the youngest child to Dr. Fitzgerald for an assessment.

Part Six – Is intervention through a protection order necessary to protect the children in the future?

[72] When the children were removed from the aunt/mother’s care in August of 2020 they were placed in the care of the grandfather under a supervision order.

[73] On March 2, 2021, Justice Paulseth made a six-month supervision order placing the children in the care and custody of the grandfather with terms and conditions.

[74] On March 28, 2022, Justice Paulseth heard a contested motion brought by the Society who sought to bring the children into care. She made a temporary order placing the children in the care of the Society. They have remained in foster care to date.

[75] During the year and eight months the children resided with the grandfather, the Society identified a number of protections concerns. These issues accumulated over time and eventually led them to seek an order for extended care of the children. The issues can be summarized as follows:

(a) Grandfather’s lack of follow through with professional supports and inability to adequately meet the children’s needs.

(b) Grandfather’s lack of insight into abuse within the aunt/mother’s home.

(c) Lack of extended family support for grandfather’s plan

Grandfather’s lack of follow through with professional supports and inability to adequately meet the children’s needs

[76] As set out above, the society workers were very actively engaged with the grandfather and the children following their removal from the aunt’s home and placement in his care. Numerous referrals were made over the course of the children’s year and eight months in the grandfather’s care.

[77] The Society’s evidence is that while the grandfather was a friendly client and routinely agreed to professional assistance he failed to follow through with the steps required to meet the children’s significant needs. For example:

(a) He failed to take the children to see a family doctor.

(b) He failed to take the children to see a family dentist. This resulted in significant dental work when they came back into foster care.

(c) He failed to toilet train J.E. who still required a pull up at night at six years of age when he came into care in March of 2022.

(d) He failed to register the children for school in 2020 when they were placed in his care.

(e) In January of 2022 he failed to secure the laptops they required for online school. He failed to immediately install the required internet in his home to permit them to connect to online school.

(f) He failed to renew the children’s health cards from September 2020 to October 6, 2021. They were only renewed when he was driven by the society worker to the Service Ontario office and provided direct assistance.

(g) He failed to secure the Child Tax Benefit until the society worker drove him to the Service Ontario office to complete the required forms on October 6, 2021.

(h) He failed to attend the Family Group Conference on March 19, 2021 set up by the Society to plan for extended family support. He cancelled on the day of the conference.

(i) He attended the Hospital for Sick Children with B.E. but failed to follow up with a family doctor as recommended following this visit.

(j) He failed to follow up with the Calvary Child and Family Services who could provide services two times a week to assist with the children after school.

(k) He was unable to make arrangements for the child’s counsel to meet with the children virtually without the direct assistance of the society worker.

(l) He failed to respond to calls from Surrey Place following a referral for an FASD assessment. He required the direct involvement of the society worker. On October 18, 2021, she arranged with Surrey Place that she would attend at the grandfather’s home at a pre-arranged time when they would call and she would pass the phone to the grandfather. After this call, Surrey Place reported that they were once again unable to connect with the grandfather.

(m) He was unable to make arrangements with the Crown office to bring the children to their interview about the criminal proceeding involving their aunt/mother. The society worker arranged an in person meeting with the Crown after school on October 26, 2021.

(n) He was offered in person therapy appointments for the children at Yorktown Family Services in September of 2021. He declined the therapy and told them to call back the next year. When the society worker intervened, he agreed to the therapy and then failed to connect with them again. The society worker had to intervene a third time to finalize counselling for the children.

(o) He was unresponsive to efforts made by Big Brothers and Big Sisters to contact him about supports for the children.

[78] The court finds that as a result of these failures, the children’s needs would not have been met without the direct intervention of the society workers. The grandfather failed to attend to their physical and mental health. He was unable to meet their academic needs when school moved online.

Grandfather’s Lack of Insight into Abuse in Aunt/Mother’s Home

[79] The Society’s position is that an understanding of the impact of the abuse the children experienced while in the care of their aunt/mother is essential for their future caregivers. The Society submits that a lack of insight poses a risk to the children for two reasons: they will not get the professional support they need to heal and they may be exposed to the perpetrators who are part of their extended family.

[80] The grandfather’s statements over the course of the proceeding reflects a refusal to admit to the abuse inflicted by the aunt/mother on the children and his minimization of any impact of same. The evidence of society worker Ms. Anton is as follows:

(a) On February 17, 2021 the grandfather stated that he believes that the girls were not behaving at the aunt/mother’s home in the same way they don’t behave at his house sometimes and that is why they were physically abused.

(b) On March 1, 2021 he explained to Ms. Anton that the marks on B.E.’s hands when she was removed from the aunt/mother’s home were mosquito bites and not the result of physical discipline.

(c) On April 6, 2021 the grandfather stated that the children said bad things about the aunt/mother because they wanted to live with him. He blamed the abuse of the children on the aunt/mother’s adult daughter. He said that if they were to return to the aunt/mother things would be different because he is right around the corner.

(d) On June 6, 2021 the grandfather stated that he will go to court and advise the court that the aunt/mother did not abuse the children.

(e) On October 14, 2021, the grandfather stated in court that he was supporting a plan for the children to return to their aunt/mother’s care.

[81] The evidence of society worker Ms. Letofsky is as follows:

(a) On October 15, 2021, the grandfather advised her that he felt that the criminal charges against the aunt/mother were not fair.

(b) On December 7, 2021, the grandfather advised her that B.E. is experiencing trauma and stress from the period in her childhood when she lived with her biological mother and it is coming out now. The grandfather advised Ms. Letofsky that he believed the Crown lacked evidence in their case against her and this is why they didn’t prosecute the aunt/mother. He reiterated that he did not believe she did anything and he was frequently in her home.

(c) On September 22, 2022, Ms. Letofsky followed up with the grandfather after the children made some disclosures of physical discipline by the uncle. The grandfather replied that the kids are rebellious and that at times they would both shake them. The grandfather stated that the uncle rarely cared for the children, even though he said otherwise. The grandfather also stated that the children don’t tell the truth and make up stories. They have been doing this since living with the aunt/mother as they wanted out of there. He reported that when he used to pick them up from the aunt/mother’s home they would say things as they didn’t want to live with her.

(d) On March 17, 2023, Ms. Letofsky was advised by the children that their aunt/mother’s adult child H. who had abused them in her home had come to the grandfather’s home when they were there for March break. They said they asked her to leave and she did not.

[82] The court finds that this evidence raises real doubts about the grandfather’s willingness to protect the children from further abuse by extended family. Further, his refusal to admit that abuse occurred makes it less likely that he is committed to getting them the treatment that they require. His choice to welcome a visit when the children were at his home for access by one of the perpetrators of the abuse shows particularly bad judgment.

Lack of Extended Family Support for Grandfather’s Plan

[83] The grandfather is 88 years of age.

[84] The grandfather’s age did not disqualify him as a family caregiver for the Society as is evidenced by their placement of the children in his care in August 2020.

[85] However, the Society’s evidence is that they have consistently sought committed support from extended family members as a key part of any permanent plan. This extended family support is crucial from a day to day perspective. It could also address the risk that the grandfather’s health fails him in the future.

[86] The grandfather has seven adult children. His daughter S.E., the aunt/mother was present at trial but is not an appropriate support for his plan. The uncle was also present. No other adult children were present at the trial nor were they identified as practical supports in the future. The grandfather’s evidence on this point was that they were busy with their jobs would help “when the time comes.”

[87] The Society’s evidence is that they focused on the uncle as the family member who was willing to be considered as part of a permanent family plan. The society workers met with the uncle and tried to develop a plan. This was not successful due to the consistently antagonistic relationship between these two men.

[88] The Society’s evidence is as follows:

(a) On October 7, 2021, the grandfather advised Ms. Letofsky that there is conflict between him and the uncle and he wants to remove him from the property.

(b) On January 11, 2022 Ms. Letofsky attended the home and met with the grandfather. He reiterated his view that the uncle is not responsible and ready to be a caregiver. He stated that the family would step in and help when needed.

(c) On February 1, 2022 Ms. Letofsky was advised by the uncle that he got into a fight with his brother G.E. when he came home. G.E. was saying negative things about the children’s father. The uncle left the home and called 911 because G.E. was intoxicated.

(d) On February 1, 2022 Ms. Letofsky attended the home. The grandfather reported that uncle G.E. threatened the children with sending them away to live elsewhere if they misbehaved. They started to cry. The uncle came in and started to shout at G.E. The grandfather sent G.E. to his room. G.E. came out of the room and pushed the uncle, who fell down the stairs. Both the uncle and G.E. called the police. No one was arrested but warnings were given. The grandfather stated that the uncle is the instigator and tries to tell the grandfather how to parent. He described the uncle as a drinker. Both G.E. and the uncle were drinking. He reported that all the uncle does is shout at the kids and he is not ready to have this responsibility.

(e) On February 3, 2022, Ms. Letofsky called the grandfather who reiterated that the uncle is a “loser” and not a responsible person.

(f) On May 13, 2022 Ms. Letofsky had a phone call with the grandfather. She could hear him screaming at the uncle in the background during the call. The grandfather pointed out that the uncle is yelling and he plans to kick him out of the house.

(g) On May 25, 2022 the grandfather informed Ms. Letofsky that the uncle is no longer living in the home. He is no longer welcome as he has no respect and blamed him for everything.

(h) On June 3, 2022 the grandfather informed Ms. Letofsky that he would call the police and send the kids inside if the uncle attended the home during his access.

(i) On June 8, 2022 the grandfather told Ms. Letofsky that a real estate lawyer will remove G.E. and the uncle’s name from the ownership of his home and once he does this, he will get a restraining order against the uncle.

(j) On November 23, 2022, Ms. Letofsky attended the uncle’s home. He stated that he wanted to have shared custody with the grandfather, but he hasn’t returned to his father’s home since his father kicked out. He said that he and his brother G.E. were always fighting in the home but his father chose G.E. and kicked out the uncle.

[89] The court finds that the grandfather’s extended family support is very limited. There is also significant conflict between him and the one other adult (the uncle) who has stepped forward to help. This is problematic given the grandfather’s advanced age and the significant needs and vulnerability of the children.

[90] The court finds that based on the significant and ongoing protection concerns identified above, a continuing intervention through a protection order is necessary to protect the children in the future.

Part Seven – The Positions and Plans of the Parties

7.1 The Society’s Plan

[91] The Society submits that it is in the children’s best interests to be placed in extended society care. Due to protection concerns set out in Part Six above, the Society takes the position that supervision terms would be inadequate to protect the children in the grandfather’s care.

[92] The Society has tried a placement on a supervision order with the grandfather. While he agreed to professional supports, he was unable to perform the minimum amount of follow up to secure those supports. He required the constant vigilance and direct intervention by the society worker to meet the children’s needs.

[93] The grandfather’s evidence also reflects that he does not believe the children’s disclosures with respect to their abuse in the care of the aunt/mother. This connects directly to the risk that he will not follow up to ensure that they get the professional support they need to heal from the abuse and that he will permit contact with the family perpetrators (i.e. aunt/mother and her adult children). He permitted such contact as recently as March of 2023 during an access visit.

[94] Finally, the grandfather is 88 years of age and requires support from extended family to care for three children. The volatile and antagonistic relationship that exists between the grandfather and the uncle is not the stable foundation for a co-parenting relationship or even a supporting caregiver. No other paternal aunts or uncles have stepped forward to support the grandfather’s plan in a practical sense.

[95] The Society’s plan is to seek an adoption placement for the sibling group.

[96] The Society recognizes the close bond between the children and the grandfather and seeks the access order set out in paragraph 3 above.

7.2 The Grandfather’s Evidence and Plan (supported by the aunt/mother and the uncle)

[97] The grandfather seeks the opportunity to resume care of the children. He plans to reside with them in his home. He seeks sole responsibility for the children. However, he testified that he is willing to accept the uncle’s help.

[98] The grandfather is 88 years of age. He came to Canada in 1971. He has raised seven children with his wife who is now deceased. He worked in a factory. He is currently retired. He goes to the mall, cleans his house and plants things in his backyard. He walks for half an hour every day.

[99] His adult son G.E. currently resides in the home. He will be asking G.E. to leave the home in order to be able to accommodate the three children.

[100] The grandfather has seven adult children. His son L.E., the children’s father, has been deported to Trinidad and is therefore not available to support his plan. He stated that none of the other children would be available to support him if he had the children in his care as they all have busy lives.

[101] The exception to this is the uncle who appeared as a witness at court.

[102] The grandfather saw the children regularly when they were in the aunt/mother’s home. He would go there three times or more a week and also on weekends. He testified that when he visited there, he saw that everything was fine. He never saw any abuse.

[103] When asked about his plan for the children if he passed away he explained that he “will deal with it when the time comes.” He explained that he has family members who can step in at any time. He could not identify the names of the family members who are willing to step in. He also testified that they have full time jobs.

[104] At trial he reported that the uncle will be helping with the kids. He will come to the home in the evening to help.

[105] The grandfather confirmed that in the summer of 2021 he was not happy to plan with the uncle. He admitted that he and the uncle often gave the children different instructions. He explained that no one should tell them to do something other than his instructions. He admitted that the uncle drank but testified that he had never seen him drunk. He knows that the uncle is a gambler but has never seen him gamble.

[106] When asked about the Society’s efforts to plan with him and the uncle together between May 2021 and February 2022 he could not recall details. He admitted that after his son G.E. and the uncle fought that G.E. changed the locks to the home a year ago so that the uncle could not return. He agrees that he was fine with it and that the locks have not been changed back.

[107] He offered the following plan for the children if they were returned to his care. In the morning he will wake them up for school. They will make their own lunches and clean up. He will walk them to school. He will check on them at recess through the fence. He will pick them up from school at 3:30 pm. They will do their homework, have supper and go to bed. The girls will sleep in the larger room and the youngest male child in the smaller room.

[108] The grandfather has a working vehicle. He will be renewing his driver’s license in a week. He is retired and is financially stable due to his pension and investments. He has money for the children’s education. He would be able to purchase computers for the children. He could also afford their medication. He would ask for help from the Society to cover any therapy costs.

[109] During their weekend access they go to the laundry first to do the laundry. The children do everything at the laundromat. They get lunch and then go to the mall.

[110] The grandfather does not have a plan for how to accommodate different interests/activities for the children. He also does not have a plan for how to accommodate different medical appointment needs for the children. He testified that they will all come along. No one will stay home alone.

[111] The grandfather does not currently have internet in the home but he would get it to meet the children’s needs.

[112] The grandfather is willing to attend a parenting course.

[113] The grandfather is aware that the youngest child is diagnosed with autism and ADHD. He does not know what the eldest daughter’s diagnosis PTSD stands for. However, he testified that he could work with the Society to better learn how to manage the condition. He is prepared to make an appointment with a doctor to ask for help in understanding the condition.

[114] The grandfather testified that the eldest child B.E. needs counselling because of her experience with her biological parents in Waterloo before her placement with the aunt/mother. Her need for counselling has nothing to do with the care of her aunt/mother. When asked about how he will monitor B.E. to prevent further concerning internet activity he explained that he would go to the school at recess time and watch them in the playground through the fence. He will pay attention to the children. He was not familiar with parental controls for internet use.

[115] The grandfather testified that the middle child A.E. does not need counselling. She would not be attending counselling in his care. He explained that she is “normal” and does not require counselling.

[116] The grandfather testified that he did not see the youngest child J.E.’s continuing need for pull-ups at the age of seven as an issue. He explained that in his view he would grow out of it himself. He also did not think that tutoring was required for J.E. because he is able to help him. He has no plan to address the child’s ADHD diagnosis.

[117] The grandfather stated that he did not see the incident where B.E. dropped the youngest child on his knees and they were bleeding. B.E. also slapped A.E. and slammed her against the sink. He heard about this later from another family member. He explained that he can’t follow them around the house at all times. He agreed that it was a problem that they did not come to him to tell him what happened. He stated that he had no concerns about the relationship between B.E. and A. E. in his house.

[118] The grandfather admitted to conflict between his sons G.E. and the uncle when they resided in his home. He was present for one fight in which he sent G.E. to his room and the uncle out of the home to avoid any other problems.

[119] The grandfather testified that he liked working with the society workers. When asked why he failed to follow through with their requests (i.e. the health cards) he could not provide an explanation. He could not recall. He also offered that the worker volunteered to do it and he could not refuse. He could not recall when the worker raised the Child Tax Benefit with him.

[120] The grandfather had no recollection of a meeting with the Crown attorney for the criminal case dealing with the abuse. He does not recall them calling to follow up with him.

[121] When asked about a dentist for the child, he could not identify one and answered “no one told me anything.” He explained that the children would have to identify pain in their teeth before he would take them to a dentist. He has not yet looked into the government program for dental coverage.

[122] The grandfather confirmed that he never took the children to a doctor while they were in his care. He explained that he did not have a reason for this omission.

[123] The grandfather does not think he heard any messages left by collaterals on his answering machine because he comes home late. He could not recall messages from Surrey Place. He does not clearly recall if the children attended Surrey Place while in his care or when that would be.

[124] The grandfather confirmed that it could be possible that he turned down an offer for counselling for the kids because he was making sacrifices for the children.

[125] He testified that he will now hear the messages of collaterals and answer without delay.

[126] If the children are not placed with him full time he would prefer that they come to visit him every other weekend. They can call him whenever they want.

[127] The grandfather testified that the aftermath of the abuse of the children in the aunt/mother’s home is a “family business. Two hours later they will all be speaking to each other.” He claimed that the abuse was not investigated properly and that “we don’t know the truth.” Any marks on B.E. were there when the aunt/mother got the kids. He does not accept that the aunt/mother beat the children because he was not there when it happened. “I cannot say anything – I will not commit to something I don’t know about and I have not seen.”

[128] The grandfather does not think that any of the choices of the family have harmed the children.

[129] The grandfather talks regularly with the aunt/mother. He drops off groceries for her. If the children are with him he will leave them in the car while he drops off the groceries. He is not at all worried about the children seeing their aunt/mother in the future. If the Society was not involved he would not restrict her access to the children because this is a “family affair.”

[130] The grandfather confirmed that the children’s cousin who was criminally charged with abusing them visited his house in March of 2023 to drop off gift cards. The three children were present. He does not believe that this visit negatively affected the children. He was not upset about the visit.

7.3 The Aunt/Mother’s Evidence and Position

[131] The aunt/mother is supporting the grandfather’s plan. She believes that he can care for the children on his own.

[132] The aunt/mother confirmed that the children resided in her care from December 2016 to August of 2020. She adopted them in January 2019.

[133] She confirmed that the children left her care after B.E. called the police to report that she was being abused in the home by her and her two adult children H. and S. The police came to the home and the children were placed with the grandfather.

[134] The criminal charges were dropped against the aunt/mother and her daughter H. Her son S. plead guilty to one charge.

[135] She denies all allegations of abuse and improper parenting by her or her children. She stated “their reality is not my reality.” She stated that the children are telling a story which is a lie. She would like to ask B.E. what made her think she was being abused when it never happened.

[136] She prefers to not have supervised access with the children in the future. She is prepared to not attend family gatherings if the children do not want to see her.

[137] The aunt/mother confirmed that her children who were charged with abusing the children had unplanned contact with them outside of court during the trial. She did not see any issue with this inadvertent occurrence. She stated that it would be good for the children to be involved with her children in the future. She explained that it will be helpful for them to be able to heal emotionally, mentally and psychologically.

[138] The aunt/mother further stated that it would be positive for them to spend time with her. She does not think that counselling is a pre-requisite before she has contact with the children. She agreed that she had denied counselling on numerous occasions. She has not participated in counselling to date.

7.4 The Uncle’s Evidence and Position

[139] The uncle testified that he does not believe that the grandfather can care for the children alone.

[140] He testified that he and his father did not discuss a joint plan prior to the trial. The uncle stated that prior to trial the grandfather did not want to share custody with him. He agreed that throughout the case he was happy to have shared custody but the grandfather is opposing it.

[141] On the second day of trial the uncle stated that he was asking the court for access with the children in his apartment or to have telephone access to them twice a week. He stated that he is not planning for the children because he can’t take the responsibility right now and his communication with the father has broken down. He is not presenting a joint plan with the father. He stated that the children should stay in foster care. However, he is supporting the grandfather’s plan for sole custody. He prefers that the children be returned to the grandfather’s care, he will help with the children.

[142] Under cross-examination the uncle stated that he would agree to shared decision-making with the father. If the father wants sole-decision-making responsibility he would help out. He would agree to a supervision order with the grandfather wherein he took a supportive role.

[143] The uncle confirmed that following a disagreement involving defending the children from G.E. (the way he spoke to the children) he was locked out of the family home in wintertime. There was no warning to him. He remains locked out to date.

[144] When asked about how he and the grandfather would manage joint custody if ordered, the uncle could not explain how they would resolve differences with respect to the needs of the children. For example, if the grandfather refused to consent to therapy for A.E. the uncle said they would have a discussion. He stated: “I will try to reason with him. I have no problem communicating with him but he will not listen.”

[145] The uncle testified that he cares deeply about the wellbeing of the children. He contacted the police in January of 2019 to report concerns about their well-being at the home of the aunt/mother. He is adamant that the children should not be exposed to the mother or her adult children who also faced charges for abusing the children.

[146] The uncle reports that he provided practical support to the grandfather when the children were originally placed in his care. He is willing to do so again if the children return to the home. He currently works full time. He begins his workday early and ends at 3:30 pm. He can get to the grandfather’s home to assist with the children after school within 45 minutes by bus or 30 minutes by bike in the warmer months.

[147] The uncle said that he would be committed to following through on the children’s appointments and that he had a flexible job that could accommodate this commitment.

[148] The uncle agreed that the Society could check in on the family following the order.

[149] The uncle could not explain why the children B.E. and J.E. do not want to spend time with him. He agreed that he could speak harshly to the children and that he physically restrained the youngest child J.E. on one occasion.

Part Eight – Placement Analysis

[150] To this point in the analysis the court has primarily focused on the protection concerns, it is against these concerns that the court must weigh the benefits of placing the children with the grandfather.

[151] Despite its current position at trial, the Society chose to place the children in the care of their grandfather when they were removed from the care of the aunt/mother in August of 2020. The Society felt at that time that supervision terms were adequate to address its protection concerns.

[152] The Society had good reasons for taking this position that still apply today including:

(a) The children wanted to be placed with their grandfather.

(b) The children enjoyed a strong and loving bond with their grandfather.

(c) The grandfather was capable of meeting the children’s instrumental needs, such as shelter, food, clothing and hygiene.

(d) The grandfather was willing to meet with the worker and to agree to professional supports. He was polite with society workers.

(e) There was no concern that the grandfather would be physically or emotionally abusive to the children.

(f) The grandfather had no mental health issues, substance abuse problems or cognitive limitations that might adversely affect his ability to parent the children. He was not involved with criminal activity.

(g) The grandfather expressed a commitment to the children.

(h) The grandfather owned a home that provided appropriate space for the children.

Part Nine – Best Interests Considerations and Disposition

The children’s views and preferences

[153] The children have been clear and consistent that they wish to return to the care of their grandfather. B.E. does not want any contact with her uncle or her aunt/mother. A.E. is open to contact with these relatives. J.E. does not want contact with the uncle. He has agreed in the past to virtual contact with the aunt/mother.

The children’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, and the children’s physical, mental and emotional level of development.

[154] The court finds the following facts relating to the above factors for all three children:

(a) The three children before the court have endured two unsafe home environments. The first was in Waterloo where they were removed from their biological mother and their father by the CAS of Waterloo. The protection concerns in the home were related to their mother’s substance abuse. Their father was deported to Trinidad.

(b) Their second home environment was with the aunt/mother S.E., their paternal aunt who assumed their care in December of 2016. She formally adopted them in January 2019. This home environment was neglectful and abusive. The children had insufficient food, were sleeping in mattresses on the floor and had little access to daylight. The older girls were physically disciplined with a belt and abused by their aunt/mother and her adult children. This led the eldest child, B.E. to call the police for assistance which ultimately led to their removal from the home by the Society.

(c) Their third home environment was with their grandfather. They have reported a strong love and affection for him. The grandfather provided love, shelter, food and clothing to the children. However, he neglected many of their other needs. He did not find them a doctor. He did not find them a dentist. He did not toilet train the youngest child. He did not secure their health cards. He did not follow through when third parties such as Yorktown and Surrey Place attempted to contact him to set up counselling and assessments for the children. In his testimony he cannot recall why he did not take these steps. This neglect ultimately led to the children’s removal from his care by the Society.

[155] The court finds the following facts relating to the above factors relating to the eldest child B.E.:

(a) B.E. is the eldest. She has taken on a protective and parental role with her siblings in the past. She has also physically abused her siblings in the past and has difficulty with emotional regulation and anger management.

(b) B.E. suffers from PTSD and depressive symptoms due to her experiences in her previous home environments. She requires counselling and a caregiver who believes her account of her experiences and is able to provide her with daily support.

(c) B.E. has a history of testing her home environments. She has a capacity for dramatic misbehaviour including vandalizing her home and verbally abusing her caregivers. She has a history of engaging in inappropriate online behaviour that is sexually precocious. She requires boundaries and limits in her home environment both in person and online.

(d) B.E. requires professional tutoring to allow her to advance to the level of her peers at school.

(e) B.E. is thriving in her current foster home. She has adapted well to a calm, stable and structured home environment away from her siblings. She enjoys participating in sports and other activities.

[156] The court finds the following facts relating to the above factors for the middle child, A.E.:

(a) A.E. is the middle child. She is very close to her sister B.E. She has copied her sister’s negative behaviour in the past.

(b) A.E. requires counselling and a caregiver who believes her account of her experiences and is able to provide her with daily support.

(c) A.E. has a history of lying and stealing in her foster home environments. She requires boundaries and limits in her home environment both in person and online.

(d) A.E. requires professional tutoring to allow her to advance to the level of her peers at school.

(e) A.E. is thriving in her current foster home where she resides with J.E. Without the presence of B.E. she is complying with the expectations of the home. She is enjoying her peers and participating in sports in the neighbourhood.

[157] The court finds the following facts relating to the above factors for the youngest child, J.E.:

(a) J.E. is the youngest child.

(b) He has been diagnosed with ADHD. It is not yet clear if he is autistic or FASD. This will have to be carefully monitored.

(c) He must be closely monitored by his caregiver outside of the home as he has no sense of personal safety or caution. (i.e. with traffic).

(d) J.E. requires professional tutoring to allow him to advance to the level of his peers at school. He has an IEP.

(e) J.E. is thriving in his current foster placement. He is attached to the other child in the home and has friends in the neighbourhood. He has adapted well to a stable and structured home environment.

The children’s cultural and religious heritage

[158] The court finds that the children’s biological mother was a White Canadian. The biological father of the girls was Trinidadian. The biological father of J.E. is unknown.

[159] The grandfather identifies as Christian. He does not attend church, but he watches the Sunday service on television. His plan does not include the children’s attendance at a school with a religious affiliation.

The children’s relationship to their family and their attachment to their kin

[160] The court finds that that the children have a strong and loving bond with their grandfather. His home is familiar to them.

[161] The court finds that B.E. and J.E. do not have a strong bond with their uncle. They are clear that they do not want to see him. Only A.E. will agree to visit with him.

[162] The court finds that the children’s bond with their aunt/mother and her adult children has been profoundly disrupted by their abusive and neglectful behaviour. B.E. and J.E. refuse to see her. Only A.E. will agree to limited contact with the aunt/mother.

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

[163] The court finds on the evidence that the degree of risk that justified the finding that these children were in need of protection is very high. The aunt’s home was both physically abusive and neglectful. Moreover, the abuse and neglect was occurring with the cooperation and participation of her two adult children in the home. This was a profoundly traumatic home for the three children. The experience in this home environment has negatively affected all three children.

[164] The court finds on the evidence that the grandfather visited this abusive and neglectful home routinely and did not observe anything of concern. This is alarming for two reasons. First, that he did not notice or see a problem with the neglect in the environment. Secondly, that the children did not reach out to him for help, rather B.E. disclosed first to her teacher and then ultimately called the police. This reflects an understanding on the part of the eldest child B.E. that the grandfather was aligned with the aunt/mother and would not help them.

[165] The court finds this alignment between the grandfather and the aunt on the evidence. The grandfather does not believe the children. He does not believe that there was abuse or neglect in the aunt/mother’s home. He believes that the investigation was not complete. He believes that any psychological trauma was caused to B.E. only by her experiences in her biological mother’s home. He will encourage contact between the children and the aunt/mother if they are placed in his care. He will encourage contact between the children and the aunt/mother’s adult children if they are placed in his home. He has already allowed the abusive adult child H. to visit the children in his home during an access visit in March of 2023.

[166] The grandfather’s denial of the children’s traumatic experiences in the past is profoundly harmful to them. They require a caregiver who will believe them and support their recovery from the harm, not deny and question their brave disclosures about what happened and how they were impacted.

[167] The grandfather’s willingness to expose them to the perpetrators of their harm in the future has the potential to be extremely damaging. He believes that they will get over any issues through time spent as a family. He shows no respect for B.E. and J.E.’s clear position that they do not want to spend time with their abusers. Nor does he respect A.E.’s position that she would be comfortable with limited contact with the aunt/mother.

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 or relative

[168] The family plan before the court is a placement with the grandfather. The court finds the following facts on the evidence about the merits of this plan:

(a) The grandfather is 88 years of age. He is in good health. However, he has not developed a detailed plan for the care of the children if his health were to fail. He indicates that unidentified family members who were not present at court will step forward when the time comes. This is not a realistic plan from a responsible caregiver, this is wishful thinking.

(b) One relative who did attend court is the uncle. The uncle and the grandfather have a highly antagonistic relationship. The uncle has been locked out of the grandfather’s home for one year. He was locked out without notice in the wintertime after conflict with his brother G.E. To date, the grandfather has not given the uncle a key to his house.

(c) The Society made concerted efforts to work with the uncle and the grandfather towards the development of a joint plan to draw on the strengths of both men. The court finds that the uncle was willing to cooperate and the grandfather was not. The uncle admitted this on the stand. There was no evidence of a joint plan that had been developed by these men to care for the children together.

(d) The court finds that both the uncle and the grandfather’s statements that they could work together to care for these children was not credible. The candid evidence from the grandfather that he wanted to be in charge was credible. The candid evidence from the uncle that the grandfather was unable to care of the children and would not share responsibility was credible.

(e) The court finds that in spite of the fact that he attended the trial and had access to the children’s assessment reports, that the grandfather still did not understand or appreciate their needs. He did not know what PTSD meant. He stated that he would not take A.E. to counselling as she is “normal.” He stated that he would not bring the children to tutoring because he could assist in this regard. He did not have any plans to toilet train J.E. at the age of seven because he would simply grow out of it.

(f) The court finds that the grandfather also has a very limited understanding of the demands of the three active children’s extra-curricular activities. His summer plan for them was to go to the local park. He did not have any plan on how to deal with their soon to be diverging interests given their age and stages for sports and activities. He simply stated that they would all go together to any event or activity.

(g) The court finds that the grandfather’s failure to undertake a number of basic parenting tasks during the children’s time living in his care was very problematic and shows a lack of understanding of responsible caregiving. He was unable to independently secure their health cards. He has a vehicle and yet he required transportation and assistance from the society worker. He failed to bring the children to a dentist or a doctor while they were in his care. This resulted in extensive dental work when they were brought into Society care. The court finds that he was oblivious to these very basic proactive parenting tasks. He is of the view that he would take the children to a dentist if they were complaining of tooth pain or to the doctor with a specific problem.

(h) As detailed above, the court finds that the grandfather is likely to expose the children to their abusive family members if they are placed in his care.

[169] The Society’s plan is to seek an adoptive placement that would care for the three children together. The Society is seeking an order that would provide the grandfather with weekend access to the children a minimum of once per month. The court makes the following findings of fact with respect to the merits of this plan:

(a) In spite of placement changes, the children are thriving in their current foster homes. They are engaged with athletics, counselling and tutoring. The children are sociable and have each made friends in these new environments. They have responded well to capable caregivers, structure and stability.

(b) The children look forward to their weekend access with their grandfather and each other. They enjoy these visits and are not destabilized by them in terms of their behaviour upon their return to their placements.

[170] Following the above analysis of the best interest factors as they apply to the findings of fact, the court finds that an extended care order is in the best interests of the children.

[171] A supervision order placing the children in the care of the grandfather would not be in their best interests for the following reasons:

(a) The evidence before the court is that the children have significant mental health needs that need to be addressed in a timely manner.

(b) The evidence is that the grandfather does not believe that the children were abused by the aunt/mother and her adult children and need the recommended professional supports.

(c) The grandfather allowed in person contact between the children and the aunt/mother’s adult child who abused them in March of 2023 against their wishes.

(d) The evidence is that when the children were placed in the care of the grandfather under a supervision order, he failed to follow through with referrals and their need for professional supports were not met.

(e) The evidence shows the grandfather did not take responsibility for fundamental tasks that fall to all custodial parents (i.e. dentist, doctor, school registration/supplies and government documentation).

(f) In spite of his advanced age, the grandfather has not put forward a plan that involves other family members to assist him in meeting the children’s significant needs. He has an antagonistic relationship with the uncle who is the one family member who has offered caregiving support.

Part Ten – Access

10.1 Legal considerations

[172] Section 105 of the Act sets out the court’s powers in relation to access for children in extended society care. It reads as follows:

105 (5) When court may order access to child in extended society care – A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child’s best interests.

(6) Additional considerations for best interests test – The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

a) whether the relationship between the person and the child is beneficial and meaningful to the child; and

b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

(7) Court to specify access holders and access recipients – Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)c) the court shall specify,

a) every person who has been granted a right of access; and

b) every person with respect to whom access has been granted.

[173] The best interests considerations that are set out in subsection 74(2) of the Act apply to access orders.

[174] The Ontario Court of Appeal in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 considered this section. The court set out the following:

(a) Pre-CYFSA case law that provided a rigid definition of beneficial and meaningful is no longer applicable. This includes the requirement that access must be “significantly advantageous” for the child.

In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future. This would include the prospect of an openness order.

(b) The child’s best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child’s development of a positive relationship; (iii) continuity in the child’s care and the possible effect on the child of disruption of that continuity; (iv) 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 [Emphasis added].

(c) The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.

(d) The “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests.

(e) The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.

(f) A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies.

[175] Pursuant to subsection 105 (7) of the Act, the court must specify who is an access holder and who is an access recipient in making its extended society care with access decisions.

[176] In Children’s Aid Society v. Y.M., 2019 ONCJ 489, the court found that the parents would likely delay any openness proceeding if made access holders, either through unreasonable litigation or through other methods, as they had delayed the protection case, often coming late for trial, or not at all. Court found that would put a chill on adoptive applicants and impair the child’s opportunities for adoption. Court found it in child’s best interests to make child and not parents access holders.

[177] In T.H., the two younger children were placed in extended society care and given access to their two older siblings – who were the access recipients. At a later trial, the two older siblings were placed in extended society care. This terminated the access order for the two younger siblings. The court made a new order granting reciprocal rights of access – the siblings were made both access holders and recipients and were entitled to bring openness proceedings.

10.2 Positions of the parties

[178] The grandfather is currently having access with the children on alternate weekends at his home.

[179] The children all seek to return to the grandfather’s full-time care. The grandfather testified that if the children are not placed in his custody he would prefer that they come to visit him every other weekend. He proposes that they can call him whenever they want. The Society seeks an access order for the grandfather at its discretion and a minimum of once per month.

[180] After multiple cancellations this fall, on November 24, 2022 the aunt/mother asked that in person visits with A.E. be put on hold. Video access is ongoing with A.E. only.

[181] The aunt/mother testified that she will be guided by the wishes of the children with respect to access. J.E. and A.E. agreed to telephone access with the aunt/mother. A.E. is the only child seeking access to the aunt/mother in person. The Society seeks an order for access to the paternal aunt/adoptive mother S.E. (the aunt/mother) at its discretion a minimum of once per year. It proposes that the children be access holders and the aunt/mother be an access recipient.

[182] The uncle seeks access with the children. The children have consistently expressed the view that they do not want to live with their uncle. Only A.E. consented to access with the uncle in the past. There is undisputed evidence that the uncle invited the children’s maternal grandparents to one of his access visits in the past. He did so without the knowledge or consent of the Society. As a result, A.E. and B.E. renewed a connection with their biological mother. A further result of this decision was that his access became supervised going forward.

[183] The uncle has been offered in person supervised access with A.E. which he is not exercising.

10.3 Analysis

[184] The children spend alternate weekends with their grandfather and speak positively about the visits. They enjoy connecting with each other (as they are in different foster homes) and with their grandfather. They share strong, loving connections with him. They are comfortable in his home and enjoy the activities he provides (i.e. the mall, the laundromat, the park). Access to their grandfather can help them to maintain their sense of connection with their extended family, their religion and their ethnic heritage. The court finds that grandfather’s current relationships with the children are beneficial and meaningful. These access visits are in their best interests.

[185] The Society will be seeking an adoptive home for this sibling group. The access visits with the grandfather have to be planned to avoid impairing the child’s future opportunities for adoption. The court finds that visiting their grandfather a minimum of once per month will not impair those opportunities.

[186] The court also has to consider who will be the access holder and recipient for the grandfather’s access. The children will be access holders of their access with their grandfather and their grandfather will be an access recipient. This will ensure that the access order will not put a chill on the sibling group’s adoption prospects.

[187] The aunt/mother’s current contact with the children is minimal. Their relationship with her has not been beneficial and meaningful. It has been psychologically and physically abusive. The court finds that there is no contact with the aunt/mother that would be in their best interests given the history of the aunt/mother and her adult children’s behaviour and her lack of remorse for same.

[188] The uncle’s relationship with the children is currently weak. His relationships with B.E. and J.E. are compromised to the point that they do not want contact with him. He failed to follow through with his access to A.E. when it was supervised as a result of his actions. The court does not find that this relationship is beneficial and meaningful. An access order with the uncle is not in their best interests.

[189] The siblings are currently residing in two different foster homes. A.E. and J.E. reside together and B.E. resides on her own. It is in the children’s best interests to make an access order for the siblings to be able to maintain their contact with one another now and in the future. All three children shall be access holders with respect to their contact with their siblings.

Part Eleven – Conclusion

[190] A final order shall go on the following terms:

1. A final order placing the children, B.E., A.E. and J.E. in the extended care of the Society.

2. Access to the children by the grandfather E.B. shall be at the discretion of the Children’s Aid Society of Toronto with respect to duration, location and level of supervision. This access shall be a minimum of once per month. The children B.E., A.E. and J.E. shall be access holders. The grandfather E.B. shall be an access recipient.

3. B.E. shall have access to her siblings A.E. and J.E. a minimum of once per month. B.E. shall be the access holder. A.E. and J.E. shall be the access recipients.

4. A.E. shall have access to her siblings B.E. and J.E. a minimum of once per month. A.E. shall be the access holder. B.E. and J.E. shall be the access recipients.

5. J.E. shall have access to his siblings B.E. and A.E. a minimum of once per month. J.E. shall be the access holder. B.E. and A.E. shall be the access recipients.

Released: July 26, 2023

Signed: Justice D. Szandtner