COURT FILE NO.: C1224/02

DATE: March 8, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

BETWEEN:

Children’s Aid Society of London and Middlesex

Joseph F. Belecky for the Society

Applicant

- and -

K.A.L., B.K. and W.B.

Edward J. Mann for K.A.L.

Toenie Hersch for B.K.

W.B. not appearing

Respondents

HEARD: January 12, 13, 24 and September 11, 12, 13, 14, 17, 18, 19, 20, 21 of 2012

MITROW J.

INTRODUCTION

[1] This trial involved the application for status review (issued August 16, 2010) brought by the applicant, the Children's Aid Society of London and Middlesex (“Society”), seeking an order for Crown wardship for the children, M.E.K., [now age three and a half], and A.J.K., [now age six and a half]. The respondents, B.K. and K.A.L., are the father and mother of the children, M.E.K. and A.J.K. K.A.L. and B.K. are separated and not living together.

[2] The respondent, W.B., who was apparently a former partner of K.A.L. and a parent, did not participate in the trial, nor did he file an answer and plan of care.

[3] At the time the trial concluded, both A.J.K. and M.E.K. had been in continuous Society care for a little over two years, and therefore the option of an order for temporary wardship is not available.

[4] It was the position of the Society throughout the trial that the children be made Crown wards for the purpose of adoption. It was the position of K.A.L. that the children should be returned to her care subject to a supervision order. It was B.K.’s position that the children be placed with K.A.L. pursuant to a supervision order but, in the alternative, he requested that if the court did not place the children with K.A.L., that the children be placed with him pursuant to a supervision order.

[5] As will become apparent in the discussion below, this is an admittedly difficult case, and this was noted also by the assessor.

[6] A central and significant issue in this trial was K.A.L.’s history of substance addiction. It was K.A.L.’s position that, given the strength of her recovery from substance addiction and her solid relapse prevention plan, it was appropriate to place the children in her care and that the children could be adequately protected with appropriate terms and conditions as part of a supervision order.

[7] While the Society recognized and conceded that K.A.L. had made excellent progress dealing with her substance abuse addiction, it was the Society’s position that taking into account all the factual history, including the many times that the children had been in and out of care, that it was appropriate to make an order for Crown wardship as only this disposition would meet the children’s needs for stability through adoption and would avoid the risk of K.A.L. relapsing, thereby requiring yet another apprehension of the children.

[8] This trial commenced in January 2012 but, after several days of evidence, it was agreed by all parties that Dr. Marlies Sudermann should conduct an assessment pursuant to s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended]. Accordingly, on January 24, 2012, a mid-trial order was made for Dr. Sudermann to conduct the assessment. As part of the order, Dr. Sudermann was required to assess the parenting capabilities of the parents, whether either parent had any disorder impacting on his or her ability to care for the children, the nature of the attachment of the children to their parents and the possible effects on the children of continuing or severing those relationships, the psychological functioning and developmental needs of the children, the ability of the parents to meet the children’s needs and the likelihood of success of clinical intervention for observed problems.

[9] The assessment was completed April 10, 2012 (the order required a completion date by April 15, 2012) and the trial resumed in September 2012.

BACKGROUND

[10] In addition to A.J.K. and M.E.K., K.A.L. had two other children. The oldest child is R.L., [age 19]. Also, K.A.L. had a child, D.M., born in 2001. D.M. was born with a serious medical condition. At K.A.L.’s request, D.M. was made a Crown ward in 2003. This was done to enable D.M. to receive the necessary 24 hour medical care that he required. Sadly, D.M. died in 2004 as a result of his serious health problems.

BACKGROUND – HISTORY OF CARE FOR A.J.K. AND M.E.K.

[11] It is not disputed that A.J.K. and M.E.K. have spent substantial periods of time in Society care.

[12] Society protection concerns included a conflictual relationship between B.K. and K.A.L., failure to properly care for the children, concerns about B.K.’s alcohol dependency and K.A.L.’s serious substance and alcohol abuse.

[13] In August 2007, A.J.K. was apprehended from K.A.L.’s care (along with R.L.). In relation to A.J.K., this resulted in A.J.K. being placed with B.K. pursuant to a final six month supervision order in May 2008 with various terms and conditions, including a requirement that B.K. not allow K.A.L. to have contact with A.J.K. except as authorized by the Society.

[14] This placement was short-lived as A.J.K. was apprehended from B.K. in September 2008 and placed in Society care on an interim basis with both parents being entitled to reasonable access supervised by the Society. Reasons for the apprehension included that B.K. failed to abide by the terms of the supervision order restricting K.A.L.’s contact with A.J.K. and because of domestic violence issues.

[15] K.A.L. has a criminal record that consists of two counts of mischief under $5,000 (September 2008), failing to comply with a probation order and failing to comply with an undertaking (October 2008) and theft under $5,000 (April 2010). The sentence for the last offence was a conditional discharge and 18 months probation. K.A.L. readily admitted that her substance abuse had been a precipitating factor leading to her criminal conduct.

[16] B.K. has a criminal record relating to drinking and driving offences (three convictions between 2001 and 2006), a conviction for driving while disqualified (2004) and a conviction for common assault (2008).

[17] From September 2008 to December 2009, A.J.K. was in the F. foster home. During this time, M.E.K. was born ([…] 2009) but M.E.K. was not apprehended. By December 2009, A.J.K. was back with his parents, along with M.E.K., and also R.L. However, K.A.L. (as discussed in more detail below) continued to deteriorate primarily from her substance abuse, such that by early 2010 she voluntarily left the home. This eventually led to two, six month supervision orders dated May 13, 2010, resulting in A.J.K. and M.E.K. (and also R.L.) being placed with B.K. subject to 14 terms. (It is noted that these May 2010 orders terminated two previous supervision orders: an order dated October 22, 2009, placing R.L. with K.A.L. subject to 12 terms, and an order dated December 17, 2009, also placing A.J.K. with K.A.L. subject to 10 terms.

[18] A.J.K. and M.E.K. were apprehended from B.K.’s care on or about August 13, 2010 pursuant to a warrant. This apprehension was precipitated by concerns including that B.K. was not properly supervising the children and that he permitted contact with K.A.L. despite a prohibition against such contact contained in the order. Further, B.K. had admitted to consuming beer while caring for the children (contrary to the prohibition against alcohol consumption contained in the order). B.K. had also admitted that he used an inappropriate caregiver for the children after being told by the Society not to use that person.

[19] In fact, one of the former foster parents, Ms. F., testified about an incident in or about June 2010 when she attended at B.K.’s residence to drop off A.J.K. (as she was having access to A.J.K. from time to time, making those arrangements directly with B.K.). Ms. F. testified that when she arrived at B.K.’s residence she heard loud music. She knocked on the door and was let in. The babysitter, a male teenager (who Ms. F. estimated to be 15 to 16 years of age) and a number of his friends were in the house. She observed a vial with “black liquid” and drug paraphernalia. M.E.K. was present and Ms. F. picked her up, noting that her diaper had not been changed. Ms. F. described A.J.K. as screaming and crying – not wanting to stay there. Ms. F. was quite upset at what she witnessed and called the Society immediately upon leaving.

[20] On apprehension, A.J.K. was returned to the F. foster home where he stayed for approximately one year. In relation to K.A.L., Ms. F. testified that she maintained a good working relationship with her and that K.A.L. would make a point of telling Ms. F. how pleased K.A.L. was with the care of A.J.K.

[21] While A.J.K. was in the F. foster home, M.E.K. was placed in a different foster home. In the summer of 2011, both A.J.K. and M.E.K. were moved from their respective foster homes to the L. foster home. This foster placement was not intended to be long-term. Ms. L. testified that at times A.J.K. would be upset and would exhibit temper tantrums. Ms. L. stated A.J.K.’s anger appeared in part related to his various moves, although in cross-examination Ms. L. also described that A.J.K. was angry at not being able to be with his father. She testified A.J.K. often spoke about living with his father.

[22] Society social worker, Ms. Rachel Smith, testified that while the children were at the L. foster home, a prospective adoptive home was found and the pre-placement visits had started. However, that process terminated when the prospective adoptive parents withdrew.

[23] By the time of the March break in 2012, A.J.K. and M.E.K. had moved to the G. “view-to-adopt” foster home.

[24] Ms. D.G. (the foster mother) testified that she had been a stay at home parent (she and her husband have three children of their own, the eldest attending university) and it was also her evidence that she and her husband are prepared to adopt A.J.K. and M.E.K. should they become available for adoption. Ms. G. stated that she had not had an issue with A.J.K. having temper tantrums. Both children were well settled into the routine and discipline of the G. home. Ms. G. confirmed that M.E.K. does have some speech problems but Ms. G. was satisfied with the progress being made by M.E.K. in speech therapy. Ms. G. described A.J.K. as bright and indicated that both children have no current health issues.

[25] On the first day of school in September 2012, Ms. G. involved K.A.L. and had K.A.L. participate in that occasion. Ms. G. described maintaining a good relationship with both parents.

[26] It was also Ms. G.’s testimony that she and her husband would be open to maintaining contact with both K.A.L. and B.K. if an adoption occurred. She felt this was important for both children. When asked in-chief as to the frequency of such contact, Ms. G. responded that they had not really thought about that and they would want to discuss the matter and do what is best for the children.

[27] In answer to a question from the court as to whether Ms. G. would want the children to be a part of her life if the children were returned to one of the parents, and the parents agreed, Ms. G. stated “absolutely.” It was noteworthy that Ms. G.’s response to the question was given without a hint of hesitation or equivocation.

K.A.L.’S SUBSTANCE ABUSE HISTORY AND EFFORTS TO ADDRESS HER SUBSTANCE ABUSE

[28] K.A.L., who was age 37 at the conclusion of the trial, admitted to a lengthy history of substance abuse. She described herself as a “poly” user – being a user of multiple substances, including alcohol, cannabis, crack cocaine, amphetamines and opioids. She was prescribed methadone to assist with her drug addiction. I accept K.A.L.’s evidence that her recollection as to historical events, including in particular the details of her violent behaviour, is clouded by reason of her substance use at the time of the events.

[29] R.L. was born when K.A.L. was age 18. After D.M. was born, K.A.L. was caring for two children with special needs. R.L. had an ADHD diagnosis and D.M. was born with cerebral palsy. K.A.L. described D.M. as needing 24 hour care.

[30] The fathers of D.M. and R.L. played minimal roles in discharging their respective parental obligations according to K.A.L. She described D.M.’s father as violent towards her and a drug user. Police were involved in altercations between K.A.L. and D.M.’s father. K.A.L. described herself as being overwhelmed with child care and her own drug addiction. She agreed at times that both R.L. and D.M. were in care.

[31] K.A.L. testified as to a profound sense of guilt at consenting to Crown wardship of D.M. She was emotional on the witness stand when she described that, by placing D.M. in care, she believed the bond between her and D.M. had broken – D.M. no longer heard the regular sound of her voice.

[32] K.A.L. readily admitted in cross-examination the volatile nature of her behaviour, including violence, between herself and B.K. She agreed that she had attended at B.K.’s residence (she said without his knowing about it) on several occasions to check on A.J.K. and M.E.K., contrary to the terms of the supervision order, while the children were placed in B.K.’s care. K.A.L. testified that she did so, in part, because of her concerns about the inappropriate sitter being used by B.K. She admitted to seeing A.J.K., also in contravention of the order, at Tim Hortons in early August 2010. K.A.L. described herself as being homeless at that time. She needed clothes for her plan to stay at the House of Sophrosyne and she contacted B.K., arranging to meet at Tim Hortons. B.K. brought A.J.K. with him.

[33] K.A.L. conceded during cross-examination that she has had a poor history with various partners with whom she has resided, including the fathers of her children. These relationships involved arguments and/or violence with both K.A.L. and her partners abusing alcohol or other substances.

[34] K.A.L. described the reasons for leaving her home in January 2010 that resulted in B.K. being left alone with A.J.K., M.E.K. and also R.L. It was K.A.L.’s evidence that, after giving birth to M.E.K. the previous summer, K.A.L. found herself again succumbing to substance abuse. In addition, she had problems managing her bipolar condition. Also, this was the anniversary of D.M.’s death.

[35] K.A.L. stated that she voluntarily left the home as a result of her relapse. The evidence supports a conclusion that by January 2010 K.A.L. had again hit “rock bottom.” Thereafter, she embarked on what can only be described as a purposeful, genuine and concentrated effort to seek treatment for her substance abuse. Her goal was to end the cycle of substance abuse and relapse.

[36] The evidence of the Society protection workers who were involved in this case starting August 2009 is important because it lends corroboration to the evidence of K.A.L. and her witnesses as to the significant extent of her recovery.

[37] Ms. Louisa Tula was on the Society “addictions team” while working with B.K. and K.A.L. from August 2009 to October 2010. In cross-examination, Ms. Tula agreed that K.A.L. had set up the arrangements to attend the House of Sophrosyne and that she also set up on her own the various efforts aimed at rehabilitation.

[38] Ms. Tula described K.A.L. as being reflective during this process and being able to look back at the impact of her addiction. According to Ms. Tula, K.A.L. began to take better care of herself, her appearance improved and she looked healthier.

[39] Ms. Tula added that K.A.L. had a lot of insight. In reference to a “photo voice group,” that Ms. Tula explained was designed to support women who were in recovery and who had proceeded through various programs, it was Ms. Tula’s evidence that in relation to K.A.L.’s narratives for her photo, that Ms. Tula was struck by how very well written they were. According to Ms. Tula, this showed that K.A.L. had given a lot of thought to what she had been through.

[40] Ms. Ashley Pikul was the Society worker who had file responsibility from October 2010 to May 2011.

[41] It was Ms. Pikul’s evidence that she had no recommendations for counselling for K.A.L. as K.A.L. was already working with many services on her own, including Addiction Services of Thames Valley, Turning Point and Narcotics Anonymous. On November 18, 2010, at a court hearing, Ms. Tula met K.A.L.’s sponsor, who had accompanied K.A.L. to court. Ms. Tula testified she spoke with the sponsor and was satisfied that the sponsor was properly engaged with K.A.L.

[42] During cross-examination by Mr. Mann, Ms. Pikul acknowledged that when the children were apprehended in August 2010, the decision was made to request Crown wardship “right away” based on A.J.K.’s time in care and the fact that placing the children with K.A.L. in the past had not worked.

[43] During cross-examination by Mr. Hersch, Ms. Pikul testified that due to K.A.L.’s past history of drug abuse, the Society position remained one of Crown wardship “even though she [K.A.L.] was improving.”

[44] In relation to the Society reassessing its position of Crown wardship, or looking at some unsupervised access for K.A.L. based on the apparent positive way in which K.A.L. was dealing with her addiction issues, it was Ms. Pikul’s evidence that while she was on the file the Society position remained Crown wardship and that it would make no difference how well K.A.L. did in dealing with her issues.

[45] Ms. Rachel Smith (“Ms. Smith”) assumed carriage of the file for the Society in May 2011 and she was still the worker when she gave her evidence in mid-September 2012.

[46] Ms. Smith, when asked in chief about her views as to K.A.L.’s efforts in addressing substance abuse issues, testified that K.A.L. had made “fantastic efforts” and had done really well working on her recovery. Ms. Smith reiterated that the Society’s biggest concern in placing the children with K.A.L. was the potential for relapse. According to Ms. Smith, the Society did not place the children with K.A.L. because the children required permanency and the Society did not want to expose the children to the potential risk of another return into care.

[47] Ms. Smith conceded in cross-examination by Mr. Mann that there was no evidence to suggest that K.A.L. had failed to sustain her active recovery. Ms. Smith also told Mr. Mann that K.A.L. had done “a lovely job” preparing her current home for the children’s possible return. However, Ms. Smith also reaffirmed that her direction from her superiors was to look for a view-to-adopt foster home when she inherited the case.

[48] In commenting on access, Ms. Smith during her evidence in chief stated that the parents (referring to B.K. and K.A.L.) had been “very wonderful” with access and good with the children. Ms. Smith also testified that the parents always worked collaboratively with foster parents, and the Society and that in her view there was no perception of the parents undermining the foster home placements.

[49] As to A.J.K. and M.E.K. maintaining contact with their parents, Ms. Smith testified there was benefit to both children in ongoing contact with the parents and also that contact was important, especially for A.J.K. There was some corroboration in this evidence from Ms. G., who testified that A.J.K. spoke of having two families – two moms and two dads. Ms. Smith explained that A.J.K. loves his parents and that M.E.K. too knows her parents and has a positive relationship with them. If adoption occurred, Ms. Smith stated that the Society would support an openness order, with the specific details to be worked out.

[50] During cross-examination, Ms. Smith was pressed by Mr. Hersch as to what the Society’s position would be if there was a “crystal ball” (this was Mr. Hersch’s analogy) that said K.A.L. would not relapse. Ms. Smith’s initial response to this question was that she did not have a crystal ball. When the question was reframed as to what the Society’s position would be if it could be assumed that K.A.L. would not relapse, Ms. Smith replied that if there was a 100 percent guarantee that the children would remain in a stable home with K.A.L. or B.K., that is where they would be.

[51] Turning Point is a long term recovery home in London, Ontario for individuals who have problems with alcohol and/or drugs. Ms. Laura Belle, an addictions counselor at Turning Point, summarized K.A.L.’s progress in a report dated August 22, 2012 that was filed as an exhibit. Ms. Belle also testified at trial.

[52] K.A.L. had stayed at Turning Point for over one year. Ms. Belle confirmed in her report that K.A.L. was admitted to Turning Point on November 1, 2010. In October 2011, K.A.L. celebrated her one year anniversary of abstinence. Ms. Belle indicated that while at Turning Point, K.A.L. “worked diligently on her recovery and her self esteem issues.” K.A.L.’s program at Turning Point included regular participation in group and individual counselling. Ms. Belle confirmed in her report that K.A.L. also attended recovery meetings in the community, that she visited her children during the week and she maintained her positive attitude towards “staying clean and sober.”

[53] Ms. Belle also confirmed that since being discharged from Turning Point, K.A.L. continues to have contact with Turning Point weekly by attending their “caring and sharing group.” Based on her personal contact with K.A.L., Ms. Belle indicated that K.A.L. “continues to be motivated and focused on her goals.”

[54] During her testimony, Ms. Belle confirmed that K.A.L. was dealing with some childhood issues as part of her recovery and in fact K.A.L. attended a program known as EMMAUS. This is also corroborated by a letter from EMMAUS dated May 20, 2011 and filed as an exhibit.

[55] During her cross-examination by Mr. Hersch, Ms. Belle (like other witnesses) noted K.A.L.’s grateful attitude to the Society for the care given to her children. Ms. Belle indicated that was something she does not see often.

[56] Ms. Belle testified that she had connected on a daily basis with K.A.L. at Turning Point and that K.A.L.’s focus was recovery and maintaining recovery. Ms. Belle agreed with the suggestion that K.A.L. “is a remarkable lady.”

[57] Mr. Belecky, in his cross-examination of Ms. Belle, asked what was meant describing K.A.L. as a “remarkable” lady. Ms. Belle’s response included that K.A.L. worked the program well, she was always willing to help, she listened, she read the literature, she attended meetings, she shared her experience and that she put her “heart and soul” into it.

[58] A report dated July 11, 2011 from Heather Elliott, program director at Addiction Services of Thames Valley (“Thames Valley”), filed as a trial exhibit, confirmed K.A.L. was a client at Heartspace, a Thames Valley program for women who are pregnant, parenting and substance involved with children up to age 6. K.A.L. had been at Heartspace previously (July 2003 to July 2004), at which time she was successfully discharged from the program. K.A.L. then reconnected with the program in February 2008 and July 2008. After K.A.L. left the family home in January 2010, she attended again at which time an update assessment was performed and it was determined that K.A.L. would benefit from a short-term residential treatment program. On March 15, 2010, K.A.L. was referred to House of Sophrosyne in Windsor and K.A.L. was able to complete its five week program in October 2010. Ms. Elliott’s report as to K.A.L.’s progress, after seeking help in 2010, was very positive and indicated that K.A.L. had achieved her goals and had successfully completed her treatment with the Heartspace program. In January 2011, K.A.L. was reassessed to determine her available supports and her ability to cope with daily living. This was done using provincial standardized assessment tools and, according to Ms. Elliott’s report, K.A.L. scored well in terms of not experiencing difficulties, coping with day-to-day life, having many positive supports from family and friends, including professionals and “12-step” based groups in the community. K.A.L. scored 100 percent in her confidence level at maintaining abstinence from substances.

[59] Mr. Jim Corbett, an addiction counselor at Turning Point since July 2011, prepared a brief report dated August 21, 2012 filed as an exhibit, and Mr. Corbett also testified at trial.

[60] In his written report, Mr. Corbett described meeting with K.A.L. about five years ago when she was in active addiction. Mr. Corbett described Turning Point as a total abstinence recovery house based on the 12-steps of Alcoholics Anonymous. In his report, Mr. Corbett describes the transformation he witnessed in K.A.L. as “frankly astounding.” He corroborated that K.A.L. remains active in recovery by attending Narcotics Anonymous, helping to “carry the message of recovery” to others and, as alumni of Turning Point, she visits with newcomers.

[61] During his testimony, Mr. Corbett described K.A.L.’s progress as outstanding and stated that K.A.L.’s recovery was used as a model for others.

[62] Ms. J.R., who is K.A.L.’s sponsor, testified as to K.A.L.’s ongoing ability to maintain her recovery. She has frequent contact with K.A.L., including seeing her every week, talking to her every other day and seeing her at meetings.

[63] Ms. J.R. spoke of K.A.L.’s condition prior to seeking treatment. She stated K.A.L. was in no shape to care for her children or herself at that time.

[64] Ms. J.R. contrasted K.A.L.’s then and now – an immense improvement as she described it. Ms. J.R. testified she would know if K.A.L. “picked up.” Ms. J.R. described working “the steps” with K.A.L. (referring to the 12-step program).

[65] J.B., K.A.L.’s sister, in her testimony described that she and K.A.L. began using drugs in high school. Ms. J.B. is in her fifth year of recovery from drug addiction. She described assisting K.A.L. during her relapses by visiting her, giving her direction and taking K.A.L. to her first Narcotics Anonymous meeting. Ms. J.B. is a good support for K.A.L. Ms. J.B., when asked if she would know if K.A.L. relapsed, was quite confident and replied “absolutely.”

[66] In her evidence, K.A.L. described firsthand her efforts at rehabilitation, as had been corroborated by the other witnesses. I found K.A.L. to be an impressive, credible and reliable witness. She fully admitted her past failings.

[67] As noted by other witnesses, K.A.L. possessed a rare quality of thanking the Society and various foster parents for the care of her children. This evidence also came directly from K.A.L. during her rather moving testimony stating that she had been blessed with having loving, caring foster parents for her children. In describing the Society foster parent, Ms. G., K.A.L. testified that Ms. G. is everything she would want as a parent for her children if they were not returned to K.A.L.

[68] In relation to relapse prevention, I find on the evidence that K.A.L. has followed what she has learned at Turning Point and Thames Valley. She regularly attends Narcotics Anonymous meetings and also some Alcoholics Anonymous meetings. She is very involved in helping others, she has regular contact with her sponsor and K.A.L. is herself a sponsor. I find K.A.L. has organized her life to giving priority to maintaining her recovery. I accept the evidence of Ms. Belle and Mr. Corbett, together with the evidence of K.A.L.’s sister, Ms. J.B., and K.A.L.’s sponsor, Ms. J.R., as to the extent of K.A.L.’s recovery and the strength of her relapse prevention plan. There was nothing in the cross-examination of these witnesses or K.A.L. that undermines all the efforts taken by K.A.L. to achieve and maintain her recovery. The reports prepared by Ms. Belle and Mr. Corbett were not challenged in cross-examination. No evidence was called by the Society to dispute the Thames Valley report from Ms. Elliott. Further, as noted earlier, the Society witnesses also acknowledged K.A.L.’s accomplishments.

[69] The personal struggles endured by people who succumb to substance abuse were laid bare in the poignant testimony of Mr. Corbett, Ms. J.R. and Ms. J.B. Each of these witnesses described the havoc visited on their lives by their own substance abuse. They chronicled their individual struggles with addiction, seeking treatment, finding sponsors, being sponsors and then adhering to a vigilant and daily determination to maintain recovery. These witnesses today all lead productive and fulfilling lives. Each witness spoke of the number of years he or she has been “clean.” Their evidence teaches anyone who cares to listen that a person afflicted with a history of substance abuse can recover and moreover should never be “written off.”

MR. B.K.

[70] At the time of trial, B.K. was age 53. In relation to breaching the conditions of the supervision order that led to the apprehension of the children in August 2010, B.K. admitted that he consumed “a few beers” on a “few” occasions while the children were in his care. He does not dispute K.A.L.’s evidence that he took A.J.K. to see K.A.L. at a Tim Hortons in August 2010. B.K. testified he was unaware that K.A.L. was attending at his home to check on the children during the summer of 2010. B.K. did agree he used a male babysitter when directed not to do so by the Society. He conceded that the evidence of Ms. F. (the former foster parent) as to what she observed at his home while the sitter was there was problematic.

[71] In his evidence in-chief, B.K. acknowledged that in September 2008 A.J.K. was apprehended from his care because of domestic violence issues that had occurred that summer and because K.A.L. was present contrary to the terms of the supervision order.

[72] I found that B.K.’s evidence in cross-examination, about the tumultuous events during the summer of 2008, was somewhat evasive. While B.K. recalled some of the events, including K.A.L. throwing a chair through the living room window (while A.J.K. was in the kitchen according to B.K.), I found B.K.’s evidence unconvincing when he claimed that K.A.L. did not have his permission to be at his residence.

[73] Regarding the summer of 2010, I do however accept B.K.’s evidence that K.A.L.’s attendance at his home was without his knowledge. Unlike 2008, B.K. was not at home while K.A.L. was there and, further, I accept K.A.L.’s evidence that she was in the home without B.K.’s knowledge.

[74] Unlike the evidence of K.A.L., who spent approximately two full days in the witness stand, B.K.’s evidence was fairly brief.

[75] B.K. has his own business in construction, working mainly as a roofer, and his busy time is during the summer. It was apparent from the evidence that B.K. was struggling with the care of the children during 2010 after K.A.L. left in January 2010 and up until the apprehension in August 2010. B.K. found it necessary to hire a sitter to care for A.J.K. and M.E.K. while he was working long hours.

[76] I find B.K. exercised bad judgment in trusting the care of his children to a male babysitter (age 19 or 20 according to B.K.) that led to the appalling scene witnessed by the foster parent, Ms. F. Worse yet was B.K.’s use of the same babysitter on a later occasion after being told by the Society not to use him and also the fact that B.K. was unapologetic about doing so when discussing this matter with Dr. Sudermann during the assessment.

[77] B.K. clearly has a substance abuse issue with alcohol. Unfortunately, he continued to be in denial, telling Dr. Sudermann that he did consider his alcohol was problematic, while at the same time noting that other people did consider it to be problematic.

[78] It was B.K.’s evidence at trial that he now recognizes his alcohol use to be a problem. He had, in the past four months, started the “12-step” program and he has a sponsor “lined up.” B.K. testified he had not consumed alcohol for approximately four months. These actions taken by B.K. in relation to his alcohol dependency occurred after Dr. Sudermann’s assessment report was released, although B.K. did testify that he started attending Alcoholics Anonymous while K.A.L. was in residential treatment at the House of Sophrosyne.

[79] It was B.K.’s testimony that he completed a number of programs, including Building Families, Caring Dads and attending for couples counselling.

[80] B.K. testified he would do whatever it takes to get the children back in his life, including stopping work and going fulltime on social assistance.

[81] B.K. described that he currently has a great relationship with K.A.L. (although not a romantic relationship) and he too, like many other witnesses, acknowledged what K.A.L. had done in addressing her substance addiction.

[82] B.K. confirmed his position that the children should be placed with K.A.L., but if the children were not placed with her, then B.K. testified the children should be placed with him at his current residence that he indicated was very close to the school the children would attend.

[83] While some aspects of B.K.’s evidence relating to past events was problematic, as noted above, I have no reason to doubt the sincerity of B.K.’s testimony that he now accepts he has an alcohol problem and that his goal is one of abstinence.

[84] It is unfortunate that B.K. waited until after the trial started to come to the realization that he has an alcohol problem and that he requires treatment. However, the fact that he has done so is a positive step. It is not possible to engage in any meaningful analysis at this time as to whether B.K. can succeed in maintaining abstinence.

[85] In relation to R.L., it was B.K.’s evidence that R.L. recently left B.K.’s home, that he has a part time job and that R.L. is not being supported by B.K.

THE PARENTS’ ACCESS TO THE CHILDREN AND THE CHILDREN’S ATTACHMENT TO THEIR PARENTS

[86] I find on the evidence that since the children were apprehended, K.A.L. and B.K. have maintained regular and consistent access supervised by the Society. B.K. admitted he did miss some visits when he was working out of town and unable to get a ride in time, as he depends on others because his license remains suspended due to drinking and driving convictions. K.A.L. may have missed some visits when at the House of Sophrosyne but soon thereafter attended regularly.

[87] Supervised access visits initially were two times per week, jointly attended by both parents, and then by the time of trial the visits were three times per week. These three weekly visits consisted of a joint visit at Strathroy, another visit for K.A.L. at Strathroy and then a visit at London for B.K. on Saturdays to make it easier for him to work.

[88] Ms. Gorett Salvador testified for the Society. She was the access supervisor for the period late September 2010 to late June 2011 and again for the period early April 2012 onwards. Ms. Salvador described very positive interactions during the access visits between both parents and the children. The children were eager to see their parents. Ms. Salvador also observed the friendly relationship between both parents and the foster parent, Ms. G., who was driving the children to some of the visits.

[89] I place little weight on the evidence concerning B.K. not supervising M.E.K. properly when she was using some of the playground type of equipment. This was a minor matter and M.E.K. was not injured.

[90] Dr. Sudermann, in her assessment report, described the two visits she observed between K.A.L. and the children. Dr. Sudermann found that K.A.L. showed signs of attachment to the children and they to her. Dr. Sudermann’s description as to what she observed regarding K.A.L.’s parenting style and skills is noteworthy as to the superlatives used by Dr. Sudermann. Dr. Sudermann’s conclusion was that both of the visits she observed for K.A.L. “went very well” and that K.A.L. “showed exemplary parenting skills throughout.” Dr. Sudermann finished her discussion on K.A.L.’s parenting style and skills by making the following rather remarkable statement at page 19 of the assessment report:

K.A.L. also was able to talk at length and in depth about what she has learned in parenting classes. Her answers to questions about desirable parenting techniques and discipline were exemplary and by far the best the assessor has ever heard in such assessments. A précis of K.A.L.’s comments on parenting techniques could form the “executive summary” of a course on positive parenting techniques. [my emphasis]

[91] Dr. Sudermann’s observations of B.K. (while together with K.A.L.) was that B.K. did less of the care, such as feeding, cleaning and attending to M.E.K.’s diapers. His main role was to play with the children, which he did “enthusiastically and with enjoyment.” Based on Dr. Sudermann’s observation that the children clearly had a lot of fun with B.K., Dr. Sudermann inferred that B.K. had played with the children like that at other times. Dr. Sudermann also observed a visit between the children and B.K. alone. Dr. Sudermann agreed during her testimony that her observations of the visits involving B.K. were very positive and that B.K. interacted with the children very well. Dr. Sudermann added that his interaction with the children was far above the standards that she has observed in many other cases.

[92] I accept the evidence of Dr. Sudermann regarding her conclusion as to K.A.L.’s parenting style, and her evidence as to the attachment between the children and the parents.

DR. SUDERMANN’S RECOMMENDATIONS

[93] The evidence from Dr. Sudermann included her assessment report and she also testified. Dr. Sudermann is a psychologist and an experienced assessor, having completed approximately 300 assessments. I agree with Dr. Sudermann that the key issue in this case is the extent of the risk that K.A.L. may relapse if the children are placed in her care.

[94] Dr. Sudermann did express a concern about K.A.L.’s relationship with one, Mr. G. (also a recovering addict). The evidence is not in dispute that after leaving Turning Point, K.A.L. and Mr. G. obtained a residence together, although apparently Mr. G.’s living quarters were in the basement area.

[95] K.A.L. acknowledged in her testimony that she had not been honest with the Society and also initially had not been honest with Dr. Sudermann, in hiding the fact that she was in a romantic relationship with Mr. G..

[96] Also at this time, R.L. was back with K.A.L. Dr. Sudermann expressed a concern, with which I agree, that for K.A.L. to engage in a relationship at that time and having Mr. G. present, could be confusing for A.J.K. and M.E.K. should they be returned to K.A.L.’s care. Dr. Sudermann did acknowledge that K.A.L.’s motivation to obtain this residence was in part explained by a desire to be able to share rent and afford a bigger residence suitable for the children. Also, this residence was in close proximity to Turning Point.

[97] Most importantly, Dr. Sudermann’s concerns also included the potential of increasing K.A.L.’s risk of relapse by living with a recovering drug addict.

[98] I find that K.A.L. exercised poor judgment in finding a residence with Mr. G. and that K.A.L. did so against the advice of the Society and others. It was also poor judgment for K.A.L. not to be honest about what she was doing.

[99] Equally important, however, is K.A.L.’s reaction to her mistake. After K.A.L. read Dr. Sudermann’s assessment, particularly Dr. Sudermann’s concerns about the increased risk of relapse in living with Mr. G., K.A.L. very soon thereafter terminated her relationship with Mr. G. and found a residence suitable for herself and the children, with R.L. then returning to live with B.K.

[100] I find that this incident must be placed in context with all the evidence. Although K.A.L. exercised poor judgment, she reacted quickly and appropriately to address the legitimate concerns identified by Dr. Sudermann. I do not view this lapse of judgment as sufficiently material to detract from all the positive achievements made by K.A.L.

[101] Dr. Sudermann stated at page 22 as follows: “This is a very difficult case on which to make recommendations, and one surely requires the wisdom of Solomon and/or a crystal ball to make the right decision.” In her recommendations, Dr. Sudermann finds that K.A.L. has made “strenuous and very extensive efforts” at self-rehabilitation. She concludes that B.K. demonstrated a “very reasonable and warm parenting style” during the two visits observed by Dr. Sudermann but that B.K. “has been much less than optimally attentive when he actually had the children.” Dr. Sudermann wrote she would not recommend that the children be returned to B.K.

[102] Dr. Sudermann wrote that she had leaned towards recommending a trial placement of the children with K.A.L. until K.A.L. was found to have misled Dr. Sudermann (and others) as to the nature of her relationship with Mr. G.

[103] Dr. Sudermann did acknowledge that she was not an expert in substance abuse and that the court may wish to obtain further input and expertise on that question.

[104] Dr. Sudermann wrote in her report that it was “highly defensible and the safer bet, to make both children Crown wards with no access for the purpose of adoption at this time.”

[105] In the end, Dr. Sudermann concludes in her report that she still “leans slightly” towards placing the children with K.A.L. “on a trial basis” with access to B.K. at Society discretion, initially to be Saturday or Sunday afternoons with access expanding if it goes well.

[106] Dr. Sudermann was an excellent witness. She was responsive to questions. Her analysis was insightful. She maintained a neutral demeanor showing no bias or preference for any of the parties. Dr. Sudermann’s recommendations as set out in her report were not diminished in any way during her oral testimony, although Dr. Sudermann did acknowledge, in response to a question from Mr. Belecky, that making a recommendation in this case would be made even more difficult if there was evidence that the children were in a “wonderful” adoptive foster home.

DR. MARTYN JUDSON

[107] Dr. Judson is a medical doctor, whose private practice is in the specialty of addiction medicine and substance abuse treatment. He was qualified to give expert evidence in the area of addiction and addictions treatment.

[108] Dr. Judson was called as a witness by the Society. Although he had not met with K.A.L., he had been provided with Ex. 8, a rather voluminous document prepared by K.A.L.’s counsel. This exhibit includes the reports from Turning Point and Thames Valley previously referred to, summarizing K.A.L.’s treatment. There were also at least 25 negative lab test results for various substances from urine samples provided by K.A.L. (There were some positive results but they related to medication K.A.L. was taking for her bipolar diagnosis.) There was also a negative hair follicle test dated February 25, 2012.

[109] Also included in Ex. 8 were medical reports from Dr. Sharma (a psychiatrist) dated January 28, 2011 and Dr. Bhamjee dated March 29, 2011. Dr. Sharma’s report stated that K.A.L. has a “bipolar II” disorder. Dr. Sharma has been involved in K.A.L.’s care since April 2009. The report states that currently K.A.L.’s mood is quite stable and that she takes her prescribed medication on a regular basis. Dr. Sharma notes that K.A.L. has taken concrete steps to deal with her substance abuse, that the bipolar II condition and substance abuse are in remission, that K.A.L. has excellent insight into her emotional difficulties and that she is aware of the risks in not taking her prescribed medication. In his report, Dr. Bhamjee mentions various regular urine tests that K.A.L. took voluntarily. After performing a physical examination in January 2011, Dr. Bhamjee stated K.A.L. has scoliosis (in her evidence, K.A.L. described this as a curvature of the spine), fibromyalgia and osteoarthritis. As a result, Dr. Bhamjee stated K.A.L. “has to pace herself physically, cannot do heavy repetitive work, excessive bending, twisting, rest of physical was normal.”

[110] Also included in Ex. 8 was an appeal decision of the social benefits tribunal dated August 10, 2012, allowing K.A.L.’s appeal and finding that K.A.L. was a person with a disability and therefore entitled to ODSP payments under the Ontario Disability Support Program Act, 1997. The appeal decision was based on the restrictions posed by K.A.L.’s physical symptoms and is reviewable in two years.

[111] When asked in-chief whether he had read the document brief comprising Ex. 8, Dr. Judson replied “page by page.”

[112] What follows below is a summary of Dr. Judson’s evidence on the issues relevant to this case.

[113] Being abstinent cannot be equated to recovery. Abstinence is “merely the ticket into the game of recovery.” Once someone becomes abstinent, he or she then enters the process of recovery. This allows addictive thinking to gradually change and that takes time.

[114] Dr. Judson emphasized that recovery does not take place in a physician’s office. There is no substitute for support group meetings. Research has shown that “motivational enhancement therapy, cognitive behavioural therapy, or a 12-step facilitation is, perhaps, the most effective way in allowing people to let the natural history of recovery unfold.”

[115] Dr. Judson spoke positively about the benefits of residential treatment.

[116] Recovery from addiction is a lifelong process. If people are in recovery and maintaining their recovery program, the risk of relapse is minimal. Dr. Judson added that by going into the halls of Alcoholics Anonymous meetings, it is possible to share the joy of people who have been abstinent for “20, 30, 40, 50 years … recovery is possible.”

[117] Dr. Judson was familiar with Turning Point and agreed that residential treatment in such a facility is helpful to a person’s recovery from addiction because it introduces people to the “tools of recovery.”

[118] In relation to the 12-step program, Dr. Judson’s evidence was as follows: “… That is the 12-steps as advocated by Alcoholics Anonymous, and which has its roots in Ohio in 1933, and has probably done more for society, and has probably done more in particular for the recovering addict than any pharmaceutical or any physician has ever done.”

[119] Dr. Judson emphasized the importance of attending regularly at group meetings such as Alcoholics Anonymous and having a sponsor.

[120] When asked whether it was worrisome if an individual is in recovery and, after leaving a treatment facility, sets up independent living with an individual who is also in recovery, Dr. Judson’s response was interesting. He testified that if people are in early recovery, then the risk of relapse is fairly high. As a general rule, Dr. Judson stated such individuals should be in “full sustained remission” and not using anything for at least a year, before cohabiting or engaging in a relationship.

[121] In relation to concurrent disorders such as bipolar I and II (and others such as depression, schizophrenia and personality disorders), it was Dr. Judson’s opinion that these conditions place a greater risk of relapse, but if the person seeks support for the management of the condition, takes prescribed medication and the person’s mood has been stable for a prolonged period, preferably a year, then the risk of relapse is significantly reduced.

[122] In relation to chronic pain or fibromyalgia, Dr. Judson stated that if the person is treating the condition, then the risk of relapse is small.

[123] Dr. Judson was specifically asked whether relapse was more likely in situations where an individual has fibromyalgia, scoliosis and arthritis combined with a disability pension. Dr. Judson testified: “Theoretically, statistically yes, but often in practical cases, no.” Dr. Judson explained that a person can adapt to pain and learn to live with it and still be able to meet some of their responsibilities. If there is an increase in stress as a result of various symptoms, then if the person is able to reach out for help, for example a strong bond with a particular 12-step group, then this would significantly reduce their risk of relapse.

[124] It was Dr. Judson’s opinion that people who say, for example, that they want their children back so they are going to be abstinent, do least well. However, those who abdicate family responsibilities to others, including the Children’s Aid Society or foster homes, so they can prioritize their recovery and become healthy, then it is those people who are more likely to resume care of their children with minimal risk of relapse. I find that this evidence from Dr. Judson describes exactly what K.A.L. did in January 2010 when she voluntarily left the house, gave up care of the children and pursued treatment.

[125] It was Dr. Judson’s evidence that urine tests are of little use. If it can be shown that the tests were random, then that may be more helpful.

[126] During cross-examination by Mr. Mann, Dr. Judson summarized the following steps for people in K.A.L.’s position to follow:

a) maintain recovery;

b) remain abstinent;

c) remain engaged in the recovery process by keeping their attitude honest, responsible and accountable;

d) continued involvement in their support network, including the 12-step program. (Dr. Judson noted he is an advocate of this program);

e) attend AA (or Narcotics Anonymous) meetings, ideally three times per week;

f) seek out other additional support as necessary including, in K.A.L.’s case, seeing her physician so that her mood can be monitored;

g) have a good therapeutic relationship with their sponsor;

h) maintain relationships with treating professionals and be able to fully express concerns to those professionals;

i) for additional reassurance, submit to quarterly hair follicle testing, but Dr. Judson added that K.A.L. should not dye her hair as dyes can affect the test results. Dr. Judson also noted that if a mother in recovery can appreciate that a Children's Aid Society is there to be supportive and helpful, then that in and of itself can be therapeutic. Regular contact with a Children's Aid Society in a constructive way, with the Society orchestrating hair follicle testing, was recommended by Dr. Judson.

[127] With reference specifically to K.A.L. in making recommendations in addition to the general recommendations summarized above, Dr. Judson explained K.A.L. should avoid all addictive substances known to her. She should never be prescribed a benzodiazepine and therefore should never take sleeping pills of any kind. Dr. Judson also suggested K.A.L. should avoid going into a drug store. Dr. Judson felt it was important for K.A.L. to regulate her day by getting up and going to bed at specific times. She should eat regular meals. Regular exercise and regular private time is also important. K.A.L. should attend three professional fellowship meetings a week and have frequent contact with her sponsor, including face to face private meetings.

[128] Dr. Judson commented specifically on the report of Mr. Corbett, describing it as a favourable report.

[129] Dr. Judson’s evidence was most helpful. He was not challenged in any way as to his recommendations. I accept Dr. Judson’s evidence as summarized above.

THE TEST ON STATUS REVIEW

[130] The test on a status review application requires a two-fold analysis involving, first, a determination whether the child remains in need of protection and requires an order for protection and, second, a consideration of the child’s best interests in determining the need for protection. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165, the Supreme Court of Canada enunciated this test in para. 37 as follows:

37 The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. As the Court of Appeal said:

We agree that a children's aid society, as the representative of the state, must continue to justify its intervention by showing that a court order is necessary to protect the child in the future.

DISCUSSION

[131] The paramount purpose and other purposes of the Child and Family Services Act are set out in s. 1 and provide a balance between maintaining the integrity of the family unit and recognizing that where state intervention occurs, it should be the least disruptive course that is available. Section 1 of the Act is reproduced below:

Paramount purpose

1.(1)The paramount purpose of this Act is to promote the best interests, protection and well being of children.

Other purposes

(2)The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

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

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

[132] Section 37(3) of the Act sets out the circumstances that a court is to consider when taking into account the best interests of a child. Section 37(3) provides as follows:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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.

[133] Both A.J.K. and M.E.K. require a placement that results in their stability. A.J.K., particularly, may be more vulnerable to a change in residence. Neither A.J.K. nor M.E.K. have any ongoing medical issues other than M.E.K.’s need for attendance at speech therapy.

[134] In terms of the children’s physical needs, clearly the G. foster home is an excellent environment. However, K.A.L.’s home as described in the evidence is also an excellent home, described as “wonderful” by social worker Ms. Smith. This is not a contest as to who is more affluent or can provide a bigger home.

[135] Both M.E.K. and A.J.K. are attached to their parents. The Society evidence, which I accept, was that the children should maintain ongoing contact with the parents, even if a Crown wardship order is made, through the process of openness.

[136] The evidence of Ms. Salvador (the access supervisor), Ms. Smith and Dr. Sudermann also supports the conclusion that both parents are important people in the children’s lives. There is clearly an attachment, particularly between the children and K.A.L. as noted by Dr. Sudermann. I find that the bonds between the children and the parents should be preserved if possible. It is difficult on the evidence to ascertain the degree of attachment between the children and the G. foster parents. According to Ms. G., A.J.K. has commented he has two homes, two moms and two dads. Any disruption of the children’s relationship with the G.’s could be addressed by the parties given Ms. G.’s evidence that they would want to remain a part of the children’s lives if the children are placed with either parent. Conversely, if the children remained at the G.’s home and were adopted by them, then on the evidence it would be important that the children would and should maintain a relationship with their parents through an openness arrangement.

[137] The merits of the plans of care and the importance of continuity in the children’s care and the possible effect on the children of a disruption of that continuity are at the heart of this case.

[138] When the children were apprehended from B.K. in August 2010, K.A.L. was clearly in no position to parent. She was on a wait list for the House of Sophrosyne. There was little alternative at that time but to place the children in care on a temporary basis.

[139] I find on the evidence, particularly the evidence of Society witnesses, that the plan of Crown wardship crystallized on apprehension of the children in August 2010. In relation to K.A.L., the Society position remained intransigent – it was clear from some Society workers who testified that as to the Society position it did not matter how well K.A.L. did in her recovery. The Society position was based on historical facts and the Society was not prepared to consider any disposition other than Crown wardship. The Society formulated a conclusion at the outset of apprehension that K.A.L.’s past history was such that it was not possible for K.A.L. to formulate a plan of care where the risk of relapse was sufficiently minimized to be able to place the children in her care subject to supervision.

[140] I find on the evidence that K.A.L. has achieved a sustained recovery, that she has been abstinent for almost two years as at the date of the conclusion of the trial, and that she has implemented a strong relapse prevention plan. I accept K.A.L.’s evidence that she attends Narcotics Anonymous meetings on weekdays and has regular contact with her sponsor and is involved with assisting others. When reviewing Mr. Corbett’s report, Dr. Judson noted in particular that K.A.L. is conveying the message to others. As Dr. Judson explained, K.A.L. “… is true to the adage in recovery that you need to give it away to keep it.” There is no doubt K.A.L. did put her “heart and soul” into her treatment, her sustained recovery and maintenance of her relapse prevention plan.

[141] On this status review there remains an obligation on the Society to reassess its position in light of new information and to reassess whether the protection concerns that prompted the Society intervention have been ameliorated to a sufficient degree to allow the children to be placed with K.A.L. Risk of relapse can never be zero. However, the standard cannot be a “100 percent guarantee” as suggested by Ms. Smith.

[142] K.A.L.’s parenting style received commendation from Dr. Sudermann. Presently, K.A.L. is in receipt of ODSP and she therefore has a stable income source and can be a fulltime parent to the children. K.A.L. has a regular fitness routine in going to the gym. She has a reasonably regular schedule. She is compliant with treatment for her bipolar disorder. She has a stable residence. The evidence of K.A.L. and her witnesses, the medical reports and the evidence of Dr. Judson satisfy me that K.A.L. can manage care of the children despite her physical ailments, her bipolar diagnosis and having to maintain her relapse prevention strategy.

[143] Applying the evidence of Dr. Judson to the facts of this case, I find that K.A.L. has implemented the strategies suggested by Dr. Judson and that the risk of relapse is sufficiently minimal that the children can be returned to K.A.L. subject to Society supervision pursuant to terms and conditions. While the plan proposed by the Society is also a good plan emphasizing stability, it is not the least disruptive plan consistent with the best interests, protection and well being of the children.

[144] I find throughout that K.A.L. and B.K. have both maintained a good relationship with the Society and there is nothing in the evidence to suggest that this relationship would not continue if the children are placed with K.A.L. pursuant to a supervision order with access to B.K.

[145] In relation to B.K., given that his primary plan of care was to have the children placed with K.A.L., it becomes unnecessary to discuss whether the children could have been placed in B.K.’s care subject to Society supervision had they not been placed with K.A.L.

[146] Clearly B.K. needs to follow through with his plans for abstinence from alcohol and putting in place appropriate relapse prevention strategies. If B.K. addresses his alcohol issues and commits to exercising good judgment and making sound parenting decisions, then he should be able to complement K.A.L.’s care of the children in the long term.

[147] There is no need to supervise B.K.’s access to the children. For now, the key focus is to have the children settle into K.A.L.’s home. I agree that overnights for now should not be implemented.

[148] While this was an admittedly difficult case and the Society, somewhat understandably, focused on permanency planning by way of adoption, it is disappointing that the inertia generated by this course of action prevented the Society from allowing unsupervised access.

[149] It was very clear on the evidence that the need for supervised access for K.A.L. was no longer needed by the time trial started. By the beginning of 2012, she should have had unsupervised access in the community as a minimum. The Society had the discretion whether to supervise the access or not. Certainly, after release of the assessment report, supervised access to K.A.L. should have been relaxed or abandoned. Had unsupervised access occurred, it may have assisted in allowing the Society to reassess its position. I would also add that after the release of the assessment report, there should have been some unsupervised access to B.K. The Society’s decision to supervise the access for over two years, in light of the evolving facts, including the assessment report, was unfortunate.

[150] Given the good relationship between the parents and Mr. and Ms. G., I am confident that the parties can prepare the children properly for the transition. Although this is not something that is being ordered, it would be my hope that Mr. and Ms. G. could maintain some contact with the children, as a minimum, in their transition to K.A.L.’s home and perhaps in providing some respite care.

[151] In relation to the terms and conditions accompanying the supervision order, I make the following comments. The conditions in relation to K.A.L. should contain a blanket prohibition on the use of alcohol, illegal substances and any drugs (except as prescribed by her physician). It is insufficient to simply make this prohibition during periods of time that K.A.L. has the children in her care as use of any such substances at any time will amount to a relapse. There needs to be a condition prohibiting K.A.L. from taking the children and relocating outside of the City of London because at this time, K.A.L. has many supports in place in London to facilitate her relapse prevention plan.

[152] The order below is intended to replace any existing final supervision orders in relation to A.J.K. and M.E.K., and those orders as they relate to A.J.K. and M.E.K. are terminated.

ORDER

1. The children, A.J.K. and M.E.K., shall be placed in the care and custody of K.A.L., subject to supervision by the Society, for a period of 12 months and subject to the following terms and conditions:

1. K.A.L. shall not permit B.K. to have contact with the children outside the scope of the access provisions as set out in this order;

2. K.A.L. shall not permit B.K. to reside in her home;

3. K.A.L. shall allow scheduled and unscheduled access to her home and cooperate with the Society as requested by the Society;

4. B.K. shall allow scheduled and unscheduled access to his home during periods of time when the children are scheduled to be in his care on an access visit and shall cooperate with the Society as requested by the Society;

5. K.A.L. shall allow the Society to have independent access to the children;

6. B.K. shall allow the Society to have independent access to the children when the children are scheduled to be in his care on an access visit;

7. K.A.L. shall ensure the children attend school or daycare as appropriate on a regular basis;

8. K.A.L. shall ensure the children are seen regularly by a family physician, at a frequency recommended by the said physician, and follow through with all medical treatment as recommended by the said physician;

9. K.A.L. and B.K. shall inform the Society of any change of address and/or telephone number change prior to such change occurring;

10. K.A.L. shall not reside with the children in a location outside of the municipal boundary of London, Ontario except on order of this court obtained prior to the move;

11. K.A.L. shall not permit any other person to reside in her home without the prior written authorization of the Society;

12. K.A.L. shall not permit the children to be in the presence of any companion or partner without the prior written authorization of the Society;

13. B.K. shall not permit the children to be in the presence of any companion or partner without the prior written authorization of the Society;

14. K.A.L. shall undergo hair follicle testing once every three months and she shall abstain from dying her hair, so as not to affect the hair follicle test results. K.A.L. shall agree to undergo any other random drug testing as requested by the Society;

15. B.K. shall agree to undergo random drug testing as required by the Society;

16. K.A.L. and B.K. shall cooperate with and meet with Society representatives as requested;

17. K.A.L. and B.K. shall sign all necessary consents for a release of information to and from the Society as requested by the Society;

18. K.A.L. at any time shall not use or be under the influence of alcohol or an illegal substance or any drug except medication prescribed by a physician;

19. B.K. shall not use or be under the influence of alcohol or an illegal substance 18 hours prior to exercising access or during access;

20. K.A.L. and B.K. shall notify the Society of any criminal charge brought against either or both of them;

21. K.A.L. shall remain in addiction recovery counselling and programs, including, but not limited to Narcotics Anonymous meetings, Alcoholics Anonymous meetings and all meetings regarding the 12-step program and K.A.L. shall have regular contact with her sponsor;

22. B.K. shall remain in addiction recovery counselling and programs, including, but not limited to Alcoholics Anonymous meetings and all meetings regarding the 12-step program;

23. B.K. shall obtain a sponsor not later than 30 days after the date of this order and shall advise the Society of the name of his sponsor and he shall have regular contact with his sponsor;

24. K.A.L. and B.K. shall each maintain a written log of all his or her counselling meetings, including 12-step program meetings, Alcoholics Anonymous meetings and/or Narcotics Anonymous meetings and all contacts with his or her sponsor and K.A.L. and B.K. each month shall provide to the Society a photocopy of all entries in his or her log for the previous month;

25. K.A.L. and B.K. shall each authorize his or her sponsor to speak directly to a Society representative and to provide any information requested by the Society representative;

26. K.A.L. shall continue in contact with her psychiatrist and follow the treatment directions of such psychiatrist, including, but not limited to a medication regime prescribed as part of her mental health treatment;

27. K.A.L. and B.K. shall not take the children, and shall not permit any other person to take the children, to a location outside of Middlesex County without obtaining the prior written permission of the Society;

28. K.A.L. and B.K. shall not leave the children with any caregiver unless that caregiver has first been approved in writing by the Society;

29. K.A.L. and B.K. shall follow all reasonable directives as required by the Society for any additional treatment or counselling, including increasing their attendance at Narcotics Anonymous and Alcoholics Anonymous meetings and increasing their contact with their sponsor.

2. B.K. shall have access to A.J.K. and M.E.K. as follows:

a) each weekend, either on a Saturday or a Sunday, from 11:00 a.m. to 5:00 p.m.;

b) reasonable telephone access;

c) two months after the date of this order, such additional access as may be approved by the Society, however, overnight access, if any, shall not occur prior to August 1, 2013;

d) if there are any issues relating to implementing this access order that cannot be resolved by agreement of all parties, then a hearing on that issue may be scheduled before me at 9:30 a.m. on a date to be set by the trial coordinator.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: March 8, 2013

COURT FILE NO.: C1224/02

DATE: March 8, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Children’s Aid Society of London and Middlesex

Applicant

- and -

K.A.L., B.K. and W.B.

Respondents

REASONS FOR JUDGMENT

MITROW J.

Released: March 8, 2013