Children’s Aid Society of Ottawa v. A., 2015 ONSC 38

COURT FILE NO.: FC-06-1030-3

DATE: 2015/01/06

ONTARIO

SUPERIOR COURT OF JUSTICE

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

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

AND IN THE MATTER OF H.G., born […], 2005; A.A., born […], 2007; and K.A., born […], 2009

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

T.A., (the mother) and

A.G., (the father of H.G.)

Respondents

Julie Daoust, for the Applicant

Cedric Nahum, for the Respondent mother

Suzanne Côté, for the child H.G.

HEARD: November 10, 12-14, and 17-20, 2014

REASONS FOR JUDGMENT

m. linhares de sousa j.

INTRODUCTION

[1] The Application before me, brought by the Children’s Aid Society of Ottawa (the “Society”), concerns three children, H.G., born […], 2005 (9 years old) and her two brothers, A.A., born […], 2007 (7 years old) and K.A., born […], 2009 (5 years old). The three children were apprehended from the care of their mother, Ms. T.A., on December 2, 2013. The children were placed in foster care, H. in one foster home and the two boys in another foster home and they have remained in foster care since that time.

[2] At the time of this trial A. and K. had been in foster care 11 months and H. had been in foster care a total of 16 months accumulatively, when one includes previous time she had spent in foster care.

[3] The biological father of the child H. is A.G. He has not been involved with H. for a number of years. In these proceedings service on Mr. G. was dispensed with by this Court on October 15, 2014. It was the evidence of Ms. A. that Mr. G. had very little involvement with H. after her birth, preferring a lifestyle of drugs and alcohol. Ms. A. did permit Mr. G. to live with her and her children for one month in January of 2011.

[4] The biological father of the two boys is D.A. He has not responded to this Application and was noted in default by this Court at the commencement of the trial. Mr. D.A. is currently incarcerated for a murder conviction. Ms. A. denied that she ever saw Mr. D.A. act violently in front of her or that she ever told anyone she was afraid of him. Ms. A.’s relationship with Mr. D.A. was on and off. At the end of 2008 she cohabited with him for one month in an attempt to work things out for, as Ms. A. explained, A.’s sake. Things did not work out. However, Ms. A. became pregnant with K. It was Ms. A.’s evidence that she has not seen Mr. D.A. since before K.’s birth. Although, he apparently calls her from jail once per year to see how the boys are and she takes his call.

[5] At the commencement of this trial I was asked to recuse myself from the trial on the basis of the appearance of bias. I refused that request for the following reasons.

[6] Firstly, I heard the interim care and custody motion in this matter shortly after the children were apprehended and rendered a decision on December 20, 2013, ordering that the children remain in care pending the trial. My reasons for the decision are found at tab 10 of the Cahier Du Procès. In my view, this would not be a basis for my recusal from this trial which must be decided only on the basis of admissible evidence presented at trial.

[7] Secondly, this matter was set down for a Settlement Conference before me on March 5, 2014. Had that Settlement Conference proceeded as a Settlement Conference with my engaging counsel and the parties in a discussion of the matter on the merits, I would clearly have to recuse myself. However, that did not happen. As can be seen from my endorsement, dated March 5, 2014, the Settlement Conference became a motion proceeding on consent for the appointment of Mr. Patrice Pelletier, “psychologue, pour faire une évaluation de la mère et des trois enfants en conformité avec l’article 54 de la Lois sur les services à l’enfance et à la famille” (“CFSA”). That order was based on the detailed agreed upon mandate for the evaluation reached by the parties prior to the conference proceeding (see Cahier Du Procès, tab 11).

[8] Because I did not enter into any discussion on the merits of this case during that motion, I was not persuaded that my involvement in that conference was a basis for my recusal.

[9] Thirdly, and finally, at the completion of Mr. Pelletier’s evaluation, which was conducted in the French language at the request of Ms. A., the written evaluation was also in the French language.

[10] On August 13, 2014, the matter came before me on a motion brought by counsel for Ms. A. requesting that the 83-page evaluation of Mr. Pelletier be translated into the English language. For the reasons given in my endorsement, I granted, in part, that motion and ordered certain identified sections of the evaluation be translated, but cautioned that such translation would not in any way delay the trial of this matter which was set to commence in the fall (see Cahier du Procès, tab 13). My presiding and ruling on this motion, too, was not a persuasive basis for my recusal from this trial.

[11] Neither did my involvement in all three interim steps convince me that there would be an appearance of bias on my proceeding to trial on this matter. Given the workload of the Court and the limited pool of judges, it frequently happens that a judge would be involved in preliminary interim matters on a case before, being assigned to the final trial. For all of these reasons, I was not persuaded that I was not able to make a fair and just decision in this case based solely on the admissible evidence presented at the trial.

LANGUAGE

[12] This matter, since its initiation in the Court, has at time proceeded in the French language and at other times in the English language before the Court. A substantial number of the witnesses who testified at this trial testified in French. The evidence revealed that the Society workers, the service providers who dealt with Ms. A. and her children and the children’s educators all dealt with Ms. A. in the French language. The children have always attended French schools. During the trial, Ms. A. asked and received, by way of simultaneous translation, a translation into the English language of all of the evidence presented in French. She, herself, testified in the English language at trial. Consistent with Ms. A.’s choice of language during the trial, I have decided to write this decision in the English language.

POSITION OF THE CAS

[13] The Society seeks the following orders of this Court:

(1) A finding that all three children are “in need of protection” pursuant to s. 37 of the CFSA. The Society takes the position that such a finding can be made on four grounds, namely, that the children have suffered physical harm (s. 37(2) (a); that the children risk suffering physical harm (s. 37(2) (b); that the children have suffered emotional harm (s. 37(2) (f); and, that the children are at risk of suffering emotional harm (s. 37(2) (g).

(2) An order making all three children wards of the Crown with no access.

[14] Counsel for the Society submits that Ms. A. has used physical force against the children, demonstrated a pattern of neglect towards the children’s care and hygiene, has been unable to maintain an uncluttered and safe home environment for the children and lacks the parenting capacity to meet the emotional needs of all three children. Counsel for the Society further submits that because of this, the mother has caused both physical and emotional harm to the children.

[15] Furthermore, counsel for the Society submits, that despite the many services offered to Ms. A. by the Society workers, and despite her knowledge of what she ought to do to appropriately parent the three children, she has not been able to do it or has refused to do it so that the children continue to be at risk of physical and emotional harm.

[16] Because of this, counsel for the Society submits, that the only protective order and the least intrusive one that can protect the three children and that is in their best interests is an order with Crown Wardship without access.

[17] It is the position of the Society, that given the emotionally dysfunctional relationship that exists between all three children and their mother, continuing access between the mother and the children would not be beneficial nor meaningful to the children.

[18] The plan of care for all three children is adoption, so as, counsel for the Society submits, to provide them with the permanency and stability they need. In the case of H., the plan is that she would be adopted by her current foster family who want to adopt her. In the case of A. and K., an adoptive home would be searched for them. Openness, so as to permit the siblings to visit with each other would be encouraged by the Society.

POSITION OF THE MOTHER

[19] Counsel for Ms. A. made the following submissions on the position of his client. He submitted that Ms. A. accepts that a case for a finding that the three children are in need of protection has been made out, but on a more limited basis than that identified by the Society. Ms. A. accepts that the children can be found to be in need of protection, on the grounds of a risk to physical harm (s. 37(2) (b)) based on the cluttered condition of the home and the lack of routine in her parenting of the children. She denies that the children have suffered any actual physical harm.

[20] With respect to the alleged grounds of suffering of emotional harm and the risk of suffering emotional harm while the children are in her care, counsel for Ms. A. submits as follows. With respect to the child H., Ms. A. concedes that there is a risk of emotional harm to H. if she is returned to her care. It is the position of Ms. A. that H., as a result of spending so much time with the V. family, H.’s current foster home, both recently and in the past, the child very definitely has an emotional attachment to her foster parents. As a result, it is the position of the mother that H. ought to continue to reside with the V. family in her best interests.

[21] However, counsel for Ms. A. submits that his client contests the form of the order relating to the child H., sought by the Society. Ms. A. submits that the disposition that would be in H.’s best interests, because it does not close, definitively, the door on her biological family, is an order granting custody of H. to Mr. and Ms. L.V., or alternatively, an order granting joint custody of H. to herself and Mr. and Ms. L.V., with primary residence of H. to Mr. and Ms. L.V., pursuant to s. 57.1 of the CFSA.

[22] Ms. A. would also like an order that permits her access to H. on a regular basis (once per month), if H. so wishes. Ms. A. would like to be consulted on and informed about all major educational and medical decisions made for H. by Mr. and Ms. L.V.. Counsel for Ms. A. submits, that his client is well aware and accepts that final decision making power would rest with Mr. and Ms. L.V., in view of the fact that they would have primary residence of the child H.

[23] With respect to A. and K., Ms. A. contests the grounds alleged by the Society that the two boys have suffered emotional harm in her care and would be at risk of suffering emotional harm if they were to be returned to her full-time care. Counsel for Ms. A. submits that his client does not accept the conclusions made by Mr. Pelletier in his evaluation of the family.

[24] Counsel for Ms. A. submits that the mother is prepared to work cooperatively with the Society and its workers, as she has done in the past. She would be willing to submit to any conditions required of her to maintain an uncluttered house, maintain a routine and schedule for the children, not to frequent the Tim Horton’s, follow through on any medical treatment and medication for A., enroll the children in at least one extracurricular activity, possess only one pet and to keep its litter clean and odour free, continue attendance at her parenting course, continue to work on alternate child discipline strategies, and to pursue cognitive or “insight” counselling.

[25] It is the position of the mother that the order which is the least intrusive and in the best interests of A. and K. is an order that the boys return to her care under supervision of the Society. According to the mother these boys should be given the opportunity to stay with their original family.

POSITION OF COUNSEL FOR THE CHILD H.

[26] Ms. Côté acted as counsel for the child H. in this matter. She submitted on behalf of her client that she supports the Society position in this case. She submits that there is sufficient evidence to find that H. is a child in need of protection based on actual and risk of physical and emotional harm while in the care of her mother.

[27] On behalf of her client Ms. Côté submits that the order that is in H.’s best interests, providing her with the permanency and stability she needs, is an order for Crown Wardship so that she can be adopted by Mr. and Ms. L.V..

[28] According to Ms. Côté, her client H. wishes to be adopted by Mr. and Ms. L.V. and to continue to live with them. Ms. Côté submits that, as can be seen from Mr. Pelletier’s evaluation of her, H. is a mature child and ought to be listened to.

[29] According to the submissions of Ms. Côté, H. does not wish to continue to visit with her mother, which visits for her have been emotionally negative experiences. H. has, however, expressed the wish to continue to visit with her brothers and to know that they are safe.

[30] Ms. Côté submits that a custody order or a joint custody order pursuant to s. 57.1 of the CFSA is not workable in the circumstances of this case, nor would it give H. the speedy permanency and stability she needs.

FACTUAL BACKGROUND UP TO CURRENT APPREHENSION OF THE CHILDREN

[31] In coming to a decision in this very difficult case I think it necessary to consider some of the factual background leading up to the apprehension of these three children by the Society in December of 2013.

[32] The parties agreed that the evidence relating to the early involvement of the Society with this family would be based on Agreed Statement of Facts found in the Cahier Du Procès, (tab 6, dated November 3, 2006, and tab 8, dated May 24, 2007). I have relied on the Agreed Statements, on Court orders that form part of the record as well as on any evidence that was revealed in the course of the presentation of the evidence.

[33] As can be seen from the dates of the Agreed Statement of Facts and its contents the Society has been involved with this family since before the birth of H. H. was first apprehended from her mother’s care On April 21, 2006, when she was approximately five months old.

[34] The protection concerns identified by the Society at that time were the mother’s “lifestyle and mental health (depression)” creating a risk of physical harm to H. There was also a concern for the mother’s consumption of marijuana (Statement of Agreed Facts, paras. 3 and 4, Cahier Du Procès, tab 6).

[35] H. remained in foster care by way of a Society Wardship order dated November 3, 2006. The Society Wardship order for H. was extended to August, 2007, when the matter came before the Court on a status review in May of 2007. At that time, Ms. A. was pregnant with her second child, A. and was also setting up a new residence. The Society believed that it would be in the best interests of Ms. A. to settle into her new apartment with the new baby prior to H. being returned to her care.

[36] In August, 2007, H. returned to her mother’s care under the supervision of the Society (see Statement of Agreed Facts, Cahier Du Procès, tab 8). The conditions of the supervision order can be found at tab 7 of the Cahier du Procès, in the final order of Justice Mackinnon, dated May 24, 2007, based on the Statement of Agreed Facts of that same date.

[37] During the nearly two-year period that the Society was involved with Ms. A. after the apprehension of H., it was the Society’s view that Ms. A. cooperated with the Society and willingly participated in a variety of programs recommended to her. The following are some of those programs, the “Circle of Care” at the Vanier Community Centre, personal therapy at the Centre psycho-social, the medical directions and follow-up of her family doctor, Dr. Flynn, home management assistance, and parenting and infant stimulation courses. In addition, H. was registered in the Society’s “Head Start” program. The Society also noted that Ms. A. appeared to have some support from her parents at that time. As a result, the Society supervision order was terminated in March of 2008.

H. AND THE V. FAMILY

[38] This may be an appropriate place in the narrative of this factual background to indicate how the V. family became involved with Ms. A. and her children.

[39] When H. was apprehended from her mother’s care in April of 2006, she went into the foster care of M.V. and L.H.V.. She was cared for by that family for approximately 16 months, arriving when she was five months old and leaving when she was approximately two years old. H.’s return to the full-time care of her mother was preceded by a reintegration period, during which Ms. L.V. worked with Ms. A., including sharing community activities, in order to make H.’s reintegration as smooth as possible.

[40] According to Ms. L.V. and uncontested by Ms. A., through this process, Ms. L.V. developed a friendly relationship with Ms. A. Ms. V. testified that even after H. returned to the full-time care of her mother, Ms. A. would call her, usually relating to a difficulty she was having with H., not sleeping or having a temper tantrum, or that H. was missing them. According to the testimony of Ms. L.V., Ms. A. with H. and her new son A. would visit their home from time to time and even go to church with the V. family.

[41] Mr. and Ms. L.V. acted as godparents for A. and their two adult children acted as godparents for H. With the consent of Ms. A., H. would also join them on family holidays which she did two times. H. also spent numerous weekends with the V. family in order to give Ms. A. some respite time.

[42] In the fall of 2010, according to Mr. and Ms. L.V. there was a rupture in the contact they had with Ms. A. and her children. Ms. L.V. testified that she arrived at Ms. A.’s home with some medicine for H. that Ms. A. had asked her to get and had an unpleasant, and to Ms. L.V., frightening, interaction with Mr. D.A., who was living with Ms. A. and her children at the time.

[43] According to Ms. L.V., she had been told by Ms. A. that Mr. D.A. was violent and that she was afraid of him. Ms. L.V. confronted Ms. A. with what she thought was the bad choice Ms. A. had made, letting Mr. D.A. back into her house to live with her and the children, in view of what Ms. A. had told her about him. Ms. L.V. indicated to Ms. A. that she would be severing her ties with Ms. A. and her family and that she would be informing the Society of Mr. D.A.’s presence in her home, all of which she did.

[44] Ms. and Mr. M.V. testified that they did not feel that they or their family would be safe if they continued their contact with Ms. A. while she chose to cohabit with someone like Mr. D.A., given the information they had about him given by Ms. A. According to Mr. M.V., he and his wife were also beginning to question what benefit they were providing H. by exposing her to a very different lifestyle and care than she received at her mother’s home.

[45] Mr. M.V. testified that a total break between his family and H. did not last long. He would communicate with Ms. A. to find out how H. was doing in school. He also attended some of H.’s school events from time to time.

[46] Mr. M.V.’s involvement in H.’s life increased when in February, 2011, Ms. A. called him to tell him that H. had been expelled from her school, l’École Franco-jeunesse, because of her increasingly worsening misbehaviour at school. It was the testimony of Mr. and Ms. L.V. that when H. was with them they never saw the bad behaviour complained of by Ms. A.

[47] Ms. A., in her testimony, recognized that H.’s down spiraling behaviour at school that resulted in her expulsion could have been related to some rather negative events in H.’s life at that time. H.’s contact with the V. family had substantially diminished since the incident between Ms. L.V. and Mr. D.A. at her home. Mr. D.A. cohabited with the family for a time. Mr. G., H.’s father, left the family for the last time in January, 2011, after living with them for one month.

[48] After H.’s expulsion from school, she remained at home with her mother and received some very limited home schooling. In the fall of 2011, she attended the Centre Psycho-social- École Transit, a school dedicated to teaching students with behavioural problems and who could not function in the regular school stream. Ms. A. testified that while H. attended l’École Transit, she noticed that her daughter was regressing in her academic achievements and her behaviour was worsening instead of improving.

[49] It was Ms. A.’s evidence that she made a number of efforts, contacting the officials at the Centre Psycho-Social-École Transit, to get H. back into the regular school stream but that they ignored her. She does not deny that she communicated with Mr. M.V. to ask for his help in getting H. back into the regular school system. To this end she signed an authorization, filed as Exhibit #11, dated December 2, 2011, authorizing Mr. M.V. to discuss scholastic issues regarding H. with the necessary school authorities.

[50] Mr. M.V. met with the school officials and followed up with various correspondence and more meetings (see Exhibit #12). As a result of these pro-active efforts on the part of Mr. M.V., H. was eventually, in November of 2012, transferred into the regular school system and registered in l’École St. A[…] where her two brothers attended school. There is no question that his active involvement in this subject was strategic in getting H. back into the regular school system.

[51] Mr. M.V. testified that in his communications with the school officials, he was given to understand that, contrary to what Ms. A. had told them, they had not received any communications from H.’s mother regarding her daughter’s return to the regular school system.

[52] It was at this time, as well, that Mr. and Ms. L.V. together with Ms. A. determined that it would be in H.’s best interests if her visits with the V.s became more consistent and structured. All agreed that it was beneficial to H. to have her visit regularly with the V. family. H. then began to visit with the V. family every second weekend.

[53] Sometime later, according to both Mr. and Ms. L.V., instead of being returned to her mother’s care on Sunday night, H. began to stay with the V.s until Monday morning when they would take her directly to school. The reason for this was that, to the observation of Mr. and Ms. L.V., as the time approached to return to her mother’s care at the end of the weekend, H.’s behaviour began to change. H., who had been happy and talkative all weekend would become non-compliant, stubborn and resistant, teary and just generally “zone out”. With Ms. A.’s consent, in order to avoid this Sunday night behaviour they extended the weekends to Monday and a return to a neutral place, her school.

[54] The evidence revealed that Mr. M.V., again became involved in a more intensive way in H.’s life when, as a result of an accident with a door in Ms. A.’s residence, H. lost part of a tip of a finger. Her follow-up medical care involved a daily changing of her bandages. Because he would be doing the changing of the bandages when H. spent weekends with them, he attended H.’s home when the public nurse was demonstrating to Ms. A. how the bandages should be changed and the healing finger treated. According to Mr. M.V. because of the cluttered state of the home, it was very difficult for the nurse to find a properly cleared place to provide the demonstration and it was done on the coffee table. He himself concluded that Ms. A.’s home would be a difficult place to carry out this procedure in a safe and sanitary way, so he suggested to Ms. A., and she agreed, that H. come live with them for a while. According to Mr. M.V., he thought the period of time H. remained with them while her bandages had to be changed on a daily basis was approximately two to three weeks and that he himself changed H.’s bandages on a daily basis during that period. He also frequently took H. to her medical follow-up appointments because Ms. A. told him she could not go for one reason or another.

[55] Ms. A. testified that H.’s treatment for her finger went on from October to mid-December and she cleared a space on her dining room table to have the medical supplies for the change of bandages. There were no complications to H.’s finger.

[56] H.’s alternate weekend visits to the V. family took place without fail except for the one weekend in December, 2012, denied by Ms. A. as a means of disciplining H. for her bad behaviour. According to Ms. L.V., this was around the time that the Society had again gotten involved with Ms. A. and her children. H.’s extreme upset at being denied this weekend with the V. family was evident to both Ms. A. and Mr. M.V., who attended the home to try and persuade Ms. A. to change her mind. However, Ms. A. could not be persuaded and her response to Mr. M.V. was that H. had to learn that she could not always get what she wanted.

[57] It was Ms. A.’s evidence that she feared that, because of her bad behaviour, H. would be expelled from school again. She knew that H. loved those visits but that she had tried every other way to change her daughter’s behaviour and that this was a last resort.

[58] Ms. A. denies that she deprived H. of the visit because she believed that it was Mr. and Ms. L.V. who had reported her to the Society and she was angry at them. Ms. L.V. testified that after this denied visit she distinctly remembers having a discussion with Ms. A. about the mother’s suspicions that it was the V.s who had reported her to the Society and how they agreed that they would not be used as a punishment for H.

[59] Mr. and Ms. L.V. have three grown children and live in the country in a large home outside of the city of Ottawa. They are close to their immediate and extended family with whom they interact and socialize on a regular basis. Mr. M.V. testified that when H. came into their care at five months she became another member of the family, accepted by all and included in all the family activities. The nature and extent of their continued contact with H. has just been described. The V.s got involved in the life of H. and that involvement has been in her best interests and the child has greatly benefited by it. No one involved in this matter disputes the fact that H. has developed a very strong attachment to this family, enjoys being with them and wants to continue to live with them.

CURRENT INVOLVEMENT OF THE SOCIETY

[60] As has been alluded to already, the Society became involved with Ms. A. again at the end of 2012. This was as a result of a call received by the Society about the A. children from Mr. J.B., the principal of l’École St. A[…], where all three children attended. Mr. J.B. testified that he called the Society two times in November and December of 2012. He understood that Ms. A. had washed K.’s mouth with soap. As a result the Society began an investigation.

[61] According to the evidence presented by the Society when they got involved again at the end of 2012, Ms. A. cooperated with the Society investigation and was very candid about expressing her frustrations about some of her children’s behaviours. She admitted to the Society worker, at that time, using soap on K.’s mouth to get him to stop spitting and even that she had spanked her children when they misbehaved.

[62] In January, 2013, Ms. Forest became the Society case worker assigned to work with Ms. A. and her children. It was the evidence of Ms. Forest that once she became involved with Ms. A. and her children, she began to identify a number of protection concerns. Based on her evidence they were as follows.

[63] Ms. A., by her own admission was using physical discipline on her children such as soap in K.’s mouth and spanking the children. Although, Ms. Forest was not aware that the spanking left any marks, nor did she think that it was frequently done by Ms. A.

[64] Ms. Forest was made aware of Ms. A.’s use of a conduct chart for the children in her home. The evidence revealed that, as a result of her attendance at the Centre psycho-social for parenting courses, Ms. A., with the help of a friend, devised a conduct chart for her three children which she began in December of 2012. Ms. A. described in great detail how the chart worked and how the children would lose privileges, gain and lose points and then obtain small prizes.

[65] Photographs of the chart were filed as part of Exhibit #3 and Exhibit #13. It was the view of Ms. Forest and Mr. Pelletier, who conducted the court ordered assessment of this family, that the chart was complicated and questioned how understandable it would be to young children who could not yet read. Furthermore, the chart included questionable punishments that may not have been in the best interests of these children, such as isolation and the taking away from H. her visits with the V.s. Everyone agreed that the visits with the V.s were important for H. and in her best interests. To deny H. a visit was, according to Ms. Forest, inappropriate discipline and not in H.’s best interests.

[66] Another serious protection concern for Ms. Forest was the state of Ms. A.’s home. The house smelled of cat urine and cat litter. At one point Ms. A. had seven cats. The home was also extremely cluttered with things and boxes of things that Ms. A. collected and could not bring herself to throw away. So much so, that the children’s play and living space was very restricted. The children had no space in which to do their school work. Family meals were taken on the couch and coffee table because the dining room and its furniture was cluttered. The children’s bedrooms were cluttered. Ms. Forest was particularly concerned about a cluttered entrance and stairwell leading to the bedrooms of the children.

[67] In November, 2014, Ms. Forest was in Ms. A.’s home to supervise a visit with the children. She took photographs of the state of the home at that time which were filed as Exhibit #2. According to Ms. Forest the home appeared to be in the same state as when the children were apprehended. Ms. Forest did notice that the dining room had been somewhat cleared by Ms. A. and Ms. Forest agreed that it was a big improvement. The kitchen and the children’s rooms looked the same. The lock on the boys’ bedroom door remained and the light in that room was not yet fixed. Ms. A. still had two cats and had added a dog as a pet.

[68] In her cross-examination Ms. Forest testified that while she considered Ms. A.’s house cluttered and messy, she did not think that Ms. A.’s home was dirty; there was no animal feces on the floor; there was no garbage on the floor and her dishes appeared washed. Mr. and Ms. L.V. also testified to the obvious clutter in Ms. A.’s home but they never reported this to the Society.

[69] Ms. Forest also testified that Ms. A. appeared to be struggling with managing the behaviour of her children and made choices in this regard which were not child focused or safe for the children. In particular was Ms. A.’s practice of locking her two sons in their room at night so that they could not get out. On Ms. A.’s own evidence, this was to deal with A.’s habit of getting up in the middle of the night and playing or wandering around the house or getting into the food in the kitchen. According to Ms. Forest, the two boys also had a “pee” pot in their bedroom, but that it was not always cleaned, to her observation. The boys’ room also had no functioning light and when their bedroom door was locked by Ms. A. they would be in the dark.

[70] Ms. Forest also testified that to her observation the relationship between the mother and the children appeared very conflictual. Ms. Forest observed that Ms. A. often spoke and interacted with her children very roughly and in a screaming voice and that she would go from being calm to rough very quickly. This kind of behaviour had also been observed by Mr. and Ms. L.V. although they never reported this to the Society. To Ms. Forest’s observation the children’s response to this treatment by their mother was not positive nor ending in the desired result of behaviour on the part of the children.

[71] Ms. Forest also testified that she observed Ms. A. to have a very limited and inconsistent family and social network from which she could seek support and help. According to Ms. Forest, Ms. A.’s parents and extended family were inconsistent in their contacts with her. She had a friend, Elizabeth, for a time but contact with her also seemed to end. The only consistent people in her life was the V. family who at this point were like kin to H.

[72] Ms. Forest observed that Ms. A. would, almost on a daily basis attend with the children at a Tim Horton’s to socialize with people she knew there to the detriment of the children’s after school routine. Ms. A. did not deny that she often went to Tim Horton’s with the children to meet people she knew and to get her “Ice Caps”. She indicated that she did this at least four times per week. Mr. M.V. testified that he frequently picked up H. for her weekend visit at the Tim Horton’s where Ms. A. would be with the children.

[73] Finally, Ms. Forest testified that she received reports from the community about the neglected hygiene of the children, including wearing dirty clothes, being unkempt and smelling. Ms. Forest testified that she received a report that the two boys were seen hanging out of a window with a broken screen. According to Ms. Forest, the reports from the children’s school was also troubling indicating that, the children arrived frequently late for school with their agendas unsigned and their homework undone.

[74] It was the testimony of Ms. Forest that in view of all of these protection concerns, as the case worker on the file, she made numerous efforts to provide Ms. A. with assistance so as to address the Society’s protection concerns.

MS. A’S EVIDENCE CONCERNING THE PROTECTION CONCERNS OF THE SOCIETY

[75] Ms. A. described a typical day she would have with the children prior to their apprehension. She testified she attempted to keep them on a routine but admitted that she had difficulty with this because of her physical difficulties and her lack of sleep. Furthermore, she had never had a routine while growing up, even in her foster homes. She did not deny that the children were frequently late for school but attributed it to them not listening to her in the morning and wanting to play instead of getting ready for school.

[76] With respect to the children’s hygiene, her evidence was that she tried to give the children a bath every two or three days and denies that it would be two weeks between baths. According to Ms. A. she washed the children’s hair and backs but that otherwise she encouraged the children to wash themselves. With respect to having dirty clothes, Ms. A. testified that she put out clean clothes for the children but they sometimes put on dirty clothes themselves. Regarding H.’s hair, it was Ms. A.’s evidence that she washed it at least once per week and combed and brushed it every two days. She may have left H.’s braids in for two days or so.

[77] With respect to the cat urine smell, Ms. A. gave evidence as to how this difficulty arose. It was due to one of her seven cats being ill, confirmed by Ms. Lowther called on behalf of Ms. A. This cat was spraying in the house and also sprayed H.’s snow pants one time as well as other parts of the house without her knowing it. It was Ms. A.’s evidence that she tried to clean the house of this smell to the best of her ability. Ms. Lowther assisted Ms. A. to get rid of her cats, which to her understanding was to comply with the Society’s direction to Ms. A.

[78] Ms. A. testified as to why she locked the boys in their room at night. It was because A. was in the habit of waking up in the middle of the night, wandering around, playing and eating the food in the kitchen. It was for his own security. She acknowledged that the Society asked her to get rid of the lock but she could not do this herself and did not have anyone to help her. Ms. A. testified that only a week before the commencement of the trial she asked a friend to remove the lock. Mr. C., Ms. A.’s friend testified that he did remove the lock from the boys’ bedroom door.

[79] With respect to the “pee pot” she had in the boys’ room, Ms. A. testified that on average she cleaned it out daily but would forget sometimes; the urine would crystallise and then it would be hard to clean. Ms. A. testified that she had the “pee pot” in the room because A., when he got up in the morning, could not make it to the washroom in time and so to save him the embarrassment she left the pot in his room. On cross-examination, Ms. A. acknowledged that she may have indicated that she left the pot in the boys’ room because during the night they would have accidents and could not make it to the bathroom in time. It is obvious from the evidence of the locked door that the boys had to be given some way of relieving themselves during the night.

[80] Ms. A. did not understand how the locked door in a room without a light might be frightening for the children.

[81] With respect to the broken light, Ms. A. testified that she attempted many times to have the housing management, last September to November, come and fix the light in the boys room but she did not receive a response. She did not understand how she was expected to do it herself.

[82] With respect to physically disciplining her children, Ms. A. testified at trial that she did smack her children on their butts when they were misbehaving, but that she used “reasonable force”. When asked how often she would have done this, Ms. A. said not more than a dozen times for all three children and it rarely happened. Later she indicated that it happened one time in a blue moon.

[83] With respect to the use of soap on K.’s mouth to get him to stop spitting, it was her evidence that she just touched the tip of his tongue with the soap. According to Ms. A. this technique worked because K. did stop spitting for a while. When he started spitting again, according to Ms. A., she threatened that she would use soap on his mouth again and he stopped spitting for good.

[84] According to Ms. A. she learned about conduct charts at one of her parenting courses. She had a daily routine of reviewing the conduct chart with the children. In her view the children understood the behaviour chart and loved it. In fact, she testified, if she forgot to do the behaviour chart with the children they reminded her about it. There were photographs of the conduct chart Ms. A. created. In one of these photographs found in Exhibit #13, one can see that one of the lost privileges for bad behaviour noted on the conduct chart was “M.V. and L.V.” [V.]. Given H.’s distraught and upset reaction to being denied her visit to the V. family, it is hard to believe that H. would love the conduct chart. In the final analysis, I found the chart rather complicated for such young children.

[85] It was Ms. A.’s evidence that she did not think her relationship with her children was conflictual until they went into the car of the Society. She testified that she did not have trouble managing her children when they were younger and only when A. started in regular school did she have difficulty with his behaviour. This recollection of Ms. A. was confirmed by evidence relating to the children at daycare prior to attending regular school.

[86] Ms. M. B. was called to testify on behalf of Ms. A. Ms. M.B. was an educator at the Tournesol daycare where all three of the A. children attended before attending the École St. A[…]. According to Ms. M.B. the attendance of the children was good and they were always on time. To her observation the children appeared well and clean. Ms. M.B. recalled that the youngest, K., was slow to be trained and she worked with Ms. A. on some strategies for this. Ms. A. was also very cooperative in providing diapers and a change of clothes for K.

[87] Ms. M.B. always found Ms. A. to be cooperative with the daycare and communication with her was always good. If she had to reach her during the day she was accessible.

[88] When asked if she had any concerns about the children, Ms. M.B. recalled that sometimes there would be bad behaviour such as hitting other children. They would have to be redirected and diverted. They were also very active children and had to be closely supervised. Ms. M.B. recalled that A. loved puzzles and he could be calmed with a puzzle.

[89] Ms. M.B.’s observation of Ms. A. interacting with her children was that she recalled a good interaction, although they sometimes would not listen to her and she would raise her voice and lose patience. But Ms. A. appeared capable of redirecting her children at that time.

[90] Shortly before the children were apprehended other individuals had occasion to observe Ms. A. interact with her children. Mr. C. testified that he would meet the mother with her children at Tim Horton’s. To him the children appeared fine, well-fed and had toys. Mr. C. recalled A. having tantrums from time to time, he recalled one or two but that most of the time A. was fine. When he became upset, Mr. C. observed Ms. A. to place the child beside her and give him time to calm down.

[91] In November, 2013, Ms. A. began attending a parenting course at the Vanier Community Church that provided daycare for the children of the parents attending the course. Ms. Heather Counsell conducted the parenting courses at the Church and had occasion to see Ms. A. interact with her children approximately four to six times just before their apprehension. As a result of those observations, Ms. Counsell saw that the children appeared to be well-cared for and always adequately dressed for the weather. Ms. A. appeared to her to be a fair and consistent parent who was firm but loving. She was able to redirect her children with much patience and firmness when it came to snacks and manners. Ms. Counsell recalled that sometimes the children would not listen to their mother but that she was able to redirect them, calm them down and set appropriate boundaries.

[92] Ms. Lowther also had occasion to observe Ms. A. interact with her children when she visited Ms. A. to assist her with her cats. To Ms. Lowther the children appeared to behave normally, all seeking the attention of their mother. Ms. Lowther did not recall any screaming or crying although she recalled that A. could get upset at times and he would go into a corner and sulk. At times, according to Ms. Lowther, Ms. A. would let him be or offer him an alternative. Ms. Lowther did not recall any unusual conflict between the mother and the children.

[93] With respect to the clutter in her house, Ms. A. did not deny that her house was cluttered and that it was a problem. The photographs, filed as Exhibit #2 demonstrate in a graphic way the clutter of Ms. A.’s home in every room, hall and stairwell. Ms. A. admitted to having supper with the children on the couch and coffee table because the dining room table was cluttered with material. It was her evidence that two or three days before the apprehension she cleared a spot on the dining room table for them to eat and saw how much better it was. Other professionals who visited Ms. A.’s home testified to it being cluttered. Even the witnesses called by Ms. A. recognized how cluttered the home was.

[94] According to Ms. A., even though she never succeeded in getting a firm diagnosis for a hoarding disorder, she recognized that she had some symptoms of an obsessive-compulsive disorder.

[95] Ms. A. talked about the panic she might feel if she threw something away and the difficulty she had if someone or the children moved something in the house. Because of this, for example, she kept an old sweater she had worn as a youth when she played with her dog in Sudbury. Mr. C., who assisted Ms. A. to unclutter parts of her house weeks before the trial, also testified to Ms. A. appearing anxious when he would touch something in her house but he insisted to her that certain things be changed in her house and she complied.

[96] Ms. A.’s evidence was that she attempted to get help for what she thought were the symptoms of OCD, but she did not succeed in getting any help.

[97] Ms. A. denied that her home was a fire hazard and insisted that there was room for people to pass in all of the places in her home.

SERVICES OFFERED TO THE MOTHER

[98] When questioned about Ms. A.’s willingness to receive assistance, Ms. Forest testified that the mother was “ok” with services being provided and was certainly not refusing them. But she was very passive in dealing with the services and very slow to follow-through on them or would not follow through on them at all. With respect to others she refused altogether. For example, by the time the children were apprehended in December of 2013, Ms. A. had not yet removed the lock from the boys’ room, nor fixed the dysfunctional light even though she had been so instructed to do so for a number of months by Ms. Forest and her home remained in a cluttered state.

[99] The services of assistance recommended and provided to Ms. A., as testified to by Ms. Forest were the following. Ms. Forest recommended that Ms. A. attend parenting courses at the Centre psycho-social, where she had been before, but Ms. A. refused this suggestion, indicating that she did not think it would help. Ms. Forest recommended a “Hippy” home visitor that might work with Ms. A. to establish routines and nutrition guidelines with her but Ms. A. refused this suggestion too.

[100] Ms. Forest had a social work student assigned to her to make regular home visits to Ms. A. in order to provide more of a Society presence on the case. Ms. Forest denied that this was because she did not get along with Ms. A.

[101] Ms. Forest arranged for respite care for the two boys one time per month. Ms. Forest’s recollection was that this service went on for six months. According to Ms. Forest, Ms. A. had asked the V.s to take the boys for weekends as well as H. but they had refused. According to Ms. Forest, this respite together with the respite, Ms. A. received with H. visiting the V. family every second weekend was meant to permit Ms. A. a rest and free time to allow her to organize, clean and unclutter her home. According to Ms. Forest she did not see any difference in the clutter of Ms. A.’s home during this period. According to Ms. Forest, Ms. A. complained to her that she was not getting enough respite time.

[102] Ms. A.’s recollection of the number of respite weekends she had for the boys was four and not six as testified to by Ms. Forest. According to Ms. A. while the boys were gone she attempted to unclutter her house and did the best she could.

[103] Ms. Forest testified that she also arranged for home management services, from the City of Ottawa to come into the home and directly assist the mother with the organization and uncluttering of her home. Ms. Forest testified that when she first raised this suggestion with the mother she was very negative about it saying to her that they had come before and all they did was to tell her to do things.

[104] The evidence revealed that Ms. A. had been provided this service before when the Society first became involved with her at the birth of H. According to Ms. Forest, Ms. A.’s previous experience with this service had not been successful. As a result, she had some difficulty arranging it in 2013. However, she did succeed in doing it. Nonetheless, according to Ms. Forest, this too did not end with much progress.

[105] Ms. Myriam Roy-Levesque is a social service counsellor employed by the City of Ottawa to administer the provision of home management services to Ottawa families. She confirmed in her evidence to being called by Ms. Forest to provide home management services to Ms. A. and her family. Ms. Roy-Levesque recalled being involved in similar services with Ms. A. at the time of H.’s birth and when Ms. A. had participated in the Vanier Circle of Care, pre-natal, nutrition and parenting courses.

[106] Ms. Roy-Levesque testified that her home management services had been involved with Ms. A. and her children from 2009 to 2011, after K.’s birth and when all three children were either in school or daycare. Ms. Roy-Levesque testified that at that time the mother’s home was what she called “encombré”, with boxes, clothes and other things everywhere and on top of furniture that as a result could not be used. In Ms. Roy-Levesque’s opinion, it was a question of safety and a sane environment in which to live.

[107] Ms. Roy-Levesque testified that the mother was given three hours per week service from the City, while the children were out of the home. According to Ms. Roy-Levesque, Ms. A. may have made some effort to unclutter a table one day but it became cluttered again shortly after. As a result of no progress on the file, the service was terminated according to Ms. Roy-Levesque.

[108] It was the evidence of Ms. Roy-Levesque that with this past experience with Ms. A. in mind, when Ms. Forest called her to provide Ms. A. home management services again in 2013, she was hesitant to do so. Nonetheless, she accepted to take the case, on the condition that the mother would be actively involved in dealing with uncluttering the home and that she would provide a doctor’s letter as to why physically, she could not do certain activities. Ms. Roy-Levesque never received any such doctor’s letter from Ms. A. According to Ms. Roy-Levesque, as far as she was concerned the biggest and main objective of the City’s involvement with Ms. A. in 2013 was to unclutter and manage the home environment. For Ms. Roy-Levesque it was also a question of security and safety.

[109] As a preliminary, to the provision of the home management services to Ms. A., Ms. Roy-Levesque visited Ms. A.’s home in person. Her observations on that visit were firstly, that there appeared to be a regression, in that the home was even more cluttered than she remembered it previously and to her raised concerns of safety. Secondly, Ms. Roy-Levesque found the smell of the home, a strong smell of cat urine, was unbearable to the point that she felt sick and could not stay in the home.

[110] It was the testimony of Ms. Roy-Levesque that she assigned a home management counsellor to work with Ms. A. one time per week for three months. She herself visited the home during that period five or six times, once or twice per month. Each time Ms. Roy-Levesque encountered Ms. A. she always found her to be positive and agreeable and apparently cooperative. Nonetheless, according to Ms. Roy-Levesque, despite their efforts to help Ms. A., there was essentially no change or progress in the organization of that home and so the file was closed.

[111] Ms. Forest testified that when she raised the lack of progress in the uncluttering of her home with Ms. A., she essentially replied that she was doing the best she could do. She also recommended that Ms. A. get rid of the cats.

[112] Ms. A. testified that she did not really find this service very helpful to her. It was her evidence that she did the best she could to unclutter her house but she conceded that there was really no progress in uncluttering her house during this period.

[113] Finally, Ms. Forest testified that she had numerous discussions with Ms. A. about the importance of establishing a set and workable routine for the children, a morning routine and an after school and bedtime routine so that late arrivals at school and consistency in homework being done was maintained. This also involved discussions about how Ms. A. might cut back on her visits to Tim Horton’s for her “Ice Caps” so she could sleep better and be up earlier and before the children in the morning as they prepared to go to school. Ms. Forest testified that she also discussed with the mother, based on reports received from the children’s school, the question of the children’s not taking baths regularly, not brushing their teeth and coming to school in dirty and smelly clothes. According to Ms. Forest, Ms. A.’s constant response was that she was doing the best she could and that the children were late in the morning because they did not listen to her in the morning and liked to play. Ms. A. would also comment that she could not give the children their bath because she had a sore back and she tried to give them a bath at least two to three times per week. Ms. A. testified that she found the maintaining of a routine difficult because she had never had a routine in her own life.

[114] Ms. Forest also suggested that Ms. A. register the children in activities that might stimulate them such as summer camps but Ms. A. did not follow-through on this for the summer of 2013. The evidence revealed that the children had been registered in camps during the summer of 2012, apparently registered by Mr. M.V., but according to Ms. A., H. did not like summer camp and A. was expelled from the camp because of his misbehaviour.

[115] It is the position of the Society that Ms. A. has had substantial services offered to her to permit her to learn how to appropriately parent her children. The Society further submits that while Ms. A. has taken advantage of and pursued a number of these services, she has not been able to follow-through and integrate the lessons of those services. The evidence as a whole appears to support this conclusion.

THE APPREHENSION

[116] Ms. Forest’s notes on this case indicated that she met with Ms. A. 16 time between January to June. In September, 2013, Ms. Forest testified that she was considering closing the Society’s file on Ms. A. and her children but after communicating with the school, Ms. Forest received information about the continuing difficult behaviour of the A. children, particularly A. and K., their continual arrival at school late, the dismal state of the children’s hygiene and appearance and insufficient lunches, the fact that the children had not been taken for medical examinations and immunisations on a regular basis and the mother’s slow follow-up with an assessment for A. convinced her not to close the file.

[117] Some of teaching and administration staff at the École St. A[…] where all three children attended at the time of the apprehension in December of 2013, were called as witnesses to testify to their observations of the three A. children in their school setting, confirming the information received by Ms. Forest at the time of the apprehension.

[118] Ms. N.D. was the Secretary of the École St. A[…] and kept the late and attendance records for the school. She filed as Exhibits 5, 6, 7, 8 and 9, the school files for all three A. children recording the number of late arrivals at school and absences from the school. From those records one can conclude that the children’s absences were not noteworthy, their late arrivals at school, however, were extremely high and frequent. According to Ms. N.D., while one could not say they were late every day, one could accurately say that they were late almost every day. According to the evidence, Ms. A. was also late in picking up the children from time to time.

[119] Mr. J.B., was the principal of the École St. A[…] in the year that the children were apprehended by the Society. Mr. J.B. remembered speaking to Ms. A. about how often she was late getting the children to school and even sent her a formal letter about the problem. According to Mr. J.B. it did not seem to make a difference because the children continued to frequently arrive late at school.

[120] Ms. N.D. also had daily contact with the three A. children in the school setting. When H. had her finger accident, she could not go outside at recess and spent time with Ms. N.D. in her office. Ms. N.D. found H. to be friendly. During the period of time she spent in Ms. N.D.’s office, Ms. N.D. did not notice any body odour or clothing odour emanating from the child. The evidence was conflicting as to whether H. was living with the V. family during most of this period.

[121] With respect to her interactions with A., Ms. N.D. indicated that she found him to be a difficult child; he did not smile and he cried often, inconsolably and he would not talk nor did not want to come into the school.

[122] Mr. J.B. testified that A.’s conduct in school was challenging. They had to assign an assistant to his teacher in order to work out strategies for dealing with his behaviour. His difficult behaviour involved not taking directions from or listening to his teacher. A. had difficulty respecting the structure and rules of the class and took no responsibility for his conduct.

[123] Mr. J.B. indicated that A. learned best by way of games. A. had to take medication for his severe attention deficit. When he had taken his medication, Mr. J.B. noticed that his demeanour was calmer. He was able to sit and do some work. When he had not taken his medication, you could, according to Mr. J.B., see the difference in his behaviour; he could not concentrate and he would wander around and refuse to stay in the class. To Mr. J.B.’s recollection, Ms. A. would forget to give A. his medication at least once per week or more, or two or three times per month. He would have to call Ms. A. regarding A.’s medication and she would say that she had forgotten to give it to him in the morning before school.

[124] Because of A.’s difficult conduct at school, Mr. J.B. suggested to the mother that she arrange for A. to be psychologically assessed. Mr. J.B. testified that when he made this suggestion to Ms. A. she was open to the idea but said she wanted to consult her own doctor.

[125] According to Mr. J.B., when A. became frustrated and angry he would have a tantrum, become violent which might involve throwing desks and chairs. He often did not want to go to class and would hide. On cross-examination, Mr. J.B. indicated that with time A.’s behaviour got a little better.

[126] With respect to her interactions with K., it was Ms. N.D.’s evidence that he had a serious problem with incontinence that continued right until their apprehension when they left the school. Ms. N.D. had to frequently call the mother to come and change his clothes and to bring a change of clothes. To Ms. N.D.’s recollection Ms. A. always responded within a reasonable time to her calls about K. and attended at the school to change him. Her observation of this interaction was that the mother was positive, not exhibiting any anger or screaming.

[127] According to the testimony of Mr. J.B., in addition to the problem of his incontinence, for which Ms. A. had to be called to change his clothes, K.’s behaviour in school was also difficult to manage. Like his brother, K. had difficulty following the teacher’s instructions and adapting to the school routine. He too, disliked being at school and often cried.

[128] Ms. N.D. testified that she observed the general hygiene of the three children not to be good. Their coats smelled of cat urine and the teachers and other children complained of the smell. Their outerwear had to be washed by the school and one time H. was given a pair of snow pants by the school to replace her own that continued to smell.

[129] The fact was also confirmed by the testimony of Mr. J.B., who testified that the children’s clothes often smelled of cat urine. According to Mr. J.B., most of the time the children wore dirty clothes to school. He also observed the children’s hair to be dirty.

[130] Mr. and Ms. L.V. gave evidence as to their observations of the general hygiene of H. when she came to them for weekend visits. Both of them testified that H. would arrive unkempt, with dirty clothes, dirty hair, hands and nails. Her hair was knotted and Ms. L.V. suspected, not combed since she left them two weeks before. In fact according to Mr. V. they once had to cut H.’s hair because it was so knotted and could not be combed out. According to Ms. L.V., their Friday routine with H. always entailed a bath and clean clothes.

[131] Ms. N.D. testified that on her way home she would at times see Ms. A. and her children on the way to the Rideau Centre. She never noticed anything unusual in the interaction between Ms. A. and her children on the bus. However, one time she contacted the Society regarding the mother’s treatment of the children, when she one time at the Rideau Centre observed Ms. A. shaking one of her children while two of them were having a tantrum. In observing that, Ms. N.D. was uncertain as to whether the children were being physically abused or not which is why she contacted the Society.

[132] Mr. J.B.’s observations of Ms. A. interacting with her children did not concern him and he never witnessed anything that he would conclude was abusive. He did call the Society, however, on hearing that Ms. A. had used soap in K.’s mouth. Generally, Mr. J.B., found Ms. A. to be agreeable and open to his suggestions regarding the children. Mr. J.B. remembered interacting a few times with Mr. M.V. concerning H.

[133] Ms. Forest testified that based on this kind of reporting together with the continual lack of routine in the children’s lives and the unchanged state of Ms. A.’s home she was convinced not to close the file. Shortly after, the Society made the decision to apprehend the three children on December 2, 2013.

[134] Mr. and Ms. L.V. were asked to provide foster care to H., to which they agreed. H. has been living with them since that time. A. and K. went into the foster care of Ms. J.Q. where they have remained since their apprehension.

ACCESS TO MOTHER AFTER THE APPREHENSION

[135] After the children were apprehended, visits with their mother were supervised by the Society.

[136] Supervision was carried out by Ms. Forest, but more frequently by Marie-Claude Couture, who supervised Ms. A.’s visits with her children from January 23, 2014 to the commencement of this trial, some 42 visits and 82 hours of supervision. Supervised access took place at the Society offices and in Ms. A.’s home. The evidence showed that Ms. A. has been faithful to every access she was given to her children. According to Ms. Couture, Ms. A. often arrived late for her visits and she had to speak to her about her late arrival and the situation improved.

[137] According to the testimony of Ms. Couture, visits with Ms. A. and her children commenced as group visits with other families. However, Ms. Couture testified, they had to stop the group visits because Ms. A.’s behaviour and interaction with her children during the visits was disruptive to the other families. Ms. Couture testified that the disturbing behaviour included using a very loud voice, usually in a dry and stern tone, in speaking to her children, the use of physical discipline and threats of physical discipline with her children during the visits.

[138] Ms. Couture testified that Ms. A. always brought good and nutritious meals for her children and always brought a game or games for the children to play as a family. Upon arriving for the visits and upon leaving the visits, Ms. A. always showed affection to her children offering them hugs and kisses. Of the three, K. was the most receptive to her affection. H. and A., to Ms. Couture’s observation, were less receptive and reciprocal in their demonstration of affection.

[139] Concerning the interactions between Ms. A. and her three children during the supervised access, Ms. Couture made the following observations. Despite the number of times she spoke to Ms. A. about the raising of her voice and the stern and dry tone she used, it did not seem to make any difference. Ms. A. always took the position that that was the way she talked and would not use a baby voice with her children.

[140] Ms. Couture found Ms. A. to be inflexible and lacking patience with her children, particularly around meal times or when playing games and she became verbally violent with the children. Ms. A. may be inflexible about what the children would eat at meal times but then would tolerate and not respond to K. hitting his siblings. Ms. Couture observed Ms. A. to get into escalating conflicts with her children, particularly K. over insignificant things such as whether a particular vegetable should be eaten. During these conflicts, which Ms. Couture called the “lutte de pouvoir”, Ms. A. would tell her children “tu ne gagnera pas”.

[141] According to Ms. Couture to her observation, when these conflicts would commence with K. or one of the other children, the other two children would attempt to distract their mother so as to prevent the fight. Ms. Couture would observe H. become anxious and not speak and A. would just shut down and not speak.

[142] In disciplining her children, Ms. A. would be physically aggressive in grabbing them, pushing them on a chair or in using physical restraints with the children. Ms. Couture gave some specific examples of this aggressive behaviour towards her children, ending with the children crying, being hurt and upset. According to Ms. Couture, Ms. A. would also use “time outs” in disciplining her children. However, in Ms. Couture’s opinion she used them too often and for too long a period and inconsistently. When cross-examined on how often Ms. A. used “times out” with her children during the visit, Ms. Couture indicated two to three per visit with K. being the child, getting most of them.

[143] Concerning the dynamics of the parent/children interaction during these visits, Ms. Couture observed Ms. A. during the visits to not engage the children in conversation and in about sharing aspects of their lives with her. She generally showed a lack of attention to what they were saying, especially in the case of H. This continued even after they commenced separate visits with each child individually with their mother.

[144] Ms. Couture observed that Ms. A. tended to focus her attention during the visits on the two boys and more so on K. rather than H. Ms. Couture observed a lack of affection on the part of Ms. A. towards H., although Ms. A. did use words of endearment towards H., calling her, her “little monkey”. Ms. Forest testified that Ms. A. once referred to H. as her “princess”. Even with A., Ms. Couture once observed Ms. A. push A. away when he went to kiss her because he had dirty hands. The child K. was the child who demanded all of her attention, through good behaviour or bad, and on whom she focused most of her attention.

[145] During the visits she supervised, Ms. Forest made similar observations. She testified to supervising one access period during which Ms. A. and Ms. A.’s mother visited together, a visit Ms. Forest described as “dérangeant” to watch as both Ms. A. and her mother verbally abused H. because of something she did and had the child in tears. Mr. Forest testified that she had to intervene in this visit and tell them to stop. Ms. Forest testified to another visit in April of 2013, during which Ms. A. brought belated Christmas gifts to the children but, inflexibly, despite the pleadings of the children, would not permit them to take them back to their respective foster home visibly upsetting all of the children by the end of the visit.

[146] Ms. Couture testified that despite her many efforts to model appropriate interactions for and discussions with Ms. A. about the tone and volume of her voice, about her attempting to ”reinforce” what the children were doing or saying, Ms. A.’s behaviour never seemed to change substantially and she did not appear to integrate the suggested conduct towards her children.

[147] Of the two weekly visits Ms. A. was granted, one of them was permitted to take place in Ms. A.’s home but neither Ms. Couture nor Ms. Forest noticed any difference in Ms. A.’s interactions with her children based on the location of the visits.

[148] According to Ms. Couture, whenever she would ask Ms. A. how she felt the visits were going she always replied to her that they were good. She gave the same reply to Ms. Forest when questioned about the visits by her. When questioned about how the children appeared to like the visits, Ms. Couture replied that both A. and K. seemed happy to be at the visits, especially when H. returned to the visits.

[149] Because of the continuing difficulties with the access, both Ms. Couture and Ms. Forest decided to reduce the number of visits per week from two visits to one visit. Exhibit #1 was the letter written by Ms. A. detailing Ms. Forest’s reasons for the reduction in visits.

[150] According to Ms. Forest, at about this time H. was demonstrating some resistance to visits with her mother. She attempted to speak to Ms. A. about this and to “brain storm” with her about how one could persuade H. to want to go to the visits. According to Ms. Forest, Ms. A.’s response was to suggest that H. could not get everything she wanted; H. would have to learn to await her attention and that she was spoiled by Mr. and Ms. L.V..

[151] In September, 2014, according to the testimony of Ms. Forest, visits in the home with Ms. A. were extended to include a supper and homework routine and she supervised two or three of those visits. According to Ms. Forest she did not observe any difference in the conflictual interactions between the mother and the children. She observed K. be aggressive with his mother. One of these included a visit when Ms. A. was particularly aggressive with H. because she had spilled something at the dinner table. Shortly after, H. was given the choice of not going to the visits and she chose not to until some recent visits.

[152] It was Ms. A.’s evidence that she found the supervised access difficult and unnatural and the supervision made her nervous. The space provided by the Society was small and difficult to visit in. There is no doubt that Ms. A. prepared for the visits, preparing food and organizing the children’s activities during the visit. With respect to Ms. Couture, Ms. A. was of the view that she and Ms. Couture got along well. Ms. A. found her talks with Ms. Couture helpful but short.

EVIDENCE RELATING TO THE CHILDREN SINCE BEING APPREHENDED

Re: H.

[153] The foster parents for the three children provided evidence concerning their care and observation of the three children since their apprehension. In addition, school professionals from all three children gave evidence as to how the children were doing since their apprehension from their mother’s care. Clearly H. is the child who has fared the best since the apprehension. For her living with Mr. and Ms. L.V. was a continuity and something that was familiar to her. Nonetheless, Ms. L.V. testified that H. was anxious and upset for her mother and brothers. A visit with her brothers was arranged and according to Ms. L.V., H.’s anxiety level appeared to subside.

[154] According to Ms. L.V., H. has always been very non-communicative about what went on in her mother’s home. According to Mr. and Ms. L.V., H. is doing well and appears happy in their care since her apprehension. They recognize her as a normal, very artistic and creative child who loves crafts. To their observation, H. lacks self-confidence about in engaging in various activities which appeared to be a first time for her when she was in their care, such as swimming, skipping, swinging and riding a bike. H.’s first response to a new activity would be that she could not do it, but with time and encouragement she would eventually master the activity. According to Mr. M.V., H.’s socialization skills and manners are also greatly improving since she has come to live with them on a full-time basis.

[155] Scholastically speaking, Mr. M.V. testified that H. encountered a high “learning curve” at her new school, l’École St. J[…], particularly in reading and mathematics. Mr. M.V. consistently assists H. with her homework.

[156] To the observation of Mr. and Ms. L.V., visits between H. and her mother since her apprehension have been a source of difficulty and anxiety for H. As the supervised visits continued H. became more and more hesitant to go to the visits. When the duration of the visits was increased in September of 2014, H.’s conduct at school became uncharacteristically rebellious and non-compliant. Mr. M.V. was called to the school about H.’s behaviour, involving defiance, not paying attention and not following directions.

[157] Three witnesses from H.’s current school were called to testify at the trial, Ms. M.R., the Principal of l’École St. J[…], Ms. L., H.’s teacher last year, and Ms. M.-J. G.-G., H.’s current teacher. All three confirmed that H. presents at school always clean and well-dressed, punctual and with her homework always done. All three knew her to be a calm, polite and compliant student who integrated very well into the school and its rules. Ms. M.R. found her to show good judgment and to be a discerning child. According to Ms. G.-G. she testified that there were some identifiable delays in her scholastic progress and it was always necessary to motivate H. to tackle the work but that there was progress. According Ms. G.-G., H. always referred to Mr. and Ms. L.V. as her mother and father.

[158] All three of these school professionals were also involved in one way or another in dealing with H.’s uncharacteristically defiant behaviour around September of 2014. According to Ms. G.-G. there were incidents when H. would not listen to her direction, would refuse to come in from recess or an outside activity, and would make disruptive noises while she taught or would begin to cry. All agreed that this unusual behaviour by H. was short lived, one or two incidents and then by October it was over.

[159] The evidence revealed that H. was, at this time, given the choice not to attend visits with her mother if she did not want to go. H. chose not to attend visits with her mother. Mr. M.V. was convinced that H.’s short lived misbehaviour was due to the increased duration of the visits that were implemented in the fall of 2014 and H.’s anxiety about possibly returning to live with her mother. According to Mr. M.V., to his observation H. is fearful of returning to her mother’s care and does not want to return.

[160] According to Ms. L.V., H. had a telephone conversation with her mother after the visits had stopped in the fall of 2014, which according to Ms. L.V. was very difficult for H. Visits between H. and her mother resumed for a while but by the time of the commencement of the trial H. again stopped visiting with her mother.

[161] H. throughout has continued to visit with her brothers. Mr. and Ms. L.V. are willing to arrange and facilitate the continuation of visits between H. and her brothers. They have worked together in conjunction with the Q. family to make these visits happen. They would continue to do this if H. were to come into their full-time and permanent care.

[162] Mr. and Ms. L.V. testified that they wish to parent H. on a permanent basis and to have H. in their full time care. They want to adopt H. but they are also willing to have an order granting them custody of H. They wish for H. every success she is capable of and they know her to be an inquisitive, tenacious, independent and determined child who has expressed to them her wish to become a paleontologist. Mr. and Ms. L.V. are receptive to having an “open” adoption for H.

[163] Mr. M.V. rejected the suggestion of having joint custody of H. with Ms. A. whereby he would have to consult her before making any major decision relating to H. He found that to be unworkable in view of his experience with Ms. A., “permissive” involvement rather than “active” involvement in the past, when action and decisions had to be made in H.’s best interests. According to Ms. L.V. he did not believe that Ms. A. would act in H.’s best interests.

[164] Ms. L.V. testified that since the Society application for Crown wardship was filed by the Society and since H. stopped visiting with her mother, Ms. A.’s communication with them has been conflictual and aggressive. Neither of them could ever recall Ms. A. asking them about how H. was doing. Ms. L.V.’s testimony was that Ms. A. has accused them of “brain washing” H. and that she would never let them adopt H.

[165] With respect to continued visits between H. and her mother, Mr. and Ms. L.V. would be willing to consider this if it were in the best interests of H. and if she so wished. He has never discouraged visits between H. and her mother. Ms. L.V. would want the visits supervised. Mr. M.V. was of the view that H., for now does not want to visit with her mother and he would not force her to do so. In his view H. needs a period of stabilization.

Re: A. and K.

[166] With respect to evidence concerning A. and K. after their apprehension, two witnesses were called, Ms. Sophie Lamoureux, a special educator at the École St. Jean in Embrun where the two boys have been attending since their apprehension and Ms. J.Q. the foster mother for the two children.

[167] Ms. J.Q. testified that when the two boys came into her care their conduct was extremely problematic. A. was angry, always complaining and spitting. He was not sociable at all. His sleeping habits were difficult in that he would wake up very early and begin to play, make noise and wake up his brother as if it were mid-day.

[168] With respect to K., he was more sociable and talkative, in a very high screaming level, and very much seeking her attention, but also had exhibitions of anger and spitting.

[169] To Ms. J.Q.’s observation both boys also exhibited fear of their baths and having their hair washed. However, with time, this became better. K. also demonstrated fear of the dark and so she arranged to get the boys a night light.

[170] Despite these early difficulties, it was Ms. J.Q.’s observation, after caring for them some 10 months that the two brothers are what she called “intelligent” and adorable. They are now responsive and affectionate with her. The boys get into disputes sometimes and Ms. J.Q. has had to separate them, but they generally appear to like each other, play well together and even show affection for each other.

[171] Ms. J.Q. has observed changes in the boys’ behaviour since their arrival although there are still some challenges. A.’s night time routine and early morning awakening took some time to manage but is now better. A., academically, is also doing well in school and getting good marks, especially in mathematics. Ms. J.Q. has also gotten A. involved in sports, such as soccer, lacrosse and baseball, all of which he enjoys very much.

[172] With respect to A.’s attention deficit, Ms. J.Q. testified that A. continues to need medication in order to function appropriately. When he misses his medication, it was the testimony of Ms. J.Q. that A.’s conduct is very challenging to manage as he behaves very differently. This was also observed by A.’s special educator, Ms. Lamoureux.

[173] Despite this progress, it was Ms. J.Q.’s testimony that A. still has difficulty with transitions in his school day and following teacher directions at school. When he gets frustrated or angry about something, such as not being able to do up his zipper, he will quickly have a “melt-down” or “crise”.

[174] With respect to K., he too is doing well in school and showing some academic strength in reading and learning letters.

[175] K.’s continuing behaviour in school also poses some ongoing challenges. Ms. J.Q. finds him impulsive in his actions and gratuitously aggressive with his brother and other students in his class, hitting them without any apparent cause or reason.

[176] K.’s incontinence was also a problem from the very beginning. Although, according to Ms. J.Q. also improved completely for a period of time from about February, 2014. Ms. J.Q. testified that two weeks ago he had another accident but assured her that he would control his accidents. Ms. J.Q. testified that for two weeks there has been no difficulty with this. K. still wears a night diaper.

[177] It was Ms. J.Q.’s evidence that to parent the two boys, she has had to exercise much energy and patience and has had to be consistent in her child care strategies.

[178] According to Ms. J.Q., the two boys never speak about their mother. Upon returning from their visits, Ms. J.Q. has not noted any change in their behaviour. According to Ms. J.Q. both boys appear to enjoy visits with their mother. Ms. J.Q. has also cooperated with Mr. and Ms. L.V. in arranging visits, as well as telephone conversations between the two boys and their sister, H. The two families also arranged for all three children to attend the same March break and summer camps.

[179] In order to keep Ms. A. informed of the boys’ progress and development, Ms. J.Q. began a communication book which went with the boys on their visits. However, Ms. A. never responded in the book so she gave it up.

[180] Ms. Lamoureux’s mandate, as a special educator, is to deal with the difficult behaviour and anger of students and to develop strategies for their management so that the students can function in a regular school class. Ms. Lamoureux uses an incentive system of stamps with the students as part of her teaching strategies. Ms. Lamoureux is trained in using physical restraints with students but has never had to use these on either A. or K. Ms. Lamoureux’s purpose in working with both A. and K. when they arrived at the École St Jean in Embrun, in January of 2014, was to deal with their difficult behaviour. Ms. Lamoureux testified that of a 6-hour day, approximately 4 hours is spent dealing with the behaviour of A. and K. because these boys have been made a priority for the school.

[181] Ms. Lamoureux identified the problematic behaviour of both A. and K. as being violent behaviour and uncontrolled melt-downs or “crise” that might also pose as a danger to other students. In the case of A., according to Ms. Lamoureux, it might take the form of, hitting, crying, complaining, grunting and refusing to follow directions such as coming into the school. Transitions in activity or movement from one class to another were a particular challenge for A. and often a source of a “crise”.

[182] For K., according to Ms. Lamoureux, he would have difficulty accepting routine and teacher directions, often refusing to do what he was told and behaving in a manner disruptive to the rest of the class. He also hit other students and sometimes teachers gratuitously without any apparent reason for doing so.

[183] Despite continuing behavioural challenges, Ms. Lamoureux has, in a 10-month period, observed some changes for the better in the boys’ behaviour, stability, confidence and knowing and following the school routine.

[184] With respect to the ongoing challenges, according to Ms. Lamoureux, A. still has difficulty in verbalizing what is bothering him when he goes into a “crise”. With some strategies she has used, she sees that A. is learning to communicate what is bothering him. On cross-examination Ms. Lamoureux testified that in the beginning it would not be unheard of for A. to have a “crise” three times per week, where perhaps the other students had to be taken out of the class for their own safety. Now, however, she estimates that it happens about once per week.

[185] According to Ms. Lamoureux, K. still has difficulty following routines and teacher direction although he is now open to changing his behaviour when reminded. K. now presents to be generally in a good mood and happy. K. continues to hit the other students for no reason but is doing it much less often than he did.

[186] Academically speaking, it was the view of Ms. Lamoureux that both boys are very capable of learning and doing well in their work. A. has an individual learning plan. A. does well in his school work but needs continual reinforcement and operates best with very concrete directions. It is his behaviour that may at times interfere with his learning.

[187] K. appears to love to learn and is curious and has a facility for learning. K. needs a lot of reinforcement to perform well.

RAPPORT D’ÉVALUATION PSYCHOLÉGALE DE PATRICE PELLETIER

[188] Mr. Patrice Pelletier, a psychologist, was chosen by the parties to conduct a psycho-legal assessment of Ms. A. and the three children in the French language pursuant to s. 54 of the CFSA. His detailed mandate was the subject of a consent order dated March 5, 2014, found at tab 11 of the Cahier du Procès and reproduced in his evaluation dated June 28, 2014, at page 3 of his report:

• Les compétences parentales de la mère, y compris les attributs, les compétences et les capacités les plus pertinents en ce qui concerne les préoccupations liées à la protection des enfants;

• La question de savoir si la mère a un trouble ou un état psychiatrique, psychologique ou autre qui peut avoir des répercussions sur sa capacité de fournir des soins aux enfants;

• La nature de l’attachement des enfants à la mère et les effets possibles sur les enfants d’une continuation ou d’autre rupture de cette relation;

• Le fonctionnement psychologique des enfants et leurs besoins sur le plan du développement, y compris leurs vulnérabilités et leurs besoins particuliers;

• Les capacités existantes et éventuelles de la mère de répondre aux besoins des enfants, y compris une évaluation de la relation qui existe entre les enfants et la mère;

• Le besoin d’interventions cliniques à l’égard des problèmes observés et la probabilité qu’elles réussissent.

[189] At trial, Mr. Pelletier was found to have the qualifications to undertake his assessment and to be so qualified as an expert.

[190] At the commencement of trial counsel for Ms. A. submitted that his client experienced difficulties during the assessment process because it was conducted in the French language and, as a result raised an issue about the assessment’s reliability. He also submitted that he would question the report’s reliability based on the facts used by Mr. Pelletier. At the end of the trial, counsel for Ms. A. did not address again the language issue.

[191] With respect to the issue of the language used during the evaluation process, Mr. Pelletier, at the beginning of his evaluation described in detail the documents he examined, the interviews he carried out with the parties and the children and others, the observations he made of mother-child interactions and the psychological testing he carried out on the mother and the children. In his oral testimony, as a result of questioning from counsel, Mr. Pelletier also described the dynamics of the language used and language standards used in his evaluation and why. After considering all of this evidence, I am satisfied that there was no disadvantage perpetrated to Ms. A. as a result of the chosen language of the evaluation. I therefore cannot conclude that the report is unreliable in its results due the chosen language of the evaluation, chosen by Ms. A.

[192] Mr. Pelletier’s evaluation filed with the Court and confirmed in the oral testimony he gave is generally not positive to Ms. A. as it relates to her capacity to parent appropriately and to meet the needs of H., A. and K. It is not necessary to reproduce parts of the evaluation here, it speaks for itself, but I intend to touch on some of the highlights of the evaluation and Mr. Pelletier’s oral evidence.

[193] Mr. Pelletier discusses his observations and findings relating to the child H. at pages 38 to 48 inclusive of his evaluation. Some of the highlights of his findings and opinions are:

• H. has had a longstanding diagnosis of attachment difficulties.

• H.’s perception of life in her mother’s home is one of confrontation, rigid rules, frequent crises, and episodes of being criticized and then ignored.

• H.’s perception of life with Mr. and Ms. L.V. is that she regards them as her first family, where they talk without screaming and she does not have to be on her guard. H. is completely comfortable in the V.. home. She is happy with the V..’s and did not hesitate to tell Mr. Pelletier that that is where she would like to stay and that she is anxious and afraid of returning home to her mother’s care. H. is capable of expressing her wishes and ought to be listened to.

• In her interactions with her mother, H. seeks contact with her mother and experiences frustration in being ignored by her mother. She does not seek confrontations with her mother and attempts to be the peace maker in confrontations between her mother and her brothers.

• H. is guarded in what she shares with you; is not prone to spontaneously connect with others and to have a certain distrust of others.

• H. lacks confidence when she does something new and needs much reinforcement in this regard.

• H. sees herself as different or “marginale” from other children of her age.

• H. does not suffer from any pathological or psychiatric disorder but it is likely that she has attachment difficulties (as opposed to attachment disorder) and that her capacity for attachment has been compromised.

• H. suffers from significant anxiety.

• H. experiences internal conflicts between her foster parents and her mother, that Mr. Pelletier describes in the following way: “H. rencontre des conflits internes importants. Elle aime sa mère mais elle souhaite ardemment continuer à vivre dans sa famille d’accueil avec qui elle semble clairement avoir établi des liens profonds d’attachement. H. est confrontée comme dans toute problématique d’attachement à une angoisse de séparation et d’abandon, un conflit entre le désir de se réaliser et s’individuer et la nécessité apparente de se soumettre pour ne pas se retrouver abandonné. Elle se sent actuellement prise en étau entre son passé et son futur. À cet égard, H. ne peut exprimer sa joie de vivre issue de ses activités chez les V.. avec sa mère qui réagit avec une colère et frustration évidente à ce niveau”.

• The relationship between H. and her mother is a precarious one in that H. does not feel her mother is committed to her emotionally and she often being the object of some rejection.

• H. needs a secure and stable environment with a structure that is firm, has an anticipated routine, but is not rigid or personalizes discipline. Mr. Pelletier concludes at page 48 of his report: “Tel que déjà mentionné dans le passé (il y a trois ans), H. a besoin d’un environnement sécurisant et stable où l’encadrement est étroit sans être rigide et la structure prévisibles en termes de routine. Dans un contexte de problématique d’attachement, l’encadrement (incluant la discipline) repose sur les routines prévisibles et les rituels plutôt que la critique des conduites (personnalisation de la discipline). Les sources d’anxiété, telle que la confrontation, et les approches punitives qui ont pour effet d’augmenter le besoin de réagir défensivement sont évitées. Le support et encouragement à démontrer ses compétences et la rétroaction positive sont utilisés pour réduire le sentiment d’insécurité et promouvoir la coopération. H. a besoin d’opportunité de faire des expériences où elle pourrait vivre des succès et être valorisée afin de développer un sentiment de compétence et appartenance. Elle a aussi à cet égard besoin de se sentir investie sur le plan affectif par l’effort perçue de l’adulte à vouloir décoder ses besoins, comprendre son vécu et répondre dans la mesure du possible à ses désirs.

• In his oral evidence Mr. Pelletier indicated that it would be “traumatique” for H. to take her away from the V.s.

• Mr. Pelletier testified that H. is an articulate child and her wishes are clear and she ought to be listened to.

[194] Mr. Pelletier discusses his observations and findings with respect to the child A. at pages 49 to 54 inclusive of his evaluation. Some of the highlights of his findings and opinions are the following:

• A. suffers from ADHD, a diagnosis made in 2012 and for which he continues to take and need medication to manage his behaviour.

• While placing A. on the autism specter was considered at one point, it was the view of Mr. Pelletier that this is not an accurate diagnosis based on his own observations of A. and those reported by his special educator, Ms. Lamoureux. That report indicates a progress over the last 10 months since his arrival at the École Embrun. He has shown himself to smile, learn and to interact with the other students. A. demonstrated the same tendencies when Mr. Pelletier encountered A. in the foster home. This is in contrast to A.’s previous “marginal” behaviour which to Mr. Pelletier demonstrated an absence of past structure and routine and a negative perception of the imposition of any restraints or limitation.

• Scholastically A. had no difficulty learning and has shown himself to be interested in learning. He is of superior intelligence compared to other children in his age bracket. He demonstrated an articulation difficulty in his speech.

• When being tested A. demonstrated some anxiety and preoccupation with getting the right answer. He also demonstrated frustration and impatience and anger when the task seemed too difficult.

• A. seemed to become particularly non-communicative or closed when he was asked to talk about is mother.

• In his foster home A. was generally compliant with the requests made of him. He might attempt to negotiate but did not show any opposition or defiance.

• In the observations of interactions with his two siblings, Mr. Pelletier found A. to interact well with both of them.

• In his visits with his mother, Mr. Pelletier observed A. seek out contact with his mother and have good interactions. However, when criticized by his mother or disciplined for something he did, according to Mr. Pelletier A. reacted very badly. His body would become rigid; he would cry and become angry with great difficulty in controlling his emotions. He then became defiant and oppositional. According to Mr. Pelletier the two visits he observed between A. and his mother ended “dans un climat relativement difficile et plutôt conflictuel pour A.” (Page 51, tab 16, Cahier du procès).

• On his psychological testing A.’s oppositional behaviour ratings appeared high. A. has a tendency to withdraw from others and was not ready to overly expose himself and his feelings. Mr. Pelletier opined that a social environment might be a source of anxiety and at times of aggression for A. Mr. Pelletier, although recognizing the existence of some tendencies in that direction ruled out an oppositional psychological disorder on the part of A., saying at page 54 of his evaluation, “… Au contraire, l’enfant ne cherche pas la confrontation. Il cherche à être accepté et maintenir un contact positif. Il a simplement très peu confiance de pouvoir y arriver et manifeste comme fréquemment rencontré dans le TDAH des variations fréquentes de l’humeur avec dysphorie. L’amélioration significative notée chez A. depuis quelques mois dans son désir et sa capacité d’interagir adéquatement avec les autres suggère qu’une problématique sous-jacente d’attachement est à considérer. En d’autres termes, la présence d’une certaine négligence des besoins affectifs et de structure semble directement liée aux conduites de l’enfant. L’évaluation suggère qu’A n’est pas insensible ou indifférent aux rapports avec l’autre mais plutôt méfiant et cherchant relativement délibérément à se retirer de la situation interpersonnelle qui es perçue comme facilement conflictuelle, exigeante et source d’insécurité. La réaction démesurée d’A. par le passé à toute critique, à tous refus, ses réactions agressives, le manqué d’habileté sociale et capacité de verbaliser (grognements, crises) peut être associée au TDAH mais soutient aussi, par l’intensité des problèmes, l’hypothèse d’un Trouble réactionnel de l’attachement. A. a démontré et démontre encore des signes d’un mode d’attachement insécure principalement de type évitant. En termes de besoins, A. doit bénéficier d’un environnement offrant un encadrement étroit et une structure prévisible, stable, afin de développer les capacités d’intégration et d’adaptation nécessaires à son développement socio-affectif. Il a besoin de se sentir investi sur le plan affectif. L’encadrement doit être exercé dans le contexte de routines et rituels clairs ou l’accent est mis sur le maintien d’une relation positive et la valorisation de soi plutôt l’exécution rigide de comportements attendus. Tel que déjà mentionné auparavant, l’utilisation de la séparation comme punition est peu souhaitable dans ce contexte. Par ailleurs, A. a besoin de développer ses habiletés à identifier ce qu’il souhaite, ce qu’il ressent, et à l’exprimer à l’autre. L’amélioration des habiletés à communiquer doit se faire dans un contexte d’opportunités d’échanger avec les pairs.”

• In his oral evidence Mr. Pelletier expressed the view that with a child like A., who has attachment issues, discipline by isolation and separation is contrary to what the child needs which would be diversion and reinforcement. A. is the most fragile, psychologically speaking of the three children.

[195] Mr. Pelletier discusses his observations and findings with respect to the child K. at pages 55 to 58 inclusive of his evaluation. Some of the highlights of his findings and opinions are the following:

• K. is a charming and energetic child who established easily a rapport with him. He clearly had difficulty sharing the attention of the adults with his brother. He was talkative all of the time and wanted to get the attention of the adults.

• He did not always follow directions given to him and attempted to negotiate he way around those directions but did not appear defiant or oppositional.

• During visits with his mother, to the observation of Mr. Pelletier, their interactions quickly turned into a confrontation about something or other to the point where Ms. A. attempted to control the behaviour of K. and he became progressively defiant. Mr. Pelletier observed that by this conduct K. monopolized the attention of his mother. Mr. Pelletier also noted that while Ms. A. would severely reprimand K. for certain behaviour such as what he ate, how he ate, and the use of bad words other, perhaps more serious behaviour, such as hitting his siblings, she would ignore.

• On his psychological testing, K.’s oppositional behaviour ratings are high and at page 57, “L’entrevue ajoute que K. ne démontre pas de culpabilité lorsqu’il a mal agit. Les punitions ont peu d’effet sur lui … encore une fois l’échelle de Trouble oppositionnel avec confrontation apparait significativement élevée. Au niveau qualitatif, il est noté que K. peut se montrer intimidant et « bully » avec les autres. Il est aussi noté qu’il cherche constamment l’attention de l’adulte.”

• At page 58 of his report, Mr. Pelletier writes that K. is a child, who, “en plus d’un problème d’encoprésie, de nombreux signes d’un Trouble d’opposition avec provocation surtout dans ses conduits avec sa mère. Il apparait d’intelligence supérieure, charmant, attachant, capable de facilement verbaliser son vécu, mais présente des lacunes au niveau de ses comportements sociaux qui compromettent son fonctionnement à l’école.”

• K. gets angry quickly and argues with what the adults are saying and can actively oppose or refuse to comply with the rules imposed by adults but eventually does comply. He likes to test the limits in his interactions with his mother.

• He can spontaneously demonstrate acts of aggression toward his fellow students.

• With respect to K.’s needs Mr. Pelletier concludes with these words at page 58 or his evaluation: “En termes de besoin, il est clair qu’une intervention continue et structurée est nécessaire auprès de K. pour éviter l’exacerbation du Trouble et son évolution potentielle vers un Trouble des conduites. K. ne démontre pas de violence à l’égard des animaux ou des objets. Il est clair toutefois qu’il manifeste aisément une violence interpersonnelle qui peut s’avérer inquiétante par rapport aux agissements futurs. Aussi, il arrive difficilement en ce moment à céder la place à d’autre et tient à monopoliser l’attention de l’adulte pour lui seul. Une évolution vers une tendance à utiliser la violence pour arriver à ses fins (intimidation, domination, etc.) est possible suivant la fantasmatique actuelle de l’enfant qui voit la relation avec l’adulte sous un mode de contrôle et domination.”

• In his oral evidence Mr. Pelletier testified that his mother is K.’s first attachment, as conflictual as it might be. He indicated that ending completely his contact with Ms. A. would be no doubt “traumatique” for K. Nonetheless, Mr. Pelletier noted that the two boys have been able to attach themselves to their foster mother, Ms. J.Q., and this type of connection would be the challenge for any adoptive family of the two boys.

[196] Mr. Pelletier discussed the psychological profile and parenting capacity profile of Ms. A. at pages 59 to 75 inclusive of his evaluation. Some of the highlights of his findings and opinion are the following:

• Ms. A. throughout the evaluation was open and did not demonstrate any aggression. She spoke openly and willingly about her current voluntary activities at her church and the satisfaction she received from that work. In fact, Mr. Pelletier concluded that Ms. A. gave great priority to these activities because it was at times difficult to get her to commit to meetings with him so that the evaluation could be completed.

• Ms. A. spoke to Mr. Pelletier about a number of physical ailments she suffered from which were never really diagnosed and the root cause of which was never discovered. Ms. A. informed Mr. Pelletier that she still suffers from these but at the time of the evaluation the symptoms were less severe. During his observations of Ms. A., Mr. Pelletier did not observe any trembling or loss of balance as described by Ms. A.

• In his discussions with Ms. A. about the protection concerns raised by the Society against her, he found her responses at times contradictory and he gave examples of this in his report. There clearly was anger and denials expressed by Ms. A. towards the Society in general and the social worker in particular.

• Mr. Pelletier during his visit to Ms. A.’s home, observed the clutter in her home and had discussions about it with Ms. A. It was the opinion of Mr. Pelletier, for reasons he explains at page 60 of his report, that there is a strong possibility that Ms. A. suffers from a pathological hoarding disorder. Ms. A. talked about the panic she felt if someone moved something in her home or if the children attempted to move something in the home. It was the view of Mr. Pelletier, that Ms. A. gave all sorts of reasons for the clutter in her home but did not seem to appreciate how the state of her home could impact on the children. It also seemed to be the view of Ms. A. that she sought help with her difficulty of hoarding but that no one would help her.

• Mr. Pelletier discussed with Ms. A. her perceptions of her three children and their needs. According to Mr. Pelletier, in their discussions, Ms. A. regarded all three of her children as normal like other children without any particular problems. According to Ms. A., H. needed someone to help her with her homework to succeed at school. K. behaved normally for his age but he had to learn better manners. A. clearly needed his medication for his attention deficit, and at times he was “awkward”. But apart from that he was also normal for his age according to Ms. A.

• Ms. A.’s intellectual profile suggests an individual who is action-based rather than reason-based, a tendency to act quickly without a lot of preliminary reasoning.

• With respect to other personality testing Ms. A.’s results and scores tended to be a profile that suggests an individual with low self-esteem and a weak sense of self who presents with significant difficulty adapting and uses denial to deal with several elements of her situation.

• According to Mr. Pelletier personality scores demonstrate a profile that “suggests a fairly substantial personality disorder.” (Page 10 of English Translation) Mr. Pelletier went on to describe the general characteristics of individuals with the profile of that of Ms. A. in the following way:

“Individuals with this profile are generally described as having poor social adaptation, experiencing difficulty establishing interpersonal and social relationships and finding little gratification in social relationships. They are often aggressive by nature and easily frustrated with their situation. It is often difficult for them to articulate the source of their problems, and they externalize blame for their problems, seeing no reason to change themselves. They present with an excessive use of defense mechanisms to maintain an adequate social image, but their fragility usually becomes very obvious to those around them. Depression is often present, but it is usually secondary to imposed constraints and frustrations. They do not have a sense of belonging and generally feel discouraged and misunderstood. Social interactions are pleasant provided they do not involve a review of their personality dynamics.

Marked elements of rigidity, pessimism, and negativity are present. There is a tendency towards argumentation, intolerance of differing opinions, rejection of criticism, and stubbornness. These individuals are over-controlling and they deny their anger in spite of their actions. The environment is perceived as threatening and the person remains vigilant and defensive.

When under stress from their environment or relationships, these individuals may suddenly adopt the role of an invalid, invoking somatic complaints. Physical complaints are used not only as a way of avoiding responsibility, but also as a way of gaining attention from others. The need for attention and reassurance is high. Passive manipulation through apathy is possible.”

• The personality testing also suggests that Ms. A. has “significant attachment issues” with a “very limited ability at forming relationships with others, a significant tendency to establish superficial relationships, and a relative lack of interest in getting involved at the interpersonal level.” (Page 11 of English Translation)

• At page 11 of English Translation Mr. Pelletier further observed of Ms. A., that she “demonstrates a very marked tendency to be passive and takes a laissez-faire approach to any situation that requires her to take charge or problem-solve. She has a tendency to pay superficial attention to situations and to spend little energy or effort building ties or generating solutions. In this respect, she does not seem motivated or bothered by circumstances that others would find undesirable. In this sense, she has a very high tolerance of mediocrity. Also noted is a tendency towards avoidance through fantasy, which is usually associated with adopting a dependent role and apparent helplessness with those around her.

We also noted very pronounced rigidity, which is expressed by an inability to consider points of view that are different from her own, to question herself or to set goals for change.

Lastly, observations of parent-child interactions suggest that Ms. A. presents with significant difficulties being engaged in flexible interactions with her children. Her emotional involvement seems difficult, restrained, and without demonstrations of pleasure. Other than a few spontaneous demonstrations of affection, Ms. A. does not demonstrate any particular interest in what the children are saying and does not ask for information about their lives. She does not wait for the child to spontaneously approach her for interaction or play. Rather, she determines the activities, games, and interactions. She not only discourages spontaneous interactions between the children, she also discourages them by ending them. For example, when H. and A. were having fun and laughing while playing a memory game while the mother was trying to hold K. back, she insisted that they “wait”, even though she had obviously been aware of the situation for some time. When they told her while laughing that they were able to win, her response to them, delivered in a serious and reproachful tone, was that they had cheated and that’s not how you play. She repeated that she had asked them to wait. Control over interactions and situations seem to dominate all other concerns with respect to relationships, including the pleasure of being together, playing, becoming close, etc. Similarly, Ms. A. handed out Christmas presents during a visit to the house that hadn’t been given out after the children were apprehended. However, she made them leave the gifts that they had just unwrapped at home rather than taking them with them. She refused to change her mind or her decision, despite the children’s distress and insistence. Every situation is reframed in terms of how things should be: ‘you have to share’, ‘we have to sit’, ‘you have to wait’, etc. Often, requests are not personalized. She will say, for example, ‘I would be very pleased if you …’. As mentioned, interactions are mainly based on rules and respecting them. Discipline is rigid and does not include the possibility of the child actually negotiating. The focus is constantly brought back to behaviours and expectations. Discipline is delivered in a dry and mechanical tone. Threats (loud, aggressive, severe tone of voice) and continuous reprimands are used. The dynamic of interventions with the child is ‘not letting him win’. The mother frequently says, even to the child, that ‘he won’t win’. As long as the child shows signs of resistance, he is confronted verbally to obey. However, the mother does not follow through on her threats consistently. We also note the mother’s tendency to constantly repeat to the children that they weren’t like this before and that they did not behave like this at home, which does not seem to resonate with the children.”

• The overall structure of Ms. A.’s personality demonstrates disturbances that are sufficiently severe that one can talk about a “borderline personality disorder with obsessive-compulsive and passive-aggressive elements dominating.” (Page 13 of English Translation)

• Ms. A. demonstrates an “attachment disorder that has evolved into permanent ways of experiencing reality and behaviours to deal with an environment that she sees as unsatisfying, demanding, and threatening. Ms. A. presents with marked difficulties in establishing emotional bonds and attachments. She presents with limited ability at empathy and it is therefore difficult for her to decode other people’s behaviour other than in terms of its impact on her, discomfort, and disruptions. Her lack of social skills, repression of feelings, and fear of intimacy are such that she has adopted a superficial mode of interaction in which control and manipulation are at risk of dominating. Her desire for emotional intimacy seems reduced, undoubtedly out of fear. In addition, her over-control, rigidity, stubbornness, negativity, inability to consider other’s points of view, and rejection of responsibility (which often evolve from an oppositional defiant disorder at an earlier stage of development) are such that she has rather sterile relationships with others when confronted. In this regard, she appears to be a poor candidate for psychotherapy and the prognosis for changes in these behaviours in such cases is very poor.” (Page 13 of English Translation)

• The “over-controlling aspect” of Ms. A.’s personality is closely linked to the “interpersonal dynamics that she established with the children and the psychological issues they have developed.” Ms. A.’s discipline is used to ensure the control and submission of the children. (Page 13 of English Translation)

• Ms. A. has sufficient knowledge of the children’s needs in terms of their physical needs and safety. But her resources and motivation does not seem to be up to the task of meeting those needs. Two examples Mr. Pelletier gave in this regard was Ms. A.’s inability to maintain a regular routine with the children and to ensure that their hygiene is taken care of. (Page 15 of English Translation)

• “Ms. A. demonstrates a very limited knowledge and understanding of the psychological and social needs of the children and seems even less aware of their specific needs.” For Mr. Pelletier this is borne out by the fact that Ms. A. does not seem to be aware that all three of her children present with psychological issues requiring professional and structured interventions. She is also inflexible about making any changes. (Page 15 of English Translation)

• Ms. A. seems to have adequate knowledge of the supervision and disciplinary methods that may be employed in the care of the children. However, her choice and execution of these methods are not always entirely appropriate and can sometimes be disturbing for the child. Her methods tended to be punitive (emphasis on withdrawals and separation) and not non-punitive such as diversion, rewarding good behaviour and reinforcement). Her discipline is applied with psychological aggression. (Page 16 of English Translation)

[197] In response to the specific mandated questions to be examined by him, Mr. Pelletier, concluded in his evidence, as follows:

• Re mother’s capacity to parent, including the most relevant attributes, skills, and capacities with respect to concerns over the protection of the children: (at page 19 of English Translation) “… Ms. A.’s significant personality disturbances and attachment issues are such that she has few resources and little ability to adapt and her parenting style is a combination of a lax daily routine and excessive rigidity in her approach to discipline (autocratic.)

Her parenting skills are therefore deficient in terms of her understanding of their needs (ability and interest in gaining a social and emotional understanding of and empathy for their needs), her motivation to respond to them (ability to set her own needs aside and to put energy into meeting their needs, such as the message book; ability at and initiative taken in anticipating, planning and organizing; tendency to be passive and to tolerate mediocrity), and her ability to use available resources to improve the children’s situation (resistance to any point of view other than her own, tendency to be stubborn, etc.). As mentioned, these relate back to Ms. A’s psychological dynamic and not to the situational context. The documentation and clinical meetings reveal how stable and relatively unshakable these features have been until now.

The children’s assessment reveals issues that are tangible consequences frequently associated with the neglect of a child’s emotional and social needs. The mother’s parenting abilities represent an increased risk that the children’s issues will continue and/or become worse if they are in her custody.”

• Re the question of determining whether the mother has a psychiatric, psychological or other disorder or condition that could have an impact on her ability to provide to her children: (at pages 19 and 20 of English Translation) “…The mother presents with several disturbances in terms of the structure of her personality that are sufficiently severe that we can talk about a borderline personality disorder with obsessive-compulsive and passive-aggressive elements dominating. We feel that this personality disorder likely evolved from an attachment disorder and possibly an oppositional defiant disorder during childhood/adolescence. These disturbances constitute a lasting and deeply-rooted way of seeing herself, others, and reality, being open to and reacting to emotions and feelings, and interacting at the interpersonal and social level. Ms. A. also presents with several aspects of a pathological hoarding disorder, but this could also be explained in part by the personality trait described earlier (passivity, laxism, rejection of responsibility, etc.). Some elements of depression are noted, but seem to be situational and relate to the pressure that has been brought to bear on her to modify her behaviour.

The mental disturbances have had significant and lasting repercussions on Ms. A’s parenting abilities and explain the poor progress made in spite of repeated and ongoing interventions to improve the situation.

As mentioned previously, the issues that have been identified in the mother, including her attachment issues, have had significant repercussions on the children’s mental state and social and emotional development.”

• Re the nature of the children’s attachment to the mother and the potential effects on the children of a continuation or break in this relationship, Mr. Pelletier for the reasons given by him at pages 20 and 21 of English Translation and earlier in his report, concludes that all three children have attachments to their mother that are problematic. H. has established “secure attachments to her foster parents” but that with her mother is “precarious”. Mr. Pelletier concluded that A. “demonstrates a lot of insecurity and ambivalence in his relationship with his mother. The conflict aspect creates a lot of distress and results in a tendency to remain distant and avoiding. He accepts and seeks affection from adults generally, but clearly remains on his guard. A break in the relationship with the mother certainly has consequences in terms of loss, but returning him to his mother’s care could have serious consequences for him in terms of his ability to form positive relationships and develop social skills over the long term.” With respect to K., Mr. Pelletier concludes: “K. seems to integrate a way of relating to others based on opposition and domination. He is clearly attached to his mother, but at the price of maintaining marked oppositional behaviours. K. demonstrates an insecure undifferentiated mode of attachment in several regards. He mainly seeks unreserved and unlimited attention from adults, in a somewhat voracious manner (monopolizing resources without achieving any real satisfaction). For now, a break in the relationship with his mother could be negative, considering the special place she offers him. However, it is clear that returning him to his mother’s care could have serious consequences for him in terms of his ability to form positive relationships and develop social skills over the long term.” (at pages 20 and 21 of English Translation)

• Re the children’s psychological development and the needs in terms of development, including their vulnerabilities and specific needs, Mr. Pelletier at pages 21, 22 and 23 of English Translation concludes that with respect to H., she needs “a safe and stable environment where she receives direct supervision without rigidity and where her routine has a predictable structure. In the context of an attachment disorder, supervision (including discipline) needs to be based on predictable routine and rituals rather than on a criticism of behaviours (personalization of discipline). Sources of anxiety, such as confrontation and punitive approaches that have the effect of increasing the need to react defensively are [to be] avoided. Support and encouragement to demonstrate her abilities and positive feedback are [to be] used to reduce her feelings of insecurity and to encourage cooperation. H. needs opportunities to have experiences in which she can be successful and feel validated in order to develop a sense of accomplishment and belonging. In this respect, she also needs to feel that adults are invested in her emotionally, and she is able to see this through efforts to find out what her needs are, to understand her experience, and to meet her needs where possible. …

With respect to A., “a young boy with superior intelligence”, Mr. Pelletier indicates, “the significant improvement noted in A.’s desire and ability to adequately interact with others in recent months suggests that an underlying attachment disorder should be considered. In other words the presence of some neglect to his emotional needs and structure seem to be directly linked to the child’s behaviour. The assessment suggests that A. is not insensitive or indifferent to relationships with others; rather, he is distrustful and seeks to withdraw rather deliberately from interpersonal situations that he perceives as potentially conflictual, demanding, or a source of insecurity. A. has demonstrated and continues to demonstrate signs of an insecure avoidant attachment style.” …

A. has the same specific needs of his sister which are linked to attachment issues. “He needs to develop his ability to identify what he wants and how he feels and his ability to express this to others. His communication skills must be developed in a context where he has the opportunity to interact with peers (socialization).”

With respect to K., who has intelligence, “likely higher than average”, Mr. Pelletier had the following to say. This child is “charming, engaging quite capable of verbalizing his experiences but presents with shortcomings in terms of his social behaviours that are compromising his functioning at school. He has an issue with encopresis and multiple signs of oppositional disorder with provocation, especially in this behaviour with his mother.” While Mr. Pelletier recognized some improvement over the last few months, he also saw the need for ongoing, structured intervention “in order to prevent an exacerbation of the disorder and its potential development into a behavioural disorder”. He readily manifests inter-personal violence which may be of concern in his future actions. “He may develop a tendency to use violence in order to get his goals met (intimidation, manipulation, etc.), based on his current fantasy in which he views child-adult relationships from the perspective of control and domination.”

• Re the mother’s current and future ability to meet the children’s needs, including an assessment of the relationship between the children and the mother, it was the opinion of Mr. Pelletier that Ms. A.’s personality and attachment disorders are central factors in triggering and perpetuating the children’s social and emotional issues. Furthermore, her deficient parenting abilities have resulted in several forms of neglect that are the source of most of the children’s behavioural and emotional issues. These deficiencies could exacerbate the children’s mental states and compromise the current and future development of healthy relationship skills. Mr. Pelletier concludes that given Ms. A.’s personality disorder issues, her lack of empathy, her lack of access to the world of emotions, her cognitive and behavioural rigidity, and her failure to accept responsibility, it is unlikely that Ms. A. can meet the specific needs of the children now or in the future. (Page 24 of English Transaction)

• Re the need for clinical interventions with respect to the issues observed and the likelihood that they will be successful, Mr. Pelletier addressed the specific needs of each child above and made his recommendations with respect to that. With respect to Ms. A., he concluded that for the reasons given in his assessment she appeared to be a “poor candidate for psychological intervention and that the prognosis for change is poor.” He points to the various counselling and parenting skills courses Ms. A. has taken without an appreciable change to the way she has cared for the children. She does not seem to accept any responsibility for the circumstances and so would make therapy difficult and long. Change is not impossible but would be long-term and must be spontaneous rather than forced. (Page 25 of English Translation)

• On cross-examination Mr. Pelletier recognized that it could make a difference in how the mother did in addressing the issues raised, if she perceived she was in a supportive environment. When the indicia of some changes in Ms. A.’s behaviour, such as uncluttering her house, working to a set routine with Mr. C., the community and family she may have developed at the Church she attends, and the faithful attendance of the mother at all of the access visits was put to him, Mr. Pelletier indicated that this was all good and positive on the part of Ms. A., but that it did not change her basic personality.

MS. A.’S RESPONSE TO MR. PELLETIER ASSESSMENT

[198] Ms. A. does not accept the conclusions of Mr. Pelletier with respect to the two boys. With respect to H. she accepts that H. is unchangeably attached to the V..’s. As a result H. should continue to live with them.

[199] With respect to A. and K., Ms. A. does not agree with Mr. Pelletier that she does not have the capacity to parent the two boys nor that she contributed to their emotional problems. In fact, she testified at the trial that she finds their behaviour worse than before they were apprehended by the Society. K.’s encopresis appears to have intensified and A.’s anti-social behaviour has worsened to her observation during the access visits. According to Ms. A. this could well be attributable to the apprehension itself. It is further the position of Ms. A. that since the apprehension of the children, she has made substantial changes in her life and home that will permit her to appropriately parent the two boys and to meet all of their needs. Many of these changes were referred to by Mr. Pelletier as “positive” changes in her life.

[200] Counsel for Ms. A., submitted that the findings of Mr. Pelletier relating to the children were based on inaccurate and incomplete information and hence should be given little weight. Specifically, counsel for Ms. A. argued that Mr. Pelletier did not make any contact with school officials at the children’s previous school, École St. A[…], when they were in the care of their mother in order to compare their behaviour at that time with their behaviour at their current school. With respect to this last point, Mr. Pelletier did not deny that getting information from the children’s previous school would have been preferable but that he did not have time to do so.

[201] With respect to this point, there was substantial evidence presented by the Society concerning the behaviour of A. and K. when they attended the École St. A[…]. It was notably similar to the behaviour observed by the educators at the École St. Jean in Embrun when the children arrived there after their apprehension. I was not persuaded on the basis of the evidence as a whole that the behaviour of these two children in school has become markedly worse after apprehension than that observed by their teachers at the École St. A[…] before their apprehension. In fact, if anything, it has become progressively better, but with still a lot of consistent and structured intervention required is what it may be concluded from the evidence.

[202] Counsel for Ms. A. also argued that some facts found by Mr. Pelletier regarding Ms. A. such as that she was not cooperative with school officials or not making sure the children’s homework was done, was not accurate. The evidence showed that Ms. A. was always cooperative with the school educators and open to their recommendations. Her evidence was that she generally made sure the children did their homework.

[203] With respect to this point Mr. Pelletier acknowledged the conflicting information he received, even from Ms. A. who would say she made sure the children did their homework and then would also say she was too tired to help the children with their homework at night. Ms. A. was receptive to the suggestions of the teachers but never seemed able to get the children to school on time even when spoken to by the principal, Mr. J.B..

[204] On the whole of the evidence I was not given any reason to reject the evaluation of Mr. Pelletier. I found many of his findings and conclusions to be very consistent with evidence given by other professionals and other witnesses who had contact and interactions with Ms. A. and her children over the years.

THE FINDING OF NEED OF PROTECTION

[205] At the commencement of the trial, it was agreed to by all parties that these children could be found to be in need of protection. The dispute between the parties remained in the scope and basis for that finding. Based on all of the above evidence, I am persuaded that all three children can be found to be in need of protection on the four grounds sought by the Society, namely, that the children have suffered physical harm (s. 37(2) (a); that the children risk suffering physical harm (s. 37(2) (b); that the children have suffered emotional harm (s. 37(2) (f); and, that the children are at risk of suffering emotional harm (s. 37(2) (g). The reason for this conclusion is as follows.

[206] Ms. A. has conceded that because of the state of her cluttered house and her lack of routine, the children risk suffering physical harm. With respect to H., Ms. A. conceded that if H. were to be returned to her care, she would be at risk of suffering emotional harm because of the child’s attachment to the V.s.

[207] The evidence overwhelmingly supports the conclusion that by letting her home remain in the cluttered state established by the evidence, Ms. A. has not provided her children with a safe and sane environment in which to develop and follow even a modicum of routine in the absence of chaos. Consistency, structure and routine were lacking in the home life of these children but could also not be found because of the state of the home. In my view, the pictures of Ms. A.’s home found in exhibit #2 demonstrate graphically the physical hazards and restrictions her home posed for very young and active children. I accept Ms. Roy-Levesque’s lay opinion, that the cluttered stairs were a cause for worry if there were to be a fire. Add to this scenario of the cluttered house the added concern one would have for two young children locked in a room at night without a functioning light for months on end with a “potty” to relieve themselves during the night.

[208] There is no question, on the preponderance of evidence, that the personal hygiene of the children, despite the evidence of Ms. A. to the contrary, was neglected by her. A number of witnesses testified to their observations of the children’s clothes, their person and their body odour. The evidence overwhelmingly establishes a pattern of neglect, a lack of structure, routine and consistency on the part of Ms. A., all of which, together with the state of the home leads to the conclusion of physical harm and risk of physical harm to the children.

[209] The evidence establishes that all three children have suffered emotional harm while in the care of Ms. A. This conclusion is supported by the evaluation and expert opinion of Mr. Pelletier, who found that Ms. A., because of her own attachment difficulties and personality traits, had little insight into her own parental style and its impact on her children, the catastrophic relationship she had with her three children and little empathy for the emotional needs of her children.

[210] According to Mr. Pelletier the conflictual and catastrophic relationship Ms. A. has with all three of her children has caused emotional harm to the children and threatens to continue to cause further emotional harm if they are returned to her care without structured intervention for the children and some fundamental change on her part. The evidence relating to the behaviour difficulties that all three children began to exhibit in school from the beginning is legion.

[211] Mr. Pelletier’s findings and conclusion are very consistent with the observations of both Ms. Couture and Ms. Forest during their substantial opportunity to observe Ms. A. interact with her children during the supervised access. Evidence of the conflictual relationship, as observed by teachers and other witnesses certainly predated the apprehension. There is no question that a number of witnesses have observed some good interactions between Ms. A. and her children but the evidence overwhelmingly proves that the parent-child interactions are more often than not problematic, resulting in emotional difficulties for the children.

[212] For all of these reasons, H., A. and K. are found to be in need of protection

PLAN OF CARE FOR THE SOCIETY

[213] The plan of care put forward by the Society is that all three children be made Crown Wards with the plan for the adoption of all three children. It is the position of the Society that Ms. A. is not capable of providing the structured interventions these children need, as confirmed by Mr. Pelletier. It is therefore in their best interests that they find the stability and consistency of structured parenting they need through being adopted.

[214] The Society submits that in the case of H., Mr. and Ms. L.V. have already shown themselves capable of caring for H. so as to meet her emotional and physical needs. They wish to adopt her and H. wishes to continue living with the V.. family as a permanent member of their family. According to the Society this is best done through the adoption of H. by Mr. and Ms. L.V., who are open to H. continuing contact with her brothers, as well as with her mother if that is in H.’s best interests.

[215] With respect to A. and K., the plan of care is also adoption. There would be an attempt to keep the brothers together with an “openness” to their sister, H.

[216] Ms. Lucie Clemont, an experienced adoption worker for the Society testified to the adoption process in general. She spoke of the low rate of adoption break-down within her knowledge. She testified that the Society encourages “openness” with extended family, siblings and parents where appropriate.

[217] Ms. Clemont had not had any direct contact with A. and K. She would not do so until they became available for adoption. When questioned about the adoptability of children exhibiting ADHD and attachment difficulties, she did not view those situations as difficulties for the adoptability of such children in her experience. Many such children have been adopted was her evidence inclusive of sibling adoptions.

[218] From all of this evidence one must conclude that A. and K. are very adoptable with a good possibility of the brothers remaining together.

MS. A’S PLAN OF CARE AND THE CHANGES SHE HAS UNDERTAKEN

[219] With respect to H., as has already been mentioned, Ms. A. agrees with part of the Society’s plan to have H. remain in the care of Mr. and Ms. L.V.. Nonetheless, for Ms. A., the plan of adoption for her children would be what she called an “abandonment” of her children, which she does not see to be in the best interests of her children. It is for that reason that she asks this Court to grant a custody order to Mr. and Ms. L.V., or a joint custody order to them and her, pursuant to s. 57.1 of the CFSA. Ms. A. concedes that Mr. and Ms. L.V. would have final decision making power regarding H. but she would like to be informed and consulted on these issues. Ms. A. is of the view that she has worked cooperatively with Mr. and Ms. L.V. in the past and requested of them to get involved with H. in her best interests. She testified that she felt she could work with them in the future. She would also like to have visits with H. once per month or any other fixed schedule.

[220] With respect to the boys, Ms. A. testified that she is aware that her relationship with the boys has been described by Mr. Pelletier as “catastrophic”. Nonetheless, she feels that this can be worked on so that she can care for her two boys. To this end, since the apprehension of her children, it was Ms. A.’s evidence that she has undergone a number of changes in her life that addresses the Society’s concerns and Mr. Pelletier’s evaluation of the children and herself.

[221] Firstly, Ms. A. testified that she has learned to introduce routine and structure into her life and feels she is now able to care for her children with structure and routine. She described the kind of routine she would follow with the children. Ms. A. also testified that she would stop going to the Tim Horton’s on a regular basis unless the children wanted timbits. When asked why she did not follow a routine when she had care of the children, Ms. A. testified that she did not know how to keep a routine and she was always very tired from not sleeping properly. Mr. C. has helped her with this. He is a friend and has been a support for her

[222] Ms. A.’s evidence was that after the apprehension of the children she began to fill her time volunteering at the Biker’s Church store. She did this for a number of months but by the time of the trial she had ended this. With the help of her friend Mr. C. she began to work with him, starting with a very early morning schedule, collecting scrap metal. She continues to do this, for six or seven days per week and has been very faithful in her attendance. She does not get paid for this work other than to receive some meals and cigarette money. Ms. A. testified that this work can be very hard and she can be exhausted by it.

[223] Mr. C. confirmed in his evidence that Ms. A. has been coming with him to work with him on his scraps and snow clearing runs. According to Mr. C., he invited Ms. A. to do this because she was feeling so low after the apprehension of her children and he felt this would keep her busy. He also felt that the early morning schedule would help eliminate her insomnia. According to Mr. C., Ms. A. has attended faithfully and on time because she knows that if she is not there he leaves without her.

[224] When questioned how she would handle this early morning schedule once she had the care of the children and had to get them to school and pick them up after school, Ms. A. testified that she would work around the children’s school hours. According to Ms. Forest, when she put this same question to Ms. A. her response was that she would ask the school to care for the children until she could get there.

[225] Again with the help of Mr. C., Ms. A. has begun to unclutter her house. Mr. C. testified that about two months before the trial he went to Ms. A.’s house to help her clean it up. Mr. C. described the house at that time as having an odour and being “packed” and Ms. A. was at a loss as to what to do about it. Mr. C. began to help her unclutter parts of the house so there was lots of passing spaces, move furniture around, get rid of some stuff and some pets. Mr. C. assisted Ms. A. clean and wash floors. According to Mr. C. by the time they were finished the house smelled good.

[226] Shortly before the trial, Mr. C. fixed the light in the boys’ room and removed the lock from the boys’ bedroom door.

[227] Ms. A. produced some photographs of her house after the uncluttering she had done with the help of Mr. C.. These were filed as Exhibit #14. An examination of the photographs in Exhibit #14 reveals a substantial uncluttering of the areas depicted. The dining room table is cleared and usable and the living room area is clear and open. Ms. Forest who visited the home in early November, 2014, agreed that in Ms. A.’s dining room there had been a great improvement made in uncluttering. However, according to Ms. Forest, the rest of the house appeared the same. Ms. Roy-Levesque was also asked to examine exhibit #14 and commented that one could conclude that there was some progress in the clean-up of the dining room but that the kitchen and the children’s rooms appeared to be in the same state. Ms. Lowther visited Ms. A.’s house about two week before the trial and observed the house to be cleaner and less crowded and she did not notice a smell in the house. Ms. A. agreed that other parts of the house such as the kitchen were still a work in progress in terms of uncluttering.

[228] Ms. A. testified that she got rid of a number of her pets and at the time of the trial had one cat and a dog which she acquired after the children were apprehended.

[229] The evidence revealed that Ms. A. also pursued courses in an attempt to improve her parenting skills. Ms. Forest testified that she was aware that Ms. A. finished a parenting course with Helene Renaud of the Catholic Family Service of the Vanier Community. The course ran from the end of January, 2014, to the end of May, 2014. According to Ms. Renaud of the 18 sessions, Ms. A. missed three. The parenting course content included such subjects as the age development of children, different and appropriate discipline techniques, not to scream and yell and threaten, look at children directly and to speak to their level, making rules clear, reinforcement and encouragement and the importance of routine etc. Ms. Renaud did not recall that Ms. A. asked for special help. She also recalled her as participating in the course and making comments that appeared relevant to the topic of conversation.

[230] Ms. A. also registered in and completed an anger management course with Elizabeth Fry in the early part of 2014.

[231] In November of 2013, before the children were apprehended, Ms. A. began to attend another parenting course run out of her Church, the Vanier Community Church which ran one evening per week. According to Ms. A. she heard that the course was about “bonding”, something she did not have with her own parents and wanted to develop it with her own children. Ms. Heather Counsell teaches that course and gave evidence about the content of the parenting course and its grounding based on Dr. Neufeld, a developmental psychologist, parenting model focusing on “attachment” between parent and children. Ms. Counsell used DVDs of Dr. Neufeld’s talks as a tool from which to conduct discussions with the class. Ms. Counsell described briefly the content of the course and provided a written description of it filed as exhibit #16. It included such topics as appropriate discipline so as to preserve the parent child relationship and to meet the emotional needs of the children. The course discouraged the use of force or coercion.

[232] According to Ms. Counsell, the course ran from November, 2013 until April or May of 2014. There were no summer classes. Ms. Counsell’s recollection was that Ms. A. never missed a class. Ms. Counsell testified that she recalled Ms. A. being an active participant in the course. She seemed eager to learn, asked a lot of questions and appeared able to relate the content of the course to events in her own life. In her examination in chief, Ms. A. was asked to describe some of the things she learned in the course and what she could apply to her own children. I found her answer to be vague on this and she could not recall. She did say that she learned to give children nods and smiles when she would first see them.

[233] When asked what services the Church could provide Ms. A. and her family, Ms. Counsell testified that Ms. A. could continue to attend the course as all of Dr. Neufeld’s DVDs were not yet covered and completed. In fact, Ms. A. is continuing to attend this course. According to Ms. Counsell the Church does not provide personal assistance to families like a social agency might. However, friendships developed in the Church congregation would offer support to an individual.

[234] Ms. A. testified that she was now conscious of other things in her treatment of the children that she should change and was working on it. With respect to how she spoke to the children, while she was frequently advised by Ms. Forest and Ms. Couture that her voice in speaking to the children was loud, harsh, dry and clipped which would be disturbing to young children, Ms. A. did not believe them. According to Ms. A., her voice was her voice and that was the way she spoke. She would not use “bebeism” with her children. Ms. A. testified that some of her friends have now convinced her that maybe she should make changes to the way she spoke to the children and she is working on that.

[235] Ms. A. testified that she is now more conscious of the conflictual nature of her relationship with the children. She is also working on that and “picking her battles” with the children more carefully and being more flexible about what behaviour she permits, such as at meal time.

[236] With all of these changes, it was Ms. A.’s evidence that she wants the boys to return to her care. The home is in a better state and there is more space. Ms. A. will continue to attend Ms. Counsell’s parenting course. She will maintain better routines and she will change her methods of discipline and avoid times out as suggested by Mr. Pelletier. Ms. A. testified that she will continue to work on the “attachment issue” and see what she can do to get that “bond” with her children again. She will use reinforcement; give them more hugs and kisses and tell them she loves them and she will encourage them.

[237] Ms. A. also testified that she will seek out the “insight therapy”, referred to by Mr. Pelletier, if she can get.

[238] Ms. A. testified that she will work with the Society if its workers are willing to give her advice and help her. Although she did not have any concrete suggestions about how she could make the relationship between herself and the Society work.

[239] When questioned about how she perceived all of the changes she has made in her life and all of her intentions for changes appeared in the context of the trial, Ms. A. testified that she was always doing what she could and the best that she could. When questioned why it took her so long to begin to unclutter her house, some three years, Ms. A. testified that she tried to get help for this but was denied that help.

SECTION 37(3) OF THE CFSA BEST INTERESTS FACTORS

[240] Any decision dealing with the final disposition relating to H., A. and K. is to be made on what is in their best interests. Section 37(3) of the CFSA details the circumstances that the Court ought to consider when determining what orders would be in a child’s best interests. The factors that appear to be relevant to the facts of this case are ss. 37(3) 1., 2., 4., 5., 6., 7., 8., 9., 10., 11., 12. and 13.

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.

[241] I will deal with factors 1. and 2. together because they are related.

[242] H., A. and K. are three young children who given their age and stage of development require adult care that loves them and nurtures them to meet their emotional needs. They also need adult care that can provide them with all of their physical needs. This was made clear in Mr. Pelletier’s assessment. No one can question the love Ms. A. feels for her children. Furthermore, as Mr. Pelletier found Ms. A. intellectually was capable of knowing what the physical needs of her children were. Nonetheless, she lacked the motivation to follow through on providing those needs.

[243] The evidence established that the three children have suffered physically and in her care continue to be at risk of physical harm as a result of her neglect, which included disregard for basic hygiene, lack of a sane home environment and chaotic child care routine.

[244] The evidence established that she has known for a very long time what she has had to do. Her evidence that she did not get the help she needed to unclutter her house, in the face of the evidence of the many services given to her in this regard is hardly credible.

[245] Ms. A., together with her friend Mr. C., are to be given credit for the small progress they have made in the current state of the Ms. A.’s home. However, the underlying problem has not at all been addressed by Ms. A. Without that being addressed, one can reasonably conclude that these initial efforts may not be sustained. Furthermore, much of the house continues to be cluttered to the observation of other witnesses.

[246] Based on the totality of the evidence there is substantial evidence to conclude that these children, in the care of their mother, have suffered emotional harm. In his report Mr. Pelletier and in the observations of a number of witnesses, the emotional harm suffered by these children likely explains their problematic behaviour, inadequate and interpersonal and social behaviour at school, withdrawn or marked aggressive behaviour, poor positive relationships with adults, poor relationships with peers at school, a poor ability to follow instructions at school, poor tolerance of frustrations particularly in the case of A., crises or tantrums and encopresis in the case of K. All of these according to Mr. Pelletier are frequently associated with emotional and social needs.

[247] That these behaviours are new or became worse only after apprehension, as Ms. A. believes, belies comprehension. The difficult behaviour of her children is long standing and the evidence supports this fact.

[248] Ms. A.’s own personality disturbance and attachment issues, according to Mr. Pelletier, has prevented her from understanding, in a real way, her children’s emotional needs and respond to them. In this regard her parenting of the three children has been seriously deficient. Not understanding the emotional needs of her three children, she has not been able to respond to those needs as she should have. Indeed, according to Mr. Pelletier this has contributed to the emotional difficulties of H., A. and K.

[249] The evidence has shown that when Society workers suggested certain actions, Ms. A. passively failed to take action although appearing agreeable and open to the suggestions at times. At other times she resisted or ignored the constructive challenges of those who tried to help her in her dealings with her children. Ms. A. provided excuses as to why she could not carry out the suggestions, such as modulating her voice when she spoke to the children. She also shifted the blame to others. She could not unclutter her house because no one really helped her.

[250] According to Mr. Pelletier Ms. A.’s personality traits may explain the poor progress demonstrated by her, despite the many services, interventions and parenting courses pursued by her.

[251] According to Mr. Pelletier, and as evidenced in their behaviour, H., A. and K. are three children who have attachment difficulties with respect to their mother. H.’s relationship with her mother is emotionally precarious. On the evidence there is no question that her substantial emotional attachment is with the V.. family.

[252] A.’s emotional attachment to his mother is precarious and ambivalent and often conflictual that causes him distress in their interactions. He often withdraws or has tantrums during those interactions. K.’s attachment to his mother is oppositional and often a battle for domination in their interactions.

[253] All three children need a parent who is aware of these delicate emotional needs and can respond to them as suggested in Mr. Pelletier’s report. On the basis of all of the evidence it is questionable as to whether Ms. A. is capable of appropriately meeting the children’s physical, mental and emotional needs in the reasonably foreseeable future without substantial intervention in dealing with her own issues. It is also clear, as Mr. Pelletier pointed out, given the physical, mental and emotional development and the ages of the children, they need to have these needs met now in the interests of their long term development of social skills and their ability to form positive relationships in the future.

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

[254] This circumstance appears to be of mixed importance in the lives of these children. Attendance at Church appears to be a pillar of the V. family life and H. has shared in this. Ms. A. has supported this. Indeed she and A. would attend Church with the V. family and the two older children were baptized in the V. Church. If H. continues to live with the V. family, this religious dimension will remain a continuity in H.’s life. One can assume that Ms. A. will continue to support this in her daughter’s life.

[255] With respect to her own continued Church attendance there was some evidence that Ms. A. has participated in some Church services through her attendance at the Vanier Community Church. The preponderance of evidence dealing with Ms. A.’s involvement in this Church community is through her volunteer work in the Church store and then subsequently in her attendance at Ms. Counsell’s parenting course. Apart from this there is no evidence that Ms. A. has made any friendships through that Church who may give her support as referred to by Ms. Counsell in her evidence.

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

[256] The importance of this factor for the healthy and solid development of any child cannot be questioned. With respect to H., the evidence overwhelmingly establishes that it is quite questionable whether H. has developed a positive relationship with her mother. In fact, the opposite appears to be true. Their relationship is quite problematic, to the point when being allowed to not attend access with her mother, H. has chosen not to do so. To the observation of Mr. Pelletier and the Society workers, Ms. A. quite noticeably gives preferential treatment, both in time and in how she responds, to the two boys. When this was brought to her attention or when she was asked how she thought H.’s reluctance to attend visits might be resolved, Ms. A. was dismissive of H.’s need to have some of her time or had a very decided view of how Mr. and Ms. L.V. may have influenced the child to not want to come to the visits. In fact, the evidence establishes that Ms. A. has frequently been insensitive to H.’s emotional needs as a child and her place in the family.

[257] In contrast to this the relationship between H. and Mr. and Ms. L.V. appears to be very positive. The evidence showed that H. feels very much a part of that family. H. grew up speaking French to her mother and Mr. M.V. can speak French and can interact with H.’s teachers and school officials. Given the fact that Mr. and Ms. L.V.’s own children are young adults, H. in fact has been given a very special place in that family and is developing very well and thriving there.

[258] With respect to A. and K., the evidence of Mr. Pelletier and the observations of other witnesses establish that the relationship between these two boys and their mother is problematic and not necessarily positive. The dynamics of their interaction is often conflictual. The children do suffer from attachment difficulties with their mother. This factor then has been compromised in the life of the two boys while in the care of their mother.

[259] Mr. Pelletier, in great detail, described the immediate interventions these two boys needed in order to have their emotional needs met and in order to deal with their attachments difficulties. These include such things as a safe and stable environment, predictable routine, parental direction and supervision without rigidity or discipline that turns into confrontation and battles of will, support and reinforcement. Mr. Pelletier noted the positive development in behaviour with both boys even in the short time since their apprehension.

[260] On the evidence it is questionable whether Ms. A., even with the recent changes made to her life, would be able to provide in a consistent way those interventions required for the boys to overcome their problematic attachment to their mother, and develop a positive relationship with her and secure a place in the family that is not conflictual and problematic.

6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

[261] All three A. children have an emotional tie to their mother. Mr. Pelletier spoke of H.’s internal conflict between the love and loyalty she feels for her mother and making the decision not to see her and to want very much to be cared for by Mr. and Ms. L.V..

[262] With respect to A. and K., as observed through the access visits, the two boys enjoy visiting with their mother. Ms. J.Q. testified that the boys enjoy attending the visits with their mother. During the visits there are demonstrations of affection and the seeking out of affection from Ms. A. by the boys, despite the other problems of interaction that inevitable show up during those visits. On the other hand, Ms. J.Q. also testified that the boys never speak about their mother between visits and when they return from the visits there is no change in their behaviour and it is like they never went on the visits.

[263] Based on the evidence of Mr. Pelletier, confirmed by the observations and testimony of many of the witnesses who gave evidence at this trial, the emotional attachment between the mother and her three children, despite her belief otherwise, is problematic and without substantial remedial interventions poses risks to the physical, emotional and mental health and development of the children.

[264] There is clearly a strong emotional tie between the three siblings. Ms. A. testified that when H. did not come to one of the visits for her brother’s birthday party the boys were clearly disappointed. Both foster homes have tried to maximize the sibling contact as much as is reasonably possible and the children have clearly enjoyed and benefited from this. The two foster families have arranged visits, telephone calls, picture posting and camp registrations so as to maximize sibling contacts.

[265] With respect to the respective plans of the parties, Mr. and Ms. L.V. have indicated that while H. is in their care they will do everything in their power to allow her to have continued ongoing contact with her brothers. With respect to contact with her mother, it is their view that that should occur if it is in H.’s best interests.

[266] Ms. A.’s plan would not mean any disruption in the emotional ties between herself and the boys. And, she clearly would see that the boys have contact with their sister as a positive objective.

[267] With respect to the Society’s plan for the adoption of the two boys, this would be a complete rupture of the emotional ties the boys have with their mother. Based on the evidence of Ms. Clemont, there is a strong possibility that the boys could be adopted together and that an openness agreement regarding sibling contact with H. could be attained.

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

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.

[268] I will deal with these two factors together because they are closely related.

[269] Clearly, continuity of care is in the best interests of the children. In the case of H., and to her credit recognized by Ms. A., that means continuing to be taken care of by the V.s. There is no question that Ms. A. has been a constant emotional and parental force in H.’s life. Nonetheless, it is fair to say on the evidence presented at this trial so have Mr. and Ms. L.V., who have been caring for H. since she was 5 months old for varying extended periods of time; who were there to effectively deal with a number of significant issues in H.’s life such as her schooling and her health care. In fact, for most of H.’s life Ms. A. has enjoyed the assistance of Mr. and Ms. L.V. in her care of H.

[270] In fact, it would appear from the evidence that if the continuity of contact between Mr. and Ms. L.V. and H. were to be interrupted it would not bode well for H.’s well-being. When H.’s contact with Mr. and Ms. L.V. was terminated for a brief time, after the interaction between Ms. L.V. and Mr. D. A., H.’s behaviour took a downward spiral. When H., perhaps suspected that she might be returned to her mother in September of 2014, just prior to her terminating her visits with her mother, her behaviour at school became uncharacteristically oppositional at school which stopped once she began to determine whether she would attend visits with her mother or not. It is clearly in H.’s best interests to continue to be cared for by the V. family.

[271] With respect to A. and K., there is no question that if the Society plan for adoption were to be accepted as being in their best interests, except for the apprehension, there would be a permanent disruption in the continuity of their care. Mr. Pelletier did not deny the serious nature of this permanent disruption to the continuity of their care by their mother. For A. it would have certain consequences in terms of loss. For K. it could be a negative thing, “considering the special place she offers him.”

[272] Nonetheless, Mr. Pelletier also noted that the children have been able to adapt reasonably well to their foster care and develop some attachment with their foster mother, Ms. J.Q.. They have even managed to make progress in their difficult behaviour at home and at school and in their school work. In the final analysis one has to look at how these two children have already coped with a substantial disruption from their mother’s care and the possibility of it becoming permanent one and weigh that against the risk of continuing emotional and physical harm if they are returned to the care of their mother.

[273] Finally, one must ask if the changes Ms. A. has undertaken since the apprehension of the children are sufficiently substantial to provide some realistic hope that she could begin to remedy the problematic, insecure and ambivalent relationship between Ms. A. and her two young sons. Ms. A. has not even commenced her own personal therapy. She has also taken a number of parenting courses and been offered numerous suggestions concerning her interactions with her children. I am not persuaded on all of the evidence that her changes are sufficiently substantial in the necessary areas. Furthermore, it would take a substantial amount of time for those changes to take place, if they were to take place, according to the expert opinion of Mr. Pelletier. And, these children do not have that amount of time. They need to have their needs met now.

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

[274] With respect to H., all the parties are agreed that she should remain in the care of Mr. and Ms. L.V.. All of the evidence presented supports the conclusion that it would be in H.’s best interests to remain in the care of Mr. and Ms. L.V..

[275] H. has been a member of the V. family since she was 5 months old. Based on the submissions of her counsel and the findings of Mr. Pelletier, H. wants to continue living with the V.s and be part of their family. In her evaluation drawings for Mr. Pelletier her first family was that of the V.s, including her V. siblings. At school H. refers to Mr. and Ms. L.V. as her parents. H. identifies with the V. family and wants to be a V.. Given H.’s long history with going into and coming out of the care of Mr. and Ms. V. it is not unreasonable to conclude that permanent stability for her would come with an adoption by the V. family ending, at least, any anxiety she may feel as a result of not being, formally and legally a V.. In my view any other order that would not assure for H. that permanent stability would not be in her best interests.

[276] On the facts of this case, in which it is clear that H. is an integral member of the V. family, it would be artificial to finalise her status in that household by way of a custody order. In view of her movements in and out of the V. family over her short life, such an order would not meet H.’s emotional and mental needs for clarity and stability. Adoption orders are permanent in their definitions of relationships and all that goes with it. Custody orders determine care and parental authority and responsibilities for the duration of a child’s minor years. It is subject to variation and to disputes. It is subject to access disputes. H. needs permanency and stability and the knowledge that she has parents that are totally invested in her.

[277] While Mr. and Ms. L.V. have collaborated with Ms. A. in the past in the best interests of H., their relationship has become strained since H. has terminated her visits with her mother and since the Society’s plan became adoption of H. by the V.s. It is clear that Ms. A. blames Mr. and Ms. L.V. for some of the circumstances of her life. Given how Ms. A. regards the possibility of adoption of any of her children, the possibility of any future collaboration between her and the V.s may not be reasonably possible. The evidence also supports Mr. M.V.’s view that Ms. A. collaborated in the past in a passive way relying on others to carry out the necessary work and efforts to address the needs of her children. This would make any effective working of a joint custody order impossible and full of uncertainty. In brief, this would not be in H.’s best interests.

[278] With respect to A. and K., the plan of adoption, once the initial stage of rupture and adapting has been gone through, would provide the boys with a chance for some structured and stable parenting. According to Mr. Pelletier this kind of parental intervention is required to address the emotional damage suffered by these two children in the care of their mother. It is very possible that the boys can be adopted together and also very likely that they will continue to have contact with their sister. For all of these reasons the plan for adoption has merit.

[279] Ms. J.Q. has testified that if the boys are available for adoption, then she would do everything in her power to assist the two boys with that transition.

[280] Based on the evidence as a whole it is unlikely that Ms. A. is capable of providing the parental intervention to permit her sons to develop emotionally and mentally in a healthy way. In fact, it was the view of Mr. Pelletier, if returned to the care of their mother, their future healthy development would be seriously compromised. Ms. A. is not able to meet the needs of her two boys because of her personality structure and her own attachment issues. Unhappily, Ms. A. has not been able to persuade this Court that the changes she has undertaken have equipped her to appropriately parent A. and K., to intervene in such a way that she addresses the emotional damage caused in the relationship with her sons and to parent into the future to ensure the emotional and mental health of the boys.

[281] The merit of Ms. A.’s plan is that the boys will not have to undergo the difficulty of that final disruption of their relationship with her. But in the end, if continuing contact with their mother, as in the case of H., is in the children’s best interests, openness is never ruled out ever with an order of adoption.

[282] Ms. A. does not seem to understand the emotional needs of her children, nor does she accept any responsibility for their current situation. This, points to a conclusion that it is unlikely her parenting of the two boys would change if they were to be returned to her care. This weakens the merits of her plan of care tremendously.

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

[283] H. has made her wishes known. According to Mr. Pelletier H. is mature and clear and consistent in her wishes. She ought to be heard, was the view of Mr. Pelletier and the strong submissions of her counsel.

[284] The boys are too young and emotionally troubled to express their wishes in any coherent or articulated way so that they may be considered. Nonetheless, it is recognized that according to Ms. J.Q., both boys enjoy going to visits with their mother, even though based on the observations of Ms. Couture and Ms. Forest, that visits continue to be problematic in the interactions between the mother and the children. The two boys appear to transition well from the visits to the routine of their foster home.

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

[285] Delaying this matter, given the passage of time that has already occurred in this case, is not in the best interests of the children. The uncertainty of her circumstances has already caused H. some anxiety affecting her behaviour at school at the commencement of the school year. H. needs a final decision with the greatest stability and permanency possible as soon as possible.

[286] With respect to A. and K., the likelihood of a future breakdown if they return to the care of their mother and the added delay that would cause to reaching a final decision in their permanency planning must be considered against the assessment of the likelihood of success of Ms. A.’s plan of care to have the children returned to her. In my view, the evidence does not support the finding that Ms. A. has accomplished the necessary psychological changes that increases the possibility that her future parenting of A. and K. will meet the current emotional needs of the two boys and not cause further emotional damage to them.

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

[287] There is no question on the evidence that Ms. A. has begun to unclutter her house recently. From the photographs found in Exhibit #14, at least for the rooms depicted in the photographs the living space is a much healthier one for the children. In those rooms the risk to physical harm to the children has clearly been reduced. According to Ms. Forest other rooms in the house remain cluttered and in the same state as before. Even after all the time that has passed and all of the assistance Ms. A. received with the uncluttering of her home, for Ms. A. the kitchen is still a “work in progress”. The underlying cause for the state of Ms. A.’s home has not been addressed by Ms. A. in any meaningful way. There is no evidence to support the conclusion that these minor physical changes in Ms. A.’s life will continue and be sustained. In my view the risk to physical harm, while diminished in certain rooms of the children’s home, remains of concern on the facts of this case.

[288] It is recognized that the adoption of a personal routine in her personal life can only be helpful to Ms. A. in being able to stick to a routine for the children in the future that will minimize the pattern of neglect which the children have experienced in the past by way of their hygiene and by way of getting to school on time.

[289] With respect to parenting capacity as it relates to these three children and their very specific emotional needs, Ms. A. has taken numerous parenting courses. Since last November she has been taking Ms. Counsell’s parenting course that focuses on healthy attachments between parents and their children. Through the process of Mr. Pelletier’s evaluation and her many discussions with the Society workers, Ms. A. has had an opportunity to consider the merits and disadvantages of the methods of discipline practiced by her in the past and the nature of her verbal and physical interactions with her children. Despite all of this, her interactions with her children at access remains to the present time conflictual over trivial matters such as the eating of brussels sprouts. Time outs are still featured in a regular way in her visits with the children. Ms. A. has not made any efforts to address her own psychological difficulties. Ms. A. has stated many intentions of future actions. For the moment they remain intentions. As a result, the risk of continued emotional harm of these children remains high.

13. Any other relevant circumstance.

[290] The factor that must be mentioned under this general category is the time that it has taken Ms. A. to act on matters, of which she can be taken to have been aware very early on have touched on the well-being and best interests of her children. In the face of the history of this case and the long standing involvement of the Society in the life of Ms. A. and the repetitive identification of the protection concerns, one must ask why did it take Ms. A. so long to do the most minor of things that were long determined to be in the best interests of her children? Why did the partial uncluttering of her house occur just months before this trial? Why did the fixing of the lights and the lock in the boys’ bedroom only get done approximately two weeks before the trial? Why were the large number of pets, that clearly contributed to the unhygienic conditions in the home only removed after the children went into care? By delaying in these matters, Ms. A. was not according to her children the priority they deserved and therefore, she was not acting in their best interests.

[291] The many future stated intentions of Ms. A., of what she “will” do if the children are returned to her, which is part of her plan of care for the children cannot help but be viewed in the context of this long history of passive inaction and resistance. Mr. Pelletier concluded his evaluation of Ms. A. and the possibility of real change on her part with the following hopeful words:

Change is not impossible, but [it would be] over the long term, in a context in which Ms. A. agreed to address her own situation and her own attachment disorder, which are compromising her relationship with her children. This type of psychotherapy takes time and would be based on her exploration, insight, and acknowledgement of her own feelings of inadequacy and of being imperfect. This process must be spontaneous and come out of suffering; it would be futile to expect results if she were forced to do this. (Page 25 of English Translation)

[292] It is hoped that Ms. A. will commence this process for her own sake outside of the context of this child protection proceeding.

DISPOSITION

[293] After weighing all of the evidence in this matter and considering that evidence in light of factors that ought to be considered in determining what is in the best interests of these three children, I am persuaded that the Society’s plan of care for all three children is in their best interests.

[294] I therefore make a final order making H., A. and K. Crown wards with a view to their adoption.

[295] There will be no order as to access. On the evidence it is clearly in the best interests of the children that they have contact amongst each other. However, the possibility of the children’s adoption should not be compromised. I am satisfied on the evidence presented that every reasonable effort will be made to permit the contact between the siblings to continue in the best interests of the children without jeopardizing the possibility of the children’s adoption.

[296] With respect to visits between H. and her mother, Ms. A. has asked that such visits be fixed at least once per month. Given H.’s current resistance to such visits and the past treatment of H. by her mother during access visits, I am not persuaded that fixing any access at this time would be in H.’s best interests.

[297] All of the evidence points to the conclusion that Mr. And Ms. V., as H.’s foster parents, have only acted in her best interests. There is nothing to suggest that, if they were to become her adoptive parents, they would begin to act contrary to H.’s best interests. The question of what contact H. may have with her mother in the future should be left to their discretion and what they determine is in H.’s best interests at the time.

M. Linhares de Sousa J.

Released: January 6, 2015

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

ONTARIO

SUPERIOR COURT OF JUSTICE

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

AND IN THE MATTER OF H.G., born […], 2005; A.A., born […], 2007; and K.A., born […], 2009

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

T.A., (the mother) and

A.G., (the father of H.G.)

Respondents

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

Released: January 6, 2015