CITATION: 2015 ONSC 2054

PETERBOROUGH COURT FILE NO.: FC-09-482

DATE: 20150330

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kawartha-Haliburton Children’s Aid Society

Applicant

— and —

J.R., R.J., J.S.

Respondents

COUNSEL:

Kimberly J. Randell, for the applicant

Christopher Spear, for the respondent J.R.

Aaron Anderson, for the respondent R.J.

Ramona Sutherland, for the respondent J.S.

Julie Kirkpatrick, for the Office of the Children’s Lawyer

HEARD: May 20-23, May 26-30, June 2-5, September 15-19, November 18-21, November 24-28, December 1, 2, 2014; written submissions December 2014

M.A.C. SCOTT J.

W A R N I N G

This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

REASONS FOR JUDGMENT

Introduction:

[1] On this amended status review, the Kawartha-Haliburton Children’s Aid Society (the “Society”) seeks an order for Crown Wardship, with no order made as to access, for the purposes of adoption for the children, M.R.J., born on […], 2005 and E.W.J., born on […], 2007.

[2] J.R. is the biological mother and R.J. is the biological father of these children. The children were last apprehended from their mother’s care on November 13, 2013 and by the end of this trial, they had been in the Society’s care for more than 760 days over their lifetimes. Both of these boys have significant special needs for which they only recently began to receive the necessary therapeutic treatment.

[3] On its amended protection application, the Society also seeks an order for Crown Wardship, with no access, for the purpose of adoption for the child, A.S.A.S. ( “S.”), born on […], 2013.

[4] J.R. is the biological mother and J.S. is the biological father of this child. S. was apprehended from the care of her mother on November 13, 2013 and by the end of this trial had been in the care of the Society for over 390 days. S. is meeting all of her developmental milestones.

[5] At the commencement of trial, all counsel consented to an order that the applications with regard to all three children be heard together and that no formal bifurcation of the trial – relating either to the calling of evidence or submissions on the “findings” or on the dispositions – would be required. I did not consider evidence that went solely to the issue of disposition when determining if each child was in need of protection.

[6] In the first week of trial I identified some anomalies in the parties’ positions on certain of the statutory findings to be made with regard to each child, for example S.’s full legal name. Also, there was inconsistent documentation as to whether or not each child had native status within the meaning of the Act. I directed that evidence be gathered on this issue from both J.R.’s and J.S.’s families to determine whether any native band ought to be served with the protection applications.

[7] Throughout the next week, counsel identified a potential band and a government agency which might be of assistance on the issue of native status according to information provided by the mother. Ironically given later events, J.S. declined to provide any additional familial information on this issue. After reviewing all the evidence and receiving no formal responses or Answer Plan of Care, I then ruled that the children may have native heritage through their matrilineal line but that as no band or other criteria had been identified, none of the children had “native status” within the meaning of the Act.

The Parties’ Positions:

[8] The Society seeks an order of Crown Wardship for the purposes of adoption for all three children as a result of their need for consistency and permanency in their lives. Counsel noted that the length of time that each child has been in care now exceeds the statutory timeline. The special needs of the two older children require that they each reside in a stable environment where the primary focus will be to facilitate their ongoing therapy. The Crown Wardship orders for both M.R.J. and E.W.J. should be silent as to access to allow the Society the most flexibility to meet each of their needs. An order of no access was sought for S. to ensure her speedy adoption. The Society is of the view that S. should not be exposed to the chaotic lifestyle of her parents so that she never experiences the trauma that have so negatively affected both her brothers.

[9] Counsel for the Society noted that the mother, J.R., has been involved with the Society continuously since January 2006, but has not been able to make consistent gains to avoid neglect of her children’s basic needs nor to develop parental coping skills or to manage both boys’ behaviour. Nor has she been consistent in following through with services for herself or her eldest son, or in developing skills to escape and avoid domestic violence or the exposure of the children to same.

[10] According to the Society’s counsel, R.J.’s two clinically managed access visits to his sons in 2014 were for the purpose of mitigating these children’s previous trauma and demystifying their view of their biological father but were never for the purposes of commencing reintegration.

[11] J.S.’s drug use, drug trafficking and criminal activity along with his (and the mother’s) minimization of an assault that occurred between them make it inappropriate for him to be a caregiver for any of the children, including his daughter with whom he has not been allowed to visit since she was four months of age. The Society was skeptical that J.S. had ended both his drug addiction and criminal activity even on the second to last day of trial.

[12] The Children’s Lawyer urges that all three children ought to be found to be in need of protection pursuant to Sections 37(2)(b)(i) and (ii) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, and be made Crown Wards as a result of each of their needs for a permanent plan NOW. Due to the diagnoses, identified special needs and difficult behaviours of both M.R.J. and E.W.J., access to their mother, siblings and extended family ought to be “clinically managed”: that is determined and scheduled strictly in accordance with each child’s therapeutic treatment needs. The Children’s Lawyer was of the view that not making any access order for either M.R.J. or E.W.J. would result in too much uncertainty for the children and give too much discretion to the Society. However, S. ought to be made a Crown Ward with no access for the purposes of adoption.

[13] Children’s counsel chronicled the mother’s changing plans of care for her children as they evolved throughout the course of the trial. At this point, counsel was of the view that the evidence led at trial demonstrated that the mother is essentially homeless and not able to rely on her extended family; she is recently estranged from her mother and her father is currently too ill to provide shelter as he has in the past.

[14] Children’s counsel highlighted the mother’s past chaotic lifestyle when she was involved in an abusive relationship with R.J. and more recently with the drug addiction and trafficking of J.S. She pointed out how the mother had developed an independent plan to care for the children, separate from J.S., which resulted in their return to her in August 2012. She noted how the mother’s attendance at counseling and use of services fell off when J.S. was released from custody and they resumed their relationship. Despite various negative effects on her life and interruption in her opportunity to care for her children, counsel for the children noted the mother’s clear commitment to her relationship with J.S. and her desire to parent with him to the extent that she has asked J.S.2, his mother, to oversee and monitor him as part of her current plan.

[15] J.S. was assessed by counsel for the children as attempting to be candid about his criminal record, drug addiction and involvement in drug trafficking. While she noted that there was evidence that J.S. was good with the children and that it was easier for the mother to parent them while he was there as the children listen to him, she expressed concerns that his commitment to take steps to turn his life around came only on the second last day of a long trial and that he may well continue to struggle with his previous behaviours.

[16] The Children’s Lawyer found that the life circumstances of R.J. had changed materially since the recommendation of the Section 54 assessment allowing him regular scheduled access, but as the father is not seeking a return of his two children to his care at this point, the court ought to be mindful of his commitment to be a positive influence in his children’s lives and to follow whatever orders and recommendations are in their best interest.

[17] Counsel for the mother disputes the reality of permanency for any child in “state care” but especially for the two eldest children here, each with such complex special needs. These needs are best addressed by the continuing efforts and participation of their mother. They have, just as their young sister has, a close and important bond with J.R. In any event, these children are of an age when they will not forget their mother and extended family. With social media today, any child can seek out a loved family member at any time. No access therefore, and the severing of the familial bond is an illusion.

[18] The focus of this matter, according to mother’s counsel, must be on the special needs and security of treatment for each of the children. Further, the Society’s case is flawed by its emphasis on blaming the mother for the children’s difficulties and for her own (as well as the children’s) victimization by abusive and violent partners such as R.J. or for the chaotic lifestyle that resulted from J.S.’s drug use and petty criminal activity. In his view, the Society failed to acknowledge the mother’s times of good parenting, never adequately supported her for that to continue, nor provided adequate and timely treatment for the two older children, especially M.R.J.

[19] The mother put forward two plans: her first plan is to have E.W.J. and S. immediately returned to her care, and have M.R.J. returned as soon as his therapist recommends, to reside with her, either at J.S.2’ home in Madoc, with J.S. to assist her or, alternatively at her father’s residence in Peterborough. The latter plan could not involve J.S. as the paternal grandfather will not allow him at his residence. Mother would be best able to follow the recommendations of the therapy now finally in place as she has always been cooperative with doctors and the children’s counselors. While S. may not be in need of protection, the mother is prepared to comply with a supervision order in the time remaining to ensure the children’s necessary assistance continues.

[20] The mother will follow whatever recommendations are made by the children’s therapists with regard to any future access with R.J. While she seeks permission to allow J.S. full access to all the children, as she is of the view they each have a significant positive bond with him, her counsel noted that “it is arguable that J.S. is a liability for J.R.” and her plan should not be “seen as reliant upon the assistance of J.S. who has yet to prove himself as a consistent support”.

[21] R.J. is not opposed to an order for Crown Wardship being made for his two sons so long as ongoing access is structured for him. He is of the view that both children continue to be in need of protection and neither he, nor J.R., nor J.S. can provide a viable plan for their care. R.J. is supportive of the current placements of each of his sons and believes, with the assistance of the therapists whose recommendations he has followed since May 2011, his access to the children will continue to be both beneficial and meaningful to them.

[22] Counsel for R.J. urged that the entirety of the evidence led at trial demonstrates that he has become a changed man with positive supportive relationships and no new criminal offenses for a period over four years. R.J. has acknowledged his serious previous criminal record; but with the extensive counseling he has taken and is prepared to continue as needed, it is R.J.’s hope that in one year or so, he will be in an improved financial, employment and residential position and will be able to plan for the reintegration of his sons into his care.

[23] J.S.’s counsel commenced her submissions by providing evidence that since the completion of trial, J.S. has received his “Métis card”. This counsel explained J.S.’s concern and surprise at the children’s removal from his care in September 2013, when in his view, the home was calm and clean and the order prohibiting him from having contact (let alone care) of the children had expired. Thereafter, according to his counsel, the Society did not provide J.S. with adequate guidance and counseling as they are required to do pursuant to the Child and Family Services Act. This had a “domino effect”, leading to the children’s apprehension in November 2013 at Crossroads and to the formulation of the only plan considered by the Society, again in breach of the Act, to have S. adopted.

[24] Counsel for J.S. emphasized that the evidence led at trial demonstrated J.S. was a good parent, had accessed two programs (or at least one in full and two out of 12 sessions of the second) and had followed the direction of the Society by maintaining a locked door on the basement of his residence, which was not to allow drug use but to ensure the children were not injured due to the laundry facilities and chemicals maintained there. Her position was that J.S. had been candid about his lengthy criminal record and long-term drug addiction, all of which was now in the past since his recent serious injury (as a victim of a random act of violence) and subsequent unrelated incarceration when he attended a smudge ceremony.

[25] J.S.’s counsel submitted that although he is not a band member nor is deemed to have native status under the “legal regime” of the Act, he is a Métis person and the court ought to apply Gladue factors to this child protection proceeding. Counsel then went on to argue by analogy that the provisions of the Act that require the court to consider native status in determining the child’s best interest and placement (although counsel concedes native status is only one factor to be considered) ought to allow J.S. to have an opportunity to parent E.W.J. (and later M.R.J. when he is ready) and his biological daughter, S. at his mother’s home in Madoc, Ontario.

[26] Therefore, J.S. seeks an order that E.W.J. and S., or at least S., be placed with his mother J.S.2; she was quite prepared to have the children J.S. and J.R. reside with her, her daughter and the two grandchildren who are already in her care in her large home in Madoc. The family would then continue (although no mention was made of a supervision order) with E.W.J.’s doctors and therapy appointments and see to S.’s well baby needs as required.

Background:

[27] J.R., born […], 1980, left home at the age of 13 years to avoid a complicated relationship with her mother. She soon began residing with a 16-year-old boyfriend, who physically abused her throughout their approximately eight-year relationship. Their son, B., born on […], 1999 was ultimately diagnosed with autism. B. has resided with his maternal grandmother since 2008. She has had legal custody of him since 2009.

[28] J.R. ultimately obtained her grade 12 equivalency and has completed one semester of a paralegal program. She has had sporadic employment some years ago at restaurants etc., but throughout the trial was on social assistance. Historically, she used alcohol to excess but not in recent years; she smokes cigarettes but not illegal drugs, certainly not marijuana to which she believes she is allergic.

[29] R.J., born […], 1973 continued to reside with his parents after graduating from high school and obtaining work as a mechanic. Prior to the clinically managed visits in 2014, he had not seen his two sons since 2009, as a result of various incarcerations. He has held various jobs as a mechanic, a long distance trucker driver and a worker in automotive body shop. Since high school, his periods of employment have been interrupted intermittently by periods of incarceration. R.J. has an extensive criminal record for assaults, criminal harassment, numerous fail to comply and latterly, armed robbery. He has not had a criminal conviction for over four years.

[30] R.J. has two, or perhaps three other children (with whom he has had little contact over the years), as a result of his first intimate relationship which was marred, as was his next relationship and subsequent relationship and marriage to J.R., by domestic violence. Many of the entries on R.J.’s record relate to assaults on his intimate partners, although there is also a conviction for an assault on the child B., and refusal to comply with numerous court orders, especially those prohibiting contact with his spouses. During several lengthy periods of incarceration and during his time at halfway houses, R.J. has availed himself of numerous programs, counseling and therapies relating to anger management, prevention of domestic violence and promoting positive parenting.

[31] J.S., born […], 1984 had his education interrupted by his criminal activity and drug addiction. His current criminal record is often described as “nine pages long” with numerous charges of petty theft and drug offenses. As a result, he had little record of employment and was homeless throughout most of the trial. His relationship with J.R., of approximately five years (estimates varied throughout the trial) was interrupted by incarcerations, separations and at least one domestic assault against J.R. while she was pregnant with S.

[32] S. is his only biological child, but J.S. sees himself as step-parent to E.W.J. and perhaps M.R.J. In the last week of trial, he sought the assistance of his mother to raise the children in her home in order to maintain his relationship with J.R., continue his recent sobriety and avoid any further involvement in criminal activity. After the trial’s conclusion, he sought and obtained Métis status.

[33] J.R. and R.J. met while both were employed at a call centre and their cohabitation began in late 2002 or early 2003, when J.R. was the custodial parent of her first son, B. Soon the relationship was marred with arguments and domestic violence – R.J. was convicted of assaulting J.R. four times and B. once. Both parties failed repeatedly to comply with no-contact orders preventing their communication and reconciliations – they married in 2008. After their sons were born, both of these children witnessed and were otherwise exposed to the violence between their parents (somewhat reciprocal but much more violent on their father’s part), numerous interventions by police forces and children’s aid societies, marital separations, changes of residences, and their brother B. leaving their home.

[34] While both parties took some counseling, the assaults, breaches of recognizance and recantations continued. At one point, B. was placed with his maternal grandmother and the then-infant M.R.J. was placed with his paternal grandparents so that he would not be apprehended. The Society found it challenging to work with the parties as they were not always cooperative, refused to sign releases of information, and often focused on reconciliation when they still had legal restrictions prohibiting their communication and contact.

[35] According to J.R., these parties separated in January 2009 after R.J. assaulted her, damaged property, and while impaired, took his two young sons from their home and drove with them while being pursued by the police. R.J. says the couple were reconciled at that time, subsequently resided together again and were communicating by letters and telephone calls until June 2010 when J.R., apparently residing with another male person, showed his letters to the police. He was charged with another breach of court order.

[36] In mid-2009, J.R. began to make some gains with the assistance of Healthy Babies, YWCA and the Society, relating to her previous difficulties with the children’s hygiene, supervision and challenging behaviours. Around that time J.R. began to reside with J.S. However, after September 2010 there were still community reports of a lack of supervision, inadequate hygiene and M.R.J. being physically disciplined by his mother, which culminated in a 30 day temporary care agreement for both children. The children were returned in October 2010 after J.R. made a commitment to participate in the Society’s programming.

[37] In January 2011, J.R. incurred some Highway Traffic Act charges which involved, among other things, allowing J.S. to drive without a license. Of greater concern, was the police report of the children being inadequately dressed and without proper car seats. Sometime in mid-2011, M.R.J. was sexually assaulted by a young adult neighbor - although he only later disclosed this to his foster mother. On subsequent visits, the Society found the house in shambles, the children refusing to listen to their mother and J.R. seemingly overwhelmed. As a result, the children went on weekend respite care.

[38] R.J., having been released to a halfway house in May 2011, began to make inquiries with the Society about what arrangements and steps he would have to take in order to recommence communication and visits with his two sons. He also canvassed the potential of developing a plan to have custody of the boys.

[39] Also in the spring of 2011, more concerns were surfacing with regard to the children’s poor hygiene at school and day care, M.R.J. not receiving medication to assist with his behaviour and various reports of lack of supervision, the children running in the street or hanging out windows, and the mother using physical discipline to attempt to manage the children’s out-of-control behaviour. J.R.’s excessive drinking also became an issue.

[40] In June 2011, J.R. was the victim of a sexual assault which M.R.J. witnessed and in which he attempted to intervene. Throughout the summer and fall of 2011 there were verbal arguments between J.R. and J.S. which came to the attention of the police. The couple separated for a brief period.

[41] By the end of September 2011, as a result a report of the children’s principal, both children were apprehended and remained in Society’s care until the end of August 2012.

[42] Throughout the first eight months of 2012, J.R. was cooperative in completing a section 54 assessment with regard to her psychological functioning and parenting capacity. A psychological assessment was also completed on M.R.J. J.S. was incarcerated as a result of a conviction for cocaine trafficking from January to the end of August 2012. Due to this and to the fact that J.R. assured all of her counselors and the assessors that she had terminated her relationship with him, he was not considered in the assessment.

[43] The section 54 assessment recommended that J.R. be given one last opportunity to parent her children, due to her then recent gains in physical and emotional wellness, cooperation and participation in counseling and the bond she had with her children. The assessors made it clear however, that she did lack insight into her own role in her children’s previous difficulties especially by allowing the children to be continuously exposed to domestic violence, separations, recantations and reconciliations. As a result, the assessors strongly recommended that if J.R. fell back into her old pattern of behaviour, specifically in resuming her relationship with J.S., or anyone else that subjected her to a similar chaotic lifestyle, that the children not only be apprehended again but made Crown Wards and their relationship with their mother severed for the sake of their own need for stability.

[44] The children were returned to their mother on the last weekend of August 2012 on the understanding that she would reside in her father’s home with them and continue cooperating with the Society, attending programs and following through with assessments and treatment for the boys. On October 11, 2012, J.R. consented to a nine-month supervision order which included these expectations and a prohibition of J.S. having any contact with the boys. At first, despite both being returned simultaneously (due to their behaviours, they had been in separate foster homes) the children adjusted well to their new school and their mother’s care.

[45] However, in March 2013, J.R. moved from her father’s residence to avoid his reaction to her resumption of her relationship with J.S. and to her pregnancy with J.S.’s child. Both children experienced some difficulty in adapting to their new school setting; M.R.J.’s behaviours there becoming intermittently “explosive”.

[46] On May 25, 2013, the children witnessed J.S. assault their mother (she was seven months pregnant with his child at the time) and remove $20 from her clothing. Although he fled the scene he was subsequently convicted of assault and incarcerated. Although the Society was assured by J.R. at the time that she had no intentions of reconciling with J.S., her position on that and on the extent and details of this assault have changed since that date.

[47] In June 2013, R.J. received recommendations of a section 54 assessment, which he had participated in with the assistance of his then intimate partner, M.P.. With reservations and various requirements that he continue to attend counseling with a registered mental health professional, and that he refrain from criminal activity and drug use or alcohol consumption 24 hours prior to any visits, he be allowed supervised access to his sons, gradually to be increased to unsupervised visits in the community and eventually weekend overnight access.

[48] On […], 2013, S. was born. Her father, J.S., was released from custody a few days after her birth. Relations with the Society immediately became strained as the Society attempted to monitor J.S.’s contact with the children. J.R. (and J.S.) continued to resist any suggestion that they were prohibited from having contact or that J.S. ought to be restricted from a caregiving role to the children.

[49] In the fall of 2013, after the Society required him to leave J.R.’s residence when he was caring for the children, J.S. committed to hair follicle testing to demonstrate his sobriety from illegal substances but he never followed through with this testing. He says this is because the Society would not guarantee that after receiving the results they would allow him visits with his daughter.

[50] By school’s commencement in the fall of 2013, the children’s behaviours were out of control at school: teachers were reporting that E.W.J.’s hygiene, perhaps as a result of his wetting and soiling at school, was inconsistent; sometimes the children’s lunches were sparse, and their agendas were never completed and ultimately lost. J.R. discouraged the Society’s workers from attending her home (although she did accept assistance for groceries and transportation).

[51] On October 28, 2013, J.R. took the Society’s recommendation to deal with her housing crisis by moving to the Crossroads shelter. Almost immediately, the children’s extreme behaviour at the shelter and their mother’s inability to control it caused the staff there to make various reports to the Society. They then requested that mother find alternative accommodation.

[52] As the Society received similar reports from the children’s school that both boys’ behaviour had become unmanageable, the children were apprehended on November 13, 2013. Each child was placed in a separate foster home (M.R.J. returning to the previous foster family where he had spent the last 11 month apprehension).

[53] All three children have been in the continuous care of the Society ever since.

[54] J.R. has maintained consistent access to all three children, generally assisted either by her father, when his health allowed, or by her mother when the relationship between the two women allowed.

[55] J.R. was successful in initiating and obtaining an award for M.R.J. from the Criminal Injuries Compensation Board as a result of his having been sexually assaulted, which included funding for play therapy for her son.

[56] J.R.’s residence has been transient during the trial proceedings. She is currently estranged from her mother. Her current plan is to reside in Madoc with J.S. in his mother’s residence and have the children live with them there.

[57] R.J. had two clinically managed access visits to his sons in February and April 2014, which were described as having gone very well. R.J. currently resides in Lindsay with his mother, his intimate relationship with M.P. having changed to a friendship.

[58] J.S. has not had any scheduled access visits to any of the children. Throughout most of the trial proceedings, J.S. was homeless. He was the victim of a stabbing in the summer of 2014 and was subsequently charged, convicted and incarcerated on additional property offenses. Since his release from custody in November 2014, his plan is to reside with J.R. at his mother’s residence in Madoc.

[59] M.R.J.’s behaviour, at school and in the foster home has continued to be difficult since his apprehension. He has made some gains recently but can continue to be so “explosive” that after much consultation, a protocol to deescalate his acting out has been developed that includes police assistance. His foster parents remain committed to him in a long-term relationship, with adoption, if possible. He has recently commenced intensive therapy with a local psychologist.

[60] E.W.J. remains anxious and stressed, still suffering from wetting and soiling behaviours, both in the foster home and at school. His foster parents are supportive of him but cannot offer him a permanent home. E.W.J. is currently undergoing a psycho-educational assessment, in order to develop a comprehensive treatment plan for him with a local psychologist.

[61] S. is healthy and continues to meet all her developmental milestones after a quick resolution of some minor issues relating to her weight gain and gross motor skills. Her foster parents speak of her with affection but cannot offer her a permanent home. Well baby assessments are her only ongoing professional interventions.

The Evidence

The Society’s Evidence

[62] The Society called seven of its workers, one of them twice, all of whom generally testified in a competent, straightforward manner. If their notes were produced as exhibits during their cross-examination these most often corroborated as opposed to contrasted with the contents of their affidavits filed as evidence in-chief. Counsel for the mother complained that the Society neglected to call at least one, if not two of its social workers who would have been more sympathetic to the mother. However, he failed to have them attend to testify either and the notes of one, Ms. Lill, presented through another worker did not persuade that Ms. Lill’s evidence would have been so different from her colleagues’ positions that there was any manipulation in her absence.

Donna Galloway

[63] Ms. Galloway, the family service worker since July 2013, testified over a two day period at the beginning of the trial and then again in September 2014 to bring all parties up to date since the trial’s hiatus from June on the children’s access with their mother and the progress made with arrangements to obtain a psychologist for M.R.J. On both occasions, Ms. Galloway testified in a thoughtful, if not determined manner. She maintained that she had difficulty engaging J.R. who attempted to restrict the number of home visits and information she was willing to provide to the Society.

[64] While Ms. Galloway was able to provide a little practical assistance to J.R. by arranging some transportation for counseling appointments, giving groceries on one occasion and backpacks and school supplies to the children on another, it was clear that most of her energy (and patience) was expended in attempting to monitor the contact and assess the risk presented by J.S. and his relationship with J.R. and the children.

[65] The Children’s Lawyer elicited from Ms. Galloway the extreme difficulties that the children experienced through the late summer and fall of 2013, both at school and in the Crossroads shelter (evidence consistent with the later testimony of shelter staff). Counsel also identified through this witness the inconsistency in the children’s, specifically M.R.J.’s, attendance at Kinark counseling during this period and the Society’s reliance on Treatment Foster Care for him after the apprehension.

[66] Cross-examination by R.J.’s counsel was effective and focused on his client’s difficulties in getting the Society motivated to commence the access recommended for the father by the section 54 assessment.

[67] Counsel for the mother was not as successful in his attempt to paint this witness as argumentative or unwilling to engage with J.R. due to a conflict of personalities. Even this counsel’s use of other workers’ notes did not shake Ms. Galloway in her presentation that the society had, prior to her assuming responsibility for the family, advised the mother that they would require another period of supervision and that the society did not agree that J.S. should have contact with, let alone care of the children.

[68] Nor was mother’s counsel successful in getting Ms. Galloway to acknowledge that the children, especially M.R.J., were so misbehaved and violent towards each other and their mother that it was not possible that one caregiver alone could ever manage them.

[69] Finally, J.R.’s counsel attempted to minimize his client’s role in the children’s apprehension but Ms. Galloway’s explanation of the events of late October and early November 2013 demonstrated that the mother’s ability to handle the children and to cooperate with any service that might have been able to assist her was disintegrating as she became more focused on her relationship with J.S.

[70] J.S.’s counsel then took up the cross-examination suggesting that Ms. Galloway was angry and argumentative during any contact with J.S. Counsel suggested that Ms. Galloway’s affidavit was incomplete and that certain phrases or information were left out from her testimony to misrepresent the situation and misdirect the court. Throughout this rigorous review, Ms. Galloway’s evidence remained generally unshaken.

Laura Gregory, Kathryn Moffat, Linda Burnie, and Nancy Burton

[71] These four employees of the Society were apparently called to complete the chronology of the children’s lives and the interactions, even quite historical, between the parents and the Society. Ms. Gregory, a well experienced social worker with the Durham Children’s Aid Society, spoke of the time in 2006 when the mother and R.J. resided with B. and the infant M.R.J. in Durham Region. Ms. Gregory testified to the concerns of that Society regarding domestic violence between those parents which resulted in criminal charges being laid against the father, despite recantations by the mother and which ultimately required B. to be placed with the maternal grandmother and at one point, the infant M.R.J. with the paternal grandparents.

[72] Ms. Moffat, a child welfare worker with the Society of some 15 years’ experience, attempted to assist the mother and children from April through the end of July 2013 when M.R.J.’s behaviour was adding stress to the family and mother was experiencing some physical discomfort regarding the impending birth and subsequent delivery of S.

[73] Ms. Moffat gave her evidence in a straightforward way. She indicated that she regretted having had only one introductory meeting with J.S. in April 2013 and then not having interviewed the child M.R.J. with regard to J.S.’s assault of J.R. She described the mother’s and children’s lives throughout her period of involvement as in constant chaos, making her attempts to liaise with Kinark’s services for the children impossible. She was able to meet with school officials to assist the mother to address their concerns and did follow up several times with Families First who saw some good parenting skills in mother over three visits.

[74] Not much negative was elicited by any counsel in Ms. Moffat’s cross- examinations other than R.J.’s counsel identified the lack of continuity when she replaced the previous worker which interrupted the monthly meetings that his client had been having with the Society. Counsel for the mother was not successful in having this worker confirm his client’s position that the Society was then contemplating a Voluntary Service Agreement as Ms. Moffat was persuasive that she made it clear to J.R., given the children’s behaviour, the impending arrival of the new baby and J.S.’s recent assault of her and subsequent incarceration, that a further Supervision Order would be necessary.

[75] Linda Burnie a child welfare worker with the Society of some 13 years’ experience dealt with the family in 2004 and 2005, mainly due to the pattern of domestic violence both in that household and historically with B.’s biological father, I.M. This calm witness had a fairly detailed and nuanced memory of the interaction and relationship shifts between J.R. and her mother when they were struggling to co-parent B. with the sometimes input of J.R.’s father.

[76] Ms. Burnie was not much challenged in cross-examination. J.R.’s counsel attempted to suggest that she had been derelict in not speaking to his client about an assault in early October 2004 but only accomplished confirmation that the relationship between R.J. and J.R. was so intertwined that, at that point mother was in some jeopardy of breaching the provisions of a no contact order herself. R.J.’s counsel attempted, not completely successfully, to introduce some inflammatory details of the relationship between the mother and his client but Ms. Burnie would only confirm that the parents’ behaviour of contact and communication and interest in reconciliation was two sided.

[77] Ms. Burnie is currently the children’s service worker for the child, S. She confirmed that after some early issues in December when the child was slow in developing some gross motor skills, she was referred for a Physiotherapy Assessment at Five Counties Children’s Center. After some interventions there, the child is meeting her developmental milestones and does well in foster care. Mother’s counsel was not able to adequately challenge this witness’s evidence that J.R. did not focus on this child’s situation or needs for some time after her apprehension.

[78] Nancy Burton is the clinical consultant for the Treatment Foster Care Program for the Society (and two others) that provides special training and support to foster families for children in care with special needs. M.R.J. has been assisted by this program in both his previous and this time in care and now E.W.J. receives some services as well. Ms. Burton’s evidence facilitated the introduction of a number of periodic Progress Reviews (Exhibit 14) detailing a number of M.R.J.’s behaviours and the daily strategies developed by the program to assist the foster family to manage them. Ms. Burton’s program has also been of assistance to arrange and facilitate the clinically managed visits between M.R.J. and his father, R.J. While both boys had some short-term reactive behaviour after the first visit, Ms. Burton confirmed the positive interaction between the father and each of his sons and their subsequent requests for more visits.

[79] In cross-examination, counsel were able to elicit that this service operates somewhat in a silo without timely information exchange of its treatment strategies with the parents, the children’s doctors (even about changes in M.R.J.’s medication) or Kinark. Certainly, M.R.J.’s difficulties seem to have been escalating, even with this assistance, prior to his finally engaging with a psychologist.

[80] Even though the program has provided much input between the foster father, and the children’s services worker (Exhibit 17), E.W.J.’s functioning at school, especially around soiling and wetting behaviours, was not ameliorated. E.W.J. appeared to be having difficulties in transitioning from visits with his family and expressed a desire to see J.S. who Ms. Burton acknowledged he saw as a ”father figure”. It was regrettable therefore, that mother had chosen not to attend most of the Plan of Care meetings in 2014 so that better communication could have been established between her and this witness.

Claire Damery

[81] This now newly minted Master of Social Work took over as the family service worker in April 2011 when she was still on reduced caseload as a new worker. Her presentation in court and the contents of her many notes filed ( Exhibits 51 – 54) revealed an intelligent, well trained but inexperienced worker – much cured by numerous consultations with her supervisor.

[82] Throughout her examination she did not appear judgmental of J.R. and emphasized positive periods when mother was feeling well, trying new things and following through with her directions. She acknowledged that by mid-2011 she had the impression that J.R. and J.S. were a couple as soon as he was released from custody. She noted that despite her request she never received a full copy of his criminal record as the documents she saw made no mention of drug charges. While guarded with this worker, both attempted to follow her recommendations regarding hygiene, the children’s access to the basement, M.R.J.’s problems at school and even the problematic issue for mother of M.R.J.’s need for medication.

[83] Much of this worker’s role in December 2011 involved liaising with the police, the foster mother and J.R. regarding M.R.J.’s disclosure of his being a victim of a sexual assault by a neighbor while in his mother’s care. Again her notes and testimony revealed empathy to all the parties involved. She did become emotional in response to the Children’s Lawyer’s inquiry of her concerns when the Section 54 assessment recommended the return of the children to the mother in August 2012 – she was worried mother would not be able to cope.

[84] R.J.’s counsel was able to establish that his client’s request for access was further delayed through this period perhaps as a result of this worker’s assessment (confirmed in her written report to the Criminal Injuries Compensation Board) that the domestic violence between J.R. and R.J. was one-sided and extremely violent.

[85] Counsel for J.R. was unable to demonstrate that this worker provided no support to J.R. as her notes revealed the provision of groceries, vouchers, transportation and on one occasion, lunch. This worker was able to explain the steps that mother needed to have done to register the children for programs and counseling. Further, her notes revealed that mother often attempted to avoid her oversight, on occasion requiring her to come back twice in one day to complete a home visit.

[86] Ms. Damery was unshaken as to her perception that the mother struggled to remain consistent in her parenting style or to follow through steps needed to secure extra support for the children. After cross-examination of all counsel, Ms. Damery remained persuasive that life for the children became chaotic through 2013 due to the volatility of the relationship between J.R. and J.S.

Erica Knott

[87] Erica Knott has been M.R.J. and E.W.J.’s childcare worker consistently since December 2013. Her testimony and notes (exhibits 64 – 65) revealed a hard-working, independent thinker with good knowledge and rapport with both children. She has provided much support to both sets of foster parents, setting up many appointments for the children and serving as liaison with the Treatment Foster Program, especially Nancy Burton. Her frustration was evident when describing the attempts to negotiate through various agencies in order to obtain play therapy for M.R.J. She expressed great concern over the lack of progress in assisting E.W.J. with his soiling and wetting behaviours.

[88] While she has had little direct contact with J.R. given her role, her notes revealed that she was always responsive to mothers’ concerns and requests for information.

[89] Ms. Knott gave a positive assessment of R.J.’s concern for his sons, ability to take direction and level of cooperation (despite one early difficult phone call).

Carol –Anne McCulloch

[90] Ms. McCulloch, an experienced child therapist with Kinark Child and Family Services, provided counseling to M.R.J. after a referral from his foster home in 2012.At first M.R.J. engaged well with this witness and started to make gains in externalizing and dealing with his anger. Ms. McCulloch was of great assistance to both the foster mother and M.R.J. during the quick and difficult reintegration into his mother’s care at the end of August 2012.

[91] Thereafter, Ms. McCulloch was willing to engage with mother to assist her with M.R.J. after this transition. Throughout her entire testimony, she presented as an advocate for J.R. providing context and explanations for the mother’s many missed appointments (some were as a result of the Society’s failure to organize rides) and delay in following through with services. M.R.J.’s attendance with Ms. McCulloch in the first nine months after his return to mother’s care was so sporadic that no progress was made and the therapeutic relationship between the two appears never to have been re-established.

[92] Ms. McCulloch was clear that she would have been assisted in her attempts to provide therapy for both M.R.J. and parenting support for his mother if only she would have been provided with the section 54 assessment. Mother insisted that she had lost her copy. The Society never seemed to have got the necessary consents or the will to provide this essential information to Kinark. Regrettably, Kinark was also very resistant to providing their reports and reviews to the society. Again, services to M.R.J. and his family were fragmented with consequent less effect.

[93] When the Kinark records were finally disclosed during the trial (exhibits 36 – 47), it was revealed that mother had some reservations about engaging in the program and difficulties in organization of her household that delayed Ms. McCulloch’s colleague, Ms. Casmay’s ability to initiate the assistance of Kinark’s program of Family First well into the summer of 2013. These records also disclosed some contemporaneous information inconsistent with the mother’s position and later testimony in that J.R. reported to Ms. Casmay on May 27, 2013 that J.S. had “hit her on the weekend.” On June 10, 2013 M.R.J. reported to Ms. McCulloch that he had witnessed this incident and J.S. had run away after he “tried to choke her”. Exhibit 42 is Ms. McCulloch’s case note of August 15, 2013 wherein she quoted J.R. during their appointment with M.R.J. that “[J.S.] remains out of the scene and she is unaware of his whereabouts. She advises that he will not have any involvement in her daughter’s life.”

Stephanie Palmer and Shirley Hamilton

[94] These two teachers had E.W.J. and M.R.J. under their tutelage from September to the children’s apprehension in mid-November 2013. They both are experienced child advocates who made excellent witnesses.

[95] Ms. Palmer presented as the new generation of holistic educator, including in her mandate to ensure the physical and emotional well-being of her students. She explained her integral use of the children’s daily agenda and her copious notes of E.W.J.’s daily presentation, academic progress and his mother’s participation. She was so concerned about E.W.J.’s absenteeism, lack of hygiene, lack of nutritional lunches and mood that she reported her concerns to the Society several times.

[96] In testimony, Ms. Palmer presented as professional and avoiding judgmental tone with regard to J.R. however she was clearly frustrated at mother’s inability to retain and complete E.W.J.s’ agenda in a timely fashion. On one occasion she described mother’s demeanor during their noon hour interaction as “giggly”. She was not much shaken in cross-examination and her “chart” filed as Exhibit 6 was a consistent daily assessment of E.W.J.’s functioning and J.R.’s participation.

[97] Shirley Hamilton, a teacher of 25 years’ experience demonstrated competence in her ability to manage M.R.J., understand and redirect his cues. She was persuasive in her belief that M.R.J. was a normal child of reasonable ability; descriptions of a violent or dangerous M.R.J. had been exaggerated.

[98] Although Ms. Hamilton was deferential to her colleagues, it was clear that she was of the view that the Society should not have been involved by the school staff. Her description of J.R.’s functioning was nonjudgmental; she found M.R.J.’s hygiene, lunches and attendance adequate. Her written notes (Exhibit 7) were succinct and child focused but even these disclosed that by the end of October 2013, M.R.J.’s agenda had not been “emptied in weeks”.

Tracey Emory

[99] Ms. Emory, an eight-year employee of the Crossroads shelter, testified in a straightforward balanced manner cataloging her interactions with J.R. and her children from November 4-13, 2013 inclusive. With the use of her computer log she gave a number of exact quotations of interactions she had had with the mother and children. She observed that she and other staff could manage the children more easily than the mother, as she appeared overwhelmed and non-functioning.

[100] According to this witness, M.R.J. presented very often as friendly and reasonable. E.W.J. appeared more “needy”, often crying or screaming and on one occasion running down the street after escaping from a taxi that was to take him to school.

[101] Ms. Emory described the Society’s workers as responsive and attempting to be of assistance to the family. Despite everyone’s best efforts, this witness described these children as the most out of control and violent that she had seen in her experiences at the shelter.

Constable Scott Wilkes and Constable Mark Hubble

[102] These two officers testified in order to provide further context and allow testing of various occurrence summaries, describing reports of domestic violence between R.J. and J.R. in 2008 through 2009 (exhibits 72, 73, 84, 85). Incidents in 2004 (Exhibits 81 – 83) were introduced through the parties themselves and disclosed consistent patterns of behaviour between the two.

[103] Constable Wilkes, an OPP officer of now 15 years of experience, testified as to his observations of a January 3, 2009 incident wherein R.J. “broke into” J.R.’s home, and assaulted her. This officer chronicled R.J.’s violent behaviour during the arrest, noting it took five police officers to contain R.J. in the cells. The exacerbating factor for this witness was that during the incident the children had been taken out of the house by the father and put in the back seat of a motor vehicle.

[104] No counsel was able to find any inconsistency between this witness’s memory and his notes, but it was clear that the officer considered R.J. a dangerous threat. He noted that he had been in J.R.’s home twice previously in 2008 as a result of the parties’ complaints about harassing telephone calls and concerns about the family’s physical safety.

[105] Constable Mark Hubble, a member of the Peterborough Police Services for some 10 years now, testified with regard to his investigation of an assault and various other charges by R.J. involving J.R. and other complainants in July 2009. Constable Hubble’s testimony was very consistent with the occurrence summary, now Exhibit 85.

[106] According to Constable Hubble, J.R. seemed generally distraught and fearful of R.J. whom she said attended without her knowledge at her neighbour’s residence, threatening a number of people with a baseball bat and attempting to remove the children from her care. The officer chronicled his observations of certain damage to the house and the disabling of J.R.’s motor vehicle, which was consistent with her report.

[107] R.J.’s counsel put to the constable his client’s version of the incident which included that the children were at risk in the neighbors’ premises and that the parties were reconciled and R.J. was residing in an apartment that J.R. had arranged for him close to her neighborhood. Constable Hubble would not concede any aspect of R.J.’s position, indicating instead that mother was cooperative, later providing a video statement. Some of the constable’s reservations regarding R.J. could have arisen due to his description that by the time the father was brought to the station he was belligerent and threatening the police.

Dorothy Ryan M SW., Dr. Gabriela Szanto

[108] On consent of all counsel, these witnesses were qualified as experts to provide their recommendations arising out of the two Section 54 Assessments, prepared in August 2012 and June 2013 respectively. Both were deemed the court’s witnesses so that all counsel were free to cross-examine them.

[109] Ms. Ryan presented in a balanced, well-prepared way, consistent through two days of testimony with her reports. She accurately summarized the histories of both J.R. and R.J. and each of the three boys, then born. She encapsulated what she perceived as J.R.’s challenges with parenting capacity, that is, her personality and inconsistent functioning, a pattern of high conflict and violence in intimate relationships, a lack of insight into the causes of the instability in her life, and a lack of accountability as to her role in the chronic child protection issues to which her children have been subjected.

[110] Dr. Szanto, after taking a medical history, conducted psychological testing on J.R., M.R.J. and in the following year, R.J. She found that J.R. tended to minimize her past difficulties and may, at one time have been identified as having a Borderline Personality Disorder and then an atypical depression diagnosis.

[111] Dr. Szanto noted that certain of J.R.’s tests did not produce a valid profile due to a defensive response style. However, despite a slight positive bias, her personality and emotional functioning scale indicated that she did not currently see herself as a person experiencing high levels of stress or prone to impulsivity or regression. M.R.J.’s testing showed a young man of more than average intelligence who revealed a high degree of anger, anxiety and post traumatic features. E.W.J. was not interviewed or tested due to his age.

[112] As a result of their investigations and J.R.’s then (summer of 2012) improved wellness and functioning, her improved interaction with her children during observations visits and her termination of her relationship with J.S., both assessors recommended that the children could be re-integrated into her care with continuing supports, as mother’s commitment was now to work effectively with service providers such as the Society and Kinark.

[113] Both experts defended their recommendations by noting the children’s, especially E.W.J.’s, desire to return to his mother and emphasizing that her wellness and stability were at their optimum so that the children could now be returned to her care. Ms. Ryan especially made it clear that they had reinforced with the mother that if she returned to her old patterns of inconsistent parenting in order to focus on a chaotic intimate relationship, a different outcome would be necessary, which would include the immediate re-apprehension of the children and the severing of their relationship with her and their extended family.

[114] Ms. Ryan was near impervious to cross-examination, refusing to modify or at the behest of counsel for the mother, reinforce mother’s strengths as the reason for the recommendation to reintegrate the children. She repeated her reliance on the necessity and comprehensiveness of the suggested terms for supervision which ought to have addressed any risk to the children.

[115] Dr. Szanto refused to concede counsel for the mother’s theory that the children had too many special needs or were too difficult for any single parent to be able to manage. Neither would this witness or her colleague agree that the mother had been so victimized that her parenting incapacity, without extensive assistance, could be expected to be ameliorated. In summary, both witnesses opined that mother ought to have had one last opportunity to be a “good enough parent”.

[116] In fact, both Dr. Szanto and Ms. Ryan were consistent in their view that neither M.R.J. nor E.W.J. suffered from any organic or congenital issues. Ms. Ryan questioned whether M.R.J. was inherently hyperactive or whether he acquired this diagnosis as a result of hyper vigilance given an insecure attachment to his mother or as a result of the chaotic lifestyle and violence to which he was repeatedly exposed. Both children appeared to both witnesses to be hyper vigilant or over anxious, perhaps as a result of not having their basic needs met and therefore missing in a timely fashion the acquisition of self-regulation, impulse control and social skills.

[117] In the second assessment, R.J.’s mental health history revealed inconsistencies with the written record according to Dr. Szanto. Her testing revealed a man of high average intelligence with no symptoms of mood disorder, personality disorder and with a self-report of no current significant levels of anger or difficulties in the last six months of being able to maintain interpersonal relationships.

[118] Ms. Ryan described R.J. as personable and appropriately child focused, but his presentation of his history minimized his difficulty with intimate relationships and his criminal record and was not in accord with the documentary record. Ms. Ryan was candid that she was impressed with M.P. and the functioning of the couple. She said that the result of her colleagues’ testing and this current structure of R.J.’s life circumstances allowed the assessors “with reservations”, to recommend supervised and then gradually expanded access between the father and his two sons.

[119] Both witnesses emphasized the considerable therapeutic benefit to the children, especially M.R.J., that was to be gained by the initial clinically managed access by the father. No counsel elicited anything different in cross-examination other than a clarification of R.J.’s obligation to continue his involvement with a registered mental health professional during his reintegration into his children’s lives.

Constable Kirk Kelly, Constable M.R.J. Tisdale, Constable Monique Gillespie

[120] These three officers were called to report on incidences between J.R. and J.S. that occurred prior to S.’s birth. Almost all of their evidence was straightforward, not obviously exaggerated and consistent with their contemporaneous notes which were available for all counsel’s review.

[121] On August 11, 2011, Constable Kelly attended at the Lansdowne Mall to a community complaint of a verbal dispute which involved J.R. and J.S. in some sort of shouting match. Constable Kelly confirmed in cross-examination that no assault was reported by the parties, there were no visible injuries and there were no children in the motor vehicle involved.

[122] Less than a month later on September 5, 2011 Constable M.R.J. Tisdale attended her residence as a result of J.R. calling the police and then attempting to cancel the call regarding an argument between herself and J.S. The Constable observed no visible physical injuries. In cross-examination, Constable Tisdale confirmed that he was unaware whether there were children present.

[123] Almost in passing, Constable Tisdale mentioned that he had further interaction with these two parties on January 28, 2014 when he assisted in the execution of a search warrant at a residence which he agreed with children’s lawyer was a “known drug house” where J.R. and J.S. were staying. Various stolen items were recovered by him in the purported bedroom of the parties. Both were then charged with some property offenses and J.S. also with breach of probation. No convictions were registered against J.R. with regard to this incident.

[124] Constable Monique Gillespie conducted the investigation of the May 25, 2013 assault by J.S. on J.R. Constable Gillespie was clear that mother reported at the time that J.S. broke into the house, causing damage to a door, hit her on the back of the head and somehow knocked her down. While she was on the ground, he reached into her bra and stole $20 and her cigarettes. J.S. then “smashed” her cell phone and fled on a bicycle.

[125] Both M.R.J. and E.W.J. were present and witnessed the assault. Both boys ran with their mother to the store to phone for police assistance. As mother was seven months pregnant and not feeling well she was taken to the hospital for observation. E.W.J. was so upset he stayed on a cot in her hospital room overnight.

[126] Constable Gillespie then went on in some detail explaining the steps she took over the next number of days in an unsuccessful attempt to obtain a written or video statement from J.R. Despite this deficit, J.S. was convicted and incarcerated for the assault.

Constable Kaitlin Hill, Constable Ryan Ready, Constable Peter Sejrup:

[127] These three officers investigated incidents involving J.S. On January 7, 2012 Constable Hill arrested J.S. for a number of charges including trafficking in cocaine and breach of probation. In September 2014 Constable Sejrup arrested J.S. and J.R. for property offenses at a local retail establishment. J.S. was convicted and incarcerated; the charges were withdrawn against J.R.

[128] Constable Ready investigated a stabbing in August 2014. He found J.S. bleeding on the ground from several stab wounds and other injuries. While J.R. was present and at first advised the constable (according to the constable - she denies this) as to the identity of J.S.’s assailant, no witness was prepared to give a statement. Despite the fact that J.S. ended up in hospital, no one has ever been charged with his assault.

J.R.

[129] J.R. started with a description of her three children. She presented as clear spoken, confident, intelligent and canny in understanding what was being asked of her in the context of the previous evidence. It was clear she had the capacity to complete her studies to become a paralegal.

[130] However her demeanor soon changed; her responses became halting when having to speak about difficult issues. Her voice would drop to the point that her lips were not seen to be moving and no one could hear her.

[131] Sometimes J.R. could not seem to remember the chronology of her life or when difficulties in relationships, both intimate and familial, occurred. Her accounts of the assaults she had suffered were often in the wrong sequence, not just of months, but also of years.

[132] Much of her evidence was internally inconsistent over the days that she testified and contrary to her affidavits filed in the proceeding. Sometimes her explanations became circular: for example her description of her careful attention to completing school permission slips in the fall of 2013 when she was forced to acknowledge both her sons’ agendas (where the slips were kept) were lost. She never resolved her position on the timing of the ending of her relationship with R.J. (most often saying January 2009) with the beginning of her relationship with J.S., which she said was of seven years duration.

[133] At first, she seemed reluctant to criticize anyone, having to be prompted by her lawyer to fully describe the violence of her treatment by R.J. Similarly, she explained that M.R.J.’s behaviours were not his fault but as a result of that extreme domestic violence he had witnessed, or later in her testimony due to his being the victim of a sexual assault. At first, she described how she could recognize his cues and divert his “explosive episodes” with a joke or a new activity. Yet later, she described how she could not stop him from hitting her or the other children without the assistance of one of her parents who removed M.R.J. to a different location. She then seemed to attribute all her difficulties in life, including the intrusion of the Society, to M.R.J. and indicated she would have no difficulty parenting just E.W.J. and S. Her descriptions of certain individuals including the two current Society workers, Crossroads shelter staff, M.R.J.’s foster mother, E.W.J.’s teacher (but not M.R.J.’s) were relentlessly negative; all sorts of lack of candor, negligence and even conspiracies were ascribed to them. Certain other people, primarily J.S. (who literally could do no wrong even when he was assaulting her) the therapists from Kinark, the counselor from the Elizabeth’s Fry Society, two former Society workers and fortunately, both of the children’s doctors were presented as overwhelmingly positive and effective in their assistance to her. Regrettably, J.R.’s depictions very often depended upon whether she perceived these individuals to be supportive of her position.

[134] In September 2014, J.R. described her plan to reside in the self-contained apartment in her mother’s basement in order to be close to the children’s services and her mother’s support. She explained how her father was not at that point well enough to assist her or the children.

[135] She acknowledged, but did not exaggerate, suffering from postpartum depression after both E.W.J.s’ and S.’s births. She was matter of fact in describing the sexual assault she suffered and her refusal to report it so that M.R.J. who tried to intervene, could then not be called as a witness in any subsequent charges. She only became emotional when describing M.R.J.’s sexual assault and the necessity of him having to testify at that trial. J.R. has experienced these many traumas but she remained adamant throughout that she did not need any therapeutic assistance or counseling.

[136] In November 2014, J.R. was recalled by her counsel to explain the change in her proposed plan to care for the children. Apparently in October 2014, during an access visit, she and her mother had a major disagreement over the discipline of the children. J.R. alleged that her mother had assaulted her eldest son, B. J.R.’s efforts to have her mother charged with assault or to have B. removed from his grandmother’s custody were not successful. The incident has caused a rupture in the women’s relationship. As a result J.R.’s new plan was to reside with J.S. at his mother’s home in Madoc.

[137] During cross-examination, J.R. struggled to remain consistent with the information she had provided earlier. Her testimony became almost exclusively focused on her relationship with J.S. She went so far as to attempt to insist, despite two counsel’s efforts to convince her otherwise, that she had lied to the assessors, the Society and her own counselors throughout the summer of 2012 when she reported to all that she had separated from J.S. and had ended her relationship with him permanently. She attempted with extreme difficulty, to persuade that she had consistently been in a relationship with J.S. throughout that entire period.

[138] J.R. maintained, although the stress of attempting to do so had her breaking out in nervous laughter throughout, that she had never seen J.S. under the influence or use drugs in her presence. By the time she had recounted his May 25, 2013 assault twice in cross-examination, she was saying that he had not hit her, he did not push her down; he merely reached around her and removed his own money from her bra. If the children were aware of the incident at all (she wasn’t sure) they probably thought J.S. was just hugging her.

[139] J.R. then attempted to deflect responsibility for the difficulties she and her family had suffered through 2011 and 2012 to the Society’s actions and involvement in her life. She became angry and insisted that the Society had provided no assistance to her or her children at any time. She explained that the children’s simultaneous return to her, without adequate preparation at the end of August 2012, caused such stress to her she became overwhelmed at the children’s escalated behaviour. She would not agree that the children settled well in school in the fall of 2012 or that her counselors reported her good progress until she moved from her father’s residence in March 2013.

[140] She blamed the Society for J.S.’s homelessness during the times he was not incarcerated because of the prohibition of his contact with the children. Although J.S. had just been released from custody again on November 12, 2014, she insisted he was a changed man, having found his native heritage. He would no longer be involved in drug use or further criminal activity. As a result, her new plan to reside in Madoc, despite the distance from their therapists, was much better for the children as J.S. had always been able to control them and will again be able to assist her to parent them.

[141] When children’s counsel attempted to engage her in a review of Dr. Nugent’s psychological assessment of the children, she pretended that she had not ever read it – despite the fact it is attached as an exhibit to one of her sworn affidavits. Furthermore, she had to maintain that she had never bothered to read the recommendations for her children’s treatment in the Section 54 assessment due to its companion recommendation that she must maintain her separation from J.S. (of which she insisted she had been unaware).

[142] Her responsiveness reached a new low regarding her previous knowledge of J.S.’s extensive criminal record, especially his drug trafficking convictions. J.R. became virtually nonverbal, delaying her answer until she received a cue from J.S., sitting in the body of the court. As a result prior to the next day of testimony, a screen was erected so that J.R.’s view of the other respondents was blocked. Despite this, her evidence remained lacking independence and credibility.

[143] R.J.’s counsel had more success in getting J.R. to acknowledge some of his client’s position on the early domestic violence between the couple in 2007 through 2009. While she acknowledged R.J.’s positive interaction with the children, taking them camping and fishing, she did not agree that the parties had reconciled in 2009 while she was living in Denne Crescent even though he had a key to her residence. She also acknowledged some (but not the large number R.J. says) of telephone calls and exchange of letters between herself and R.J. while he was in custody (and prohibited from having any contact or communication with her).

[144] She denied visiting R.J. in custody by exchanging visits with another inmate’s mother but she did agree that she had visited R.J. once at a halfway house. She had attended his father’s funeral in April 2010. She confirmed both that she had informed the police in 2009 of R.J.’s involvement in a 2008 robbery and that she and her mother had reported his letters to the Society in 2010. Both reports resulted in periods of incarceration for R.J. Counsels ’cross-examination revealed that J.R. maintained frequent communication with R.J. well into the middle of 2010 – even after she commenced residing with J.S.

[145] J.S.’s counsel was successful in getting much of his position before the court through J.R.’s cross-examination. J.R. readily acknowledged the great assistance that J.S. has been to her in caring for the children. She described how he taught M.R.J. to ride a bicycle and advanced E.W.J.’s toilet training. She remembered J.S.’s competent care of E.W.J. during and after his surgery in Toronto. She ended with the description of her and J.S.’s appointment with the children at the family and youth clinic where the therapist assured her that she did not need any more counseling there, as all she needed to do was watch how J.S. parented the two children ”effortlessly” and model his actions.

[146] Thereafter, J.R. explained the attempts that J.S. made to engage with the Society to satisfy their concerns, his willingness to take a hair follicle test and to be identified as S.’s father in order to have his right to parent her be recognized. J.R. confirmed her view of J.S. as a changed man and the viability of their plan to parent all the children with the assistance of his mother.

Debbie Carrier

[147] Debbie Carrier MSW, was J.R.’s counselor at the Elizabeth Fry Society in 2012 when J.R. completed three programs there and had approximately 20 therapy sessions with her. Ms. Carrier’s notes (Exhibit 68) revealed J.R. apparently consistently engaging in ”client driven” cognitive therapy to work through whatever issues were causing her difficulty at the time. Ms. Carrier was satisfied that the mother continued to make good progress with the children’s reintegration into her care throughout the fall of 2012.

[148] Ms. Carrier was not successful, despite a number of attempts, to have all service providers, including Kinark, meet with her and J.R. to coordinate services for the family. She was surprised to hear that the child born to J.R. was fathered by J.S. and that they remained a couple, as she had formed the impression from the issues brought forward by J.R. that she had previously ended her relationship with him.

R.J.

[149] R.J. confirmed at the outset that he was consenting to his sons being made Crown Wards and remaining in their current placements. He was however seeking expanded access to them in the hopes that greater contact would proceed as well as the first two clinically managed visits that he had had in February and April 2014. His ultimate plan was to continue to consolidate his employment and financial resources so that in a year or so he would be in a position to seek custody of his sons.

[150] R.J. explained that his plan was somewhat altered from his original affidavit and the information contained in the section 54 Assessment, in that he and his previous intimate partner, M.P., were no longer cohabiting but had determined they would remain friends in the future. He explained that there had been no heated argument or certainly no violence that cause the separation but long working hours for both, complications regarding finances and the stress of the previous days of trial resulted in the separation. R.J. was of the strong view that his changed circumstances should not affect the recommendation that he have continued and expanded access to his sons.

[151] R.J. presented as a highly intelligent, responsive witness who gave a very detailed chronology of his relationships and incarcerations. He readily acknowledged the entries on his long and serious criminal record but emphasized that there had been no new offenses for over four years at the time of trial.

[152] He explained with fluidity the number of courses and programs he had taken throughout his various incarcerations and while in halfway houses. These he assured had fundamentally changed his ability to control his anger and think before he acted. He presented as having resolved his inability to let go of any relationship that was dysfunctional. He understood and regretted the effect of his and J.R.’s behaviour on his sons. He was prepared to comply with any recommendations and participate to assist in having his sons’ special needs met.

[153] Throughout his testimony (even prior to cross-examination), his account of his assaults of his two previous partners and then most especially J.R., revealed his view that the violence in the relationship was reciprocal. In each of three cases, he noted some lack of effort of his partner to apply themselves to employment, household or childcare duties. In each case, again especially with J.R., he had suspicions of infidelity; yet he denied ever being jealous.

[154] Counsel reviewed not just each entry on his extensive criminal record with him, but also contemporaneous occurrence reports (e.g. Exhibits 81 – 88). R.J. acknowledged the pattern of assaults (he was convicted of assaulting J.R. on four separate occasions but there were several other significant incidents that did not proceed to charges), breaches of no contact orders, recantations by J.R., and reconciliations. R.J.’s report that he always pled guilty to be able to quickly return to care for the children did not fully explain his almost obsessive need to communicate with J.R.

[155] In contrast to R.J.’s perception, the degree of his violence revealed in the numerous statements, was disproportionate to any action of J.R. Given the various descriptions of J.R.’s physical injuries therein, it is virtually impossible that R.J.’s account that he only punched J.R. once during their relationship can be accurate. Regrettably R.J. was also responsible on numerous occasions for damage to property such as walls, mirrors, computers or motor vehicles.

[156] The children, including B. who was assaulted by R.J. as well, were often very close to, if not involved in, this chaos during the approximate eight years of these parents’ relationship. R.J. did not sufficiently concede his inappropriate behaviours towards B. The effect on all of the children must indeed have been negative and profound.

[157] Much evidence was led by both parties as to whether their relationship ended as J.R. says in early 2009 or as R.J. insists, in the summer of 2010. Whether the relationship was intact or not, the parties had many communications throughout the disputed time period, some of which, such as the baseball bat incident on Denne Crescent, must have come to the children’s attention. Then contact with their father was interrupted, when M.R.J. was 3 ½ years of age and E.W.J. only 1 ½, for approximately 4 years until R.J. was able to successfully negotiate the first clinical visit with his sons in February 2014.

[158] R.J. was not challenged in his description of the preparation, interest and care he took for the two clinically managed visits he has had with his sons in 2014. While he is aware the children are asking for more visits, he revealed himself as sincerely child focused in his commitment to heed the recommendations of the therapists as to the timing and structuring of more visits.

[159] While his explanation of his current relationship with a previous partner was not completely consistent with the depictions in Exhibit 98, and his account as to the frequency of his consultation with his registered mental health therapist was weak, no other information contrary to his expressed plan was revealed in cross-examination.

M.P.

[160] M.P. presented as a pleasant, intelligent advocate for R.J. Her social work training was revealed in many of her responses to issues relating to domestic assault, counseling programs and even these children’s developmental and special needs. She quickly acknowledged the error in all the written materials filed, that she has known R.J. three years, not five. She attempted to reassure that her separation from R.J. was mutual and nonviolent. She appeared sincere in her offer of ongoing friendship and support.

[161] Ms. M.P. withstood rigorous cross-examination as to the accuracy of her knowledge of R.J.’s criminal convictions and renewed relationship with a former intimate partner. While she revealed some ignorance and naïveté surrounding his history, she demonstrated no animus against any party involved and no agenda other than to do good. Given the infrequency of her contact with R.J. since the spring of 2014, it appears unlikely she will have much of a role to play in his future visits with his sons.

J.S.

[162] J.S. presented as nervous, which was understandable, it being his first experience testifying and given the number of times his examination had been interrupted. He appeared younger than his years (and the length of his criminal record); street smart yet personable. He offered at the outset that he was “not good with dates” and that proved accurate. Later in his examination, he tended to avoid difficult questions by insisting as he was under oath he could not answer unless he was absolutely certain. Despite this, and with some notable exceptions, he was candid in his testimony.

[163] His counsel took him through “his nine page” criminal record, one offense at a time, each of which J.S. readily admitted, giving additional details, often acknowledging its stupidity and occasional recklessness (for example, jumping off a roof in a vain attempt to escape), indicating his inevitable guilty plea and subsequent incarceration. This became a somewhat artificial formulaic repetition.

[164] J.S.’s evidence was different than J.R.’s position as to when (later) they had become a couple or how continuous (less so) their cohabitation had been. J.S. acknowledged several separations, remembering on one occasion an apartment that he had on Princess Street. In addition there were times when “Jen” dismissed him due to yet another incarceration. He spontaneously remarked that “Jen” had been very protective of him throughout her testimony.

[165] He was also forthcoming in describing his 10 year drug addiction, including his use of cocaine. However, he referred to his drug use in 2014 as “slips”. He insisted that after attending a Fourcast program (total 6 hours), he had no need for further treatment. He had all the tools needed to continue his recent sobriety which he had maintained throughout and since his last incarceration which ended November 12, 2014.

[166] J.S. outlined his previous good care of the boys, helping J.R. to deal with their behaviour by teaching them skills and then being of assistance for the first four months after his daughter’s birth. He also recounted how the society workers were well aware that he was residing with J.R. in 2011- 2012 and helping her with the children. He was adamant that he was unaware that there ever was a supervision order limiting his contact with the children even though he failed to mention the times he was prohibited from communication with J.R. due to criminal court recognizances.

[167] His account of his May 25, 2013 assault on J.R. was almost as revisionist (and inconsistent with contemporaneous written descriptions) as J.R.’s was. His version was heavily weighted on his right to retaking the $20.00 that he was confident was his. His explanation of his breaking down the door was as a result of his overhearing E.W.J. reporting that M.R.J. had a knife. At least, he didn’t deny that both M.R.J. and E.W.J. were present and aware of the couple’s behaviour. His account of this incident was still not credible.

[168] J.S. did become angry when speaking of the Society’s, specifically Ms. Galloway’s attendance at J.R.’s residence in September 2013, unnecessarily in his view, interfering with his competent care of the three children, and not mentioning that he had been convicted of assaulting their mother less than four months before. His explanation as to why he has never complied with his commitment, thereafter a provision of a court order, that he complete hair follicle testing bordered on the nonsensical. As the Society would not guarantee prior to the testing that he could be involved in the children’s lives he was of the view that there was no point in him complying with the court order to demonstrate had not used illegal drugs and therefore was not a risk to the children.

[169] According to J.S., most of his difficulties with the police and subsequent criminal charges throughout 2014 were mainly as a result of him being homeless. He did indicate that during his most recent incarceration he participated in some job retraining as he has never had much history of “9 to 5”employment. He also attended a “Smudge Ceremony” while in custody which furthered his interest in his Métis heritage.

[170] He explained that all of these new initiatives are as a result of the birth of his daughter and his new understanding of what is important as a result of surviving a serious stabbing attack in August 2014. J.S.’s account of what occurred on the night in question was vague. He did not see his attacker and has not been able to identify him. He can think of no reason why he was victimized. His injuries required hospitalization and convalescence with the assistance of his mother, J.S.2.

[171] Although it has been many years since he left home and his testimony revealed little recent contact with his mother, he says he has always considered her a support. Now he is willing to accept her offer that he and J.R., with E.W.J. or at least S. (and perhaps M.R.J. at some time in the future when he is well), can reside with his mother, his teenage sister Dolly, and his two nieces being raised by his mother, in her large family home in Madoc, Ontario.

J.S.2

[172] J.S.2, mother of J.S. attended to confirm the contents of her October 2014 affidavit (Exhibit 110) that she is prepared to take custody of her granddaughter, S. In her written materials, she explains her current family circumstances of raising her teenage daughter and two grandchildren four and five years old respectively in her own five-bedroom home in Madoc (one hour drive from Peterborough). In her testimony, she first described her willingness to allow J.R. and J.S. to reside in a self-contained apartment in her basement with E.W.J., S. and ultimately M.R.J.

[173] In presentation Ms. J.S.2 presented as shrewd, independent-minded and witty. The story of her life, which has included three husbands (all abusive and the first murdered), six children (four with serious drug issues) and now two grandchildren to be raised, was told in a positive, non-apologetic manner. She indicated she would have no difficulty, if necessary, working with the Society. Her earlier problems in a technical breach of an order relating to her two grandchildren have been resolved. She has had legal custody of them since the spring of 2014.

[174] She admitted that she had not seen much of her son J.S. until he was stabbed in August 2014, when she provided care and a place for him to convalesce in her home. She was adamant that she does not tolerate drugs or alcohol to excess in her residence. She was sure J.S. was not using drugs now as he was looking better than he had in years. She was prepared to do everything she could to support his sobriety, which she believed was as a result of him realizing he must change his ways because he was now a father.

[175] Ms. J.S.2 indicated that she had not spent much time with J.R. although J.R. and the children (M.R.J. and E.W.J.) had been at her home, perhaps more than once, sometime in the past. She had seen S. while in J.R.’s care but she had never cared for her as the Society denied her access.

[176] Counsel raised with her the logistical difficulties of having so many people, some, not just the children having special needs, reside in her already busy household. Further, there would be appointments with counselors and therapists in Peterborough and as neither J.R. nor J.S. could drive, transportation would be her responsibility. Ms. J.S.2 explained that she was used to being busy, and despite her fibromyalgia, active. She had access to two cars and she, her teenage daughter, and another daughter who lived just down the street, all had valid driver’s licenses.

[177] When questioned as to why she delayed coming forward, Ms. J.S.2 explained that she was unaware of the seriousness of the parents’ difficulties and felt she was “done” with Children’s Aid Societies. Also, she no longer questioned the paternity of S., as J.S. said the child was his and “that was good enough” for her. She now understood that the Society was seeking to have S. adopted. She felt it was best that she established a permanent bond with her granddaughter so the child could be raised with her family.

The Children’s Lawyer’s Evidence

Dr. Charles Menendez

[178] On consent of all counsel, Dr. Menendez, a registered psychologist (Curriculum vitae – Exhibit 101) was qualified as an expert in child and family psychology and permitted to give opinion evidence with regard to attachment, trauma and treatment needs of the children. Dr. Menendez was constituted as a court witness so that all counsel were free to cross-examine him.

[179] Dr. Menendez has been providing intensive, weekly therapy for M.R.J. for the last several months. He assesses M.R.J. to be intelligent, extremely engaging and strong-willed. He found M.R.J. to be escalating very aggressively and targeting his caregivers as a result of his reaction to numerous traumas, including his victimization by sexual assault, his exposure to family violence and as significantly, the different changes in his placement throughout his life.

[180] As a result, M.R.J. does not trust caregivers to provide the safe place he needs. Therefore, he cannot accept love or assistance from caregivers and often their attempts to care for him trigger an explosive reaction. His foster mother - who often is the target of his aggression and attends therapy with him - is doing an excellent job of following the recommendations from trauma therapy. M.R.J. will need a long-term parent who can fulfill a therapeutic role.

[181] M.R.J. is very careful when speaking about any member of his family. While there is no doubt he feels in a “loyalty bind”, that is, he conveys that he has to keep secrets and take “mom’s side or take care of himself”, the relationships are important to him. Sometimes visits are difficult; his conversations are most often about B.

[182] M.R.J.’s most urgent need is to “experience permanency” in his life. He needs to know he is secure in his placement, otherwise maintaining him in a family setting will become more difficult. Any access should commence after a period of months so M.R.J. can accept that the stability is real and should be “clinically managed” to meet his evolving needs for treatment.

[183] Dr. Menendez was just completing his psycho-educational assessment of E.W.J. He found E.W.J.’s challenges to be similar to M.R.J.’s; the degree of his treatment needs to be no different, as it is “just a matter of time”. He found E.W.J. to be experiencing a lot of anxiety, which will require stability and the development of a feeling of safety.

[184] E.W.J. does not see families as a resource for him. He is truly in a loyalty bind because “at least part of him wants to go back to mom”. Yet E.W.J. perceives none of his family as being able to solve his problems or provide for his basic needs. In his drawings, he assigns no positive symbols to any member of his family, but gave them all to an individual who does not exist.

[185] E.W.J. is very intelligent and busy. He needs a lot of attention and direction from his caregivers. It is likely that his wetting and soiling are both as a result of his anxiety and as a result of his need to control and seek attention. Dr. Menendez opined that his ADHD could be treated with carefully monitored medication. Therapy would be needed as well to assist E.W.J. to feel secure and less afraid.

[186] Dr. Menendez also recommended the immediate implementation of a permanent plan for E.W.J. Any access to non-residential family members should be after a period of some months of no contact, perhaps with letters or updates so that E.W.J. could be reassured, and thereafter “clinically managed” visits that would be structured to meet E.W.J.’s treatment needs.

Dr. Ian Jamieson

[187] Dr. Ian Jamieson, a member of the Ontario Medical Association for some 24 years, is the pediatrician for all three children. The children’s medical charts accompanied him and were made exhibits 106 through 108. Dr. Jamison confirmed the children’s medical history, for M.R.J. since 2010, for E.W.J. since 2012, and for S. since her birth.

[188] Dr. Jamieson chronicled his prescription and monitoring of M.R.J.’s various medications since the child came under his care. He noted M.R.J.’s grandiose and violent language but did not assess him as truly disturbed or violent. Most recently he has been monitoring M.R.J.’s growth and weight gain and attempting to adjust his medications and dosage for the optimum benefit.

[189] Dr. Jamieson saw E.W.J. as an anxious child with an awareness of his family’s challenges. Dr. Jamison has monitored his soiling and wetting behaviours, which he believes are as a result of E.W.J.’s anxiety and not all that uncommon for a child with ADHD. E.W.J.’s medication is currently managing his condition. He saw E.W.J. and M.R.J. as being very similar in their development and needs; stating, “the only variable is age”.

[190] Dr. Jamieson has always found S. to be a normal healthy infant, meeting her developmental milestones. He has always found J.R. to be cooperative, mindful of his direction and demonstrating a bond with and affection for each of her children. He has never met R.J. or J.S. During the summer of 2014, he noted strong attachment between M.R.J. and his foster mother.

[191] Dr. Jamieson’s recommendation for all three children was the same. The children need consistency in their day to day life. Each child needs to be raised in a stable family setting.

B.M., G.O., and W.D.

[192] A foster parent from each of the three children’s placements testified as to the children’s current progress, personalities and issues. Each one demonstrated a real interest and affection for the child in their care. Each presented their evidence in a balanced, nonjudgmental way.

[193] B.M. and her husband have been M.R.J.’s foster parents for two significant periods in his life – from September 2011 until August 31, 2012 and from November 13, 2013 until present. Ms. B.M. confirmed her family’s long-term commitment and for her personally, a great love for M.R.J. She emphasized how close she and her husband are to M.R.J. despite the degree of difficulty of his care and despite his episodes of becoming physically aggressive, especially towards her.

[194] Ms. B.M. described M.R.J. in positive terms, noting how intelligent, kind and protective he is - “with the heart of a lion”. While she notes it has been harder for him to settle into her family’s home on this occasion, the current therapy with Dr. Menendez appears to be providing him support, and his behaviour and attendance at school are improving.

[195] There was no criticism by Ms. B.M. of any of M.R.J.’s family members. She indicated that she does not have much communication with J.R. and was unaware as to why she no longer provides the transportation for visits. She noted that she took M.R.J.’s earlier stories of J.S. punching him with “a grain of salt”. She was quite positive about the visits between M.R.J. and R.J. She believes M.R.J. now sees R.J. as a normal father after the visits and he is interested in a relationship with him.

[196] Ms. B.M. confirmed that she and her husband are interested in adopting M.R.J. but if that is not possible, they are committed to providing him with long term care. Recently, M.R.J. advised her that he could go back to his family when he is 13 or at least 18, but he was staying until he was 32.

[197] G.O., E.W.J.’s foster father, explained that due to the structure of his family he is E.W.J.’s primary caretaker. Currently E.W.J. is getting into a lot of trouble at school and as a result there are constant emails between him and E.W.J.’s Grade Two teacher. E.W.J. is very busy and needs a lot of parental attention and physical affection.

[198] E.W.J. is currently having trouble sleeping so he and Mr. G.O. are trying yoga techniques to fall asleep. Visits with his family can cause an increase in his soiling behaviours. While E.W.J.’s bond to his siblings is real, and he looks forward to visits, he is very jealous of the other children.

[199] Mr. G.O. noted that E.W.J. likes Dr. Menendez and looks forward to going to his appointments with him. Mr. G.O. confirmed that he and his wife cannot offer a permanent home to E.W.J.

[200] W.D., fostering with his wife for 40 years, are currently taking care of S. and an even younger infant. Mr. W.D. is S.’s primary caregiver, displaying affectionate and detailed knowledge of her preferences and activities. S. is meeting all her developmental milestones now that a minor issue of how she held and used her arm has been resolved. She is a good eater and sleeper and very busy. Mr. W.D. confirmed that he and his wife are not in a position to adopt S.

[201] Mr. W.D. reported that S. is always happy to see her mother, excited at the beginning of visits and briefly tearful when J.R. puts her in her car seat at the end of visits. He has found J.R. to always be cooperative, on time and willing to exchange information with him about the child. Recently, he assisted J.R. when her father became ill at the commencement of a visit, transporting her to the hospital so she could remain with her father.

Analysis

Statutory Findings:

[202] The statutory findings as required by subsection 47 (2) of the Child and Family Services Act relating to the three children are found by me to be as set out in Schedule A attached hereto.

Are the children in Need of Protection?

[203] The Society seeks a finding that M.R.J. and E.W.J. continue to be in need of protection on the original grounds, most recently in the order of Justice McKelvey dated 11 October 2012 and that S. be found to be in need of protection pursuant to subsection 37 (2) (b) (i) and (ii) and subsection 37 (2) (g) of the Act as follows:

(2) Child In Need Of Protection – a child is in need of protection where,

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

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

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

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

[204] The risk of harm under subsection 37 (2) (b) of the Act must be real and likely, not speculative. Children’s Aid Society of Ottawa – Carlton v. T. and T., 2000 21157 (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[205] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm. Children’s Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 (O.C.J.), affirmed 2005 43289 (ON SC), [2005] O.J. No. 4718 (S.C.), affirmed 2007 ONCA 474, 2007ONCA 474, leave to appeal to SCC refused.

M.R.J.

[206] No counsel herein seriously disputed that M.R.J. remained a child in need of protection. On the evidence as set out above, the onus remaining on the Society on a balance of probabilities, I find that M.R.J. remains in need of protection for the following reasons:

a) M.R.J. has witnessed and otherwise been exposed in the past and since his last return to his biological family to domestic violence, first between his mother and father and then between his mother and J.S.

b) M.R.J. has not had his basic physical and emotional needs met by his parents, J.R., and R.J. and then his mother J.R. and J.S., as these adults were focused on their personal relationships, multiple separations, involvement of the police, reconciliations, so that M.R.J.’s life has been chaotic and without stability.

c) Too often, even since his last return to his mother’s home, the family’s chaotic lifestyle has resulted in neglect of M.R.J.’s hygiene, lack of food in the house, inconsistent supervision and discipline and insufficient attention and support to school attendance and studies.

d) M.R.J. has seen his mother victimized by sexual assault, has been a victim of sexual assault himself, and has not had timely access to counseling or treatment so that his trauma has remained unresolved.

e) J.R. has not sufficiently followed through with services and remains resistant to any further counseling or treatment, which would assist her to cope better with the traumas she has faced and consequently be more able to focus and meet M.R.J.’s needs.

f) The chaotic lifestyle of the adults, most recently in 2012 and 2013, has resulted in numerous changes of residences, schools and his removal and return to his family, all of which have resulted in disruption for him and an inability to adjust to or tolerate change.

g) M.R.J.’s emotional health, developmental progress, including his ability to control his anger and otherwise “self-regulate” and his education have suffered as a result of interruptions in his caregiving and delays in his diagnosis and treatment.

h) M.R.J.’s relationships with his siblings have been made complicated and been damaged by interruptions in his placements and the above noted deficiencies in caregiving.

i) As a result of these experiences, M.R.J. has difficulty accepting nurturing and direction from caregivers and is at risk of being unable to being maintained in a family relationship.

E.W.J.

[207] On the evidence as set out above, the onus remaining on the Society on a balance of probabilities, I find that E.W.J. remains in need of protection for the following reasons:

a) E.W.J. has witnessed and been exposed to, both in the past and since his last return to his family of origin, domestic violence first as between J.R. and R.J. and then as between J.R. and J.S.

b) E.W.J. has not had his basic physical and emotional needs met, first by his parents J.R. and R.J. and then by J.R. and J.S. as these adults have been focused on their intimate relationship, multiple separations, reconciliations, police involvement so that E.W.J.’s life has been chaotic and without stability.

c) Too often, even since his last return to his mother’s home, the family’s chaotic lifestyle has resulted in neglect of E.W.J.’s hygiene, a lack of food in the house, inconsistent supervision and discipline and insufficient attention and support to school attendance and studies.

d) The chaotic lifestyle of the adults, most recently in 2012- 2013, has resulted in numerous changes of residence, schools and his removal and return to his family, all of which have resulted in disruption for him and an inability to adjust to or tolerate change.

e) J.R. has not sufficiently followed through with services and remains resistant to any further counseling or treatment which would assist her to cope better with the trauma she has faced and consequently be more able to focus to meet E.W.J.’s needs.

f) E.W.J.’s emotional health has suffered. He experiences anxiety, hyper vigilance and hyperactivity and wetting and soiling behaviours that have been resistant to resolution. His developmental progress and his education have suffered as a result of interruptions in his caregiving and delays in his diagnosis and treatment.

g) E.W.J.’s relationships with his siblings have been complicated, he suffers from jealousy which has been caused or complicated by interruptions in his placements and the above noted deficiencies in caregiving.

h) As a result of these experiences, E.W.J. is confused about his place in his family and experiences that he cannot rely on family members as a resource to meet his needs.

S.

[208] On the evidence as set out above, the onus remaining on the Society on a balance of probabilities, I find that S. is a child in need of protection pursuant to Subsection 37 (2) (b) (i) and (ii) and (g) for the following reasons:

a) S. has been exposed to domestic violence, even before her birth, between her parents J.R. and J.S.

b) Since her birth, S.’s parents’ relationship has been volatile, with arguments and separations and their focus has been on their intimate relationship as opposed to providing a stable and consistent environment to raise their daughter.

c) Both S.’s parents have been involved in several police investigations, incurred criminal charges and in the case of her father, J.S., been recently convicted of additional criminal offenses and been incarcerated which has disrupted the ability of both parents to meet S.’s needs.

d) S.’s father, J.S., has been addicted to the use of illegal drugs for over 10 years and he has not brought evidence forward, although obligated by court order to do so, that he is no longer using illegal substances and could provide a safe environment for his daughter.

e) S.’s father, J.S., has failed or refused to seek and complete adequate counseling and treatment that would provide necessary assistance to him in order that he maintain sobriety and be able to provide a safe and nurturing environment for his daughter.

f) S.’s father, J.S., has breached and/or failed to comply with numerous court orders and obligations so there is a real risk he will continue to do so and that any provisions structured for his daughter’s safety will not be complied with by him.

g) S.’s mother, J.R., has not sufficiently followed through with services and remains resistant to any further counseling or treatment which would assist her to cope better with traumas she has faced and consequently be more able to focus and meet the needs of S.

h) S.’s mother, J.R., has failed to comply with numerous court orders so there is a real risk she will continue to so do and that any provisions structured for her daughter’s safety will not be complied with by her.

Disposition:

[209] At this point in the analysis, I will not be misunderstood, the onus of proof here is and remains, on the Society – it never shifts to the parents. As each child has been in care in excess of the statutory time lines, the court’s disposition options in this case are set out in subsection 57 (1) and subsection 70 (4) of the Act. Subsection 57 reads as follows:

Order where the child in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interest:

Supervision order

1. That the child be placed in the care and custody of the 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.

Society Wardship

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 12 months.

Crown Wardship

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

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of 12 months. R.S.O. 1990,c. C. 11,s. 57 (1); 2006,c. 5, s. 13 (1 – 3).

Expiry of Orders

70 (4) Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interest to do so.

[210] The court can also make a custody order in favor of any person pursuant to section 57.1 of the Act, with that person’s consent. This is not an available option here for M.R.J. or E.W.J. as there are no caregivers who consent to be custodial parents under this section. J.S.2 has consented to being considered as a placement, but she was unclear as to whether she sought to be the custodial parent for the child, S. and this plan will be discussed below.

[211] Subsection 57 (2) of the Act requires that I ask the parties what efforts the Society or another agency or person made to assist the child before intervention under Part III of the Act.

[212] Subsection 57 (3) of the Act requires that I look at the least disruptive alternatives before removing a child from the care of the persons who had charge of the child immediately before intervention, unless I determine that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interest, protection and well-being of the child. Children’s Aid Society of Toronto v. E.U. et al. (2014), 45 R.F.L. (7th) 413.

[213] Subsection 57 (4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care.

[214] In determining the appropriate disposition, I must decide what is in the child’s best interests. I will consider the criteria set out in subsection 37 (3) of the Act in making this determination. Subsection 37 (3) reads as follows:

Best interests of the child

37 (3) Where a person is directed in this Part to make an order or determination in the best interest of the 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 the parent in a secure place as a member of the family.

6. The child’s relationship by blood or through an adoption order.

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 the 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 of 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 justify the finding that the child is in need of protection.

13. Any other relevant circumstance.

[215] I am guided by paragraphs 116-118 of Justice Sherr’s decision in Children’s Aid Society of Toronto v. E.U.:

A Crown Wardship order is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies.

In determining the best interests of the child, I must assess the degree to which the risk and concerns that existed at the time of the apprehension still exist today. This must be examined from the child’s perspective. Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994, 2.S.C.R. 165.

A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of the parent’s desire to resume care of the child. There must be an arguable notion discernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of the child from their care and has developed some new ability as a parent. Children’s Aid Society of Toronto V. R.H., 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.).

Efforts of the Society to Assist the Parents

[216] The mother argued that the Society did not do enough to help her or provide counseling for the children. The father, R.J., argued that the Society ignored his request for access and delayed implementation of the court order. S.’s father, J.S., faulted the Society for not getting to know him or counsel him and for not including him in a parenting capacity assessment.

[217] I find that there was a delay in the identification and retaining of a play therapist to assist M.R.J. in dealing with numerous traumas he had experienced, including being the victim of a sexual assault. In addition, I find that the Society did not follow up in a timely fashion on the section 54 assessment’s recommendation that E.W.J. be further assessed and counseling be structured thereafter to meet his identified needs. These delays were contributed to by the complexity of the children’s history, the mother’s attitude and focus on other things, and funding issues. I will take into account that both the Society and the mother are responsible for the negative effect that these lack of services have had on both these children.

[218] Beyond that, I find that on more than one occasion, the Society did provide vouchers, groceries, backpacks, beds, bedding and locks to the mother, and provided transportation to appointments (not always successfully but more often than not) and volunteer drivers for access visits. The Society also made referrals to Kinark, Dr. Nugent, Family Preservation, and the Foster Treatment Program. The Society held plan of care meetings and the mother was invited to attend. Society workers attended at doctors and dentists appointments for the children.

[219] J.R. accessed services as well, including obtaining funding from the Criminal Injuries Compensation Board for play therapy for M.R.J. She arranged two appointments with a play therapist for M.R.J. She attended Dr. Jamieson’s office to review M.R.J.’s medication. At one point she attended counseling at the Elizabeth Fry Society but I find she let this fall away when she again became focused on her relationship with J.S. Further I find that J.R. would not follow through with services if they were arranged or monitored by the Society due to her ever-growing distrust. As a result I find that beyond the consideration noted in paragraph 221 above, I cannot fault the Society and the responsibility for the lack of progress in developing coping and parental strategies must be attributed to J.R.

[220] R.J. is correct that there was an initial delay in the Society’s assessment of his request for access to his sons. However, given the length of time that he had not been available to visit with them, I cannot assess the Society’s delay as increasing the difficulty surrounding the reintroduction. Further, the complexity and the need for a clinically managed structure of the access was as a result of the historical behaviour of both R.J. and to a lesser extent, J.R. I am satisfied on balance that the Society took appropriate care and applied reasonable resources which assisted both children in navigating the reintroduction to a reasonably positive outcome.

[221] J.S. was not a participant in the section 54 assessment as both he and J.R. hid their intimate relationship from the Society and other counselors in the hopes that the children would be returned to the mother’s care and the Society would end their involvement with her. Neither do I find that the Society ignored or refused to engage with J.S. Even when he was not incarcerated and therefore available, he did not comply with requests to provide his criminal record - which was very relevant - nor follow through with a commitment he made to provide hair follicle testing. I reject his position that he should have only done so if the Society would first agree that he should be allowed to care for the children. Finally, this matter has been before the court many months and J.S. has never requested a parenting capacity assessment.

The Plans of Care

The Society’s Plan

[222] The Society’s plan for the child M.R.J. is to have him made a Crown Ward and be adopted by his current foster parents; as a result, an order silent as to access. The Society’s workers testified that the foster parents are committed to the child, despite his behavioural challenges and even explosive episodes directed towards them, and are prepared to continue to work with the psychologist to assist in M.R.J.’s difficult trauma therapy. The psychologist said M.R.J. needs permanency now.

[223] The Society’s plan for the child E.W.J. is to have him made a Crown Ward and be placed, when he is ready, with a permanent adoptive home; as a result, an order silent as to access. The psychologist who has just finished assessing E.W.J.’s needs noted that E.W.J. requires therapy to recognize that a family can be relied upon to be a resource. The psychologist said E.W.J. needs permanency now.

[224] The Society’s plan for the child S. is to have her made a Crown Ward and be placed as soon as possible in a permanent adoptive home; as a result, an order of no access is sought. Relying on the history of past parenting, the Society seeks to avoid the parents’ volatile relationship and chaotic lifestyle from interfering with S.’s current normal development and to prevent her suffering the trauma that all of her brothers have experienced.

[225] The mother, J.R. is critical of the foster parents of M.R.J. and E.W.J. She believes that M.R.J.’s foster mother is too indulgent of M.R.J. J.R. disagrees with the foster parents’ discipline of M.R.J. and avoids communicating information to them. J.R. does not approve of the care provided by E.W.J.’s foster parents. She is satisfied with the care that S.’s foster parents provide. To the extent he has ever expressed a view, J.S. supports J.R.’s position. I saw no evidence that would persuade me that J.R.’s views of either M.R.J.’s or E.W.J.’s foster parents are accurate.

[226] The father, R.J., is content that his sons be made Crown Wards but he seeks access to them. He is content with each of his sons’ current foster placements.

J.R.’s Plan

[227] J.R. seeks the return of all three of her children to her care: E.W.J. and S. immediately, and M.R.J. after a few months of Crown Wardship to allow the psychological therapy to be completed. J.R. wishes to parent with J.S. so that he can assist her with the children’s care.

[228] In September 2014, J.R.’s plan had changed as she had decided to co-parent with her mother, Mary Hughey. Evidence was anticipated to be led that these women’s previous difficult relationship had been resolved in order to advance the best interests of the children. J.R. would maintain her relationship with J.S. but he would not have care for the children. She would obtain any assistance she needed to deal with M.R.J.’s behaviour from her mother.

[229] In November 2014, J.R. amended her plan to parent E.W.J. and S. and eventually M.R.J. after he receives treatment, with the assistance of J.S. with whom she will cohabit in his mother’s residence in Madoc, Ontario. J.R. explained that she had had a disagreement with her mother over what she felt was her mother’s assault of her oldest son, B. When J.R. was not successful in removing B. from her mother’s care, she left that home and now says that she has a better relationship with J.S.’s mother than her own.

R.J.’s Plan

[230] R.J. consents to Crown Wardship for both his sons but seeks regularly scheduled and expanded access. In one year or so, when his affairs are in order, he intends to bring a status review to seek custody of both the boys.

J.S.’s Plan

[231] In the early part of the trial, J.S. indicated that he supported J.R.’s plan. In the latter part of the trial, J.S. stated he wished to co- parent both E.W.J. and S. with J.R.– and eventually M.R.J. when his behaviours allowed, at his mother’s, J.S.2’ home in Madoc, Ontario.

[232] In his counsel’s closing submissions, J.S. sought an order that E.W.J. and S. or at least, S. be placed with J.S.2. As Ms. J.S.2 recently received a “Métis card” and J.S. received one after the completion of trial, the court ought to apply “Gladue principles” in assessing the children’s best interest.

Benefits of J.R.’s Plans

[233] I find that J.R.’s plans would provide the following benefits to the children:

a) The children would reside with a biological parent.

b) The children would have access to their extended family.

c) The mother loves the children.

d) The children love their mother. E.W.J. and perhaps, on occasion, M.R.J. express that they wish to reside with their mother.

e) If the mother maintains an interest in her Métis heritage, the children would have an introduction to their culture.

f) The mother was cooperative with doctors and counseling services regarding the children; she could be of assistance in participating in the children’s treatment if the therapist so recommends.

Benefits of R.J.’s Plan

[234] I find that R.J.’s plan would provide the following benefits to the children:

a) M.R.J. and E.W.J. would have the benefit of knowing and interacting with their biological father.

b) R.J. loves his sons.

c) M.R.J. and E.W.J. are interested in having a relationship with their father.

d) M.R.J. and E.W.J. would have access to their extended family.

e) The father was cooperative with social workers and therapist and demonstrated a capacity to follow recommendations of clinically managed access; he could be of assistance in participating in the children’s future treatment, if the therapist so recommends.

Benefits of J.S.’s Plan

[235] I find that J.S.’s plan would provide the following benefits to the children:

a) S. would have the benefit of residing with her biological father.

b) E.W.J. would have the benefit of residing with his “father figure”, whom he loves and wishes to see.

c) The children would have the benefit of having access to their extended family.

d) J.S. has demonstrated parenting skills and the ability to direct the children.

e) If J.S. maintains an interest in his Métis heritage, the children would have an introduction to their culture.

Benefits of the Community Plan

[236] I find that proposed placement of E.W.J. and S. with J.S.2 would provide the following benefits to the children:

a) S. would have the benefit of residing with her biological grandmother.

b) S. and E.W.J. would have the benefit of access to J.R. and J.S.

c) The children would have the benefit of having access to their extended family.

d) S. would have the benefit of residing with cousins of her same age; E.W.J. would have the benefit of interacting with children of similar age.

e) J.S.2 appears to be competent and resilient; she has established a secure and appropriate home for her teenage daughter and two grandchildren.

f) If J.S.2 maintains an interest in her Métis heritage, the children would have access to their cultural heritage.

Deficits in the Community Plan

[237] For the following reasons, even though the onus remains on the Society, I find that the proposed community placement with J.S.2, with or without an order of deemed custody, does not sufficiently address the risks to any of the children, including S., nor will the plan fulfill sufficient criteria as set out in subsection 37 (3) to be in any of the children’s best interests:

a) S. does not know J.S.2 and has no attachment to her.

b) J.S.2 showed little interest in S. throughout her life to this point, and her first proposal was conditional on confirmation the child was her biological granddaughter.

c) E.W.J. does not know J.S.2 and has no attachment to her. E.W.J. has difficulty with sibling relationships and may have difficulty in finding a place with his sister’s grandmother’s family.

d) J.S.2 has had no experience in dealing with the behavioural issues of M.R.J. or the relationship issues between M.R.J. and E.W.J.

e) The community plan is vague as to who has decision-making authority over which children. Is J.S.2 in charge? Of S.? Of S. and E.W.J.? Does J.S.2 co-parent with J.S. or does he merely reside in the same house? What is J.R.’s role, if she resides there? Who will parent M.R.J. when he returns in a short number of months?

f) What happens to the children if there is a disagreement between the adults? If J.R. and/or J.S. leave the residence do any or all of the children leave with either of them?

g) Who has the responsibility and/or authority to monitor J.S.’s sobriety and lack of criminal activity? How would the consequences of any breaches be enforced?

h) Given the history of volatility between J.R. and J.S., the difficulty that J.R. has displayed in sharing authority with her mother for her son, B. and the fact that neither J.R. nor J.S. have had the opportunity to develop a working relationship with J.S.2, all of the uncertainties of the community plan listed above have a high risk of the children witnessing disagreements, power struggles and chaos.

i) Neither M.R.J. nor E.W.J. adjusts to change well and this plan would introduce new caregivers, many new family members, a new residence, new schools, and a new community. As Ms. J.S.2’ residence is for sale, many of these changes could change again in the near future.

j) While J.S.2 is well intentioned, the plan has too much potential for instability and fragmentation among the adults, who have historical issues and needs themselves. Attention on the children’s requirements would be diverted and the children’s best interests would not be met.

Deficits in the Parents’ Plans

[238] Even though the onus remains on the society, the evidence was overwhelming that each parent’s problematic behaviours and challenges leading to the children’s apprehensions remain extant and unresolved by each of their plans and proposals as set out below.

Deficits in J.R.’s Plans

[239] J.R.’s plans changed dramatically over the course of the trial. The changes were not as a result of her reassessment of the children’s needs but instead occurred as her interest narrowed evermore on her relationship with J.S. Then her plan shifted when her historically problematic relationship with her mother ruptured again and she lost her support system.

[240] J.R.’s relationship with J.S. remains volatile and dysfunctional. It is likely they will continue the pattern established by the evidence over the last three years of arguments, separations and reconciliations, which have a direct impact on the children’s quality of life.

[241] I find as a fact that J.S.’s May 25, 2013 assault of J.R. was significant; he hit her, pushed her down and removed money from her clothing. M.R.J. and E.W.J. witnessed this. These children’s previous trauma from exposure to domestic violence was repeated by these parents. That both parents lied and minimized these facts puts these children at high risk for a repetition of witnessing further assaults, police involvement and recantations.

[242] J.R.’s lack of insight into the reality of her relationship with J.S. and its effect on her children demonstrates that she is also in error that she does not require any further personal counseling or little couples’ counseling. As it is unlikely that she will commit herself to counseling in the future, her lack of insight will continue and the children would continue to be at risk.

[243] J.R.’s relationship with J.S. has led her to change her residence numerous times, hide her real circumstances from her father (who thereafter could not be a support to her), involvement in criminal investigations, including having charges laid against her, and it is too close in proximity to the drug culture and its dangers. Her children have been exposed to these risks.

[244] When J.R. is involved in the “lifestyle” described above, she is distracted from ensuring the children are adequately supervised, are properly clothed and fed, their school attendance is adequate and their studies are monitored. On occasion, even their medical needs and the administration and monitoring of necessary medication have been neglected by their mother. J.R.’s life becomes chaotic and the children’s basic needs are at risk of not being met again.

[245] There is considerable persuasive evidence that J.R. cannot proportionately discipline and control the behaviours of each of the children – not just M.R.J. On occasion she has demonstrated good parenting techniques and insight into her children’s cues and methods to redirect their behaviours. However, she has been unable to consistently apply these parenting skills. She becomes overwhelmed and the children’s behaviour escalates even further. As nothing has been done to address this pattern, it is most likely to continue.

[246] J.R. demonstrates an inability to resolve issues in her relationship with her own mother. This continues to plague her and causes turmoil in her life and the lives of her children, including B., who the children here have regard for. They remain at risk of emotional harm.

[247] Further, it is unlikely that J.R. would be able to establish a positive relationship with J.S.2, a strong-willed, maternal figure who would exert authority over any child in her care – just as J.R.’s mother does over B.

[248] In the past, J.R. has shown poor judgment in her life plans to move to a new residence, for example, leaving her father’s home in March 2013, without accurately assessing the impact on the children (such as failing to consider the impact of changing schools in mid-semester, or inadequately factoring in the difficulties in accessing the children’s needed doctors’ appointments and other therapies). Her new plan to live in Madoc, one hour away from the children’s schools, doctors, and therapists and her own support systems when neither she nor J.S. can drive a motor vehicle, again repeats a pattern of poor judgment.

[249] Further, the chances that the new plan would be short-term or at least subject to change are high. The volatility in the relationship of the adults who have never lived in the same residence would likely result in more moves. In addition, J.S.’ home is for sale and a change of residence is likely – perhaps even necessitating another change of school for the older children. There is little stability, let alone permanency for the children in this plan.

[250] J.R.’s relationship with the Society has, at least for the last year, been completely negative. She has transferred all responsibility for her difficulties, J.S.’s homelessness and the children’s negative behaviours, to the Society. Even prior to the last apprehension, J.R. attempted to restrict the number of home visits and child interviews that Society workers could schedule or that she would be available to attend.

[251] Since the children’s apprehension, J.R. has refused or neglected to meet with the Society workers or attend all Plan of Care meetings. Yet, J.R. complains about the lack of information regarding the children or difficulties in the scheduling of their various appointments. Added to this, is J.R.’s lack of honesty with the Society about her personal circumstances, especially surrounding her relationship with J.S. and the contact she allowed him with the children.

[252] As a result of the course of conduct set out in the last two paragraphs, it is unlikely the court could structure any terms of supervision to which J.R. would comply or that would assist the children.

The Deficits of R.J.’s Plan

[253] R.J. has stated that he consents to his sons being made Crown Wards and that he is content with each of their current placements. He has also said that he intends in a year or so, although at one point he mentioned “July 2015”, to seek custody of the boys. His own circumstances, which he admits must be consolidated, prior to him commencing a review of the boys’ status, have recently had significant changes. R.J.’s disclosure of how little time he has spent in meeting with his psychologist in the last stressful year was of concern. Stabilizing his life may take longer then he now estimates.

[254] M.R.J. and E.W.J. need permanency and that must be defined as a family placement that lasts throughout their dependency and certainly more than “a year or so”. I find that R.J.’s plan to review the children’s Crown Wardship orders does not recognize the trauma that both of these children have experienced in their life – including trauma relating to the behaviours of their father – and would not provide them with the permanency they both require now.

Deficits in J.S.’s Plan

[255] J.S.’s long history of drug addiction and criminal activity represents a significant barrier to his being able to provide a secure and nurturing environment for any child. There is little in the evidence presented in this lengthy trial that provides any reasonable assurance that J.S. has changed or can change these habits which represent such a significant risk.

[256] If J.S. maintains his interest in his Métis heritage (which apparently was consolidated by his obtaining a Métis registration or “card” after the completion of trial), this may provide him with a new focus and a pathway out of his previous associations and conduct. While the court wishes him well, the children, even his young daughter without special needs, cannot wait while he develops a positive lifestyle and circumstances that would provide a safe place for any of the children.

[257] Native heritage is very important to children, but it cannot override other needs that each specific child has; these children must be protected from a volatile and unstable future so that the traumas of the past are not repeated. Regrettably, the application of “Gladue principles” would not accomplish the security that each needs.

[258] J.S. assaulted J.R. when she was pregnant with his child. Since then he has lied about the extent of his misbehaviour, his sobriety at the time, the reasons for his assault, and the effect on the children. This course of conduct increases the likelihood that it will be repeated and increases the risk to any child in the care of J.S.

[259] While there is evidence that J.S. has good parenting skills and can manage children’s behaviour, he has never been available for sufficient periods of time to consistently raise a child himself due to his addictions and criminal activities which even recently have resulted in lengthy periods of incarceration. Further, his attempts to assist J.R. to care for her children and manage their behaviours have been interrupted so often by his incarcerations or the parties’ separations that no quality of life was provided to the children or consistent progress in the resolution of their behavioural difficulties.

[260] J.S.’s belief that he does not require treatment for his 10 year drug addiction or that one six hour program at Fourcast is adequate to “give him the tools he needs” to maintain sobriety is unrealistic. There is too great a risk that without his commitment to ongoing intensive treatment or therapy his dependence on illegal substances will recur. This would put any child in his care or even in the same residence, at risk.

[261] Similarly, J.S.’s desire to continue his relationship with J.R., which has been volatile, inconsistent and dysfunctional, without any commitment to complete counseling programs first and ongoing couples counseling consistently thereafter, represents too great a risk that he would return to patterns of behaviour when interacting with J.R. that would again cause their relationship to have a negative impact on their own quality of life and any child that was in the care of either party.

[262] According to evidence, J.S.’s relationship with his mother has neither been recent nor close. His plan to reside with her again after so many years and to perhaps co-parent one or two children with her is too vague, too untested and too risky.

[263] J.S. has a long history of breaching and not complying with numerous court orders. He has not complied with various terms of the Society’s supervision orders and most specifically the court order for him to provide hair follicle drug testing. His attitude towards the Society is negative, and he has stated that he will only comply with court orders if he gets something in return. I cannot find that he would deem it necessary for any agency to monitor his future sobriety. With this attitude it would be unlikely he would cooperate with the Society or comply with terms of a supervision order. Any child in his care would therefore be at risk.

The Best Interest Criteria of Subsection 37 (3) applied to the Assessment of the Plans

M.R.J.

[264] Before completing this analysis, I reviewed the evidence that established that J.R. loves M.R.J. and he loves her and members of his extended family. In applying the provisions of subsection 37 (3) of the Act to the plans for M.R.J. I find on balance that:

1. The Society’s plan will better meet M.R.J.’s physical, mental and emotional needs. He requires the working relationship he has with his foster parents in order to continue to attend school, control his challenging behaviours and engage in difficult trauma therapy.
2. M.R.J.’s current stage of development requires the certainty of the Society’s plan and the maintenance of the relationship and reliance he has established with his long-term foster parents to ensure his progress is positive, pro-social and healthy.
3. The Society’s plan will better meet M.R.J.’s needs for continuity and a stable place in a family through adoption.
4. A delay in an anticipated return of M.R.J. to his mother’s care would cause further instability in his life and could negatively impact the efficacy of his current trauma therapy.
5. The risk of placing M.R.J. with J.R. and/or J.R. and J.S. is unacceptably high.
6. Taking into account the recent nature and level of involvement of both families in their Métis heritage, the clarification of M.R.J.’s Métis lineage can be adequately addressed in any of the plans proposed, even the Society’s, so that his cultural heritage can be preserved.
7. The brevity of extension of the order I could structure given the statutory time limits would not provide sufficient support or adequate time to monitor and adjust that support for M.R.J. upon the return to his mother’s care.
8. A different time of M.R.J.’s return than that of any of his siblings would complicate his already difficult relationship with E.W.J. and perhaps S.
9. M.R.J.’s primary need is for permanency now and the best plan to accomplish that goal is the Society’s.

[265] The least disruptive disposition for M.R.J., having reviewed the summary of the criteria of his best interest, is to make him a Crown Ward. I so order.

E.W.J.

[266] Before completing this analysis, I reviewed the evidence that establishes that J.R. loves E.W.J. and E.W.J. loves his mother and sees J.S. as a “father figure”. In applying the provisions of subsection 37 (3) of the Act to the plans for E.W.J., I find on balance that:

1. The Society’s plan will better meet E.W.J.’s physical, mental and emotional needs. E.W.J. requires an environment that insulates him from stress and anxiety and monitors closely his soiling and wetting behaviours. Neither J.R.’s nor J.S.’s plan would have the capacity to provide this support.
2. The Society’s plan will better meet E.W.J.’s physical, mental and emotional level of development. E.W.J. needs a family structure that he can rely on to solve problems and provide support to him. Neither J.R.’s nor J.S.’s plan would have the capacity to provide this reassurance.
3. The Society’s plan will better meet E.W.J.’s need for continuity and a stable place in a family through adoption. Even though E.W.J. will have to move once, it is more likely the Society’s plan will have less frequent changes than any other plan.
4. The risk of placing E.W.J. with either J.R. and/or J.S. is unacceptably high.
5. Taking into consideration the recent nature and degree of involvement by both families in their Métis heritage, I find that with the clarification of E.W.J.’s family roots, any of the plans, including the Society’s, can accommodate the preservation of his cultural heritage.
6. E.W.J.’s views and wishes are confused and when he does express a desire to return to live with his mother or see J.S., his behaviours, especially wetting and soiling, reveal he is under stress and struggling with loyalty issues.
7. E.W.J. exhibits high levels of anxiety and fear. He must be protected from exposure to any further conflict or volatility. The Society’s plan best addresses E.W.J.’s need for prevention from further trauma than either of the plans of J.R. or J.S.
8. E.W.J. requires a permanent plan now. J.R.’s plan and/or J.S.’s plan are subject to too many changes and the potential for too much instability. The Society’s plan is more likely to be permanent more quickly.

[267] The least disruptive disposition for E.W.J., having reviewed the criteria of his best interests, is to make him a Crown Ward. I so order.

S.

[268] Before completing this analysis, I reviewed the evidence that establishes that J.R. loves S. and that a bond is developing between them. I find that J.S. has pride in and regard for his daughter, S. In applying the criteria of subsection 37 (3) of the Act to the plans for S., I find on balance, that:

1. S. needs a place in a family that will ensure that she never witnesses one of her parents assaulting the other, destroying family property, arguing with one another so frequently that they separate from each other, then reconcile, then argue again. The absence of this pattern constitutes experiencing a secure place in a family; neither of S.’s parents can provide that for her. The Society’s plan could accomplish this.
2. S. requires her physical, mental and emotional needs met in a timely way so that she never becomes anxious or frightened that she is uncared for or unsafe or unloved. The Society’s plan will best provide parents who will be able to provide this care and to be focused on S.’s needs, not their own.
3. Even though S. will have to make one move to a new family, the Society’s plan will better meet her needs for continuity and a stable place in a family through adoption. Her parents’ various plans have too much potential for multiple changes.
4. The risk of placing S. with either J.R. and/or J.S., or both, is unacceptably high.
5. Taking into consideration the recent interest and little previous involvement of both families in their Métis heritage, the clarification of S.’s lineage will allow any of the current plans, including the Society’s, to preserve her cultural heritage.
6. Even though S. is only 18 months old, there can be no further delay in her finding a permanent place in a family. It is in her best interest that this be in an adoptive home.

[269] The least disruptive disposition for S., having reviewed the criteria of her best interest, is to make her a Crown Ward. I so order.

Access

The Law

[270] After an order of Crown Wardship has been made, any previous order for access to the child ceases pursuant to the operation of subsection 59 (2) of the Act:

Termination Of Access To Crown Ward – where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

[271] At this point the entire focus of the analysis centres on the child and his or her needs. The onus, which is a presumption against access, (Children’s Aid Society of Niagara Region v. M.J., 2004 2667 (ON SC), [2004] O.J. No. 2872), then shifts to the parent, on a balance of probabilities, to fulfill the test in subsection 59 (2.1) of the Act:

Access: Crown Ward – A court shall not make or vary an access order made under section 58 with respect to as Crown Ward unless the court is satisfied that,

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

b) the order of access will not impair the child’s future opportunities for adoption.

[272] Each parent, and more importantly, all of the children, must understand that not only is the previous structure of the former access visits ended, but also the rationale of maintaining or enhancing the level of their relationship with a child until the parent is ready to have the children returned to their care no longer exists. Any future access, if it is to be ordered, must be to achieve for the child a different benefit or goal.

[273] The meaning of the phrase “beneficial and meaningful” was explored by Justice Quinn in the Children’s Aid Society of Niagara v. J. (M.), 2004 2667 (ON SC), [2004] O.J. No. 2872 at paras. 45-47 as follows:

What is a “beneficial and meaningful” relationship in clause 59 (2) (a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous”. A “meaningful” relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child.

I read clause 59 (2) (a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[274] Justice Sherr, in Children’s Aid Society of Toronto v. E.U. at paragraph 224, explored how the openness amendments to the Act changed the context of how Subsection 59 (2.1) should be applied:

An access order will no longer preclude a child from being placed for adoption. If the society serves a Notice of Intent to place a child for adoption, the access order will terminate and the person having the right of access may apply to the court for an openness order. For the openness amendments to be meaningful, the court should consider the future benefits of an openness order in assessing if the parents’ relationship with the child is beneficial and meaningful.

[275] In the above analysis, Justice Sherr quoted an earlier decision by Justice Ellen Murray in Catholic Children’s Aid Society v. M.M., [2012] O.J. No. 3240 (Ont. Ct. J.), reinforcing that the amendments introduced new elements into the above noted test as a court does not have to choose between the security of an adoption placement and the prospect of having some contact with his biological family. Justice Murray’s view was that this consideration should be applied to both parts of the test and, in considering the “beneficial and meaningful” portion maintaining “a connection and knowing your roots” would be a significant factor.

[276] Justice Murray in Children’s Aid Society of Toronto v. C.J., 2014 ONCJ 221, clarified her view of how the openness amendments impacted the second prong of the test:

These amendments did not change the provisions of section 59 (2.1). A person seeking access to a Crown ward must still establish not just that the order will not prevent an adoption, but that it will not “diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption”.

However, it has been recognized that the amendments allowing the possibility of an openness order for an adoptive child do affect the analysis to be conducted on the second prong of 59 (2.1) in some respects, in that a court does not have to choose at this stage between adoption and some contact between a parent and biological family. A court asked to make an access order for a Crown Ward will be aware that such an order will open the door to an openness application when a Society proceeds with its plan for adoption. The possibility of the litigation in such an order may restrict the child’s opportunities for adoption. [Footnotes Omitted.]

[277] In Catholic Children’s Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 at para. 71, Justice Penny Jones summarized recent case precedent setting out reasons for rejecting claims for access on the second prong of the test, including that the prospective adoptive parents might be deterred from offering their home, by the uncertainties and delays in the prospect of future litigation or the difficulties arising from the structure of visits or the personalities of the parents they would then have to deal with in an openness order. She then emphasized:

Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements might find their access requests refused because of their past disruptive behaviour. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child’s future opportunities for adoption.

[278] While the openness amendments do make all these adjustments to the context in which the test is to be considered, I am of the view that the onus is not removed from the parent to demonstrate that each component of the test provides to the child a significant demonstrable benefit on balance, as defined by Justice Quinn, see paragraph 273 above.

[279] Justice Penny Jones also noted in Native Child and Family Services of Toronto v. J. E.G., 2014 ONCJ 109 at para. 81, that even if access is granted to a Crown Ward, it is a “qualitatively” different order than before; quoting comments by Justice Clay in Children’s Aid Society of the Region of Peel v .A.R., [2013] O.J. No. 2969 (Ont. Ct. J.):

The court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother’s care. Part of the reason for access prior to a Crown Ward disposition is to work on reintegration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

[280] In Children’s Aid Society of Toronto v. E.U., Justice Sherr summarized recent case precedent that emphasized that while certain forms of access might deter future adoptive applicants, other forms of contact or communication, for example cards and letters, would not and could be ordered.

[281] In reviewing the provisions of the openness procedure, Justice Sherr emphasized at paragraph 234:

The distinction between who has been granted an access order (the access holder) and who is the person with respect to whom an access order has been granted (the access recipient) has now become a critical consideration because only the access holder has the right to bring an openness application if served with a Notice of Intent to place a child for adoption. The Access Recipient only has the right to be given notice of the society’s Notice of Intent to place a child for adoption. This distinction is set out in subsections 145.1 (2) and (3) of the Act…

[282] Justice Sherr also identified a recent trend in counsel’s positions arising out of the above distinction at paragraph 236:

The Office of the Children’s Lawyer is now routinely seeking reciprocal access orders in crown wardship cases to ensure that the child is not just an access recipient, but an access holder who will have the right to bring an openness application if the society serves as Notice of Intent to place for adoption. Such a reciprocal order was made by Justice Carol Curtis in Catholic Children’s Aid Society of Toronto V. A.M.Y., [2013] O.J. No. 5230 (Ont. Ct. J.).

The Parties’ Positions

[283] The Society asks that the orders relating to M.R.J. and E.W.J. remain silent on the issue of access. This would allow the Society to permit the participation of any family member or sibling in clinically managed therapy for both boys as recommended from time to time, by each of their treatment providers. For S., the Society sought an order of no access to facilitate the child’s immediate placement for adoption.

[284] The society submitted that no person had met the test in subsection 59 (2.1) of the Act. Citing Children’s Aid Society of the Niagara Region v. J.C. (2007), 2007 8919 (ON SCDC), 36 R.F.L. (6th) 40, the Society noted that an order that remained silent does not preclude the Society from permitting siblings in its capacity as custodial parent of Crown Wards to have contact with each other, even after the child seeking the access has been placed for adoption.

[285] J.R. sought access to M.R.J. and E.W.J., if they were Crown Wards, each weekend from Friday night until Sunday night. For S., even if a Crown Ward, J.R. was seeking her daughter to be placed in her care every day, all day. The mother was confident she had met the test in all its aspects and was of the view that she was best able to participate in the boys’ therapy and provide certainty that all three children would have knowledge of their native heritage.

[286] R.J. sought the re-instituting of clinically managed access between himself and his two sons, expanding as soon as recommended by their therapist, to unsupervised and then weekend access. He acknowledged the recommendation of the psychologist that the boys needed a period of hiatus of contact with their parents to ensure they “experienced the permanence” of their changed status. He was of the view that as he had not seen his sons for a number of months the period of his visits’ hiatus could be shorter and cards and letters could be sent during the delay in restarting the clinically managed visits. As soon as the weekend visits went smoothly and the recent gains in his life were further consolidated, R.J. intended to seek custody of his sons.

[287] J.S. did not specify his request to access for any of the children if they were made crown wards as he sought placement of all of them or at least S. in his care or in his mother’s care.

[288] The Office of the Children’s Lawyer supported the Society’s position that there should be an order of no access to the child S. as no party had met the test. The Children’s Lawyer was not in accord that the order for Crown Wardship of either M.R.J. or E.W.J. remain silent on the issue of access as that created uncertainty for the children and left too much discretion to the Society.

[289] The Children’s Lawyer sought, without analysis or any reference to the test, an order for both M.R.J. and E.W.J. of Crown Wardship with “clinically managed access to his extended family (including sibling B. and each other, parents and grandparents) that is determined and scheduled strictly in accordance with his therapeutic treatment needs”.

Analysis

The Parents as Access Holders

Beneficial and Meaningful

[290] J.R. loves her children. She is a kind and nurturing person. Her children love her. J.R. has a meaningful relationship with each of these three of her children.

[291] J.R. would provide a link to her children’s biological family and native heritage. This would be a benefit to each of the children.

[292] Sometimes, J.R. can provide good care and affection to her children. She has difficulty in providing consistent nurturing to more than one child at the same time. On occasions, she identifies or expresses to others, including M.R.J., that her difficulties with parenting are due to M.R.J. or his behaviour or his lack of treatment. This relationship cannot be beneficial to M.R.J.

[293] On occasion, J.R. appears to favor E.W.J., but sometimes he has to compete for her attention. E.W.J. can be jealous of S. or M.R.J. or even B. E.W.J. loves his mother and wishes to return to live with her but he does not see her as solving his problems or as a resource. This relationship cannot be beneficial to E.W.J.

[294] J.R. is affectionate and nurturing towards S. S. looks forward to her visits with her mother and is sad to leave her. S. is developing an emotional dependency on her mother. Recently, J.R. has interrupted her opportunity to care for S. in order to protect and care for J.S. Her current plan emphasizes her need to be with J.S. even though it is less familiar or convenient for her children. It would not be beneficial to S. to develop an emotional dependency on and relationship with J.R., when her mother’s nurturing is now focused on her adult partner.

[295] On balance, I find that J.R. has a relationship with each of these three children that is meaningful to them but not beneficial for them for various reasons specific to each child. As a result I have determined that J.R. does not meet the first part of the test to be an access holder within the meaning of the Act.

[296] R.J.’s relationship to both his sons has a potential to be beneficial and meaningful for them.

[297] However, in applying Justice Quinn’s above definition of “beneficial and meaningful” as “significant” and “advantageous” there are currently almost as many negative aspects to these relationships as positive ones. The positive ones being the biological connection and the interest that the father is demonstrating to his children in attempting to repair something lost or previously broken. The negative aspects of the relationship are that the children’s memories (especially M.R.J.’s) or impressions, (especially E.W.J.’s) of their father were frightening, “scary” or “bad”. At this stage of the test, the focus is on the children’s perspective so it is not material whether these memories are accurate or fair – the relationship must be “significant” and “advantageous” to the children. This must mean an overall positive connection must exist from the children’s point of view.

[298] Furthermore, I accept Justice Quinn’s exploration of the test that requires that the parent demonstrate that it is the current not a future relationship that meets the onus. I find as well that R.J.’s estimate of the time required to repair the relationship with each of his sons is unrealistic and calculated from his perspective not each child’s. It could be that after more clinically managed visits each of the children’s bond to their father is repaired but at this point the relationship is less than tenuous; it is nonexistent beyond its biological antecedent and the natural interest that engenders in children.

[299] On balance, I find that the current relationship between R.J. and his sons does not meet the test of being “beneficial and meaningful” to either M.R.J. or E.W.J. R.J. cannot be an access holder in either of his sons’ Crown Wardship orders.

[300] A similar analysis applies to J.S.’s inferred request to have access to his daughter, S. At this point this child has had no contact with her father since she was four months old. Again, I confirm here that the reason for that lack of contact is as a result of J.S.’s refusal to comply with an order to provide hair follicle testing to demonstrate sobriety and/or bring a motion before the court to have a determination of whether there was a structure of visits that could be arranged between himself and the infant.

[301] Again, at this point the definition must be made out by the parent but from the child’s perspective. Beyond the biological connection, S. has no relationship, let alone a beneficial and meaningful one with J.S. On balance I find that J.S. cannot be an access holder in his daughter’s Crown Wardship order.

[302] J.S.’s relationship to M.R.J. is uncertain on all of the evidence. He did provide care to M.R.J. but what little is known about M.R.J.’s perception of J.S. is either neutral or negative. I find on balance that J.S. does not discharge the onus to demonstrate the relationship is beneficial and meaningful to M.R.J. J.S. cannot be an access holder in M.R.J.’s Crown Wardship order.

[303] J.S.’s relationship to E.W.J. is meaningful for the child; he sees J.S. as a “father figure” to him. E.W.J. wants to visit J.S. and spend time with him.

[304] J.S.’s availability to fulfill E.W.J.’s wish to spend time with him has been sporadic as a result of incarcerations or separations from E.W.J.’s mother. As a result E.W.J. does not see J.S. (or even his mother) as able to solve his problems or as a resource for him. E.W.J. has expectations of being parented by J.S. that have not been fulfilled. This has caused stress and anxiety to E.W.J. This relationship cannot be beneficial to the child.

[305] Even if J.S. does stabilize his life as he insists he will, by refraining from further criminal activity or use of illegal drugs, E.W.J. cannot wait for a permanent home or for his needs to be met for a caring family. As Justice Quinn pointed out a future potential for a beneficial relationship does not meet the test. On balance, I find that E.W.J.’s relationship to J.S. is meaningful but not beneficial to E.W.J. J.S. cannot be an access holder in E.W.J.’s Crown Wardship order.

Impairment of the Opportunity for Adoption

[306] For greater certainty, even if I had found that J.R. had met the first part of the access test, I would have found an access order in her favor would have impaired M.R.J.’s potential to be adopted or even to continue his current long-term placement. There is sufficient evidence that not only is J.R. critical of M.R.J.’s current family but that he is aware of her discontent. M.R.J. struggles with his connections with his caregivers and is at risk of not being able to be maintained in a family setting. J.R.’s attitude cannot further jeopardize his ability to be integrated into his future family.

[307] E.W.J.’s connection to his mother is close yet not secure. Much of the expert evidence emphasized his loyalty struggles and his anxiety surrounding his place in his family. J.R.’s attitude to the current foster family is negative. While this is not as important as E.W.J. will be removed from that home, I am concerned that it demonstrates the mother’s attitude that only she can provide proper care for E.W.J. (regrettably her perception is not accurate). This perception of J.R. would have a considerable potential to impair future opportunities for E.W.J.’s adoption.

[308] Again, E.W.J. is aware of the necessity to behave in the foster home in a way that will convince his caregivers to reject him. He has reported to professionals that his soiling and wetting behaviours (which are a cause of shame and anxiety to him) are done so that he can return home. J.R.’s access could only continue E.W.J.’s stress and inability to allow a permanent family to meet his needs. J.R. has not met the second part of the test to be an access holder in E.W.J.’s Crown Wardship order.

[309] S. needs to attach to a family who will provide a permanent home to her. J.R.’s request for access to S. as a Crown Ward demonstrates she seeks to meet her own needs, not her daughter’s. Any structure of access between J.R. and S. will only complicate and further delay S.’s integration into her adoptive family. As a result, I find access by J.R. would impair S.’s immediate placement in an adoptive home. The second stage of the test is not met by J.R.

[310] When I reviewed the deficits of each parents’ plans for the children, I noted the dangers in R.J.’s position – even arising out of his desire to repair what had been lost - of seeking to expand from regular unsupervised access (which he does not have at this point) to custody within a year or a few months more. His sons need permanence now. They cannot wait until R.J. stabilizes the changes he has made to his life. Further, he too readily assumes that the damage to both his sons, that has been caused by the mistakes of their parents - including him - can be resolved easily or so quickly.

[311] I acknowledge that R.J. has been careful to comply with every direction of the therapist dealing with the clinically managed access to ensure the children are provided only with positive messages and no unrealistic expectations from him. Even so, the amount of access he seeks, in its structure and frequency could only send a message to children as intelligent and needy as these, that there was a plan or even a chance that they could reside with their father.

[312] Further, I have considered R.J.’s proposal for the structure of access and plan to review the Crown Wardship order in light of Justice Murray’s comments on the impact of the openness legislation on both parts of the test – specifically that it is not necessary for the court to sever a connection now. This analysis would apply especially for E.W.J. who must be placed elsewhere in any event.

[313] However, my assessment of the persuasive expert evidence led with regard to both M.R.J. and E.W.J. is that multiple placements, the changes these wrought and the children’s reaction to them, has been highly detrimental to their emotional integrity. Any plan that would support the potential for continuation of this pattern of destabilization for either son could only further damage their emotional regulation and impair their ability to maintain an adoptive placement. I find on balance, R.J.’s plan would impair the children’s opportunity for adoption. R.J. cannot be an access holder in either of his sons’ Crown Wardship orders.

[314] There could be no reason to grant access to J.S. to the child S. when she does not recognize him as a member of her family. S. will have to leave behind her mother, siblings and grandparents in order to form connections in her new permanent family. It would not be in her best interest to have a new individual introduced to her that will not be part of her permanent plan. J.S.’s access to S. would impair her opportunity for adoption.

[315] M.R.J. cannot afford to have disruptions to his continuity of care or exposure to uncertainty of relationships. J.S.’s place in M.R.J.’s family has never been secure or certain. The plan for M.R.J. must now focus on certainty and permanency. Any future access by J.S. would interfere with M.R.J.’s need to be accepted in his permanent family. J.S.’s access to M.R.J. would impair his opportunity for adoption. J.S. will not be an access holder in M.R.J.’s Crown Wardship order.

[316] E.W.J. must learn what constitutes a family and be reassured that he is cared for and has a secure place in that family. J.S. is not able to demonstrate that he is ready to provide a secure place in a permanent family for E.W.J. Any access that would continue E.W.J.’s uncertainty, anxiety or loyalty conflicts would prevent him from coming to the understanding of his worth and his place in a new family. I am not persuaded that J.S. could set aside his own advantage to support E.W.J. in a new adoptive placement. I find on balance that any access by J.S. to E.W.J. would impair his opportunity for adoption. J.S. cannot be an access holder in E.W.J.’s Crown Wardship order.

The Children as Access Holders

[317] S. is now 20 months of age with normal physical and emotional development. She loves her mother, enjoys spending time with her and is sad to leave her mother’s care. She has a relationship with her maternal grandparents and knows her three brothers. She has a father who is beyond interested in knowing her and caring for her. These are important biological connections with native heritage on both sides of the family to be explored. Even if S. is not fully aware of her background it is meaningful to her.

[318] S. needs a permanent stable family home. Regrettably, none of the plans proposed by any of her family members can provide that safe place. For S. to become more aware and more dependent on having her emotional needs met by her parents and extended family members when they cannot provide her permanency would not be beneficial to her. On balance, S. has not met the test to have ongoing access to either of her biological families.

[319] At her age, S. needs to have no further complications in adjusting to a new permanent family and making emotional and dependency attachments to her new parents. She cannot afford confusion or any conflicting emotional ties. S.’s continuing access to any member of her biological family would impair her opportunity for adoption. S. does not meet this second stage of the test and cannot be an access holder in her Crown Wardship order. I can perceive of no benefit to S. of the order of Crown Wardship being silent as to access as time is of the essence in S.’s placement in an adoptive home. There will be an order of Crown Wardship, no access, for the purposes of adoption for S.

[320] M.R.J. has important and significant connections to his mother, grandparents and siblings. M.R.J. has a great interest and curiosity about his father and how his own development has been affected by his biological connection with and memories of his father. All these relationships therefore are meaningful to M.R.J. As counsel pointed out M.R.J. knows where most of these people live and, in any event, how to communicate with them, if he chooses.

[321] M.R.J. is intelligent, kind, can be thoughtful and “has the heart of a lion”. M.R.J. is very angry and has difficulty accepting love and nurturing from his caregivers, who are the people who are acting as his parents. All the evidence led indicates that M.R.J. does not suffer from any psychiatric or even emotional illnesses. His extreme anger and his explosive behaviours are as a reaction to the violence and lack of nurturing, that is, not having his basic needs met, that he has been exposed to over the course of his life to this point.

[322] Now M.R.J. is engaged in intensive “trauma therapy”, which requires the participation of his caregivers, that is, parental figures. Currently, his foster mother, who is committed to provide a long-term and hopefully adoptive home for M.R.J., is effectively participating in this therapy. The psychologist testified that M.R.J.’s mother, very likely father and other extended family members could well have an important role to play as this therapy evolves. Access by M.R.J. to these family members could be beneficial to him.

[323] Sometimes M.R.J. looks forward to his visits with his family and he reports to a number of people that he has had an enjoyable time. Sometimes M.R.J. reports that there have been fights or other difficulties at the visits. M.R.J.’s challenging behaviours at the foster home and at school can escalate just before or following visits. This has not been beneficial to M.R.J.

[324] Even if the pattern of visits is different, less frequent and of shorter length, as ought to be the case after an order of Crown Wardship is granted, can M.R.J. navigate meeting with these members of his family in any structure other than the proposed “clinically managed” supervised setting? Will M.R.J. feel pressure to seek expanded time and different structures of access to these various family members? Will having ownership of an access order enhance or derogate from M.R.J.’s needed “experience of permanency”. On balance, I find that M.R.J. is too angry and too vulnerable to manage access in his own best interest so to be beneficial to him. I find that M.R.J. could not be an access holder in his own Crown Wardship order.

[325] For greater certainty, I considered whether M.R.J.’s right to access would impair his opportunity for adoption. As stated earlier, M.R.J. is well aware of all his family members and how to communicate with them. He expresses a desire to have more visits with his father and see his mother, her family and his siblings. He is of an age when he must consent to his own adoption. Recently, he has expressed his intent to reside with his foster parents through to adulthood.

[326] Currently, M.R.J.’s focus must be in continuing and on making progress in his very difficult trauma therapy. He cannot be distracted by anything that would challenge his understanding that his current foster home is his permanent family. He may not have the emotional resources or current resilience to deal with the pressures of having the legal capacity to manage his own access. On balance, I find that M.R.J. does not meet the second stage of the test.

[327] In support of its analysis for the Crown Wardship order to be silent as to M.R.J.’s access, the Society presented the reasoning in Children’s Aid Society of the Niagara Region v. J. C. (2007), 2007 8919 (ON SCDC), 36 R.F.L.(6th) 40 confirming that the Society in its role as a custodial parent can continue, if no order of the court prevents it, to allow biological parents to visit with children prior to their placement for adoption. As further clarified therein, the rights of siblings to visit are inherently different and can, pursuant to other provisions of the Act, be extended even longer.

[328] M.R.J. requires his trauma therapy, undertaken with his current psychologist, so long as that therapist is available, to continue on a regular and frequent basis. Should the psychologist recommend that one or all of M.R.J.’s biological parents or extended family be involved in his therapy, these arrangements for contact must be accommodated immediately. In the past, the Society did not initiate or facilitate this essential therapy for M.R.J. in a timely fashion. This failure was contrary to M.R.J.’s best interest and must not be repeated.

[329] The order that the Children’s Lawyer seeks for both M.R.J. and E.W.J. may be less about continuing her clients’ rights to visit with their biological family than about ensuring that the Society will continue the necessary therapeutic treatments for these children.

[330] I see the necessity of the therapy for both boys continuing but, I find given M.R.J.’s vulnerabilities that any access order will be too risky and contrary to his greatest identified need which is, again as the Children’s Lawyer urged – permanency now.

[331] Therefore, again on balancing these considerations, I have determined that M.R.J.’s order of Crown Wardship will be silent as to access. I order further that M.R.J.’s trauma therapy continue.

[332] E.W.J. has close and significant connections to his mother, maternal grandparents and siblings. E.W.J. expresses a desire to visit more often and longer with his mother. Often, he says he wants to live with his mother. He wishes very much to see J.S., whom he identifies in the place of a father. E.W.J. is interested in having further visits with his biological father. All of these relationships are meaningful to E.W.J.

[333] E.W.J. is highly intelligent, always active and craves affection. E.W.J. is very anxious, sometimes fearful and can be very jealous of any child with whom he has to compete for his mother’s or other caregivers’ affection. All the evidence led indicates that E.W.J. does not suffer from any psychiatric, emotional or physical conditions. His stress and anxiety are as a result of his exposure to his family’s chaotic life and the lack of not having his basic physical and emotional needs met by his family of origin over the course of his life. Even his wetting and soiling behaviours, which cause him further upset, may be on account of his hyperactivity or the lack of security he feels.

[334] Soon E.W.J. will have completed a psycho-educational assessment which will provide recommendations for support and treatment to assist him in understanding how families should operate and allow him to develop confidence to know his needs will be met in that new family. It may be that E.W.J.’s treating therapist will identify a role for his mother, his father, other extended family members or perhaps J.S., to play as E.W.J.’s therapy involves. Access by E.W.J. to these family members and significant others could be beneficial to him.

[335] E.W.J. can be bitterly disappointed about his access visits. He can be very jealous when other children have a different structure of access than he does. He becomes extremely upset when his mother misses access. E.W.J.’s soiling and wetting behaviours greatly increase just before and after access visits. This is not been beneficial to E.W.J.

[336] It is highly likely, given E.W.J.’s needs and reaction to visits now, that limited access, restricted only to that which is “clinically managed” or supervised as a component of therapy would be frustrating and stressful for E.W.J. E.W.J. is two years younger than M.R.J. and his behaviours are different than M.R.J.’s, but all the expert witnesses that assessed E.W.J. testified that E.W.J.’s needs and challenges are the same as M.R.J.’s – the only difference being the passage of time. This makes E.W.J. as unable as M.R.J., if not more so, to withstand the pressure to manage his access in his own best interests.

[337] E.W.J.’s current circumstances also place him at additional risk for further trauma as a result of struggling with loyalties and his trying to understand how his own emotional needs can be met. His current foster placement is not permanent. E.W.J.’s removal from his foster parents will cause another dislocation for him. E.W.J.’s having the right to seek out further access to his family members may well increase his neediness and anxiety and could not be beneficial to him. I find that E.W.J. does not meet the beneficial component of the test.

[338] For greater certainty, I considered whether E.W.J.’s right to access would impair his opportunity for adoption. E.W.J. is well aware of the identity and general whereabouts of all his family members. He has expressed a desire to have more visits with his father and his mother, her family, J.S. and his siblings. He wants to return to live with his mother. He cannot be given any messaging, even by his experiences, that this is possible.

[339] E.W.J. too, has reached the age when he must consent to his own adoption. No adoptive home has yet been sought for E.W.J. It may be that the psychologist’s recommendation will be that E.W.J. requires some time for ongoing therapy or to “experience permanence” before an adoptive home is identified for E.W.J. As a result, I took into consideration Justice Murray’s analysis of the flexibility of timing in applying even the second stage of the test. Even so, there is potential for further harm to E.W.J. by continuing access to his biological family so that he becomes confused as to where he will find a permanent family. Therefore specified access, even controlled by E.W.J., would impair his opportunity for adoption; he does not meet the second stage of the text.

[340] As with M.R.J., I considered the benefits and risks in acceding to the Society’s request for an order of Crown Wardship for E.W.J., silent as to access. E.W.J. also needs immediate follow-through with any treatment recommendations provided by the psychologist arising from the assessments’ completion, including that E.W.J.’s parents, siblings or even J.S., participate in ongoing therapy. The delay in undertaking this assessment, especially in light of the lack of resolution of E.W.J.’s anxiety and toileting issues, has not been in his best interest.

[341] The most effective treatment for E.W.J., as recommended by the psychologist, must be provided by the Society now. An access order in E.W.J.’s favor would not guarantee the continuation of appropriate therapy for him in any event. On balance, I find that E.W.J.’s vulnerabilities would make any access order too risky and contrary to his greatest identified need which is to find, as soon as possible, as secure place in a permanent family.

[342] Therefore, on balancing all these considerations, I have determined that E.W.J.’s Crown Wardship order will be silent as to access. I order further that E.W.J. be provided appropriate therapy as soon as the assessor identifies a treatment plan.

Costs

[343] This has been a long and difficult case, chronicling many poor choices with resulting sad losses. Counsel have done their best to present each party’s position, fully and with sensitivity. This is not a case for costs. There will be an order of no costs.

Summary of Orders Made

[344] Final order to go:

a) The statutory findings for all three children are made as set out in Schedule A attached hereto.

b) M.R.J., date of birth […], 2005, remains in need of protection on the original grounds. The least disruptive order made in his best interest is that he is made a Ward of the Crown and placed in the care of the Kawartha-Haliburton Children’s Aid Society, with no Order made as to access.

c) The Kawartha-Haliburton Children’s Aid Society shall continue to facilitate M.R.J.’s current trauma therapy until such time as the treating psychologist recommends otherwise.

d) E.W.J., date of birth […], 2007, remains in need of protection on the original grounds. The least disruptive order made in his best interest is that he is made a Ward of the Crown and placed in the care of the Kawartha-Haliburton Children’s Aid Society, with no Order made as to access.

e) The Kawartha-Haliburton Children’s Aid society shall initiate and continue to facilitate therapeutic treatment for E.W.J. until such time as the treating psychologist, or other therapist as that psychologist directs, recommends otherwise.

f) S., date of birth […], 2013, is found to be a child in need of protection pursuant to Subsections 37 (2) (b) (i) and (ii) and Subsection 37 (2) (g) of the Child and Family Services Act. The least disruptive order made in her best interest is that she be made a Ward of the Crown and placed in the care of Kawartha-Haliburton Children’s Aid Society for the purpose of adoption, without access.

g) There shall be an order of no costs.

The Honourable Madam Justice M.A.C. Scott

DATE RELEASED: March 30, 2015