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 10 24 COURT FILE No.: Fort Frances FO-22-12-00

BETWEEN:

Kenora-R[...] Districts Child and Family Services Applicant,

— AND —

T. E.K. Respondent

Before: Justice E J Baxter

Heard on: June 6, 7, September 26, 27, 2023 Reasons for Judgment released on: October 24, 2023

Counsel: Joanne Clouston............................................................ counsel for the applicant society Micheal Cupello......................................................................... counsel for the respondent

PROTECTION FINDINGS REASONS

Baxter J.:

[1] The applicant society, seeks an order finding the children, J.C. (January, 2020) and A.E-C.(May, 2021) , in need of protection pursuant to ss. 74(2)(h) and 74(2)(i) of the Child Youth and Family Services Act, 2017 (CYFSA).

[2] J.C., the children’s father, has been noted in default for not complying with the Family Law Rules and has not taken part in the proceedings.

[3] The mother, T.E.K., opposes the society’s application and wants the children returned to her with or without a supervision order.

[4] On December 1, 2022, the children were apprehended with a warrant and brought to a place of safety. At the time of the trial commencing, the children had been in care since December 6, 2022, when I ordered they be placed in the temporary care of the society on a without prejudice basis. The children have been in care for 304 days as of October 1, 2023.

[5] The society’s concerns relate to the ongoing issues the parents have had with their mental health and substance use that regularly brings them into conflict with each other and with others in the trailer park where they live in Fort Frances. The society alleges the parents are neglecting the children’s medical needs, and do not maintain a sufficiently hygienic/safe home for the children, thereby placing them at risk of emotional harm and possibly physical harm.

[6] Despite a supervision order and ongoing support from the society, the parents have not complied with the supervision order of Justice P. Bishop dated June 2, 2022, and did not adequately engage in the supports and services offered to them.

[7] The children are very young and unable to speak for themselves and could not express their views and preferences. No counsel have been appointed for them.

[8] The society called child protection workers involved with the family as witnesses at the trial. They all provided affidavits about which they were cross-examined by the mother’s counsel. Counsel have agreed certain parts of the affidavits were not relevant or admissible. Accordingly, redacted affidavits were tendered to the court.

Darryl Little

[9] Darryl Little was the first witness called. In his redacted affidavit (exhibit #1) dated May 5, 2023, he noted he was a child protection worker assigned to the family from February 10, 2020, until September 14, 2021. At the time of his involvement, the couple had only one child and the society had a safety agreement with the parents regarding J.C.

[10] Mr. Little has over 20 years experience and has a social service diploma from Confederation College. He closed his file with the family on September 14, 2021, but did occasionally attend visits with other workers after that date.

[11] Generally, Mr. Little did not observe any serious safety concerns for the majority of his visits to the family home, which was in R[…] at the time. He made note of concerns expressed about drug use, namely methamphetamine, but saw no evidence of that substance or its use. He did see 4 cannabis plants growing in one of the bedrooms and a strong odour as a result, but the odour did not appear to be a problem when the door was closed.

[12] Mr. Little commented the house was messy but did not see any hazards or safety concerns. J.C. was a baby of only a few months at the time, and he appeared to be doing well and growing.

[13] The parents kept dogs, and cats (and an alleged racoon) the number of which was unknown, and Mr. Little commented on the presence of feces in the front entrance of the house, that he had the mother clean up.

[14] On July 16, 2020, Mr. Little witnessed the parents arguing with the owner of a dog they had and would not return to him. The police arrived, the father became aggressive, and he was arrested and removed from the home. During this visit, Mr. Little learned from the mother that she was on medication for bi-polar disorder. He noted the house was messy, and animal feces were seen on the carpet.

[15] On a subsequent visit September 24, 2020, the home was clean. No serious concerns were noted. However, during the subsequent visits, Mr. Little noted the parents sometimes were not home, or missed visits or did not answer the door – despite there being a COVID-19 lockdown in place, and the parents ought to have been home given the restrictions Ontario was under. Mr. Little and another worker, Linda Goose, noticed the strong smell of animal urine, the presence of feces on the floors, over-full litter boxes and the general messiness of the home. However, they noted no concerns with the baby, J.C., who appeared happy and healthy.

[16] By March 30, 2021, it was clear to Mr. Little the parents were avoiding the society workers, not engaging with counselling and not following suggestions or support. The family was facing eviction, and they were clearly under more stress. Mr. Little and his colleague offered assistance and reassured the parents they are only trying to help with their mental health issues and home safety issues. By this time T.E.K. was pregnant with her second child, A.E-C.

[17] By July 2021, the family moved from R[…] and were living in a trailer park in Fort Frances, 2 doors down from the mother’s mother.

Michelle Tighe

[18] The second worker to testify was Michelle Tighe. She is employed with the society as a child worker with foster care resources. She graduated from her studies in 2010 and is a registered child welfare worker and is a social service worker.

[19] Ms. Tighe became involved in the file in April 2022, but did investigate the family in March 2022. Her involvement in the file ended sometime in August 2022. She was involved in the apprehension of the children on July 25, 2022. Her understanding for the apprehension was because the parents were not following the court order and were not engaging with services.

[20] In Ms. Tighe’s redacted affidavit (exhibit #2) dated May 5, 2023, she documented her visits to the family’s home over the spring and summer of 2022 wherein she observed the parents’ aggressive, “dysregulated”, non-compliant, uncooperative and other concerning behaviours. She noted police involvement with conflicts between the parents and their neighbours, the unsanitary home, and her limited contact or observations of the children.

[21] She noted on more than one occasion the parents refusing to open the door, or to allow her into the home.

[22] The parents’ refusal to comply with the supervision order and the requirements of the society culminated in the children being apprehended, without a warrant, on July 25, 2022. Ms. Tighe transferred her file to another worker, Diane Richer on August 8, 2022.

Katie Beninger

[23] Katie Beninger, child protection worker, was the next witness. She testified that she took a case in child welfare pathology and has a certificate in general arts and social studies from Cambrian College (2014). The court received no evidence as to how long she has held her position with the society.

[24] Ms. Beninger was involved in the apprehension of the children on December 1, 2022. This apprehension was executed with a warrant. While in the family’s home, Ms. Beninger, in her affidavit (exhibit #3) dated May 9, 2023, noted the strong odour of animal urine, garbage all over the floor, dirt and general unsanitariness of the home. She also observed black spots, possibly mold, on one of the children’s mattresses. While transporting the children to Atikokan, Ms. Beninger noticed the children smelled strongly of cat urine, had feet blackened with dirt, dirty fingernails, and the J.C.’s blanket smelled of urine and had old food caked on it.

Linda Goose

[25] Linda Goose was the next worker. She swore an affidavit (exhibit #4) dated May 5, 2023, affirming she is a child protection worker. She has a diploma in social services (2003) and is authorized to be a child protection worker since 2004. She has been working with the family on and off since 2020 but has been assigned to the file since March 2023.

[26] Ms. Goose outlined her contacts with the family and her observations of the numerous interactions she has had. She noted since 2020 the parents engaged in behaviours inappropriate for a young couple with small children such as smoking cannabis in the home while the children were present. She pointed out the dangers of exposing the children to second hand smoke.

[27] She observed the messy, unsanitary home, exacerbated by the smell of animal urine.

[28] There was concerning conflict between the father and a neighbour that included using racist epithets, aggression, which she observed. There was also concern expressed for the mother’s safety in relation to conflict between the parents. The mother was given information about a “Circle of Safety” program, but she never availed herself of it.

[29] Ms. Goose also noted the father’s involvement in the criminal justice system and the charges he attracted, as well as the parents’ refusal to cooperate with the society.

[30] In court Ms. Goose testified she was aware of a situation that involved the mother “macing” her own grandfather, despite being on a weapons prohibition order. She also testified the parents often thwarted her ability to conduct the mandated monthly home visits.

[31] She also noted that for the most part the parents are polite when they are at the office, and that it is clear the children and parents enjoy each other during their supervised visits. She noted the mother attends her visits with the children faithfully, but the father does not. Further, the parents are not engaged in services the society has offered, including counselling for their mental health issues.

[32] Under cross examination, Ms. Goose conceded she never personally witnessed conflict between the parents or with others, but she did see videos, and the children were present.

Desiree Aniuk

[33] Desiree Aniuk, another child protection worker, supplied an affidavit (exhibit #5) dated May 9, 2023, about her observations of a supervised visit on March 16, 2023, between the children and the parents where the mother “stormed” out of the playroom and the father crying in front of the children about his frustration with supervised visits, to which the mother admonished him for upsetting the children.

Sabrina Puddicombe

[34] On the second day of the trial, Sabrina Puddicombe, a casual support worker, who also provided an affidavit (exhibit #6) dated May 5, 2023, and testimony in court, gave evidence of her observations of a supervised visit that occurred on April 10, 2023. During this supervised visit with the parents and the children, the mother’s sister and mother were also present.

[35] She noticed the parents smelled strongly of urine, and their own clothing was “soiled”. The mother appeared tired, left the visit for a short time, and upon her return, fell asleep during the visit. She changed the diaper of A.E-C., while she was still laying down, and Ms. Puddicombe observed the mother’s legs to be shaking as she did so.

[36] Ms. Puddicombe observed the parents argue in front of the children. At some point in the visit, the police attended at the building, and the parents became more agitated and concerned about a warrant the police might have had. The visit ended with the grandmother and the children crying.

Callie Degagne

[37] Callie Degagne, a family support practitioner, supervised 10 visits with the family in December 2022 and early 2023. The father attended 3 of the visits. Her affidavit dated May 5, 2023, was exhibit #7.

[38] For the most part, the visits were not problematic. She noticed the mother interacted appropriately with the children but did not bring healthy snacks or treats for them.

[39] During a visit on February 13, 2023, the mother was heard to be using inappropriate language and comments to A.E-C. that included calling the child a “smart ass” and an “asshole”. She also told the child she had a “shitty attitude” and that the mother will “ignore” her as a result.

[40] During the March 9, 2023, visit the mother was aggressive and using profane language toward the workers and in the presence of the children. In addition, the mother was assaultive to Ms. Degagne in front of the children by trying to slam the visiting room door on her. Ms. Degagne was hit by the door, causing her to fall down. The mother’s behaviour caused the child, J.C., to become upset.

[41] Ms. Degagne noted in her affidavit the three visits where the father was present, were generally positive, and they went well.

Kristina St. Pierre

[42] Child welfare worker, Kristina St. Pierre, was the next witness. She relied on her redacted affidavit (exhibit #8) dated May 5, 2023, and her oral testimony to provide evidence to the court.

[43] Ms. St. Pierre observed severe dental decay and neglect of J.C.’s teeth, and the mother was a good support when the child had his dental surgery on April 6, 2023. He had to have 5 teeth pulled under sedation.

[44] The children were assessed on December 12, 2022, and were found to have minor speech and fine motor skills delays. The children were set up with services, but the parents did not take part in any sessions, despite being agreeable to the services being provided.

[45] Ms. St. Pierre noted the parents were not overly cooperative with program planning and goal setting. In court, Ms. St. Pierre acknowledged that since her affidavit was signed on May 5, 2023, the parents did eventually cooperate with obtaining identification and other documentation for the children.

Rebecca Gushulak

[46] Ms. Rebecca Gushulak, an Infant/Child Development Worker, provided an affidavit (exhibit #9) dated May 5, 2023, and oral testimony as well. She was tasked with helping the parents to set up and access services for the children. She became involved with the family in February 2023. She noted speech therapy was set up for J.C..

[47] There was some concern or awareness discussed in the affidavit of the children’s attachment to the foster or caregivers and that the society staff were attempting to navigate this issue.

[48] On April 27, 2023, Ms. Gushulak was made aware by Ms. St. Pierre that A.E-C. had recently started to smear her feces, and that this new behaviour will have to be addressed.

Constable Dutton

[49] The next witness was OPP constable Ashleigh Dutton who gave oral evidence of her interactions with the family. She was involved on June 15, 2023, when she was called to the family’s home regarding an alleged assault. The mother alleged she was bitten on her back by the father. He was charged as a result and placed on conditions not to communicate with the mother or go to their home until the charge was dealt with.

[50] Constable Dutton was also called regarding a dispute with the neighbours on March 29, 2022, where the mother was alleged to have thrown something at a neighbour. However, she did not see anything as the situation was calmer by the time she arrived as other officers had the matter under control.

[51] On February 26, 2022, the officer was called to the home because the mother was struggling with her mental health. No conflict was observed. She did see the children to be happily playing despite the mother’s struggle. The children were 2 and 1 years of age at that time.

[52] After each attendance the officer either verbally or in writing, makes referrals to the society, as a matter of practice and direction. (see exhibit #10 CPA referral sheet)

L.K.

[53] T.E.K.’s grandfather, L.K., testified. He is employed as a taxi driver in Fort Frances, but his career was that of working in youth detention centres for 30 years. L.K. testified that on May 4, 2023, he was near the family home after dropping off a fare. He saw T.E.K. outside and asked her to return his garbage trailer to him. T.E.K. began to curse at him and called him names. She then pepper sprayed him. The father also was present and threated to turn his dogs on him.

[54] L.K. said the effects of the spray lasted several hours and was painful. He reported the incident to the police but did not know if T.E.K. was charged.

Tara-Day Archambault

[55] The parents’ neighbour, Tara-Day Archambault also provided an affidavit (exhibit #11) dated July 20, 2023, and oral testimony. She described going to the parents’ home to retrieve some items she loaned to them. When she went to the door, the father shot her with a pellet gun into her arm, causing bruising. She reported the incident to police. She did not know if the father was charged.

[56] In cross examination, she acknowledged she had observed the couple walking the children outdoors many times. The children were appropriately dressed for the weather, and never observed anything that would compel her to make a report to the society.

[57] The society closed it case. The respondent mother, T.E.K. provided an affidavit and testified at the trial.

Evidence of Respondent Mother

[58] In her affidavit (exhibit #12) dated May 24, 2023, the mother stated she is dyslexic and has memory issues. She provided a summary of the chronology of events that lead up to the apprehension on December 16, 2022.

[59] T.E.K. described the routine she had with the children and the activities she and the father did with them.

[60] She also described her interaction with the various society workers involved in this case. T.E.K. claimed the workers did not communicate clearly with her, leaving her unable to ascertain the concerns the society had and how to address them.

[61] She explained the issue with J.C.’s teeth involved weak enamel and is a condition she also had as a child. She noted she was attentive to the children’s oral and general care and hygiene. She provided no proof of the weak enamel diagnosis.

[62] T.E.K. denied there was mold on a mattress and that she and J.C. do not have disputes in the children’s presence.

[63] T.E.K. explained she suffers from a joint disorder, depression, and anxiety as well as bi-polar disorder. She was on medication for these conditions, namely an anti-psychotic, an anxiety medication and Sertraline for her depression. In addition, she stated she also has a sleep disorder which was diagnosed earlier in 2023. She acknowledged when triggered, she can yell a lot and becomes angry.

[64] T.E.K. provided further details about her caregiving, routine, and care for her children. She stated she “lives for” her children and loves and misses them very much.

[65] T.E.K. described being in care when she was child, and that she was sexually abused by her own father. She described her relationships with the various workers involved with her children. She expressed difficulty with Ms. Tighe but was otherwise fairly positive about Mr. Little, Ms. Goose and Ms. Degagne.

[66] T.E.K. testified she has been much more compliant with her medication and that she functions like a “normal person” when she takes her medication. She had also been seeing a therapist and is on a better sleep routine with the new sleep medication she was taking.

[67] The mother denied being physically aggressive with workers but did admit to yelling and saying things she ought not. She denied ever having arguments or altercations with the father in the presence of the children and that if she is upset or angry, she goes outside to vent, which sometimes attracts attention from neighbours.

[68] With respect to the alleged assault by J.C., T.E.K. claimed she takes the no contact condition seriously, and that her children come first, and she needs them “more than anything”.

[69] T.E.K. explained her finances. She receives Ontario Works and child benefits. She has disposable income after her bills are paid, which she said she uses appropriately for the care and upkeep of the home and the children.

[70] T.E.K. then went on to describe each child, their personalities, likes, dislikes and the activities they do with her.

[71] T.E.K. testified she welcomed the help from the society and wants to cooperate so she can have her children returned to her. Her mental health is better now that the father is out of the home.

[72] Under cross examination, T.E.K. was questioned about why she has not yet allowed Ms. Goose to visit the home and why she does not respond to emails or other communications in a timely manner or at all. Her responses were vague.

[73] No further witnesses were called for the Respondent mother’s case.

The Position of the Society

[74] The sole issue to be determined in this matter is whether the children are in need of protection pursuant to s. 74(2)(h) and (i) of the CYFSA as plead in its Protection Application.

[75] The society argued the court is not bound strictly to the pleadings, and that if the court is satisfied other grounds of protection are present, the court can make findings on ground not specifically pleaded. I was referred to CAS Sudbury and Manitoulin v. D.D. et al (2002) 62719 at paragraphs 105 to 107 to support this argument.

[76] The time frame to be examined by the courts in such cases differs from case to case. Some cases support the need to examine the concerns at the time children are apprehended, but all other factors are important. ( CAS Toronto v. S.A. (2017) ONCJ 366)

[77] The society contends if concerns relevant at the time of apprehension were the only factors to consider, then s. 101(8) of the CYFSA would not be necessary. However, in the present case, the society has protection concerns that exist after the children were apprehended.

[78] With respect to risk of emotional harm, the society contends that while expert evidence to support the assertion that the children are at risk of emotional harm as defined in the legislation, is preferred, and would usually be required, the courts have determined, over time, that such evidence is not necessary in all cases. The society referred to CAS Oxford County v. E.M.T. et al (2019) ONCJ 767 to support this proposition.

[79] Judges are permitted to use commons sense and their intelligence to make the necessary findings. A court must assess all the evidence before it to arrive at an appropriate decision. In this case the children are very young. J.C. is 3 and has limited verbal and communication skills. A.E-C. is not yet 2 years old and cannot convey her thoughts and feelings. Requiring an expert to examine and interview the children to determine if they are at risk of emotional harm may not be feasible or reasonable.

[80] The society workers have observed ongoing issues with the family with respect to adult conflict, possible domestic violence, and unsanitary living conditions. The society states that the prolonged exposure to animal waste can result in a risk of physical harm to the children as well.

[81] The children have been present during some conflicts, and these incidents were witnessed by society staff, who were, on occasion, the recipients of the physical and verbal abuse by the mother.

[82] Society staff have worked with the family since 2020 to offer services, programs and supports to them. The parents’ engagement has been limited to non-existent. Only since the children were placed in foster care for a few months, and after J.C. was removed from the home has it appeared the mother is more receptive to doing what she must to comply with the previous court orders and society requirements. The mother is still refusing home visits without an explanation.

[83] The mother has confirmed, by her own evidence, because of her past traumas, she is triggered, has struggled to regulate her emotions and manage her mental health conditions. She admitted to not taking her medications faithfully. She admitted to yelling and becoming dysregulated with staff on several occasions. She admitted to using cannabis to help her sleep. She denied being violent to staff or to threatening them. She denied assaulting her grandfather, yet she was charged in the pepper spray incident. Her credibility is suspect.

[84] Given the fact the children have clearly been exposed to adult conflict, both verbal and physical, and given workers have seen the children ignoring these events tends to indicate this type of behaviour by their parents is normalized in the children, which is concerning.

Position of the Mother

[85] Mr. Cupello argued the society has not met its burden to prove the risk of emotional harm to the children on a balance of probabilities. He argued that all children are at risk of emotional harm by the very fact of being children. They are at risk from organized sports, social media, and school.

[86] Counsel submitted the society ought to have given notice to the mother that they were seeking a protection finding on other grounds (i.e. actual or risk of physical harm) so that she could properly prepare a response. Such notice is a principle of natural justice.

[87] Counsel argued despite the children being young, it does not prevent an expert assessment, and this could be a factor the court can consider.

[88] With respect to the animal odours, counsel said the society was aware of the condition of the home and the animals present, but he argued a bad odour is not proof of a risk to the children. It may be proof of a pattern of neglect, but he contended that is going too far. He conceded it is a concern but was not one that rises to the level contemplated by the legislation.

[89] Mr. Cupello noted when J.C. was an infant, the mother was doing well, accepting help and support, and there were no concerns with the baby and his health. Mr. Little noted in his evidence the baby appeared to be thriving and all appeared well except for the cleanliness of the home and the animal waste present.

[90] The court was reminded to keep in mind during the society’s initial work with the family the pandemic, lockdown and restrictions were in place. The society was still able to fulfill its mandate, and all appeared to be going well for the parents and children. Once the family relocated to Fort Frances, things changed. Living in a trailer park, with neighbours so close together, a level of drama is expected.

[91] The mother has been candid about her mental health. She is now addressing her mental health, and there is no nexus between her mental health and risk of harm to the children. She is fighting to have her children returned to her. She is a full time mother and wants to resume her role. The court needs to consider the harm of taking children from their parents for months.

[92] Now that J.C. is out of the family home, the risk of domestic violence is eliminated. The fact of pets is not sufficient grounds to apprehend her children and make protection findings.

[93] He concluded saying the society needs to return the children and continue to work with the family with a supervision order. Now that the children have been apprehended, the society has got the mother’s attention. She is willing to cooperate.

[94] In reply the society argued the society’s concerns escalated over time. The mother was given time and opportunity to improve her engagement and cooperation. She did not. The society tried less intrusive measures for 2 years, to no avail. The apprehension was warranted. The court was directed to review the January 3, 2023, reasons of Joubert J. in the temporary care and custody hearing in this matter.

[95] While the society could have amended its pleadings to include risk of physical harm, the court is not precluded from noting risk of other forms of harm based on the evidence it has before it. Children should not have to live in unsanitary conditions, exposed to animal waste inside the home. The removal of J.C. from the home is not permanent, and there was no evidence to show the parents will not reconcile.

[96] The society is not seeking any other order but the protection finding at this time.

Analysis

[97] In this case, the court is satisfied the society has met its burden, but not on the grounds pleaded. In exercising the court’s discretion and in taking into consideration the best interests of the children, I find, on a balance of probabilities, the children, J.C. and A.E-C., are in need of protection pursuant to s. 74(2)(b)(i) and (ii) of the CYFSA.

[98] The threshold for finding a risk of emotional harm that manifests in the conditions set out in s. 74(2)(h) and (i) is extremely high. I am not satisfied the society met its burden in that regard. This is the type of case that called for an expert to outline the nature and severity of the risk to the children because of their young ages.

[99] I do find the children have been exposed to adult conflict and unsanitary unsafe conditions in the home. The mother’s life is chaotic, and her inability to follow directions, comply with the court orders, or the society’s requirements indicate she is not able to properly care for the children. Her claims of current better mental health and lack of substance use is not supported with any other evidence but her own assertions. I find her affidavit and oral testimony lacked insight and minimized the seriousness of her behaviour.

[100] The workers in this case do not have a reason or motive, that I could discern, to fabricate their evidence. The evidence of the workers was balanced, objective and reliable as a result. They all noted the positive and negative aspects of what they observed in terms of the parents’ ability to care for the children.

[101] Had the mother brought other witnesses to support her assertions, letters from her counsellor(s), and proof of diagnoses with plans for addressing her mental health issues, the court might have a better grasp of her progress and ability to change her behaviour.

[102] Intergenerational trauma is a real factor the court is alive to here. The mother asserts she was traumatized as a child, including herself being in care. Her trauma can, and will, be passed onto her children if she does not effectively address her issues. She needs time and help to achieve this. Claiming she is “better” now after a few months and a few sessions in therapy give the court little comfort. Having said this, I am not convinced at this point that the risk of emotional harm is made out based on the evidence in this regard. Because the children are so young, and they cannot effectively verbally communicate their feelings, it is extremely difficult to determine what risk or level of emotional harm they may be facing.

[103] While I have no doubt whatsoever, T.E.K. loves her children very much, unfortunately that is not enough when raising children. Children deserve to live in a safe, clean, comfortable home that is free from hazards to their health and safety.

[104] I have serious concerns regarding the number and types of animals the mother had in the home and the numerous observations workers made about feces and the odour of animal urine in the home. The children are at risk of physical harm from the bacteria and possible infections and illnesses they could contract from walking, crawling or otherwise coming into direct contact with the animal waste. Counsel minimizing the odour as not harmful to the children is questionable. The bacteria that cause the odours generate minute particulates that are being inhaled by those who come into contact with them.

[105] In the course of reading the materials and hearing the evidence, it was unclear what number and types of animals were living in the home. It was clear there were multiple dogs, cats, rats, reptiles, and a possible raccoon in the home at various times.

[106] The mother provided no clear evidence of how many animals she had in the home. She was not properly questioned about this by counsel. One thing that was clear was her and J.C.’s inability to properly care for or train the animals to the point that the parents had to be told several times to clean the house of the waste. One must query if a pet owner cannot properly care for their pets, how can they care for two small children and keep them safe from harm? The parents need to focus on caring for their children and not caring for numerous animals in the home that are clearly contributing to the unclean and unsafe conditions observed.

[107] While the society did not specifically plead a risk of physical harm, in considering the totality of the evidence and understanding the court has jurisdiction to consider other risks, I would be remiss not to mention the obvious risk of physical harm to the children with the state of the home and the animals in it. Clearly, it further demonstrates a pattern of neglect, supervision and protection, that combined with the other behaviour noted below, makes it obvious the children are at risk of physical harm and are in need of protection.

[108] The evidence that the children do not react when they are present during some of the mother’s outbursts or conflict with the father, J.C., is also concerning. If they are used to this type of noise and anger, as asserted by the society, it could be a sign they have emotionally withdrawn as suggested. However, I cannot be satisfied this is indicative of a risk of serious withdrawal etc.

[109] I was also troubled by the mother calling A.E-C. names and being emotionally inappropriate with her during a supervised visit. This indicates to me she is not aware of how name calling and withholding attention can impact a child’s emotional well-being. During several supervised visits the mother was overwhelmed and expected her mother, sister, or J.C. to step in and handle one child while she tried to give attention to the other. Again, I cannot be satisfied this meets the test for risk of emotional harm.

[110] The children needed speech therapy and help with fine motor skills. The evidence that A.E-C. was smearing her feces is highly concerning and very likely a sign of some emotional or developmental disturbance. Unfortunately, this issue was not further examined in the materials or at the trial. Once again, I am not satisfied this meets the threshold the society must meet for a finding of risk of emotional harm. Here, an expert would have been of some assistance to the court about these observations of the children.

[111] The mother being physically assaultive toward a worker during a visit and in the presence of the children is of significant concern. Her inability to control her temper, to communicate in a mature, calm manner, to cope with stress, and to avoid conflict clearly demonstrate that if she can behave like that in a controlled supervised setting, she will behave like that, or possibly worse, in private.

[112] This worry is borne out by the fact the court is aware that since the trial ended, the mother is now facing new charges of assault with a weapon and uttering threats ( s. 267 (a) and s. 264(2) (b) of the Criminal Code ). The court is also aware the father is facing numerous charges (7 informations worth) for various offenses, some of which are for violence.

[113] It appears nothing has significantly improved since the temporary care and custody hearing. The endorsement of Joubert J. contains much of the same narrative that the court heard in the trial.

[114] Given the evidence, I am satisfied, on a balance of probabilities, the children are at risk of physical harm and are in need of protection as a result of the mother’s (and father’s) failure to adequately care for, provide for, supervise or protect the children; and that there has been a pattern of such behaviour as well.

[115] I have ordered at the trial conclusion that the society try to increase supervised visits with the mother. The matter is to return to court on November 9, 2023, for next steps and an update.

Released: October 24, 2023 Signed: Justice E J Baxter