W A R N I N G

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.

O N T A R I O C O U R T O F J U S T I C E

CITATION: Sarnia-Lambton Children’s Aid Society v. N.S., 2024 ONCJ 391

DATE: July 31, 2024

COURT FILE No.: CFO 131-19

B E T W E E N :

SARNIA-LAMBTON CHILDREN’S AID SOCIETY

Applicant

— and —

N.S. and T.W.

Respondent Parents

— and —

WALPOLE ISLAND FIRST NATION; K.Y. and A.Y.; K.D. and M.D.

Respondents

Before Justice M. Pawagi

Heard on June 10-14, 17-20, 2024

Reasons for Judgment released July 31, 2024

Bethany Howell …………………………………………………...counsel for applicant society

N.S. ……………………………………………………..respondent mother on her own behalf

David Miller………………………………………………..counsel for respondent father T.W.

Christina Ninham ……………………….counsel for respondent Walpole Island First Nation

Joel Szaefer………..…………………………counsel for respondent caregivers K.Y. and A.Y.

K.D. and M.D. ………………………………………respondent caregivers on their own behalf

Alan Gorth …………………………………………..agent for Office of the Children’s Lawyer

Table of Contents

1: INTRODUCTION

1.1: Nature of the Case

1.2: Positions of the Parties

1.3: Background and Chronology of Significant Events

2: EVIDENTIARY ISSUES

2.1: Parenting Capacity Assessment

2.2: Credibility of Witnesses

3: ANALYSIS AND THE LAW

3.1: Disposition

(a) Continued need of protection

(b) Society’s Efforts to Assist the Children

(c) Parents’ Plan

(d) Best interests considerations

(i) Views and Preferences

(ii) First Nations Identity

(iii) Children’s Needs

(iv) Relationship with Parents

(v) Risk

(vi) Continuity and Stability

(e) Society’s Plan

(f) Access

4: CONCLUSION

4.1: Order

4.2: Delay

APPENDIX “A”: Statutory Provisions

PAWAGI, J.:

1: INTRODUCTION

1.1: Nature of the Case

[1] The parents are seeking the return of their four Indigenous children who were removed from their care five years ago (at the ages of 6 ½, 4 ½, 3 and 1) immediately following the death of a fifth child, then age 2, on August 2, 2019.

[2] The only question at trial was: What should the permanent placements and access for these children be? The statutory findings and protection findings were made on consent by way of Agreed Statement of Facts on June 15, 2021, pursuant to subsections 74(2)(a)(i) and (b)(ii) of the Child, Youth and Family Services Act (CYFSA). All of the statutory provisions referred to in this decision are reproduced in full at Appendix A. The four subject children will be referred to as child A, B, C, and D (from eldest to youngest – the youngest of whom is the only girl).

[3] The protection findings were based on the following:

The circumstances of the 2-year-old’s death

He was found dead by his mother in the family home around 3:30 p.m., on a foam mattress at the bottom of the basement stairs. He had been alone in the basement since the night before, other than when child B, who was then 4 ½ years old, was also downstairs. The mother at first accused child B, who is autistic and non-verbal, of suffocating him. The Coroner’s report concluded the cause of death was undetermined.

The Agreed Statement of Facts includes the following disagreement: The Society asserts neither parent checked on the child since about 1 a.m., an approximately 15-hour period of time, while the parents assert they checked on him periodically and he was sleeping. Not included in the Agreed Statement of Facts, but not disputed, is that this child and his twin brother had been born prematurely and both had serious medical problems, including congenital heart issues. His twin brother was never discharged from hospital following birth and died at age two months.

The history of unwarranted hospital attendances by the mother

84 for child A by age 6 ½;

56 for child B, by age 4 ½; 45 for child C, by age 3;

6 for child D, by age 1; and

71 for the mother herself (over a period of 6 years).

1.2: Positions of the Parties

Society

[4] Child A is now 11 years old. The Society seeks an order of extended care with access to keep him with his current caregivers K.Y. and A.Y. (referred to in this decision as Ms. AD and Mr. AD to reflect that they are the caregivers for both child A and child D). Child A has been residing with them pursuant to a temporary care and custody order since May 23, 2023, a period of one year. Ms. AD is the father’s first cousin. Her mother and the father’s father are siblings. They are caring for child A as foster parents as they could not afford the significant services he requires if he were placed with them as kin.

[5] Child B is now 9 years old. He is autistic and non-verbal. The society is seeking an order of extended care with access to keep him in the specialized foster home where he has been residing pursuant to a temporary care and custody order since June 25, 2020, a period of 4 years.

[6] Child C is now 8 years old. The society is seeking a deemed custody order to his kin caregivers, K.D. and M.D. (referred to in this decision as Ms. C and Mr. C to reflect that they are the caregivers of child C). Child C has been residing with them pursuant to a temporary supervision order since October 27, 2019, a period of 4 ½ years. Ms. C is the mother’s sister.

[7] Child D is now 6 years old. The society is seeking a deemed custody order to Ms. AD and Mr. AD, with whom she has been residing pursuant to a temporary supervision order since being removed from her parents’ care on August 2, 2019, a period of 5 years. As noted above, child A also resides in this home, but with a different legal status as a foster child.

[8] With respect to the parents’ access, the Society seeks the following: Access once per month with child A, C and D, and silent as to access for child B.

[9] With respect to sibling access, the Society seeks the following: Child A, C and D shall see each other a minimum of once per week as arranged by their caregivers, and shall see child B twice per year.

Walpole Island First Nation; Office of the Children’s Lawyer; Kin caregivers

[10] The above support the society’s position, except with respect to child B’s access. They seek an order of “no access” with his parents, not “silent as to access”; and an order that child B see his siblings four times per year, not twice.

Parents

[11] The parents seek the return of all four children to their joint care pursuant to a six-month supervision order with conditions, including that the father will be solely responsible for medical, dental and educational decision making for the children; and, if deemed necessary by the court, that maternal grandmother will reside in the home. They propose that the father will not work outside the home and that he will be the primary caregiver for child B. They further propose generous access for the kin caregivers, including weekend overnights.

1.3: Background and Chronology of Significant Events

Parents’ history

[12] The parents are both 35 years old. They have been living together since they were 18 years old. They got married in October 2019, about two months after the death of their 2-year-old child and the removal of their other children. They have always been united in their desire to have the children returned to their care.

[13] The mother has been on ODSP (Ontario Disability Support Program) since she was 16 years old as result of her diagnoses of Generalized Anxiety Disorder, Attention Deficit and Hyperactivity Disorder and Obsessive Compulsive Disorder. She also has a diagnosis of Developmental Delay, which she disputes. As a child, she attended a residential program at the Child and Parent Resource Institute in London, Ontario, an agency that provides services for children with special needs. She has never worked outside the home. She has not completed any schooling past grade 8.

[14] The father completed high school and obtained college certification in welding. He has held various jobs during and since high school including in welding, dry walling and in different roles at several fast-food restaurants. He is not currently working.

[15] The children are Indigenous through the paternal side. The father is a member of Walpole Island First Nation. While the father grew up on Walpole Island, the children had little to no contact with the Nation prior to the removal. The mother discouraged it as the paternal family disapproved of the father’s relationship with her.

Prior to removal

[16] The Society was involved with the family voluntarily, on and off for six years, from shortly after the birth of the first child in 2013 until the removal of the children in 2019. As set out in the Agreed Statement of Facts, the Society was involved “due to the hazardous and unsafe state of the home, including the basement, and follow through on services by the parents including counselling for [the mother], working cooperatively with the Society, ensuring the school age children attended school, and reducing the number of doctor’s visits for the children. There were conversations regarding not allowing the children to play or sleep in the basement.”

[17] The Society did not seek a formal Voluntary Services Agreement with the parents, nor did they bring the matter to court to seek a supervision order prior to the removal.

[18] All of the children have some developmental delay, with child B’s being the most severe. At the time of their removal none of the four children (then ages 6 ½, 4 ½, 3, and 1) were toilet trained. They were all essentially non-verbal. They appeared unfamiliar with such things as bedtime routines, eating with utensils, and playing outside.

[19] The then school age children, child A and child B, attended school for only one day on September 7, 2018, before being removed by the mother to be homeschooled. At the end of that one school day, the mother contacted the Society, the police, Women’s Interval Home, and Bluewater Health alleging child B had been physically abused by school staff. Her allegations were investigated and not verified.

[20] The mother and maternal grandmother brought the children to EarlyON drop-in centres, instead of school. Maternal grandmother was the only extended family member permitted by the mother to be involved with the family. She saw the children several times a week to take them and the mother out and spoke with the mother almost daily. The Society did not bring this matter to court until the 2-year-old’s sudden death precipitated the removal of the four children from the home.

Post removal

[21] For the five years since the removal, the Society has been focused on essentially two things:

(1) Responding to the mother’s approximately 200 complaints that the children have been mistreated – by Society workers, caregivers, extended family members, and others. The complaints ranged from the most trivial, that the laundry detergent kin caregivers Ms. AD and Mr. AD use on child D’s clothing is too strongly scented, to the most serious, that Mr. AD sexually abused child D. None of the complaints have been verified; and

(2) Supervising the parents’ access with the children – often for many hours per visit and in a variety of locations including the parents’ home.

[22] The parents attended every visit on time for the first two years the children were in care. There were many positives noted in the access visits including that the parents clearly love the children and come prepared with activities and food, and that the children love them.

[23] When the father stopped attending regularly (missing 100 visits in the past year) the children were distressed. All four display a marked preference for their father, with the eldest child being the most negatively impacted by the missed visits. The father stopped attending altogether in the lead up to the trial. The father attributed his lack of attendance to his giving up hope of ever getting the children back. The mother stopped attending once the trial began. They both asserted they would resume attending access following the completion of the trial.

[24] The Society has repeatedly attempted to loosen access restrictions and move from supervised to unsupervised access in their goal to reunite the family. The following are examples of the Society then tightening access restrictions as a result of the mother’s actions:

(1) After a brief attempt at an unsupervised visit on June 15, 2020, the Society moved access back to supervised; and after a supervised visit on May 10, 2021, the Society moved access from in person to virtual. Both steps back were the result of the mother’s intrusive vaginal examinations of child D. The parents assert that the mother did not examine the child in these two incidents, but that she merely made casual observations during diaper changes.

(2) After an unsupervised overnight visit on February 25, 2021, the Society cancelled overnights going forward because the mother took child A to the hospital unnecessarily. The child did not require treatment and attended school immediately following the hospital visit. The parents assert the hospital attendance was necessary as the child had difficulty breathing.

[25] On September 28, 2021, two years after the proceeding commenced, the Society sought an order for a Parenting Capacity Assessment pursuant to s. 98 of the CYFSA, which was granted on consent. The assessment was completed on June 30, 2022. The assessor concluded that the parents did not have capacity to parent any of the children, and that the only way the children could be safely returned is if a capable adult resided with the parents and assumed full responsibility for parenting the children. Counsel for the father submitted, and the Society conceded, that the court should put no weight on the assessor’s conclusion, in part because both parents testified they were significantly impaired by marijuana when completing the testing portion and the reason they used marijuana was because they did not want to participate in the assessment.

[26] In September and October 2022, three years after the proceeding commenced, the Society amended its Protection Application to seek the permanent removal of the children through extended care and deemed custody orders. Since the Society did so, the parents have refused to meet with society worker Ms. Jolliffe (the ongoing worker since the removal) and the mother has refused to sign consents for the release of information to the Society.

[27] On January 9, 2024, four and a half years after the proceeding commenced, trial dates were fixed with the consent of the parties for the weeks of June 10th and June 17th 2024. Despite the sudden and tragic death of the trial judge assigned to this matter, the trial proceeded as scheduled with out-of-town assistance.

[28] As of the hearing of the trial, the statutory time limits pursuant to s. 122 of the CYFSA were exceeded as follows:

Child A has been in the temporary care and custody of the Society for almost 3 years (on a cumulative basis). The statutory time limit for a child over 6 is 2 years.

Child B has been in the temporary care and custody of the Society for 5 years (on a consecutive basis). The statutory limit for a child under 6 is 1 year.

Child C and D have been in the care and custody of kin caregivers during these five years, not in the care of the Society (other than a few days in care for child C immediately following the removal). However, these orders, as with the orders respecting child A and B, have only ever been temporary.

2: EVIDENTIARY ISSUES

2.1: Parenting Capacity Assessment

[29] Dr. Ashbourne’s Parenting Capacity Assessment was filed with the court, and he was cross examined on it. The parties did not dispute, and I find, that he is qualified as an expert in the assessment of children’s needs and the ability of parents to meet those needs based on the following: He has been a registered psychologist since 1996; he was the Executive Director of the Family Court Clinic in London, Ontario until 2022 and continues to work for the Clinic; he has published in this area and provided supervision and training for other psychologists in this area; in his 30 years of practice he has completed 100s of assessments; and he has been qualified between 50 and 60 times by Ontario courts as an expert in the area of assessing parenting capacity.

[30] Both Society counsel and father’s counsel raised concerns with Dr. Ashbourne’s assessment and submitted that I should place little weight on its conclusions. I agree for the following reasons:

(1) Both parents testified that they ingested marijuana and a “beverage” (which I inferred to be alcoholic) the day of the testing. While the father is a daily user of a small amounts of marijuana, that morning he ingested 2 grams, a significantly higher amount than usual. They did not share with Dr. Ashbourne their belief that they were too impaired to properly complete the tests, which found various measures of their cognitive ability to be below the 1st percentile.

(2) Some of the questionnaires about the parents’ ability to complete various tasks were completed by parties opposed in interest to the parents; namely, the Society’s ongoing case worker and Ms. C.

(3) The entire Society file was provided to Dr. Ashbourne. It included a lot of hearsay and/or disputed information; in particular, a police occurrence report wherein the mother reported to police that the father left the children unattended while he went to buy beer. Dr. Ashbourne frequently alluded to this incident in his report as a serious example of the father’s neglectful behaviour. The mother testified at trial that she lied to police when making this report. Furthermore, the mother has a history of making false allegations and has even been cautioned by police about same. There is no evidence to support a finding that the father ever left the children at home unattended.

[31] The Society did not provide Dr. Ashbourne with a copy of the Agreed Statement of Facts and thus Dr. Ashbourne was not aware of the facts that supported the protection finding, nor was he aware that for two years following the removal the parents were cooperative with the Society and attended on time for every access visit.

[32] As Justice Katarynych noted in Children’s Aid Society of Toronto v. R.(J.) (2003), 2003 CanLII 64125 (ON CJ), 39 R.F.L. (5th) 257 (Ont. C.J.):

The utility of the assessment findings and opinion are only as good as the information upon which those findings have been based. Findings and opinions fueled by histories taken by others put in issue the extent to which the histories themselves were an accurate depiction of circumstances and persons. Findings and opinions rooted in "tests" peculiar to the field of assessment, whether standardized or otherwise, for measuring aspects of human functioning are sometimes ill understood.

[33] While I am thus unable to rely on the conclusions of the assessment, it was not disputed that I can rely on Dr. Ashbourne’s direct observations of the parents’ interactions with the children.

2.2: Credibility of Witnesses

[34] A total of 37 witnesses testified (including Dr. Ashbourne, whose evidence was assessed above). The society called the following workers as witnesses: Christina Jolliffe, Jennifer Chamberlain, Jessica Grant, Leah Croft, Leah Meidinger, Kathie Cossette, Jennifer Thrasher, Kennedy Mosgrove, Laura Metcalf, Kim Calderon-Diaz, Jodi Bloye, Thasitha Moorthy, Jolene Milligan, Terri Burges, Kelbyann McKenzie, Theresa Big Canoe and Laura Vandermeer. The society also called Ms. Sobel and Ms. Cook for cross examination on their assessments and called the kin caregivers Ms. C and Mr. C, and child B’s foster father.

[35] I find the Society workers credible. They were detailed in their descriptions of what they observed. They always indicated whether their information came from personal observation or from another person and named same; and whether they were paraphrasing or directly quoting from said person. They were balanced and provided positive as well as negative evidence about the parents. They were consistent as between their evidence in chief and their cross-examination and consistent as among themselves.

[36] Ms. Sobel and Ms. Cook’s reports about the children and their level of functioning were not seriously disputed (other than the parents’ denials set out in greater detail later) and I find both assessors to be credible.

[37] I find Ms. C and Mr. C credible. They were consistent as between their evidence in chief and cross-examination. Mr. C has had little interaction with the parents. But Ms. C is mother’s sister, and she was balanced in her testimony about the mother. Ms. C clearly loves the mother and was able to describe the mother’s strengths. When the mother and maternal grandmother testified, they both acknowledged Ms. C’s love and support, and the excellent care Ms. C and Mr. C are providing to child C.

[38] I find child B’s foster father credible. His evidence was almost entirely comprised of his direct observations of child B and was minutely detailed. He was consistent as between his evidence in chief and cross-examination.

[39] Ms. AD and Mr. AD testified on their own behalf, and also called Leanne Williams, worker with the Aamjiwnaang First Nation Children and Family Services Program. I find Ms. AD and Mr. AD credible. They were consistent as between their evidence in chief and cross examination. They testified about their direct observations of the children A and D who are in their care. They also testified about their interactions with society workers which was consistent with the evidence of said workers. I also find Ms. Williams to be credible. Her evidence was not disputed.

[40] OCL and the Nation did not call any witnesses.

[41] The mother testified on her own behalf and called the following witnesses: Coroner Dr. Mallon; counselor Glen Ethridge; psychiatrist Dr. Komer; workers Natalie Lynch, Cody Atwood, Greg Martyniuk, Carla Tillapaugh; and maternal grandmother.

[42] The evidence of the professional witnesses was not disputed, and I find it credible. However, where Dr. Mallon and Dr. Komer provided opinion evidence, I did not give it any weight as they were not qualified at trial to provide same.

[43] I find maternal grandmother not credible for the following reasons:

(1) Her evidence was not at all balanced as she was so clearly aligned with the mother. Her evidence was contradicted by multiple society workers; for example, she testified she never accused Mr. AD of sexually abusing child D, despite several telephone calls with society workers documenting same.

(2) Her testimony was internally inconsistent; for example: She testified that she believes the mother has learned from the past, yet she maintained there were no child protection concerns at any time; she testified that the mother will no longer take the children to hospital unnecessarily, yet she maintained that the mother’s past hospital attendances were justified; she testified that child A and B should have been in school, yet she maintained that the mother was justified in pulling them out of school and that the mother had the “right” to homeschool them.

[44] I find the mother not credible for the following reasons:

(1) Her testimony was internally inconsistent; for example: She testified that when child B, who is autistic, lived at home, she and the father never witnessed him exhibiting the aggressive behaviours his foster home reported such as throwing objects at people. Yet she also testified that one of the reasons for her multiple visits to hospital was that child B had thrown something at one of his siblings and she was worried about possible head injuries; and that the reason the family ate their meals on a tarp spread on the floor rather than at a table was because of child B throwing his food around. And, as noted in the Agreed Statement of Facts, when she found her child had died, she first accused child B of suffocating him. Also, she provided a resume at trial which states she completed high school, but she also provided a letter stating she still needs to complete grade 9.

(2) Her testimony was contradicted by multiple Society workers. While it is possible that one worker may have recorded one conversation incorrectly, the sheer scope of the mother’s denials was enormous. The main example is that relating to her accusation that kin caregiver Mr. AD sexually assaulted child D. She has made this accusation to many people, many times, over years. At trial, she did not simply say she no longer believes Mr. AD sexually assaulted the child, she said she has never made such an accusation.

(3) She was at times uncooperative on the stand; for example, when frustrated by a particular line of cross examination she simply repeated “can’t recall” multiple times; and she refused to answer the question of whether or not she is currently pregnant, both during cross-examination and during an appointment with Dr. Komer.

[45] The father testified on his own behalf and called his friend Jacob Reid. I find the father’s credibility mixed. I find his blanket denials of the detailed testimony of Society workers regarding conversations and interactions they had with him not credible. But I also find him sincere and credible at times; for example, in his descriptions of his attempts to control the mother’s actions. He was calm and courteous at all times on the stand. I find Mr. Reid to be credible. He was consistent as between his evidence in chief and his cross examination. He testified only about what he knew firsthand. His evidence was not disputed.

3: ANALYSIS AND THE LAW

[46] I have considered the whole of the voluminous evidence led during the course of this trial through the documents, photos, video and audio recordings, and the 37 witnesses. I will not provide a summary of said evidence in this decision, but instead will focus on the evidence that relates most directly to the legal analysis below.

3.1: Disposition

(a) Continued need of protection

[47] While it was not disputed that the children are in continued need of protection and that intervention through a court order is necessary to protect the children in the future pursuant to s. 101(1) of the CYFSA, the extent of the continued need of protection was disputed.

[48] The parents conceded the continued need of protection only on two specific grounds: lack of school attendance by the then school age children, child A and child B; and the excessive emergency room attendances for all four of the children.

[49] However, I find the conceded grounds are really just examples of one of the two bases for the continued need of protection; namely, the mother’s anxiety, specifically as it manifests itself in her fixating on the children being harmed or at risk when they are not. This results in her anxiety being the cause of the harm or risk of harm to the children, rather than the concern she was anxious about. The second basis is the parents’ neglect of the children.

Mother’s anxiety

[50] The main example is the mother’s unfounded belief that child D was sexually assaulted. The mother’s concerns in this respect began just a few months after the removal:

(1) On December 3, 2019, the mother asked a society worker if the volunteer driver had done anything inappropriate to child D, because child D reacted poorly to diaper change at access which the mother said she had never done when she had been living with the parents;

(2) On December 10, 2019, when the father changed child D’s diaper, both parents expressed concern that they noticed redness inside the lips of the child’s vagina. Both proceeded to open the child’s vagina and show the supervising workers;

(3) On March 16, 2020, the mother expressed concern about child D visiting with the maternal grandfather and stated that if the child was “molested” the Society worker would be liable.

[51] The mother’s fixation has negatively impacted the child as evidenced by the events of June 15, 2020:

(1) The parents were scheduled to have their first unsupervised visit with the child that day from 8 a.m. to 8:30 a.m. Society worker Ms. Mosgrove left the YMCA parking lot at 8:05 a.m. after observing the parents settle in with child. Ms. Mosgrove received 3 missed calls from the mother by 8:11 a.m. She returned the mother’s call while driving back to the YMCA. The mother sounded panicked, saying the child’s vagina did not look normal, that “it is open, red and there is white stuff inside.” Ms. Mosgrove attempted to calm her by telling her to focus on her breathing;

(2) Ms. Mosgrove was back at the YMCA by 8:15 a.m. at which time the mother asked the father to pull the child’s pants down. The mother then lay the child down on the ground. The child started crying. The mother spread the child’s legs apart. The mother used both her hands to spread the child’s vagina area open. The child was crying hysterically, trying to close her legs, and push away. Ms. Mosgrove told the mother to stop, the mother did not;

(3) Ms. Mosgrove did not observe any injury, abnormality or white substance. The only redness Ms. Mosgrove observed was on the outside of the child’s vagina where the mother was pulling;

(4) Ms. Mosgrove focused on getting the child dressed and the father helped in dressing and comforting the child. Ms. Mosgrove explained to the mother that the vagina naturally opens if pulled. But the mother insisted that the child have an examination immediately. Ms. Mosgrove said she will relay this information to the kin caregivers. Father attempted numerous times unsuccessfully to calm the mother down. Ms. Mosgrove stayed with the parents the remaining 15 minutes of the visit. The kin caregivers told Ms. Mosgrove that when they changed the child’s diaper at home, child’s vagina was red and irritated, and she was grabbing her vagina and expressing discomfort. They later reported that the child has been experiencing discomfort with diaper changes since this access visit. The Society made the decision to return to fully supervised visits.

[52] The mother, in cross examination, denied doing anything more than taking a “quick peek” at the child’s vagina; however, she accompanied those words with a hand gesture where she put her fingers together and then spread them apart, appearing to illustrate her spreading of the child’s vagina. She denied this is what she was illustrating.

[53] Furthermore, she herself described her actions as more than a peek in the parents’ June 24, 2020, phone call with the Society’s Director of Service, Ms. Thrasher. The mother told Ms. Thrasher that when she was changing child D’s diaper in the YMCA greenspace the child’s vagina looked red, so she “checked” it. She said she “just opened the top” like the male medical student at her doctor’s office had showed her to do when she expressed concerns previously to him. She said the child’s vagina “didn’t look right” to her. She said the medical student had shown her how it was supposed to open, and the child’s was not opening the same way.

[54] On October 5, 2020, Ms. AD reported to the Society that the mother was telling family members she was concerned about Ms. AD and Mr. AD as they were surrounding child D with “creepy” and “strange” men who are or could be child molesters.

[55] On November 20, 2020, child D had a visit with parents in the morning then went to daycare. Her caregivers observed at home that day that child D was expressing a lot of discomfort by standing in her chair and crying while grabbing her crotch. She required an unusual amount of affection and being held and was more resistant to diaper changes as she did not want to be touched near her privates. The next day, they observed markings that appear almost like two fingernails on either side of her vagina at the opening (which they believe they missed the day before because of poorer lighting). They took her for an assessment as they were worried the child was harmed by her parents. The assessment at Bluewater Hospital Sexual Assault Clinic in Sarnia was inconclusive. Medical staff did not conclude any sexual trauma occurred. They referred the child to her pediatrician who noted by then that the marks had faded and healed.

[56] The above incident was followed by another wave of calls by the parents together, or just the mother, with concerns about child D:

(1) On December 1, 2020, the mother called police to attend at her home alleging that one of her children was assaulted. The attending officer told the Society worker who was present in the home at the time that the mother has a history of making false reports. The worker explained to the officer that the police criminal investigation unit was already involved as mother had called them a few days earlier, on November 27, 2020. As the officer left, the mother began to cry saying her daughter was unsafe in her current home. The worker encouraged the mother to let the investigation be completed. The mother called the police several more times;

(2) On December 4, 2020, maternal grandmother called the Society to say she wanted child D removed because she knows she is being molested by her caregiver Mr. AD;

(3) On December 4, 2020, a Society worker dropped in on the family home and the mother showed her a social media post by Mr. AD saying there were many “warning signs” he is a perpetrator;

(4) On December 18, 2020, the parents called the Society Director of Service Ms. Thrasher and told her they were worried child D’s kin caregivers sexually assaulted her and they wanted her removed from that home. The mother said she had documents to prove this;

(5) On December 24, 2020, the mother called the Ministry of Children, Community and Social Services to report that the Society had placed child D with a “pedophile”;

(6) Over the course of December 2020 and January 2021, the mother and other family members made complaints to various oversight mechanisms including the Child and Family Services Review Board, the Ombudsman, MPP Bob Bailey’s office. The Society responded to each agency advising them that the mother’s allegations have been investigated and have not been verified;

(7) On March 26, 2021, Ms. Milligan supervised an access visit. As father changed child D’s diaper, mother said, “Note anything… any little scratch. Even redness. Note anything.” As she repeated this, the father told her to relax and to stop. He was appropriate and calm during the diaper change. The home was chaotic. The environment was tense, and mother was stressed, frantic and hyper focused on child D. The family appeared overwhelmed with child A, C and D present at the same time.

[57] There were similar concerns with mother’s anxiety during an access visit on May 10, 2021:

(1) Child D was excited to get in Ms. Milligan’s car to go for the access visit; but while walking to the front door child D spontaneously said, “she won’t hurt me, right?” referring to her mother. The worker assured her she would be safe. At the start of the visit, the mother picked up the child immediately and said, “Oh my girl. Are you okay my baby. You can tell mom anything” Child D tensed her body, straightened her back and responded, “I want down.” The mother insisted on a warmer coat which upset the child, and forced a hat that was too small on the child’s head;

(2) The mother pulled child A and D in a wagon to the park, and every time a car passed, she pulled the wagon onto the grass saying “You can’t trust anyone. That’s why I keep them as far to the side.” At the park, the mother was hyper vigilant and unable to relax and enjoy her time with the children;

(3) Shortly after returning home, the child peed in her pull up. The mother put her on the floor to change her. She then exclaimed, “Oh my, Jolene! Do you see these bruises? These are finger bruises.” Mother did this in the centre of the living room with the child’s legs completely spread apart, exposing her. This was directly in front of the TV that child A was using. Child A noticed the interaction and looked to his father who was telling the mother it’s fine;

(4) Ms. Milligan told the mother she was making child D uncomfortable. Mother said she was told to report anything she sees and said, “Well look at this. This is a bruise.” Maternal grandmother walked by and asked where? At this point, everyone was looking at child D, and child D was looking at everyone around her. Mother continued asking Ms. Milligan to take a better look. Ms. Milligan told the mother that it was only chafing, not bruising. But the mother continued to state, “No, I want you to look Jolene. You need to get on the floor at this angle. Why aren’t you listening? These are bruises.”

[58] Both parents denied that they had asked Ms. Milligan to look at child D closer and at different angles. The father denied this incident could have any impact on child D and accused Ms. Milligan of lying. Both parents denied that child A noticed anything.

[59] On May 17, 2021, the mother called Ms. Milligan to discuss this incident further. Ms. Milligan tried to explain to both parents how this impacted child D (kin caregivers reported that she had nightmares afterwards). The mother said she would never harm her daughter.

[60] On May 18, 2021, maternal grandmother called the Society to say Ms. Milligan is lying, that the mother never touched the child during this visit nor asked others to examine her.

[61] On September 14, 2023, mother and maternal grandmother called the Society’s after hours line and spoke to Society worker Ms. Croft to report that child D was grabbing at her vagina during access and that they believed child D was being sexually assaulted by her caregiver Mr. AD. Maternal grandmother said she had contacted Sarnia police and that they are considering bringing charges against Ms. AD and Mr. AD because of a previous investigation, and that police “absolutely without a doubt” believed child D had been assaulted. The mother said she wants child D to be assessed by the sexual assault clinic again and to see a pediatrician. The mother said she already reported her concerns to the ongoing worker and to the access supervisor, but she was calling after hours for documentation purposes. Maternal grandmother said child A was also at risk with Ms. AD and Mr. AD as he is exhibiting strange behaviour, but she did not provide any details.

[62] On September 19, 2023, the mother texted a Society worker to report that that child D was grabbing at her vagina several times during access (referring to the September 14, 2023 incident). The mother said she called police because of all the “red flags.” The worker believed the mother was referring to the earlier allegations of June and November 2020.

[63] October 23, 2023, Sarnia police reported to the Society that the mother called police on September 15, 2023 regarding the care child A and child D were receiving in the kin home: that child D was grabbing her vagina and that child A was drawing a picture of a monster and of a man crying because he had killed someone.

[64] On November 16, 2024, the mother called Society after hours worker Ms. Croft again. Among other concerns, she said she was calling because child D was grabbing at her vagina during access that day and the mother was worried the child was having a reaction to the soap the kin caregivers were using.

[65] The mother has also expressed concerns that child A is being sexually assaulted:

(1) On May 27, 2021, the mother sent an audio recording of child A to the Society. She said she recorded the child because he disclosed that someone touched his penis. The worker who reviewed the recording did not hear that. She only heard the mother say to the child, “Is someone touching you there?” but there was nothing further. The mother was cautioned not to question the children or record them;

(2) On June 14, 2021, Society worker Ms. Jolliffe spoke to the parents to discuss an incident that was reported the previous day that child A had asked his cousin to undress and jump up and down or he would punch him. Ms. Jolliffe told the parents not to discuss this topic with child A at their access visit that day. On June 17, 2021, the mother admitted to Ms. Jolliffe that she did ask child A if anyone had touched him inappropriately;

(3) On October 3, 2022, when a Society worker served the mother with documents seeking to change child A’s placement, the worker had to repeatedly reassure the mother that the child was not being placed with what the mother referred to as a “known child molester”;

(4) On August 29, 2023, the mother called covering Society worker Ms. Grant with concerns which Ms. Grant found difficult to follow: that child A is saying he doesn’t like private parts in his face; that the mother is worried about “red flags”; that child A is acting weird during the access visit and not eating all his food which is out of character; and that during a visit child A looked at her and pointed to her vagina. The mother reported that she had barely slept the night before as she was so worried.

Neglect

[66] Counsel for the father Mr. Miller submits that there is no evidence neglect led to the two- year-old’s death; that professional eyes were on the children from 2013 to 2019 and neither the Society nor anyone else identified neglect; and that until a child died, the Society had no plan to ask for so much as a supervision order. In submitting that it does not make sense the children were utterly neglected, and the Society did nothing, Mr. Miller is asking me to infer that therefore the children were not neglected. But the evidence does not support this inference.

[67] The mother called Coroner Dr. Mallon who testified that he believed the cause of death was “natural causes” but that he was overruled by the Regional Coroner and therefore the report concluded the cause of death was “undetermined”. While Dr. Mallon was not qualified as an expert in this trial to give opinion evidence, even if I were able to accept his conclusion of “natural causes” it does not change my assessment regarding neglect as follows.

[68] The parents’ neglectful action is not that they caused the child’s death, but that they failed to check on a medically fragile 2-year-old for 15 hours. In the Agreed Statement of Facts, the dispute is expressed as whether they checked on him or not. But when the parents testified it became clear that the real issue is what they meant by “checked.” They describe a “check” as standing at the top of the stairs and looking down at the child on the mattress in the basement. And each time they so “checked,” he appeared to be sleeping. It was not until the mother actually went downstairs at 3:30 p.m. and found him so stiff she could not move his limbs, that she realized he was dead. The coroner testified that for the child to be so stiff meant he was likely dead for several hours. I find that a “check” where a parent cannot tell if their child is alive or not can in no meaningful way be called a “check.”

[69] I also disagree with Mr. Miller that the Society did not identify neglect. The Society’s initial Protection Application dated August 6, 2019 specifically describes neglect at paragraph 5:

The protection concerns for the children have included: the mother’s unstable mental health; the poor condition of the home; adult conflict in the home, to which the children were exposed; the mother’s pattern of taking the children to the Emergency Room for injuries that were not evidence to hospital staff; poor follow through on services for the children (the older two children are Autistic); the parents’ limited support system, as they tended to alienate themselves from extended family; the children’s poor hygiene; inadequate supervision for the children, and generally a chaotic home environment with five children [before the child’s death], 6 and under.

[70] The concern the Society expressed in the Protection Application is supported by the evidence. The following is a summary of the state of the children shortly after removal. Child A, child B and child C were initially placed with kin caregivers Ms. C and Mr. C for one week. Child D was initially placed with kin caregivers Ms. AD and Mr. AD where she has remained:

Child A

[71] Mr. C described him when he arrived at their home as a 6 ½ year old boy who’s in diapers, who can’t speak, who’s not in school, “a frail little boy who didn’t know what was going on.” He was difficult to understand as he was essentially non-verbal, with just a few basic words such as “hi.” It was difficult to get the diapers off him; he was reluctant as it was a comfort thing for him.

Child B

[72] At 4 ½ years old, he was also in diapers and non-verbal. Mr. C described child B (who is autistic) as the child who struggled the most with routine. He described bedtimes as being tricky, that at bedtime, child B would cower and shake, that he would not go to sleep until 1 a.m. Mr. C demonstrated on the stand, by clasping his hands together in front of him and making a rocking motion. Mr. C’s observation was that child B suffered the most being in the parents’ home and not getting proper supports. Mr. C and Ms. C described him as the quickest of the three to become toilet trained – within a week.

Child C

[73] At 3 years old, he was also in diapers and essentially non-verbal. His only word was “no.” Mr. C described child C as having a fear of almost anything: noises, people, their cats, and that he didn’t know how to play outside, that everything was new to him, that he was reluctant to try things. Ms. C described child C as having poor hygiene, with ring stains around his waist area where his diaper was. She said he was very shy and timid with poor social skills; extreme night terrors; no concept of colours, shapes or letters. She said he was very afraid of loud noises, that he would bawl and tuck his head.

[74] Ms. C and Mr. C’s observations regarding all three of the boys were that they were all terrified of the bath; they did not seem to have a bedtime; they were not familiar with being outside; they were not familiar with the concept of a mealtime; they were not familiar with using utensils; all three gorged their food; all three had dental issues. Child A was in a lot of pain as a result of said dental issues. Child C had to have extensive dental surgery for which he was sedated. As the week went on they observed that the children were finding it easier to fall asleep at a reasonable hour. The children had no concept of any outdoor activities such as how to throw and catch a ball. They were petrified of water. There was a lot of fear in all of them. Ms. C became emotional on the stand, saying, “Seeing the condition when they came to my home, brings me to tears thinking of how they were living”.

Child D

[75] When child D entered the care of Ms. AD and Mr. AD at the age of 1, she appeared malnourished. She was unable to crawl or eat solid food. She was still on formula. Ms. AD started her on baby food and slowly transitioned to minced food and ultimately to solid food. She worked on strengthening child D’s legs by doing range of motion exercises with her twice a day, along with “sit to stand” exercises using the couch and walker they purchased for her. Child D was not up to date on her immunizations. Child D was not meeting her milestones when she first came to Ms. and Mr. AD; for example, she was not cooing which babies do at that age.

(b) Society’s Efforts to Assist the Children

[76] In determining which disposition order to make, the court must inquire into what efforts the Society or other person, or entity made to assist the children before the removal: CYFSA, s. 101(2).

[77] An Act Respecting First Nations, Inuit and Metis Children, Youth and Families (Federal Act), at sections 14 and 15, further specifies that efforts to support the children’s family to prevent a removal that are consistent the child children’s best interests shall be given priority over any other services, and that children must not be removed solely on the basis of such things as poverty or the state of health of their parent.

[78] The Society did not file affidavits from workers involved with this family prior to removal. The Society set out in their Plans of Care the efforts they made prior to removal.

[79] The following are the efforts listed in the Plan of Care dated November 19, 2019:

(1) Ongoing involvement with Society workers, including Family Support and One-to- One workers for the children;

(2) Referrals to community agencies such as Pathways.

[80] The following are the efforts listed in the Plan of Care dated October 3, 2022:

(1) Referrals to services as needed;

(2) Drive to and from various appointments over the years;

(3) Family support workers;

(4) Development of various safety plans;

(5) Attempt to develop an appropriate safety network.

[81] The following additional evidence came from documents filed by the Society and through various witnesses.

[82] It was the mother that initiated contact with the Society when she called prior to the birth of her first child (child A) seeking assistance with such things as food cards.

[83] The Society assisted this family on and off on a voluntary basis from the birth of child A to the removal, a period of six years. At least three workers, possibly from more than one entity, were involved during this time: Nancy Jones, Cathy Smith, Diana Cryle. Their assistance to the family included visiting the home regularly and providing drives to appointments. Miranda Dockstater, a Family Support Worker with the Society’s Indigenous Team, was also involved for a period of time ending May 14, 2019.

[84] Pathways Health Centre for Children was assisting in 2016/2017 with child A to provide speech language therapy and occupational therapy. In their last report, dated April 11, 2017, they recommend that child A start junior kindergarten in the fall of 2017 and daycare in the summer leading up to assist with his school readiness. They also encouraged parents to contact the occupational therapist to book an appointment.

[85] The mother and maternal grandmother took the children to two EarlyON drop-in centres about 10 times between October 17, 2018, and November 26, 2018; and about 40 times between January and June 2019.

[86] The family worked voluntarily with Lambton Public Health – Healthy Babies Healthy Children for six years, from 2012 to 2018 which included assessment and home visits by a public health nurse.

[87] The mother attended a single session with St. Clair Child and Youth Services regarding child A being hyper, aggressive and not sleeping, following a referral from Healthy Babies Healthy Children.

[88] The mother attended counselling with Mr. Ethridge of North Lambton Community Health Centre once every two weeks for part of this time.

[89] The mother was initially assessed by psychiatrist Dr. Komer on June 3, 2016, at which time he noted that she presented with a history of generalized anxiety disorder and obsessive- compulsive features and a past history of alcohol and cannabis abuse and conduct related problems in her youth.

[90] The family was also receiving services from the following professionals: Dr. Lacroix, the children’s pediatrician; Dr. Bhargava, the mother’s family doctor; Dr. Dubas, the children’s dentist; and Emergency room staff at Bluewater Health Hospital over the course of the 260 plus attendances the mother made either for herself or one or more of the children.

[91] In addition, the child who died was being treated/followed by medical specialists in London, Ontario.

[92] The Society prepared a Plan of Service dated April 24, 2019, with respect to what were then five children, which was signed by the mother. The mother agreed to do the following:

(1) Book appointments with the children’s pediatrician to get the children caught up on their immunizations;

(2) Register child A and child B for school for September 2019 (I note that this would have been for grade 1 for child A, who did not attend junior or senior kindergarten, despite the Pathways recommendation);

(3) Place on a daycare waitlist the child who subsequently died August 2, 2019;

(4) Make a doctor’s appointment for herself and attend counselling with Mr. Ethridge every two weeks;

(5) Ensure the children will attend doctors less, will only attend pediatrician. Stop calling telehealth and poison control. Father will advise “when children go” (presumably referring to going to doctors); and

(6) Allow the workers into the home as needed to assess living environment. Book appointments at a minimum of every 30 days with “no cancellations.”

(c) Parents’ Plan

[93] The court must first consider the parents’ plan before considering any other: CYFSA s. 101(3); Federal Act, s. 16(1)(a).

[94] The following is a summary of their plan.

[95] The parents reside together in a four-bedroom apartment in Sarnia. They seek to have all four children returned to their care pursuant to a six-month supervision order.

[96] The conditions they will agree to include the following: Father will have sole decision- making authority over medical, dental and educational decisions for the children; Maternal grandmother will reside with the family full-time; Parents will sign necessary consents; Parents will agree to cooperate with the Society, provided a new worker is assigned. The mother was clear about this in her testimony: “It would need to be a new worker. Otherwise, I’m not opening my door.” They are aware that the Society does not intend to change the ongoing worker, who has been working with the family since the children were removed on August 2, 2019.

[97] The parents have sought out and completed programming through Circles of Security and the Sarnia Pregnancy Options & Support Centre. The mother has shown resourcefulness in obtaining assistance for meeting the children’s physical needs by attending local food banks and clothing drives.

[98] The parents will enroll the four children in the local school. The mother testified that the school told her they will have an appropriate placement for child B (who is autistic) including a one-on-one educational assistant for him and access to a “sensory room”. The school has not yet met child B. The mother testified that someone from Community Living told her that they will send someone to the home 3-4 hours every afternoon to work with child B and that they will provide weekend respite care for child B. Father will not work. He will take primary responsibility for child B. They will enroll child B in a summer camp for autistic children.

[99] The parents will continue with all of the services and extra-curricular activities with which the other three children are currently involved. The parents will agree to generous access between children A, C and D and their current caregivers, including weekend overnights; but they acknowledge that to do so for child B will be difficult if not impossible given the travel distance involved and the fact the parents do not have a car (child B currently resides 3 hours away from Sarnia). The parents propose to have the kin caregivers over for family dinners and hope that the kin caregivers will reciprocate.

[100] They intend to support the children’s connection to their Indigenous heritage; for example, by taking them to powwows on Walpole Island and participating in the practice of smudging.

[101] The mother’s plan to address her mental health issues is that she will continue to see her counselor Mr. Ethridge, her psychiatrist Dr. Komer and her family doctor Dr. Bhargava.

Mr. Ethridge

[102] He testified that the mother has been seeing him on and off since 2012 for a total of 78 appointments to date. He did not see her at all from July 2022 to July 2023. He has noticed the following improvement: the mother has been attending appointments with him on time. The mother told him that her OCD has improved (she provided the example of fewer hospital visits), and that her psychiatrist did not see the need for her to be on medication and only prescribed it when she needed it. Mr. Ethridge encouraged the mother to explore ADHD medication due to her impulsiveness which he testified “can create chaos for her.”

[103] He said that she has “come a great distance”, and that she has been to emergency rooms infrequently in recent years with regards to her children and herself. He said, “My understanding is that she is taking medication for anxiety regularly and exploring medication for ADHD with her family doctor.” The modality he uses is “cognitive behavioural therapy” which he referred to as “talk therapy.” All of his information comes from the mother (and her former counsel). He does not have any information from the Society. He has never met the children or observed the mother with the children. There is no set frequency to their meetings. He will typically see her every 2-3 weeks for a 2-3 month stretch at a time.

Dr. Komer

[104] Dr. Komer testified that his primary involvement is as support for the mother’s family doctor, Dr. Bhargava. He does not have a therapeutic relationship with the mother. At their first meeting in 2016 he provided her a prescription for Cipralex (for depression and anxiety), and told her he would meet her again in two months, and thereafter she would continue with her family doctor, who would manage the prescription.

[105] The last time he saw the mother was March 7, 2024. She told him she does not have anxiety anymore, and that she has not felt anxious for six months. She told him she has not been taking Cipralex for one year, that her family doctor told her she does not need medication for anxiety. He explained to the court that Cipralex is a medication that must be taken regularly (in order to build up in one’s system) to be effective, unlike a medication such as Ativan which is short acting; and that Cipralex would not be effective for an acute effect. He testified that the way the mother presented on March 7, 2024, and from her self-report, there did not appear to be a need for her to take medication for anxiety.

Dr. Bhargava

[106] Dr. Bhargava did not testify. It was not disputed that she is mother’s family doctor and prescribes her anxiety medication at the recommendation of Dr. Komer. In February 2020, she had prescribed a daily dose of 10 mg of Cipralex. The mother made various statements to workers from February to June 2020 that she is taking the medication every other day; that she is taking it every day; that she stopped for a few days but then felt much calmer once she resumed taking it. The mother testified she is now “fine” and does not need anxiety medication; that Dr. Bhargava does not think she needs it; but that she has leftover anxiety medication at home and Dr. Bhargava told her that if her anxiety is heightened she can take the medication as needed to calm down. She also testified that she would take the medication every day if the court orders her to do so.

[107] The mother described many other health issues both in the past and during the trial: She might be diabetic (as she felt ill and lightheaded and as if she were going to faint during an access visit); she might have throat cancer (she has a lump on her neck which will be biopsied); she has bowel issues and might need a colostomy bag. She referred to suffering from back pain and had to stand for part of her testimony and take earlier breaks.

[108] Dr. Komer testified that he asked her if she were pregnant (as a standard question, not because he had reason to believe she was) and that she refused to answer. She was then asked the same question in cross-examination and again she refused to answer. When father was asked the same question in cross examination he said he did not think she could be because of a procedure she had. He appeared to be referring to a tubal ligation.

[109] The mother called four Society workers to describe positive interactions during access (summarized below, along with the positive interactions described by many of the workers called by the Society). She provided extensive photos and videos of the children. They are four strikingly beautiful children. They are shown cuddling and smiling and being affectionate with their parents. In one video the children are crying and distraught at leaving a visit with their parents.

[110] The father called Jacob Reid, who has been one of his best friends for over 20 years. They talk once a week and see each other every couple of months. Mr. Reid testified that the father could call him anytime and he would drive over there to help out. When asked more specifically about what kind of help; for example, babysitting, he said he works full time as a rail car repairman and has a family (girlfriend and two children). But he has a truck and could give the father a lift, and father could call to talk to him anytime.

[111] The father will ensure the mother does not take the children to the hospital unnecessarily. He said he did not know she had taken them in the past: “I couldn’t begin to tell you how she got this past me. I was oblivious. I didn’t know.” If she tries to take them, he will call her sister Ms. C, or maternal grandmother, or the police. But he is assuming she won’t do so because he believes, “She’s a different person. She has evolved. She’s not going to commit the same offense again. It’s not going to happen.”

[112] The father will ensure the children attend school. He testified that when the mother had told him she wanted to homeschool, he told her she was not qualified. When she explained that the drop in centres were like kindergarten he said she could try it, but that by the end of the month he regretted it. He did not explain why he then did not ensure they were re-enrolled.

[113] The father testified that he would take the advice of Society workers, except for Ms. Jolliffe (the ongoing worker) and Ms. McKenzie (an access supervisor). He explained that an access supervisor is like a babysitter and also that Ms. McKenzie does not have children of her own.

[114] The father was raised on Walpole Island, which he described as the most fabulous place to grow up. He was always in the bush. He said before the removal he was taking the children to powwows and they enjoyed the singing, dancing, drumming. He took Ojibwe for 3 ½ years and would love to pass it on. He knows the 7 Grandfather teachings and he used to smudge daily.

[115] The parents advised the court that in the alternative, if the court decided not to return all four of the children, the father would first like child A returned as the Society is seeking extended care for his placement with Ms. AD and Mr. AD, and not deemed custody, and the father is worried this means child A will end up back in foster care; and the mother would first like to have child D returned. They both agree that if two children were returned it should be child A and D; and then child B. They agree that if the children are returned gradually, child C should be last because Ms. and Mr. C are doing such a wonderful job with him.

[116] While the mother was self-represented at trial (despite being represented by counsel previously, including when she signed the Agreed Statement of Facts), the parents were united in their plan and the father was represented by Mr. Miller, an experienced child protection lawyer. Mr. Miller assisted the mother by following up with witnesses on whom she had not served a summons, and ensuring their attendance. The mother also had the opportunity to speak to duty counsel and obtain direction about how to conduct a cross examination, which she noticeably benefitted from as she was then able to ask her questions in the form of “Are you aware that…”.

(d) Best interests considerations

[117] The following is my assessment of the parents’ plan through the lens of the relevant best interest factors.

(i) Views and Preferences

CYFSA s. 74(3)(a), Federal Act s. 10(3)(e)

[118] Both the CYFSA and the Federal Act direct the court to consider the child’s views and preferences, giving due weight to their age and maturity, unless they cannot be ascertained.

[119] Article 12 of the United Nations Convention on the Rights of the Child gives children the right to express their views on issues that affect them in any court proceeding with same to be given due weight in accordance with the age and maturity of the child. A child’s capacity to express such views has been interpreted generously so as not to restrict these participation rights.

[120] The role of the OCL is of critical importance as a way for the court to obtain the independent views and preferences of the children. An order appointing OCL was made in this case on January 17, 2020, yet agent for OCL advised at trial that he cannot provide the children’s views and preferences to the court as there was no agreement amongst the parties that he could do so from counsel table.

[121] What I have to rely on then are statements from the children that were entered into evidence at trial through various witnesses. Parties agreed that all of said hearsay statements are admissible pursuant to one of the exceptions to the exclusionary rule against hearsay, as spontaneous utterances which express the children’s state of mind. But they disagree about which statements the court should rely on, the ones made to the workers, or the ones made to the parents. The following are some examples.

Child A

[122] The mother testified that child A told her he wants to come home and that he said, “Leave my bed at home so I can come home when I am 16”. The mother also provided video recordings of the children crying at the end of an access at the parents’ home as they did not want to leave.

[123] Between June 2021 to December 2022, child A would often cry when it was time to leave and request longer visits. At times (such as on November 3, 2021) he would say he wanted to stay home forever. During visits he would spontaneously say “I love you” to his parents. On July 9, 2021, he said “I miss you” to his dad, and that he wants to stay with his parents longer. He told his father, “You’re the best dad ever” on September 27 and October 1, 2021.

[124] On Feb. 26, 2024, child A said he wished he had more access time while with his mother.

Child B

[125] Child B is non-verbal but is able express preferences; for example, he will point repeatedly to a photo of his foster father in his Choice binder to signal that he wants to leave an access visit with his parents.

Child C

[126] On March 19, 2024, during a home visit, child C spontaneously told Society worker Ms. Metcalf that he wants to live with Ms. C and have sleepovers with his parents. Ms. C. told Ms. Metcalf on this same date that child C has been needing more reassurance from Ms. C and Mr. C as in when he says, “I love you” and they say “I love you” back, he keeps asking them to repeat their answer.

Child D

[127] On March 24, 2022, during an access drive, child D spontaneously told Society worker Ms. Burgess, that she doesn’t want to go to N-- and T--’s house (referring to the parents by their first names).

[128] On April 22, 2022, during an access drive, Society worker Ms. Burgess heard child D reassure child A, “it’s okay we only have to go to mommy N-- for a bit and then we can go back to our houses.”

[129] Child D experienced night terrors post access. Child D’s terrors tend to focus around her fears she will be taken away from her home by “mommy N--”. Sometimes, prior to visits, child D has needed extra reassurance that she will be returned to her caregivers’ home after the visit.

[130] In the Access section of this decision, I have summarized the children’s reactions to access with their parents. Child B is not able to verbalize his views and preferences but his emotional and behavioural response to seeing is parents is set out in this section. I further note that Dr. Ashbourne did not observe reluctance on the part of the children to leave their parents and return to their caregivers, which is consistent with the evidence of the Society workers.

[131] It is not a question of relying on one statement to the exclusion of another, it is a question of considering the children’s statements as a whole. And, when I consider them as a whole, I find it is not surprising that the two youngest children, child C and child D, who were respectively ages 3 and 1, when they were removed from their parents’ care five years ago, express being with their kin caregivers as being home. It is also not surprising that the eldest child, child A, who was 6 ½ when he was removed, is the one who feels conflicted. He is the one with whom the Society attempted reunification by first trying overnight visits. He is the one who was the most upset when the father did not attend for access. He is the one who has had the most placements since removal – 6. However, his statements to workers that he wanted to stay at home with his parents ended shortly after he moved to his current (and proposed permanent) home with Ms. AD and Mr. AD.

(ii) First Nations Identity

CYFSA s. 74(3)(b), Federal Act s. 10(3)(d)

[132] The mother’s evidence on this point was contradictory. When asked in cross examination if she considers her children to be Indigenous, she made the distinction that the father “is” Indigenous, but the children are “recognized as” Indigenous, adding “there’s a difference.” She also testified that she does not think the First Nation should be a party and when asked about the importance of the children’s connection to the First Nation, she answered “… what’s the connection? Like what do you mean? What do you mean by that? My children didn’t even know them before they were apprehended so when you’re saying that, what are you referring to?” But on the other hand, she testified that she would take the children to powwows, and engage with them in cultural practices like smudging.

[133] The father testified that he would like to pass his culture on to his children. The paternal family has been on Walpole Island for generations. Society workers have observed him trying to teach the children Ojibwe words during access visits.

[134] Child A and child D currently live with Ms. AD and Mr. AD, who are both Indigenous. Ms. AD is father’s first cousin and, like the father, is a member of Walpole Island First Nation. Mr. AD is a member of Aamjiwnaang First Nation. Both Aamjiwnaang and Walpole Island are Anishinaabe communities, part of the Confederacy of the Three Fires. Their language base and culture is similar. Ms. AD and Mr. AD live with the children in Aamjiwnaang First Nation, on what the Canadian government terms “reserve 45.”

[135] Ms. AD and Mr. AD ensure that the children remain connected to their Indigenous heritage and teach them about their culture. They attend ceremonies and powwows together with the children. They have enrolled both children in Ojibwe at their schools.

[136] Child C lives with Ms. C (the mother’s sister) and Mr. C. Neither of them are Indigenous. They both support child C’s connection to his Indigenous culture and heritage and believe that it is important. They do so by ensuring he has frequent contact (which they described as several times a week, including weekend overnights) with his siblings and Ms. AD and Mr. AD who live on reserve. They also support his contact with his paternal grandfather who is a member of Walpole Island First Nation.

[137] Child B, who is autistic, lives in a non-Indigenous foster home in the jurisdiction of Dnaagdawenmag Binnoojiiyag Child and Family Services (DBCFS) pursuant to a shared agreement between DBCFS and the Society. DBCFS is a multi-service Indigenous wellbeing agency. His foster parents have completed training on First Nations, Inuit and Metis Cultural Competency through DBCFS. They support child B in connecting with his Ojibwe culture through listening to music from Ojibwe artists, arts and crafts activities (such as making dreamcatchers and hand drums), smudging, reading children’s books about Ojibwe people and culture, as well as maintaining connection with his extended family. Child B is on the waiting list for a traditional healer. Walpole Island First Nation is supportive of child B’s foster placement as it was not possible for him to live on reserve given his need for highly specialized services.

(iii) Children’s Needs

CYFSA, s. 74(3)(i) and (ii); Federal Act, s. 10(3)(b)

[138] All four of the children are developmentally delayed and have special needs, in varying degrees. The parents have consistently denied or minimized the children’s special needs. The following are a few examples:

(1) The father testified that child A’s only issues are his speech needs work, and he needs counselling, that “He’s a smart boy”;

(2) The mother, in her testimony, repeatedly referred to an access visit where child A was able to add up $20 bills which she said demonstrated that he is smart;

(3) On July 19, 2022, the father denied to Society worker Ms. Jolliffe that any of his children had delays other than child B. When Ms. Jolliffe clarified that child A has been diagnosed with Global Developmental Delay, the father called her a liar;

(4) On July 19, 2023, the mother expressed to Ms. Jolliffe the hope that one day child A would “grow out of” his special needs;

(5) The parents have repeatedly stated that child B did not exhibit any acting out behaviours while he was at home. However, this was contradicted by the mother’s evidence that the family ate all their meals sitting on a tarp rather than at the table because child B threw his food around; and that the reason for many of her hospital attendances were that child B throws objects and she was worried he may have injured one of his siblings;

(6) On April 5, 2022, after a supervised visit during which child B was very dysregulated, hitting, slapping, throwing objects such as chairs and toys tipping over things, both parents told the Society worker Ms. Jolliffe that they were not worried because they believed he would “grow out of it”;

(7) The parents said child C never stuttered at home, and that maybe his stuttering is because he was removed from their care.

[139] The parents have not been consistently supportive of professional treatment recommendations for the children. The following are a few examples:

(1) On November 22, 2019, Society worker Ms. Jolliffe met with the parents to explain that the children’s pediatrician Dr. Lacroix recommended child B be given Clonidine to help with sleep. They both escalated, saying child B never had trouble sleeping in their home and they did not consent. The mother also said she did not believe in immunizations, although later she said she did. All of the children were behind in their immunizations when they were removed;

(2) Dental surgery was scheduled for child B in November 2020. Parents initially refused to provide consent. They believed it could be completed without sedation, although sedation had been recommended by three separate dentists;

(3) On August 18, 2021, Society worker Ms. Jolliffe told parents child B saw pediatrician Dr. Lacroix for ongoing concerns regarding lack of sleep, fecal smearing, biting and spitting and that the doctor was recommending the child go back on Clonidine and have an ADHD assessment. Both parents became furious and yelling, saying no to medication. The worker attempted to set up a call between the parents and the doctor, but the doctor only agreed to communicate with the parents through the Society. The worker asked the parents for questions for her to pass on to the doctor, but they did not provide any;

[140] The mother has demonstrated a concerning lack of judgement regarding child D’s needs. On January 14, 2021, the mother told the Society she found an adoptive home for child D, as she was concerned the child was not safe with Ms. AD and Mr. AD. It appeared she was reaching out to strangers regarding adopting her child. She described them as a couple who could not have children, who had a bedroom set up for child D, and who could take child D immediately.

[141] Given the parents’ lack of insight and the children’s complex issues, as set out below, it is clear the parents cannot meet the children’s needs.

Child A

[142] He is 11 years old. He presents much younger than his chronological age. He has a number of diagnoses including Tourette’s Syndrome, Attention Deficit/Hyperactivity Disorder (ADHD) and an intellectual disability. He is under the care of psychiatrist Dr. Hussey. He has been prescribed Guanfacine HCL 2 mg to help with ADHD and tics. He has also been prescribed with Trazodone HCL 7.5 mg as needed, primarily at bedtime to help him sleep, particularly when his tics are heightened. He particularly requires it if he is agitated following a visit with the parents, as he is unable to control his tics and it becomes difficult for him to sleep.

[143] When he came into care and attended school for the first time, the Lambton Kent District School Board, in an October 2019 progress report, noted his improvement: He was still using diapers when he started. But by October, he was “doing well and is now coming to school for the whole day… consistent everyday routines and structure at school and home has helped [child A] progress immensely in his social and academic development in a short period of time. He is fully potty trained and is using sign language gestural prompts and one-word sentences to communicate with adults and peers. He is also on the recess yard with his peers and plays with them.”

[144] He needs structure and routine, with specific times to complete daily tasks. He often requires extensive reminders. He still requires help washing his hair. His caregivers often have to remind him to wash his neck, feet and behind his ears. He is unable to properly brush his teeth and often requires assistance and direction. He tries to clean, cut and maintain his own nails, but he struggles and needs assistance with that as well.

[145] He struggles in school, but enjoys math and science and loves learning the Ojibwe word of the day at school. He has the assistance of a one-on-one educational funded through Jordan’s Principle. He has had extensive services since entering the care of Ms. AD and Mr. AD: They coordinated back-to-back blocks of speech therapy through school, and they also arranged speech therapy outside of school. He is on a waiting list for occupational therapy. He has a great deal of anxiety, and is attending counselling. When learning about body changes during puberty, he spontaneously said he would kill himself if he ever grew hair around his genitals. His caregivers have had to talk him through his anxieties regularly and provide education where appropriate.

[146] He has a severe fear of bugs and insects. In 2023, he spent most of the summer refusing to go outside due to this fear. His caregivers spent a great deal of time teaching him about insects and not to be afraid of them. His caregivers spent time with outside gardening and digging, and looking and learning about insects. Ms. AD connected this to his love of science to ease his anxiety.

[147] He attended two weeks of STEM Camp through the Aamjiwnaang First Nation as well as HOOPS Basketball Camp. He is currently attending a Kids Club on a weekly basis through Aamjiwnaang First Nation. He struggles with changes in routine, and becomes easily upset if Kids Club is cancelled for the week. He is receiving speech-language services through Pathways and occupational therapy through the School Based Rehab Program and has been referred for an audiological assessment. He has been accepted in the ALP program which is a special needs class he will begin attending in September 2024.

[148] A Psychoeducational Assessment Report dated September 22, 2023 was completed by psychologist Jennifer Cook, who was cross examined on it at trial. The following is a summary:

(1) Child A actively tries to suppress his tics during uncomfortable situations which is consequently often exhausting for him. Once he returns home after his school day, Ms. AD sees an “explosion” of tics that include body twitches, coughing, head drops, blinking, noises, and throat clearing. He was previously diagnosed with Global Developmental Delay, but no report was available. On all the testing, cognitive, academic and adaptive, he was in the “extremely low” range, mostly around or below the 1st percentile.

(2) Ms. AD described the following to Ms. Cook: He almost always shakes his head yes or no in response to a simple question and says hello and goodbye to others. He rarely or never speaks clearly and distinctly. His caregivers reported significant difficulties in the following: he has difficulty expressing his emotions, he has a tendency to shut down when frustrated and he often become fixated on certain things and struggles to self-regulate after becoming angry. His teacher raised concerns that he is several years below his current grade level.

(3) Both at home and at school he displays some aggressive behaviours and can become argumentative. He also shows signs of anxiety and sadness as he is easily stressed, worries about a range of things, and experiences feelings of sadness and irritability.

(4) Ms. Cook made the following recommendations: He will require significant academic accommodations and modifications to his program and as much individual support as possible. It is essential that he use assistive computer technology such as voice- to-text and text-to-voice software, so that he has better access to his curriculum. When he reaches the age of 18, an application for Developmental Services Ontario is recommended, as they offer supports with independent living and funding.

[149] He has been progressing well since he entered the home of kin caregivers Ms. AD and Mr. AD; for example, in his speech, and in his ability to show affection. He was a picky eater initially but is now able to try new foods. He is able to keep his tics under better control. His sleep is better. He can now be in nature and touch bugs. While in foster care, he reportedly engaged in self- injurious behaviours; however, these issues have not been observed since he moved. His teachers observed notable improvements since he came to live with Ms. AD and Mr. AD.

[150] He is presently a happy and helpful child. He is talkative and bubbly and likes to follow Ms. AD around the house and help whenever he can, talking the whole time. He is silly and likes to engage in conversation and entertain others. He gets along well with his siblings and will often play with his little sister, child D. He enjoys going outside with his friends in the neighbourhood. Like child D, he is very affectionate and shows lots of physical affection. He likes to hug and cuddle.

Child B

[151] He is 9 years old. He is currently diagnosed with Severe ADHD, Autism Spectrum Disorder Level 3 with a CARS (Childhood Autism Rating Scale) of 39 and an intellectual disability scoring below the first percentile in an assessment completed by Dr. Sobel from Kinark Child and Family Services in 2022. He is primarily non-verbal. He takes Risperidone daily to help regulate his moods and aggressive behaviours and Clonidine and Melatonin daily to help with his significant sleep disturbances. When child B is around overly heightened individuals, he too becomes overly heightened and has a lot of difficulty returning to his baseline mood and behaviours.

[152] Every daily activity will take 1 ½ to 2 times longer to complete with him than with the average child, and even longer if he is in a dysregulated state; for example, it can sometimes take 30 minutes to dress if he doesn’t want to get dressed. Feeding him can involve preparing multiple meals and snacks as his food preferences change sometimes daily. Brushing and flossing can take several attempts.

[153] He goes to a specialized program at the Exceptional Learning Centre (eXL) for school and Applied Behaviour Analysis (ABA) therapy. Once he arrives, a team of three therapists escort child B into the centre, and to his classroom to prevent him from running. There is a ratio of 4 students to 1 teacher. He also has a dedicated educational assistant assigned to him. Even with this ratio, he often spends most of his day in a specialized classroom one-on-one with an ABA therapist.

[154] When he is dysregulated, the classroom is vacated due to his fecal smearing, urinating, screaming, hitting, throwing objects, property destruction. The classroom has had to be vacated several times a day in a week following access with his parents. This happened so much between December 2022 and Sept 2023 that they changed his program to be almost entirely one-on-one. This costs $30,000 more per year than his current tuition. The goal is to gradually reintegrate him into the classroom. An attempt was made to enroll him in a mainstream public school in February 2021 in the morning and Sunshine learning centre for ABA in the afternoon, but his needs were too high.

[155] He has an immense fear of hospitals and other medical offices. Dental work and cardiac scans must be done under sedation at the Hospital for Sick Children. He gets ill more often than the average child, perhaps due to his desire to put objects in his mouth.

[156] Currently his caregivers have a local Urgent Response Service through Resources for Exceptional Children in place to address the self-harm and other aggressive behaviours that follow access visits with his parents. It started in October 2023 after a particularly challenging period of post-access dysregulation. It includes sessions with a speech language pathologist, a behavioural analyst and mental health support.

[157] His foster father attends weekly parent training with a speech language pathologist on communicating with child B when he’s in a heightened state. His foster father’s partner is an elementary school teacher with special education qualifications. Since July 2022 they have been using special in-home respite service approximately 25 days a year.

Child C

[158] He is 8 years old. He is behind his peers at school and is on an individual educational plan. He attends tutoring twice per week with Sylvan Learning Centre. It is expected that he will need tutoring his entire school career. He has been receiving services from Pathways since 2019 for speech and occupational therapy. He’s on a waitlist for audiological testing.

[159] He experienced substantial night terrors initially, but they are now much less, once a month, and more like a nightmare. He has been attending trauma therapy for years. He currently attends on alternate Mondays and has a great relationship with his counselor. When he arrived at the home of Ms. C and Mr. C, he was obsessed with police, fire trucks, ambulances. Ms. C testified that it then “finally hit him his brother passed away”; that he woke up one night crying, and said my brother is dead. He talks about death non-stop. The school called Ms. C to say he was talking about death, that he saw his little brother with blood all around him. I note that there was no blood at the scene of his brother’s death. He wants to know, does he have a long time to live?

[160] Over the first week he was in their care, Ms. C and Mr. C got him into a routine of breakfast, lunch, and supper and they describe him now as a child who embraces routines, who’s a very good eater and who enjoys helping them cook. He is still behind his peers, but his gains have been massive. He is very routine oriented. If things go out of routine, it throws him off. He has to say the same thing to Ms. C before getting on the school bus each day. He is a very happy little boy. He is social and loves interacting with people. He still struggles with situational stuttering. He loves, music, outdoor activities. He has a night-time routine: bath, snack, watch TV, story time. He requires a soothing owl light to sleep. He now typically sleeps well.

[161] In March 2023, he noticed he is behind his peers which made him upset. Within a year, he can now recognize letters and sounds. He is very eager to read. He can only be told about one task at a time. He requires a lot of one-on-one and reminders. Overall, he loves going to school. He has participated in the past in soccer, swimming and piano, but has landed on Tae Kwan Doe as his passion. He attends several times a week. He is very motivated and gaining confidence in himself with his success in this activity.

Child D

[162] She is 6 years old. She was placed with Ms. AD and Mr. AD immediately following her removal on August 2, 2019. She was 1 year old at the time. She settled quickly with Ms. AD and Mr. AD. Within a month she was attempting to walk and was learning new words. She began attending Little Friends Daycare on August 27, 2019. Ms. AD and Mr. AD ensured she was caught up on all the immunizations she failed to receive in her parents’ care.

[163] She is receiving speech language therapy and occupational therapy through both Aamjiwnaang and Pathways Children’s Centre. She has required extensive counselling services, first with a trauma therapist at Life Seasons and then through a play/art therapist at her school: Aamjiwnaang Kinoomaage Gamig. She is attending regularly with pediatrician Dr. Lacroix. She attended summer camp through Aamjiwnaang First Nation and has been in lacrosse for two years.

[164] She has made significant progress in the care of Ms. AD and Mr. AD. She can dress herself (with occasional requests for help). She needs some help with washing her hair and ensuring her teeth are thoroughly brushed and flossed. She is toilet trained but sometimes needs help cleaning herself after a bowel movement. She is an extremely happy, playful, funny and sassy little girl. On an average day she is very kind, affectionate and gentle. She loves helping around the house and takes pride in any responsibilities she is given. She is physically affectionate and enjoys hugs and cuddling. She likes gardening and watering the plants. She is a storyteller and loves having conversations about her day and telling silly stories.

(iv) Relationship with Parents

CYFSA, s. 74(vi); Federal Act, s. 10(3)(c)

[165] The evidence of the workers, both those called by the Society and those called by the mother, contains many positives regarding the parents’ relationship with their children. The following are some examples.

Positive interactions

Ms. Jolliffe

[166] The father loves all four children, and they love him. They are always happy to see him. They squeal with delight when they see their father and run to him for hugs and kisses. They go to him for comfort during the visits and he’s capable for the most part of comforting them. His way of parenting has a calming effect on them. They compete for his attention. They love doing activities and interacting with him. When he’s there, visits go better. He has a predictable and consistent routine. He helps them with their homework, and tries to teach them Ojibwe words.

[167] The parents recognize many of the likes and dislikes of the children; for example, the mother will bring child D breakfast sandwiches because child D enjoys them; the mother will ensure child A’s food is not touching on his plate as he does not like that. The mother provided information regarding child A’s food preferences to a previous foster parent.

[168] The father shares his hobbies and passions with both child A and C such as a variety of video games and Pokémon cards. He attempts to teach his children some words in Ojibwe or things he learned about nature. The father has a goodbye routine with child D where he races the vehicle and waves. The parents bring toys for child B for the visits. They both try to help their children with schoolwork, especially child A. They show interest in their schooling and in their day to day activities.

[169] Over the years, despite celebrations not falling exactly on access dates, they prepared and decorated the access space or their home, so the celebrations were not missed; for example, pumpkin carving around Halloween.

Ms. Burgess

[170] Child A loves to sit on the couch with his dad to play games, cuddle, seek attention and mimic voices. The parents often tell child A they are proud of him when he accomplishes a task and praise him when he is patient. Child A frequently expresses a desire to talk, see and play with his dad. The mother comes prepared with meals, snacks and games. She engages in play with them including playing in the water, gym, trampoline park. Between September 2021 and spring 2023, it was rare for the father to miss visits. Father and child D have very good visits with lots of focused attention between father and daughter. On January 13, 2022, child D said, “my dad’s awesome.” During virtual visits, for example November 12, 2021, she told her mom she loves her, and her mom said I love you as well.

Ms. McKenzie

[171] The visits begin and end with the parents offering hugs to the children and saying I love you. The mother does enjoyable activities with the children such as doing science experiments, playing in an inflatable pool, taking child A to Native Friendship Centre’s Halloween party (where he said he had a very good time), decorating the room for birthday celebrations, bringing smudging materials, and going to the Lambton mall to ride on the motorized toy animals.

[172] The parents engage in teaching the children. The father was patient and encouraging as he taught child A to tie his shoes. When child A was fearful of a wasp, the father was gentle and patient, explaining the benefit of bees and practicing remaining still. The mother showed child C how to play gently with pretend swords. When the children saw a child of shorter stature at McDonalds, the father spoke to them quietly about manners and encouraged them to play with the child. The parents complimented and cheered child C when he performed karaoke for them, telling him he was talented and funny. The mother praised child A for using his words when another child was playing too roughly with him. Child A seems to enjoy his access very much.

Ms. Big Canoe

[173] She supervised weekly visits between the parents and child A beginning in September 2023. The mother did very well when only one child was attending, and she could focus. She brought meals, snacks, activities. She often praised the child and was encouraging when working on math problems. The mother arrives on time and communicates in advance if she is delayed. The father only attended two full visits and one partial visit (attending 10 minutes of the 4 hour visit).

Mr. Martyniuk

[174] He supervised one visit on December 29, 2021, with mother and child A and child C. The children were excited to see their mother, ran to her and gave her a big hug. Her interactions with them were affectionate and appropriate. She intervened in a caring manner when she needed to separate them. She provided a nice holiday lunch for them. They were upset to leave the visit, especially child A who started to get teary. She was able to support them with hugs and kisses. She supported their placements.

Ms. Tillapaugh

[175] She supervised three access visits. The father was not present for any of them. The April 5, 2023 visit was in the parents’ home with child A and child C. The mother provided healthy snacks and dinner. The boys showed the worker their rooms and mother showed where they would sleep. The mother hugged and kissed them and said I love you and both said I love you to her. On January 2, 2024, she supervised a visit with the mother and child A at the family visiting centre. The mother tried to assist him with the times table. They practiced adding with money. Child A asked when he will see her next. He also said he hoped he would see his father (who was not present). They exchanged hugs and I love you’s. He asked when he is coming home. Mother said she is working on this, but can make no promises. On January 31, 2024, the mother played math games with child A using money. She brought food and toys for him.

Ms. Lynch, DBCFS worker

[176] She supervised one visit with the parents and child B on March 28, 2024. The father interacted quite well with the child. The mother interacted quite well at times, but at other times was standing to the side while the father interacted with the child.

Mr. Atwood, DBCFS worker

[177] He supervised four visits with mother and child B. The father was present for one of those visits. The father was very observant of child B and his needs. The father would join in different play activities with him, would joke around with him and use hand signals. There were times when the mother was not interacting as much one-on-one. The mother came to Mr. Atwood for assistance when child B had a toileting issue. On occasion, the mother motioned to Mr. Atwood that she was not able to interpret the child’s signals and the worker assisted her with interpreting them.

Concerning interactions

[178] The mother’s anxiety interferes with her relationship with the children. The most concerning examples are her fixation on examining child D’s vagina to the distress of child D (as set out earlier), but there are additional examples as follows:

(1) On July 21, 2021, the mother questioned child C during access about two small bruises on his arm. The worker intervened to stop the questioning. This frustrated the mother who then stopped engaging with the children during the visit. The father was not there. The worker played games with the children for the last 45 minutes of the visit while the mother watched;

(2) On January 21, 2022, while on a walk during a supervised visit, the mother became concerned that a small portion of child C’s ear was exposed. She put up his hood, then leaned over to pull it tighter. He tried to pull away. She didn’t recognize this cue and tried to put a different toque on him. The child began to cry. The worker told her to leave him alone as he is not cold or bothered by his ear showing. The mother responded that, “a mother knows when something is wrong”. It was the father who eventually calmed the child down so the walk could continue;

(3) On April 15, 2023, during a supervised visit with child B in a restaurant, the mother became escalated and left. The worker found her trying to get change from passersby to pay for some of her lunch. When the worker asked why, she said she wanted change because she believed the waitress wanted to steal from her. She also complained about another parent at the indoor playground they attended earlier whom she accused of causing an incident and said that she was going to “kick his ass,” and that she as a 6th degree Black Belt and could hurt him.

[179] The father’s lack of attendance has negatively impacted his relationship with the children, in particular child A. On April 27, 2022, on a supervised visit at the Friendship Centre in Sarnia, when the mother and child A returned to the worker’s car to go back home, the father was not with them. Child A began to panic and expressed worry about where his father went. At the home, child A proceeded to search for his father, becoming more and more upset when he could not find him. When the worker went to check on the child, she found the child hiding in his closet sobbing. The father eventually returned to the home 30 minutes later.

[180] When the worker told the father he had scared the child by not telling him he would not join the child on the ride home, the father said he was a man and could take care of himself. Child A overheard this comment and it upset him further. The father eventually apologized to the child. The next day, child A’s kin caregiver at the time (not his current caregiver) noted child A was agitated upon returning home and his tics were more apparent. It took breathing exercises to calm him down, and that night the child was talking and crying a lot in his sleep.

[181] From July 24, 2023 to May 10, 2024, Ms. McKenzie supervised visits twice weekly (about 85 visits). The father attended the full duration of a visit only four times. When he began missing a lot of visits, child A started choosing not to attend; for example, on August 9, 2023, child A cancelled his visit because he was worried his father would not attend.

[182] The father missed around 100 visits from October 25, 2022 to the time of trial (a period of about 1 ½ years). He gave the following reasons for missing visits:

I felt defeated. Lost hope. Times I felt I was making progress and then my wife’s actions would take me 3 to 4 steps back.

I’ve sat there and dwelled and became quite sad and I didn’t want to bring that near my kids so simply stopped.

It hurts their feelings. It’s terrible. I can’t take back the past. I’m very sorry that I missed them. I hurt myself more than it hurt them.

(v) Risk

CYFSA, s. 74(3)(x) and (xi); Federal Act, s. 10(2)

[183] The parents have not resolved any of the risk factors that form the basis of my finding that the children continue to be in need of protection.

[184] The mother’s plan to address her anxiety is that she will continue to be involved with her counselor Mr. Ethridge, her psychiatrist Dr. Komer and her family doctor Dr. Bhargava. She will take her leftover anxiety mediation on an as needed basis. However, I note that the mother was already involved with these professionals prior to the removal. She testified that she now does not experience anxiety and does not need medication on an ongoing basis, but the only difference in her circumstances is that the children are no longer in her care.

[185] The mother has not demonstrated insight into her past vaginal examinations of child D and her allegations that Mr. AD sexually abused the child. She simply denies that she ever examined the child or that she ever made such allegations. She expects that if the children are returned to her care, Ms. AD and Mr. AD will come to her home for family dinners, and she expressed the hope that she and the father will be invited to their home.

[186] When cross-examined at trial about her accusations against Mr. AD and maternal grandfather sexually abusing child D (and possibly child A) she said, “I would never point fingers at somebody if I don’t know. It’s just common sense.”

[187] The following is an excerpt from her cross-examination by Society counsel:

Q: … you have never called [Mr. AD] a pedophile. A: No.

[188] However, the mother also said, “I want to apologize. I know [they] would never harm my daughter. I said inappropriate things. I hope they will accept my apology, so we can move forward as a family. I was just panicking and not thinking logically.”

[189] While the father acknowledged that the mother has made allegations against Mr. AD, and said that “it’s obvious, everyone can see that,” he said he himself never said, or even thought, that about Mr. AD. He said, “I never thought that. I know him to be a great guy.”

[190] The father in his testimony told a confusing story about a time during an access visit where he was tying child A’s shoelace, and child A looked at him and said, “Don’t touch my penis.” The father repeated that this was “really weird” because child A “knows his shoelace is not his penis.” The father said he called paternal grandfather and asked, “what if…?” and paternal grandfather said the father is thinking what the mother is thinking. The father claims that this vague “what if…?” is the closest he has come to accusing Mr. AD. This is not supported by the evidence.

[191] Even during the trial, the mother continued to express fears about the children which are sexual in nature. She filed an audio recording in support of her assertion that child A said he “ate cock and balls” during a zoom visit. She had reported this allegation 10 times on April 3, 2020, once on April 6 and April 14; and twice on April 15. None of the other parties, counsel or the court could hear the child saying those words on the recording.

[192] The father’s evidence was contradictory in that he said both that he would protect the children against the risk posed by the mother and that the mother posed no risk. The following are some examples:

(1) On June 19, 2020, the father denied to the Society worker there had been any concerns during the visit four days earlier when the mother examined child D’s vagina. He did not recognize that the incident had any negative impact on the child;

(2) n April 21, 2021, at the beginning of a home visit, the father was not willing to discuss worries or concerns. He told the Society worker that there are “No concerns and there never have been”;

(3) On August 13, 2021, during a phone call with the Society worker, the father was angry and kept saying everything was “BS, there are no concerns and there never have been,” and that the kin caregivers are “sick” and trying to ruin the family and make up lies.

[193] The parents did not dispute there is a continued need of protection based on the mother’s excessive hospital visits prior to removal. However, there was another unnecessary hospital visit post removal during overnight access:

(1) On February 25, 2021, the morning of an overnight visit, the mother took child A to the hospital’s emergency department, despite the fact that a verbal safety plan was made on January 7, 2021 (on a zoom call, which mother claims she did not hear) not to go to the hospital but to make an appointment with the child’s pediatrician;

(2) On March 2, 2021, mother told Society supervisor Ms. Price she was watching child A sleep during the night of February 24, 2021, and could see he was congested, so she woke him up and took him to the hospital;

(3) Ongoing Society worker Ms. Jolliffe followed up with the parents at their home on March 3, 2021. Both parents could articulate the safety plan but did not follow it. The father supported the mother’s decision to take child A to the hospital.

[194] On March 4, 2021 the mother called Society Director Ms. Thrasher upset that the Society re-instated supervision. She told Ms. Thrasher she knew the safety plan stated she was not to take him to the hospital, but she felt she had no other choice. She said if she had kept the child home from school her ongoing worker would call the police on her.

[195] The child was diagnosed as having an infection but did not require treatment and was able attend school the same day (and this during a time when extra caution was being exercised by schools due to pandemic concerns).

[196] At trial, the father testified both that he said, “Please don’t take him to the ER, promise me you’re not going to do it,” and that if a child expresses difficulty breathing, a parent should take that seriously. The mother insisted at trial she was right to take the child to hospital.

[197] Even when Society counsel cross examined the mother about hospital attendances prior to removal she insisted they were necessary. A hospital consultation note dated March 17, 2016, when the mother took child C to the hospital when he was just 3 days old, includes the following:

According to the mother, child C “had two episodes where he appeared to turn blue for three to four minutes. No fever, feeding well, normal bowel movement. Maternal grandmother dropped him onto the floor, and he landed on his head just prior to their leaving hospital. Two older siblings brought to ER on a regular basis, common theme is some kind of head trauma…”

“… mother comes up with elaborate and very implausible stories causing head trauma. These have included having a bus driver close the door on a child’s head while in a baby seat or stroller. This includes having overhead renovation work with a pile of bricks landing on the baby seat or carriage with the baby in it.”

[198] When this note was put to the mother in cross-examination, she testified that she never said a bus driver closed the door on her child’s head. The following confusing exchange between her and Society counsel is a typical example of the mother’s testimony:

A: … what I had stated was that the bus doors closed on my child’s stroller and his head was near the door. Q: And you took him to the emergency room for that.

A: Correct.

Q: The door did not close on his head, but you took him the emergency room.

A: The doors closed like this into the stroller which his head was near, so I wanted to make sure everything was okay with my child.

Q: But nothing hit his head.

A: The doors shut onto his stroller, so everything like you know, it’s obviously you’re gonna get your child looked at, right? And at that time, my anxiety was really bad. I didn’t have help for it and you’re dwelling in the past.

[199] The exchange goes on at some length, but the gist is similar to the other hospital attendances: That the hospital attendance was the result of her anxiety and that she was justified in taking the child to the hospital, “as any caring mother would do,” and it’s “just common sense.”

[200] Other concerns also remain. The state of the home pre-removal was described by Ms. C as “extremely dirty” such that when she was walking in it the rare time she was permitted to enter, her “socks were covered with filth.” And the evidence of Society worker Ms. Burgess is that this has continued post-removal:

(1) Everything was wrapped in plastic or put in garbage bags and Tupperware bins. All food and cutlery were in totes or wrapped in plastic unless the food was canned. There was extensive clutter including clothes, toys, belongings. At times, she observed extensive ants, and there was a bed bug infestation in around February 2022. In March/April 2023 the basement was covered with clothes and many beer bottles and cans: approximately 10-15 large plastic bags full of them. There were 50 large empty laundry soap containers on the floor;

(2) On February 21, 2022, the home was very dirty and smelled of garbage and marijuana. The mother told Ms. Burgess she had cleaned all weekend and was worried about the home being infested with bed bugs;

(3) On February 28, 2023, Ms. Burgess observed the home to be very dirty and messy and she needed to remove food and garbage from a chair to sit down;

(4) On March 17, 2023, when Ms. Burgess arrived at the parents’ home at 9 a.m. with child A and child C, the parents were still sleeping. The home was dirty and smelled of weed and old food, with garbage all over the outside and water bottles strewn across the lawn. The mother cleaned off some of the couch so Ms. Burgess could sit. There was food on the floor in the kitchen and sticky stuff on the walls and couches. During the first two hours of the visit, the mother was trying to clean up the garbage and the food on the floor and to pick up piles of clothes and toys. Ms. Burgess strongly recommended to the parents that they clean the home as there was no room for the children to play;

[201] The parents propose that maternal grandmother can move into their home as a protective factor, yet maternal grandmother has repeatedly told Society worker Ms. Jolliffe that there are no protection concerns with the mother historical or present: February 12, 2020; June 24, 2020; March 2, 2021; March 29, 2021; May 6, 2021; and June 16, 2023.

[202] Maternal grandmother agreed to supervise the mother’s access and then, on two separate occasions, left the mother alone with the children:

(1) On April 16, 2021, Society worker Ms. Jolliffe attended child A’s access visit when the maternal grandmother was supposed to be fully supervising and found the mother alone with the child. The maternal grandmother arrived one hour later;

(2) On June 11, 2021, the mother called Ms. Jolliffe to advise that an aunt would supervise that day’s visit instead of maternal grandmother. Ms. Jolliffe advised her that this aunt had not been approved to supervise. When Ms. Jolliffe attended the home, the parents, child C and the aunt were present. The maternal grandmother arrived an hour later.

[203] Maternal grandmother testified that she spoke to the mother every day (with maybe one or two exceptions in a month) and that she saw the mother and the children several times a week. But when it was put to her that the society had 479 pages of medical notes from the children’s combined hospital attendances, she said she was not aware of the extent of the hospital attendances.

[204] Maternal grandmother testified that there was no concern about the mother other than she took the children to hospital too many times. But she also testified that the mother was justified in these hospital visits.

[205] Maternal grandmother testified that the children should have been in school, but also testified that the mother had a right to homeschool them, and that the drop in centres they attended were the same as kindergarten.

[206] Maternal grandmother denied that the mother checked the children frequently for injuries, but when challenged she said the mother was justified in doing so and that “any parent would, if her children were harmed like [child D].”

[207] There were no other supports in the parents’ plan other than Mr. Reid, who can only provide limited assistance. And the mother has made many complaints about extended family members who provided support in the past, including maternal grandmother. The following are some examples:

(1) Maternal great grandparents are too old and medially frail, and the children should not be left alone with them: August 26, 2019; September 11 and 13, 2019; June 11, 2020;

(2) Maternal grandfather abuses alcohol and may sexually molest child D: November 19 and 22, 2019; January 10, 2020; February 5, 2020; March 16, 2020; June 1 and 29, 2020;

(3) Maternal grandmother lives in a bad neighbourhood, has inappropriate people in her home and the children should not be left alone with her: September 13, 2019; November 4, 2019; March 4, 2021; January 29, 2020.

(vi) Continuity and Stability

CYFSA, s. 74(vii); Federal Act, s. 10(3)(b)

[208] Since the removal on August 2, 2019, the children have been in the following placements:

Child A

August 2 to 5, 2019 Foster home #1

August 5 to 14, 2019 Kin caregivers Ms. C and Mr. C

August 14 to Oct. 13, 2020 Foster home #2

Oct. 13, 2020 to Oct. 11, 2022 Kin caregivers (not parties, not participating)

Oct. 11, 2022 to May 23, 2023 Foster home #3

May 23, 2023 to present Foster home #4 (Ms. AD and Mr. AD)

Child A is in his sixth placement since being removed from his parents care at age 6 ½ . His current placement is the most stable one he has had since his removal. He has been there for over one year. He lives with his little sister, child D. Ms. AD is the father’s first cousin. She and Mr. AD are Indigenous. They are committed to him long term.

Child B

August 2 to 5, 2019 Foster home #1

August 5 to 14, 2019 Kin caregivers Ms. C and Mr. C August 14, 2019 to June 25, 2020 Foster home #2

June 25, 2020 to present Foster home #3

Child B has been in four placements since being removed from his parents’ care. He has been in his current placement, a specialized foster home, for over four years. His foster parents are committed to him long term.

Child C

August 2 to 5, 2019 Foster home #1

August 5 to 14, 2019 Kin caregivers Ms. C and Mr. C

August 14 to October 29, 2019 Kin caregivers maternal grandfather and partner

(temporary placement as Ms. C and Mr. C were in the process of moving)

October 29, 2019 to present Kin caregivers Ms. C and Mr. C

Child C has been in three placements since being removed from his parents’ care. He has been with Ms. C (the mother’s sister) and Mr. C for over 4 ½ years. They are committed to him as a permanent placement.

Child D

August 2, 2019 to present Kin caregivers Ms. AD and Mr. AD

Child D was a year old when she was removed from her parents’ care. She has been in her current placement for five years. They have been committed from the beginning to caring for her long term.

[209] It would be hugely disruptive for these children to be moved from the only experience with stability they have had in their young lives.

(e) Society’s Plan

[210] The following is a summary of the Society’s plan for permanent placements for the four children as set out in the Plans of Care filed with the court, and described in the evidence.

Child A and Child D

[211] The Society’s plan is that they will remain with Ms. AD and Mr. AD: Child A pursuant to an extended care order and child D pursuant to a deemed custody order.

[212] Ms. AD has been kin caregiver to child D since August 2, 2019, and foster mother to child A since May 14, 2023.

[213] Ms. AD is a qualified caregiver. She worked as a personal support worker in a long term care home for 7 years and then as an early childhood education assistant at the Binoojiinyag Kino Maagewgamgoons Early Learning Centre at the Aamjiwnaang First Nation where she ran the before and after school program from May 2021 to 2023.

[214] In 2023, Ms. AD changed departments within the Nation and began working nights as security so she would have greater availability during the day to care for the children and attend their numerous service provider appointments. Both she and Mr. AD are Indigenous. They ensure that the children remain connected to their Indigenous heritage as described earlier in this decision. They are also foster parents to another child.

[215] They love child A and child D as if they were their biological children. While child D understands that Ms. AD and Mr. AD are not her biological parents, she chooses to call them “mama” and “dad.” She calls her parents “mommy N--” and “daddy T--.”

Child B

[216] The Society’s plan is that child B will remain in his current foster home pursuant to an extended care order.

[217] Child B’s current foster father has been his primary caregiver since child B was placed in his home on June 25, 2020, four years ago. Also in the home, is the foster father’s partner and their two other children, for whom they are finalizing adoptions.

[218] In July 2022, child B’s foster father left his employment to care for child B full time. Prior to that he had worked 15 years in the social service sector including 11 years as counsellor and case manager with the YMCA working primarily with youth, including those with various disabilities and those in foster care who had experienced significant trauma. His university education is primarily in psychology and social work.

[219] From June 2020 to July 2022, he tried to work full time and care for child B, but as child B’s behaviour worsened and the duration of his post access struggle lengthened, it was impossible for him to continue with employment outside the home.

[220] He attends all of child B’s school/ABA meetings, pediatrician and specialist appointments, plan of care meetings involving Society and Walpole Island First Nation. He also supports child B in connecting with his Ojibwe culture as described earlier in this decision.

[221] Child B shows a strong attachment to his foster father, by hugging him, pulling him by the hand, seeking comfort in being close to him. During worker visits to the foster home, child B consistently sought out the foster father’s support throughout the visit. Child B’s foster parents are committed to him remaining with them permanently. Child B’s foster father testified that they view child B no differently than the two boys whose adoption is being finalized. Those boys view child B as their brother, and the foster parents view child B as their son.

Child C

[222] The Society’s plan is that child C will remain with Ms. C and Mr. C pursuant to a deemed custody order.

[223] Ms. C and Mr. C have no other children in their home. They are devoted to child C, and their lives have revolved around him since he has been in their care (4 ½ years). He is fully a part of both their extended families whom they see frequently. They have an excellent relationship with Ms. AD and Mr. AD and believe it is important for child C to be connected to his siblings. Both sets of caregivers ensure the children see each other several times a week including weekend overnights.

[224] Ms. C appears to be the only family member whom the mother has not maligned. The mother and father have always expressed gratitude for what they call the wonderful care she and Mr. C have given to child C. Ms. C confirmed with the court that she is willing to be the contact person for the parents with respect to arranging access in the future. This is crucial help, given that the parents have refused to communicate with various Society workers and given that Ms. AD and Mr. AD do not wish to communicate directly with the parents given the barrage of sexual assault allegations the mother has made against one or both of them.

[225] I find the Society’s plans for the children are in their best interests.

(f) Access

[226] Section 104(1) of the CYFSA provides that the court may make an order for access in the child’s best interests. And s. 105(6) sets out two additional factors to be considered when making an access order for a child in extended society care. Since no evidence was provided that adoption was being considered for child A or child B, the only additional factor relevant here is “whether the relationship between the person and the child is beneficial and meaningful to the child”.

[227] Section 17 of the Federal Act augments the test in the CYFSA emphasizing that, to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each member of his or her family are to be promoted.

[228] It was not disputed, and I find, that it would be in the best interests of child A, child C and child D to have frequent contact with each other, and that their caregivers have been regularly arranging same.

[229] It was also not disputed, and I find, that it would be in the best interests of child A, child C and child D to have access with their parents; and, in consideration of the additional factor with respect to child A, that the relationship between child A and his parents, particularly his father, is beneficial and meaningful to child A.

[230] The dispute with respect to these three children is regarding the amount of access with their parents and the level of supervision. The parents’ alternative position, if the children are not returned to their care, is that they should have generous, unsupervised access including weekend overnights. The position of all of the other parties is that they should have monthly supervised access.

[231] The Society provided detailed evidence through multiple workers, and through the caregivers, regarding the negative effect access with their parents has had on the children’s emotional state and on their behaviours (set out below).

[232] Having considered that evidence and balanced it against the positives of access described earlier in this decision, I find the schedule proposed by the Society for child A, child C and child D would promote their emotional ties and attachment to their parents in a manner that is consistent with their best interests. It would provide them with consistent and predictable contact with their parents whom they love, and who love them, while at the same time support the stability of their placements by not disrupting their routines. The children often experience dysregulation before and/or after seeing their parents and need time to recover. Or, in the case of child A, when not seeing the parents, as the father’s inconsistent attendance at access has had a particularly negative impact on child A.

[233] I further find that Ms. C’s suggestion that the monthly visit take place on a Friday in order to give the children time to regulate before returning to school on Monday would be in the children’s best interests.

[234] The following are some examples of the negative emotional impact access with their parents has had on child A, child C and child D; and of the need for the parents’ access to be supervised:

Child A

[235] On August 6, 2021, the father slept for the first two hours of the visit. Child A cried because he was worried about his dad and wanted his dad to play with him.

[236] On September 29, 2021, during an access visit, the father’s speech was slurred, and his eyes were glazed. He appeared lethargic and under the influence of something. The mother said he had not slept in days and that he smoked 4 bowls from his bong prior to child A arriving. The father went to bed at 4 p.m. The visit lasted until 7 p.m. Child A became upset when no one could wake up his father even after several attempts. He left very upset because he could not see or play with his dad for most of the visit.

[237] On July 4, 2022, during the drive back to the kin home, child A asked the worker why his father sleeps so much and said he does not like it when his father tries to leave the visits. When the worker asked how this made him feel, he said it makes him angry and hurts his feelings.

[238] On October 5, 2022, the father chose not to go to McDonalds with child A and the mother. While out in the community, child A asked the worker and his mother why his father stays home to sleep all the time. The mother expressed frustration about the father staying up until 5 a.m. playing video games.

[239] On December 21, 2022, during a supervised access visit, the mother said she ate too much and is not feeling well. Child A became worried about his mother and then said he is hurting too, saying his crotch hurts and then his head hurts. The mother then asked him questions like, “did someone touch you’’ and “who put their head on your crotch.” The worker interrupted and told her to stop asking leading questions like that.

[240] On April 4, 2023, the father was asleep at the start of visit. When he came down, child A asked him to play. The father said he did not want to, and that child A was bothering him. Child A cried and continued to ask.

[241] On October 16, 2023, the father did not attend access despite saying he would. Child A was extremely upset following the visit and told his caregiver Ms. AD that he believed his father had died and that was why he was not attending visits. Ms. AD had to spend a significant amount of time reassuring child A that his father was still alive.

[242] In October 2023, child A cancelled his access with his parents four times.

[243] On June 7, 2024, the father did not attend access. As soon as child A returned from the visit, the first thing he told his caregiver Ms. AD was “My dad didn’t show up. He lied.”

[244] Child A has exhibited the following negative behaviour after returning from access with his parents: He becomes irritable with his siblings and withdrawn, wanting only to talk to his caregivers. His tics are greatly heightened, and cause him difficulty sleeping. He has a lot more nightmares. He refuses to try any new foods. He regresses in any progress he has made regarding anxiety; for example, he becomes extremely fearful of insects and dogs. He craves more affection than usual and becomes very clingy. He becomes very impatient and demanding.

Child C

[245] Child C has night terrors more frequently on Fridays and Saturday nights after he has had an access visit on Friday. In the fall of 2020, for example, 1 ½ hours after he went to bed, he woke up screaming and crying with bad sweats. This would last 10 full minutes before he went back to sleep, but he would be restless all night. His night terrors were more frequent and longer lasting when access moved to unsupervised.

[246] Child C appears very happy to return to his home with his caregivers following access. He does not want to give his caregivers any information about the visits. He never asks to go back to visit. When the father is not at the access visit, child C in the past was emotional, disappointed, and hurt.

[247] When the father stopped attending access for a while in May 2023, Ms. and Mr. C received numerous calls from the school that child C is aggressive at school, which is uncommon behaviour for him.

[248] Child C has more fun at the access visit if child A is there. Caregiver Ms. C described that child C “worships” child A. If it is just child C and his mother, child C regresses, he goes back to being a toddler. His night terrors initially were always more frequent after access with his parents. Initially he used to need a lot of reassurance to go, now he feels secure, excited to go. When the mother has called Ms. C for help during access when child C is upset and crying about something, Mc. C is able to calm the child down.

Child D

[249] On September 24, 2019, after a supervised access visit, child D was hitting Ms. AD in the face, was cranky, lost her appetite, was refusing to sleep and was clinging to Ms. AD through the night and constantly needed to be held. This behaviour, evident when the child was first placed with Ms. AD and Mr. AD, was subsiding over time, but then the child regressed after the extra visits with her parents around their wedding ceremony, Thanksgiving and the father’s birthday all in the fall of 2019.

[250] Observed in early 2020 was that when child D missed visits with her parents, she slept well with no concerning behaviours. But on days she had visits, she presented as unsettled, slept less, was clingy, and lacked appetite. After the March 9, 2020 visit, child D had interrupted sleep, increased meltdowns and engaged in hair pulling, hitting, pinching and scratching.

[251] From November 2020 to June 2021, child D stayed within three feet of access supervisor Ms. Milligan during visits. At the end of visits, the child ran to her caregiver Ms. and Mr. AD and appeared to be relieved and to visibly relax as her shoulders relaxed down and she appeared excited and happy to be home with her caregivers, sharing smiles and greetings with them.

[252] On June 17, 2021, child D at first refused to get in the car to go the visit. Then during the drive, she began crying hysterically crying “I don’t want to go”. She was tightly holding her car straps to her chest. Her legs were crossed at her feet and her body was tightly clenched. The visit was cancelled.

[253] On June 24, 2021, after an access visit with her parents, child D displayed aggressive hitting, pushing, yelling and needed extra hugs and affection from Ms. AD and Mr. AD. They put her in play therapy with Cara McCormack beginning July 2021

[254] On November 18, 2021, child D became upset during a visit and asked to go home to “mommy”. The father became frustrated, saying Ms. AD is not her mom, and showed her photos on wall saying this is her home. Child D was crying, but eventually came and sat beside worker and calmed down. The father attempted to re-engage her with play, but this led to more tears and her asking to return home. During the drive to the caregivers’ home she spontaneously said she did not like “daddy T-- ” and did not want to go back to his home.

[255] On March 10, 2022, child D refused to get in the car with the worker. When the worker said they were going to see her mother and father she began to cry. The visit was cancelled.

[256] On June 23, 2022, the mother did not let worker Ms. Burgess help child D in the change room during a visit at a splash pad, saying “I think it’s weird you want to change my daughter alone in a room. I think it’s creepy.” She became escalated and as a result, the child remained in her wet bathing suit on the drive home. During the drive back, when Ms. Burgess reiterated her concern regarding the child sitting in a wet suit. The mother said, “well you and the people [child D] lives with will get theirs for what they do then.”

[257] On June 24, 2022, at the end of a visit supervised by Ms. Burgess, while watching child C play with toy gun, the mother said, “my gun is in a safe, and I know how to use it.” This comment, in combination with the comment the previous day, led to the Society returning access to the Society offices.

[258] Child D is extremely happy to be at her kin home following access and runs up to Ms. AD and Mr. AD and gives them both a big hug and kiss. She is often emotional and agitated following access. She experiences meltdowns particularly if she is told she cannot have something or that she needs to be patient. She has temper tantrums which can result in her screaming, slamming doors, kicking and crying.

[259] Child D engaged in dysregulated behaviour post access when she was an infant and toddler: being unsettled, unable to sleep, lack of appetite, completely regressing on toilet training, regressing in ability to walk, grinding teeth.

[260] Child D has engaged in self-stimulation and has fixated on vaginal examination following access:

(1) Ms. AD first observed child D engage in self-stimulation of her vagina and vaginal area around August 2022. The caregivers attempted to redirect her with activity, food, TV. When child D was younger she would grab at her vagina frequently post access.

(2) Child D first introduced vaginal examinations into her play with her toys in March 2022. When she was playing alone with her dolls one morning she laid them out and Mr. AD heard her say, “Okay, now it’s time to check your vagina.” He told her she did not need to check her dolls and attempted to redirect her play.

Child B

[261] The main dispute regarding access concerns child B. The Society was initially seeking an order that child B have supervised access with his parents four times per year. At the conclusion of the trial, they sought an order “silent as to access” as between child B and his parents. No basis was provided in support of this wording. The Nation and OCL were initially seeking an order that child B see his parents two times per year. At the conclusion of the trial, they sought an order of no access between child B and his parents.

[262] An order of extended care with no access is the most intrusive order a court can make in a child protection proceeding.

[263] The Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, held that the then new test for access to a child in extended care makes the child’s best interests predominant. The Court also emphasized the importance of preserving Indigenous children’s cultural identity and connection to community.

[264] The Court of Appeal in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 noted that the “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests; and that a child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors.

[265] Child B is non-verbal, but can communicate his emotions. He uses gestures such as thumbs up and down, and facial expressions indicating happiness, sadness, anger, surprise. As mentioned earlier, he points to a photo of his foster father in his Choice binder repeatedly to indicate when he wants to leave an access visit with his parents and return to his foster father.

[266] Child B’s emotional state and behaviour have been negatively impacted by access with his parents. There have been over 100 incidents reports filed. The following is a summary of that evidence:

(1) When his foster parents tell him about a parent visit coming up, child B’s behaviour includes: spitting, crying, hitting and/or kicking, door slamming, selecting the “sad” and “angry” feelings on his Picture Exchange Communication System at home and school. Following visits, the foster parents experience a sharp increase in his aggression to people and pets, urination on himself and property, fecal smearing, crying, trying to bang his head on the wall, pulling his own hair, several nights without sleep where he remains awake or wakes up after very little sleep and begins screaming, slamming doors, throwing items at the wall, hiding in his closet, change in eating habit including eating his own food quickly then pulling food off other’s plates and forcing it into his mouth posing a choking risk to refusing food altogether;

(2) From June to October 2020, when child B was having virtual visits with his parents three times per week for 30 minutes (due to pandemic concerns), child B would get worked up during the visits, would urinate on himself and around his bedroom, would hide under blankets, close or throw foster father’s laptop, turn the volume on his iPad up very loudly, scream, sometimes cry, throw objects. When six in-person visits were scheduled: August 26, 27; September 8, 9; October 6, 7, 2020 the parents cancelled these visits;

(3) On October 24-25, 2020, two in person visits took place at the parents’ home in Sarnia. Child B experienced escalated behaviours in the car following the visits including screaming, crying, banging his fists on the car window, kicking the car seat repeatedly;

(4) In person visits were then on hold until summer 2021 due to rise in covid cases. In summer 2021, when monthly in person visits resumed, child B’s behaviour began worsening. It included smearing feces, urinating in his pants and around his bedroom, hiding under blankets, screaming and sometimes crying increased. These behaviours usually lasted 7 to 10 days following visits;

(5) After the March 2022 access visit with his parents, child’s B’s dysregulated behaviour spanned nearly 4 months (instead of dissipating after 7 to 10 days) and did not return to baseline until mid-July 2022. Child B’s foster father described this as a “very tough period” Child A was unable to attend school. The foster father initially took time off from work but then left his job entirely so that he could be with the child on the child’s sleepless nights and so that he could be at home with him if he cannot attend school. Child B’s foster father described doing everything in his power to keep the placement from breaking down;

(6) Following the October 2023 visit with his parents, child B exhibited new self-harm behaviour including sucking on and biting his arms to the point of drawing blood and causing bruises, as well as digging his fingernails into his skin causing small cuts. In November 2023, the Society temporarily suspended access as it took child B three weeks to return to baseline after the October visit. He had significant sleep disturbance. With respect to eating, he either gorged himself or refused to eat. He bit and scratched himself. He threw food and objects. He hit, kicked, bit, scratched caregivers, teachers, other children. He engaged in high pitched screaming. He was unable to participate in his education and therapy. At trial, the foster father expressed concern about how child B’s behaviour will progress as he becomes larger and stronger. Child B is currently 9 years old;

(7) On February 27, 2024, after he was informed he would have a visit with his parents that day he began biting himself on the arms and hands and then he started digging his fingernails into the bite marks. He then went to his iPad and used his communications software to select the “Angry” and “Sad” emotions. When his foster father asked him, do you want to go to the visit, he gave a thumbs down and made a loud angry sound. Eventually, he did agree to go, but the access visit ended early when he expressed a wish for the visit to end by pointing to foster father’s face repeatedly in his Choice binder. When he arrived home, he seemed very happy to see foster father, gave him a hug and held his foster father’s face in his hand and smiled. In the evening he went to his room and came out with blood on his hands and mouth from sticking his fingernails into his gums. He continued to bite his arms and hands all evening. He struggled with falling asleep and did not want his foster father to leave his bedroom. Every time his foster father tried to leave, the child would come running, wrap his arms around his foster father’s waist and cry. The school reported aggression from child B for 4-5 school days following the visit. Child B’s dysregulated behaviour and lack of sleep continued for almost 10 days after the visit.

[267] As of the date of trial, child B had not seen his parents for several months and both his school and his foster father reported a marked improvement in his behaviour and emotional regulation.

[268] Child B had scheduled in person visits with his siblings as follows: October 24, 25, 2020; July 3, 4, 2021; November 20, 2021; August 13, 14, 2022, October 22, 2022, March 7, 2023, July 25, 2023, September 2, 2023. He has also had impromptu visits near special occasions. When informed of an upcoming sibling visit, he generally appears happy. He appears excited to see his siblings and extended family. He engages well at the beginning and then moves to more independent activities after 20-30 minutes. He can become somewhat heightened/overstimulated 3-4 hours into the visit, with minor attention seeking behaviour, that continues into the evening and will occasionally disrupt his sleep that night, but his behaviours generally return to baseline by the following day.

[269] I find it would be in child B’s best interests to have no access with his parents given the enormity of his negative behaviour following access; the length of time it take child B to return to baseline; the fact that this behaviour almost caused a placement breakdown but for the extraordinary efforts of his foster father, which included quitting his job; and the risk that it will only be more difficult in the future to manage child B’s behaviour post access as he grows bigger and stronger.

[270] I find it would be in child B’s best interests to see his siblings three times a year. Sibling access appears to be beneficial and meaningful for him in light of the positive emotions he expresses and the relatively minor disruption it causes him. The twice a year proposed by the Society would be insufficient to maintain and nurture child B’s bond with his siblings (while the four times a year proposed by the others would be too disruptive). Twice a year would also be insufficient to maintain his Indigenous connections, especially in light of the no access order to his parents.

[271] The question of who would be responsible for arranging and paying for the supervision of visits was disputed. Society counsel submits the court does not have the jurisdiction to order the Society to supervise visits when a deemed custody order is made. Counsel for the First Nations disagrees.

[272] I find I do not have to address the issue of jurisdiction, given the overlap in the orders for the four children. As part of the extended care order for child A, the Society is responsible for supervising access between child A and his parents. And since a portion of Child A’s access to child C and child D is scheduled at the same time as his access with his parents, it will be supervised by the Society. And, as part of the extended care order for child B, the Society is responsible for supervising access between child B and his siblings.

4: CONCLUSION

[273] In light of the analysis above, it is clear that it would not be in the children’s best interests to return them to their parents’ care, whether all four of them or any one of them.

[274] The parents’ plan involves denials and good intentions. The serious issue of the mother’s examinations of child D’s vagina and her unfounded allegations of sexual abuse against Mr. AD were addressed only by her denying the examinations and the allegations ever happened.

[275] The parents’ plan is not an actual plan, but rather an intention to plan, involving not what they have done, but what they will do. The following are some examples of what they intend to do:

(1) The father will ensure the children attend school. The court cannot rely on this because even when the father thought homeschooling was a terrible idea in 2018, he took no steps to re-enroll the children in school in the year leading up to the removal;

(2) The mother will not take the children to the hospital unnecessarily. The court cannot rely on this given her continued belief that her hospital visits to date were necessary.

(3) The mother will listen to the father when he says don’t take them to the hospital. The court cannot rely on this given she did not listen to the father in the incident involving child A post removal. In fact, the father testified both that she did not listen and that she was right to take child A to the hospital;

(4) The father will take responsibility for child B’s care. The court cannot rely on this given that he does not know what supports he will use or what program B will attend;

(5) The parents will cooperate with the Society worker. The court cannot rely on this given they have confirmed they will not cooperate with certain workers and/or in certain circumstances.

[276] I find the Society’s plan meets the best interests requirements of both the CYFSA and the Federal Act, as well as the latter’s direction regarding priority of placement. Child C is with the mother sister, Ms. C. Child A and child D are with the father’s first cousin Ms. AD. Both Ms. AD and Mr. AD are Indigenous. Child B could not be placed with family, extended family or with another First Nation’s family because of his need for extremely specialized services. However, the Nation is satisfied that he is in an appropriate placement and that his connection to his Indigenous culture is being fostered.

[277] As was set out in detail above, the children and their caregivers are mutually attached to each other, and the caregivers are meeting the children’s special needs. Not only child B, but all of the children need a higher than typical amount of care, reassurance, routine and services, all of which their caregivers are providing to them with love and affection. Throughout the litigation limbo these children have been subject to, their caregivers have been active in their devotion to these children, in one case quitting work entirely, and in another changing to a less attractive overnight job, in order to put these children first. The word heroic would not overstate the actions of Ms. C and Mr. C; Ms. AD and Mr. AD and child B’s foster parents in working to meet the special needs of these four children and in committing to them on a permanent basis.

[278] Set out below is the final Order with respect to the four children. In the deemed custody provisions with respect to child C and child D, I have used the language from s. 28 of the Children’s Law Reform Act (CLRA) of “decision making” and “parenting time.” As the court noted in Simcoe Muskoka Child, Youth and Family Services v. A.H., 2021 ONSC 2789, any future change motion regarding said provisions will be governed by the CLRA and therefore it would be appropriate to use the CLRA terminology.

[279] I also made two additional orders for child C and child D which mirror the deemed custody provisions contained in the final Order, but leave out all references to the CYFSA proceeding, and only list the respective caregivers and the parents as parties. I did so to protect the privacy of these two children going forward. They are still very young (8 and 6) and their caregivers may have to show a custody order to third parties in many different circumstances where it would be gratuitous to reveal the children’s prior involvement in the child protection system and thereby to expose them to the stigma associated with it.

4.1: Order

This Court orders that:

Child A

1. Child A shall be placed in the extended care of the Sarnia Lambton Children’s Aid Society (“the Society”), pursuant to section 101(1) 3 of the Child, Youth and Family Services Act, 2017.

2. Child A shall have access with the Respondent parents as follows:

a. A minimum of once per month (on the second Friday) for two hours, in person. The Society shall take the child’s views and preferences into consideration;

b. Child A’s visits shall coincide with the visits between the parents and the child C and child D;

c. Child A’s visits shall be fully supervised by the Society or its designate;

d. With respect to making access arrangements, the parents shall only communicate with the Society/designate or with Ms. C;

e. Child A and the parents shall each be access holders.

3. Child A shall have access with his siblings child C and child D as follows:

a. A minimum of once weekly in person as arranged by the caregivers of the children, in consideration of the children’s views and preferences;

b. Child A, child C and child D shall each be access holders.

4. Child A shall have access with his sibling child B as follows:

a. A minimum of three (3) times per year, supervised, in person. The Society shall take the children’s views and preferences into consideration;

b. Child A and child B shall each be access holders.

5. The Society shall consult with the Walpole Island First Nation and keep the Nation informed in regards to placement and planning for child A.

6. The Society shall have a cultural safety plan for child A to ensure that the cultural needs of the child are met on an ongoing basis.

Child B

7. Child B shall be placed in the extended care of the Society, pursuant to section 101(1) 3. of the Child, Youth and Family Services Act, 2017.

8. Child B shall have no access with the Respondent parents.

9. Child B shall have access with his siblings as follows:

a. A minimum of three (3) times per year, supervised, in person. The Society shall take the children’s views and preferences into consideration;

b. The four children shall each be access holders;

10. The Society shall consult with the Nation and keep the Nation informed in regards to the placement and planning for child B.

11. The Society shall have a cultural safety plan for child B to ensure that the cultural needs of the child are met on an ongoing basis.

Child C

12. Child C shall be placed in the custody of Ms. C and Mr. C, pursuant to s. 102 of the Child, Youth and Family Services Act, 2017.

13. Ms. C and Mr. C shall have joint decision-making responsibility with respect to child C.

14. The parents shall have parenting time with child C as follows:

a. A minimum of once per month (on the second Friday) for two hours, in person, fully supervised, taking into consideration the child’s views and preferences;

b. Child C’s visits shall coincide with the visits between the parents and child A and child D;

c. Regarding making access arrangements, the parents shall only communicate with Ms. C.

15. Child C shall have access with child A and child D as follows:

a. A minimum of once weekly in person as arranged by the caregivers of the children, in consideration of the children’s views and preferences.

16. Child C shall have access with child B as follows:

a. A minimum of three (3) times per year, supervised, in person.

17. Ms. C and Mr. C shall be entitled to obtain and renew identification for child C, including health cards, social insurance number, passport and birth certificate, without requiring the consent of the parents.

18. Ms. C and Mr. C shall be permitted to take child C outside of Canada without requiring the consent of the parents.

Child D

19. Child D shall be placed in the deemed custody of Ms. AD and Mr. AD, pursuant to s. 102 of the Child, Youth and Family Services Act, 2017.

20. Ms. AD and Mr. AD shall have joint decision-making responsibility with respect to child D.

21. The parents shall have parenting time with child D as follows:

a. A minimum of once per month (on the second Friday) for two hours, in person, fully supervised, taking into consideration the child’s views and preferences;

b. Child D’s visits shall coincide with the visits between the parents and child A and child C;

c. Regarding making parenting time arrangements, the parents shall only communicate with the Society/designate or with Ms. C.

22. Child D shall have access with child A and child C as follows:

a. A minimum of once weekly in person as arranged by the caregivers of the children, in consideration of the children’s views and preferences.

23. Child D shall have access with child B as follows:

a. A minimum of three (3) times per year, supervised, in person.

24. Ms. AD and Mr. AD shall be entitled to obtain and renew identification for child D including health cards, social insurance number, passport and birth certificate, without requiring the consent of the parents.

25. Ms. AD and Mr. AD shall be permitted to take child D outside of Canada without requiring the consent of the Respondent parents.

Parents

26. The parents shall have independent access to information pertaining to child A, child C and child D, directly from their third-party service providers including, but not limited to medical and educational service providers.

4.2: Delay

[280] I cannot conclude without addressing the issue of the delay in achieving permanency for these children. It is ironic, given the mother’s relentless focus on all the forces she believed were arrayed against the children, that everyone overlooked the most formidable and implacable one of all: Time.

[281] The Supreme Court of Canada has been clear about the importance of reaching a speedy resolution in matters affecting children: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165.

[282] The Court of Appeal has been clear that the timelines are applicable throughout the entire child protection proceeding and thus apply to temporary orders, not just to final ones: A.K. v. Family and Children’s Services of Guelph and Wellington County 2024 ONSC 296; Family Simcoe Muskoka Child, Youth and Family Services v. M.J.C., 2024 ONSC 2669, citing C.M. v. Waterloo Children Children’s Aid Society, 2015 ONCA 612 and Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682.

[283] The Court of Appeal in the above cited Waterloo case, which also involved a 5 year delay for children under the age of 6, spoke sternly about delay (at paras. 31-35, emphasis added):

It is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines…

Where a statute requires that events occur within a specified time frame, it is simply unacceptable that justice system participants fail to adhere to those time frames…

That requires, among other things, that assessment reports be prepared with dispatch; that Children’s Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in which timetables are set and witness lists are fully canvassed; that trials be scheduled so that trial days are not stretched over months; and that trial judges receive adequate time to prepare reasons in a timely fashion.

We acknowledge that additional factors may contribute to delay in particular cases. It is our hope, however, that all those involved in the child welfare system will do their part to minimize delay and promote finality for children. The children involved in this system deserve better.

[284] That case was almost 10 years ago, yet here we are again. And 20 years ago, Justice Lucy Glenn set out a list of time-wasting child protection traps to be avoided, yet here we are again, falling into some of the same traps: Children’s Aid Society of Huron County v. R.G., 2003 CanLII 68691 (ON CJ), [2003] O.J. No. 3104.

[285] In response to the direction from court after court that we must do better, I propose 10 concrete actions we can take to avoid delay:

1. Single judge case management: This ensures a case does not drift.

2. Selection of trial sitting at the first appearance: Where a child under 6 is in the temporary care and custody of a society, the case should be scheduled for the trial sittings at the one- year mark. This ensures that all the work, including retaining counsel, confirming availability for trial dates, obtaining third party records and/or assessments, holding settlement and trial management conferences, is done within the statutory time period not outside.

3. Early identification of FNIM status/party status/services issues: This will avoid a child being deprived of services to which they are entitled and will ensure the First Nation or other community is included promptly.

4. Active role of OCL: Counsel for the child must take an active role in ensuring the matter moves forward and that the child’s views and preferences (where they can be ascertained) are before the court.

5. Early determination of protection finding: The risk must be identified in order to be addressed. If by hearing, the Rules require that the hearing be held within 120 days. If by Agreed Statement of Facts, the basis for the finding must be clear. The statement should not contain disputed facts on material points.

6. Timely evaluations by the Society: The society must hold branch conferences and, if necessary, amend pleadings promptly.

7. Ensuring each court appearance is meaningful: Expectations should be clear regarding what all parties are to do for the next appearance – the Society, parents, First Nation, third party caregivers, OCL.

8. Importance of endorsements: In cases involving a child’s placement, an adjournment is not a deferral of a decision, it is a decision, a decision in favour of the status quo. Endorsements should set out the reason for the adjournment and why it is in the best interests of the child.

9. Tracking time in care: Time should be tracked not only at the individual case level, but at an administrative level such that the following are automatically notified when a child under 6 has been in care for one year: the head of the Society’s legal department and/or Director of Service; OCL Personal Rights Director; Local Administrative Judge. Inquiries can then be made as to what the plan is to either meet the timelines or seek to extend them in the best interests of the child.

10. Equitable access to child protection trial judges throughout the province.

[286] There needs to be a greater sense of urgency. Here, while the conduct of counsel and parties at the trial itself was exemplary, I received the impression that in the five years leading up to the trial there was a sense of helplessness – among all the participants, including the court – a sense of being at the mercy of systemic delay. But there is no faceless system. We are the system. There is nothing in it except for us. And we each have an individual and a collective responsibility to make it work for the vulnerable children entrusted to us.

Released: July 31, 2024

Justice M.B. Pawagi

APPENDIX “A”: Statutory Provisions

Child, Youth and Family Services Act (CYFSA), 2017, S.O. 2017, c. 14

Child in need of protection

s. 74 (2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

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, 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,

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

(ix) 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

(x) the degree of risk, if any, that justified the finding that the child is in need of protection. 2017, c. 14, Sched. 1, s. 74 (3).

Order where child in need of protection

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

Supervision order

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

Interim society care

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

Extended society care

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

Consecutive orders of interim society care and supervision

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

Court to inquire

(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

First Nations, Inuk or Métis child

(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family;

(b) in the case of an Inuk child, another Inuit family; or

(c) in the case of a Métis child, another Métis family.

Custody order

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2017, c. 14, Sched. 1,

s. 102 (1).

Deemed to be order under s. 28 Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act. 2017, c. 14, Sched. 1, s. 102 (2); 2020, c. 25, Sched. 1, s. 26 (2).

Access order

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Existing access order terminated if order made for extended society care

105 (4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101

(1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.

When court may order access to child in extended society care

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

Additional considerations for best interests test

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

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

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

Court to specify access holders and access recipients

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

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

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

Time limit

122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

Calculation of time limit

(2) The time during which a child has been in a society’s care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1):

1. An agreement made under subsection 75 (1) (temporary care agreement).

2. A temporary order made under clause 94 (2) (d) (custody during adjournment).

Previous periods to be counted

(3) The period referred to in subsection (1) shall include any previous periods that the child was in a society’s care and custody under an interim society care order made under paragraph 2 of subsection 101 (1) or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society’s care and custody.

Deemed extension of time limit

(4) Where the period referred to in subsection (1) or (5) expires and,

(a) an appeal of an order made under subsection 101 (1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 114 (status review),

the period is deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 114, as the case may be.

Six-month extension

(5) Subject to paragraphs 2 and 4 of subsection 101 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.

An Act Respecting First Nations, Inuit and Metis Children, Youth and Families (Federal Act)

S.C. 2019, c. 24

Principle — best interests of child

9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

Principle — cultural continuity

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

Principle — substantive equality

(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts:

(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs;

(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and

(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.

Best Interests of Indigenous Child

10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Consistency

(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.

11 Child and family services provided in relation to an Indigenous child are to be provided in a manner that

(a) takes into account the child’s needs, including with respect to his or her physical, emotional and psychological safety, security and well-being;

(b) takes into account the child’s culture;

(c) allows the child to know his or her family origins; and

(d) promotes substantive equality between the child and other children.

14 (1) In the context of providing child and family services in relation to an Indigenous child, to the extent that providing a service that promotes preventive care to support the child’s family is consistent with the best interests of the child, the provision of that service is to be given priority over other services.

(2) To the extent that providing a prenatal service that promotes preventive care is consistent with what will likely be in the best interests of an Indigenous child after he or she is born, the provision of that service is to be given priority over other services in order to prevent the apprehension of the child at the time of the child’s birth.

15 In the context of providing child and family services in relation to an Indigenous child, to the extent that it is consistent with the best interests of the child, the child must not be apprehended solely on the basis of his or her socio- economic conditions, including poverty, lack of adequate housing or infrastructure or the state of health of his or her parent or the care provider.

15.1 In the context of providing child and family services in relation to an Indigenous child, unless immediate apprehension is consistent with the best interests of the child, before apprehending a child who resides with one of the child’s parents or another adult member of the child’s family, the service provider must demonstrate that he or she made reasonable efforts to have the child continue to reside with that person.

Placement of Indigenous Child Priority

16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child’s parents;

(b) with another adult member of the child’s family;

(c) with an adult who belongs to the same Indigenous group, community or people as the child;

(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or

(e) with any other adult.

Placement with or near other children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.

Customs and traditions

(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.

Family unity

(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with

(a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or

(b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a).

Attachment and emotional ties

17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(a) or (b), to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted.

Children's Law Reform Act (CLRA), R.S.O. 1990, c. C.12

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.

Exception

(2) If an application is made under section 21 with respect to a child who is the subject of an order made under section 102 of the Child, Youth and Family Services Act, 2017, the court shall treat the application as if it were an application to vary an order made under this section. 2020, c. 25, Sched. 1, s. 6.

Same

(3) If an order for access to a child was made under Part V of the Child, Youth and Family Services Act, 2017 at the same time as an order for custody of the child was made under section 102 of that Act, the court shall treat an application under section 21 of this Act relating to parenting time or contact with respect to the child as if it were an application to vary an order made under this section. 2020, c. 25, Sched. 1, s. 6.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons. 2020, c. 25, Sched. 1, s. 6.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule. 2020, c. 25, Sched. 1, s. 6.

Family Law Rules, O. Reg. 114/99

(under Courts of Justice Act, R.S.O. 1990, c. C. 43)

Child protection Timetable

33. (1) Every child protection case, including a status review application, is governed by the following timetable:

Column 1

Step in the case

Column 2

Maximum time for completion, from the start of the case

First hearing, if child has been brought to a place of safety

5 days

Service and filing of answers and plans of care

30 days

Temporary care and custody hearing

35 days

Settlement conference

80 days

Hearing

120 days

O. Reg. 91/03, s. 7 (1); O. Reg. 298/18, s. 17 (1).

Case management judge

(2) Wherever possible, at the start of the case a judge shall be assigned to manage it and monitor its progress. O. Reg. 114/99, r. 33 (2).

Court may lengthen times only in best interests of child

(3) The court may lengthen a time shown in the timetable only if the best interests of the child require it. O. Reg. 114/99, r. 33 (3).

Parties may not lengthen times

(4) The parties may not lengthen a time shown in the timetable by consent under subrule 3 (6). O. Reg. 114/99, r. 33 (4).

United Nations Convention on the Rights of the Child, Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.