COURT FILE NO.: FC-07-297

DATE: 20120523

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF E. (“M.”), born […]; B., born […]and S. (“L.”), born […]

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

C.C. (“Ms. C.”)

Respondent

Mark Hecht for the Applicant

Wendy Rogers and Vasu Naik for the Respondent

Malina Feeley, Children’s Lawyer, for the child M.

HEARD: January 23, 24, 25, 26, 27, 30 & 31, 2012; February 1, 2, 3, 6, 8, 9 & 10, 2012; March 19, 20 & 22, 2012

REASONS FOR JUDGMENT

C. MCKINNON J.

Background

[1] This case involves the appropriate placement of a boy M., age 12, a girl B., almost age 9 and a boy L., age 6. These three children share a common father, Mr. C., who resides in Toronto and has only been peripherally involved in the children’s lives. An older girl, L.W., born […], now age 15, has been returned to the respondent Ms. C. as result of the recommendation of the Family Court Clinic and in accordance with her own wishes. L.W.’s father is Mr. W. who resides in the City of Ottawa. He has been regularly in contact with his daughter and exercises access most weekends.

[2] Between March 2000 and June 2003 the Children’s Aid Society had sporadic involvement with the family. In an Agreed Statement of Facts dated July 12, 2006, it was acknowledged that in March, 2000, the Ottawa Civic Hospital reported several concerns regarding Ms. C. in relation to her baby M., including being disorganized, angry, and appearing to have little social or financial support. Ms. C. was overheard yelling at her baby. Ms. C. was uncooperative with Ottawa CAS and refused their offer of services. The file was closed as there were no apparent child protection concerns when the Ottawa CAS worker visited the home. In December of 2002, a social assistance worker called the Ottawa CAS to report a concerning voicemail message left by Ms. C. indicating that she did not have enough money to provide her children with adequate food. The file was closed shortly thereafter as Ms. C. reported everything was fine. In April 2003, the Superintendant of Baseline Court Apartments called the Ottawa CAS to report that she had found Ms. C.’s 3 year old son, M., wandering unattended on the road and when she returned the child to his apartment, Ms. C. was not home. Ms. C. informed the Society that she had left the child asleep while accompanying her older child to a bus stop. She acknowledged that the child had gotten away once in the past while she was napping. Ms. C. said she would be getting an additional lock for her door and would ensure that all windows were secure. The file was closed as there were no other protection concerns. In June 2003, the police called CAS to report that a neighbour had found three year old M. at their door and after unsuccessful efforts to locate his caregiver police were called. The Society was told that Ms. C. had left the child in the care of her sister while she was in hospital giving birth to her daughter B. The sister had reportedly left the child with a relative while she went to a piano lesson. That relative was not located for questioning. Ms. C. stated she was aware of M.’s tendency to wander and understood she must closely supervise him at all times. She advised the worker that she was aware of community resources and did not want agency assistance. The file was closed as the children appeared safe.

[3] The four children were found to be in need of protection on September 12, 2006 in Toronto following an incident that occurred in February of that year when Ms. C. was charged with assaulting M. The Society received a phone call from M.’s teacher reporting that he had disclosed that his mother “slaps him with a belt.” The child presented with bruises and scratches. The Society worker conducted a private interview with M. later that day and the child disclosed more detailed incidents of physical discipline and expressed a fear of his mother. The Society worker also conducted a private interview with L.W., the older sister. L.W. appeared afraid of her mother. At the time of the interview Ms. C. was yelling, screaming and swearing outside the office where the interview was being conducted. L.W. did not make any disclosure of physical discipline. Because of Ms. C.’s highly agitated state, the children had to be apprehended for the investigation to continue. In an interview with the Society’s worker on February 24, 2006, Ms. C. stated that she had been abused as a child and although she admitted to slapping M., she denied causing the scratches on his arm. At the time she was emotional and angry.

[4] As a result of the alleged assault of M. by Ms. C., the children were found to be in need of protection and on September 12, 2006, were placed in the care and custody of their maternal grandmother, Ms. J., who was residing in Ottawa, for a period of four months subject to certain terms and conditions. Following the order placing the children in grandmother’s care, Ms. C. pursued a course in anger management with the Elizabeth Fry Society in Toronto. Sometime later, Ms. C. moved back to Ottawa so that she could access her children. She told the Society that she intended to find an apartment and attend college. The Society requested that she secure housing, attend regularly scheduled access with her children, follow through with anger management, counselling and demonstrate positive parenting skills.

[5] On December 21, 2006 the Children’s Aid Society of Toronto filed a status review application requesting a further period of supervision to Ms. J. and on February 12, 2007, the file was formally transferred to Ottawa.

[6] In July 2007, following a period of monitoring, the Society obtained a three month joint supervision order to Ms. J. and Ms. C. On July 18, 2007, L.W. and M. were reintegrated into their mother’s full time care. B. and L. continued to reside with their grandmother during the week and visited their mother on weekends. On August 24, 2007, B. and L. were placed in their mother’s full time care. The reintegration was complete and on March 12, 2008, an order was made placing the children with Ms. C. subject to a six month supervision order.

[7] At the next status review, the Society sought a further period of six months supervision to the mother. The primary concern at the time was Ms. C.’s alleged drug use, her parental capacity and her inability to manage finances. Immediately prior to the order being granted, the family was forced to move into a Shelter as Ms. C. had been evicted from her apartment.

[8] On January 22, 2009, an order was made for a further period of six months supervision to Ms. C. The Society’s concerns at that time related to Mother’s inability to manage her stressors, her lack of supervision of the children, her use of physical discipline with the children and her lack of cooperation with professionals, including Society workers.

[9] On September 10, 2009, a further six month order of supervision was made, noting the same concerns. At the next status review on March 4, 2010, the Society sought a further period of six months supervision to mother, citing the same concerns. The Society was becoming increasingly concerned about Ms. C.’s mental health.

[10] On June 17, 2010, the Society brought forward an amended status review application requesting an Order of Society Wardship for L.W., M., B. and L. for a period of six months due to ongoing child protection concerns and Ms. C.’s total lack of cooperation with the Society. On September 30, 2010, following a disputed motion, the children were ordered into the temporary care and custody of the Society by Madam Justice Ratushny. The children were apprehended that same day and placed together in a foster home. L.W., as noted, has since been reunited with her mother while M., B. and L. continue to reside at the foster home, a period approaching twenty months.

The Society’s Evidence

[11] Ms. Elissa Pascoe is the Ottawa CAS worker who inherited the file when it was transferred from Toronto in February 2007. Ms. Pascoe has a Bachelor’s degree in Psychology, a Bachelor’s degree in Social Work, and a Masters degree in Social Work. She has worked with the Ottawa CAS since August 2003. She managed the file until September 2010. I was very impressed with Ms. Pascoe’s evidence. It was clear to me that she went far beyond the call of duty in an attempt to maintain the family unit. Her evidence is set out in a lengthy affidavit sworn December 28, 2011 in aid of an unsuccessful motion brought by the CAS for summary judgment and upon which she was fully examined and cross-examined at trial. Her affidavit and evidence sets out her serious concerns relating to Ms. C.’s mental health, anger management, lack of cooperation with professionals, use of verbal and physical aggression towards the children, lack of supervision of the children, inability to manage finances, neglect of the children’s basic needs, concerns relating to the children’s academic progress and emotional wellbeing, and possible substance abuse on the part of Ms. C.

[12] Each of these concerns is documented in detail. I intend to simply highlight the more compelling pieces of evidence. An attempt to recount all the evidence led by the Society in the various affidavits filed would involve a needless duplication of effort and would result in an interminable judgment. The reason for this is the ages of the children and the length of time they have been the subject of supervision orders.

[13] Some examples of the difficulties faced by Ms. Pascoe include the fact that she frequently had difficulty meeting and speaking to Ms. C. By way of example, through April, May and June 2007, Ms. Pascoe was continuously attempting to arrange a home visit with Ms. C. She left numerous messages on her voicemail, none of which were returned. She finally checked whether she had the right phone number, and learned she did. She continued to leave messages for Ms. C. and finally received a message that mother’s voicemail box was full and could not receive further messages. The result of this is that from April 11, 2007, a home visit was not able to be scheduled until June 21, 2007, more than two months after the first attempt.

[14] It became clear to the Society that things were not progressing as planned with Ms. C. and so on November 26, 2007, a Family Group Conference was held in order to assist Ms. C. and her extended family to create a plan of care to address the Society’s concerns. Mr. Pascoe was present, together with several members of Ms. C.’s family, Mr. W.’s family (the father of L.W.) Mr. C. (the father of M., B. and L.) attended by teleconference from Jamaica. The family created a plan of care. The children would continue to remain in the care of their mother, residing temporarily in the home of a friend of Ms. C.’s until more appropriate housing could be located. The plan would be that Ms. C. and her children would find permanent housing with her cousin Mr. L. and they would share the cost of the housing. Extended family members would bring the children to church on Friday evenings and Saturday mornings and have regular telephone contact with Ms. C. and regularly visit her and the children to provide support. Mr. W. would assist Ms. C. financially and take L.W. to his home from Friday evening until Sunday morning every weekend. Ms. C.’s sister or her aunt would care for M. each weekend at least once a month. Ms. C. would seek service from the Crossroads Children’s Center and register L.W. and M. in an afterschool program. Ms. C. would reconnect with Mr. P., her pastor, and pursue counselling services with him. No person in charge of the care of the children would be under the influence of any illegal substance.

[15] On December 10, 2007, Ms. Pascoe referred the family to the Crossroad Children’s Center. Telephone tag resulted immediately between Mr. Pascoe, Ms. C., and the representatives at Crossroads. Ms. C. did not respond to the arranged telephone conferences with the representatives from Crossroads, although she did inform Ms. Pascoe that she was having problems managing the children and wanted help from Crossroads as soon as possible. She told Ms. Pascoe that she was often “yelling and screaming” at her children and that she wanted to change her behaviour. Ms. Pascoe reminded Ms. C. that she was supposed to be having regular telephone contact with family members if she felt stressed in her care giving role. Finally, on June 18, 2008, almost six months after the intended time, Ms. C. met with Tara Smith of the Crossroads Children’s Center.

[16] Tara Smith has a Bachelor’s degree in Criminology from the University of Winnipeg and has had extensive training in parenting and social skills. Crossroads deals with parents who have issues with their children at home or at school. Crossroads offers specialized treatment to assist parents in coping with their children. Between June and September 2008, she met with Ms. C. four times in Ms. C.’s home. She identified certain concerns including yelling and screaming in the home, oppositional behaviour on the part of L.W. and a lack of structure and predictable routine in the home. She noted financial obstacles faced by the family. CAS was providing Ms. C. with food vouchers. She observed yelling and L.W. crying one day after school due to hunger. She noted that mother was angry and frustrated with the CAS. Following the visits that Ms. Smith made in the home, the plan would normally be to participate in a ten week program, but by then Ms. C. had moved with the children into a Shelter as a result of the hydro in her home being disconnected due to arrears owing to Enbridge. Ms. C did not contact Ms. Smith again so the ten week program was never pursued.

[17] Ms. Smith did not recollect a conversation she had with Ms. Pascoe on September 12, 2008. Ms. Pascoe has made specific notes on this conversation. In it, Ms. Smith informed Ms. Pascoe that she had two concerns, the first being the degree of anger on the part of Ms. C. towards the CAS and that she would be concerned to go back to the home alone. The note is that Ms. Smith told Ms. Pascoe that she deals with angry people all the time but that Ms. C. was “angrier than most clients.” She also indicated that mother had admitted to slapping her son and that it was her right to do so, and that she slaps him because he disobeys her. She apparently told her that “I slap him, and nobody can tell me not to, it’s my right.” She further did not recall Ms. C. stating that if police attended at her home, she would “throw pee in their faces.”

[18] As stated, Ms. Smith could not recall this conversation. When presented with the note of the conversation she could not recall saying the things recorded in the note. Ms. Pascoe was permitted to testify with respect to the making of the note. She testified that the note was made contemporaneously with a conversation which occurred in response to a voicemail from Ms. Smith saying that she wished to make a report. Ms. Pascoe specifically recalled the conversation. She recalled that Ms. Smith wished to record the extent of anger exhibited by Ms. C. and recommended that when visiting Ms. C., a second worker should be present.

[19] I am confident that the note made by Ms. Pascoe accurately records the conversation that she had with Ms. Smith and that Ms. Smith was indeed concerned about the extent of anger exhibited by Ms. C. This is consistent with all of the evidence heard during the trial. It is painfully obvious that Ms. C. has serious problems managing her anger.

[20] Ms. Pascoe testified that during the month of May 2009, Ms. C. was very interested in getting the CAS out of her life and was prepared to follow through with the Society’s Family Support Program and to take a course called “Healthy Babies, Healthy Children.” Ms. C. was referred to Ms. Pamela Radbourne and unfortunately only attended one out of four scheduled appointments with Ms. Radbourne. She explained to Ms. Pascoe that she had “personal things” going on in her life and needed to take a “time out” for herself.

[21] In December 2009, Ms. Pascoe raised with Ms. C. the possibility that she might be suffering from depression. Ms. C. admitted to “feeling down”, stating that she wanted to make an appointment to see her family doctor, Dr. Cameron, but that she was fearful that she owed him money because she had missed her last four appointments with him.

[22] On a visit to Ms. C. in January 2010 by Ms. Pascoe, Ms. C. was visibly agitated, yelling and making grandiose gestures with her arms. Ms. Pascoe repeatedly asked her to stop yelling. Ms. C. would calm down and indicate that she did not dislike Ms. Pascoe but rather the Society. She would apologize for yelling and then continue yelling. She finally smashed her hand on the freezer located in the kitchen and stated that she did not have an anger problem but a “people problem.”

[23] During the month of March 2010, Ms. C. left a series of emotionally laden voicemail messages with Ms. Pascoe which are collected between paragraphs 44-48 of Ms. Pascoe’s affidavit. Among other things she states:

You’re very out of order, you and everbody else that’s on this fuck’n case. Now take that because I’m not through with you! You’re driving me fuck’n up the wall! You don’t show me the respect I deserve so therefore I can’t show you any... I will not cooperate with no more bullshit from you people. You guys are sucking the life out of me! You come in my world and see me perfect and you come and destroy it, questioning my kids. They can’t eat, drink or shit! ...You’ve been around me long enough to know I don’t tolerate this shit...The god damn system is the one corrupting our children! You hear me? God damn for your own abusive generation! God damn! Leave us alone ‘cause you’re going to be on my case for the last time! I’m going to make sure of it! You think I’m pissed off now? Wait ‘till later on.

[24] On March 26, 2010, a letter was mailed to Ms. C. by Ms. Pascoe informing her that she would be visiting Ms. C. together with her supervisor Ms. Kim Gorman. On March 30, 2010 a lengthy voicemail message was left on Ms. Pascoe’s machine including comments such as:

Listen. You gonna talk about coming to my house. Listen. With your so-called supervisor? Listen. That’s your security. I’m going to be having my own, you understand?... You’re gonna get out of my life...because the three years or whatever you’ve been dealing with me, you have never hear of anyone saying I have a history of any mental anything. You crossed the line this time, and this time, my sister, I’m going to show you how it’s done – my style. I don’t need no help from none of you...You and the system is the biggest problem I have in my life. Who is the parent of these children? Who is the person to take care of them? Me. I don’t need no help. I didn’t need any help before. What makes you think I need help now? If you think I have a have a history of mental problems, wait ‘till later on if this continues. I will not give you nothing. No judge, no executioner, no jury will give me nothing to give you...I don’t trust none of you. You will close my file sooner than you think you opened it.

[25] The scheduled home visit with Ms. Pascoe and Ms. Gorman took place on April 12, 2010. Ms. C.’s maternal aunt, Ms. H., was present for this visit. Although it had been requested that the children not be present, L.W. was home because she was not feeling well. The tops of the kitchen cabinets and the ceiling in the kitchen were covered in a black substance. It appeared as though there had been a fire in the kitchen. L.W. stated that she had fried an egg which resulted in the damage. Ms. Pascoe asked Ms. C. about the smoke stains on the cupboards and ceiling to which Ms. C. responded that the stains were a result of L.W. trying to fry an egg on the stove. Understandably Ms. Pascoe did not believe this explanation. I agree with Ms. Pascoe’s evidence that attempting to fry an egg would not create the smoke stains observed by Ms. Pascoe.

[26] Ms. C. was extremely agitated during the visit and spent the majority of the time yelling. She did not agree with the Society’s concerns relating to her mental health and yelled “Black women don’t get depressed and don’t have anger problems.” She again maintained she had “people problems.” She yelled quotes from the Bible and banged her fist on the wall. She tilted her head to the side, opened her eyes wide, moved towards Ms. Gorman and yelled at her. Ms. C. yelled that if she died as a result of the stress from the Society, her children would be made aware of this. Ms. Gorman and Ms. Pascoe were unable to calm Ms. C. down. She continued to scream and then left the house through the back door. She then re-entered and continued to yell about how she would not work with the Society then marched upstairs. Ms. H. told Ms. Gorman and Ms. Pascoe that Ms. C. “has always been this way.” Ms. H. was informed that this behaviour must affect the children negatively and agreed to remain at the home to ensure that things were calm when the children returned. During her testimony Ms. H. did not recall that the meeting was emotionally charged. I accept the evidence of Ms. Pascoe with respect to Ms. C’s conduct during that meeting.

[27] A continuing theme arising from the Ms. C.’s affidavit and viva voce evidence is her reluctance to acknowledge the benefit of programs offered by the Society. As an example, in her affidavit of August 12, 2010 she stated that she did not take part in Crossroads or the Family Support Program “because I did not feel comfortable in these programs and did not feel it was in our family’s best interests to continue participating in them.” This statement was confirmed by the evidence of Ms. Radbourne who attempted to engage Ms. C. in the Family Support Program. Initially, Ms. C. was enthusiastic about participating in the program but eventually began missing meetings and telling Ms. Radbourne that she didn’t feel that the program was worth pursuing.

[28] During her home visits Ms. Radbourne observed the needs of the children, including fire protection training for L.W. Ms. Radbourne assisted Ms. C. in filling out forms to engage the children in the Boys and Girls Clubs, including obtaining a $25.00 recreational subsidy to cover the fee for each child. However, Ms. C. did not follow through on filing these forms even though they had been filled out by Ms. Radbourne. At times during home visits, Ms. C. seemed very tired and complained of feeling ill. Ms. Radbourne suggested that mother see a doctor to have her condition assessed. At one point, Ms. C. informed Ms. Radbourne in a telephone conversation that she simply wanted the CAS out of her life and that she “did not have time for this.”

[29] Ms. Pascoe testified that throughout her involvement with Ms. C. she had concerns about the mother’s physical aggression directed towards the children. She often heard her yelling at the children, included saying “Shut up” or “I’m too tired for this.” On one occasion B. told Ms. Pascoe that when she didn’t listen to her mother she would get slapped. When Ms. Pascoe confronted Ms. C. with B.’s complaint, she stated that B. got a slap on the hand when she was playing dangerously on a slide. Ms. Pascoe encouraged Ms. C. to follow through with the Crossroad Children’s Center program, but as has already been noted, Ms. C. quickly lost interest in that program.

[30] On a visit to the family on February 13, 2009, Ms. Pascoe had a private visit with B. who informed her that her mother’s stress is “bad” and she blamed it on L. According to B. her mother slapped L. Ms. Pascoe asked B. what happens when the children don’t listen, and B. told her that her mother slaps them and says the “f-word.” When confronted, Ms. C. admitted to using physical punishment with B. and L. and stated “The older kids don’t stick around long enough to be slapped.” She was cautioned about using physical punishment and was encouraged again to attend Crossroads Children’s Center.

[31] On a visit in July 23, 2009, Ms. Pascoe observed mother slap L. hard on the hand after he hurt B. stating “For that, you get this.”

[32] On January 27, 2010, B. again informed Ms. Pascoe that her mother slapped L. when he was doing something wrong. She told of an incident in which L. took juice without permission, B. then told her mother which led her mother to slap L. on the back. According to B., her mother slaps each of her siblings when they don’t listen. Ms. Pascoe asked L. what happens when he doesn’t follow rules, and he stated “I get slaps.” When confronted about slapping the children, Ms. C. yelled at Ms. Pascoe stating “These are my children and I have the right to slap my children.” Throughout their time together Ms. Pascoe repeatedly asked Ms. C. to stop yelling at her children.

[33] Another grave concern that Ms. Pascoe had with respect to Ms. C.’s parenting was the lack of supervision of the children which at times led to police involvement. One of the most serious police engagements with the family occurred on August 4, 2008. On that day, in the early afternoon, the police were called to the residence occupied by Ms. C. and the children. Constable Aza Huska testified that when she arrived at the home the mother was not present, and three young children, M. age 8, B. age 5 and L. age 2 were supposedly in the care of 11 year old L.W. who was asleep in the garage. It was apparent that the garage was being used as part of the home. Two mattresses were placed directly on the asphalt floor. A television and light were plugged into the garage wall. The floor was covered with old mouldy food, uneaten food, dirty open diapers, empty food containers, dirty laundry and numerous pairs of soiled female undergarments. Sharp cooking and eating utensils were seen on the floor. The children were barefoot and scantily dressed. The two younger children complained that they were hungry. None of the children could recall when they last ate or what they ate.

[34] Ms. C. arrived about ten minutes later. She was hostile, yelling and swearing at the police and carrying a Tim Horton’s coffee and some DVD’s. Constable Huska spoke to M. who was crying and had swollen eyes. M. had indicated that his mother had hit him and indicated his left upper arm. Constable Huska observed fresh pink abrasions and broken skin approximately 2.5 inches in length, running perpendicular across his arm in the upper third area of his upper arm. M. stated that he was “sometimes afraid of my mom.”

[35] By the time the CAS emergency worker named Joanne arrived on scene, Ms. C. had cleaned the garage. M. repeated to the CAS worker that “My mom hit me and my mom pulled me off my bike.” The worker had no previous knowledge of the family. The CAS worker did not notice abrasions, according to her written report. The CAS worker went out and bought food for the family and no further action was taken.

[36] I accept the evidence of Ms. C. and her friend Mr. N., that Ms. C. and the children were sleeping in the house with the aid of lamps provided by Mr. N., but during the waking hours were living in the garage. The reason for this is that the electricity had been turned off because it had not been paid. A neighbour permitted Ms. C. to access his hydro supply through an extension cord leading to Ms. C.’s garage.

[37] On August 20, 2009, police were called to the Coliseum Theatre on Carling Avenue in Ottawa at about 9:00 p.m. in response to a complaint from a patron that a woman was seen being rough with her child and shouting at him. Ms. C. had attended a movie with her children and she was apparently upset with L. because he constantly wished to leave and go to the washroom. Ms. C. became annoyed and took him roughly by the arm and forcefully brought him back into the theatre. She shouted at him after he had lost his footing and fell. Police noted no signs of injury on L. but Ms. C. was very hostile towards police when they arrived but gradually calmed down. Ms. C. told police that she was participating in a Crossroads program to adjust her discipline techniques in dealing with the children.

[38] Police were involved with the family on other occasions, including when Ms. C. got into a heated dispute with a neighbour, and on an occasion in August 2006, when the children were in the care of grandmother. At this time Ms. C. and Ms. J. got into an argument that resulted in grandmother phoning 911. When police arrived they noticed that the argument was occurring in front of the children.

[39] Another incident of concern occurred when Ms. C. had moved with her children into the Forward Avenue Family Shelter after losing her housing due to non-payment of hydro bills. During the month of December, staff smelled marijuana coming from the room. Ms. C. had admitted to smoking marijuana which is against the rules of the Shelter. On February 10, 2009, a smoke detector went off. When staff entered Ms. C.’s room, it was filled with smoke and L., who was then age 3, was in the room alone. He had put two pieces of cutlery into the toaster which had then caught fire. Ms. C. had gone downstairs to make a snack and had left L. alone. Kim Levacchia testified that she addressed both these issues with Ms. C. who agreed that she would take steps to redress the concerns.

[40] Ms. C. and the children eventually got subsidized housing on Richie Street in Ottawa and moved out of the Shelter. On an unannounced home visit on April 1, 2009 at 6:00 p.m. Ms. Pascoe was met by M. at the door. She asked if she could speak with his mother. M. told her that she was not home. Ms. Pascoe asked M. if she could enter and M. opened the door. He had difficulty opening it because of the shoes, clothing and other objects piled by the door. Ms. Pascoe asked M. how long his mother had been gone, and he stated “a long time.” He told her that his mother had left the house just after they arrived home from school and that she had gone to a store. When Ms. Pascoe entered the kitchen she observed one of the stove burners to be on. She pointed this out to M. and he turned it off. He told her that he had made shrimp and that he forgot to turn off the stove. Ms. Pascoe saw B. and L. in the living room, and L.W. was asleep on the couch. She attempted to wake L.W. by calling her name but she was so deeply asleep that she could not wake up. Right beside her head was a telephone. The telephone began ringing quite loudly, but L.W. continued sleeping. Ms. Pascoe answered the telephone expecting that it might be Ms. C. calling but instead it was L.W.’s father, Mr. W., who wished to speak to L.W. because it was her birthday. Ms. Pascoe had to nudge L.W. several times before she woke up. She then went into the kitchen and started doing colouring with B. and L.

[41] L.W. did not know that her mother had left the house. Ms. Pascoe noted that the entire home, aside from the kitchen was cluttered with clothing, objects and garbage. By 7:00 p.m. Ms. C. had still not returned home, Ms. Pascoe consulted with her supervisor Ms. Gorman by telephone. Ms. Gorman stated that she would attend the home. After hanging up the telephone, Ms. Pascoe observed B. and L. open a door in the front entrance. Ms. Pascoe went over and observed a staircase leading to a basement. She went down the stairs with B. and L. following. She smelled a strong odour of marijuana and heard the sounds of a television coming from a separate room in the basement. She walked towards that room and observed a woman sleeping on a mattress on the floor with the television on in the background. B. and L. both appeared surprised and excited and yelled “Mommy!” Ms. Pascoe did not recognize the woman on the mattress as being Ms. C. because she had put extensions in her hair. Ms. C. was wearing a jacket. Ms. Pascoe called her name loudly and she woke up startled. Ms. Pascoe informed Ms. C. that she had been in the home since 6:00 p.m. and was under the impression that Ms. C. had gone to the store. She informed her that M. had cooked shrimp on the stove and that he forgot to shut off the burner. Ms. C. ran upstairs. Ms. Pascoe advised her that the burner had already been turned off. When Ms. Gorman arrived at the home, the Society’s concerns were discussed with Ms. C. She became upset and began to cry. She talked about the many stressors she was experiencing, one being her inability to manage her children’s behaviour. Once again, Ms. C. was reminded of her need to follow up with the Crossroads Children’s Center.

[42] Ms. Pascoe testified that during the course of her involvement with the family, the family moved five times. Even according to one of Ms. C.’s witnesses, her close friend Mr. N., these numerous moves have had a profoundly negative effect on the children.

[43] Ms. C. also demonstrated a complete inability to manage finances. In August 2007, Ms. C. was evicted from her home because she owed $2000.00 in back rent. They relocated to one of Ms. C.’s friend’s houses until the end of December when they moved into a town house with the Ms. C.’s cousin.

[44] On April 14, 2008, Ms. C. telephoned Ms. Pascoe to say that her electricity had been cut off. Her roommate and cousin, Mr. L., owed Ottawa Hydro over $1000.00 from his last place of residence. Ms. C. told Ms. Pascoe that the children had neither clean clothes nor any food. She said that she had spent the weekend at a relative’s house. The next day Ms. Pascoe brought Ms. C. some food, food vouchers and also gave her cash to purchase food. She observed that B. was asleep under blankets and L. was dressed in a ski jacket. Ms. Pascoe spoke to Ottawa Hydro and the next day the electricity was restored.

[45] In August of the same year, Ms. C. advised Ms. Pascoe that she had received a letter from Ontario Works indicating that she owed them $4000.00 and the electricity had been cut off again.

[46] In November 2008, on an unannounced home visit Ms. Pascoe noted that the Ms. C.’s telephone had been disconnected and there was no electricity in the home. The home was being heated by the open oven which created a safety hazard. Ms. C. requested food vouchers. She told Ms. Pascoe that she had found a new apartment but required the Society to pay the last month’s rent in the amount of $1200.00. Ms. Pascoe dropped off food vouchers and it was decided to move the family to a Shelter on Forward Avenue. Prior to moving to the Shelter the family was provided a room in the Richmond Plaza hotel because there were no beds available at any Shelters. Finally on December 4, 2008 the family was moved to the Forward Avenue Family Shelter.

[47] In January 2009, Ms. C. explained to Ms. Pascoe that she could not bring M. to see a doctor because of a rash even though a public health nurse had recommended that he be seen by a doctor. She could not obtain taxi vouchers in order to visit a doctor. Her welfare cheque was placed on hold because she had no social insurance numbers for her children. Ms. Pascoe assisted Ms. C. to apply for birth certificates and social insurance numbers for her children. She scheduled two appointments to accompany Ms. C. to City Hall, but Ms. C. was unavailable for both appointments. Even as of the date of trial, not all birth certificates had been obtained by Ms. C. for the children. As noted previously, after moving from the Shelter Ms. C. moved the family to subsidized housing on Richie Street, where she still resides.

[48] It is not surprising that these many moves had an effect on the children’s progress in school. Ms. Pascoe received numerous phone calls from concerned teachers and Principals during the course of her involvement with the family. During 2007, the children had been attending D. Roy Kennedy School. In 2008 they moved to Meadowlands Public School. When the family relocated to the Forward Avenue Family Shelter the children were transferred to the Connaught Public School. When Ms. C. obtained her Richie Street housing in February 2009, the children were transferred to Severn Public School.

[49] In December 2009, Ms. Pascoe received a voicemail message from Mr. David Petrie, the Principal of Severn Public School, informing her that the school suspected B. of having severe learning disabilities and that the staff were unable to contact the Ms. C. to discuss the matter. Ms. Pascoe raised the issue with Ms. C. who became very angry and began yelling at her. She told Ms. Pascoe that she did not appreciate the teacher’s tone. She said that the teacher told her that B. was “dumb” and sent a note saying B. was “deaf and blind”. She yelled “Nobody will tell me that my daughter is dumb.” Ms. Pascoe explained that as a parent it was her responsibility to work with the school in order to support the school in working with her children. Ms. C. stated it was the teacher’s responsibility to teach her children and not hers. She refused to entertain the thought of working with the children’s school. She was yelling, screaming and repeating that it was the school’s responsibility to teach her children “no matter what” and that B.’s difficulties were “the school’s problem.” She eventually settled down and stated that she wanted to meet B.’s teacher.

[50] Ms. Pascoe received numerous telephone calls from teachers during the months of March and June 2010 relating to problems with all of the children and their schooling.

[51] Mr. David Petrie was the Principal of Severn Public School and has worked with the Ottawa Carleton District School Board for twenty-three years as a teacher, a Vice-Principal and a Principal. He has a Bachelor’s degree in Education from Simon Fraser University, a Masters of Education from the University of Ottawa, together with numerous other qualifications. He has specialized in schools that cater to challenged children. Severn Public School was one such school. He testified that Severn had a high turnover rate which required teachers with special qualifications to deal with the ever changing demographics of the classrooms. He had significant contact with the students and their families. Often parents are unable to be contacted because they do not have phones or their phones are turned off. He testified that Severn is a “beacon school” with a very high number of students that study English as a second language. Four out of ten students do not speak English and do not read or write in English or French. Most families are on social assistance and many are single parent families. M. came to Severn and was placed in Grade Four, B. was in Grade One and L. was in Kindergarten. He testified that he dealt with them “on multiple occasions.”

[52] He testified that Ms. C.’s children:

... stood out to me as appearing to have been through a great deal. Innocence was absent from their faces. They appeared worn, tired and alone. There is a look children have when they are on their own, I’ve seen it often, it is disturbing. I saw that on the two oldest children. Academically this was the fifth school they had attended. They have been through a lot of moves and there were significant gaps in their learning.

[53] Mr. Petrie noted that M. was protective of the two younger children. He said that this was not uncommon, but it was more noticeable with these children. He testified that B. was struggling profoundly, both emotionally and academically. The children were in both the breakfast and the lunch programs. As the school year progressed, the behaviour of these children became a concern and their self-regulation declined. The Forward Avenue Family Shelter was phoned a number of times and Ms. C. was asked to attend but she did not respond to the requests. There were winter clothing concerns. Winter clothing was provided to the children.

[54] M. could be seen to be more withdrawn. Mr. Petrie testified that M. “had a beautiful smile. He is a strikingly beautiful boy. He appeared sad. I surmised he was realizing how incapable he was in relation to his peers. He was struggling mightily in class. His reaction was gradual growing sadness.” He stated that for similar reasons B. was scoring significantly below her Grade level. She struggled and became anxious and defiant. She would leave her classroom to go to the bathroom and not return. She would lie on the ground and cross her arms. She was stressed and unable to cope. Mr. Petrie found that L. was “just plain angry.” He would run from his class, throw and kick things. “He was simply not coping.”

[55] In early June, Mr. Petrie had to suspend L. because he had been physically aggressive with his teacher, hitting and kicking her. He telephoned the Forward Avenue Shelter and left a letter in L.’s backpack. The next morning he made a point to remain in the kindergarten yard so that he could meet with Ms. C. Ms. C. arrived by car and brought L. half-way to the kindergarten area then ran back to the car. As a result, Mr. Petrie was unable to speak to Ms. C. He stated that she was very hard to reach and typically did not respond to any messages which were left at the Forward Avenue Shelter desk. This concerned him because the children had “huge needs.” He was able to talk to Ms. C. “a few times” about the children’s wellbeing, lack of progress and unhappiness. He wanted to involve a social worker, a school board consultant and a learning support consultant and he required signed consent from Ms. C., but she did not wish to sign any consents and in fact never did. He found Ms. C. to be an angry person. She was never rude or disrespectful but rather “just very angry,” making it hard to engage with her about putting systems in place to assist the children. Eventually, Mr. Petrie had no alternative but to contact the Children’s Aid Society and ask them to become involved with the children.

[56] I was very impressed with Mr. Petrie. He struck me as a highly devoted educator who placed the interests of the children first. I have no reason to disbelieve his testimony. Ms. C. testified that she did not avoid speaking to the teachers at Severn Public School or Mr. Petrie. With respect to his testimony regarding the children, she stated that he must have been thinking of another family, not hers. I reject this testimony, and I believe Mr. Petrie’s testimony to be both true and fair.

[57] Ms. Pascoe’s evidence also corroborates Mr. Petrie’s. As earlier noted, Ms. Pascoe testified that she spoke to each of the children’s teachers while at Severn public school and all the teachers complained that the Ms. C. was not attending meetings.

[58] Ms. Pascoe also expressed concern during the course of her evidence with the Ms. C.’s use of marijuana. I have already made mention of the April 1, 2009 visit, when mother was in the basement and had smoked marijuana, but there are other occasions when Ms. Pascoe attended at her home and smelled marijuana. Ms. C. never denied smoking marijuana and indeed during her testimony stated that when she could afford to buy marijuana, she would smoke it as regularly as she could, simply to relax. She maintained that she never smoked marijuana while in a care giving role. She told Ms. Pascoe that she smoked marijuana about three times a week. When interviewed about it in 2007, she said she had been smoking for about 5 years. It did not seem to concern Ms. C. that the marijuana was illegal. My impression is that she associated marijuana with the typical way of life in Jamaica where she was born and spent her early years.

[59] In my opinion, Ms. Pascoe, as I stated earlier, bent over backwards for this family, notwithstanding the continued breach of conditions agreed to by the Ms. C., Ms. Pascoe, in consultation at times with her supervisor, chose to turn a blind eye to Ms. C.’s breach of conditions and continued to work with the family in attempt to keep the family unit together. It became clear to her that during the year 2010 Ms. C.’s continued defiance of the conditions to which she voluntarily agreed required action. The children were, to use Mr. Petrie’s expression “suffering mightily.” Reference may be had to the Family Group Conference held on November 26, 2007, where, in my view, the Society put its best foot forward in an attempt to keep the family unit together by reaching out to the extended family with a view to gaining support for Ms. C. to cope with the stressors she was experiencing. Notwithstanding that plan, these best efforts simply did not work and within months thereafter, Ms. C. and the children were once again in dire need of intervention. The extended family supported her for a few months then stopped. The support became sporadic. Ms. Pascoe was required thereafter to constantly bring food vouchers to assist Ms. C. As a result the application was taken before Madam Justice Ratushny to have the children brought into care.

[60] Ms. Kerri Wilson had experience working in group homes and with the Catholic School Board as an education assistant for children with disabilities. She has a Bachelor’s degree in Social Science with majors in Psychology and Criminology. She inherited Ms. C.’s file from Ms. Pascoe. She managed the file from September 29, 2010 – June 29, 2011 when she turned it over to Ms. Jeannie Lindstrom. At the time Ms. Wilson inherited the file the children had been taken into care and placed with foster parents. As previously noted, the children were taken into care on September 30, 2010, and have remained in care with the same foster parents to this date. Ms. Wilson had similar observations concerning Ms. C. as did Ms. Pascoe. She witnessed her volatile temper, her aggression towards Society workers, and her extreme bitterness that her children had been sent to a foster home. Ms. Wilson also had similar difficulties in attempting to reach Ms. C. At one point Ms. C. told Ms. Wilson that she had lost her cell phone.

[61] Immediately upon being taken into care, each of the children was examined by a physician; none showed evidence of physical abuse. The children’s problems were more in the psychological domain, and the emphasis was placed on getting them settled psychologically so that they could meaningfully participate in schooling. Ms. Wilson had numerous contacts with teachers and the foster mother to ensure the children received appropriate medical attention and schooling. Ms. Wilson was also active in assessing alternative care plans put forward by extended family members. L.W.’s father, Mr. W., indicated that his sister would be willing to care for L.W. Ultimately, that plan was withdrawn. A second plan put forth by L.W.’s paternal aunt from Toronto was similarly withdrawn. Mr. C., the father of M., B. and L., expressed some interest in putting forth a plan for the three children which would include the children living with his sister as she had stable and adequate housing. Eventually Toronto Children’s Aid Society reported back to the CAS in Ottawa that they would not recommend Mr. C.’s sister as an appropriate kinship placement for the children.

[62] Similar to Ms. Pascoe’s observations, Ms. Wilson developed concerns concerning Ms. C.’s mental health as she continued to deal with her. She became concerned of the dramatic fluctuations in Ms. C.’s mood and the difficulty of predicting her reaction to different situations. Sometimes Ms. C. would be calm, other times very angry. When informed that the children were being placed on medication, Ms. C. “launched into a tirade” claiming that no one had told her that they were on medication and denying that she had been given the information previously. I accept Ms. Wilson’s evidence that Ms. C. had been given this information previously.

[63] Significantly, during the course of Ms. Wilson’s involvement with the file, Ms. C. did not undertake any programs or services to mitigate the Society’s protection concerns with the exception of one parenting program called “Beyond the Basics” which was offered on Tuesday and Thursday nights at the Pinecrest Queensway Community Health Center. Her participation in that program was not very successful because she was in the habit of challenging the views of the presenters and criticizing the fact that the program was not culturally sensitive, notwithstanding that there were a number of other new Canadians from various countries taking the course.

[64] Ms. C. told Ms. Wilson that she “would not be doing any programs, not anger management, not support programs, nothing.” She would not be providing clothes for the children while they were in care and would not be cooperating any further with any other program. She complained about access arrangements and her lack of money.

[65] Ms. C. was chronically late for her access visits with her children, all of which were supervised. The Society had to inaugurate a physical check-in time before access would be provided so that the foster parents would not be required to drive the children to the access center unnecessarily.

[66] Ms. C. was irate that she could not have her children with her at home on Christmas Day, 2010. After some argument, access was made available to Ms. C. on Christmas Eve at a supervised access center. Christmas access was arranged at the Society’s location because attempts to provide access at one of Ms. C.’s relatives met with Ms. C.’s refusal. Ms. Wilson ensured that Ms. C. had gifts to give the children for the Christmas access visit.

[67] From the end of September to the end of December, Ms. C. was late for eighteen out of twenty-four access visits, missed three and was on-time for only three. She had been making derogatory remarks about the foster mother and various society workers. As an example, Ms. Pascoe was referred to as a “bitch.”

[68] On the positive side, when Ms. C. did show up for access visits, she provided nourishing home cooked meals for the children, and eventually agreed to commit to arriving early for visits; fifteen minutes early on Thursdays and thirty minutes early on Saturday. She was clearly advised that if she arrived late, the children would not be brought for the visit and the visit cancelled.

[69] On January 26, 2011, Ms. Wilson, together with her supervisor Ms. Gorman, met with Ms. C. to discuss ongoing concerns about her continued aggression and angry nature towards the children and society workers. Throughout this meeting, Ms. C. insisted on how hard things were on her, including the stress of appointments, cooking, etc. She was angry, raising her voice and pointing her finger. It was clear to the workers that Ms. C. lacked any insight into how her conduct was affecting the children. Another meeting on February 26, 2011 was held to inform Ms. C. to stop engaging the children in inappropriate topics of conversations, specifically derogatory comments concerning Society staff.

[70] By May 2011, Ms. C.’s access was reduced to one two-hour Saturday visit per week due to the concerns regarding her aggression, display of anger and disregard of staff cues during an access visit on May 12, 2011, more detail of which shall be mentioned later. From that date onwards access has occurred from 10:00 a.m. to 12:00 p.m. on Saturdays.

[71] A meeting with Ms. Jeannie Linstrom, Ms. Wilson and Ms. Gorman was arranged to discuss ongoing concerns with Ms. C. The meeting was scheduled for May 20, 2011. Ms. C. phoned to say she would be late for the meeting, and as it turned out she was so late that the meeting had to be re-scheduled the following week. Ms. C. attended with her lawyer. The Society’s lawyer was also present. The discussion centered on the Society’s expectations for Ms. C.’s access visits including having structure, being respectful and engaging in appropriate topics of conversation, and Ms. C. becoming verbally and physically aggressive with the children during access. A further meeting was scheduled for June 29, 2011 to see what progress had been made. At the June 29 meeting, Ms. C. was informed that given the ongoing concerns, access would have to be changed to Friday to ensure adequate staffing to deal with issues that were arising during access as the access was already double staffed to ensure proper supervision. Ms. C. was agitated throughout the meeting and did not appear to have any insight into her own responsibility in determining the success of access visits. She blamed the children’s poor behaviour on the Society, informing them that they were unable to understand how she was feeling or what she was going through.

[72] During her dealings with Ms. C., Ms. Wilson sometimes questioned whether Ms. C. was under the influence of drugs due to her rapid changes in mood.

[73] Ms. Wilson’s observations of the children were consistent with Principal David Petrie’s. She felt like L. lacked boundaries, had temper tantrums, was difficult to re-direct, would run away from school, and was assigned an assistant to be with him personally. B. became upset very easily, lacked boundaries, was very quick to climb into the lap of strangers and lacked safety understanding. She found M. quick to anger, withdrawn, quiet and difficult to engage. She attended meetings at the school on November 4, 2010 and December 7, 2010 to address the needs of the children. All children were classified as being at risk.

[74] In April 2011, she attended a meeting to deal with the children’s problems and it was agreed that M. would be placed into a special teaching program run by a Children’s Hospital of Eastern Ontario (“CHEO”) called “Steps for Success” a school based program for special needs children with mental health concerns. The concern about M. is that he was withdrawn and depressed. Ms. Wilson discussed these issues with Ms. C. who took the position that there was nothing wrong with her children and did not feel that they had any special needs. She was told that the school felt that they suffered from Attention Deficit Disorder which made Ms. C. very angry.

[75] A letter was received from one of the teachers indicating that M. had at one point placed a rope around his neck and caused the teachers to be concerned that he might be contemplating suicide. Ms. Wilson also believed that Ms. C. was manipulating the children to view her in a negative way. At one point, Ms. C. called Ms. Wilson a “bumble-clod” in front of the children, a Jamaican expression indicating derision of an individual. Throughout this time Ms. Wilson would provide Ms. C. with bus tickets and food vouchers to ensure the children were well fed during access visits. Ms. Wilson observed the children during access visits which were sometimes chaotic. She also saw the children in the foster parents’ home. She noted that the children were very different there. They took directions well, and interacted more calmly with one another. The children were assessed by a child psychologist Dr. O’Kelly who eventually prescribed medication for the children.

[76] Ms. Michelle Tyrrell inherited the file from Ms. Wilson. Ms. Tyrrell has a Bachelor’s degree Law, Criminology and Criminal Justice and a diploma in Social Service. She has additional training in mental health and child development. She has worked with the Society as a child protection worker since August 2001. Previous to that she worked with the Boys and Girls Clubs in Ottawa. She took possession of file from Ms. Wilson in August 2011, and worked in concert with Ms. Jeannie Lindstrom who was the designated children’s worker. During her meeting with the team which included the supervisor Ms. Kim Gorman, Mr. Tim Dickert (the worker assigned to supervise the access) and legal counsel, discussions were held with respect to the report of the Family Court Clinic prepared by Dr. David McLean which was delivered on June 27, 2011. Dr. McLean recommended that given L.W.’s age, and her strong wish to return to her mother, and notwithstanding the concerns that he had with Ms. C.’s abilities to parent, L.W. should be returned to her mother and that the three younger children be placed for adoption. Dr. McLean recommended that should L.W. be returned to her mother, Ms. C. should undertake programs in anger management and parenting skills. Following meetings of the team, it was decided to return L.W. to her mother, commencing with weekends, and eventually in January 2011, full time.

[77] Ms. Tyrrell monitored the return of L.W. to her mother, and during the course of her dealings with Ms. C. she drew similar conclusions with respect to mother’s personality as Ms. Pascoe and Ms. Wilson. She had concerns about Ms. C.’s mental health, her ability to manage her anger, her lack of cooperation with professionals, her inability to manage finances and her verbal and physical aggression. Ms. Tyrrell felt strongly that Ms. C. required courses in anger management and parenting. As of the time of trial, Ms. C. had not undertaken any courses.

[78] Ms. Tyrrell noted that Ms. C. had difficulty controlling her anger from her very first meeting with her in June 2011. She had difficulty engaging Ms. C. in conversation. The initial meeting was completely unproductive. On one occasion, while waiting for a court proceeding, Ms. C. paced back and forth insisting that she “would make no deal with the Society” and that “her children would never be adopted.” Ms. Tyrrell found Ms. C. to be threatening and intimidating on that occasion. After L.W. was returned home to her mother at the end of September 2011, Ms. Tyrrell monitored the weekend visits and found that the visits were working well, and no safety issues has arisen. Her impression was that L.W. and her mother “were more like sisters than mother-daughter.” L.W. was perfectly capable of taking care of herself and standing up to her mother, which allayed Ms. Tyrrell’s concerns about Ms. C.

[79] Ms. Tyrrell testified that she took part in a number of meetings, including with legal counsel, leading up to the decision of the Society to recommend that the three younger children be adopted, but that they would have access to each other and with their mother. She testified that the decision was a difficult one to make but because L.W. was living with her mother and the CAS team believed that the three younger children should continue to see L.W., it would be inevitable that L.W. would be speaking about Ms. C. and it was decided that the wisest path to follow would be to permit access to mother following adoption. Ms. Tyrrell testified that unlike L.W., all three younger children were special needs children and did not have the maturity nor the resilience L.W. possessed, or her level of intellect.

[80] Ms. Jeannie Lindstrom has a Bachelor’s degree of Arts in Psychology and a Bachelor’s degree of Social Work. She was employed with the Salvation Army in Toronto as a child worker in the Jane/Finch corridor from 1987-1991, then she came to Ottawa to work with the Children’s Aid Society. She is highly trained and has attended numerous programs offered by the Children’s Aid Society. She began working actively on the file in February 2011, and was assigned specifically to work with the children.

[81] She testified that the children were doing very well in care, they like their foster home, their foster mother is very well organized, and the children are happy and well settled in the home. They all have routines. She testified that initially L. was having a very difficult time in school, not managing well and having temper tantrums. He would take off from class and had a very low frustration level. “He is a very busy little boy, always struggling.” He attended school in the morning and daycare in the afternoon. Ms. Lindstrom testified that at time of trial L. was doing extremely well in Grade One. He was learning, demonstrating that he was capable of learning, and very well settled.

[82] Initially B. was not learning, behind academically, easily upset, very anxious, easily distracted, and unable to sit still. A psycho-educational assessment was ordered. She was functioning well below Grade Two. At time of trial she was doing very well, reading stories and had been prescribed medication for Attention Deficit Hyperactivity Disorder (ADHD).

[83] Initially M. was very difficult to engage and didn’t wish to talk. There was very little eye contact and he was not doing well in school. “He hated it, actually. He just presented as a really unhappy young man.” His report cards indicated that he was struggling. Following assessment, M. was placed in the “Steps to Success” program through CHEO, earlier noted, designed for special needs children who are at risk of failure. He was also prescribed anti-depressant medication.

[84] Ms. Lindstrom testified that at time of trial, M. “was loving his school, doing well, making progress, and feeling positive about his future.” He was making friends and he was conversing. “Night and day is the best description.” It may be remembered that in June, M. had tied a skipping rope around his neck at school, causing everyone serious concern. At the beginning of September 2011, all children had changed schools. L.W. moved to Notre Dame, M. was attending the “Steps to Success” and B. and L. were moved to Bridlewood Public School near the foster parents’ home. The children all like their new schools and are happy with their teachers. During the summer of 2011 the children attended camp. L. and B. went to swimming day camp and gymnastics day camp. B. attended a dance day camp, M. attended a sports day camp and an overnight camp for one week. The foster family rented a cottage for two weeks. The children attended the cottage and spent positive time together.

[85] L. required major dental work which was provided to him. B. was being assessed for speech and language issues, and with the change in schools she was moving forward much quicker than anticipated. Dr. O’Kelly prescribed ADHD medication for both M. and B. M. reacted poorly and was taken off the medicine but B. reacted well and remains on the medicine.

[86] All three children bed-wet significantly. The two older children are on medication for bedwetting and improvement has been noted. Ms. C. testified that bedwetting was common, and that she herself experienced it until age twelve, and that it was her habit to wake the children up and put them on the toilet during the night. The foster mother testified that she requires a good night’s sleep and with appropriate diapers and medicine, the bedwetting is under control and the children also get a full night’s sleep.

[87] Ms. Lindstrom testified that the children have all been seen by many professionals, who together have greatly improved the children’s medical, psychological and educational needs.

[88] When the decision was made to return L.W. back to her mother, Ms. Lindstrom had to discuss this with the other children. When told that L.W. was returning home L. left and cried, “B. said she was going to cry but did not need to.” Ms. Lindstrom informed the youngest children that a judge will decide what will happen to them. Both L. and B. have told Ms. Lindstrom that they would like to go home. Ms. Lindstrom explained to them that sometimes a third person was necessary to make the decision for them. Ms. Lindstrom testified that “Kids normally say they want to go home.”

[89] Ms. Lindstrom met three times with M., whose position has never changed and indeed has been confirmed by Ms. Feeley, the Children’s Lawyer, who has also met with M. on three separate occasions. Briefly stated, and as is noted in the report of Dr. McLean, M. is ambivalent with respect to his placement. His position has never changed. He would be happy to return to mother, and he would also be happy to be placed for adoption. However, if placed for adoption, he wished to be adopted alone because he finds too much attention is paid to B. and L. by his foster mother. Also, if adopted, he wished to continue to have access to his mother and siblings at least once a month and on special occasions.

[90] Mr. Tim Dickert, while youthful, has a wealth of experience dealing with children. He graduated with a Bachelor of Social Science degree with a major in Psychology from the University of Ottawa. Has worked as a day camp supervisor, taught Sunday school, was a Scout leader, worked with the Youth Services Bureau at the William Hay Secure Detention Center and the Sherwood Detention Center for Youths. He worked as a caseworker for homeless youth with the John Howard Society for two years and ran a children’s program for at risk children. He also worked at the Genest Detention Center for Youths in London, Ontario for seven months. Since November of 2010, he has been in charge of the Children’s Aid Society child access program and has worked with over fifty families.

[91] He was assigned to work with Ms. C. on November 25, 2010, and has done so to the time of trial, some fifteen months in duration. All visits by Ms. C. to her children have been supervised. The first few visits were supervised by Ms. Kerri Wilson. From October 21, 2010 – March 23, 2011, visits with all four children were scheduled on Thursdays from 4:30-5:30 p.m. at the Kanata CAS visitation facility and on Saturdays from 10:00-12:00 p.m. at the Telesat visitation facility. Telesat has more room and Ms. C. is typically given the pre-school room which is much large than other rooms, it has a smaller sink for the children, toilets, books, toys, television set, computers, access to an outdoor play area with structures to play upon.

[92] From March 23, 2011 – April 20, 2011, the children were seen on Wednesdays from 4:30-5:30 p.m. and Saturdays from 10:00-12:00 p.m. Commencing April 21, 2011 – May 12, 2011 Ms. C. visited with L.W. and M. on Wednesday from 4:30-5:30 p.m. and with B. and L. on Thursday from 4:30-6:00 p.m. as part of the “Beyond the Basics” parenting program.

[93] Effective May 13, 2011, access visits were reduced to one visit per week due to Ms. C.’s behaviour including aggression, displays of anger and disregard of staff directions during an access visit on May 12, 2011. Access visits were subsequently scheduled for Saturdays from 10:00-12:00 p.m. From May 28, 2011 – August 10, 2011, access visits were supervised by two CAS Workers due to concerns regarding Ms. C.’s volatile behaviour.

[94] On June 25, 2011 access visits were moved to weekdays to ensure that there was sufficient staff and security available for the visits. Visits resumed July 8, 2011. Effective August 10, 2011 access visits were once again supervised by Mr. Dickert alone sitting in the visitation room. Since the end of May 2011 to the present time, access visits occur once a week on Saturdays between 10:00-12:00 p.m.

[95] Mr. Dickert identified positive strengths on the part of Ms. C. As noted earlier, she would always arrive with healthy home cooked meals. She displayed affection consistently, she interacted with L.W. consistently, and she engaged in outdoor and organized play. She kept a clean and orderly access room, she inaugurated a sticker reward system for L. and B. which she learned from “Beyond the Basics” program, and showed improvement to arriving on time for visits. She was also receptive to Mr. Dickert’s observations as to how to improve her access visits.

[96] Frequently after visits, Mr. Dickert would speak with Ms. C. to discuss the goals, concerns and observations. Often at times when he made suggestions Ms. C. would be oppositional and confrontational. Other times, she was receptive to suggestions but her follow through was limited. Mr. Dickert observed that Ms. C. had difficulty putting her personal frustrations aside in order to ensure positive visits with her children.

[97] As to his concerns, he listed five: chronic lateness, lack of structure, lack of child focus, anger, and use of physical discipline.

[98] With respect to lateness, Ms. C. was late for thirty-two out of one hundred and three visits of which eighteen were cancelled because of her lateness. As a result, Ms. C. was required to check in fifteen minutes prior to weekday visits and thirty minutes prior to Saturday visits, and also limit the number of visitors, one visitor for the weekday visit and three for the Saturday visits. Conversation about money issues, adoption and speaking poorly about the foster parents was discouraged.

[99] Mention has been made of the May 12, 2011 visit, that was cancelled because of lateness. Ms. C. was quite aggressive, yelling and swearing at the facility reception, using the word “bumble‑clod” repeatedly, requiring security to be called, at which point Ms. C. said “Fuck you” and left the building. Ms. C. denied using the f-word and her friend Mr. F. who was present at that particular visit also does not recall Ms. C. using the “f-word”. I have little hesitation in concluding that she indeed did uses the “f-word” as her own children have commented that she used the “f-word” in the home. Following this unfortunate incident, access was reduced to one visit each week, on Saturday mornings.

[100] As to lack of structure, Mr. Dickert testified that he observed it consistently and discussed it with Ms. C. The children would consistently resort to roughhousing and arguing but he observed that there was some improvement as time went on.

[101] Respecting lack of child focus, Mr. Dickert found often that Ms. C. was pre-occupied with preparing the meal and ignoring the children, or alternatively cleaning up the access area and ignoring the children. His general impression was that Ms. C. has unrealistic expectations of the children when they didn’t immediately respond to her commands and would berate them.

[102] As to Ms. C.’s anger, and from the incident of May 12, 2011, Mr. Dickert noted anger on a number of occasions as set out in his lengthy affidavit. On April 9, 2011 Ms. C. got quite upset with M. following which Mr. Dickert spoke with Ms. C. for twenty-five minutes about her reaction, Ms. C. stated “It takes two. M. makes me like this. He gets me upset when he’s not listening and not respecting me.” She told Mr. Dickert that she had been yelling at her children for five to six years, but didn’t slap them. A visit on June 25, 2011 was cancelled halfway through because of Ms. C.’s anger resulting from L. crying.

[103] Respecting physical discipline of L., Mr. Dickert personally witnessed this. On April 6, 2011, Ms. C. took L. to the corner for a time out and held him very roughly by his forearm until L. was saying “Ow.” On a community visit during M.’s birthday on […] when they attended the Coliseum Movie Theatre, Ms. C. arrived late and had no gift for M. She forcefully took L.’s forearm while going down the stairs until L. cried “Ow” and then ran away. Mr. Dickert followed L. and tried to comfort him.

[104] On June 29, 2011, Mr. Dickert had a discussion with Ms. C. about her anger and aggression and she responded by glaring at him and stating that he did not understand her feelings.

[105] Mr. Dickert acted as co-facilitator together with Ms. Bonnie Caroll of the “Beyond the Basics” program. It was an eight week program directed to parenting appropriate discipline, enhancing self-esteem, safety issues and nutrition. Each class was two hours in length and includes one and a half hours of access. Ms. C. learned a sticker reward system in the program. However, in class he found she was at times oppositional to the teaching. She told the class that she does not have a schedule for her children and does not believe in routines. At times she would glare at other participants. The program was multicultural, with a variety of people from other cultures. Mr. Dickert testified he had never had any criticism of a “cultural disconnect.” Ms. C. told Mr. Dickert that L.’s behaviour would be unaccepted in Jamaica and that he would have been slapped. On the feedback questionnaire she stated that she had learned “Nothing.”

[106] Mr. Dickert did note that in access visits, following the “Beyond the Basics” program, Ms. C.’s behaviour improved, including the use of the reward sticker program. At no time did Mr. Dickert observe Ms. C. slap any of her children while exercising access.

[107] Mr. Dickert’s major issue with Ms. C. is that she demands compliance from the children which he deems unrealistic. If the children do not comply with her commands she speaks in a stern voice or shouts and yells at them. He testified that he did not have a problem with a parent being stern but he did have a problem with yelling and that the repetition of this manner of discipline concerned him. Ms. C. would quote the Bible, to the effect that children should listen to their parents.

[108] Ms. C. chose not to attend the final in-class feedback session on May 17, 2011 because of frustration that her access visits has been put on hold as a result of her temper tantrum on May 12, 2011. In a voicemail message on Tuesday May 17, 2011, Ms. C. stated: “I’m not going to come to your parenting disaster program because I may box that skinny little shit in her face. Make that be known.” Ms. C. was referring to Mr. Dickert’s co-facilitator, Ms. Bonnie Caroll.

[109] The foster mother, Mrs. M., testified. Mr. and Mrs. M. have been married for twenty‑nine years. They have a son age 26, a daughter age 21 and a new grandson. Both her children are successful. She and her husband have taken numerous courses in the subject of foster parenting including how to deal with special needs children.

[110] On arrival in the home, L. was extremely active and boisterous, very loud, would yell and jump, and did not want to go to bed. He would laugh hysterically at things that were not funny. He had trouble with self-regulation and could not calm himself. If he did not get his way, he would cry yell, kick and scratch. L. was simply unable to contain himself. Since then L. has made “tremendous progress.” He had a childhood educator assigned directly to him for kindergarten to keep him focused and not be rough with classmates. That ended in April 2011 and he no longer needs a one‑on-one educator. He is now able to participate with his schoolmates. For the entire school year 2010 – 2011, Mrs. M. drove the children to Severn School, which took forty-five minutes to get them there and an hour to collect them and bring them home. Because of the uncertainty of the legal proceedings, their school was changed to one nearby in Kanata and the children have integrated into that school very well. L. is much calmer at home because of the consistency in his routine. Each night he is read a story, and then goes to bed. The roughhousing has stopped. Meal times are much calmer. Mrs. M. testified that her own father had noticed the remarkable difference in behaviour of all the children between Christmas 2010 and Christmas 2011.

[111] B. posed similar challenge. When she came into care, B. was extremely bossy and very emotional when she did not get what she thought was fair or right. She wet her bed every night and has done so ever since. For the first month B. did not want to go to bed and insisted that “You can’t make me.” She would scream and cry for about forty-five minutes and then finally fall asleep. Mrs. M. discussed the matter with L.W. who informed her that it was B.’s habit to stay with Ms. C. and watch television until she fell asleep. Alternatively, B. would remain with L.W. until she fell asleep. At other times she would watch her brother play videogames or watch movies until she was ready for bed. B. was extremely emotional and sometimes hysterical. At times she would come into the kitchen, gyrate her hips and make suggestive gestures. She would lie on the floor and touch her breasts and groin. When asked about this behaviour she said “I’m dancing. I know how to pole dance.” When asked how she knew that B. stated that she had seen it on television. She was told that that behaviour was not permitted. The behaviour stopped after a few days.

[112] Mrs. M. testified that when B. came to her at the beginning of Grade Two she was unable to read, she simply made sounds. Special help was provided for mathematics and reading. She was easily frustrated by not being able to perform correctly. She would shut down and get under her desk. Within about five months, an assessment was initiated for B. and she was placed into a Grade Two/Three spilt at Bridlewood. B. is now a confident reader. Initially spelling was a huge challenge for B. and she is now getting 100 percent on her spelling tests. The teacher has informed Mrs. M. that there are no longer problems with B. She is still not at a Grade Three level, but in a few years she is expected to catch up to the others if she continues to receive support.

[113] When brought into care M. was very withdrawn and quiet. He would not speak much. He would tap his feet and tap the table, constantly drumming. He was constantly telling his siblings what to do. The foster parents had to tell M. that it was their job to discipline the children. He told them “You are stupid.” He was very rude to the foster parents. About a week after his arrival there was a significant blow-up after he had been disciplined. He was banging the walls. He was told that he was not permitted to come back downstairs until he had calmed down. After about five minutes M. did come down and started colouring. Mrs. M. stated that that was the only incident she witnessed with respect to M. being out of control. M. had problems in his school and was hiding in his cubby-hole at school. He was reassessed by CHEO and placed into the “Steps to Success” program, where he was doing much better.

[114] M. would also cry frequently for a few months and tell Mrs. M. “I hate my life.” This is when Dr. O’Kelly became involved and prescribed anti-depressant medicine. M. has responded very well to this medicine and is now seeing a psychologist.

[115] When asked whether the children discuss their mother, Mrs. M. stated that they very rarely ever discuss their mother. If an access visit is cancelled, she states there is no reaction from the children. When she asks how a visit goes, the most she would ever hear is the word “good.” Generally, there is no discussion concerning the visits.

[116] When asked why she believed the behaviour of the children has improved so significantly, Mrs. M. said it was due to the imposition of strict routines on the children. She testified with respect to the routines of each child throughout each day including their activities. She makes a point to speak to their teachers daily and makes lunches for all three of the children. Each child has specific preferences with respect to meals and Mrs. M. caters to those preferences. Doctor visits are all coordinated as are the children’s activities. Each child knows exactly what is expected of him or her and is now completely used to the discipline and routine.

[117] With respect to discipline, Mrs. M. explained that the children now understand that every action has a reaction and that consistency in discipline has made a huge difference in the children’s lives. They are denied access to television or computers if they do not act properly and they are rewarded if they do act properly.

[118] When asked about the relationship between the siblings, Mrs. M. testified that if the children are not directly involved in watching a movie, such as on the usual Friday night movie night, then it is very rare for the three children to interact. B. and L. play well together. B. and M. are capable of playing well together, but M. and L. tend to clash. When together the children tend to argue about everything, more typically between B. and L. She testified that the children do not have a natural inclination to share anything. Each child must ask permission to play with another child’s possession and typically the answer is no and the response is crying. Mrs. M. testified that when L.W. was living with her, she tended to ignore the younger children and the younger children ignore her. This is because she is significantly older. Since L.W. has left the home, bedtimes have become easier for B. because she is now alone in her room.

[119] In late January 2012, the foster parents picked up L.W. to take her with M. for a Camp Smitty reunion and then had supper out and went to a movie. She said it was a good visit and very positive. When asked about the younger children’s reactions to L.W. going home, both L. and B. said “It’s not fair.” B. stated “Why not me too?” L.W. had been on a regime of extended access visits to the mother before she finally left the home on January 19, 2012 when they had a goodbye dinner. Mrs. M. was surprised because she was expecting L.W. to be excited about going home, but she was instead tearful and stated “Do I have to go tomorrow?” She also “felt really bad” that she was going home and the others were not.

[120] For the first several months after the children were brought into care, Mrs. M. and her husband would drive the children for access on Saturdays and then Thursdays were added. She recalls that many times the Saturday visits did not start until significantly after 10:00 a.m. She recalled once waiting until 10:45 a.m. The children were very grumpy and wanted to go. She recalls they were not permitted to leave the building until 10:20. She then stated that a policy was put in place so that Ms. C. had to be at the access facility by a certain time or else Mrs. and Mr. M. would not leave home with the children. Eventually the Thursday access was cancelled. She recalls a number of occasions where she was telephoned and told not to bring the children to access. When told there would be no visit the children had “no reaction, no sadness, no crying. Quite ambivalent.”

[121] When Mrs. M. told the children that she would be in court the next day and whether there was anything they wanted her to tell the judge, M. stated “Can I live with my Dad?” Mrs. M. explained that he lived in Toronto which was far away and he repeated “Well, why can’t I live with Daddy?” When cross-examined about this by the Children’s Lawyer Ms. Feeley, Mrs. M. explained that the father of the children, Mr. C., had been regularly calling the children from Toronto and on one occasion, while the children were in her care, the father had lunch with the children. The children were excited to see him. Ms. Feeley expressed surprise that M. would request to live with his father because in her three lengthy visits with M., he never expressed such a wish. Mrs. M. explained that perhaps the reason is that the father had phoned M. the night before the conversation occurred. Mrs. M. felt it was a spur of the moment thought on the part of M. In my view, this provides further evidence of M.’s ambivalence as to where he wishes live.

[122] In cross-examination by Ms. C.’s counsel, Mrs. M. agreed that L. continued to have some difficulties in controlling his emotions and would sometimes continue to engage in disruptive, loud or inappropriate behaviour. She testified that sometimes this is due to change in routine, but not always. Sometimes it is just because of his mood. Mrs. M. also testified that the month of June was a difficult month for L. as a result of the visits to the Family Court Clinic both at the clinic and at Ms. C.’s home.

[123] Mrs. M. explained that both M. and B. are on medication for bedwetting. L. is too young for the medication. M. is on anti-depressant medicine and B. on medicine to control her ADHD. The children are placed in diapers at night, fluids are limited and the bedwetting problem is under control. She testified that children can bed-wet right to adulthood and that her own son bed-wet until age 13. While she agreed that siblings often fight with each other, she stated that compared to her own two children, the foster children fought much more. With respect to the strict routine she has placed the children on, she testified that she tried to lighten up the routine on weekends but it affected their behaviour and so she had to return to strict routines even on weekends. The children are brought to church every Sunday. As far as the relationship between Ms. C. and the foster parents, Mrs. M. stated that there was no problem in the relationship.

Report of the Family Court Clinic

[124] Dr. David McLean is the director of the Family Court Clinic of the Royal Ottawa Hospital and the author of a 44 page report dated June 27, 2011. Dr. McLean graduated from the University of Western Ontario Medical School in 1976. He interned with the Ottawa Civic Hospital and the Children’s Hospital of Eastern Ontario. He did his psychiatric residency with the University of Ottawa between the years 1977–1981 at the National Defence Medical Center, the Ottawa Civic Hospital, the Ottawa General Hospital, the Royal Ottawa Hospital and Carleton University Mental Health Services. He has taught at the University of Ottawa in the Department of Psychiatry and at the University of Ottawa Law School on the subject of Psychiatry and the Law. He was trained as a forensic psychiatrist before joining the Family Court Clinic as a staff psychiatrist at the Royal Ottawa Hospital in 1981. He became Director of that clinic in 1990 and continues in that capacity to this day.

[125] Dr. McLean is well known to the Ottawa courts, and has offered between 1500–2000 assessments on behalf of the Family Court Clinic and testified as an expert on approximately 150 occasions. In preparing his report, he met with Ms. C. on six occasions between December 2010 and May 2011. He observed Ms. C. in interaction with the children on May 9, 2011. He met individually with M. and L. on May 9, 2011 and with L.W. and B. on May 18, 2011. On January 26, 2011 he met with the involved Children’s Aid Society workers, Ms. Elissa Pascoe and Ms. Kerri Wilson.

[126] He was assisted in the preparation of his report through the administration of psychological tests provided by Ms. Sylvie Leblanc, a psychological associate for the Family Court Clinic; a Social Work Assessment prepared by Ms. Victoria Hasbani MSW, a social worker with the Family Court Clinic, who in turn conducted social work interviews of Ms. C. on April 11, 2011, followed by a home observation visit with the children. Ms. Hasbani was also present for the family court interaction visit on May 9, 2011, and conducted telephone updates with Ms. Wilson on May 13, 2011. Ms. Hasbani also conducted a telephone interview with Ms. Christine Verkulp, the interim executive director of Britannia Woods Community Center, on April 5, 2011, and a telephone interview with the children’s foster mother on May 12, 2011. On June 2, 2011, she conducted a telephone interview with Mr. C., the father of the youngest three children, and summarized all affidavit materials prepared by Ms. C. and the CAS workers.

[127] In his report, Dr. McLean summarized the history of Ms. C.’s relationship with the CAS which has been set out in detail in this judgment.

[128] The psychological testing of Ms. C. was interpreted based on United States norms as Jamaican norms are currently unavailable. Dr. McLean noted that studies have shown that individuals born outside the U.S. or Canada obtain significantly different mean scores and thus the clinical data would have to be considered with caution. Nonetheless, I would note that Ms. C. had lived in Canada since age 13.

[129] The MMPI-2 suggested that Ms. C. was quite open and frank in her responses, that she tends to be assertive, tough minded, bold and not particularly interested in the traditional feminine role and interests. She may also feel uncomfortable in situations where she has little control. She sees others as dishonest, selfish, and uncaring. She feels misunderstood and unfairly treated. She is likely unwilling to rely on others for help or support. She also appeared to be guarded and suspicious of the motives of others.

[130] The MCMI-III the testing suggested that Ms. C. was attempting to give a positive image of herself. Despite that, the profile suggested that she has a tendency to be moody and temperamental. At times she may treat people in an agreeable and friendly manner, but on other occasions she can be irritable, touchy, hostile or argumentative. She may also be easily annoyed or frustrated by others. She is likely quick to challenge rules or authority she deems unjust and is likely to react quite negatively to criticism. The profile also suggested that Ms. C. has a tendency to be suspicious and guarded. She likely believes that others would take advantage of her if she is not constantly on guard. She feels misunderstood and unappreciated. She may attempt to magnify interpersonal slights or even distort events in order to support her own suspicions.

[131] The Child Abuse Potential Inventory Testing was deemed to be valid by Dr. McLean. Ms. C. scored in the normative range for non-abusive parents. However, she obtained significantly elevated scores on two scales. One scale suggested that Ms. C. likely has difficulty in social relationships because she views others as the cause of her personal hardships, unhappiness and pain. She also sees others as unreliable. The other scale suggested that Ms. C. has rigid attitudes and expectations towards children. Specifically, she appears to believe that children should be neat and orderly, never cause trouble, never disobey, stay clean, be quiet and attentive, and not talk back. These types of rigid attitudes and beliefs often lead to an authoritarian style of parenting that potentially could include force at times in order to have children behave according to her rigid expectations. Dr. McLean noted that the attitudes arising from this testing, together with Ms. C.’s explosive temperamental nature became apparent in the clinic interaction when she exploded verbally at L. over a relatively minor issue and then focused on her own hurt rather then L.’s distress as a confused child who felt rejected and abandoned. Dr. McLean subsequently became aware that mother had a similar blow up with L. during a supervised access visit at the CAS.

[132] Dr. McLean and his team expressed concern as to how explosive Ms. C. could be with the children when not being observed and noted Ms. C.’s aggressive and abusive response to L. was in keeping with reports of abuse of the children documented in CAS affidavits. Dr. McLean felt that Ms. C. would benefit from education on normal child development and behaviour as well as anger management training. He did note that personality issues were less amenable to therapy.

[133] Dr. McLean reviewed the history relating to L.W. and concluded that she appeared to be quite a resilient young lady who, despite a difficult childhood was not showing any major behaviour or attitudinal difficulties in the foster home or at school. Dr. McLean noted that L.W. had experienced repeated moves or changes of residence with lengthy periods out of her mother’s care, including CAS placement as well as a year with her maternal grandmother, Ms. J. He stated “I would suggest that L.W. has also been subjected to various forms of neglect as well as inconsistent and overly harsh, if not outright physically abusive discipline.”

[134] When cross-examined on this statement, he admitted that he had no objective proof to support this impression, and that it was purely his own opinion. Dr. McLean noted that L.W. is extremely protective of her mother and unwilling to make any negative remarks about her. Dr. McLean noted that “given L.W.’s resilience, age, and support from the paternal family, she would be the child at least risk through any return to her mother’s care should be respected. We would have concerns should L.W.’s stated wishes be disregarded with attempts to place her elsewhere...” L.W. was not identified as a special needs child. Rather, she impressed as a relatively mature 14 year old and Dr. McLean concluded that L.W.’s expressed wish to return to her mother’s care should be respected.

[135] Dealing with M., Dr. McLean noted that the child was in his seventh different school and was receiving resource support including individualized assistance. M. was struggling in school, had a poor attention span and was continuously being distracted with great difficulty focusing during seat work. He was having difficulties with his behaviour, particularly in less supervised situations such as playground or lunchroom. M. was also exhibiting symptoms of depression. He was having difficulty complying with school rules and had been suspended in December 2010 for persistent opposition to authority.

[136] Since entering foster care, the foster parents were dealing closely with M.’s teacher, who identified him as a student at significant risk for failure, demonstrating a high level of emotional instability. A formal academic diagnostic assessment was being conducted at the time Dr. McLean was preparing his report. M.’s teacher noted that he appeared to be in urgent need of counselling and support from medical and mental health professionals. The foster mother expressed concerns that M. had not been properly assessed for ADHD and noted that he “cannot put pen to paper” or “cannot sit still enough to complete tasks.” The foster family had hired a tutor for M. and some improvement had been noted as a result of the one-on-one support. At the time of Dr. McLean’s report, M. had just been accepted into the “Steps to Success” program through CHEO. In January 2011, M. was assessed by Dr. O’Kelly who found it not surprising that he was having academic difficulties in view of the disruption, social deprivation and numerous school changes. In that examination Dr. O’Kelly found that M. was probably suffering from ADHD. On January 30, 2011, a psychological assessment was conducted on M. which found that he was functioning at the 8th percentile or in the borderline range. It suggested that his ability to understand and reason was less developed then same aged peers. He was found at a low/average verbal comprehension skills and low/average perceptual reasoning skills with borderline skill in retaining information and low/average ability to process information quickly. His academics were well below Grade expectations as he was in the 13th percentile for reading, the 19th percentile for math, and the 2nd percentile on the written language composite score. It was found that M. would likely benefit from a learning program that provided him with frequent repetition of concepts and hands on individual support. Parenthetically, this is exactly what M. is now receiving in the “Steps to Success” program.

[137] In Dr. McLean’s examination of M. and what M. wished to tell the judge, initially he said he had nothing to tell the judge. Then he stated that he wished to return home. Then he stated that foster homes are “good places because they are busy.”

[138] Dr. McLean’s impression about M. is that he should be considered a special needs child and treated for ADHD including the use of medication if required. He requires a home environment that can provide structure and discipline, stimulation and affection, and one that can work cooperatively with teachers and other professionals. Dr. McLean wrote that:

While M. expressed the wish to return home, I am uncertain what this is based on as he was so defensive during my interview with him. It is common for children to express the wish to return home, regardless of what abuse of neglect they may have experienced there. Ms. C. was quite emotionally rejecting of both boys during the clinic interaction, sitting with her back turned to them, not speaking with them, and providing neither with any attention or affection. Given Ms. C. and M.’s joint difficulties when it comes to anger management, we would suggest that exchanges between them are likely to become quite heated and, as M. grows older and stronger, more at risk for violence.

[139] In his assessment of B., educational reports showed that she had an average attention span and needed frequent individual attention and if not encouraged would refuse to work. If she deemed an assignment too hard or not worth the effort she reportedly put her head down on her desk and might cry. If the task was doable she would boast how easy it was. She was having problems in relationships with peers, particularly in less supervised situations such as the playground or lunchroom. She argued, felt that peers were not listening to her, and would cry if a game did not go her way. She was also seen as paranoid in thinking that peers were staring at her. Since going into foster care she usually complied with rules. However, if frustrated she would flat out refuse to leave her desk. The teacher also noticed that since going into foster care she was less anxious, well put together, rested, and overall happier than before. She had been started on some medication for ADHD, the only drawback of which is that she was getting hungrier and sometimes tearful.

[140] Dr. McLean notes the history of B. being brought into foster home and her improvement since that occurrence, particularly an improvement since being placed on ADHD medicine. B. was seen by Dr. O’Kelly in January 2011, who found she was struggling academically, was inattentive, hyperactive, and impulsive with behaviour compatible with an attachment disorder. She was loud, non-compliant, manipulative, and easily over-excitable. She wished to be in control and would refuse to answer questions and would occasionally display sexual provocatively dancing and making inappropriate comments of a sexual nature. Dr. O’Kelly concluded:

This is a complex situation with multiple co-existing issues. She has inherent intellectual weakness, a history of deprivation, school absenteeism, attachment issues, and all of this could present like ADHD A trial of stimulant might be beneficial at this point now that she have gotten over the adjustment to living in a stable, supportive environment.

[141] Dr. O’Kelly prescribed the ADHD medication and in addition medication for bedwetting.

[142] The psychological assessments of B. showed that her verbal reasoning skills were at the 19th percentile, her visual reasoning skills at the 10th percentile, working memory was at the 6th percentile, but she had strengths in processing speed in the 42nd percentile. Prior educational assessment found that B.’s academic skills were well below age and Grade expectations. She had significant struggles with inattention and hyperactivity. In Dr. McLean’s interview with B., she was asked what might be done to improve things at home, and she stated that it would be better if her mother were not going out to parties. She explained that sometimes her mother would go out and not come home until the next morning. Her older sister L.W. was babysitting. She also said that she would prefer that her mother not smoke when she braids her hair and that she stop drinking explaining that her mother might drink two or more bottles of beer a day. When asked what her mother would do when she got angry, B. advised Dr. McLean that her mother might slap them.

[143] When discussing foster homes, B. explained that they were not good “because they would sometimes not give you things you ask for,” whereas her mother would give them everything they wanted when they were living at home. When Dr. McLean asked B. who would usually get in the most trouble at home, she responded “L.” When asked how Ms. C. would deal with it, she said that her mother might spank L. or send him to his room.

[144] B. was identified as a special needs child with Attention Deficit Hyperactivity Disorder and since going on medication, has made significant progress. Since arriving in foster care, she was less anxious, rested and happier. During the interaction at the clinic, she had limited interaction with her mother. She was rather ambivalent about access visits with her mother, although she wished to return home attributing this to Ms. C. giving them everything they wanted. “While B. expressed the wish to return home, this was not seemingly based on any strong attachment to mother, or on any factor which would be considered relevant to B.’s best interest.” Dr. McLean found that B. needed a stable, simulative home that can work cooperatively with the school to help ensure she educates herself sufficiently to obtain gainful employment and to manage on her own competently.

[145] At the time Dr. McLean saw L., he was still at Severn Avenue Public School as were M. and B., and was receiving support in the form of an educational assistant due to behavioural problems carrying over from the previous kindergarten year. Significant gains had been made since the assistant was provided. L. was reported as having an average attention span but having a frequent need for individual attention. He had a good relationship with his peers, including less supervised situations such as the playground and lunchroom. Prior to entering foster care he had great difficulty in the playground. Also, he would previously run out of the classroom when things did not go his way, he would become angry and cry.

[146] In Dr. McLean’s meeting with L., he was asked who loved him most in the world, and L. answered that God did. When asked whether anyone else loved him, he responded that his mother did, and his favourite person to put him in bed was his mother. He stated that foster homes are “awesome” but real homes are better because you are with your mother. Dr. McLean noted that “Children will frequently wish to return to their parents despite how badly they might have been treated or possibly abused at home.” His impression was that “The key to working effectively with L.’s behavioural problems is for the parent or authority figure to remain calm and consistent with L., offering him choices and consequences. Ms. C. on the other hand is an emotionally volatile lady, prone to outbursts of anger which may well have been modeled by L.” He also was of the opinion that mother’s affection was conditional upon the children’s good behaviour, which feeds into an insecure attachment.

[147] In his conclusions and recommendations, Dr. McLean found that Ms. C. lacked insight into her difficulties. This lack of insight as well as her difficulty in relating to others “makes therapy very difficult.”

While recent literature reviews have found that effective treatments for borderline personality disorder have been established, these treatments require a full year of dedication with a client dedicated to make changes. We have no knowledge to suggest that Ms. C.’s personality issues would be equally amenable to treatment and there also currently exists no such treatment program that I am aware of in the Ottawa area.

[148] He concluded that L.W. could not be forced into care and should be returned to her mother under a supervision order upon strict conditions including that mother attend an anger management program, as well as a parenting program geared towards older children. She should also seek out individual counselling.

[149] I pause to note that since L.W.’s return to Ms. C., mother has not pursued any programs as recommended by Dr. McLean.

[150] Dr. McLean did not support the return of the youngest three children to Ms. C. given their special needs and their increased vulnerability. He found M. to be a very angry and alienated young man, struggling academically who needs stability to support his education and allow him the optimum chance of success. M.’s mental welfare improved since going into foster care as well as the communication between home and school. “While he reported that he wanted to return home, there seems to be considerable ambivalence as he also commented on how good foster homes are, along with the activities they provide.” Dr. McLean himself did not observe any significant depression at the time he assessed M. although he was concerned with the quality of Ms. C.’s interaction with M. while at the clinic. Given the anger that M. was holding inside as well as Ms. C.’s anger management issues, Dr. McLean’s concern about future physical confrontation between them, particularly as M. grows older, led him to recommend that M. be made a Crown ward for the purposes of adoption hopefully with one or more of his younger siblings. He also suggested M. be encouraged to engage in individual counselling.

[151] With respect to B., Dr. McLean noted the improvement in B. since being brought into foster care, and agreed with Dr. O’Kelly’s finding that B. presented a complex situation. He found that B.’s wishing to return home was the result of Ms. C. being more likely to give her everything she asked for. He recommended that B. be made a Crown ward for the purposes of adoption.

[152] With respect to L., Dr. McLean concluded:

We were particularly concerned around the nature of Ms. C.’s interaction with L. and have noted previously her explosion and verbal abuse of L. and a lack of empathy as far as L.’s feeling as compared to her own. On a positive note, L. appears to have better innate intellectual ability as compared to some of his siblings and we would hope that with a stable and simulative home he should have reasonable academic success.

[153] While L. had special needs, he was responding positively to the foster home and a notable improvement in behaviour has been observed in all environments. Although the interview with L. suggested an attachment to his mother. Dr. McLean concluded that “This is an insecure attachment and L. has learned that mother’s attention and affection is conditional upon various factors including his behaviour and his mother’s mood at the time.” Dr. McLean recommended that L. be made a Crown ward for the purposes of adoption, hopefully along with one or more of his older siblings.

[154] During his testimony at trial, Dr. McLean stated that “assuming mother took no therapy or programs to address her personality problems, then she would function in the same manner as before.” With respect to the desire to return home, he stated that 90 percent or more of children express the wish to return home. He found it quite significant that M. was ambivalent with respect to the return home. He also found it significant that L. described the foster home as “awesome.” With respect to attempting to change one’s personality traits, he stated that personality traits are not easily changed because they represent a person’s basic nature. These traits are thoroughly ingrained. Also, he said that individuals don’t typically see themselves as having problems. In Ms. C.’s case, it was always other people who have the problems. Thus, he testified that if there is no insight, then there is no motivation to change.

[155] As to splitting up the siblings, he said “That is not something that we ever want to do, but at the same time, there are other more important issues. One would hope that one or more could be placed in the same adoptive home, but that is not the most important issue in this case.” He felt that is was imperative that steps be taken to maximize the educational development of the children.

[156] When asked about Society’s plan that Ms. C. have access, which was something he did not address in his report, he stated that his concern would be that mother not undermine the adoptive placement. If she could learn not to undermine it then access could be positive.

[157] In cross-examination, Dr. McLean stated that he saw each child once for about 40-45 minutes. He agreed with the suggestion that when each of the children came into care they were examined by a physician and no child showed evidence of any physical abuse. When asked about M. being unable to give any reasons as to why he would return home, Dr. McLean testified that many children want to go home for all the wrong reasons: being able to watch T.V. late or eating junk food for example. Dr. McLean agreed that the home visit went more positively than the visit at the clinic and that information regarding the home visit was not included in his report. He explained that home visits are not usually included in the report on a routine basis. If something significant were to arise from the home visit, that information would be incorporated into the report. When asked about Ms. C. giving conditional affection to the children and the suggestion that normal disciplinary behaviour for parents to employ, Dr. McLean said “it’s very different when one is dealing with a stable child, but where a child is suffering and in pain, such children need reassurance.”

Mother’s Evidence

[158] Ms. C. is a slim, good looking woman now aged 34 and is the mother of L.W., M., B., and L. She testified that L.W.’s father Mr. W. was always present during her pregnancy with L.W. and has always been in her life, although never living together. She stated that he always contributed, and that L.W. sees her father every weekend. She testified the Mr. C., the father of the three younger children, did not want her to give birth to M. She wanted Mr. C. to move to Ottawa but he would not so she moved to Toronto when M. was age two in the hope that she could entice the father to become a part of the family unit. In February 2006, she was charged with assaulting M., arrested, placed in custody and released the same night. She telephoned Mr. C. who at the time was in Jamaica but he declined to come to Toronto.

[159] Ms. C. wants her children returned to her under a supervision order. Initially she wanted the children returned to her without conditions because the Society had been in her life for eleven years and she was fed up with them, but then decided that she wanted to work with the CAS officials for the benefit of the children. If the children are returned to her, she stated that she would find “a bigger place.” She now lives in a three bedroom assisted housing unit on Richie Street in Ottawa. Should the children be returned L.W. would have her own room, B. her own room, the two boys would be placed in her own bedroom and Ms. C. would sleep in the basement. She proposed that the children would return to D. Roy Kennedy School. She testified that she was unemployed but did volunteer work at the local community center. She testified that she wanted to go back to school in September 2012. She received social assistance of $300.00 a month and her rent is paid by the government. She stated that Ontario Works had paid up her hydro recently because she had used money for food when visiting the children. Currently, she is not in arrears with Ottawa Hydro. Her plan is to become a personal support worker, but does not wish to undertake any work which would conflict with her care of the children.

[160] She stated that if she were to work, she would either hire a babysitter through the City of Ottawa or use a family member to babysit, explaining that she qualifies for subsidies for babysitting. Her aunt would be available to assist in babysitting although she is age sixty. Her birth mother lives in Florida and is willing to financially assist should the children be returned to her. She stated that her birth mother has helped financially in the past and visits Ottawa about three times a year. She stated that her sister helps with groceries and laundry because she is not working. Her other aunt, Ms. H., is always available to assist in feeding and clothing the children and taking them to church.

[161] She was “raised to be a good Christian and have a meaningful connection with God.” She wishes to raise the children in the same way. She quoted from Ephesians to the effect that children must obey their parents and parents should not provoke their children to anger. She stated that her family are Pentecostal Christians and that her aunt, Ms. H, is the pastor of the church that the family attends. She stated that she would register the children in the Boys and Girls clubs and bring the children to the local Community Center programs. She stated that M. wishes to be a police officer and she would send M. to a special camp for children age 12 and 13 who are interested in policing. She testified that L.W. had always been interested in fire and she was encouraging her to become a fire fighter. She said that her daughter B. wants to be a model and that she would intend to put her in modeling school. She testified that she herself worked as a model. She stated that L.W. also wished to become a youth worker. When asked about B. and L.’s behavioural problems, she testified that she intended to follow up on programs, including the Crossroads program and the Family Support Program. She would encourage them in their education, because “without education they would get nothing.”

[162] She testified that she would be willing to have her children tested for their education. If testing did not have to do with their educational needs “then she would have a problem with that.” She was asked to give an example and she said “Medication. It does not take medication for a child to learn.” She was aware that B. and M. are both on medication and stated “My son did not need medication, nor did B. need medication for ADHD and bedwetting. She was asked “If you were told by professional doctors that this medication would assist the children in focusing, what would your position be?” She answered “I think parents and teachers should take more time with the children other than filling their bodies with drugs.” She was asked “Could anything change your mind about that?” She answered “To be honest, I don’t think so.”

[163] She was asked about her relationship with the various professionals with whom she worked. With respect to Ms. Pascoe, she stated:

I do not like her. Honestly. I liked working with her, I always called her, I felt comfortable with Elissa. It changed when she kept accusing me of having mental problems. Beginning in July 2010, she asked me about mental problems, I was not pleased. If I had them I’d be aware. No one in my family has mental problems.

[164] When asked what Elissa had said, she stated that they were sitting at Ms. C.’s table and “Elissa told me that I was depressed and may need help or perhaps take medication. I do not take pills, not even Tylenol, but I felt like my kids were being used as pawns.” As to Ms. Pascoe’s tone at the time of this conversation, Ms. C. testified “She is always soft and gentle even when I am hard.” She stated that she got upset with Ms. Pascoe, yelled and screamed at her and told her to get out of her house. When asked why she reacted that way, she testified “Because it’s not the first time about bringing up mental problems.”

[165] She was asked about her relationship with Kerri Wilson, and stated “It was not fantastic with her. She is always trying to undermine me and my decisions with the children.”

[166] She did not believe that Ms. Wilson respected her opinions about the children. When asked for an example she stated:

The medication. She did not respect my opinion about medication. I was very angry with her...When she told me about the drugs I was very very very angry. I told her not to give medication. I told her to tell the foster mom to put B. on the toilet just before going to bed and then get up three times a night...I screamed and swore and yelled at her.

[167] When asked about her relationship with Michelle Tyrrell she stated “We barely know each other. We really don’t have a relationship...I called her twice, before L.W. came home and after she came home.”

[168] As to Jeannine Lindstrom, she stated that she did not have much contact with her. She was in her home once and the relations were “ok, no problems.”

[169] She was asked about the relationship with Mr. Tim Dickert and she stated:

I honestly thought he was young. I questioned why the workers were so young...He wanted to talk after visits. I would say no, there was nothing to really talk about...Over time he and I had a few disagreements. I have changed for the sake of trying not to be angry, I now work with him minimally. I trust him somewhat and not somewhat.”

[170] She stated that she resented Mr. Dickert’s habit of giving her cues during access visits “so I would ignore him. Our relationship is 50/50 between each other.”

[171] When asked about Ms. Pamela Radbourne, the Family Support worker she said:

I didn’t give her a hard time, I respect my elders. I saw her as an elder and someone I could look up to. I do get positive and negative from people. It was a positive encounter with her. There were times I would cancel on her... After a certain period of time I felt overwhelmed. There were too many people all needing my time, taking time away from my children.

[172] As for Ms. Tara Smith, the Crossroads worker, she stated “Ms. Smith was alright. I had a great time with her except once, and asked her to leave. She wanted to watch L. on the toilet. That was unacceptable to me and the child.”

[173] She testified that when in the Forward Avenue Family Shelter she enjoyed a good relationship with Kim Levacchia. “When she came to talk to me about the situations, I listen and said they would not happen again --- the smoke detector and the marijuana in the room.” She admitted that she had some confrontations with staff at the Forward Avenue Shelter and admitted “grumbling or mumbling.” She testified that she tried not to give the staff a hard time because her goal was to get public housing and she did not want to lose her spot.

[174] She was asked about the children’s Principal at Severn Public School, Mr. David Petrie and stated “We did not have a relationship. We always had a positive conversation about the children. There was never a blow-up,” which seriously contradicted Mr. Petrie’s and Ms. Pascoe’s evidence, which I prefer.

[175] When asked about the foster mother, Mrs. M., she stated “I liked her from the beginning, I appreciated the fact she took all four of the children, I respect her. And the fact that she has taken time to see that all needs are met while in care.”

[176] She was asked about the incident which led to the charge of assaulting M. in Toronto. She stated that M. had been jumping on the bunk bed, B. was on the bottom, and L.W. was on a futon. M. hurt himself when he fell out of the bunk bed and “got a little scratch.” He was crying. She dressed him and took him to school. She stated that at 2:00 p.m. she called the school to ask if the kids were okay and the school informed her that the CAS had been called. She stated “I had no time for this.” She packed up B. and L. and went to the school. The children were interviewed by the authorities. I would pause to note that she told Dr. McLean during the assessment that her “spirit” caused her to call the school to see if the kids were okay. One must ask whether she was phoning the school because she was fearful that M. had in fact been assaulted and might be prompted to tell his teacher about it, which is, of course, exactly what he did, resulting in the assault charge which was eventually withdrawn.

[177] She stated that while at the police station “I was really really upset, beyond mad. I argued so much I lost my voice.” She stated that she retained a lawyer who advised her to plead guilty. She rejected that advice and decided to represent herself. Eventually the charge was withdrawn, although no explanation as to the reason was given. There was evidence that M. had been prepared to be sent to Toronto for the hearing and at the very last minute was informed that he need not attend. One can only speculate that Crown counsel determined that it might not be in M.’s best interest to require him to testify against his own mother at a very tender age, and chose to withdraw the charge.

[178] Ms. C. testified that she saw her children regularly while in the care of their grandmother. She recalls taking an anger management course through the Elizabeth Fry Society in Toronto. She understood on her return to Ottawa that she was to find her own residence, get a job, make sure her home was clean, have food for the children and not slap them and “maybe counselling.” Eventually L.W. and M. were returned to her care after which B. and L. followed. She testified that she got employment working as a cleaner at the Silvercity and Coliseum movie theatre chains and at the Swiss Chalet. She obtained a two bedroom apartment.

[179] She was directed to an Agreed Statement of Facts signed July 2007, which set out conditions pertaining the return of the children to her, including that there be no physical discipline and that she take counselling. She stated that she took counselling with Mr. P., a friend who was a pastor of a church. When asked whether she completed counselling with Mr. P. she stated “Yes and no. I started, then after a few months he said I didn’t need the program anymore, but I should continue going to church.” She stated that she continued to speak to Mr. P. following her attendance at church on Sundays, and that the time spent with him addressed most of her problems. Together they would review Holy Scripture, and if she got upset or angry they would find excerpts from Scripture that would help her relax her thoughts.

[180] Ms. C. admitted to smoking marijuana and testified that she freely admitted the fact to Ms. Pascoe, who apparently told her not to smoke marijuana in front of the children. She stated that “Ms. Pascoe always bring it up, every so often not to smoke in front of the children.” She testified that things went well until September or October 2007 when Welfare stopped paying her rent because she was missing birth certificates and social insurance numbers for the children. She was evicted from her apartment and went to live with friends. All the children lived in one room and she slept on the couch. This situation lasted for three months until the Family Group Conference was held in November 2007, after which she moved into a four bedroom garden home sharing the rent with her cousin, Mr. L. She testified that she continued to work as a cleaner of movie theatres and restaurants. The family plan has been previously referred to in evidence, and the fact that it eventually broke down. Ms. C. testified that her family members took on moral responsibilities. Her aunt continued to take M. and L. on weekends. Mr. L. wanted to spend more time with his new girlfriend. L.W.’s father Mr. W. did not pay the money that was expected to be paid, and financial problems developed. Mr. L. did not pay rent as he was supposed to, and eventually the hydro was disconnected. The family lived without hydro for two months. Because it was summer she did not feel there was any problem with living in the dark. It was no different then being in Jamaica, she testified.

[181] She recalls the police attending in August of 2008 because a neighbour had seen her slap M. and phoned the police. She had gone to Tim Horton’s to get a coffee and her “instinct told me they were going to my house.” She testified that she slapped M. because he wanted to go swimming, she told him to wait, and he decided to go on his bicycle without a helmet. When he returned, she slapped him “on his shoulder,” after which he cried and went in the house. She said that no marks or bruises were left on M. after slapping him. After that she told L.W. she would go for a coffee. L.W. and the children were watching television. She stated that she was only gone for five minutes when she returned to find the police at her home. She stated that L.W. was wearing her pyjamas, “She loved to wear them” M. was wearing jeans and a T-shirt. She denied that M. was topless. She stated that B. was always dressed. Everyone was in their pyjamas except herself and M. She said L. was fully dressed and not in diapers. She challenged the police as to why they had entered her home without her permission. She testified that she put her feelings aside and went in to speak to them. She stated that the garage was being used for cooking and watching television, but that the children slept in the home. She said she had cleaned the garage that morning and that the garbage was tied up and put in a bag “I would not leave dirty diapers. I have a diaper bucket.” She denied that there was any garbage in the garage, nor would there be any soiled female undergarments. She stated that the children ate in the upstairs dining room and not in the garage, unless they were watching a Friday night movie. She stated that L. might not have been wearing socks. She denied that there would have been any sharp utensils on the floor. “My kitchen is always clean, I am my own washer and dryer.” She recalled the arrival of the Children’s Aid worker, the fact that the worker went and bought roast chicken and gave her $50.00 for groceries. She stated that there were no changes to the garage from the time the police arrived and before the Children’s Aid Worker arrived.

[182] Having heard the evidence of Constable Huska and in particular the fact that her notes were made at the time of the incident, I prefer the evidence of Constable Huska to that of Ms. C. respecting the events and the state of the garage during the police visit in August of 2008.

[183] When asked about her participation in Crossroads, she recollected discussing L.W.’s preoccupation with fire, but would not recall the day or month that she met with Ms. Smith. She recollected that she was more focused on her children going to school and “the programs took away from her children.” She recalled meeting Ms. Smith about four times and talking about the children. She recollected that there were two sections to the Crossroads program, the first involving a series of meetings. The second section of the program could not be taken because Ms. C. and the children were in a Shelter. When Ms. C. finally left the Shelter she decided to make a fresh start of everything. She bought new furniture, and decided to stop taking programs and concentrating on her children. She had a few conversations with Ms. Pascoe about Crossroads which were “not pleasant.” Ms. Pascoe wanted her to complete the program but she did not.

[184] She lost her housing in November in 2008 because the hydro had been cut off. She was moved to a motel and eventually to the Forward Avenue Family Shelter. She recalls being in the motel for a month before going to the Shelter. The Shelter had rules including no smoking. She admitted to the incident of the fire alarm going off and leaving L. in the room alone. She believed he was watching television and did not want to come with her when she went to another portion of the Shelter. She admitted to smoking marijuana on one occasion at the Shelter at 6:00 a.m. She was near a window. She said “I was not aware of the smoking rules at the time.” This comment invites disbelief.

[185] Eventually, she got public housing on Richie Street in March 2009. She recalls not responding to Ms. Pascoe’s notes left on her door because she wanted to make sure her house was looking appropriate before Ms. Pascoe entered. Ms. C. testified that Ms. Pascoe was:

...always trying to get me into programs. I was more interested in finding a job than listening to someone tell me how to raise my children. I guess I didn’t find it good because she would bring up a different program each time. Anger management. Parenting. I had already had anger management. I did parenting in Toronto in 2006 at the Jamaican Canadian Association.”

[186] Filed in evidence is a certificate of participation from a parenting group date July 20, 2006 from the Jamaican Canadian Association. When asked about why she resisted taking counselling, she stated it was because she was already receiving it from her pastor, Mr. P.

[187] She recalled learning from Ms. Radbourne to take “deep breaths and timeouts” if she felt aggravated. “I did all I was asked to do.” When asked about Ms. Radbourne’s testimony that “things just petered out” and that Ms. C. stopped returning her phone calls, she testified that:

I do not think that I needed her anymore, I just ignored her messages. I wanted time away from the Society. They were in my life too long. I don’t think I’m a bad mom. I don’t think I needed more instruction. I want community help, not strangers.

[188] When asked about her volatility, she testified “I don’t call it volatile. It’s more about getting upset and getting angry. Volatile is when you hurt someone. I don’t hurt anybody.” She states that she has been volatile ever since the police officers arrested her in Toronto in front of her children in 2006. She admitted being loud and yelling and screaming on occasion when she is angry with workers. She admitted to throwing her arms around when angry, but stated that “this is typical for Jamaican people.” She admitted to rolling her eyes and making faces, in order to make a point. She “might punch an object, hit a table or walk away.” She insisted she did not have an anger problem. Her anger began when the Children’s Aid first took her children away.

[189] When asked about her children’s behaviour while at Severn Public School, she stated that B. “was not picking up things fast enough in math and French” and that “she has one-on-one tutoring.” As for M. she stated that “he did not have many difficulties, there were good remarks,” and she signed him up for a one-on-one tutor. She said M. is “a very serious child who does not like to get bugged”. As for L. he always wanted his own way and sometimes ran out of the classroom, “but you can’t force him to do things.” If he felt he was being ignored he would hide under the table. She said “The teachers always spoke nice about him.” She testified that one of B.’s teachers said that B. was “dumb.” She recalls discussing the teacher’s remarks with Ms. Pascoe. “She was not upset so I was upset and angry and I yelled.” She recalls that Ms. Pascoe was explaining to her that the teacher was not saying that she was dumb, yet Ms. C. insisted that the teacher told her that B. was “blind, deaf and dumb.” When asked about the fact that the school was trying during the month of December 2009 to contact her to discuss B., she stated that she was aware of it but she did not have a telephone and would walk to school to meet the teachers.

[190] When asked about the nasty sounding voicemail messages that she left Ms. Pascoe, she testified that she was reacting to the fact that Ms. Pascoe was telling her she was depressed “so I was very angry and pissed off and left her the messages.” She testified that even though she told the CAS workers that she would not allow them access to the children, she would not have barred access because she didn’t want to create more problems. “I have never shut the door in her face. Most of the time Elissa approaches she pisses me off. I don’t abuse my children. She never had any kids.” Even though she stated that she never wished to speak to Ms. Pascoe again, she still let her through her door. In discussing the meeting when Ms. Pascoe and her supervisor Ms. Gorman attended at her house, she believed that they were coming to see if she had mental problems and should get help. Her aunt Ms. H was present. She testified that she felt she was not being listened to, that they did not want to hear from her. “I’ve been through so many programs I’ve lost count. They are not helping. Some have, but mostly they just take time away from me.” She recalls being very upset and stomping her feet.

[191] When asked about the incident when Ms. Pascoe found her asleep in the basement and the children unattended, she explained that she had asked L.W. to look after the children while she took a nap. She recollected smoking marijuana around 4:00 p.m. when she was cooking and cleaning. She did not recall that is was L.W.’s birthday, and did not recall that M. had cooked shrimp. In my view, this is tantamount to an admission that she used marijuana while in a care‑giving role, contrary to her evidence that she did not.

[192] When asked about the physical discipline and why she continued to use it notwithstanding the conditions of every order made, Ms. C. stated that she had not raised her hand to her children in three years “except to tap L.’s hand at the Coliseum theatre.” She stated there has to be “a really really really good reason” before she would slap the children. She would sometimes “tap them on the hand or on the bum.” She testified that she never used her fists or a belt, nor at any time leave marks on her children. She admitted to holding on tightly to L. when he was not listening to her. “I love him and would not hurt him in any form.” She admitted to glaring at the children in order to discipline them, and to talking loudly and to yelling. At times she would “use the silent treatment.” As to the children’s reaction, she testified “the glaring part they are used to, I think that works better than slapping.” She testified “L. will say ‘Mommy why did you slap me?’ I’ll say ‘Do you know why?’ He’ll say ‘Yeah.’”

[193] When directed to the incident at the Coliseum when the police were called because of her treatment of L. she recalled that some people were saying “Stop abusing your kid.” She testified that she simply picked L. up by his forearms and told him to listen. By then a woman was swearing at her and they started arguing. She denied that she was screaming at L. but admitted to screaming at the lady who had intervened. “She was getting into a situation that had nothing to do with her.” One is left to speculate concerning the extent of the anger demonstrated to result in police being summoned.

[194] She discussed her financial relationship with Ontario Works and how at times funding had been cut off because she was missing social insurance numbers, health cards and birth certificates for the children. She explained she was still in the process of obtaining this documentation at time of trial. Ms. C. explained difficulty in obtaining birth certificates for the children because she has lost her passport. It defies reason to believe Ms. C. could not have sorted out the children’s paperwork by the time of trial.

[195] She explained that if her employment as a cleaner required her to work at night, she would always ensure that someone was babysitting, normally her adoptive mother Ms. J. She eventually quit her job because she could not rely on her cousin Mr. L. I suspect L.W. was more frequently asked to babysit, based on B.’s comments to Dr. McLean.

[196] The evidence is unclear as to when Ms. C. was last gainfully employed.

[197] She was asked about informing Ms. Wilson about refusing to participate in any more programs, and she reasserted the fact that “I did not want to do any more programs like anger management or parenting. I took them twice, it’s more important to get work... If the judge orders me into programs, I’ll jump at it.” At this point in the proceedings I interrupted and asked Ms. C. that if I were to order that the children take medicine, would she ensure that they received it. Her answer was that she would, if she thought the medicine was benefiting her children. She would want to have assurance from her own family doctor. It is clear that Ms. C. is completely opposed to the prescription of medicine to her children.

[198] When Ms. C. was directed to B.’s comments that her mother often left them alone and was out partying, she testified “I don’t party, I don’t drink except at Christmas and birthdays. It is not true what B. said.”

[199] Ms. C. discussed difficulties that had arisen during the course of her access visits to the children while in care, and in particular her chronic lateness which she blamed on sometimes being at her current boyfriend’s home and having difficulty with the two or three buses it takes to get to the access center. She also blamed the fact that she had to cook every Friday night which took her about three hours and she would only get three hours sleep. I found these explanations weak.

[200] Ms. C. testified that recently she had been on time for access and the records bear this out. She explained that Mr. Dickert was not a parent and could not understand the various needs of each child and the fact that she had to prepare food. She acknowledged that she had told the children that the foster parents are “not real” and stated “I meant it. They are not the natural parents.” She found the check-in time “ridiculous, but I went along with it.”

[201] She was asked about Principal David Petrie’s evidence regarding L. when he waited in the kindergarten yard, saw Ms. C. drive up, walk L. half way then run back to the car and drive away. Her comment was “Any intelligent man would walk in, sign him in and walk him to his classroom, so no, I did no such thing.” I found this evidence baffling.

[202] She stated that although the children tell her that they are fine when she sees them during the weekend access, she herself notices things she does not like, such as their clothing, their uncombed hair, their dry skin, their long fingernails, and calling each other “stupid” and “dumb.” Ms. C. stated:

They need me and I need them. I need to teach them, I don’t want them breaking or entering or stealing or in a gang. Maybe I can do some programs again if I can benefit from it, maybe calm my demeanor down. I don’t raise my hand. I could take anger management, I could even get my own family doctor to check what drugs are best for them.

[203] In speaking about the access visits, she believed that they proceeded very well. “I was very good at access.” She described the many activities that she would engage in while exercising her access visits. When asked why the CAS would change access from one supervisor to two supervisors, she stated “I guess they assume I’m going to blow up. They always assume.” She stated, somewhat contradictory to her earlier evidence, that she “enjoys conversation with Tim after the visits. I don’t argue, I agree with him as to what went well and what didn’t.”

[204] When asked about yelling at her children and the impact it might have on them, she testified that her own children say “Mommy, talk softer, talk slower.” She said that she is now calmer and takes deep breaths. She denied that there was any relationship between her yelling and the children acting up.

[205] She returned to the issue of the use of medication for her children and the fact that she had objected to Ms. Wilson about the prescription medicine. She said her children never needed medication. “Now suddenly there is a need for drugs. That’s not the best way to see to a child’s best interests. I think a mother’s love is better than drugs. I never put my feelings in front of my children. I have always looked at their best interests.” During the course of this testimony Ms. C. was in tears, again, evidencing her steadfast opposition to the use of medication for her children.

[206] She testified at length to incidents during access visits, and her attempts to keep all the children under control and pacified.

[207] She testified that her reaction to Dr. McLean’s report made her “very upset and angry.” She phoned her family and said that they would go to trial. She insisted the report was unfair “He only had a few sessions with my children and wants to tear them apart. No mom in her right mind would accept that.” She disputed that M. was ambivalent about returning to her care. She testified that M. always asks her when he is going home. M. has never given any indication to Ms. C. that he would wish to be adopted on his own. She stated that B. tells her that she wishes to come home and that she misses her home and her friends. She has told B. that “she will be home soon. I don’t want her to believe she’s not coming home.” Ms. C. was asked about Dr. McLean’s comment about L. and his observation that Ms. C.’s love for L. was conditional on his good behaviour and good mood. Ms. C. dismissed this observation by saying her love for L. is unconditional. “My love is not my mood, it is unconditional. By my right as a mom, by God’s love, I don’t know where he gets his observation from.”

[208] With respect to the observed visit at the Family Court Clinic, she testified that she was unaware that she was supposed to bring snacks to the visit. She was confused as to the time and was a half hour late and things did not go well that day. L. was screaming, saying he was hungry. “All the children were looking for food.” The room was very small. She denied ignoring the boys. She said there were numerous games to play with and she ensured that everyone had activities to perform.

[209] Ms. C. denied that there is any conflict between L. and L.W. or between B. and L.W. In Ms. C.’s view, the arguments between the children are the normal ones that one would expect among siblings. L. likes to ignore L.W. because L.W. calls him “white boy” and “ugly” L. ignores her and says “I hate you.” L. has a light complexion. Ms. C. insists that L.W. loves L. and that in fact they display affection “70-75 percent of the time.” She believes that M. and B. get along very well and that M. and L. are “very close.” B. and L.C get along well although “they fight a lot. They want what each other has.” She testified that L.W. is “very bossy.”

[210] Ms. C. acknowledged that the children’s immunizations were not up to date when they went into care because she did not have health cards for the children. She testified that she did not have the money to pay the fee to obtain the temporary immigration cards in order to obtain the health cards.

[211] Ms. C. stated that she did take the children to the dentist every six months. She stated that in the case of L. she took him to the dentist and they did not think he needed cleaning or filling. “There was no complaining or pain.” She stated that he brushed his teeth three times a day. She stated that L. was afraid of dentists, and that she had to bribe him with candy. It is clear from the evidence that L.’s teeth were in terrible shape and causing him pain, particularly when eating sweets. Ms. C.’s evidence on this point is suspect.

[212] When directed to the incident at the movie theatre when Mr. Dickert was present for M.’s birthday and L. was handled roughly, Ms. C. denied that she was rough with him. She simply held his hand because he was jumping down the steps and she was fearful he would hurt himself. “He kept saying ‘Ow,’ but when I checked he was fine.”

[213] Ms. C. strongly believes that the children are “in prison” while in foster care and has told them that they shall be returning home. She believes strongly in discipline, and on at least three occasions during the course of her testimony quoted Ephesians to the effect that “Children should not provoke their parents to wrath.” She felt that Mr. Dickert was far too involved in attempting to change her behaviour during visits and that he simply could not understand the dynamics because he was quite young and not yet a parent. Mr. Dickert is aged 27. At the same time she admitted that she had learned a number of coping strategies, including taking timeouts, before engaging the children in arguments.

[214] She testified about the “Beyond the Basics” parenting program run by Mr. Tim Dickert and Ms. Bonnie Caroll. Ms. C. believed the program concentrated mostly on toddlers, not older children like her own. She stated that several times she pointed out the materials were not appropriate to her children or her culture “such as timeouts. That was not done with me as a child.” She admitted that she told the group that she did not believe in routines “I do not have routines.” She then explained that “obviously” routine is required to get children to school.

[215] Ms. C. was greatly influenced during her upbringing in Jamaica by her grandmother. She was regularly spanked if she misbehaved. On the other hand, her adoptive mother (also her maternal aunt), Ms. J., did not spank her. Ms. J.’s method of discipline was to ignore her and then to talk about it. She believes that there is much more discipline in Jamaica. When asked the question “Are you more Jamaican or Canadian?” She answered “I’d have to say more Jamaican then Canadian.” To my mind this comment reinforced the notion that Ms. C. is predisposed to the use of physical discipline.

[216] With respect to the suggestion that B. is overly friendly and would sit in strangers’ laps, Ms. C. stated “That’s garbage. She was taught not to sit in people’s laps, not even their uncles. She does not sit on anyone’s laps.”

[217] Since September 2010, Ms. C. has done volunteer work at Morrison Gardens. She makes lunches from 8:30-9:30 a.m. and assists at the Food Bank.

[218] In cross-examination it was revealed that some of her disputes with the Forward Avenue Family Shelter staff arose from the fact that she was sometimes out after curfew which was 11:00 p.m. She testified that she would sometimes go to movies or a family friend’s and be home at midnight even though she was with L. who was only three at the time and B. age five. She was asked if that was appropriate and stated “No, but if that’s what a mom has to do then that’s what you do. It’s against the rules to have a Shelter person babysit.”

[219] She testified that when Ms. Pascoe raised the issue of whether she was feeling depressed, she believed that Ms. Pascoe wanted her to check herself into the Royal Ottawa Hospital. She testified that the only psychiatrist that she had ever spoken to in her lifetime was Dr. McLean, who conducted the Family Court Clinic assessment.

[220] With respect to the “Beyond the Basics” program and it not being reflective of diverse cultures, she stated that she was the only black person in the group. “Certain things I was shown are not in my culture. I grew up with no electricity and no TV. I can live without electricity.” She admitted that she did take some “bits and pieces” from the program including “timeouts” and the gifting of stickers for good behaviour and having children hold their hand while crossing the street. She was confronted with a police report from 1995, prior to the time she had any children, when police were called to intervene in an argument between Ms. C. and her sister. Ms. C. had stated that she never had an anger problem prior to the day she was charged with assaulting M. and her children being taken from her. Ms. C. did not recall the incident in 1995. She explained that she had not pursued any programs with anger management or parenting because she’s been “too busy with this trial.”

[221] When confronted with the fact that the children still have no birth certificates and she has had fifteen months to obtain them while the children have been in care she stated “It did not fit my schedule,” including her commitment to volunteer work and her access visits.

[222] She was confronted with the fact that while the children were in care on June 16, 2011, police were called to intervene in a dispute between Ms. C. and her neighbour. Ms. C. was screaming at the neighbour. Ms. C. explained that this neighbour had once been a friend but had turned against her and had called her a “nigger.” The neighbour’s mother got involved and stated “These niggers are useless. Step on her. So I beat her up.” Eventually that neighbour moved away.

[223] Ms. C. stated that she did not believe that M. had told Constable Huska that he was sometimes afraid of her.

[224] Ms. C. had “no real answer” for failing to follow up with the Crossroads program. As to dropping out of the Family Support Program, she stated again that there was “way too much programs on my plate. They were all connected in my mind... I ask myself how is this benefitting me... I just didn’t find it interesting anymore I guess.”

[225] When asked about Dr. McLean, Ms. C. stated “I don’t give him no respect. He came into this courtroom and insulted me and my culture. He needs to visit Jamaica for three months.”

[226] As for Constable Huska, “She was very rude and continued to be rude for the hour or two she was there. She was encouraging the worker to take the children and that upset me. She did not know anything about me or my children.”

[227] She was asked about Principal David Petrie’s evidence about the children attending both the breakfast and lunch program. Ms. C. testified that Mr. Petrie was wrong. They got their lunch from Britannia Woods Community Center on Mondays, Wednesdays and Fridays so that lunch only had to be provided Tuesdays and Thursdays. She stated that she only called Mr. Petrie twice in order to have M. given lunch. “He must have confused me with another parent who called twenty-five times a year.”

[228] With respect to her smoking marijuana, L.W. knows that she smokes but she does not smoke around her. She states that L.W. herself does not smoke marijuana. Ms. C. testified that she smoked mostly on Saturdays or Sundays and spends about $20.00 per week for the habit which provides with about twenty marijuana cigarettes.

[229] She testified that if her children were to be returned she would wake up early, give them breakfast each morning and make them a healthy lunch. She would brush their teeth, get them clothed, and clean their skin. She herself would hope to get a job. She stated that she had given her resumé to the new Ikea store and the Globo shoe store. When the children come home they would go to the Community Center. L.W. would be home to babysit if necessary. The children would do their homework at the Center. At 8:00 or 9:00 p.m. everyone would be ready for bed. “The small ones love when they fall asleep with me. I read for about a half hour. Sometimes both L. and B. sleep with me. Sometimes all four, it’s fun. Everyone wants to play. There are stuffed animals on the bed.” When they fall asleep she puts B. and L. to bed. If they urinate during the night she cleans the sheets. She wakes them up during the night and puts them on the toilet.

[230] She would take M. by bus to Taekwondo on Carling Avenue. She would ensure that L.W. would continue to play her guitar and piano. B. wishes to play piano, and she would arrange that with her mother, the grandmother of the children. M. and L. want to play the drums, so she would ensure that they could do that. They would continue to attend Bible and choir classes on Friday night. Saturdays they would hang out together, go to the park. Her boyfriend has a car, they could “drive around.” M. and L.W. wish to return to Camp Smitty, a summer camp. She could put L. and B. into the Britannia or Ramsey summer camp. She stated she is looking for a bigger home, a five bedroom unit. The waiting list is three years. She has been on the list for two years and would expect to be able to get such a home in about a year. She has applied to homes in Centerpointe, Hunt Club and Kanata. Depending on where the children are in school, she would assure that they get there by bus so that they are not uprooted. As to M. who is in the CHEO “Steps to Success” program in Kanata, she testified that she would not take him out of that school “if it’s helping him.” When confronted with her wish to have the three children in D. Roy Kennedy Public School and told that that was out of her school district, she stated “There is Regina near Severn, I could check that out, but my main goal is D. Roy.” When told that L.W. is now attending Notre Dame and would have to be moved, Ms. C. said she would ensure that she gets there by bus “by getting up early and doing it.”

[231] She was asked about her ambition to become a public support worker. She explained that this is a six month course but that she first must attend at 12 week clinical assessment program prior to taking that course. When asked how she would do this, she stated that she would make sure that she would be at home for six months and put herself on the list for September. She was asked why she had not done this while the children have been in care for the last year and a half, she stated “My focus is this case. I was not going to overload my court dates.” She stated that the extended family would help in settling the children by babysitting, visiting, helping with the laundry and so forth.

[232] She was again asked about the medication for the children and confronted with her evidence that there would be no way she would give her children medicine unless the court ordered it. Ms. C. testified “If it’s not required I won’t. If it’s ordered then I’d have to put my foot behind me, swallow my spit and obey.”

[233] As to taking parent counselling, she stated “I don’t want any more counselling, I’m a strong person. I don’t believe I need any counselling.” She stated that perhaps she would see Mr. P. again but “certainly not Dr. McLean.”

[234] She was asked whether she saw any positive gains while the children have been in foster care, and she testified “B. is reading a lot more, and out loud. M. is doing good in “Steps to Success”, L.W. is happy to be in pathways, M. is in Taekwondo, “That’s a positive. I can’t say L. has changed from being L. Mrs. M. taking in all four is appreciated very much.”

[235] Mr. N. is a native born Jamaican who has lived in Canada since 1980. Mr. N. has four step-children with his common-law wife, all of whom are successful. He worked for CIDA while in Jamaica. He is a very active member of the Jubilee Apostolic Church which Ms. C. and her family attended prior to the children being placed in care. Mr. N. has known Ms. C.’s family since 1976 before he migrated to Canada. He is a graduate of Carleton University and is heavily involved in assisting new Canadians adapt to this country’s culture. He described himself as “a father figure” to all of Ms. C.’s children and stated that he saw them “at least once a week” prior to their being placed in care. He drives the bus for the Jubilee Apostolic Church and assured that the children were picked up for the Friday night and Sunday services. He testified that Ms. C. listens to him, although “she is a woman who cannot be dictated to.” He testified that her cultural values were learned from her grandparents in Jamaica and that she always expressed the desire to take her children back home to live with her in Jamaica. He stated that Jamaican people like stability and that these children all suffered from “post-displacement trauma” which he attributed to their constant moves from residence to residence. He noted that neither father is deeply involved in the lives of the children. He described the relationship between Ms. C. and L.W. as being “like sisters” and that “they argue like siblings. They share clothes. Ms. C. talks loud, people think they are fighting.”

[236] He testified that he has observed that Canadian people are very quiet and often believe that Jamaicans are fighting when they in fact are simply talking loud to one another. He observed that before M. went into care he was “like a comedian. He would make other kids laugh in Church.” After being brought into care, he noticed that M. became withdrawn. He believed that M. wishes to be a preacher and that he has the talent to be one. He described B. as being very much like her mother and if she does not get her way she gets upset. He stated that L. was sometimes disruptive in church. He said that “in her discipline techniques, Ms. C. uses lots of looks” which is “a Jamaican thing.” He noted that M. was jealous of L. and B. He has heard him saying “You let B. and L. get away with everything.” He testified that although there was a lot of sibling rivalry, he believed this was normal and that overall the children were bonded. He stated that “M. is a Canadian boy.”

[237] In the summer of 2008 when Ms. C.’s electricity was turned off, Mr. N. brought battery lanterns for each room in the house. A living room was created in the garage. He visited regularly. He testified that L.W.’s father has become a Rastafarian and the father of M., B. and L. is also a Rastafarian who keeps moving around while in Toronto. He spoke of how Rastafarians “must smoke marijuana.” As for Mrs. C.’s loud behaviour, he attributed that to growing up in the farm fields of Jamaica “where people have to yell to be heard.”

[238] Since the children have been in care, Mr. N. has attended with Ms. C. on many access visits. He gets along well with Mr. Dickert. He testified that he respected the CAS. He fundamentally disagreed with Ms. Wilson that M. suffers from ADHD. Mr. N. insists that M. is suffering from “post-displacement trauma” and that every other option should be exhausted before medication is prescribed. He testified that when Ms. C. learned about medicine being given to her children, she stated “Are you trying to kill my kids?” Mr. N. believes that children can be “taught out of” difficult behavioural patterns. He acknowledged there were difficulties Ms. C. had during access visits and at one point her access was cut down to one visit a week because she had gotten so upset and disrespectful to the worker. “Ms. C. has a lot of personality issues.” He stated that access has gotten better in time. He noted that Ms. C. always cooked a good meal for the children. “She is stern when she talks to her children. She is assertive. She is Jamaican.” He agreed that sometimes individual children were ignored during access visits but that was due to the fact that access visits only lasted an hour or two and things would be really different if the children were at home.

[239] He testified that Ms. C. disciplines her children by having them stand in a corner or “being loud with them” or “giving them a hard look,” but he has “never seen Ms. C. spank her children.”

[240] When asked what would happen if the children were returned to their mother, he testified that Ms. C. should go back to school. He would work with her, hand-in-hand, until she got a job. He does not believe that the government should pay 100 percent. “I could even give her a job myself.” He stated he would continue to see the children twice a week, and pick them up every Sunday to bring them to church. He would never be out of the lives of these children.

[241] In cross‑examination he stated that he has noted that there has been some compromise on Ms. C.’s part at the request of Mr. Dickert in the manner in which she parents the children during the access visits. He did note that “No one can dictate to Ms. C.,” and if they try to “She simply won’t listen, which can be very annoying.” He reiterated his total opposition to the use of any psychological medication. He testified that if a teacher were to say that someone needs special attention, then that creates no problem “You can teach them out of that.” When asked whether he had any background in psychology or psychiatry, he stated “I have lived it, I have worked with displaced people, I have observed, not diagnosed.” He admitted that M. has become more comedic recently. He was asked whether that was possible because of the pharmaceutical intervention. He answered that it was probably because M. was stable with the foster parents and “he is back to his old self.” He agreed that M. was more stable now than he was when living on Richie Street. He stated that if M. were to move back with his mother, Ms. C. would have to ensure that “they don’t jump from place to place. The children need stability.”

[242] He testified that he has often seen Ms. C. angry but has never seen her hit people. When asked when she was angry whether it could scare a child, he answered “Not a Jamaican child, a Canadian child maybe.” When asked whether he would be surprised to learn that M. told the police he was afraid of his mother, he answered that “Jamaican children protect their parents. Maybe it was a result of ‘post-displacement trauma’.”

[243] He drew the distinction between beating and abusing a child and slapping children. He advises Jamaican parents not to slap their children. “I’ve told Ms. C. not to slap.” When asked whether he was aware that the CAS had offered courses to Ms. C. and she had refused to take them, he stated “I’ve spoken to her about that. Given the trauma she is going through there is distrust on her part. We have debated this. I disagree with her. That distrust is 80 percent gone over time.” I pause to note that it seems strange that Mr. N. told Ms. C. not to slap her children when he testified that he has never seen her slap them.

[244] Christine Verkulp is the interim executive director of the Britannia Woods Community House located in the Richie Street housing community. Ms. Verkulp had previously worked for ten years as a manager of a McDonald’s restaurant. At Britannia Woods Community House she oversees all financial operations and programs, including housing, staffing, training and development. She had daily interactions with all clients. The programs are free. The Community House offers after school programs for children aged six to twelve. It also has a youth program, a Food Bank and a drop in center for adults. Ms. Verkulp described the Community House as the “heartbeat” of the neighbourhood which caters to 800 people being served by Ottawa Housing. The demographic consists of low income people, 60 percent of whom are new immigrants and 60 percent of whom are on social assistance. Most units are four bedroom units.

[245] Ms. Verkulp has known Ms. C. for approximately three years. All four children took advantage of the after school programs and other programs. She testified that Ms. C. was always respectful and supportive. She described her as “a dynamic, friendly, outgoing, supportive and encouraging person.” She observed her interact with her children on many occasions. She described L. as “the busiest” of the children, and she saw Ms. C. as being attentive to all four of her children. She stated that she was very patient with L. and with M. She stated that the children were loving and attentive to each other, and that there were “no red flags” nor any concerns at any time in her dealing with mother or the children. L.W. attended a youth program offered two evenings in the House and two evenings in the gym and also the seven week summer camp program. L.W. also served as a volunteer for the after school program. M. and B. were both registered in the after school homework program, the after school recreation program and the summer camp program. L. participated in the pre-school program for four days a week from 1:00-3:00 p.m. every afternoon and also the summer program. She found that M. was more quiet than the other children.

[246] She never had any reason to call Ms. C. to talk to her about the children. She testified that periodically, children would show up hungry of dishevelled and she would speak to their parents about these issues. There were no such issues with Ms. C.’s children. As far as the family dynamics between the children, she said they were very normal and similar to her own family. She had no concerns about Ms. C.’s approach to discipline. She never observed Ms. C. to be stern or loud with her children.

[247] Since L.W. was returned to mother, L.W. has been back to the Community House on a constant basis. She testified that if the children were to be returned to Ms. C. there was no waitlist for the programs available at the House.

[248] In cross-examination, she agreed that she would not have seen the children for the one and a half years since they had been in care. She agreed that parents were appreciative of having her facility available because it gave them a break. She stated that many of the parents are single parents. She agreed that she had no idea how the children would be doing in school and never saw their report cards. She never saw Ms. C. discipline the children, although she stated that she never saw fear in the children. She stated that she would be surprised to learn that M. had told a police officer that he was afraid of his mother. She stated that there was one occasion where Ms. C. had a dispute with another parent and Ms. Verkulp had to discuss the matter with Ms. C. She stated that Ms. C. listened and the situation was diffused. The police had attended following the heated debate, but Ms. C. listened, showed respect and “there was a positive outcome.” She stated that L.W. misses her family and is quiet. She comes in every day after school and then comes back for the programs that begin at 7:00 p.m.

[249] Lawrence Donegan is a volunteer at the Morrison Gardens Food Bank which is part of the Ottawa Food Bank. He has been a coordinator of the Food Bank for 20 years. He was previously an agent for London Life Insurance. The Morrison Gardens Food Bank supplies sandwiches for school children once a week and 100 hampers of food per month for the residents of Morrison Gardens. All the residents who use the Food Bank are low income people. A very high percentage are on Ontario Works Disability, social welfare or part-time minimum wage. Very high proportions live in public housing.

[250] He met Ms. C. in the late summer or early fall of 2010. She arrived at the Food Bank and introduced herself, offering her services for the “grab and go lunch program.” Ms. C. has done a good job. “She is careful with money, there’s no waste.” The lunches are made promptly and well. In addition, Ms. C. spends two days a week to help stock the food hampers. Ms. C. is one of about 40 volunteers and is well liked by her fellow workers. There have been no complaints. Mr. Donegan said that the cliental are highly sensitive people, very proud and that “We get a lot of complaints, but none about her.” Ms. C. attends Mondays and Wednesdays and sometimes Fridays. She is always on time. Mr. Donegan states that Ms. C. takes direction well and would typically make about 24 or 28 lunches each day along with other volunteers. Lunches are given on Mondays and Fridays and hampers of food are given on Fridays. Mr. Donegan has not seen Ms. C. interact with her children.

[251] Mr. F. is Ms. C.’s current boyfriend. He was born in Montreal of Jamaican parents. He has been employed as a pharmacy assistant for fourteen years. He lives with his own mother and met Ms. C. about a year prior to trial when he lived on Richie Street. He has two children of his own, one is age 14 going on 15, who lives with the mother and another young girl who is just 2 years of age. He got to know both Ms. C. and her children. He described L. as being “the youngest but seems to be the eldest. He looks out for each of his siblings. He wants them to do things in certain ways.” He described B. as “growing up, wanting to vent and needing a bit of space in finding herself.” He described M. as being “like a baby. He gets angry at his siblings.” He stated that he has a bond with M. and that M. finds it easy to share with his brother and sisters. He described L.W. as being “a young teenager, now becoming a young adult. She can be a little lippy, and is considerate to her brothers and sister.” He stated all children vie for his attention, and want to be the center of attention “but they all really look out for each other.”

[252] He has attended approximately six visits since the children have been in care. He believes that every visit was “excellent.” There were no blowups, no flared tempers, and everyone got along well, Ms. C. spent time with each child individually and as a group, playing games, “everything was good.” As far as Mr. F. is concerned, “Love is always there.”

[253] He was present on the day when access was cancelled because they were late. He stated that he and Ms. C. “called and called” and that the message should have been relayed. He said that Ms. C. was upset. He did not believe she was “out of order.” He said that Ms. C. knows both of his children and interacts well with them. Ms. C. helps Mr. F. with his own parents, who are going through some challenging health issues.

[254] When asked if he would be involved with the lives of the children were they are returned to Ms. C. he stated “We all try to make plans. I can say my intentions are positive, but nobody can say what can happen tomorrow. If Ms. C. and I were to part, I’d still be there for the kids... I love her kids like they were my own. These are awesome kids.”

[255] In cross-examination, he stated that he last saw his 14 year old child last December, but that they talk regularly and that he does not see the 2 year old enough because the child is always in Montreal on weekends. He last saw her in November 2010 for her birthday. This made me wonder about his evidence that Ms. C. knows and interacts well with his children.

[256] He testified that he could not “lock up” his life with Ms. C.’s children because his own mother and father are in nursing homes, and that fact together with his employment obligations limits the times he can attend for access visits. He confirmed that Ms. C. was “very upset” with the prescription of medication for M. and wanted second opinions. As to her reaction, he stated “Most Jamaican’s are very loud when they speak. It’s not indicative of violence.” He stated that he himself inherited his mother’s soft speech. He had concerns with the way the CAS treated Ms. C. “like she’s a three year old. It’s demeaning. I have witnessed it. They would deal with her like she didn’t know what she was talking about. She raised concerns and they ignored her. They should have treated her with the respect she deserves.” With respect to the cancelled access visit, he denied that Ms. C. had used the “f-word” but agreed that Ms. C. “was not the best role model.” Similar to Mr. N.’s evidence, Mr. F. testified that “It’s difficult to shape the children during access visits because there is insufficient space to accomplish that goal.”

[257] Ms. H immigrated to Canada from Jamaica in 1972 and worked for 30 years with the City of Ottawa as a health care aide. She retired in 2009. In the year 1992 she started the Jubilee Apostolic Church, renting space from the United Church on Prince of Wale’s Drive in the City of Ottawa. She is the pastor of the church and has been since its inception. She testified with pride to the many successful young people who have attended her church, including her own son who is now a chartered accountant. Many others have graduated from university. There are 50 regular parishioners. Her son is also training to be a minister and runs the youth group and youth choir. She has two other sons, one of whom is married with twins and another who lives in New Brunswick. She has a daughter who is married with a child and works for the federal government. She has a second daughter who is unmarried and lives at home with her and her husband. Her husband has worked at the Civic Hospital as an orderly for 14 years. No members of her own family have ever been involved with the CAS.

[258] Ms. C. is the daughter of one of her sisters. She met her when she was about seven years of age on a visit to Jamaica. She then immigrated to Canada at age thirteen and visited her regularly while living with her sister. She described Ms. C. being very respectful towards her, “a very happy-go-lucky person, always joking, and very expressive. If she gets upset she shows it, she talks loud.” She has encouraged Ms. C. to come to church with her children. She said that Ms. C. was raised by her own mother, who raised 12 children. Her mother was very firm with all. She was a very stern disciplinarian. “When she said something you had to do it. Ms. C. was raised that way.” When asked is Ms. C. slapped her children, she stated “We all got slapped. It was the way. I don’t think it’s a crime. Kids need to be disciplined. Today it’s not wanted, but I think it’s very important to discipline children. Abuse is a different story. If you discipline your children, they will come back and thank you later.”

[259] When asked about Ms. C.’s difficulties with housing and personal finances, she stated that she had never even heard about welfare or daycare when she came to Canada. She, personally, saved her money and eventually bought her own house in the 1980’s which she still owns. She testified that the two fathers of Ms. C.’s children “did not step up to their responsibility. Ms. C. is very hard working, she could do like us.” She stated that she supported Ms. C. by giving her food and clothes. Ms. C.’s natural mother sends clothing from the United States. During the summer of 2008, when Ms. C.’s hydro was turned off, she helped by providing some food for the children and visited them frequently. She stated that Mr. N. would pick up the kids in the church van on Friday nights and Sunday every weekend. She described L.W. as a happy child who loved to sing. She described M. as being “happy, running around and playing.” He would spend weekends at her home following the Family Group Conference that was held in 2007. He behaved very well. She would take him shopping with her and he would play with the neighbourhood children. She stated that B. and L. spent time with her other sister, who had raised Ms. C.

[260] She said the children are all part of the Sunday School choir. She tried to take an individual interest in each of the children. She encouraged M. to read. She stated that M. wanted to be a fireman or a basketball player. She has encouraged L.W. to achieve in school. She attended a few access visits, including one three weeks before the trial which went “very well.” She testified that Ms. C. always brings the children cooked food. “The kids love it, they eat and play.” She stated that “Ms. C. plays rough with her kids, she can be intimidating. I never noticed anything out of place. The CAS reps are always very pleasant.” She testified that the children always seemed very happy with their mother. When she visited she would organize a prayer circle. When asked about Ms. C.’s behaviour, she stated that

If you don’t know her, you can misjudge her, she plays rough. She sometimes expresses herself in a way you can misjudge, but she is very capable to care for her children. If she were mean or aggressive a 14 year old would not want to live with her (L.W.). The way she expresses herself does not mean she is not in control.

[261] She testified that some people are soft spoken and some are loud. She said that most Jamaicans are loud, but that does not mean that Ms. C. is not capable of caring for her children.

[262] She testified that following the Family Group Conference everyone made a commitment, including herself. She agreed to take M. on weekends. Her sister agreed to take others. She testified that she fulfilled her commitment but cannot really speak for the others. “No one called me about a problem, other than the fact the lights had gone out.” She testified that she was present when the CAS worker and her supervisor visited Ms. C.’s home. She testified that “I saw nothing major happen there...there were no quarrels.” I have already commented that I prefer the evidence of Ms. Pascoe with respect to this meeting. To a large extent Ms. Pascoe’s evidence is confirmed by Ms. C. herself. I accept that Ms. H. intimated to Ms. Pascoe on that occasion that Ms. C. was frequently out of control.

[263] Mrs. H. testified that since L.W. had returned home to live with her mother, she had not been attending church. She was waiting for her sister and her brothers to come home. She believed L.W. was happy. In the event the children were returned to mother, she would continue to help with food and visit them. The children would be welcome to come for weekends. She would hope they would come to church. “If things were really bad, I can take them some money.” She once again reiterated that in her opinion “The fathers should be made to care of the children. They fathered them, they keep doing this nonsense, they should pay up.”

[264] In cross‑examination, she testified that following the Family Group Conference in November 2007, M. came to her house almost every weekend and that sometimes B. came. On Saturdays M. would play with friends in the area. She testified that he was always happy to come and happy to go home to see his mother. She said he was “very quiet. He would watch T.V. and there was nothing to discipline him about.”

[265] She was aware that mother slapped her children believing it to be natural. “Parents sometimes slap their kids, it is not abuse.” When questioned further about the meeting with Ms. Pascoe and her supervisor at Ms. C.’s home, she testified that “I know she speaks loudly, it was not abnormal. It was not excessively loud.”

[266] The grandmother to the children, Ms. J., was born in Jamaica and immigrated to Canada in 1975. She lived for one year in Toronto then moved to Ottawa. She has been employed as a health care aide for 26 years, working at West End Villa, a nursing home in the City of Ottawa. She has two daughters, one who is an early childhood educator and another who is a music teacher. She is Ms. C.’s adoptive mother. Ms. C. is her natural niece. Ms. C.’s natural mother “could not afford to do a lot of things,” so she adopted Ms. C. when she was age 13. She testified that Ms. C. got along well with her own daughters. They went to school and played together. She was “a bubbly girl with a big loud laugh. She gets everyone going with her laugh. She has a strong voice, she speaks loud always.” As Ms. C. began to have more children “she became more mature and more stern.”

[267] Ms. C. left home when she was 18 years of age. When the children were placed with Ms. J. after Ms. C. was charged with assault, she stated that there were disagreements from time to time. “ If she came and left and closed the door hard, I didn’t like that.” On one occasion, she said Ms. C. was bringing too much food and there was nowhere to put it. Ms. C. had bought $400.00 worth of food. Because Ms. J. had already purchased $300.00 worth, an argument ensued, things got out of control and she called 911. When the police showed up, Ms. J. was crying.

[268] Ms. J. testified that she attended some access visits, “If I saw something I did not like, I would tell her. If she was stomping hard like a soldier, I would tell her to walk softer.” She testified she believes the children love their mother. She testified that in her opinion there is a strong bond between all the children, no one wants to be left out. Since L.W. had returned home to her mother she visited her twice. She noted that she was getting to be a big girl now, “She needs to respect her body and herself and keep out of bad company.” She believes that Ms. C. is a good mother, “Not everyone has a soft voice.” She testified that Ms. C. does not hurt the children. She has never seen her slap the children. She had seen her put them in a corner but done nothing to hurt them. She agreed that Ms. C. would speak sternly with the children.

[269] Following the Family Group Conference in 2007 she agreed to assist Ms. C. with laundry and with having children with her on weekends. This would help with appointments and homework. Things went “okay” in her opinion. She did quite a few things “until I got sick then I was not able to continue.” However, she continued to visit. Her sister, Ms. H, continued to do laundry and had the children with her on weekends. She confirmed that she was encouraging L.W. to come back to church, but L.W. was waiting for the rest of her siblings before returning to church. She stated that she did not visit the children when they were in care because “it was too sad to see them take them.” Were the children returned to Ms. C. she “would always be there to help and support them.” She stated that she used to bring them to the dentist, and help with appointments. She has a car and is able to assist in that way.

[270] In cross-examination she stated that “Most people back home are strong talkers. Not everyone, not me. I’m told to speak up.” She testified that Ms. C. “gets upset but not detrimental, not to hurt somebody.” When asked whether she had met with other defence witnesses and agreed to talk about Ms. C. having a strong voice, she testified that “Everyone will say the same thing, because that’s her.”

[271] Every witness called on behalf of Ms. C., without prompting, spoke of a Jamaican tendency to be very loud in speech. Remarkably, all these witnesses were soft-spoken. I am left with the strong belief that all these witnesses were aware of Ms. C.’s habit of yelling and screaming when unhappy with events, and felt compelled to find some explanation for this personality trait. Unfortunately, the explanation that her conduct was a “Jamaican thing” belied by the demeanor of all of Ms. C.’s own witnesses. Ms. C.’s habit of yelling and screaming cannot be characterized as a Jamaican trait. Rather, it is a troubling personality flaw specific to Ms. C.

The Legal Test

[272] The trial involving the children constitutes a status review of the finding made by Madam Justice Ratushny on September 30, 2010 that the children were in need of protection and were ordered into care at that time. Section 57(1) of the Ontario Child and Family Services Act makes the following options available to the court:

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.

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to Ms. C. or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[273] Section 57(3) of the Act provides that the court shall not make an order removing children from the care of the person who had charge of the children before the intervention unless the court is satisfied that alternatives that are less disruptive to the children would be inadequate to protect the children. Section 1 states that the paramount purpose of the Act is to promote the best interests, protection and wellbeing of children.

[274] Section 141.1 of the Act now permits the adoption of children with access continuing to be enjoyed by those subject to an access order in effect at the time of an order permitting adoption.

[275] Section 37(3) of the Act list the factors that impact on the determination of the best interests of a child including:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. 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.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. 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.

9. The child’s views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. 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.

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

13. Any other relevant circumstance.

[276] Applying these factors to this case, and grouping factors 1 and 2, namely the children’s physical, mental, and emotional needs and the appropriate care to meet those needs and their emotional level of development, I am persuaded that Ms. C. has proven time and again that she is incapable of fulfilling the physical, mental and emotional needs of M., B. and L. Ms. C.’s inability to manage finances has brought significant misery to these three children through the constant moves to different homes and temporary Shelters. Ms. C. appears steadfast in her belief that her children are completely normal, and do not require any medication. It is abundantly clear on all the evidence that M. and B. have significantly improved in school as a result of M. being placed on anti-depressant medication and registered in the CHEO “Steps to Success” program and that B. has thrived as a result of being prescribed medication for her ADHD. Both have also benefited from medicine to control their bedwetting.

[277] Even were the Court to order that Ms. C. administer medication to the children, I have no faith that she would follow such an order, given her visceral opposition to the use of medication and her deeply held belief that teachers must work harder to control the children through constant love and attention. I had the impression that Ms. C. strongly believed that the teachers of her children should be singularly devoted to her children, forgetting that teachers have numerous other children in their care. Her expectations were remarkably unrealistic in my view.

[278] Ms. C.’s evidence with respect to how she would deal with the children’s bedwetting was somewhat contradictory. At one point she stated that she regularly washed the children’s sheets and at another point stated that she would wake the children up numerous times during the night and put them on the toilet so that they would not wet their beds. I found this evidence difficult to believe, but in any event, the constant interruption of the children’s sleep did not strike me as sound parenting. I am more inclined see the wisdom of Mrs. M.’s approach, which is to limit the children’s intake of fluids and put diapers on them so that they get a full night’s sleep. The two older children have also benefitted from medication that limits bed-wetting.

[279] It is clear from all the evidence that all three children are thriving as a result of being provided with a structured environment by the foster parents. It became clear through the evidence adduced at trial that structure was very important to these children, particularly given their attention deficit disorders. Ms. C. does not agree with structure. She prefers to allow the children to stay awake as long as they wish and fall asleep in her bed, at which point she places them in their own beds. I cannot see how this habit could encourage restful sleep which in turn promotes the ability to learn. Learning requires a good night’s sleep.

[280] It is clear from the evidence that the children have often gone hungry and have complained about hunger to CAS workers and to police. Mr. Petrie noted the children’s hunger while they were at Severn Public School. The evidence is replete with references to the necessity of the CAS officials providing food vouchers to Ms. C.

[281] Ms. C. has a history of thumbing her nose at conditions to which she has voluntarily agreed time after time. Her refusals to continue in the Crossroads Program and the Family Support Program amply demonstrate this observation. Her statements to Ms. Lindstrom that she has had enough programs and does not need any more speaks volumes. I have no hesitation in concluding that Ms. C. fundamentally believes that she does not require any help from professionals or the CAS. Though she states she is willing to take such programs in the event her children were returned to her, the fact that she has not pursued any programs in the year and one half since the children have been in care convinces me that she has no sincere commitment to taking programs. Ms. C. believes that she is a good mother and the she knows better than anyone else how to raise her children. The evidence demonstrates that she is in very serious need of assistance in changing her pattern of behaviour in relation to the children. As Dr. McLean noted, Ms. C.’s personality traits are such that she is disinclined to accept constructive criticism. As a result, the children have been seriously deprived of effective parenting.

[282] Ms. Naik, in her very able argument, relied heavily upon the evidence of Ms. Verkulp to buttress her suggestion that the children were progressing well while in the care of Ms. C. While Ms. Verkulp did not see any red flags while the children were with her, it must be noted that she was running a program that gave Ms. C. respite from having to deal with her children. It is little wonder that she and Ms. C. would get along well given that Ms. Verkulp was taking a burden away from Ms. C. Ms. Verkulp’s observations of the children must be weighed against the observations of the numerous CAS workers, Mr. Petrie, and, the foster mother. The weight of the evidence is that the children were not doing well while in the care of Ms. C. Ms. Verkulp’s history is in managing a McDonald’s restaurant and is primarily charged with managing the finances of the Community House. I find she is not in as advantaged a position to assess the family dynamics as are all the other highly trained professionals involved in the life of this family. It should also be noted that in the short time Ms. Verkulp was involved with Ms. C.’s family, there was one occasion when police had to be summoned to deal with a “heated dispute” between Ms. C. and a neighbour.

[283] Turning to the cultural background of the children, it is clear that Ms. C. has very strong ties to her Jamaican culture. Mr. N. testified that Ms. C. has stated that she wishes to move to Jamaica with the children. Ms. C. herself testified that she sees her children as more Jamaican than Canadian. On the other hand Mr. N. spoke of M. as “a Canadian Boy.” The fact is that these children are all young Canadians, having been born and raised in this country. Ms. C. came to this country at age 13 and has been here for over 20 years. I suspect that her love and respect for Jamaican culture is to some extent romantic and historical. While the children require exposure to their Jamaican culture, they are more in need of a stable upbringing in Canada, which is the only country they know.

[284] The religious faith of the children is an important part of their upbringing and they continue to be brought to a Christian service each Sunday by the foster parents. Any placement of these children must be sympathetic to their Christian upbringing and attempt to connect them with a Christian congregation that would include black people.

[285] Hinged to that consideration are the children’s relationships and emotional ties to Ms. C., other relatives and each other. There is conflicting evidence with respect to the emotional ties between the siblings. Particularly striking is M.’s desire that if he is to be adopted, he wishes to be adopted alone. Mrs. M. noted that the children do not naturally share their possessions, nor communicate with each other as her own children did. On the other hand, Mr. Petrie testified that M. was quite protective of this younger brother and sister and that the three stuck together while at Severn Public School. Mr. N noted the bond between the children as did Mr. F. I have little doubt that while the relationship between these children is highly strained it is because, as Dr. McLean noted, Ms. C. gives attention to the children conditional upon their good behaviour. In my view, this might aggravate sibling rivalry. I accept the evidence of Ms. Verkulp that L.W. misses her half-brothers and sister. In an ideal world, I believe the three younger children should remain together. Certainly B. and L. should remain together. It may well be that M. would be happy to be adopted alone, with the ability to visit his siblings but that issue must be left to another day. Dealing with the present situation, I must conclude that Ms. C.’s involvement with these children causes more alienation than bonding. Clearly the children are closely connected to their extended family, including Ms. H. and in particular their grandmother, who played a very significant role in raising the children and has a bond with the children independent of Ms. C. It would be hoped that these relationships could continue, but I am convinced that they should not continue as a result of a decision that would return the children to Ms. C.

[286] With respect to the children’s ties to the community in which they live, this is not a significant factor because they have moved so frequently. It cannot be said that they have a strong connection to the Richie Street community. Even Ms. C.’s current boyfriend, Mr. F. has moved away from Richie Street.

[287] The importance of continuity of care and the possible effects on the children of disruption of that continuity must be weighed in the context of the reality that the children have been in foster care for over a year and a half, and are thriving in that environment. This proves that given an appropriate placement, the children can continue to thrive. By returning the children to Ms. C., I am convinced that all the problems that have surfaced over the last six years would inevitably be experienced again. Ms. C. is not capable of dealing with CAS officials. She is not inclined to take the advice of professionals. She is not predisposed to accepting programs. She is vehemently opposed to the use of medication. She cannot control her temper. She cannot manage her finances. She believed she is always right. In my view, it is highly unlikely she will ever change. Returning the children to Ms. C. would likely result in a return to court in very few months.

[288] Turning to the plan proposed by the Society, namely that the children be made Crown wards for the purposes of adoption with access between the children and the mother and older sister L.W., CAS worker Kim Kay-Levesque in her affidavit sworn January 9, 2012 attests to the fact that there have been three different expressions of interest for the children, one being for all three and two for M. individually with openness with his siblings. While one can never predict the future, I would simply make the observation that all three children are physically attractive and have personality strengths which would make them desirable for adoption, hopefully together, although as stated earlier, that issue remains to be determined. Suffice to say that given the specific personal and physical characteristics of these children, I have faith that they would be adopted in the City of Ottawa which would permit continuing links with L.W., Ms. C. and each other.

[289] Ms. Naik submits that the reintegration of L.W. with Ms. C. has gone well and there is no reason to believe that should the three younger children be returned to Ms. C. things would go equally well. Unfortunately, what Ms. C. has not done since the return of L.W. is fulfill the conditions to which she agreed, including taking parenting training and counselling for her anger. The return of L.W. to Ms. C. provided Ms. C. with a golden opportunity to prove to the court that she was sincere in her commitment to the supervision order but she has failed once again in satisfying the court’s expectations of her. There is no reason to believe she would act any differently should the three younger children be returned to her care.

[290] The court must take into account the children’s views and wishes if they can be reasonably ascertained. We know that M. is ambivalent with respect to whether he is adopted or returned to his mother. Dr. McLean found this was a rather extraordinary position for M. to take because, generally speaking, 90 percent of children express the strong desire to return home no matter how severely they may have been treated by parents. Ms. Naik suggests that M. is taking this ambivalent position in a veiled attempt to have his younger siblings return home. This is speculation of the highest order and I doubt very much, based upon the submissions made by Ms. Feeley, who has spent significant time with M., that he would contrive such a plan.

[291] Both B. and L. have expressed the desire to return home, although L. did inform Dr. McLean that “foster homes are awesome” which Dr. McLean found to be a rather significant statement. In his experience children will generally denigrate foster homes in their desire to return to the family home. With respect to B., she stated that she would prefer that her mother stop drinking. She also spoke of her mother slapping her. She was not enthusiastic about foster homes because “they would sometimes not give you things you asked for,” whereas her mother gave her everything she wanted. This evidence has already been commented upon earlier and clearly it is not in B.’s best interest to be placed in a home where she gets and does whatever she wants. B. and L. need structure to thrive.

[292] What we are left with in this case are three children whose views and preferences are lukewarm with respect to returning to their mother. As Dr. McLean has stated, this is a rather extraordinary situation, as children generally express the wish to return home no matter how badly they have been treated.

[293] There has been significant delay in the disposition of this case. By the time this judgment is released, the children will have been in the foster home for almost 20 months. I have no doubt that the children are anxious to learn what will happen to them. The fact that they have been away from Ms. C. for the length of time they have and are thriving in the foster home convinces me that the delay has redounded to their benefit. In my view, further delays involved in the appropriate placement of the children will not be detrimental to them. As I have stated, were they returned to Ms. C., I foresee significant upset being suffered by each of the children because they would be subjected to an environment that would mirror the one that led to their need to be brought into care.

[294] The next factor is the risk that the children may suffer harm through being removed from, kept away from, returned to, or allowed to remain in the care of a parent. I have already commented that in my view, were the children return to Ms. C.’s care they would face significant risk. As I have already stated, I have no faith that Ms. C. would adhere to the conditions of a supervision order because she has never adhered to conditions in the past. The best predictor of future behaviour is past behaviour. Ms. C.’s expressed plans with respect to the return of the children, specifically with respect to their schooling, career choices and activities, was extremely fanciful. Her expressed intentions have been totally betrayed by her own history. Specifically, her decided failure or refusal to do anything to improve her mothering skills since the children were brought in care impacts negatively on her credibility and the sincerity of her intentions.

[295] The sum and substance of the evidence called by Ms. C. is essentially a repeat of the plan hammered out at the Family Group Conference held in November 2007, with the exception that the fathers of the children are not involved in the proposed plan. I have no confidence that events would evolve any differently than they did following that Family Group Conference. Ms. C. has had ample opportunity to demonstrate that she is serious about changing her ways, but the force of the evidence is that she is not inclined to change her ways. She fundamentally believes that she knows better than all professionals who have dealt with her over the last six years, and I have no doubt that this attitude is impervious to change.

[296] The last factor listed in s. 37(3) is the degree or risk, if any, that justified the finding that the children are in need of protection. All the evidence in the trial has led me to believe that the order made my Madam Justice Ratushny was appropriate. All the evidence has proved the wisdom of that order. I have no difficulty whatsoever in finding that the children continue to be in need of protection and that the children should be made Crown wards for the purposes of adoption. There is nothing in the evidence that convinces me that all the historic problems faced by Ms. C., including her disciplinary techniques, her inability to manage her finances, her lack of supervision of the children, her troubling personality traits, her inability to control her anger, and her inability to cooperate with professionals has not changed and is unlikely to ever change.

[297] In the circumstances, an order shall issue making the children Crown wards for the purposes of adoption with access between the siblings and with Ms. C. to be at the discretion of the Society pending any openness agreements or hearings following adoption. In any event, M. shall have supervised access to his siblings and Ms. C. at least once per month and on his birthday pending further order of this Court. M. is at an age where he should be permitted some latitude by the Society in complying with his wishes.

[298] I am well aware that this decision will come as a blow to Ms. C. Nonetheless, she must realize that if she is to maintain contact with her three younger children, she must not work to undermine their placement with adoptive parents. Even though the Society is seeking an order that Ms. C. continue to have access to her children, s. 59 (2.1) of the Child and Family Services Act mandates that Ms. C. must satisfy the court that her relationship with her children is “beneficial and meaningful” to the children and that her access will not impair the children’s chances for adoption. The Society has acknowledged that Ms. C. has met that test. Ms. C. must understand that circumstances can change and she must strive to ensure that her access to the three children will be beneficial and meaningful to them. A mere expression of love, or the fact of being a parent is insufficient to meet the test: see Children’s Aid Society of Niagara Region v. C. (J.), 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.), per Aitken J. at paras. 22, 23 and 29.

[299] In Catholic Children’s Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, [2011] O.J. No. 4512 (S.C.J.) Pazaratz J. held that s. 141.1 “opens the door slightly” but “does not change or even reduce either element of the conjunctive test in S. 59 (2.1).” The Court must still be satisfied that “access will not impair the child’s future opportunities for adoption.”

[300] J.W. Scott J. agreed with that observation in Children’s Aid Society of Niagara v. B. (D.), [2011] O.J. No. 4956 (S.C.J)

[301] I also agree that notwithstanding the new regime mandated by s. 141.1, a parent still has an onus to satisfy the Court that access to the Crown ward will be meaningful and beneficial to the child and in no way diminish the child’s opportunities for adoption.

[302] Ms. C. must understand that I am not concluding that she is a bad person. I am concluding that her personality is such that she lacks the capacity to be a good mother. I believe that she has the ability to make access to her children beneficial and meaningful, but she must continue to work hard to improve her access visits.

[303] This has been a difficult case for everyone involved. Decisions in cases such as this almost invariably amount to a choice involving the lesser of two evils. I wish to thank counsel for their highly professional conduct throughout this difficult trial. Their ability to cooperate and exhibit mutual respect in very difficult circumstances deserves recognition.

The Hon. Mr. Justice Colin McKinnon

Released: May 23, 2012

COURT FILE NO.: FC-07-297

DATE: 20120523

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF E. (“M.”), born […]; B., born […] and S. (“L.”), born […]

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

C. C. (“Ms. C.”)

Respondent

REASONS FOR JUDGMENT

McKinnon J.

Released: May 23, 2012