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

Date: 2024 03 25 Court File No.: Walkerton FO-19-00000019

BETWEEN:

Bruce Grey Child and Family Services Applicant,

— AND —

BT and DM Respondents

Before: Justice V.L. Brown

Heard on: January 29, 30, 31, February 1, 2, 12, 13, 14, 15, 2024 Reasons for Judgment released on: March 25, 2024

Counsel: Cory Deyarmond............................................................. counsel for the applicant society Tammy Law....................................................................................................... Amicus Curiae BT................................................................................................................... on her own behalf

Brown J.:

[1] The subject child of this Amended Application is HM, born […], 2017 (“HM”).

[2] HM was found to be in need of protection pursuant to s. 74(2)((b)(i) and (ii) of the Child, Youth and Family Services Act on February 23, 2023 following a Summary Judgment Motion.

[3] DM, HM’s father, was noted in default on September 9, 2021. He has not had any access with HM since HM has been in care. Despite appropriate efforts by the Society, there is no community or kin placement available.

[4] HM has been in the Society’s interim care since March 16, 2021 when she was brought to a place of safety. HM has access with her Mother in person twice weekly, and remotely once a week. Visits are currently fully supervised and take place at the Society’s office.

[5] This Trial is about whether HM can be returned safely to her mother, the Respondent Mother BT, or be placed in the Society’s extended care. Given the length of time HM has been in care, I do not have the option to order a period of interim care, unless an extension is in HM’s best interests.

[6] The Society called as its witnesses: Julie Biesenthal (Family Services Worker until January 2022), Tim MacKinnon (Family Services Worker since January 2022), Amy Peyton (Child Services Worker since March 17, 2021), Kristyn Pette (Family Resource Worker), Judith Ferguson (Family Resource Worker), Cathy Elliot (Family Resource Worker), Jenna Calibaba (Family Resource Worker), Penni Wright (Family Resource Worker), Kayti Nesbitt (Family Resource Worker), OA (foster mother), and Dr. Jochim Kapalenga.

[7] The Respondent Mother called as her witnesses: Dr. Ajay Sharma (HM’s nephrologist), Dr. Ayed Ahmed Shah (her psychiatrist), Lyndsey Cattryse (CMHA counsellor), PT (her father), and testified on her own behalf. As well, a report from Shawna Banville (CMHA Addictions Services) was entered on consent without the need to call her for cross examination.

[8] There was no involvement of the Office of the Children’s Lawyer in this matter.

Society’s Position:

[9] The Society acknowledges that BT is naturally warm and affectionate with HM. She is thoughtful, capable of compassion and humour. BT engages well with HM, who enjoys her time with her mother. BT is able to meet HM’s needs during access. The only concern about her access is that BT discusses the litigation with HM; the Society’s earlier concerns about substance abuse (alcohol) and housing have been addressed.

[10] However, the Society submits that an order for extended care is in HM’s best interests, with some limited access with BT. Their current concerns demonstrate untreated mental health issues, anger management and emotional dysregulation. The Society argues that these issues have impacted her focus on HM during visits, and her ability to maintain a stable residence and a support system, even within her own family. It demonstrates a lack of coping and raises concerns about what HM will be exposed to.

[11] The Society submits that very little has changed regarding these concerns, and it would be impossible to return HM to BT’s care. BT was unable to follow even simple instructions during access, intentionally so at times. BT is either not able, or willing, to work with the assigned workers and is argumentative, angry, denigrating and makes allegations about both the workers and the current foster placement. She has withdrawn consents, at times.

[12] The Society submits that at the core of its concerns is an inability to communicate with BT about all issues.

[13] The Society does not believe BT will consistently cooperate with supervision as she does not trust Society workers and does not communicate appropriately.

[14] The Society asks me to assign little weight to Dr. Shah’s evidence, as it is based on self report and limited contacts with BT.

[15] HM presents with some behavioral issues, which are being addressed in Art Therapy. The current foster parents are willing to care for HM as needed, including on a permanent basis.

Amicus Curiae:

[16] Amicus, in presenting BT’s position, submits that returning HM to BT is mandated by the Child, Youth and Family Services Act (“CYFSA” or “the Act”) which requires the court to consider the least disruptive alternative.

[17] Amicus acknowledges the conflict between BT and the Society and submits that there are ample reasons for BT not to trust the Society and to be frustrated. Counsel directed me to Children’s Aid Society of Toronto v. T.L., 2018 ONCJ 691, page 124, and Kinageezhgomi Child and Family Services v. M.A., 2020 ONCJ 414 at para. 48.

[18] Further, BT’s emotional upset and escalation is largely centered around HM being in care. She is able to be calm and stable speaking about other areas of her life. She has demonstrated that calm in access visits, for the most part. BT has demonstrated she can work with other services without concerns.

[19] BT’s visits with HM have mostly been good. Any parenting concerns raised are trivial or unreliable.

[20] Even regarding the litigation and conflict, generally BT demonstrated that she could be redirected, with only a few visits ending early or being cancelled.

[21] Amicus asks the Court to consider whether supervision is required to mitigate the protection risks, pointing to the past evidence of BT’s care of HM which shows she can meet at least the minimum threshold for care. BT demonstrated insight into the Society’s historic concerns and took positive steps to mitigate them.

[22] BT worked cooperatively with the Society before HM was brought into care, and followed recommendations and ensured HM attended all appointments. She demonstrated insight into her grief and alcohol consumption, and safety planned around them.

[23] BT has indicated her willingness to continue working with the Society if HM is returned to her care. The maternal extended family is supportive of HM, even if there is some difficulty in the relationship with BT. It is anticipated they will have regular contact with HM.

Respondent Mother’s Position:

[24] BT feels the Society has not honoured anything they said they would. She has followed its worker’s recommendations for services, and despite this they continue to allege undiagnosed mental health issues because it is not satisfied with the diagnosis she has been given.

[25] BT identified that she has past trauma and needs stability. Despite this, she followed the Society’s direction to leave her housing during a housing crisis and Pandemic, which resulted in HM going into care, where she has remained.

[26] BT submits that HM has the right to be safe and to receive care and have appropriate clothing and medical attention. BT argues she has had to advocate for these things while HM has been in care. Her concerns are heightened by HM’s asthma and kidney status.

Credibility and Reliability

[27] With the exception of Kristyn Pette, the witnesses presented as generally credible and reliable.

[28] The medical witnesses, Drs. Shah, Sharma, and Kapalenga, relied heavily on their notes. This is understandable given the volume of patients they see, and the relative infrequency of service to BT and HM. However, they did their best to recall and answer questions.

[29] BT presented as a credible and forthright witness. She has a naturally large personality; she is generally loud and has a good sense of humour. She is likeable.

[30] However, BT is not an experienced Trial litigant. She also suffers from anxiety and has a lengthy history with the Society. It was difficult for her to listen to the evidence of Ms. Biesenthal and Mr. MacKinnon in particular. She was often on her feet disagreeing with their evidence, and without proper objections. This is not unusual for a self-represented party without understanding and experience in Trial process.

[31] After a few days of these interruptions, explanations about what constitutes a proper objection, and reassuring BT that she would have her own opportunity to present her evidence, these interruptions abated.

[32] As well, BT shared that she started taking some anti-anxiety medication to assist her at Trial. Undoubtedly, this helped as well.

[33] BT was appropriately emotional. I draw no adverse inferences about her credibility and reliability based on her demeanor during trial.

[34] Kristyn Pette was a Family Resource Worker who assisted in supervising BT’s access. Her evidence was concerning and I assign it little weight. As set out herein, Ms. Pette made a false claim in her affidavit about BT’s attendance at access visits, exaggerating her evidence to reflect negatively on BT. When presented with evidence that her affidavit testimony was inaccurate, she refused to concede the error, which would have been reasonable.

[35] In another instance (the parking lot visit), Ms. Pette was highly critical of BT not intervening when HM was almost halfway across the parking lot, when Ms. Pette, who was standing with BT and able to observe the same conditions, was not actually concerned.

[36] Ms. Pette did not present as an objective witness, which calls into question the characterization and accuracy of her other observations. Fortunately, the other Society witnesses presented as credible, and made efforts to be fair to BT.

The Issues:

[37] The issues for determination are:

(1) Whether an order is necessary to protect HM.

(2) If so, can HM be protected by terms, including supervision, in BT’s care (alternatively a deemed custody order); and

(3) If not, then in the circumstances of this case an order for extended care must be made.

Legal Framework:

[38] As set out above, HM has already been found to be in need of protection.

[39] Subsection 101(1) of the Child, Youth and Family Services Act (“CYFSA”) 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.

[40] The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[41] Where a court order is not necessary to protect a child in the future, the child shall be returned to the person who had charge of the child immediately before intervention under the Act (s.101 (8) CYFSA).

[42] However, if a court order is necessary to protect a child in the future, as applicable to this case the court shall make one of the orders set out in subsection 101 (1) CYFSA in the child’s best interests. This section read as follows:

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.

[43] As set out above, interim society care is not an option as HM has already been in the Society’s care for more than 12 months, and it is not in her best interests to extend that period of time (s. 122(1)(a), and (5) CYFSA). Therefore, should I find an order is required to protect HM, the only options available are a supervision order or an order for extended care.

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

[45] Paragraph 2 of subsection 1 (2) CYFSA also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[46] An order placing a child in the extended society care of the society (formerly crown wardship) 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. 4 th 79 (SCJ- Family Branch); Catholic Children’s Aid Society of Toronto v. G.O., 2014 ONCJ 523.

[47] In determining the appropriate disposition, the court must decide what is in the children’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This 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 Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

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

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

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

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

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

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

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

[48] The issue is not whether a child will be better off with someone other than the parent. The issue is whether the child has received a level of parenting care that is below the minimum standard tolerated in our community. See: Saskatchewan Minister of Social Services v. S.E. and E.E., [1992] S.J. No. 375, 1992 (Sask. Q.B.); Children’s Aid Society of Toronto v. V.L., 2009 ONCJ 766; CAS v. H.Z., 2023 ONSC 2030.

[49] Further, it is not a competition between parents and potential adoptive parents. See: Family and Children’s Services of St. Thomas and Elgin v. C.(A.), 2013 ONCJ 453, 2013 CarswellOnt 11701 at para. 158.

[50] In Children’s Aid Society of Toronto v. N.G., 2022 ONCJ 35, the court found that the father was a “good enough parent” and wrote at pars:134-135:

[134] The court also considered that the father does not have to be a perfect parent for it to find that it is in the best interests of the child to be placed in his care. He only needs to be “good enough” based on the minimum parenting standards we expect of parents. This is the appropriate standard in determining a child’s best interests when we are deciding cases involving state intrusion into the lives of a family and deciding whether to permanently sever a child from her parents.

[135] The jurisprudence talks about not applying middle-class parenting standards in assessing whether to place a child with a parent. That principle resonates in this case. The father faces many challenges. English is not his first language and this has likely been a barrier in navigating the intricacies of social service programs. He is not well-educated. He is not a sophisticated litigant. He struggled at the start of the trial with the technology until arrangements were made for him to testify from T.G.’s home. He has struggled with poverty and recently was sleeping under a bridge. He presents with a quiet and passive personality.

The Evidence:

Background:

[51] BT is 49 years of age. She is the child of KM and PT. KM died in the spring 2020. BT has two siblings, JM and KT. BT practices low to no contact with KT. Her brother is supportive, but currently resides in Costa Rica.

[52] BT was raised in the Port Elgin area and has extended family there, including Aunts LP and WD, cousin GO, and Aunt SB.

[53] BT resided in London for 25 years, returning to the Port Elgin area in 2017 where she has continued to reside. She has resided at the Sandcastle Motel continuously since December 2022. BT has been in a relationship with KM for the past year, but they do not cohabit, nor do they have plans to do so.

[54] BT has historically been employed. During the Society’s current involvement she has been in receipt of Ontario Works, and currently ODSP to support herself. She has been offered a couple of odd jobs, but her priority at this time is her access with HM and dealing with this litigation.

[55] While residing in London, BT experienced two traumatic events that continue to impact her:

(1) She was the sole survivor of a fatal car accident August 6, 1993. She was diagnosed with PTSD following the accident, currently in remission; and

(2) While residing in London, BT was in a relationship with DM. They had 3 children together, who were made crown wards with no access in 2013.

[56] BT and DM are also the parents of the subject child of this litigation, namely HM, born […], 2017.

[57] DM had sporadic access with HM after her birth, and has had no access with HM since she was brought into care. He did not participate in these proceedings.

[58] The Society’s current involvement commenced at HM’s birth on the basis of a birth alert. There was no direct evidence on the reason for the alert, but there was some reference to a lack of prenatal care, which was never verified. It is clear that BT did have some prenatal care, at which time it was identified that HM would be born with only one kidney.

[59] Otherwise, the Society relied on the historic concerns: BT’s relationship with DM, which included adult conflict, substance misuse, and caregiving skills.

[60] BT demonstrates insight into these concerns. Not wanting to repeat past mistakes, prior to HM’s birth BT separated from DM. She relocated from London to Port Elgin, where she has extended family members.

[61] DM stayed with BT temporarily after HM’s birth. During that time, BT contacted police when DM came home drunk. Further, she moved into a shelter at the direction of the Society at a financial cost to her. She quickly found more permanent housing on her own, first with her brother, and then her own accommodations close to her extended family.

[62] While there were some difficult family dynamics, HM was supported by Aunts WDE and LP, Step Grandmother KM, and SB. BT would reach out to these persons when she needed support.

[63] The Society did not have concerns about HM’s care at the time, and the Society supported BT’s decision to focus on improving herself. BT engaged with professionals for HM’s care and proved to be resourceful, arranging supports from the shelter, including housing, counselling, and day care. She was able to work cooperatively with these supports and did not have any conflict with them. She ensured HM attended regularly for nephrologist and pediatric medical appointments.

[64] BT was able to plan for HM’s care around a surgery, as well as care around BT’s trauma anniversaries when BT identified she might need support.

[65] BT presented with escalated behaviour, frustration and anger at times, but HM was safe enough in her care.

[66] Until the Pandemic, BT’s care of HM was relatively uneventful and the Society was at the time working towards file closure. The Society remained involved and visited with BT biweekly (until HM was 18 months old), then monthly, in accordance with the Society’s policy.

[67] The Society, in assessing risk, did not have a need to visit with more than the minimum frequency. The Society assessed BT’s care as low risk as objectives were being met and HM was seen in the community, including at day care. BT was working cooperatively with the Society and was transparent despite being stressed due to their involvement and her fears about losing HM.

[68] In March, 2020 the Covid-19 Pandemic was declared. BT’s Mother, who had been a great support to her, also passed away that spring.

[69] In June, 2020 BT and HM moved in with JV and his children. He was a positive support for her, and the Society supported this move.

[70] However, the location proved to be isolating for BT. The relationship started to have difficulties under the stress of isolation and grief. BT identified that she was drinking alcohol more than she should.

[71] It was during this time that the Society’s concerns increased due to BT’s unhealthy coping and feeling overwhelmed. BT demonstrated insight into her circumstances, understood her triggers, and acknowledged that she needed help. At that time, she identified that she needed to see a doctor and obtain treatment for anxiety and depression.

[72] On or about September 23, 2020 police responded to an incident at the home, while HM was present. The living arrangement was deteriorating and the couple’s respective children were witness to their conflict. However, BT felt she had no alternate housing available to her compounded by the fact that she did not drive.

[73] Although BT’s behaviour escalated, Ms. Biesenthal described the working relationship as pretty amicable for the most part, and recognized BT’s humour. BT worked cooperatively with the Society during this time, was able to discuss her issues with the worker. She was also receptive to suggestions and support. At the Society’s direction, BT attended for a mental health exam. She saw psychiatrist Dr. Shah, whom she continues to see on an as needed basis. He diagnosed her with an adjustment disorder.

[74] Ultimately, BT left JV’s home and made arrangements for friends and family to care for HM on a temporary basis. After about one month of this, HM was brought to a place of safety.

[75] BT had understandable difficulty finding permanent housing. It was during the pandemic, a housing crisis, and without HM in her care her financial resources were diminished. BT did not receive any assistance from the Society in seeking housing, permanent or otherwise.

The Litigation:

[76] HM was brought to a place of safety on March 16, 2021. An Interim without prejudice order was made on March 19, 2021 placing HM in the Society’s care. This order was made with prejudice on July 15, 2021 following the argument of the temporary care and custody hearing.

[77] The interim order grants access to BT in the discretion of the Society, with a minimum of 2 in person visits, and 1 remote visit weekly. As discussed more below, the Society imposed its own expectation that BT maintain a consistent residence for at least 6 weeks prior to any access taking place in the home.

[78] By all reports, visits went well. BT and HM had a loving relationship and there were no reports of major concerns.

[79] BT got along well with the foster parents, and there were no concerns about HM’s care during access visits. In addition, HM was able to visit with extended family on an informal basis, including a weekly brunch and potential for overnights.

[80] Despite the good visits, there was no increase to access in the community as part of the access trajectory.

[81] In October, 2021 a trajectory was communicated to BT, focused on her maintaining stable housing for at least 6 weeks before moving to the next step. Over a year later, the Society refused to expand access until it could take place in-home. BT was understandably upset about this and felt it did not make any sense.

[82] BT resided in a number of residences and situations in a series of short-term stays. Ms. Biesenthal agreed that BT’s living arrangements were short term because she stayed in friends’ homes, motels etc, and not because of her behaviour; an arrangement commonly known as couch surfing. In total, BT moved 21 times. Notably, she always found housing.

[83] Although the Society was concerned about the number of homes she had been in, BT sought an expansion of access, not necessarily overnight. Access was occurring in the community. This was difficult for BT given her limited means, however she consistently exercised her access.

[84] There were occasions when the Society’s 6 week milestone were met. While residing in SI’s home, access was approved to move to check-in unsupervised visits in the community. Within days of this being communicated, BT suffered a house fire. This re-started the 6 week clock. She was understandably upset.

[85] BT also resided in the home of JJ. At the 6 week mark, Mr. MacKinnon visited the home. With the exception of a working fire/carbon monoxide detector, there were no identified physical risks.

[86] However, the Society objected to the location as a place for HM to either visits or reside in; BT had brought HM to the residence to paint a room without the Society’s permission.

[87] While residing with JJ, on or about June 28, 2022, BT was arrested for possession methamphetamine – she bought small personal use amount for an acquaintance as she needed the money for access. Her arrest was unrelated to JJ or his home. The charges have since been withdrawn.

[88] The Society was able to verify her account the next day, and otherwise did not have any concern about BT using drugs, either historically or at the time.

[89] However, based on this, and the earlier breach (the painting incident when BT did in fact bring HM to the home to paint a room without the Society’s permission), on June 29, 2022 the Society determined that JJ’s home was not approved for unsupervised access. BT’s access returned to being fully supervised at the Port Elgin Missionary Church, commencing July 5, 2022. Her visits have been fully supervised since.

[90] On August 22, 2022 HM was placed in her current foster home, which is a placement that offers permanency, including adoption. Although the word “adoption” was not used, it was BT’s perception that there was no longer a plan to return HM to her care – her fears realized. The Society agrees that notice of the move was like “dropping a bomb” on BT. The timing of the news was poorly chosen by the Society - BT was informed just before a scheduled access visit. Understandably, she was upset and emotional. She recognized how her upset might impact HM and chose to cancel the visit.

[91] From that moment on, BT felt the Society was no longer working towards HM’s return, but rather biding its time until court, or she was gone.

[92] The new foster placement was not local. HM was moved to Hanover and BT did not drive, nor was public transportation available. Therefore, on August 25, 2022 BT’s visits were moved from the community to the Society’s Walkerton office. The Society arranged for a volunteer driver to transport BT to access.

[93] Shortly thereafter, BT was successful in securing stable independent housing at the Sunny Motel from September 13 – December 5, 2022, followed by her current residence at the Sand Castle Motel, commencing December 5, 2022. BT lives across from Aunt SB’s dance studio and is within walking distance of a school for HM, and other amenities. Aunt SB lives down the street and her grandchildren, HM’s cousins (Aunt Sandy’s grandchildren) visit their Aunt SB often.

[94] Despite BT now having housing, the Society communicated new expectations to BT for her access to progress, primarily focused on her relationship with the Society. BT was never consistently able to comply with these requirements, but mostly did so.

[95] There was a time when she came close. On November 14, 2022, the Society was prepared to supervise access in the community, with a view to unsupervised access in the community in the new year if expectations were followed. It appears that some visits did take place in the community, as Mr. MacKinnon referred to supervising a visit at Tim Horton’s March 21, 2023.

[96] Although BT’s relationship with the Society had not been without difficulty, it was during this time that her behaviour began to escalate so that it sometimes interfered with her visits. She began making allegations about HM’s care in the foster home, alleging injuries and demanding medical attention.

[97] These allegations include:

That HM was being sexually abused – based on her observations of a change in HM’s behaviour, including HM touching BT’s breast;

Multiple physical injuries to HM, including bruises on her head, chemical burns or wind burn to her hands (later determined to be dry skin from cold weather);

Allegations that HM may have been drugged (HM reported being stuck with a marker like object that pinched); and

An allegation that HM may have ingested drugs (HM presented as extremely hyper during a visit).

[98] BT communicated her concerns with the Society as they arose. Sometimes there was an explanation for what BT observed but mostly no one else observed or shared BT’s concerns.

[99] Frustrated with no satisfactory explanations, BT contacted police regarding her concerns at least 5 times, including during a recent virtual access visit, which has caused at least 2 wellness checks to be conducted, and 1 attendance at the Society’s office during a virtual access visit. These visits by police have been traumatic for HM.

[100] To investigate her concerns, BT has questioned HM about her alleged injuries, taken photos, and even went so far as to take samples of her hair on two occasions, by cutting HM’s hair (for the purpose of drug testing). HM’s responses have ranged from shutting down and disengaging, to becoming upset or silly.

[101] After BT contacted police on one occasion, the foster mother took HM to the Emergency Room (“ER”) regarding her hands. The foster mother was aware of the issue previously and did not take HM to the doctor. She advised that it was windburn or a cold rash from HM not properly drying her hands and then being in the cold. There was a 3 hour wait in the ER. During the visit, HM was prescribed steroid cream, with a 4 week follow up. The foster mother admittedly did not take HM for the follow up as recommended, but the treatment addressed the issue.

[102] Also, as a result of BT’s concerns of an indentation to HM’s head and possible hairline fracture, the Society arranged for an examination by Dr. Kapalenga in January 2024 and BT participated by telephone. Dr. Kapalanga ordered urine testing and suggested an Xray to bring closure to the issue. The results were negative. BT was appropriate during the appointment.

[103] Access between BT and HM has remained static since August 25, 2022.

[104] Throughout the litigation, the Society has explored various kin options without success.

[105] As set out above, Justice Harrison found HM to be in need of protection following a Summary Judgment Motion. Although His Honour noted BT’s use of alcohol to cope and housing issue, His underlying concern was BT’s mental health, manifesting in emotional deregulation directed towards others, including domestic partners and the Society, which HM has been witness to.

[106] His Honour’s concerns were also based on the evidence before him that suggested BT was not following through with mental health supports that could have assisted her. In particular that she did not:

(1) take medication as prescribed by her psychiatrist, Dr. Shah, for her anxiety and depression,

(2) following up with New Directions for addiction services;

(3) meet with the outpatient mental health worker;

(4) following recommendations for grief counselling, addictions and personal wellness (presumably as recommended by the Society); or

(5) develop a support system.

HM:

[107] HM is 6.5 years old and attends school in Hanover in a French Immersion program. French is the language spoken in HM’s current foster home. She is smart as thrives in school.

[108] HM has been described as having an infectious personality. She is very affectionate and loves to give hugs and kisses to those she feels attached, including her mother. HM enjoys computer games and stuffed animals. She loves art and is artistic.

[109] HM has presented with “big emotions” in current foster home. She demonstrated some aggression at school in early 2023 when she was hitting and punching other children. It is the foster mother’s view that she will act out for attention and requires a lot of one-to one attention. She has been in Art Therapy through Penetangore Wellness since January 2023 once monthly. She has participated in counselling at Clarity Clinic. Family Resource Worker Kayti Nesbitt also had 12 sessions with the family to assist with parenting techniques to deal with outbursts. HM finds that colouring and sketching help her self -regulate.

[110] The Society seems to attribute HM’s behavioural issues to BT, citing some mimicking behaviour prior to HM coming into care, and more aggressive behaviour while in care, in particular in her current foster home and with challenges after access.

[111] However, the evidence about the cause of HM’s behavioural issues is at best equivocal. There seemed to have been an escalation in her behaviour when she was transferred to her current foster home and she struggles with transitions, including around access. Ms. Peyton was candid in acknowledging the often unspoken truth that bringing a child into care can be traumatic.

[112] The Society and BT both agree to a psychological assessment for HM. The Society delayed getting the assessment based on the recommendation she be at least 6 years of age.

[113] HM also enjoys dancing, and has also tried gymnastics. BT advocated for HM to wear a protective kidney belt while in gymnastics.

[114] HM has been in dance lessons since September 12, 2023. BT’s Aunt SB has a dance studio across from her residence and she plans for HM to continue her lessons if returned to her care.

[115] HM continues to enjoy a relationship with her extended maternal family members, including Aunts LP and SB, Grandma and Grandpa J. She has attended for various family gatherings, and talks with Aunt LP by phone/video. She has sleepovers with Aunt LP every few months.

[116] Despite HM’s age, she was not represented by a Children’s Lawyer. Through Ms. Peyton, HM has communicated her views and preferences. In an interview November, 2023, she expressed that she, “wishes she lived with her mother but knows staying with the A’s until the judge decides what is going to happen”. She wants to see her mother.

[117] The court received evidence from HM’s pediatrician, Dr. Kapalanga, and nephrologist, Dr. Sharma.

[118] Dr. Kapalanga has been HM’s pediatrician since birth. HM is healthy other than having a solitary kidney and asthma, for which she receives treatment.

[119] Dr. Kapalanga explained that HM’s kidney issue can be associated with high blood pressure, and if damaged by infection or trauma she will have problems that can include additional measures to ensure she has something in place to function like a kidney. The risk is that if there is major damage, she may need another kidney.

[120] His concerns would include if HM had a bacterial infection or covid. Further, bacterial infections usually present with fever, flank pain, and feeling unwell, and that if a child is tired and has a fever that would be an indicator to take her to the doctor.

[121] So far, HM presents with no issues. When HM was in BT’s care, HM was healthy. Dr. Kapalanga had no concerns and noted HM’s vocabulary to be normal, if not a little advanced for her age. He did not note any delays in her vocabulary. He observed BT to be appropriate during appointments.

[122] Dr. Kapalanga recommended that HM not engage in sports and activities that can result in trauma to her flanks, including gymnastics. He recommended that she not participate in gymnastics.

[123] Dr. Kapalanga believes he communicated his recommendations about gymnastics to the foster mother and the Society - it is information he generally provides.

[124] When asked about physically restraining HM (in the form used by the foster parents leading to a serious occurrence report), Dr. Kapalanga advised it could be physically and emotionally harmful. He may have concerns about physical harm depending on how much pressure was applied.

[125] Dr. Sharma has been a nephrologist and London Health Sciences Centre for 20 years, caring for children under 18 years of age. He first saw HM when she was 6 weeks old.

[126] Dr. Sharma advised that if a person has one healthy kidney, then there is no risk to overall health. HM is not more susceptible to illnesses. No additional precautions are necessary. He likened it to someone riding a bike and wearing a helmet for protection; they just need to be careful.

[127] When asked specifically about a kidney belt, Dr. Sharma felt it was a good idea, but it is a choice, not necessarily a recommendation.

[128] Notably, in Ms. Peyton’s evidence she was aware of a recommendation that HM wear a kidney belt for contact sports (from the worker who attended the appointment). She noted this on May 1, 2023 as a recommendation by Dr. Sharma and agreed gymnastics can be a contact (with objects) sport. Ms. Anderson’s evidence was consistent with a recommendation from Dr. Sharma for protective gear.

Discussion and Analysis:

[129] For the reasons that follow, I find that HM continues to be in need of protection and that an Order is required for that purpose. However, the risk to HM is low, and her best interests are best served by being returned to BT’s care, subject to Society Supervision for a short period of time as she transitions back into BT’s care.

[130] In particular, BT has demonstrated that she continues to struggle with her reaction to stressors (including the current involvement of the Society) and HM has been exposed to this. However, BT has also demonstrated that she is able to more than adequately parent HM and often prioritize HM’s needs to her own detriment.

[131] Further, although not without some difficulty, BT has demonstrated that she is able to work cooperatively with the Society when acting in a supervisory capacity. While not condoning the extent of her response, BT’s frustration and anger are reasonable and understandable - the Society has contributed to the deterioration of the working relationship by approaching access in a manner that has not always been child focused, not honouring their obligations and court ordered terms, and failing to adopt proven strategies that would mitigate HM’s exposure to conflict.

Adequacy of Parenting:

[132] The Society admits that BT’s parenting skills are not necessarily a protection concern on their own, or at least not at the level requiring intervention. At the time HM was brought into care, BT was in the midst of a crisis. It was the confluence of the pandemic, grief over her mother’s death, and her isolation that caused her to increase her alcohol consumption, which undoubtedly exacerbated her conflict with JV.

[133] Ultimately, it was this conflict, or more accurately HM’s exposure to conflict, that necessitated BT’s move from the home. This was a move supported by the Society, and it was a child focused decision which adequately mitigated the risk to HM.

[134] However, this resulted in an extended period of housing instability for BT. It was a lack of appropriate housing which ultimately triggered HM being brought into care.

[135] These earlier concerns have been addressed by BT. The Society concedes that alcohol use and housing are no longer concerns.

[136] BT’s grief has abated and she has gone through periods of total abstinence and otherwise uses alcohol responsibly.

[137] There are no concerns about drug use or about BT associating with persons involved in the drug subculture.

[138] There are no reports of criminal activity.

[139] Housing has not historically been an issue for BT. It was only during the period January 16, 2021 – September 12, 2022 that BT experienced housing instability. During that period, BT was always able to find a place to stay and was never homeless. Her arrangements were only ever temporary during that time.

[140] A few of those temporary housing arrangements ended due to conflict between BT and other residents. BT recognized the issues, and removed herself from the situation.

[141] There is no indication that her current residential arrangements are in peril. There have been no complaints from the landlord or anonymous sources. The Society has assessed the residence as a suitable physical environment that BT keeps consistently clean, organized and brightly decorated.

[142] The motel has long term apartment style rentals on the first floor, with more traditional motel rooms on the second floor. Other families with children reside in the motel. BT rents a 1 bedroom unit on the first floor; she is waiting for an end unit which has two separate rooms. It contains a refrigerator, stove, television and wireless internet. There are laundry facilities within the motel, with a grocery store across the street and elementary school within walking distance. Aunt SB’s dance studio is nearby.

[143] The Society concedes BT and HM share a close and loving bond and that BT is fiercely protective of HM. The evidence demonstrates that BT is capable of caring for HM to an acceptable standard, and did so until January 16, 2021 when she removed herself and HM from JV’s home at the Society’s urging.

[144] She has attended to HM’s medical needs. Prior to HM going into care, BT ensured HM attended for appointments with the pediatrician and nephrologist. HM was healthy and happy in BT’s care.

[145] BT enrolled HM in day care for the purpose of socialization and improving her speech and language. She attended regularly except when there were concerns about illness. After hearing evidence from Dr. Kapalenga and Dr. Sharma, BT was not unreasonable in being concerned about sending HM to day care when there was illness. While HM’s kidney status does not make her more susceptible to illness, should she have a bacterial infection or Covid-19 she would be at risk of damaging her only kidney.

[146] BT and the Society disagreed on the appropriate approach to HM’s language development. BT believed HM’s issues would resolve naturally over time. There was no evidence regarding what HM’s speech deficits were, if any, and or of any professional recommendations, advice, or intervention. In any event, there are no current concerns about HM’s speech.

[147] Since being in care, BT has tried to parent HM from afar and has been a strong advocate for HM’s health and physical care, heightened by concerns about her having only one kidney. BT’s concerns about risks of activity due to HM only having one kidney are reasonable and align with the evidence of Dr. Kapalenga.

[148] BT has been proactive in requesting protective measures for HM while in the Society’s care, including a kidney belt while participating in activities that could result in contact and injury to her kidney. This was a measure supported by HM’s doctors.

[149] Since HM came into care, BT was permitted to attend appointments she was appropriate and asked relevant questions. She attended appointments with Dr. Kapalenga in summer 2023 and January 2024. She also attended HM’s last nephrologist appointment was March 2023. Her participation in these appointments was by telephone.

[150] On several occasions BT has requested medical intervention for HM when she appeared ill. In November, 2021 and Fall 2022 HM was taken to hospital after BT was appropriately concerned. In the first instance, HM was diagnosed with asthma. On the second occasion, HM had been suffering from a “gastro bug”, which according to Dr. Kapalenga’s evidence would warrant being seen by a doctor.

[151] BT has demonstrated she is mostly positive and nurturing in her interactions with HM. HM is excited to see BT during access. There are lots of statements of “I love you”, and hugs.

[152] BT has demonstrated appropriate care giving skills towards HM and easily picks up on cues from HM regarding her mood. BT follows HM’s lead.

[153] BT engages in age-appropriate conversation with HM and attends visits prepared with age-appropriate activities that they can complete together. BT is able to be silly with HM. There is lots of humour and laughter during visits.

[154] BT is good at enforcing safety rules during visits, especially road and safety practices. She was described as “hyper aware” of safety. She had consistent rules and expectations for HM’s behaviour and was appropriate in enforcing them. She instructs HM about positive behaviours and manners and has been effective in redirecting HM’s when appropriate. She is complimentary and encouraging of HM.

[155] BT encourages HM to share her feelings, including with the Society.

[156] There was some evidence that BT encouraged HM in poor behaviour, by saying “that’s my girl” in response to HM squealing. I find this is unduly critical. HM is a child and will squeal with joy on occasion. I see no protection issue in a parent also taking joy in that reaction, especially when they are not with the child for significant periods of time. In any event, of the hundreds of visits that took place, this was noted in only a few visits.

[157] There was also some censure by Society workers for BT speaking harshly to HM on a few occasions. In cross examination, the worker clarified that this meant “sternly” and with a rise in tone. As well, the context was when there was an imminent safety risk. This is not an unusual response to such a situation. Indeed, HM has experienced this in the current foster home.

[158] Despite her housing issues and limited means, BT consistently attended for access. Further, BT is uniformly on time for access, if not early.

[159] There was one worker who disagreed with evidence of the other workers and testified that BT was mostly late for access visits. This statement was not only an exaggeration, it was patently false. Through cross-examination it was established that in in over 40 visits BT was late for 11 visits, usually by 1-2 minutes, and that she was early for at least 12 visits. Ms. Pette was unconcerned that the late arrivals might have been due to technical issues signing on for virtual visits (which technical issues were acknowledged by other workers, leading to a change in the program they used), or that BT was driven by a volunteer driver. Even when confronted with her own notes, Ms. Pette refused to accept that her statement was misleading, which would have been a reasonable admission.

[160] BT is considerate of others’ safety and will cancel visit if weather makes it dangerous. She is also considerate to bring a gift for the foster parents’ daughter at the same time she brings anything for HM. The Society recognizes this kind of thoughtfulness is unusual.

[161] BT always ensures the access room is left clean and tidied up and encourages HM in this. She is respectful of the time limits of access.

[162] As HM’s visits are usually scheduled after school, she often presents as tired. As well, virtual visits have been a struggle. HM has a hard time focusing, and will become disengaged. This is not unusual for children her age to struggle with attention. At times HM cries during virtual visits. I do not attribute this to poor visits, but rather to difficult circumstances for a child.

[163] Except as set out below, at best the concerns that were observed during visits by workers were trivial and not persistent (e.g. BT was on her phone a few times, she wanted friends to attend sometimes).

[164] The ongoing child protection concerns arise from how BT responds to stressors, and how that response impacts HM.

[165] I pause here to stress two points:

(1) The Society has framed the issue as one of “mental health”. Given the evidence of Dr. Shah, I do not take this term to reference a clinical issue and diagnosis. Rather, I interpret this as the Society’s concern about BT’s resilience or ability to manage chronic stressors; and

(2) The Society’s submissions focus primarily on BT’s working relationship with the Society, stressing that it would be impossible to supervise her. However, I have been cautious not to conflate a poor working relationship with the Society with a protection concern. Indeed, as set out in Children’s Aid Society of London and Middlesex v. A.W., 2015 ONSC 2224, rudeness and verbal abuse to a worker, is not by itself a basis for finding a child in need of protection, unless it is happening in front of a child.

[166] Rather, in this case, the focus is on how BT conducts herself during access visits (i.e. being emotionally escalated) and whether she is able to comply with the expectations that she not involve, or expose, HM to adult issues and conflict arising from the current involvement with the Society.

[167] The evidence establishes that BT was able to comply with these expectations for most of her visits. However, compliance was short lived.

[168] Of those visits where compliance was a concern, BT was generally able to be redirected from improper conversations during visits. Most of the time she was able to calm herself and have good visits, or change the topic when HM was present. With only a few exceptions, BT was able to refocus on HM. However, there were a few visits that were terminated early due to BT’s behaviour.

[169] Although BT’s concerns about HM’s care had merit on a few occasions, her behaviour in making unfounded allegations of harm, and exposing HM to police involvement, unnecessary ER visits and medical exams, questioning, photos, and cutting her hair is concerning. In my view this type of behaviour puts HM at risk of emotional harm. As set out above, HM shut down emotionally, or became visibly upset in response to this behaviour.

[170] I recognize that these concerns and allegations are confined to the current foster parents. There is no history of such concerns while HM was in BT’s care, and BT did not make such allegations while HM was in the care of the first foster parents. I am confident that if HM were returned to BT’s care, she would not have cause to question HM or expose her to unnecessary police or medical involvement. The Society agreed as much during submissions.

[171] However, that does not necessarily alleviate the protection concern, which is BT’s inability to consistently shield HM from her conflict with the Society, or others.

Protection Concern - Response to Stressors:

[172] Conflict is natural. There is ample reason for BT to be upset with the Society as discussed more below. What is problematic is how BT responds to it.

[173] Although BT has demonstrated that she is able to put HM’s needs first in most other areas of need, her response to her crisis in 2020, and the Society’s current involvement, raises concerns for me that she is unable to do so consistently.

[174] However, context is important. The timing of the allegations about HM’s care by the foster parents corresponds to HM being placed in a home offering permanency, and BT’s perception that the Society was no longer working towards returning HM losing HM was always a terrifying thought for BT, especially after losing 3 children to the Society in 2013.

[175] BT has experienced occasional conflict with others in her life. What distinguishes her current conflict with the Society is:

(1) The obvious power imbalance;

(2) Her protracted involvement with the Society; and

(3) Unlike in other relationships, BT does not have the option to remove herself from her relationship with the Society.

[176] Dr. Shah spoke of strategies to deal with stressors, which includes removing the stressor. This has been a successful approach for BT in navigating previous interpersonal conflict. For instance, she does not have contact with her sister, KT. She made the appropriate decision to leave DM, and was supported, if not encouraged, by the Society to leave JV’s home.

[177] Unfortunately, this one successful strategy is not available to BT in dealing with the Society.

[178] Even then, prior to HM being brought into care, BT demonstrated that she could manage the stress of the Society’s involvement to an acceptable degree. She was terrified, but she was able to share information and was receptive to input.

[179] As well, it must be remembered that the Society’s formal involvement was the result of an acute combination or unique stressors, and not representative of BT’s regular care of HM. The Society’s current involvement, including the court’s concerns about that involvement as discussed below, is also extraordinary, even more so against the background of 3 children being made Crown Wards. Even in the face of such circumstances, BT has still managed to have mostly good visits, and proceeded with good humour, determination and optimism.

[180] While I find that the evidence establishes some ongoing risk to HM on the basis of her exposure to adult conflict (currently due to the Society’s involvement) and BT’s inability to insulate HM from her own emotions, it does not rise to the level that she must be removed from BT’s care. The risk is low and capable of mitigation.

Supports and Community Supervision:

[181] Despite concerns about having a support network, BT has always maintained a good relationship with a professional network, which has even included the Society at times. BT has a history of engaging with services, when required, and working cooperatively with them. She is resourceful in that way.

[182] Dr. Shah is a support and resource for BT. Dr. Shah has been a psychiatrist since 2007 and joining the team at Brightshores (formerly Grey Bruce Health Services) in 2017. His practice primarily involves adults, but his training includes child psychiatry. He has been seeing BT since October, 2020 as required.

[183] He has diagnosed BT with historical PTSD (related to her fatal car accident) and adjustment disorder.

[184] Her current symptoms falling under the PTSD diagnosis are hypervigilance on the road, and avoidance of the location of the accident.

[185] Dr. Shah explained that adjustment disorder is applied to symptoms arising from life changing events that persist for 6 months. It can re-occur either from the same incident or new changes.

[186] BT currently experiences generalized anxiety disorder. She is constantly anxious about HM and herself. Dr. Shah advised that sometimes people with anxiety ruminate and it is difficult to move them from it, which appears to the be the case with BT and the Society’s current involvement, but that is not the basis for a formal diagnosis.

[187] Dr. Shah further observed that BT generally presents very well and sees him for medication as needed, including in preparation for this Trial. Otherwise, typical recommendations include Cognitive Behavioural Therapy and/or medication. Generally, the approach is to remove the trigger and relaxation techniques.

[188] Dr. Shah’s evidence was that BT was reasonable – she was upset about her mother and having no access to HM.

[189] The majority of their appointments are at BT’s request, including for medication. The majority of appointments were by phone. BT was cooperative, content, at times tearful when discussing court.

[190] Dr. Shah testified that he has no concerns regarding BT’s mental health status.

[191] As well, BT has engaged in counselling in the recent past and is agreeable to accessing that support as required in the future.

[192] BT engaged with Shawna Banville with CMHA Addiction Services (New Directions) and attended consistently for an extended period of time. She was involved with CMHA Addiction Services from January 2021 – June 2022 when her file was closed. BT was engaged and cooperative with her counselling. She was insightful and, based on her self report, BT was low risk. I also observe that by the time her counselling concluded, there was no evidence that alcohol misuse was an ongoing issue.

[193] BT also participated in counselling with Lindsey Cattryse, a mental health counsellor with the Canadian Mental Health Association. She met with BT on 3 occasions for formal sessions that were 60 minutes in length, as well as 3 shorter sessions based on BT’s needs at the time, with biweekly counselling commencing May 18, 2023. During their work together they worked on some emotional regulation, starting with distress tolerance and mindfulness. BT was generally receptive.

[194] Ms. Cattryse’s involvement ended after leaving a voice message for BT that was not returned; she admittedly did not follow up. Ms. Cattryse remains available to assist BT in the future.

[195] On a more personal level, although there was some allusion to difficulties in her relationships with her extended family and others, there was no direct evidence on this point. Regardless, it was clear that the family is supportive of HM. It is BT’s expectation that HM will continue to have a relationship with her Aunts and cousins on a regular basis.

[196] For most of the Trial, PT drove a significant distance to ensure BT’s attendance and to support BT, including on his birthday.

[197] As well, as regards a support system to monitor HM’s care, personal supports perhaps take on less importance when there are professional supports that will be involved with HM on a more daily basis while attending school, and less frequently counselling and activities.

[198] If HM is returned to BT’s care, she will be monitored in the community through her involvement in school, dance activities, Dr. Kapalenga, Dr. Sharma, and her extended family. It is also expected she would continue with some form of counselling or therapy, as recommended and required.

[199] The fact that BT was able to find temporary short term housing during the period January, 2021 – August 2022, often with friends, shows that she has a number of social connections, who are willing to provide assistance from time to time. In the past, BT has signed consents for the Society to share information with these people.

[200] BT is not someone who is isolated or without resources.

Society Supervision:

[201] The case law establishes that for the court to make a supervision order, it would need to be confident that the parent would comply with the order. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196, [2004] O.J. No. 3889 (OCJ) and Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227.

[202] Further, such orders should not be made if the parents are ungovernable. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196, [2004] O.J. No. 3889 (OCJ).

[203] As set out in Catholic Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22 at para 620, for a supervision order to be an effective instrument of risk management the court should consider the following:

(a) the parent must meet a minimum threshold of co-operation and reliability;

(b) there needs to be a trusting relationship;

(c) there needs to be clear and accurate information exchanged between the parties;

(d) there needs to be demonstrable evidence that the parent would be compliant with the terms;

(e) there needs to be evidence that the society could monitor a parent’s compliance; and

(f) a supervision order should not be imposed if a parent is ungovernable.

[204] A supervision order requires some element of confidence that the parent being supervised shows awareness of the alleged problems and a real commitment to cooperate and ensure that problems do not re-occur. The likelihood of a supervision order adequately addressing concerns about a parent must be considered in the context of that parent’s past and present behaviours.” See: Children’s Aid Society of Hamilton v. R.(A), 2011 ONSC 7248; Children’s Aid Society of the Regional Municipality of Waterloo v. P. W. and M. T., 2022 ONSC 4340.

[205] The Society submits that BT is highly confrontational and emotionally escalated towards its workers. Communication is non-productive - during meetings BT is consistently focused on discussing historical traumatic events rather than focusing on what she needed to do to have HM returned to her care.

[206] The Society has amply established this.

[207] BT has been preoccupied with ruminating on her past experience with the Society, including their involvement with HM and perceived wrongs that led to HM being brought into care.

[208] Although there have been times when BT was able to have conversations with Mr. MacKinnon, BT has yelled, interrupted, and talked over the Family Services Worker. She has made allegations of inappropriate conduct by the workers (including that Ms. Biesenthal was in a relationship with JV, and Mr. MacKinnon hacking her phone). All of this reveals a complete lack of trust in the Society.

[209] The most illustrative example of this was provided by Mr. MacKinnon. During a meeting at BT’s residence on March 23, 2023, Mr. MacKinnon requested 1 minute to speak uninterrupted. It took roughly an hour before he could speak for 1 minute.

[210] During the same meeting, BT states that she was “going to kill you guys”, if something were to happen to HM. For additional context, it is important to recognize this was soon after the release of the Summary Judgment Motion decision finding HM in need of protection. This would have been seen by BT as a step towards losing HM permanently.

[211] However, this dynamic has not always been the case. BT worked with the Society cooperatively for over 3 years despite having 3 children made Crown Wards and her terror that HM might too be taken from her. Even after HM was brought into care, BT continued to have a workable relationship with the Society until HM was moved into the current foster home for permanency planning.

[212] Even at her worst, BT has continued to maintain regular contact with Society, including allowing them access to her home. She has signed consents. She has shared her concerns and information as required. She has encouraged HM to share with the Society as well.

[213] BT has followed the Society’s direction. She has pursued mental health examination, and has left relationships and situations that exposed HM to conflict. Often, this cooperation has been to BT’s detriment. She has demonstrated she will prioritize HM’s interests and well-being over her own.

[214] BT is capable of working with Society Workers. Some of the Family Resource Workers described their relationship as “fun”. Ms. Biesenthal described their relationship as pretty amicable for the most part. BT also had a good relationship with the previous foster parents. She has been pleasant and friendly during exchanges with the current foster parents with a few exceptions.

[215] The Society expresses concerns about BT’s ability to be supervised, citing her withdrawal of consents.

[216] However, the evidence establishes that BT does sign consents. She signed consents for the Society to share information with the professionals she was involved with, as well as the persons she was living with.

[217] The Society’s complaint is about BT revoking her consent to speak with Dr. Shah and CMHA. However, when she did sign them, the Society did not act on them. The evidence at Trial was:

(1) BT signed consents to allow the Society to exchange information with Dr. Shah on May 27, 2021. Ms. Biesenthal did not follow up during her involvement with the family, which ended January 2022;

(2) BT again signed consents for CMHA and Dr. Shah on May 20, 2022. She revoked these consents on July 17, 2022 (which was after her involvement with CMHA had ended). Notwithstanding her withdrawal of the consents, BT continued to sign other consents, including for JV and JP November 23, 2022;

(2) In Dr. Shah’s note of December 8, 2022, he notes that the Society did not contact him for BT’s records – to be fair to BT, there was mixed messaging about whether Mr. MacKinnon took any action on the consent; she was reasonably frustrated; and

(3) BT signed another consent for Dr. Shah on February 28, 2023. There was no evidence the Society took steps to follow up afterwards.

[218] BT does not trust the Society. She feels she has been alienated from HM and that she has not been permitted to be HM’s mother. She feels her concerns about HM’s are dismissed like she doesn’t count, and notes that she is missing HM’s milestones such as first day of school, birthdays and Christmases (whereas her extended family have enjoyed some of these days with her). She craves the means to express her concerns, and more importantly to actually be heard. Unfortunately, her own style of communication often interferes with that.

[219] These sentiments, and her fear of losing HM, have driven BT’s conflict with the Society. I find that the Society must accept some responsibility for the damaged relationship, and that they have acted in a manner that has not always been child focused, sometimes contrary to court orders, and in a way that breached BT’s trust.

[220] In Children’s Aid Society of Toronto v. T.L., 2018 ONCJ 691 at para 124, the court observed that “trust is a two-way street”, and goes on to recognize in para. 125 that a “good working relationship may also be impacted by steps a society takes”. Justice Finlayson identified some factors that may negatively influence trust with a Society, which include:

(1) Bringing a child into care despite efforts to safety plan; and

(2) The Society refusing to accept a parents information and taking more interventionist steps.

[221] In Kinageezhgomi Child and Family Services v. M.A., 2020 ONCJ 414 at para. 48, the mutuality of the trust relationship was affirmed:

Trust has to go both ways and societies have an obligation to ensure that the services they provide, which include child protection interventions and investigations, are provided in a manner that gives support to the autonomy and integrity of family units and "wherever possible, be provided on the basis of mutual consent". This is particularly true when good faith efforts have been made to meet the protection concerns of the society”.

[222] Based on the evidence presented at Trial, I find that the Society’s position regarding access from the outset was unduly restrictive and inconsistent with the objectives of the Child, Youth and Family Services Act.

[223] But for stable housing, BT presented as an adequate parent from the outset, and her access should have reflected this. The Society’s overly restrictive approach to access, then placement in a home for permanency, significantly contributed to BT’s frustrations, fears, and inappropriate confrontation with the Society.

[224] The Society permitted only limited, fully supervised visits when HM brought into care, notwithstanding the immediate concern was a lack of housing. These restrictions were completely unrelated and disproportionate to the protection concerns at the time. See: Catholic Children's Aid Society of Toronto v. O. (J.), 2012 ONCJ 269: the degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk.

[225] The risk was low, if any. Further, visits were noted to go well, but there was no expansion of access, even into the community, or for longer periods of time. The case law establishes that services to families must also include making necessary adjustments to access over time, where appropriate. This can mean increasing the amount of access supervised by the Society, moving towards supervised pick up and drop off only, to unsupervised access with unscheduled visits by Society workers. See: Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744; CCAS of Toronto v. R.M., 2017 ONCJ 78; and Children’s Aid Society of Hamilton v. O.(E.), 2009 CarswellOnt 8125 in which the court found the Society’s failure to expand access where warranted to be an aggressive litigation strategy, and criticized the Society for “tunnel vision.”.

[226] In this case, Ms. Biesenthal admitted that the Society did not even consider extending the time for the visit (beyond 2 hours), rigidly linking any expansion or progress in access to when it could be exercised in a home.

[227] Not only that, but the Society imposed additional barriers to access that were not part of the interim order, creating confusion about expectations. Notwithstanding the interim Order of July 15, 2021, which provided for a lower threshold requiring BT to, “advise the Society of her new address and allow the Worker to attend for an assessment and to approve the home in advance”, the Society imposed an expectation that she remain in the same home for 6 weeks before visits there could take place.

[228] The Society’s rule about BT maintaining stable housing for 6 weeks was arbitrary and not child focused. Mr. MacKinnon explained that the requirement was to provide a stable environment for HM to visit. However, access in the community provided for less stability and consistency in environments, or access to appropriate facilities (i.e. bathroom, nap areas, protection from weather). In one instance on June 17, 2022, HM fell asleep at McDonald’s during an access visit.

[229] As well, the Society failed to take into consideration the hardship and barriers created by the increased cost of exercising access in the community and BT’s limited means.

[230] The Society communicated the wrong access trajectory to BT, which caused her to question the plan and some upset. Mr. MacKinnon admitted at Trial that the progression communicated to BT should have been unsupervised visits in the community to unsupervised in the home, rather than supervision in the home, which is what BT was told, and a clear step backwards.

[231] The Society recognized that BT was keenly concerned and interested in HM’s health. Section 1(2)7. CYFSA sets out the objective of:

7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

[232] Even more clearly, the interim order, dated July 15, 2021 imposed positive obligations on the Society to “ensure that BT is provided with all relevant information/updates pertaining to HM’s overall health and wellbeing, and will be provided with all reasonable opportunities to attend appointments, meetings and activities for HM”. The Society did not comply with their obligation as the evidence revealed:

(1) With one exception, BT was never invited to a plan of care meeting. She was not provided with an agenda in advance, and she was unprepared;

(2) BT was never invited to an optometry or dental appointment. There is no evidence she was provided with information about these appointments at all;

(3) BT was only recently invited to an appointment with Dr. Sharma, and two appointments with Dr. Kapalenga, both of which were in anticipation of this litigation and in response to concerns;

(4) BT was otherwise not informed of HM’s appointments and outcomes;

(5) Even when requested by BT, the Society did not provide HM’s medical records; they directed her to get them herself (she had no authority) and did not sign a consent so she could obtain them;

(6) The Society did not involve BT in major milestones. In fact, BT was intentionally excluded from HM’s first day of school on September 9, 2021, despite the Society knowing it was important to both HM and BT, and there was a good relationship with the foster family. BT was told not to attend, but the Society deployed a worker just in case. In fact, BT did attend and stood across the street. She was appropriate and HM did not see her. Ms. Peyton agreed that BT’s request to be involved on that date was reasonable;

(7) The Society did not convey relevant time sensitive information to BT in a timely manner, including:

(a) The Society did not inform BT that HM attended the ER on November 12, 2021 until November 16 th, by text, 24 hours after the Society learned of the visit. Even then, it was an afterthought while sending Halloween photos. Ms. Peyton agrees this was not the best strategy, in hindsight, and that it was reasonable for BT to be upset and that would be considered a breach of trust;

(b) A serious occurrence report was made on February 3, 2023, after HM was physically restrained for 30 minutes due to being physically aggressive. BT was informed of this almost a week later on February 9, 2023 by email.

(8) Until the serious occurrence report, BT was unaware of behavioural issues in the foster home;

(9) Despite BT’s well-known concerns about HM’s health, no one consulted with Dr. Kapalenga or Dr. Sharma before enrolling HM in gymnastics. HM was enrolled commencing September 29, 2022. The first time the Society or foster mother raised her participation with Dr. Sharma was May, 2023. The foster mother indicated that it was discussed with Dr. Kapalenga December 5, 2022, after HM was enrolled, and mostly in the context of her asthma;

(10) The Society did not include BT in the decision to enroll HM in French Immersion, or advise her at the time. This was viewed by BT as another step away from HM’s return, as she does not speak French, but it is the language spoken in the foster home;

(11) Despite the numerous allegations of harm to HM in the current foster home, the Society did not provide BT with a copy of the calendar the foster mother used to record any bumps and bruises, which would have helped to allay her concerns;

(12) The Society has not provided a report card for this academic year; and

(13) The communication book that was previously completed between the school and the foster parents is no longer provided so BT is not aware of what HM is doing in school.

[233] Notwithstanding the interim Order and BT’s interest, the Society explains they did not see the need to involve her in every medical appointment as no concerns were reported until September 2022. This falls short of their court ordered obligation to give BT reasonable parenting opportunities.

[234] The Society failed to adopt proven strategies that would build trust with BT, and mitigate their own concerns about how she communicates with them. The Society identified that a strategy that worked well to ensure good visits was if BT and the worker were able to discuss adult issues before or after the visit – she was then able to change conversation topics for when HM arrived.

[235] However, Mr. MacKinnon prohibited BT from discussing her concerns with the Family Resource Workers who were supervising access, and the workers were directed not to discuss BT’s concerns with her. All communication was to be through Mr. MacKinnon, escalating BT concerns.

[236] The Society’s initial goals for BT were to:

(1) Engage a network of family and friends to support her goals for access and potential placement of HM;

(2) To access and engage in ongoing mental health services, including Dr. Shah and CMHA

(3) To obtain and maintain safe and stable housing

(4) To access and engage in ongoing addictions counselling to establish a healthy maintenance plan

[237] The Society continued to reiterate expectations about mental health and addictions, when BT was not presenting with any substance abuse issues, provided a consent to speak with Dr. Shah (that they did not follow up on), engaged with New Directions for an extended period of time, and found stable housing. This was understandably frustrating for BT.

[238] Whenever BT met expectations, the goal posts were moved so that the focus stopped being about her relationship with HM and became laser focused on her relationship with the Society. Unfortunately, this became a shared focus of both BT and the Society that continues to this day.

Conclusion:

[239] Based on the above, I find that it is in HM’s best interests that she be returned to BT’s care subject to Society supervision.

[240] BT is not perfect. She can present as challenging, to be sure. But the standard for parenting is not perfection, which seems to be the standard to which the Society is measuring BT, without objectively consideration of its own actions on that parenting. Further, BT is not ungovernable. Although in her weaker moments her conduct is not to be condoned, the evidence establishes BT does work cooperatively with the Society under supervision, and did so voluntarily for years.

[241] History also shows that BT can protect HM from conflict to an acceptable degree, when HM is in her care and she can successfully employ strategies to remove herself and HM from the situation.

[242] The evidence is that she has been able to remove herself and HM from those situations in the past; she ended her relationship with DM and removed herself and HM from JV’s home. Aside from only a few months during HM’s first 3+ years of life, there is no evidence BT was unable to protect HM from adult conflict, or that mental health issues resulted in instability in other areas for HM, even while HM has been in care. BT was able to work well enough with the Society and largely avoided exposing HM to conflict flowing from the litigation until HM was moved to her current foster home with a view to permanency.

[243] BT has always shared information and, for the most part, has followed Society recommendations. HM wants to live with her mother. Despite 3 years in care, HM and BT have a strong bond. BT has demonstrated that she can provide more than adequate care to HM.

[244] The degree of risk in this case is low and does not warrant effectively terminating the mother-child relationship, a relationship that HM enjoys and remains that most consistent parenting relationship in her young life.

[245] To the extent there are concerns about supervision, there are measures the Society and BT can implement to work better together, including: meetings before access, meetings in HM’s absence, and knowing the issues in advance.

[246] BT recognized that Trial was going to be difficult, including listening to the evidence of the Society, which she did not agree with. In anticipation of these challenges, BT took anti-anxiety medication which seemed to assist her, starting a few days into the Trial. She also seemed to benefit from understanding the Trial process, and that she would have the opportunity to present her case and her concerns. These are strategies she is encouraged to apply to meetings with the Society.

[247] It would also be helpful to establish guidelines regarding the parties’ communication, including when such communication takes place, and timelines for responses. This is a plan that both parties should negotiate, and agree upon, together.

[248] I have considered whether a further period of interim care would be appropriate to facilitate a gradual return to BT’s care. However, given the length of time HM has been in care, her strong relationship with BT and frequency of current access, low protection risk, and concerns about the need for increased communication between BT and the Society in the circumstances of interim care, I do not believe a delay would be in HM’s best interests other than to allow HM to say goodbye to her teachers and friends, and for BT to enroll her in school and prepare her home for HM’s return. I rely on s. 101(1)4. CYFSA as authority to make transitional orders, allowing for a brief interim care order, followed by HM’s placement in BT’s care. See: Children’s Aid Society of Toronto v. N.G., 2022 ONCJ 35 paras 174 - 187; Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113; Children’s Aid Society of Toronto v. A.L., 2021 ONCJ 258; and Catholic Children’s Aid Society of Toronto v. N.J., 2017 ONSC 4884.

[249] Although there is no established link between BT’s previous care of HM and HM’s current behavioural issues, the new challenge will be BT addressing HM’s behavioural issues appropriately. Whatever the cause, HM has been struggling with her own feelings, and BT must learn better strategies to manage her own expression of her emotions and coping to better help HM.

[250] There was no information provided about the counsellor at Penetangore Wellness, the cost, or recommendations. However, both parties recognize that HM needs a safe support where she can process her feelings. BT has an advocate in Dr. Shah, who will be in a position to make referrals.

[251] There may be some financial barriers for BT in continuing this specific service, or some delay while she applies for an increase in ODSP and investigates other potential funding sources. She may have to be placed on a waiting list for other subsidized services such as Keystone Child, Youth and Family Services, which may result in an interruption in service for HM.

[252] I am aware that I cannot make an order requiring the Society to pay for this service (s. 101(7)(c) CYFSA). However, I find it a somewhat absurd notion that the Society would pay for a service while a child is in care, and not in the care of a parent, and then take a position that a child should come into care because the parent cannot meet the child’s needs.

[253] Some financial assistance from the Society to assist BT to obtain child counselling would be consistent with the objective of the CYFSA. Section 1(2) CYFSA sets out the purposes of the Act as including:

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

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

[254] In order to avoid an interruption of service (which is albeit only on a monthly basis) while BT arranges for appropriate local services available to her, I would strongly recommend the Society consider assisting with the cost of such therapy, along with transportation.

[255] The Society wishes to have a psychological assessment completed for HM. Given the behavioural issues, this would be appropriate. BT also seems to be in agreement provided she can investigate and have input into the assessor. Indeed, it will be BT’s decision to make.

[256] However, there is some noted correlation between changes in HM’s residence and an escalation in her behaviours. I will therefore not make an order that BT obtain an assessment at this time. HM should have an opportunity to reintegrate and adjust to her new home and school, rather than assessing her while she deals with the transition. The assessment can be better considered upon Status Review, or on a voluntary basis.

[257] I am also aware that I cannot order the Society to appoint a new Family Service Worker to this file, but I strongly recommend they do so as a means of building trust with BT (the new worker should not be Ms. Pette) and minimizing certain conflict.

[258] Neither party made submissions regarding any access by DM. Given his absence from HM’s life for the past three years, and previously inconsistent access, no access is appropriate at this time.

[259] Therefore, I make the following Final Orders:

(1) The child, namely HM, born […], 2017 (“HM”), shall remain in the interim care of the Society until March 29, 2024. An extension order is made pursuant to s. 122(5) CYFSA for this purpose. The interim care order will be followed by a 6 month order placing the child in the care and custody of the Respondent Mother, BT (“BT”), (commencing March 29, 2024) subject to the following terms of supervision:

(a) BT shall advise the Society in advance of any proposed change of address;

(b) BT shall advise the Society of any proposed change in her household members, in advance;

(c) BT shall advise the Society of any change in her contact information forthwith;

(d) BT shall meet with the Society on both a scheduled and unscheduled basis. Except in case of emergency, in the event the Society wishes to discuss substantive issues or concerns with BT:

(i) The Society shall send BT an agenda, in writing, no less than 72 hours in advance; and

(ii) The meeting shall be scheduled at a time and location where HM is not present.

(e) BT shall permit the Society to meet with HM on both a scheduled and unscheduled basis, including privately;

(f) The parties shall develop a plan to communicate in a respectful and cooperative manner. In the event the parties cannot come to an agreement, they may submit proposed terms to my attention by 14B Motion;

(g) BT shall re-engage in counselling with Lyndsey Cattryse at CMHA, or equivalent service, continuing to focus on emotional regulation interpersonal skills, trauma processing, and supportive counselling;

(h) BT shall continue to take anti-anxiety and other medication as required;

(i) BT shall not engage in adult conflict in HM’s presence;

(j) BT shall ensure HM attends all medical and dental appointments on a regular basis, and as needed;

(k) BT shall use her best efforts to secure a family physician for HM, and herself;

(l) BT shall enroll HM in school and ensure she attends on a regular basis;

(m) BT shall enroll HM in activities in accordance with HM’s interests, aptitudes, and BT’s means;

(n) BT shall enroll HM in counselling/therapy as reasonably recommended, available, and according to her means; and

(o) BT shall cooperate with the Society Workers and sign any consents reasonably requested by the Society to receive information from HM’s service providers and her own, for the purpose of monitoring her compliance with this Order. She shall do so in a timely manner.

(2) While HM remains in the Society’s interim care, BT shall continue to have in person access with HM according to the current schedule, except that such access shall be unsupervised and exercised within the community, and the Society shall have the discretion to increase the access duration. The Society shall continue to provide a volunteer driver to transport BT to access.

(3) DM shall have no access with HM. In the event he wishes to have access, he shall bring the appropriate Application/Motion. BT shall advise the Society in the event DM attempts to have contact or access with the child.

Released: March 25, 2024 Signed: Justice V.L. Brown