This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

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

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

CITATION: Children’s Aid Society of Hamilton v. K.C., N.B. and A.A., 2016 ONSC 2751

COURT FILE NO.: C316/13

DATE: 2016-04-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicant

– and –

K.C.

Respondent

Suranganie Kumaranayake, for the Applicant

Joel Kerr, for the Respondent

N.B.

Respondent

A.A.

Respondent

HEARD: March 30, 31, April 1, 4, 5, 6, 11, 12, 2016

The Honourable mr. justice a. pazaratz

1. This was an eight day trial of a Status Review Application originally returnable August 25, 2015 in relation to a now seven year old male child T.P. and a three year old female child A.B.. The Children’s Aid Society of Hamilton (“The Society”) requests an order that each child be made a Crown ward without access.

2. The only Respondent who presented a plan and participated in the trial is the mother K.C.. On October 26, 2015 T.P.’s father A.A. and A.B.’s father N.B. were both noted in default.

BASIC CHRONOLOGY

3. On […], 1990 the mother was born. She is 25 years old.

a. Her mother has native status and is still involved in her life.

b. Her father did not have native status. He passed away in May 2013.

c. The mother does not have native status, although she “self-identifies” as native. I will review this issue in more detail below.

4. The mother grew up in Brantford, Ontario. She struggled in school and had behavioural issues from an early age.

5. Just before turning 18, on […], 2008 she gave birth to T.P.. T.P.’s father had a single visit when the baby was one month old. He hasn’t been involved since then and appears to spend most of his time in jail.

6. The mother continued a pattern of drug and alcohol abuse after T.P. was born, and soon Brant Family & Children’s Services (“Brant CAS”) became involved. The mother testified about her lifestyle at the time:

a. She became a heavy user of alcohol and drugs (oxycontin and percocets) in 2010.

b. Her parents were aware of her alcohol and drug use, and that she was going out to bars every night.

c. She said she would drink seven days a week and was “always” under the influence of alcohol and/or drugs.

d. T.P. was still in her care while she was using alcohol and drugs. She said her parents took care of the child when she wasn’t able.

e. In October 2011 she finally relinquished control of T.P. to her parents, because her problem with substance abuse was so bad.

7. Eventually the mother and her parents signed a series of voluntary service agreements placing T.P. in the care of her parents. The agreements included the following requirements relating to the mother:

a. She was to have access to T.P. in the discretion of her parents. She wasn’t allowed to be alone with the child. But under cross-examination she admitted she didn’t abide by this restriction.

b. She was to participate in an addictions assessment and follow through with recommendations. Under cross-examination she admitted she didn’t comply with this requirement.

c. She was to participate in hair follicle testing as requested by the Society. Under cross-examination she said Brant CAS didn’t ask for a long time.

d. She was to complete a parenting program. Under cross-examination she admitted she didn’t take a course while living in Brantford. Later she took a parenting course in Hamilton.

e. She was to cooperate with Brant CAS and meet regularly with her Family Service Worker.

f. She was to obtain safe and stable housing and maintain it for a period of three months if she wanted T.P. reintegrated into her care. Transiency had become a problem for the mother after she moved out of her parents’ residence.

8. The day after A.B. was born on […], 2012 a further voluntary services agreement was signed with Brant CAS placing both children in the care of the grandparents, with restricted access to the mother. That agreement included the following preamble:

“…Over the past year the Society has had concerns regarding drug use and transience. It has been difficult to assess K.C.’s caregiver/parenting skills. T.P. has been living with his grandparents and the CAS has not had regular contact with K.C., and it appears that she has not been the primary caregiver to T.P.. The worry is that K.C. is not ready to move out on her own to be the sole parent to two young children. The CAS wants to ensure she has support in parenting and to be able to assess her ability to meet all the needs of her children.”

9. Under cross-examination K.C. acknowledged Brant CAS’s expectations of her were reasonable.

a. But she admitted she didn’t keep in touch with Brant CAS – even while pregnant with A.B. – because she was spending most of her time in Hamilton with N.B..

b. She admitted she had no difficulty arranging transportation between Brantford and Hamilton to be with her boyfriend.

10. That last voluntary services agreement with Brant CAS was supposed to continue until April 1, 2013. But in January 2013 the mother, her parents, her sister, and the children all moved to Hamilton. The mother explained the rationale for the move:

a. Her father had many health problems and wanted to be closer to his doctors who were in Hamilton.

b. The mother wanted to be closer to N.B..

11. However, that relocation to Hamilton ended up triggering an apprehension of both children by the Hamilton Society on February 20, 2013 – acting at the request of Brant CAS. Among the concerns which led to the apprehension:

a. The family was not abiding by the terms of the voluntary services agreement. A safety plan developed by Brant CAS was not being followed.

b. K.C.’s parents were unable to control her or restrict her interaction with the children.

c. The family was not being cooperative with the Society.

d. The children’s physical care and developmental needs were not being met.

e. K.C. was still drinking heavily.

f. The mother’s ongoing relationship with N.B. was violent, with the conflict fuelled by alcohol abuse.

12. The extremely volatile and violent relationship between K.C. and N.B. was a major and recurring issue which I will review in more detail below. But to help understand the Society’s concerns in February 2013, I will mention just a couple of the many examples.

a. During the early morning hours of January 25, 2013 K.C. was found injured and intoxicated on a roadside. She had been attacked by N.B. in the latest of what was already a long history of violent assaults. She had bite marks on her right thigh and left breast. She had been punched in the mouth. But she refused medical attention and insisted she didn’t want N.B. charged because she loved him.

b. There were lots of drunken assaults like that – both before and after the February 2013 apprehension.

c. On October 9, 2011 – while K.C. was eight months pregnant with N.B.’s child – he pushed her out of a car travelling 40 to 50 kilometers per hour, causing her to land so violently that she had a miscarriage. Both parties had been drinking. Even as of that date there had been eight to nine police reports of serious assaults by N.B.. Nonetheless, K.C. continued the relationship and spent most of her time with N.B., leaving T.P. and eventually A.B. with her parents.

13. On February 25, 2013 Justice Mazza made a temporary order placing both children in care of the Society, with the mother to have three one hour visits per week at the Society’s discretion. T.P. and A.B. were placed in separate foster homes, because a single home for both of them could not be arranged.

14. The original Society Application dated February 25, 2013 named Six Nations of the Grand River as a Respondent party.

a. The Society says it initially included the band as a party because it was unclear whether the children were eligible for native status.

b. However, Six Nations subsequently provided the Society with confirmation that neither of the children was eligible for native status.

c. As a result the Society brought a motion which led to the May 24, 2013 order of Justice Brown, removing Six Nations of the Grand River as a party.

d. The mother consented to that order, and she never subsequently took the position that the children had native status or that the band should be involved in these proceedings.

e. However, during closing submissions at trial, the mother’s counsel attempted to re-open this issue, suggesting the children’s native heritage had not been adequately addressed.

f. I will further discuss this issue below.

15. Service of the original Application on T.P.’s father A.A. was dispensed with. N.B. was served but didn’t respond and was noted in default.

16. By all accounts K.C. made sufficient progress that after five months the Society agreed to return the children to her under supervision.

17. On July 15, 2013 Justice Chappel made a Final Order which included findings:

a. The children were in need of protection.

b. The children were not native

c. The children were not Catholic.

18. Pursuant to minutes of settlement the mother signed, A.B. and T.P. were returned to her care for six months under comprehensive terms of supervision including:

a. K.C. to cooperate with Society workers.

b. Society to have right to interview children alone.

c. K.C. to ensure the children receive regular medical attention and follow through with any recommendations by professionals.

d. K.C. to maintain communication with her Society worker and attend any scheduled appointments.

e. K.C. to refrain absolutely from possessing and/or consuming alcohol while children are in her care, and ensure no other person who appears to be intoxicated has access to the home while the children are present.

f. K.C. to sign consents for release of medical and educational information about the children.

g. K.C. not to possess or consume any illegal drugs and not allow any person who appears to be under the influence of illegal drugs to have contact with the children.

h. K.C. to sign consents and release forms for Society to obtain her medical, counselling, or psychiatric records.

i. K.C. to advise Society immediately if she has any contact with police and provide particulars.

j. K.C. to immediately report any child management difficulties.

k. K.C. not to use physical discipline with the children or allow anyone else to do so.

l. K.C. to provide adequate and safe housing for the children, maintained in a clean and orderly fashion.

m. K.C. not to expose the children to domestic violence, including but not limited to punching, kicking, pushing, choking, aggressive arguing and foul language.

n. K.C. to notify Society immediately of any change in address or telephone number.

o. K.C. to ensure the children attend school on a consistent and regular basis.

p. K.C. not to permit A.A. or N.B. to have contact with the children unless approved by the Society.

q. Access by A.A. and N.B. shall be at the discretion of the Society and supervised at the discretion of the Society.

r. K.C. to follow through with any services recommended by the Society or any treatment professionals involved with her.

19. The Society brought a Status Review application returnable January 15, 2014. On the first return date the mother consented to an order extending all of those same terms of supervision for another six months.

20. The Society brought a Status Review application returnable July 2, 2014. On the first return date the mother again consented to an order extending all of those same terms of supervision for another six months.

21. During that year which elapsed after the children were returned to the mother in July 2013, she was still having problems. That’s why the Society kept requesting extensions of the supervision order. But everything seemed to be going relatively well until August 14, 2014 when problems became so serious the Society again apprehended both children.

22. It started on August 13, 2014:

a. The Society received a report from police that on the previous evening the mother had been assaulted by N.B..

b. The mother had taken the child A.B. to N.B.’s residence.

c. Just after 3:00 a.m. the mother confronted N.B. about a girl she thought he was sleeping with. He grabbed her by the arms and threw her to the ground. When she was on the floor he kicked her and said “I’m going to kill you and get custody of our daughter.”

d. A.B. was asleep but the commotion woke her up and the child was terrified.

e. The mother ran out of the house and flagged down police for assistance.

23. All of this was reported to Society worker Laurie Hepburn who had just been assigned to the file. Hepburn didn’t have a lot of background information when she went to the mother’s home to investigate.

a. The mother and the maternal grandmother both told Hepburn that the previous Society worker Joanne Friesen had authorized N.B. having access so long as the mother was present.

b. The mother confirmed the narrative set out in the after-hours police report. She had taken A.B. to N.B.’s residence where he assaulted her and frightened the child.

c. She had gone to the police station to pursue a complaint about the assault.

d. She was going to get photographs of injuries she said she had to her stomach.

e. The mother stated she had been seeing N.B. “on and off”.

f. The mother said she had taken A.B. for one previous visit with N.B. in May 2014.

g. The mother kept repeating that Friesen knew all about the visit and it was ok.

h. However, the mother said she now wanted nothing more to do with N.B..

24. Hepburn initially believed the mother’s explanation that an authorized visit with N.B. had gone badly.

a. She accepted the mother’s assurances that N.B. didn’t know where she lived, and she wouldn’t initiate any further contact with him.

b. The mother promised she wouldn’t allow N.B. any more access.

c. The maternal grandmother reassured the worker she would also be staying at the mother’s residence with the two children.

d. On that basis, Hepburn took no further action.

25. But while driving away from the mother’s residence, Hepburn was finally able to reach her supervisor by cell phone.

a. Hepburn was then given the proper background information.

b. She learned about the repeated court orders prohibiting the mother from allowing N.B. to have any contact with the children.

c. She was advised that Friesen had never authorized the mother to allow A.B. to see N.B.. To the contrary Friesen had repeatedly reminded the mother that she had to keep the children away from N.B..

26. Hepburn then returned to the mother’s residence and explained that now that she had the whole story, the Society was going to have to insist on a better safety plan for that evening:

a. She asked whether the mother and children could spend the night with relatives, or perhaps go to a shelter.

b. Hepburn said the mother reacted badly. She described the mother’s demeanor as going “from zero to 10 very fast” meaning that she became very agitated with the worker and screamed “You’re going to take my fucking kids.”

c. Hepburn said the grandmother tried to keep the children away from the escalating discussion, but the mother started screaming obscenities at Hepburn. The worker testified the mother was “understandably” distraught.

d. Hepburn went to her car to make cell phone inquiries about shelters – but also to get away from the mother who was becoming very upset at the front door.

e. Ultimately, Hepburn was able to find shelter space in Brantford for the mother, grandmother and the children. But the mother then said she would refuse to go to Brantford as a result of previous bad experiences with Brant CAS. The mother also refused to go to a Native Women’s shelter in Hamilton because that’s where her two children were previously apprehended in February 2013.

f. Hepburn said fortunately the mother was able to reach her female cousin A.C. who agreed they could all spend the night at her residence, with her husband and their three children.

g. Everyone agreed this was a temporary fix, with safety planning to be further discussed the following day.

27. Early the next morning A.C. advised Hepburn by telephone that she and her husband were not able to provide support or accommodation for any of them. A.C. was six months pregnant. They had a busy family life. Hepburn’s supervisor then instructed her to apprehend the children if no other safety plan immediately became available.

28. Hepburn and Society worker Christina Balogh drove to A.C.’s residence that morning. A.C. was leaving for work but gave them permission to enter the home. Hepburn called for police to stand by, in light of the mother’s extremely aggressive behaviour the previous day.

29. Upon their arrival the Society workers met a maternal uncle N.C. who had been called to the home.

a. N.C. said he might be interested in providing some care for the children.

b. But he also said the mother was inside A.C.’s house and very angry and upset. He went in to try to talk to her and get her to calm down.

c. Eventually, after police arrived, N.C. invited the Society workers inside, assuring them the mother had calmed down.

d. Hepburn testified initially the mother didn’t want to talk to her. But soon after she again went “from zero to 10” and started yelling obscenities. The police tried to calm her down, but with little success. (Hepburn testified that there were other occasions when the mother similarly became very suddenly volatile and aggressive with her.)

e. With the situation quickly escalating, and with no further safety options immediately available, Hepburn and Balogh decided the children shouldn’t be witnessing the mother’s aggressive behaviour. They needed to be removed from A.C.’s home.

f. Hepburn advised the mother they were taking the children to the Society office. N.C. agreed to come down to the office to allow the Society to further evaluate his proposal that the children might be able to stay with him and his wife.

30. Hepburn testified that despite diligent efforts, the Society wasn’t able to arrange any alternative to foster care.

a. N.C. showed up at the Society office mid-afternoon, and there wasn’t time to complete an immediate assessment of him.

b. The mother initially supported the children going to N.C.’s residence, but within days she changed her mind, saying she didn’t want the children going to N.C.’s mobile home in Ohsweken.

c. In any event, just as Hepburn was going to attend N.C.’s home to evaluate it, N.C. cancelled the meeting. He said he was reconsidering his position and needed some time to think about it. At one point N.C. said he would only take the children if the mother didn’t have any access to them, because he didn’t want to have to deal with her. Eventually N.C. advised the Society he wasn’t prepared to care for either child under any circumstances.

31. With no other safety options immediately available, on August 14, 2014 the Society placed the children in foster care.

a. Hepburn said they tried to find a single foster home for both children, but this wasn’t possible.

b. They also tried to place T.P. in the same foster home where he remained after the initial apprehension in February 2013, but that placement was also unavailable.

c. The children have remained in their respective foster placements ever since.

32. The Society brought an Early Status Review Application seeking six months’ Society wardship, returnable August 19, 2014. That resulted in a temporary order issued that day, placing both children in care of the Society with access in the discretion of the Society and supervised in its discretion.

a. The mother has only had supervised access since that date.

b. Since the date of the most recent apprehension, neither father has had – or sought – any involvement with the children.

33. Thereafter, there were many more problems and concerns about the mother.

a. More domestic violence between the mother and N.B..

b. More incidents of aggressive behaviour by the mother, fuelled largely by ongoing alcohol abuse.

c. Uncooperative and at times aggressive behaviour by the mother toward Society workers.

d. Concerns about the mother’s mental health, including suicidal ideation which led to emergency psychiatric treatment.

e. Concerns about lack of follow-through with medical personnel and lack of compliance with medication recommendations.

f. Lack of follow-through with community services and programs.

g. Inability to maintain stable housing.

h. Lack of commitment and adherence to the access schedule.

34. The Society brought this Amended Status Review application returnable August 26, 2015 requesting Crown wardship with no access.

a. The mother filed an Answer and Plan of Care.

b. Both fathers have been noted in default.

c. The children have remained in care, with supervised access to the mother.

THE EVIDENCE AT TRIAL

35. Sixteen witnesses testified.

a. Some of them were current Society employees being cross-examined on affidavits setting out their evidence in chief.

b. The evidence of five additional Society workers was presented by affidavit only, with the mother’s counsel agreeing in advance that their attendance would not be required for cross-examination.

36. To a large extent credibility was not in issue during this trial.

a. The Society provided a mountain of evidence about the many problems the mother has experienced, particularly during the past few years.

b. For the most part the mother did not dispute the Society’s evidence. The mother focused mainly on her assertion that she has changed, and now has her life under control.

c. The contentious issue in this trial was not the past but realistic expectations about the future.

WITNESS #1: JOANNE FRIESEN (Family Services Worker)

37. Former child protection worker Joanne Friesen testified on behalf of the Society.

a. Friesen was the mother’s Society worker, initially from March 2013 until August 2013.

b. After an education leave, Friesen resumed responsibility for the file from December 2013 until August 2014 when she left the Society.

38. Friesen testified K.C.’s situation was quite different during her first period of involvement compared to the second.

a. Between March and August 2013 the mother’s progress and level of commitment and cooperation was quite favourable. It was during this period that the children were returned to her after the first apprehension in February 2013.

b. But between December 2013 and August 2014 K.C. was not doing nearly as well. She wasn’t as motivated to address issues. She had lost her residence, and T.P. wasn’t attending school.

39. Friesen testified that during their first formal meeting the mother asked that her file be transferred to another worker.

a. Friesen is white and K.C. said she wanted a native worker.

b. When Friesen explained the Society didn’t have native workers, the mother agreed to the suggestion that the file could be transferred to a non-white worker.

c. By the end of that meeting, however, K.C. changed her mind and said she was prepared to keep working with Friesen. K.C. remarked that “for a white worker she wasn’t so bad.”

40. Friesen testified they went on to have a good working relationship.

a. K.C. was cooperative with her.

b. The mother was punctual for appointments. If she needed to change times she would call ahead to arrange it.

c. Friesen testified that when she advised the mother in July 2013 that she was going on leave and that another worker would be assigned, the mother was not happy about being assigned a new worker.

41. Friesen testified during the summer of 2013 K.C. was quite diligent about arranging housing.

a. When Friesen first became involved in March 2013, the mother was in a shelter.

b. She then went to live with a friend.

c. Thereafter she lived with her sister and the sister’s boyfriend.

d. Finally, by July 1, 2013 K.C. arranged her own residence which she shared with her mother.

e. Friesen said she attended at that residence and had no concerns about its suitability.

42. Friesen testified about assistance and recommendations she provided for K.C. during her first period of involvement between March and August 2013:

a. She said K.C. agreed with the Society’s list of concerns, and was receptive to referrals and recommendations.

b. She described the mother as highly motivated.

c. But from the outset K.C. made it clear she wanted any counselling to be through native agencies.

43. Friesen testified that when she first became involved with K.C. in March 2013 she provided her with information about domestic violence counselling at both the Native Women’s Shelter and also Catholic Family Services.

a. Friesen said K.C. preferred a group session which was only offered at Catholic Family Services. But eventually she dropped out of the sessions because they conflicted with her access schedule.

b. K.C. was offered a Violence Against Women consultation in February 2014, but she missed the first three appointments that were set up for her. She eventually attended.

c. Friesen referred the mother to an anger management program at Urban Core, because both Brant CAS and the Hamilton Society observed that she could become hostile and have outbursts. The worker said during her involvement with K.C. she demonstrated a better grasp of managing her anger.

d. Friesen encouraged K.C. to attend alcohol and substance abuse counselling at the Native Health Center. K.C. met with a counsellor. Friesen agreed with the mother that the counsellor was very hard to reach.

44. Friesen testified between March and July 2013 she didn’t receive any reports of K.C. using alcohol or substances. She wasn’t aware of any alcohol/drug issues as of December 2013 when she returned to the file.

45. Friesen said she had no concerns about K.C.’s parenting up to the end of her first period of involvement in August 2013.

a. At that point she hadn’t received any reports of police interaction with the mother.

b. During the summer of 2013 Friesen suggested the Beyond the Basics parenting course, and also a program through the Regional Indian Center. K.C. participated in the latter.

46. Friesen testified that to her knowledge K.C. hadn’t been diagnosed as having any mental health issues prior to March 2013.

a. Friesen said the death of K.C.’s father in May 2013 was a major emotional blow.

b. They had been very close with one another, and he was an important emotional support for her.

c. But despite missing her father, Friesen said K.C. was still focussed and energized to have her children return to her care.

d. Up to August 2013 she had no concerns about K.C.’s mental health.

47. Friesen testified that in January 2014 K.C. reported she was struggling with depression and had been prescribed anti-depressant medication by the family doctor.

a. In June 2014 K.C. received support from the Barrett Center, a short-term supportive center for people experiencing crises or stress.

b. The mother had been struggling with managing and coping.

c. She wasn’t feeling safe.

d. She was worried that she might engage in self-harming behaviour.

e. She was grieving the death of her father.

f. She was at a very low point and asking for help.

g. Friesen arranged for a bed at Barrett Center and took her there. K.C. later told Friesen the three days she spent at Barrett was helpful and provided her with a much-needed break.

h. While K.C. was at Barrett Center the children stayed with the maternal grandmother at Good Shepherd Center.

i. K.C. was then put in touch with West 5th Mental Health where she attended three sessions out of a six week Bridge to Recovery program.

j. K.C. was also to be put in touch with a psychiatrist and social worker.

48. Friesen testified that when she resumed involvement on the file in December 2013 she learned there had been an incident involving K.C. and N.B. in which the mother’s jaw was broken

a. Friesen said the child T.P. advised her the mother’s jaw had been broken although he hadn’t witnessed the incident.

b. K.C. denied to Friesen that N.B. had been responsible for her broken jaw.

c. On December 19, 2013 K.C. initially stated she had provoked N.B. and that’s what caused him to harm her.

d. Then she said she was not having a relationship with N.B..

e. K.C. told Friesen police were involved and N.B. had been charged.

f. She told Friesen her jaw was healing, and that surgery had been considered, but ultimately wasn’t necessary.

49. I heard other evidence about the broken jaw:

a. K.C. testified she went to N.B.’s home on September 13, 2013, about two months after the children had been returned to her.

b. She had been drinking before she got there. They both continued drinking. They had an argument. N.B. hit her in the face. He broke both cheek bones and the right side of her jaw.

c. She testified N.B. told her not to report it because he didn’t want to go to jail, and if she reported it “there would be a whole bunch of bullshit.”

d. She didn’t get medical care right away. Her injuries worsened. She had to have two surgeries (she had told Friesen no surgery was required).

e. On October 8, 2013 she told a doctor what really happened. Police were called and she confirmed N.B. had assaulted her. He was arrested for assault causing bodily harm and jailed.

f. On December 26, 2013 K.C. attended the police station with A.B.. She tried to recant her complaint about N.B.. She said her jaw was broken in a fight with her sister and N.B. wasn’t even present. The police didn’t believe her and cautioned that she could be charged for lying to police.

g. Under cross-examination K.C. acknowledged this was one of many occasions when she called police about actual violence by N.B. and then later recanted.

h. On December 30, 2013 K.C. returned to the police station and confirmed N.B. had broken her jaw, but she did not want to support charges.

i. Society worker Hepburn testified that in September 2014 K.C. missed a visit with the children because she went to criminal court to recant her allegation that N.B. had broken her jaw. The mother’s new version of events: While visiting N.B.’s residence she looked at his cell phone and saw pictures of him with another woman. Out of jealousy and spite she called police alleging he struck her, but really she broke her jaw falling at a grocery store.

50. Ironically, even though K.C. initially told Friesen that N.B. didn’t break her jaw:

a. On May 12, 2014 K.C. had Friesen send a letter seeking priority status for housing because she was a victim of domestic violence.

b. To emphasize the urgency of her situation, she had Friesen tell the housing authority that N.B. had broken her jaw in September 2013.

c. When the letter was sent, N.B. was still in jail.

d. K.C. told Friesen that after N.B. was released from jail, he was going to get some counselling before they had a relationship again.

e. She also said she no longer wanted to have a relationship with N.B..

51. A few days later, on May 17, 2014 Friesen presented K.C. with a handwritten to-do list reminding her of the Society’s requirements:

a. Register T.P. in school and ensure he attends.

b. Obtain a report from her doctor’s office.

c. Attend a domestic violence group.

d. Contact Holly Doxtator regarding behaviour issues.

e. Call counsellor at Alcohol Drugs & Gambling Services (ADGS).

f. Attend the LEAP program.

g. Look into daycare or camp options for T.P. for the summer.

52. Friesen testified K.C. then became upset with her and said she was just going to give her children to the maternal grandmother “so CAS would get out of my life”.

a. Friesen testified she tried to calm K.C. down and get her to focus in addressing her problems.

b. Ultimately, the mother agreed she would follow through with the to-do list, with the exception that she didn’t want to contact ADGS because she hadn’t been drinking and she didn’t think she needed alcohol counselling.

c. Friesen told her that if she focused on all of the other requirements, she could take ADGS off the list. Friesen testified she was trying to give K.C. encouragement because the mother was still struggling with mental health issues.

53. But soon after Friesen sent that letter, on May 25, 2014 K.C. took A.B. to see N.B., and there was an altercation between the mother and N.B. in the presence of the child.

a. Friesen testified she discussed this incident with K.C..

b. She reminded her the existing order – which K.C. had consented to -- specified the mother was not to allow A.B. to have contact with N.B..

c. K.C. responded that she felt N.B. had already missed out on a lot of A.B.’s life, and she didn’t want him to miss out on more.

d. Friesen told K.C. it was very concerning to the Society that the mother was not abiding by the court order.

e. Friesen also reminded K.C. that she hadn’t been following up with domestic violence counselling; she wasn’t taking alcohol/drug counselling, and T.P. wasn’t attending school.

54. Friesen testified she spoke to K.C.’s mother about the seriousness of the incident.

a. The maternal grandmother confirmed that she knew N.B. was to have no access to A.B.

b. She recognized that K.C.’s decision to allow access jeopardized the possibility of the children being taken back into care.

55. Friesen testified that when the matter returned to court in July 2014, K.C. had been hoping to enter into a voluntary services agreement.

a. Friesen admitted that prior to the May 25, 2014 incident the Society was considering a voluntary services agreement.

b. But after K.C. breached the order and allowed N.B. to have access, the Society wanted the supervision order to continue.

56. Under cross examination Friesen acknowledged that in an affidavit she signed on July 10, 2013 she made a number of favourable comments about K.C. including:

a. Her access was going well.

b. K.C. was friendly, helpful, independent and able to problem-solve.

c. Friesen had advised K.C. she was doing well.

d. The mother had progressed to unsupervised access which was a major accomplishment.

e. She had learned a great deal about anger management.

f. K.C. was gaining insight in relation to drug issues.

57. But eventually all of that progress unravelled.

58. Friesen summarized the Society’s concerns about K.C. when she assumed the file in March 2013:

a. Substance & alcohol abuse.

b. Domestic violence in relation to N.B..

c. Anger management issues.

d. Housing.

e. Parenting skills.

59. She testified that by the time her work on the file ended in August 2014, none of those concerns about K.C. had been resolved.

60. Friesen was an excellent, cooperative witness. Her evidence was clear and largely non-controversial.

61. There was only one topic where Friesen’s evidence directly contradicted K.C.’s evidence – and it was an issue really quite critical to the mother’s case:

a. The children were apprehended for the second time on August 14, 2014 because K.C. had taken A.B. to N.B.’s residence, there was drinking, and K.C. was assaulted. All of this was contrary to the existing supervision order.

b. A number of Society witnesses testified that following the apprehension both K.C. and her mother insisted that Friesen had given K.C. permission to allow access to N.B. so long as K.C. remained present.

c. When K.C. answered questions from her lawyer, she gave a watered down version. She didn’t claim Friesen gave her permission. She merely testified that she must have misunderstood what Friesen said, and mixed up certain restrictions which might have applied to A.A. and not N.B.. Basically she claimed she made a mistake.

d. Under gentle cross-examination K.C. acknowledged Friesen had been “crystal clear” that all access to N.B. had to be supervised.

e. Friesen was cross-examined on this point and her evidence was clear, unequivocal, logical and entirely consistent with the evidence of other Society witnesses as to K.C.’s conditions pursuant to supervision orders.

f. Friesen and other workers testified that K.C. was consistently warned about her need – and legal obligation – to absolutely prevent any contact between the children and their biological fathers.

g. The “no access to N.B.” provision had been clearly set out in a series of orders K.C. had consented to – most recently July 2, 2014, just a month before the apprehension.

h. In addition to specific orders, Friesen testified she repeatedly reminded K.C. that A.B. was to have no contact with N.B.. And in no circumstance did she ever tell the mother that A.B. could have access with N.B..

i. Under cross-examination Friesen acknowledged she didn’t mention the N.B. restriction in her May 27, 2014 note. But it was a “to do” list. Not a “don’t do” list.

j. As it happens, K.C. clearly identified Friesen as her favourite worker – perhaps the only one she really got along with. So they had good communication with one another.

k. In the circumstances, I accept Friesen’s evidence that on August 12, 2014 K.C. had been aware for more than a year that A.B. was to have no contact with N.B..

l. I accept Friesen’s evidence that it is simply not possible K.C. could have been confused about this fundamental expectation and court-ordered requirement.

m. Although K.C. was generally a surprisingly candid witness, this is one of the few areas where it was quite apparent during her testimony that she wasn’t telling the truth. She was vague and evasive on the point.

n. To the extent that the evidence of Friesen and K.C. conflicted, I accept Friesen’s evidence on all topics.

o. Indeed, in all other respects I accept Friesen’s evidence. She was fair and balanced in the presentation of her evidence. It is easy to understand why K.C. characterized her as perhaps the only Society worker she trusted.

WITNESS #2: LAURIE HEPBURN (Family Services Worker)

62. Laurie Hepburn was the Society’s Family Services Worker assigned to K.C.’s file from August 4, 2014 to April 2015.

63. Hepburn testified that regrettably she and K.C. got off to a bad start.

a. Just after being assigned to the file – and after barely being introduced to K.C. – Hepburn said she was placed in a situation in which she had to apprehend both children on August 14, 2014.

b. After that it took a long time to build any sort of working relationship with the mother.

c. From the outset K.C. requested that another worker be assigned to the file. Again, K.C. wanted a native worker, but the Society didn’t have one.

d. K.C. periodically made other requests for a new worker, which Hepburn passed on to her superiors. But no replacement worker was assigned until April 2015 when Hepburn was leaving the Society’s employment anyway. And K.C. never got a native Society worker.

64. Hepburn testified that soon after the apprehension, an August 19, 2014 temporary order confirmed the children would remain in care and K.C. and her mother would have supervised access twice a week.

a. K.C. was also allowed telephone access with T.P.. But T.P.’s foster mother described repeated problems setting up telephone access because K.C.’s telephone number changed about 10 times during the eight months Hepburn was assigned to her file.

b. Hepburn supervised some of the visits. She described positive interaction between K.C. and the children. On one occasion she had to speak to K.C. about being distracted talking on her phone. Generally K.C. was receptive to suggestions and comments.

65. Hepburn was cross-examined about K.C.’s access:

a. She supervised some visits and received reports about others.

b. She agreed that the visits were generally positive for the children.

c. There were attendance problems but K.C. attended about 75% of the time.

d. She agreed K.C. may have faced some logistical and practical challenges in attending access. For example, she asked for assistance with a bus pass and Hepburn wrote to Ontario Works trying to get her a bus pass.

e. She agreed that by February 2015 supervised visits were progressing well enough that the Society was considering moving some of the visit into K.C.’s home.

66. Hepburn said during her involvement on the file she had concerns about K.C.’s mental health. She described a situation which arose around August 29, 2014, not long after the apprehension:

a. Hepburn received an after-hours report that police became involved because K.C. had been found drinking in the community and had suicidal ideation.

b. Acting under the Mental Health Act, the police took K.C. to St. Joseph’s Hospital Emergency Psychiatric Services for her own safety.

c. She was assessed and released the next morning.

d. K.C. told Hepburn she was struggling with everything that had gone on, particularly her children going into care. Hospital records showed K.C. was also upset and fixated about N.B. having a relationship with another woman.

e. K.C. told Hepburn she wasn’t suicidal.

f. Hepburn confirmed that K.C. had contacted Barrett Center to ask about staying there a few days.

g. Hepburn also encouraged K.C. to continue with the Bridge to Recovery Program and follow up with her family doctor.

h. K.C. said she would continue to take depression & anxiety medication which had been prescribed for her.

67. Hepburn testified that in November 2014 she received another after-hours report about K.C.:

a. It was similar to the previous report.

b. Police found K.C. on a park bench. She had been drinking and had suicidal ideation.

c. She was again taken to Emergency Psychiatric Services.

68. Hepburn testified about several instances in which K.C. advised that she was on the waiting list to receive various counselling services.

a. But when Hepburn inquired she was advised that no referral had actually been made for K.C., so she wasn’t on a waiting list.

b. Hepburn said she encouraged K.C. to make sure the proper referrals were arranged.

69. Hepburn testified about K.C.’s relationship with N.B..

a. After the children were apprehended in August 2014 K.C. stated she’d had an on again/off again relationship with N.B. for the past few months.

b. During an August 18, 2014 visit with the children, she mentioned to Hepburn she wanted to get couples counselling with N.B..

c. By the beginning of October 2014 K.C. said she was no longer interested in a relationship with N.B..

d. But around the same time K.C. advised Hepburn that she had been charged with assaulting N.B.’s girlfriend.

70. Hepburn testified she received an after-hours report from police about an incident on February 22, 2015:

a. Police attended K.C.’s home responding to her complaint that N.B. had broken in and assaulted her.

b. K.C. was home with her female friend A.M.; K.C.’s six year old female niece (her sister’s daughter); and K.C.’s mother.

c. Police reported that when they arrived N.B. was no longer there.

d. K.C. was described as heavily intoxicated and unable to make a statement.

e. She was verbally aggressive with the police in the presence of her young niece. K.C. and A.M. both told the six year old that police were pigs and they should get out of the house.

f. Police noted that the six year old was shaking and holding the officer’s leg because she was afraid of K.C.’s behaviour.

g. Police felt it was unsafe to leave the six year old in that environment. They called K.C.’s sister who came and removed her daughter from the home.

h. K.C. later told Hepburn that N.B. had broken in and started screaming at her while she was in bed. She said she got up and chased him out of the house. K.C. denied any verbal aggression directed toward the police in front of her six year old niece. But she admitted she was angry that police had been arrogant.

71. Later in the trial, K.C. testified about this February 22, 2015 incident:

a. She had been out with friends.

b. She had been drinking heavily.

c. When they all returned to her residence, she and her friend A.M. each passed out.

d. N.B. broke into her home, stood over her bed and started shaking K.C. to wake her.

e. She chased him out of the house.

f. She did not deny being uncooperative with police when they arrived.

72. Hepburn testified she received another after-hours report about an incident only a month later, in March 2015:

a. K.C. had returned home from a bar.

b. N.B. was at the front door of her home. She told him not to come in and to go away.

c. There was some sort of physical altercation and K.C.’s arm was hurt or caught in a door.

d. N.B. fled.

e. K.C. and N.B. each made separate calls to police to report the incident.

f. Hepburn said after that K.C. told her she didn’t feel safe living at her home on Limeridge Road so she went to her sister’s residence.

73. K.C. later testified about this March 2015 incident:

a. K.C. had been drinking at a bar late at night with friends.

b. When she returned home after 2:00 a.m. she found N.B. and his brother in her backyard.

c. They had an argument.

d. He slammed her arm in a door.

e. She called police.

f. N.B. fled. His brother remained.

g. During her testimony she couldn’t recall if charges were laid.

h. K.C. did not dispute the police summary that she was intoxicated, uncooperative and belligerent with them. She became particularly angry when she learned the Society had been contacted by police. She then refused to talk to the investigating officer.

i. Under cross-examination K.C. said she hadn’t given N.B. her address. She speculated about how he might have located her. But she stated that even today if he wanted to find her, he could.

74. Hepburn testified that after the February and March 2015 incidents, K.C. called her asking to go to detox.

a. This was the first time K.C. appeared to be acknowledging a problem, even though there had been previous incidents in which alcohol was clearly involved.

b. However, with the passage of time K.C. decided she didn’t need to attend any sort of alcohol counselling.

75. Hepburn testified that prior to the February and March incidents between K.C. and N.B. the Society had considered moving some of her visits into her home.

76. But after those two incidents at K.C.’s home, the Society concluded it was not safe to move visits there. The Society was concerned K.C. still wasn’t demonstrating insight into domestic violence and its impact on children.

77. Hepburn testified about her contact with N.B.:

a. She reached him by telephone in September or October 2014, but he appeared in a hurry to get off the phone.

b. When asked about possible kin placements, he mentioned a brother but said he wasn’t sure and he’d get back to her. He never did.

c. In January or February 2015 N.B. contacted Hepburn and shared concerns about K.C..

d. He said he and his girlfriend wanted to put forward a plan to care for A.B.. She set an appointment for him to come in, but at the last minute he cancelled claiming car trouble. She was never able to connect with him again.

e. When informed of this discussion, K.C. told Hepburn she didn’t want N.B. or his girlfriend having access.

f. At Easter 2015 N.B. dropped off some gifts for A.B. at the Society. But he made no effort to see the child.

78. Hepburn was a very thorough and credible witness.

a. None of her testimony was undermined through cross-examination.

b. Her evidence was consistent with the evidence of other Society workers, particularly those who were involved immediately before or after her time on the file.

c. Hepburn appeared to be particularly child-focussed and sensitive to K.C.’s difficult situation, particularly in describing the details of the police-assisted apprehension in August 2014. Hepburn cried as she described trying to comfort A.B. during the tumultuous scene.

79. At the end of her testimony Hepburn poignantly described her enduring hope for this family:

a. She always hoped K.C. would connect with necessary professional services to deal with her problems. But K.C. had trouble following through despite good intentions.

b. Hepburn said from her earliest days on the file she tried to encourage K.C. to address all her problems and participate in programs as quickly as possible, because time was of the essence and Crown wardship was the ultimate option if things didn’t improve.

c. She had a “100% hope” that both children would be able to be returned to K.C. and that they would be safe.

d. She said during the last three to four weeks of her involvement she observed a small improvement by K.C.. But overall there just wasn’t enough progress.

80. Hepburn’s testimony coincided precisely with the evidence of other Society workers. I accept her testimony in its entirety.

WITNESS #3: MARINA MITROVIC (Family Visit Worker)

81. Family Visit Worker Marina Mitrovic testified in addition to presenting evidence by an affidavit dated February 16, 2016.

82. Between April 2, 2015 and November 16, 2015 she supervised five visits between K.C. and the children at the Society Access Centre. K.C.’s mother attended two of those visits.

83. Under cross-examination Mitrovic testified:

a. The visits were generally positive and happy.

b. K.C. and children exchanged affection at the beginning and end of each visit.

c. K.C. was always able to manage the children appropriately.

d. Mitrovic never saw any signs of impairment by K.C.. She was never physically or verbally inappropriate with the children.

e. Mitrovic noted no major concerns during any of the visits.

84. Mitrovic was cooperative and fair in describing K.C.’s interaction with the children. None of her evidence was challenged.

WITNESS #4: LANA LIVINGSTONE (Family Visit Worker)

85. Family Visit Worker Lana Livingstone testified in addition to presenting evidence by an affidavit dated February 19, 2016.

86. Between April 27, 2015 and October 5, 2015 she supervised 13 visits between K.C. and the children at the Society Access Centre. K.C.’s mother was present for all but five of the visits.

87. Under cross-examination Livingstone testified:

a. She observed no major concerns during any of the visits.

b. There were hugs and kisses and open affection displayed at both the beginning and end of visits.

c. It was clear to her that K.C. and the children love one another. There is a clear bond between them.

d. K.C. and her mother were able to manage the children appropriately.

e. Livingstone saw no signs of any drug or alcohol use by K.C..

f. On one occasion in July 2015 K.C. was upset and asked to end the visit early. This was when K.C. found out the Society was seeking Crown wardship. But Livingstone said it was unusual for the mother to be upset.

WITNESS #5: A.H. (A.B.’s foster parent)

88. A.H. was called as a witness by the Society. She has been A.B.’s foster mother since the second apprehension on August 14, 2014.

89. A.H. described her initial involvement with A.B.:

a. When A.B. arrived she was unkempt and had head lice.

b. Otherwise she has never had any health issues.

90. The foster parent testified about A.B.’s speech development:

a. When the child first came to A.H.’s foster home in August 2014 “her speech wasn’t there”. She was behind in her development.

b. But there has been a major change since the child’s arrival.

c. The foster mother said she did a lot of reading with the child and regularly encouraged her to verbalize rather than pointing at things. She has also recently started taking her to an Early Words program.

d. A.H. said A.B. has experienced a major change and improvement in her verbal skills since coming to her home.

e. She described A.B. as “a bright, smart little girl – she just needed a lot of attention.”

f. She said other than speech, A.B. exhibited no other delays.

91. A.H. described A.B.:

a. She is a happy, adorable, cute, loving, huggable little girl.

b. She is “a princess at heart”.

c. “A great little girl.”

d. She enjoys the activities the foster mother has placed her in, such as dance and gymnastics.

e. She is never a behavioural problem.

92. A.H. testified she hasn’t observed any changes in A.B.’s demeanor before or after visits – with the exception that on a recent occasion the child was really upset and came home crying after K.C. failed to show up for a scheduled visit.

a. A.H. said there was a period when K.C. was cancelling a lot of visits.

b. Sometimes K.C. would cancel in advance.

c. Other times A.B. would be driven to the access centre and then she would come back because the mother wasn’t there. She would be upset.

93. A.H. testified she uses a communication book to exchange information with the mother.

a. A.H. tries to write something for every visit.

b. Occasionally K.C. makes entries in the book.

c. The foster parent referred to one occasion when K.C.’s tone in the communication book was quite aggressive.

94. A.H. testified A.B. doesn’t usually speak about any of her family members. However she agreed A.B. has lots of love and affection for her mother.

95. A.H. was a very positive, upbeat, child-focussed witness. She showed a lot of insight into A.B.’s situation and emotional needs.

96. Her evidence was not challenged during cross-examination. She provided helpful information about how A.B. is doing.

WITNESS #6: J.B. (T.P.’s foster mother)

97. J.B. was called as a witness by the Society. She has been T.P.’s foster mother since the second apprehension on August 14, 2014.

98. J.B. described her interaction with T.P. when he came to her home in August 2014.

a. He was very upset when a Society worker brought him to her home.

b. He was crying and J.B. spent time comforting him.

c. He emphasized from the outset that he wasn’t staying at the foster home and he would be returning home. He felt his mother just needed to talk to a worker.

d. For the next few days it was clear he missed his mother and grandmother. He kept asking when he would be able to see his mother.

e. She said once he started having visits with his mother, and especially after he started school, he seemed more content with his placement in her foster home.

99. J.B. described a dramatic change and improvement in T.P.’s personality and behaviour during the year and a half he has been in her home.

a. Initially, he was headstrong; needed constant re-direction; he frequently got in trouble at school; and he wasn’t doing very well academically. He had no developmental delays but a lot of behavioural issues.

b. Now, he’s a wonderful, happy, contented boy who does much better in school and has no behavioural problems.

c. J.B. stated “I’ve had a lot of kids in my house. He’s by far in the top five of the easiest kids. Very easy.”

100. J.B. testified K.C. has missed many visits and this has been very upsetting for T.P..

a. She said typically T.P. is a happy boy and he would look forward to visits with his mother.

b. She described occasions when K.C. wouldn’t show up, and T.P. would return crying, angry, and frustrated. He said he was confused about why his mother wouldn’t show up for visits. He worried that perhaps she might be sick.

c. Eventually J.B. contacted the Society to ask what could be done to spare T.P. from experiencing such upset. The Society told her they would implement a policy whereby K.C. would be required to call in the morning to confirm if she intended to visit her children.

101. J.B. said T.P. has also experienced a great deal of disappointment caused by K.C. repeatedly promising him that she was bringing him an X-Box game.

a. It was originally promised as a Christmas gift.

b. K.C. kept getting his hopes up by promising she’d bring it on the next visit, but many visits went by and he never received an X-Box.

c. Finally, when friends asked about it, he told them he’ll be getting his X-Box when he moves back home.

102. Under cross-examination, J.B. agreed T.P. misses his mother and would likely be quite devastated if his relationship with her ended. But he’s also terribly upset about the repeated missed visits. She said T.P. has never actually spoken about how he would feel if his relationship with his mother didn’t continue.

103. She said T.P. has spoken very positively of his relationship with his sister A.B. and how much he loves her.

104. As with A.B.’s foster mother, J.B. was child-focussed and provided compelling evidence about how much T.P. has improved since being in her care.

105. Both foster mothers unhesitatingly confirmed that both children love K.C. a great deal and look forward to access – when the mother shows up.

WITNESS #7: TAVIS MACMILLAN (Family Service Worker)

106. Tavis MacMillian was the family service worker assigned to the file between April and September 2015 when he left Hamilton to work at a Society in Toronto.

107. MacMillan testified during his time on the file K.C. missed a lot of visits.

a. He had to discuss the issue with her two or three times.

b. Half way through his involvement they had to implement a system whereby K.C. would have to call ahead early in the day to advise if she was cancelling. But even after the policy was implemented, there were still missed or late attendances.

c. At one point K.C. told him a new job in Oakville was impacting her availability for access. He told her the Society was willing to work around her schedule, and he asked for a copy of her work schedule but she never provided it.

d. Under cross-examination he agreed that since the access centre was not open evenings or weekends, it made it difficult for employed parents to see their children.

108. MacMillan gave evidence about programs K.C. participated in.

a. She completed six out of eight parts of an anger management course.

b. Some of her counsellors advised him they hadn’t seen the mother in a while. K.C. assured him she would return to continue with those counsellors.

109. MacMillan said K.C. informed him she did not have native status. She also said the children don’t have native status, although she could seek status for them. He said at the end of his involvement she said she wanted to seek status for herself.

110. MacMillan testified that in July 2015 K.C. relocated from Hamilton to Brantford. That created problems because she didn’t have her own transportation and had difficulty making it back to Hamilton for supervised visits.

a. The Hamilton Society then made repeated efforts to have the file transferred to Brant CAS, but Brant refused.

b. The Hamilton Society asked if at the very least Brant CAS could assist K.C. with a native worker and provide some supervision of access in Brantford.

c. But Brant refused to become involved in any capacity, suggesting the mother shouldn’t have moved from Hamilton if she knew she was going to have trouble travelling back to this city to visit her children.

111. MacMillan’s evidence about concerns relating to K.C. was very similar to the evidence of other family service workers who were involved before and after him. Under cross-examination he admitted that during his involvement on the file, there were no concerns about parenting neglect, violence or substance abuse.

112. He filed a letter dated July 10, 2015 which he had given to K.C., summarizing the Society’s long list of ongoing concerns. They were the same concerns previous and subsequent family services workers discussed with her. He said she didn’t dispute that these long-standing issues still needed to be resolved.

113. He met with K.C. monthly. Meetings were usually at the Society office because he wasn’t always sure where the mother was living. On August 25, 2015 he attended a scheduled meeting at the Brantford home she had moved to, but when he arrived she wasn’t there. They met at the residence the following week. He had no concerns about the premises.

114. MacMillan testified that he and K.C. generally had a positive working relationship and were able to communicate. But he said K.C. became upset toward the end of his involvement when the Society advised that it intended to seek Crown wardship.

115. MacMillan was a notably less detailed or precise witness than any of the other Society witnesses.

a. But his evidence was consistent with the evidence of other workers.

b. His examples of observations about K.C. were consistent with the descriptions of other Society witnesses.

c. And his evidence was not seriously challenged during cross-examination.

WITNESS #8: TERRY WINDER-SHOLER (Family Visit Worker)

116. Family Visit Worker Terry Winder-Sholer testified in addition to presenting evidence by an affidavit dated February 17, 2016.

117. Between April 9 and September 17, 2015 she supervised six of K.C.’s visits with the children at the Society’s Access Centre. Within that same period K.C. cancelled five visits (twice because she was working; twice due to illness; and once without explanation).

118. As with the other access supervisors, under cross-examination Winder-Sholer agreed:

a. The visits started and ended well, with a warm exchange of affection.

b. Both children related well to the mother.

c. No major child management issues arose.

d. K.C. did not say or do anything inappropriate during visits.

WITNESS #9: HELENA KUNG (Family Visit Worker)

119. Family Visit Worker Helena Kung has been supervising K.C.’s access in Hamilton since November 2, 2015.

120. During this period K.C. attended for six out of a possible nine visits. Her mother did not attend any of these visits.

121. Kung didn’t identify major problems during access, but made a number of observations about K.C. being distracted and spending time talking to other families at the access centre rather than focussing on her own children.

122. Under cross-examination she agreed:

a. The children were always excited to see the mother. There were always affectionate greetings and goodbyes.

b. There was lots of affection between them.

c. The children clearly enjoy spending time with their mother.

WITNESS #10: ADRIENNE GIMBLETT (Family Visit Worker)

123. Family Visit Worker Adrienne Gimblett testified in addition to presenting evidence by an affidavit dated February 17, 2016

124. Between May 4 and December 14, 2015 she supervised four visits between K.C. and the children.

125. She said ten visits during this period were cancelled by K.C., who cited issues regarding illness, employment or moving to Brantford.

126. Gimblett said the visits she supervised were uneventful, “good” visits.

WITNESS #11: ANNETTE SANTOS (Society Case Manager)

127. Child Protection Worker Annette Santos testified in addition to presenting evidence by way of an affidavit dated February 19, 2016.

a. She was initially the case manager for these children between March 5 and June 18, 2013. They were in foster care for the first time from February 20 to July 17, 2013.

b. She has been the case manager since August 28, 2014, soon after the children were placed in foster care for the second time.

128. Santos testified the children have now been in care a total of approximately 24 months. She said they have settled into their foster homes very well.

a. They are both thriving and developing well.

b. Both children are well-mannered, polite, sociable, loving and appear to be very happy children.

c. T.P. is progressing very well in school and there have been no reports from his school this year about his behaviour.

d. T.P.’s foster parent has no concerns about his behaviour in her home.

e. A.B. is not yet in school or day care.

f. A.B.’s foster mother does not report any concerns about her behaviour.

g. A.B. is involved in activities outside of the foster home.

h. The foster mother consistently reports A.B.’s vocabulary is increasing.

i. A.B. has started speech and language services through Early Words. K.C. was invited to participate but was unable to attend the first session. A.B. is speaking very well.

j. Neither child is experiencing any other medical or developmental issue.

k. Both of the foster parents have commented that T.P. and A.B. appear to be smart.

129. Under cross-examination Santos acknowledged that these two children were placed in separate foster homes both following the initial apprehension in February 2013 and also since the more recent apprehension in August 2014.

130. Santos testified she recently supervised K.C.’s visits on March 8 and 16, 2016, at the Ontario Early Years Center in Brantford.

a. She described both visits as positive.

b. There were positive, loving exchanges between K.C. and the children at both the beginning and end of each visit.

c. K.C. actively engaged both children.

d. There was loving interaction.

e. Santos had no concerns.

131. The case manager expressed concern about K.C.’s lack of consistent involvement in the children’s lives:

a. Her missed visits.

b. Her lack of availability when T.P. has attempted to telephone her.

c. The promises she makes to the children – particularly T.P. – and not following through with those promises.

132. Santos agreed that the children enjoy their time with their mother and are bonded with her. They have a typical brother-sister bond with one another.

133. But she said both children – particularly T.P. – have experienced emotional upset as a result of K.C.’s inconsistency. Both children are excited to have visits, but when visits are cancelled they are naturally disappointed.

134. Under cross-examination Santos agreed K.C.’s attendance record for visits wasn’t too bad until she took employment in Oakville, and then later moved to Brantford. But when any visits are missed, the children don’t understand why -- they just know she isn’t showing up.

a. She said the Society made comprehensive efforts to work with K.C. to try to accommodate her work schedule.

b. Similarly, when K.C. moved to Brantford the Society worked hard to help the mother with transportation difficulties, and move supervised access from Hamilton to Brantford.

c. She said she was unaware of any late or cancelled visits by K.C. since access was moved to Brantford.

135. The case manager said T.P. and A.B. require permanency, and the best way to achieve this is through an order of Crown wardship without access, so that long-term arrangements can be made.

136. Santos was a knowledgeable, child-focussed witness. Her evidence was concise, and was not significantly challenged during cross-examination.

WITNESS #12: CHRISTINE CONLEY (Adoption Worker)

137. Society Adoption Worker Christine Conley testified in addition to presenting evidence by an affidavit dated February 19, 2016. Her background:

a. She has been employed by the Society since 2001.

b. Between June 2004 and June 2013 she was an adoption worker. She resumed that role in May 2014.

138. Conley provided some statistics:

a. During her tenure as an adoption worker she has placed and supervised approximately 70 children in adoptive homes.

b. None of the children she has placed on adoption have experienced “adoption disruptions” during the probationary period prior to the adoption order being granted. But she admitted sometimes adoptions fail after the adoption order has been granted.

c. Over the last five years the Hamilton Society has placed 171 children on adoption. 31 of these (18 per cent) were five years of age and older.

d. Of the 171, the Hamilton Society experienced an overall disruption rate of 5 per cent (nine out of 171). Under cross-examination she admitted for children over five the failure rate is closer to 13 per cent.

139. She said she identified no significant medical, behavioural or emotional challenges for either T.P. or A.B..

140. Conley testified the Society currently has approximately 25 approved adoptive applicants. This includes one recently approved adoptive family with some native heritage, who are open to adopting siblings in the age range of T.P. and A.B..

141. She said she couldn’t make any guarantees, but given the profile of these children she believes the Society would be successful finding an adoptive home that would meet both their needs.

142. Under cross-examination she agreed a seven year old adopted child would never forget a biological parent. A three year old would have fewer specific memories.

143. Conley was a clear, knowledgeable witness. Her evidence was not undermined by cross-examination.

WITNESS #13: SHELITA BHIKHAI (Family Services Worker)

144. Family Services Worker Shelita Bhikhai testified in addition to presenting evidence by a lengthy affidavit dated February 12, 2016. She has had case management responsibility for this family since September 16, 2015.

145. Bhikhai said initially K.C. didn’t request a different worker. But during a February 26, 2016 meeting K.C. said she wanted a native worker. Bhikhai explained the Society didn’t have any native workers and couldn’t accommodate the request.

146. Under cross-examination Bhikhai admitted there had been a succession of workers assigned to the mother’s file.

a. Bhikhai is at least the fourth family services worker since the second apprehension.

b. There were other workers previously.

c. She said it was understandable that K.C. was frustrated by being assigned yet another new worker. Every time the file was reassigned there were delays while the new worker became familiar with the file.

d. Bhikhai acknowledged K.C. expressed frustration that she had done everything she had been asked to do. But the worker said in reality K.C. hadn’t done everything she had been asked to do.

e. And no matter why K.C. was frustrated, Bhikhai still expressed concern about the mother’s persistent aggressive attitude which undermined the worker’s efforts to resolve issues.

f. Bhikhai admitted that recently their conversations have improved somewhat.

147. Bhikhai said when she took over the file from MacMillan on September 16, 2015 the Society continued to have significant ongoing concerns:

a. K.C. had been unable to follow through with the Society’s safety plan, which required that she not have contact with N.B..

b. The maternal grandmother – who appeared to be K.C.’s strongest support – appeared unable to intervene or provide strong direction to the mother in promoting her and the children’s safety.

c. K.C. demonstrated an ongoing pattern of being unable to follow through on recommendations or services that were put in place to support her progress.

d. The Society remained concerned about K.C.’s ability to be forthcoming, given her history of not being transparent with the Society and that her attendance to access visits was inconsistent.

e. The Society was still concerned K.C. lacked insight into the negative emotional impact on the children as a result of her behaviours.

f. Both fathers had not engaged with the Society and did not appear interested in presenting plans for the children.

g. Despite K.C.’s contention that she has a strong support network, no kin options had come forward for the children.

148. Bhikhai said she has reviewed these ongoing concerns with K.C., but they have been unable to engage in meaningful and productive discussion.

a. She said her working relationship with K.C. was very difficult from the outset.

b. Initially K.C. engaged in a lot of yelling, screaming and swearing. Most of their discussions ended in K.C. being angry and terminating the conversation.

c. She said as a result of K.C.’s behaviour, it has been very difficult to assess any progress the mother has made in her life in the past few months.

d. Bhikhai said K.C. did not complete an anger management program during the period she worked with her. K.C. said she completed a program in the past. But Bhikhai questioned how much benefit K.C. derived, because the mother still struggled managing her emotions when interacting with others.

149. Bhikhai expressed concern about K.C.’s lack of focus and commitment.

a. Even though K.C. voluntarily attended a parenting program at the Ontario Early Years Centre in Brantford, she didn’t complete enough sessions to obtain her certificate. She said she was going to pursue another parenting program.

b. Even though K.C. insists she wants to have regular and consistent visits with the children, in reality she has not been able to follow through by attending visits consistently and on time. Bhikhai said this is particularly concerning given the number of times she had discussions with K.C. about the effect on the children when she misses access.

c. K.C. has not been able to follow through on regular meetings with Bhikhai even though they scheduled meetings at her home in Brantford, so she wouldn’t have transportation issues.

150. Bhikhai testified about expectations on K.C. set out in a Society Plan of Care dated September 18, 2015.

a. K.C. was to attend domestic violence counselling. Bhikhai said she has started this.

b. She was to consistently attend access. Bhikhai said she has not done this although recently there has been an improvement.

c. She was to abstain from alcohol and drugs. Bhikhai said there is no evidence she is not complying.

d. She was to take medications as prescribed, and follow her treatment plan for her mental health by keeping regular and consistent contact with her doctor. Bhikhai said the Society is concerned K.C. is not complying with this requirement.

e. She was to maintain stable and safe housing. Bhikhai said recently housing has become an issue again. K.C. is looking for a place.

f. She was to notify the Society if she had any contact with the police and provide particulars. Bhikhai said she hasn’t fulfilled that requirement.

g. She was to shield the children from adult conflict. Bhikhai said while there has been no recent report of K.C. engaging in conflict with the children’s fathers, the mother has been verbally aggressive with Society staff in the presence of the children.

h. She was to refrain from contact with N.B.. Bhikhai said there is no evidence the mother is not complying.

i. She was to keep the Society informed of changes to her address and telephone number. She has been complying.

j. She was to sign consents for release of information from service providers. She has been complying.

k. She was to maintain an income through employment or social assistance. Bhikhai said she has been complying.

151. Under cross-examination Bhikhai admitted the Society had no concerns about K.C.’s parenting. She said the mother sought out a parenting course of her own initiative.

152. Bhikhai testified about her discussions with K.C. about the importance of connecting with her doctor regularly and consistently taking her medications. The mother assured her she was regularly taking her anti-depressants, and she didn’t feel any issues regarding her moods.

153. Bhikhai testified in March 2016 the Society checked with K.C.’s two pharmacies.

a. One said they hadn’t had contact with K.C. since September 2015.

b. The other said they hadn’t had contact with K.C. in more than a year.

c. When cross-examined about this, K.C. insisted she had a current supply of prescribed medications which she was taking regularly.

154. Bhikhai testified about K.C.’s housing in Brantford.

a. She learned on March 10, 2016 that K.C. was no longer at a Chatham St. apartment. The mother said she was living with her aunt L.C.-M., but she was looking for an apartment in Brantford and hoped to find one by April 1, 2016. She was working with Brantford women’s shelter Novavita to try to get native housing.

b. The mother said she had moved out as a result of some safety issues. Bhikhai testified during an earlier home visit on February 26, 2016 she observed some wiring and other issues.

c. Under cross-examination Bhikhai acknowledged that it is difficult for a parent to get community housing suitable for children until after those children are in that parent’s custody.

155. Bhikhai testified about incidents observed by access centre staff in Hamilton.

a. K.C. was observed to become agitated with A.B. because the child had not referred to her as “mommy”.

b. K.C. became upset when A.B. called her by her first name.

c. As recently as January 19, 2016 K.C. was overheard interrogating A.B. during the visit, asking the child who told her to call her by her first name.

d. Bhikhai expressed concern K.C. appears to focus on her own feelings and does not appreciate A.B.’s perspective.

e. But she also acknowledged she observed positive interaction between K.C. and the children during supervised access.

156. Bhikhai explained how access recently was moved to Brantford:

a. After K.C. moved from Hamilton to Brantford in July 2015, she said it was difficult for her to travel back to Hamilton for supervised visits with her children.

b. Bhikhai explored a number of options to overcome the problem.

c. The Hamilton Society asked its counter-part in Brantford to assist, but they repeatedly refused.

d. The Hamilton Society found a supervised access facility in Brantford, but it had a policy of not providing services for families where a child protection agency is involved.

e. Bhikhai then made repeated efforts to connect with K.C.’s aunt L.C.-M. to see if she could help. But the aunt kept cancelling meetings for various reasons, and the Society ultimately decided this option wasn’t going to be successful.

f. Finally the Hamilton Society looked into the Ontario Early Years Centre in Brantford.

157. Bhikhai said five visits were scheduled in Brantford, at either the Public Library or the Ontario Early Years Center.

a. All five visits proceeded and were successful.

b. During the three visits Bhikhai supervised, interaction between K.C. and the children was always positive. Greetings and departures were affectionate, with hugs and kisses. They engaged in enjoyable activities, and the children appeared to be having a good time.

c. The children arrived 30 minutes late for a March 10, 2016 visit because of traffic problems. K.C. brought her young cousin who interacted well with the children.

d. A March 17, 2016 visit was abbreviated because of an apparent mix-up by K.C. concerning times. At the end of the visit A.B. became upset and started to cry. K.C. and T.P. spent time consoling the three year old and reminding her that there’d be another visit next week.

158. Access was then returned to the Hamilton access centre as of March 21, 2016, to continue once per week. And all access was put on hold during the duration of the trial.

159. Bhikhai testified K.C. told her she was receiving support from staff at Novavita. For example they were helping her obtain a birth certification so she could apply for both native housing and transitional housing.

160. Bhikhai testified that at a February 26, 2016 meeting K.C. said it would be easier for her if the worker wrote out a list of expectations. So Bhikhai wrote a handwritten note stating:

a. Attend all appointments and visits as scheduled.

b. Meet with family doctor to discuss mental health and alcohol use. And follow plan to address this.

c. Better manage my emotions in interactions with CAS.

d. Continue to stay away from N.B..

161. Bhikhai expressed concern that despite the serious history of domestic violence, and reminders from the Society about the importance of getting professional help, K.C. has not been able to demonstrate an ability to commit to and follow through on services related to domestic violence. K.C. advised that she recently started a domestic violence group in January 2016.

162. Under cross-examination Bhikhai acknowledged that some of the reasons K.C. maintained a relationship with N.B. were consistent with reasons why many women stay with abusive partners. She also said K.C. appeared to have gained some insight in relation to concerns about domestic violence.

163. With respect to A.B.’s father:

a. Bhikhai testified she made it clear to K.C. that the Society required that she not engage in contact with N.B..

b. Under cross-examination Bhikhai agreed K.C. had stated that even though she still had romantic feelings for N.B. she would rather choose her children.

c. Bhikhai said she spoke to N.B. on December 17, 2015 and January 7, 2016. Both times he said he hadn’t had any contact with K.C. in a long time and didn’t want any contact.

164. Bhikhai was a thorough and credible witness. Her evidence followed logically (and sequentially) from the evidence of her coworkers. And as with the other Society witnesses, cross-examination yielded a few favourable acknowledgements about K.C.. But the substance of Bhikhai’s evidence in chief remained unchallenged.

WITNESS #14: K.C. (The Mother)

165. K.C. testified on her own behalf. She described her background:

a. She was born in Brantford, Ontario.

b. She has one full blooded sister who has seven children of her own. None of those children are in the sister’s care.

c. She has 20 half brothers and sisters from her father who passed away in May 2013. She has no ongoing contact with his side of the family.

d. She was healthy and happy as a child.

e. But she had a hard time in school, where she admits she was a behavioural problem.

f. She completed grade 10. She’s currently upgrading to obtain grade 12.

g. She hasn’t worked much, periodically holding a number of labour jobs.

h. She’s currently on Ontario Works.

i. Sometimes she lives with her mother who has health problems and is on ODSP. The grandmother had three strokes last year and one this year. But K.C. says the strokes have not affected the grandmother’s cognitive functioning or physical presentation.

166. K.C. testified about her aboriginal background:

a. Her mother has full native status.

b. Her father did not have status.

c. K.C. does not have native status.

d. There has already been a finding that neither child has native status.

e. K.C. said she still feels closely attached to her native heritage.

f. She said her mother taught her about native culture. “About the way natives raised their children and how they lived and how it was different from everyone else.” When asked to explain the difference, K.C. stated “I don’t even know. I never lived on the reserve. I’ve always lived in the city.”

g. K.C. said she has been working with native agencies to apply for native status. She recently obtained her birth certificate which is a prerequisite.

h. When asked by her lawyer how she anticipates her life will be different if she obtains native status, she was unable to elaborate.

167. K.C. described her relationship with T.P.’s father A.A.:

a. They were in a relationship for about six months.

b. They lived together in her parents’ home, but her father didn’t approve of him because he was violent and took drugs.

c. When she was six months pregnant he threw an air conditioner at her. That’s when her family kicked him out.

d. She hasn’t had any communication with him since T.P. was born in 2008.

e. A.A. has a long criminal record and is currently in jail.

168. K.C. described her relationship with A.B.’s father N.B.:

a. They met in 2006.

b. They lived together intermittently for about a year in Hamilton. But by the time A.B. was born K.C. was back living with her parents in Brantford.

c. She described the early years of their relationship as “great”. There was no abuse.

d. But she said N.B. is an alcoholic, and about two years into the relationship he became aggressive and violent.

e. She said she didn’t have much involvement with N.B. during the first period her children were in foster care – February to July 2013 – because N.B. was in jail.

f. She said her relationship with N.B. ended in August 2014 when her children were apprehended.

g. But she admitted that later in August 2014 she went to court and tried to get his charges dropped. And soon after that she was charged with assaulting N.B.’s girlfriend.

h. She also admitted there have been previous occasions when they broke up and then reconciled.

i. Under cross-examination K.C. denied N.B.’s allegations that she has continued to text him from other telephone numbers – even though this is precisely what she told police she was going to do.

169. K.C. did not dispute – nor did she really explain – her many, many interactions with the police during the past few years. Most of them involving extreme intoxication; domestic violence with N.B.; and aggression toward others.

170. To put things in perspective:

a. The Society filed about 127 pages of Hamilton Police Service occurrence reports involving K.C..

b. The Society filed about 104 pages of Brantford Police Service occurrence reports involving K.C..

c. In 2011 there were 12 reports of police involvement with K.C..

d. In 2012 there were five reports of police involvement with K.C..

e. In 2013 there were 11 police reports concerning conflict between K.C. and N.B..

f. In 2014 there were 10 police reports involving K.C..

g. In 2015 there were two police reports involving K.C. and N.B..

171. I have already mentioned some of the more serious instances of alcohol-fuelled conflict involving K.C. and N.B.. A few more examples underscore the magnitude of the mother’s lifestyle, behavioural and relationship problems:

a. October 14, 2011: Hamilton Police were called after 3:00 a.m. K.C. said there had been an evening of drinking with N.B. and 2 friends. At some point N.B. became angry that K.C. and the female friend were dancing. So the male friend threw K.C. to the ground, punching her in the head. The male friend continued to hold her down while N.B. punched her in the face. K.C. sustained facial injuries but refused EMS assistance. She refused to cooperate with police and didn’t want N.B. charged. Two days later she recanted and denied even making her original complaint to police.

b. January 13, 2012: Just before midnight K.C. was drunk. She took a cab to N.B.’s residence. N.B.’s roommate wouldn’t let her in. N.B. didn’t want to violate a “no contact” order. But K.C. created a huge disturbance. When Hamilton police arrived she was uncooperative, belligerent and argumentative. N.B. advised police this wasn’t the first time K.C. had arrived and created a commotion like this. She was arrested for being intoxicated in a public place.

c. […], 2012: K.C. left three week old A.B. with a babysitter in Hamilton. This was contrary to the voluntary services agreement K.C. had signed with Brant CAS which required one of the maternal grandparents to accompany K.C. around A.B.. K.C. and N.B. returned at 3:00 a.m.. The sitter refused to release the newborn to K.C. because she was so intoxicated. K.C. called police to try to get her daughter back, but was belligerent with them when they arrived. Eventually K.C. agreed to leave A.B. with the sitter for the rest of the night.

d. January 19, 2013 (just before the first apprehension): K.C. and N.B. had gone to a bar. They got drunk. They had an argument. They went their separate ways. K.C. then went to N.B.’s residence to retrieve her belongings, but he wasn’t home. So at 2:52 a.m. she walked to a nearby McDonalds, asked for police assistance, and complained she had been punched. While Hamilton police were taking a statement from the McDonalds employee, K.C. left and went to a Budget Inn where she passed out. When police later interviewed her at the motel she was uncooperative. She said N.B. had shoved her and his friend punched her. But didn’t want anything done about it and told police to “get out.”

e. April 10, 2013 (just after the first apprehension): K.C. and N.B. went to a Hamilton bar. They got drunk. They argued. K.C. left. She then returned and became enraged when she saw N.B. talking to another woman. She started yelling and swearing and had to be removed by bar staff. When police responded around 2:30 a.m., K.C. yelled and swore at police and also N.B. (calling him a “sand nigger piece of shit”).

f. August 27, 2013 (a month after the children were returned to her): K.C. and N.B. were drinking at a bar with friends. They all drank heavily. They returned to N.B.’s residence. K.C. got into an argument with an unidentified female. The female began kicking the door of the apartment to show how tough she was. N.B. and a man then assaulted K.C.. She said she was pushed against a wall and N.B. choked her. All of this occurred around 2:30 a.m. K.C. called police at 6:00 a.m. But when they arrived K.C. was uncooperative. The police report described her as “emotionally unstable”. (N.B. broke her jaw two weeks later, in the incident previously discussed.)

g. November 14, 2013: K.C. called Hamilton police at 2:00 a.m. to complain that she had received a call from an unknown woman who stated “I am dating (N.B.) now.” K.C. said she heard a man’s voice in the background and she thought it was N.B.. She was apparently trying to get him in trouble with an allegation that he may have violated a “no contact” order. Police did not lay charges.

h. November 26, 2013: This time, N.B. tried to get K.C. in trouble. He called police to complain K.C. had come to his residence and banged on his windows but he didn’t let her in. She then sent him text messages which he didn’t reply to. He told police he felt she was trying to set him up for a breach charge, because he was on release conditions which prohibited him from having contact with her. When police spoke to K.C. at a nearby address, she was intoxicated and rambled on about ruining N.B.’s life. K.C. told police she was going to text N.B. from different phone numbers so that police could not confirm it was her.

i. January 24, 2014: Hamilton police were dispatched to a report that K.C. had been punched in the face and choked by N.B.. Upon arrival they found K.C. outside in the snow with no shoes and no jacket. She was upset. She then ran into the apartment building. Officers followed. N.B. was inside and police were advised he had assaulted both K.C. and another female. But when police approach N.B., K.C. intervened, grabbed an officer by the leg and demanded that he not arrest N.B.. She changed her story and denied that N.B. had assaulted or choked her – even though it was apparent to the officers that she had choke marks on her neck. She was uncooperative. She and N.B. had both been drinking.

j. May 24, 2014: N.B. called the police alleging K.C. was stalking him. He showed police some texts he claimed were from K.C.. But he tried to hide other texts which suggested N.B. was inviting K.C. over for consensual sex. While the police were taking the report, K.C. arrived by bus and said N.B. had invited her over. Police concluded N.B. was trying to set K.C. up, so that she would arrive just as he was complaining to police that she was bothering him. Police warned K.C. to stay away, but no charges were laid.

k. July 30, 2014 (Two weeks prior to the second apprehension): Just after midnight Hamilton police responded to N.B.’s residence to investigate a report from K.C. that he had assaulted her July 24, 2014. When police arrived K.C. was outside in bare feet and obviously intoxicated. She was uncooperative and screaming and swearing at police for the entire time they tried to investigate. N.B. had also called police complaining K.C. was present. He didn’t tell the police dispatcher that he had invited her over. Ultimately, police drove K.C. back to her residence and no charges were laid.

l. August 13, 2014: N.B. assaulted K.C. in front of A.B., resulting in children being apprehended. The details were set out above.

m. September 7, 2014: At about 3:40 a.m. K.C. had a friend drive her to N.B.’s house in a pick-up truck which parked at the end of his driveway. K.C. told police when she got out of the truck she was punched in the head by N.B. and hit in the head with a bottle by N.B.’s girlfriend. So she grabbed the girlfriend by the hair and threw her to the ground. N.B. told police K.C. ran at him as if to strangle him, he dodged her, and then in some manner K.C. struck his girlfriend causing her to fall. The girlfriend told police K.C. approached her in the driveway in an aggressive manner. The girlfriend couldn’t remember exactly what happened, but she ended up on the ground unconscious. K.C. ended up charged with assaulting the girlfriend. This resulted in a one-year peace bond in November 2014.

n. September 23, 2014: N.B. invited K.C. over and after she arrived he called police claiming she was harassing him. Both of them had been drinking. Police concluded this was another effort to get one another in trouble.

o. October 18, 2014: Around midnight police were flagged down by K.C. who was extremely intoxicated. She was crying and so unsteady on her feet that she almost got struck by a vehicle as she crossed the street to flag down the cruiser. She said she and N.B. and another man had been drinking. They had an argument and N.B. assaulted her. Police later interviewed that other man who confirmed there was a verbal dispute, but said he didn’t see any assault. K.C. was driven home to her mother. No charges were laid.

p. April 24, 2015: K.C. called Hamilton police at 3:40 a.m. to report that her mother wouldn’t let her leave their apartment. When police arrived, K.C.’s sister explained there was a dispute because they were trying to prevent K.C. from removing the maternal grandfather’s ashes from the apartment. In the presence of the officers, K.C. called both her mother and sister a “cunt”, “whore” and “bitch” and stated she was leaving and taking the ashes. K.C. wouldn’t settle down, and finally they told her she could take the ashes if she just left.

q. July 5, 2015: K.C. and her mother had been staying at the Native Women’s Centre. Police were called around 3:40 a.m. because K.C. had breached her curfew; she was intoxicated; and she had a confrontation with another resident. When police arrived K.C. alleged the other resident’s boyfriend had punched her in the face and thrown a hot dog at her. But K.C. was hostile with police throughout the interaction. She was ejected from the shelter that evening. That’s when she suddenly moved back to Brantford.

r. July 11, 2015: Within a week of K.C. moving to Brantford, she went to a bar for karaoke with her two friends, a male and a female. Everyone got drunk. K.C. and the female had words. It then escalated into a physical conflict. K.C. alleged the female’s boyfriend joined in. The boyfriend said he was trying to help the bartender break up the fight. K.C. suffered facial injuries. No charges were laid.

s. January 28, 2016: K.C. called Brantford police claiming two people were on their way from Hamilton to get her. She had been drinking with her friend A.M. and a guy named J.P. After she returned to her Brantford home she received text messages accusing K.C. of stealing their medication (which she denied). They were coming to get her. Under cross-examination K.C. agreed with police observations at the time that her thoughts were racing; she was constantly changing topics, and she was very paranoid. That was only a few weeks before this trial.

172. These were just some of the many incidents of alcohol-fuelled aggression and misadventure leading to repeated police involvement.

a. K.C. didn’t deny the chaotic narrative set out in any of these reports.

b. Notably, she didn’t remember all of these incidents.

c. She agreed alcohol was almost always involved.

d. Of her lifestyle with N.B., she testified “We drank all the time.”

e. Initially she testified she hasn’t had any involvement with police since moving to Brantford. But Brantford police records confirm they have in fact been involved with her.

f. She admitted she has frequently been uncooperative with police and lied to them.

g. She admitted there were many times when she truthfully complained to police about N.B., and later lied when she tried to recant.

h. She admitted police not only encouraged her to stay away from N.B., but they tried to refer her to counselling services. But she was generally resistant.

i. She emphasized that apart from the peace bond stemming from the assault charge in relation to N.B.’s girlfriend, she has no criminal record.

173. K.C. testified about substance abuse:

a. Neither of her parents had substance abuse issues.

b. She used to drink as a teenager before she had children.

c. She didn’t start using drugs until after she had children.

d. She was drinking a lot after T.P. was born. That’s why Brant CAS insisted that her parents assume full responsibility for T.P..

e. But she doesn’t think she became an alcoholic until after she became involved with N.B.. He and all of his friends were constantly using alcohol and drugs like cocaine. She said she adopted that lifestyle.

f. She described a vicious circle: Her abuse of alcohol was one of the reasons her children were taken away from her. But losing her children made her depressed and she drank even more.

174. K.C. described how alcohol affects her.

a. “I’m usually a happy drunk.”

b. “But if someone says the wrong thing or does something then I get angry and it just blows up.”

c. “Generally I’m happy, but my temper can flare up.”

175. Does she think she has an alcohol problem?

a. She said during the first couple of years of her relationship with N.B. it didn’t occur to her that she might need help dealing with alcohol.

b. Eventually she realized it was a problem.

c. But she admitted she was resistant to repeated efforts by both Brant CAS and the Hamilton Society encouraging her to participate in formal substance abuse counselling.

d. She insisted she doesn’t need to take an alcohol program. She said she has drinking under control.

e. “I drink once in a blue moon and I only consume three or four beers when I do drink.”

176. K.C. was asked about domestic violence:

a. She acknowledged that she suffered many horrible assaults and injuries at the hands of N.B. – including losing her unborn baby at eight months when he threw her out of a moving car.

b. She admitted her violent relationship with N.B. was the reason she had her children apprehended twice.

c. She admitted the frequency and severity of assaults got worse. She said the violence only occurred when they were drinking. But she also said they were drinking “90% of the time”.

d. She couldn’t really explain why she kept going back to him. “Love does stupid things to you.”

e. She admitted before N.B., A.A. was abusive with her.

f. And before that, her first boyfriend put her head through a bedroom door, leaving her with ongoing migraines. She didn’t call police. She couldn’t explain why.

177. Multiple Society witnesses said they encouraged K.C. to get counselling for domestic violence, but she didn’t do very much.

178. K.C. was asked about a February 26, 2016 letter filed with the court, from Dixie Doxtador, a Violence Against Women counsellor with the Native Women’s Centre. The letter said:

a. K.C. participated in Violence Against Women counselling from December 10, 2014 to March 10, 2015.

b. The letter described a series of one-on-one sessions in which Doxtador went to K.C.’s home.

c. Doxtador’s letter said at first K.C. was “not very engaged”.

d. At the last session on March 10, 2015 K.C. was described as “a present active participant.” The next appointment was scheduled.

e. But when Doxtador attended her home for a March 24, 2015 session, K.C. wasn’t home.

f. K.C. never contacted the counsellor again.

179. K.C. testified that she had previously been reluctant to take a violence against women course because she didn’t like group sessions. That’s why she selected Doxtador’s one-on-one program. She couldn’t recall why she stopped attending one-on-one counselling. “I have no idea why”.

180. She said since returning to Brantford she has connected with Novavita which offers programs about domestic violence. On January 19, 2016 she started a 12 week program, scheduled to finish just after the end of this trial. She said she has learned more in group sessions than she did through one-on-one counselling with Doxtador.

181. K.C. was asked about her own temper:

a. She testified that while the children were in foster care the first time, between February and July 2013, she had to take an anger management course at Urban Core, and also a parenting course at the Indian Center in Hamilton.

b. She insisted she only has an anger problem with the Hamilton Society.

c. She said she has learned how to control her anger in the last little while.

d. Under cross-examination K.C. acknowledged she was asked to take other anger management counselling but didn’t do so.

182. K.C. testified about mental health issues:

a. Neither of her parents had mental health problems.

b. K.C. said she became depressed after her father died in May 2013. That’s when she first started taking anxiety medications. She and her father had been extremely close and he was an important source of support in her life.

c. She said her emotional health deteriorated further after her children were apprehended for the second time in August 2014.

d. She admitted that even before the apprehension, on June 8, 2014 – while she was staying with the children at a Good Shepherd shelter – she was taken to St. Joseph’s Hospital Psychiatric Emergency Service as a result of suicidal ideation.

e. She admitted that on July 11, 2014 a friend called police because K.C. said she wanted to die. She admitted that even though she had a good working relationship with Friesen, she never told Friesen about her recurring suicidal ideation.

f. She admitted on August 29, 2014 -- a couple of weeks after the second apprehension -- she called police at 5 a.m., claiming she had just been dropped off by N.B.. She told police she had dropped the charges against N.B. and he had been released from custody. K.C. was intoxicated. She told the police dispatcher she was going to die and was afraid for her safety. Then she said she was going to jump off a bridge on the Linc expressway and she wanted to die. Then she said she didn’t want to die, and eventually police let her go home. But later that morning police had more interaction with her because she was intoxicated and threatening to run into traffic. She wanted police to let her go to the top of an apartment building so she could jump off. Ultimately she was apprehended by police under the Mental Health Act and transported to St. Joseph’s Hospital Emergency Psychiatric Services. She was not compliant and continually swore at police and hospital staff.

g. She admitted that on November 11, 2014 police found her on a bench, intoxicated, despondent and suicidal. She spoke of jumping in front of a bus. Later she said she was going to hang herself in a basement. She admitted she was taken for psychiatric treatment and referred to a Bridges to Recovery program. She didn’t complete that program.

h. She said she has been receiving treatment and prescribed medications from her family physician Dr. Keith. She admitted she hasn’t seen him since September 2015. She said she has an appointment to meet a new family doctor in Brantford.

i. She insisted she has been taking her prescribed medications. She was reminded that pharmacy records show she hasn’t been filling her prescriptions. K.C. said she still has a supply of anti-depressant and anxiety medications, because she hasn’t been taking them daily. She takes them when she feels she needs them. She admitted this wasn’t what the doctor told her to do. She didn’t check with her doctor to see if occasional use of her prescribed medications was ok.

j. She testified that she has not had problems with depression since 2014.

k. She said Dr. Keith told her last August that he would refer her to a psychiatrist in Brantford. She never heard from anyone and never followed up.

183. K.C. was cross-examined about her interaction with community services:

a. She admitted the Society has consistently encouraged her to connect with professionals and programs in the community.

b. She admitted sometimes Society workers accompanied her to meetings with community resources.

c. She admitted Society workers wrote out letters explaining what they wanted her to do. She said the letters were clear and helpful.

d. She admitted the Society’s suggestions for counselling were reasonable.

e. She admitted she wasn’t as motivated as she could have been and she didn’t follow up on reasonable suggestions.

f. K.C. said she has derived great benefit from taking the Healthy Babies Healthy Children program.

g. She has been working with Holly Doxtator since June 2014, and described her as an important source of ongoing support.

184. K.C. described her involvement with children’s aid societies.

a. She never really had any problems with Brant CAS. She signed a series of agreements with Brant CAS that her parents would basically be raising T.P. (and then A.B. as well).

b. Things went badly when she moved to Hamilton in January 2013 and Brant CAS asked the Hamilton Society to apprehend her children.

c. She said Friesen was an amazing worker and very helpful.

d. But she said the Hamilton Society switched workers every four to five months, and she was frustrated having to start fresh with new workers.

e. She said she “doesn’t freak out” on her current worker Bhikhai as much as she used to. She tries to have civil conversations with her.

f. She acknowledged that if the children are returned to her, she will have to continue to work with a children’s aid society. She said she believed she was able to do that.

185. K.C. said her access to the children has gone well, although she admitted she has missed a lot of visits – particularly in the past year. She blamed circumstances beyond her control.

a. She worked at an Oakville drywall recycling company from April to June 2015, earning $12.50 per hour.

b. She was still living in Hamilton, so transportation was a problem. She had to take a bus to Burlington and then a GO train.

c. As well, it was shift work and her schedule wasn’t as predictable as her employer had originally represented.

d. She said sometimes she had to miss visits because if she missed any shifts she would lose her job – and she needed the money.

e. But she said when the Society warned her she was missing too many visits, she quit her job.

186. But K.C. didn’t dispute missing a lot of visits even when she didn’t have employment commitments. For example:

a. In August 2015, when she was having two visits per week, she attended four out of eight scheduled visits.

b. In September 2015 she attended four out of seven scheduled visits.

c. Because of her poor attendance in October 2015 the visits were reduced from twice a week to once a week.

d. But in October 2015 she only attended for two of four scheduled visits.

e. In November 2015 she attended two out of five scheduled visits.

f. Even when visits were cut back by 50 per cent, she was still only showing up around half the time.

g. As of November 25, 2015 she was told she would have to call by 11 a.m. to confirm if she was going to attend. The rationale for this was to avoid the children being inconvenienced by being transported to the supervised access facility, only to experience the disappointment of the mother not showing up. But the mother strenuously objected to this “call ahead to confirm you’re coming” policy, complaining it was unfair and too onerous.

h. In December 2015 she attended two out of four scheduled visits. During the December 30, 2015 visit she became angry at staff and started swearing in front of the children.

i. In January 2016 she attended two out of four scheduled visits.

187. K.C. said she had more trouble attending for access in Hamilton after she decided to move to Brantford in July 2015.

a. She said she doesn’t have a car and has trouble arranging transportation to Hamilton for weekly visits to her children.

b. Under cross-examination, she admitted that when she previously resided in Brantford, she frequently travelled to Hamilton to visit N.B. with little apparent difficulty.

188. K.C. explained she moved back to Brantford in July 2015 because she has a lot of support in that city. Friends and relatives.

a. She couldn’t explain why almost none of those people have come forward to offer to help.

b. She acknowledged that since August 2014 when the children were apprehended, she has given the Society quite a number of names of potential kin placements for the children. Sometimes she ended up withdrawing those names. One of those people ended up assaulting her. Sometimes her proposed caregivers couldn’t be located. Sometimes they simply refused to become involved.

c. None of her proposed kin placements materialized. And she has no more names to propose.

d. She said her mother will continue to be an important source of support and assistance with the children. She denied her mother’s health problems would limit her availability to help.

189. Upon her return to Brantford K.C. initially moved in with a female cousin C.B..

a. She and her mother remained there about a month.

b. K.C. denied being asked to leave.

c. But according to a letter from Brant CAS dated August 5, 2015 C.B. asked K.C. to leave the home on July 31, 2015 “due to behaviour (the cousin) did not want in her home, given she has her own young child.”

d. K.C. admitted that on September 2, 2015 her cousin called police to complain K.C. and her sister were harassing her.

190. Then she moved across the street to her own rental unit.

a. But she moved out in March 2016 because the place was “a dump” and there were safety issues.

b. She admitted that while she was at that residence, Brantford police attended twice for noise complaints.

191. For the past month she has been living with her aunt L.C.-M..

a. She’s working with Novavita to arrange housing. But until she gets custody of her children she won’t be a priority for community housing.

b. In the meantime she said she and the children will be able to stay at aunt L.C.-M.’s residence for as long as may be required.

c. But aunt L.C.-M. wasn’t called as a witness to confirm her willingness to help.

d. And the mother admitted this is the same aunt who refused to cooperate when the Society wanted to set up access in her home. The aunt told the Society she was too busy and her home was too small. The mother testified her aunt doesn’t like dealing with CAS. Nonetheless, the mother expressed confidence that the aunt would let her and the children remain in the home, and that the aunt would cooperate with CAS in the future.

192. K.C. said she also found a job – for one month – at Adidas shoes in Paris, Ontario. Now she’s back on Ontario Works.

193. K.C. acknowledged she has had a lot of problems, but she testified she has changed during the 20 months since the children were apprehended for the second time.

a. She said N.B. is out of her life and that has made a big difference.

b. She is more mature.

c. She has the ability to keep it together.

d. She is staying “totally away” from alcohol.

e. She has lots of support.

194. K.C. described the visits recently set up in Brantford as “amazing”. She described her relationship with the children:

a. She has a very strong bond with T.P..

b. She has a good bond with A.B. but it is more distant. A.B. regularly refers to her foster mother as “Mommy A___” and this bothers the mother. Recently she has started to call K.C. “mom” again.

195. Under cross-examination K.C. acknowledged that children need:

a. A parent who can provide stability.

b. A parent who can meet their needs on a day to day basis.

c. A caregiver who shows good judgment.

d. A caregiver who can problem solve.

e. A caregiver who can access services for children if required.

f. A caregiver who can access supports for herself if required.

g. A good reliable support system.

h. A stable housing environment.

i. Freedom from worrying about their parent.

j. Love.

196. K.C. said she plans to enroll T.P. in school and arrange sporting and recreational activities for both children. She wants to “do what’s right for them”.

197. With the exception of one or two very specific issues – mainly related to N.B.’s interaction with herself and A.B. -- for the most part the mother did not dispute the history of events comprehensively detailed by multiple Society witnesses. Instead, she focussed on trying to provide reassurance that her future would be better.

198. Under very gentle cross-examination, K.C. candidly admitted many past lifestyle and parenting difficulties. It was clear from her evidence – and her descriptions of experiences – that she has had a very hard life.

WITNESS #15: HOLLY DOXTATOR (Family Home Visitor)

199. Holly Doxtator was the only professional witness called by K.C..

a. She is a Family Home Visitor employed by the Ontario Native Women’s Association.

b. She has been working with K.C. on a voluntary basis since June 2014. In order to qualify for Doxtator’s services, a person has to have some native connection: self-identifying; status; non-status; or Metis.

200. For the most part Doxtator focussed on assisting K.C. with two objectives:

a. Obtaining housing. Doxtator said she was successful arranging housing almost immediately. But after the mother and children moved into the housing, on August 14, 2014 both children were apprehended.

b. Obtaining a native status card. The mother is still working on this. Doxtator didn’t explain what’s taking so long.

201. Doxtator said she developed a Native Plan of Care for K.C. – which is not the same as a “Plan of Care” under the Act. She said her agency and community takes a holistic approach and focusses on four aspects of an individual’s life:

a. Physical

b. Mental

c. Spiritual

d. Emotional

202. Doxtator sounded like she went beyond the call of duty, regularly assisting K.C. in many ways including:

a. Providing transportation to and from access, or otherwise.

b. Assisting her with government and native paperwork.

c. Giving her lots of supplies for herself and for access.

203. Doxtator had many favourable things to say about K.C.:

a. She attended a couple of K.C.’s visits with the children.

b. She had no concerns about K.C.’s parenting skills, and felt the mother interacted with her children in a warm and loving manner.

204. But Doxtator admitted there was significant background information K.C. didn’t share with her:

a. K.C. didn’t fully inform her about why the children were apprehended in August 2014. And she didn’t mention that the children had previously been apprehended in February 2013.

b. She only recently found out K.C. had lost the housing Doxtator had arranged for her.

c. Doxtator knew K.C. had historical problems with alcohol. She testified she understood K.C. had attended some counselling for alcohol abuse and that K.C. had made progress dealing with this issue. Doxtator said K.C. never gave her any details of any counselling. She was unaware of police reports suggesting K.C. has continued to abuse alcohol even since moving to Brantford.

d. Holly Doxtator said K.C. was making good progress working with another native counsellor Dixie Doxtador. She was somewhat surprised to learn during cross-examination that K.C. hadn’t seen Dixie since March 2015.

205. Doxtator testified that while K.C. is still her client, Doxtator is Hamilton-based and won’t be able to assist K.C. with issues in Brantford.

a. Doxtator said Brantford has a large native community so she is confident K.C. will be able to arrange services in that city.

b. She expressed confidence K.C. will cooperate with a replacement worker.

206. Doxtator was a very capable professional witness who tried hard to help K.C. as much as she could.

a. She had a good knowledge of those issues in K.C.’s life which had been revealed to her.

b. Doxtator seemed to be learning things about K.C. during cross-examination. She admitted that there were a number of areas where K.C. appeared to have either understated or failed to disclose certain issues and problems.

c. Nonetheless, Doxtator was relentless in trying to put a positive spin on K.C.’s situation. She appeared eternally optimistic about K.C.’s ability and commitment to change.

WITNESS #16: M. H. (Friend/relative)

207. M.H. testified on behalf of K.C..

a. The 27 year old Brantford female testified “we’re family”, although she stumbled a bit trying to explain her connection to K.C. “through marriage.”

b. Perhaps more accurately, she descripted a friendship-type relationship. A lifelong familiarity with K.C.. Not extremely close relations during the early years. But more regular contact by the time T.P. was born. And a closer relationship since K.C.’s children were apprehended in August 2014.

c. She offered to help K.C. with rides or other assistance as best she could, given her own family responsibilities and full-time employment.

208. She described K.C. in positive terms:

a. She’s a good, loving parent.

b. She has made a lot of progress during the past two years.

c. She appears committed to getting her children back.

209. As a witness, M.H.’s overwhelming characteristic was loyalty.

a. She is obviously very supportive of K.C. and tried her best on the witness stand to help in any way she could.

b. But on quite a few issues it became painfully obvious that M.H. didn’t really know as much about K.C. as she tried to let on.

c. She had never observed any mental health issues or suicidal ideation.

d. She hadn’t seen any signs of alcohol abuse by K.C..

e. K.C. had mentioned there had been some domestic violence, but M.H. didn’t have a lot of details.

f. She had never met either A.A. or N.B..

g. She had seen the outside of K.C.’s current residence, but had never been inside.

h. She sometimes drove K.C. to and from visits, but didn’t actually observe K.C.’s interaction with the children.

i. She tended to answer questions generically or equivocally. If asked whether some revelation in court surprised her, she responded “yes and no” with little elaboration.

j. M.H. confirmed that she’s a good friend. But I was left with considerable doubt about the depth of her relationship with K.C. – past or future.

WITNESSES #17-21 (After Hours Emergency Workers)

210. Five Society After Hours Emergency Workers filed affidavits but were not required to attend for cross-examination:

a. Leianne Cockeril (Affidavit sworn February 19, 2016).

b. Madeline Kingdon (Affidavit sworn February 11, 2016).

c. Kristen Manninen (Affidavit sworn February 16, 2016).

d. Tamm McAllister (Affidavit sworn February 17, 2016).

e. Lusine Unanyan (Affidavit sworn February 12, 2016).

211. These affidavits set out details of various reports the After Hours workers received from police concerning contacts primarily with K.C., and at times with N.B..

THE LAW

212. The Child and Family Services Act (the Act) sets out a statutory pathway to be followed in a child protection application.

213. As stated, on July 15, 2013 Justice Chappel made a final Order which included findings:

a. The children are in need of protection pursuant to sections 37(2)(b)(ii) and 37(2)(g) of the Act.

b. The children are not native.

c. The children are not Catholic.

214. A succession of Status Review Applications were then commenced pursuant to s.64 of the Act which states that the Society shall seek a review of any Order for Society supervision or wardship before that order expires. These applications resulted in a series of six month orders extending (on consent) the same terms of supervision.

215. The Society’s most recent Status Review Application originally returnable August 26, 2015 was the subject of this trial.

216. The Society is now seeking a final order pursuant to s.65 of the Act, which allows the court to:

a. Vary or terminate the original order made under s.57;

b. Order that the original order terminate on a specified date in the future;

c. Make a further order under s.57; or

d. Make an order under s. 57.1.

217. The Society is seeking a further order – specifically that the children be made Crown wards.

218. In a Status Review hearing the original order being reviewed is presumed to be correct. This is not a re-hearing or re-trial of the order previously made. Rather, the function of the Status Review hearing is to evaluate whether there is a need for a continued order for protection. This involves a two-part analysis:

a. First, determine whether the child continues to be in need of protection; whether there is a continued need for state intervention to protect the child.

b. Second, determine what is in the child’s best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent’s parenting ability. Catholic Children's Aid Society of Metropolitan Toronto v. C. M. (supra).

219. The overriding priority is the best interests of the child. The factors to be considered in determining the best interests of a child are contained in s. 37(3) of the Act.

37(3) Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

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

13. Any other relevant circumstance.

14. The court must consider all relevant circumstances including those specifically listed in s. 37(3). While the risk that the child may suffer harm by remaining in a parent’s care is relevant, the court must also consider the quality of the parent-child relationship, and the risk of emotional harm to the child if he or she is kept away from the parent. Children’s Aid Society of Toronto v. G.S. 2012 ONCA 783 (ON CA).

15. Section 37(4) sets out additional considerations in relation to Indian or Native children:

37(4) Where child an Indian or native person

Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child's cultural identity.

222. Before making an order in a Status Review application, the court must obtain and consider a Plan of Care for the child prepared by the Society. This requirement is set out in s. 56 of the Act, which also outlines the information which must be included in the Plan of Care:

223. Society's plan for child

The court shall, before making an order under section 57, 57.1, 65 or 65.2, obtain and consider a plan for the child's care prepared in writing by the society and including,

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

(b) a statement of the criteria by which the society will determine when its wardship or supervision is no longer required;

(c) an estimate of the time required to achieve the purpose of the society's intervention;

(d) where the society proposes to remove or has removed the child from a person's care,

(i) an explanation of why the child cannot be adequately protected while in the person's care, and a description of any past efforts to do so, and

(ii) a statement of what efforts, if any, are planned to maintain the child's contact with the person;

(e) where the society proposes to remove or has removed the child from a person's care permanently, a description of the arrangements made or being made for the child's long-term stable placement; and

(f) a description of the arrangements made or being made to recognize the importance of the child's culture and to preserve the child's heritage, traditions and cultural identity.

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

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

1. Supervision order

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

2. Society wardship

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

3. Crown wardship

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

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

57(2) Court to inquire

In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

57(3) Less disruptive alternatives preferred

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

57(4) Community placement to be considered

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

57(5) Idem: where child an Indian or a native person Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child's extended family;

(b) a member of the child's band or native community; or

(c) another Indian or native family.

57(6) [Repealed 1999, c. 2, s. 15(2).]

57(7) Idem When the court has dispensed with notice to a person under subsection 39(7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47(1) has been held upon notice to that person.

57(8) Terms and conditions of supervision order If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on,

(i) the child's parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

(d) [Repealed 2006, c. 5, s. 13(5).]

57(9) Where no court order necessary

Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

224. This means that for each of T.P. and A.B., the starting point is that there are four available orders which can be made under s. 57 of the Act.

a. They can be placed with a parent or another person, subject to the supervision of the Society;

b. They can be made Society wards;

c. They can be made Crown wards; or

d. They can be made Society wards and then returned to the care of a parent or another person subject to the supervision of the Society.

225. Section 57.1 provides:

57.1(1) Custody order

Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

57.1(2) Deemed to be order under Children's Law Reform Act An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

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

(b) may give any directions that it may give under section 34 of that Act.

57.1(3) Restraining order

When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children's Law Reform Act.

57.1(4) Same An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act, and shall be treated for all purposes as if it had been made under that section.

57.1(5) Appeal under s. 69

Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

57.1(6) Conflict of laws

No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

57.1(7) Application of s. 57(3)

Subsection 57(3) applies for the purposes of this section.

226. There was no proposal for an order under s. 57.1 in this case.

227. In determining which disposition is in the best interests of the child, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be made a Society ward under s. 70 of the Act:

70(1) Time limit

Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

70(2) Same In calculating the period referred to in subsection (1), time during which a child has been in a society's care and custody under,

(a) an agreement made under subsection 29(1) or 30(1) (temporary care or special needs agreement); or

(b) a temporary order made under clause 51(2)(d),

shall be counted.

70(2.1) Previous periods to be counted

The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody as a society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody.

70(3) Idem Where the period referred to in subsection (1) or (4) expires and,

(a) an appeal of an order made under subsection 57(1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 65 (status review),

the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.

70(4) Six month extension

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

228. The timelines specified in s.70 are mandatory and reflect the Act’s child-centered approach. Parents are to be helped, encouraged, and given a reasonable opportunity to correct or otherwise address parenting deficiencies and concerns. But from a child’s perspective, time is always of the essence. At a certain point - and s 70 helps us in determining that point - primacy has to be placed on the child's actual needs over the parent's potential progress. (Children's Aid Society of Hamilton v. A.D.L. (supra).

229. T.P. and A.B. were first admitted into care on February 20, 2013.

a. A.B. was three months old at that time and remained in care until July 16, 2013.

b. T.P. was four years old at the time and remained in care until July 17, 2013.

c. The children were in care for just under five months.

230. T.P. and A.B. were apprehended for the second time on August 14, 2014.

a. A.B. was not yet two years old.

b. T.P. was almost six years old.

c. The children’s current period in foster care has been approximately 20 months.

231. Cumulatively, the children have been in care for approximately 25 months.

a. Both children have now been in care longer than the time permitted pursuant to section 70(1).

b. In A.B.’s case, even with a six month extension pursuant to s.70(4) the time limit would still be exceeded.

c. In T.P.’s case a six month extension pursuant to s.70(4) is still possible. No one asked for such an order. The court can only make such an order it if is in the best interests of the child to do so. But I received no evidence supporting such an extension.

d. Both children need certainty, finality and permanence. Time is up.

232. Accordingly, the s.70 timeline considerations leave us with only two realistic options for each of T.P. and A.B.:

a. Return them to the mother’s care under a supervision order, or

b. Crown wardship.

233. In making a decision, the court must give priority to the paramount purpose of CFSA as set out in section 1:

1(1) Paramount purpose

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

1(2) Other purposes

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

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

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

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

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

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

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

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

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

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

CROWN WARDSHIP ANALYSIS

234. The evidence is overwhelming that T.P. and A.B. remain in need of protection. K.C. does not dispute this. Her request is that the children be returned to her care under a supervision order.

235. My evaluation of the options available and the best interests of each of the children includes consideration of the following findings:

236. K.C. has had a long-standing and serious problem with alcohol abuse.

a. She was drinking regularly as a teenager.

b. She continued drinking after T.P. was born.

c. She disregarded alcohol-related terms in the voluntary service agreements she signed with Brant CAS.

d. She continued drinking after A.B. was born and attempted to take charge of A.B. when she was a newborn, from a babysitter who wisely refused to release the child.

e. Her drinking worsened when she became enmeshed in an extremely unhealthy and dangerous relationship with N.B..

f. She has maintained a lifestyle of frequent heavy drinking which has led her to situations of violent behaviour in which she has been both the victim and the aggressor.

g. She has failed to recognize the severity of her problem with alcohol.

h. She has failed to prioritize her children over her use of alcohol, in circumstances in which it was repeatedly made clear to her that she had to choose one or the other.

i. She has ignored requests from the Society -- and orders from the Court – that she shield her children from alcohol.

j. She has been resistant to well-founded recommendations that she obtain professional help to deal with what is clearly alcoholism.

k. She has failed to realistically address the problem.

l. She has previously provided assurances that the problem was resolved, only to experience further and serious problems stemming from intoxication.

m. Her most recent assurances that she has resolved the problem on her own are not convincing.

n. She has shown no insight into her problem with alcohol and the impact alcohol consumption has on her judgment, demeanor, and behaviour.

o. Her suggestion that she will be alright drinking a few beers every few months is simply unrealistic.

237. K.C. has a long-standing and unresolved problem with anger control.

a. This appears to be largely – but not exclusively – fuelled by alcohol.

b. Although K.C. claims she only has an anger control problem with Society workers, there is overwhelming evidence of repeated aggressive behaviour toward police officers, strangers, friends, and relatives.

c. K.C. claims she has taken sufficient anger management counselling. But her participation and achievement in her most recent program in Brantford has not yet been verified. And while she says she is getting “better”, there have been troubling indicators that the problem has not completely resolved itself.

d. As with the alcohol, K.C.’s acknowledgement of the problem sounds like lip-service.

238. K.C. has not adequately addressed her chronic involvement with domestic violence.

a. She has selected a succession of abusive partners.

b. She has perpetuated a lifestyle dangerous not only to herself – but she has exposed A.B. to violent and chaotic situations.

c. She appears to have no insight with respect to the impact of domestic violence on herself and on children.

d. She has repeatedly rejected or resisted efforts by the Society, by police, and by others to arrange counselling in relation to violence against women.

e. After much delay she signed up for counselling with Dixie Doxtador and then abandoned the program without notice or explanation.

f. As with the other problem areas, K.C. needs to do more to establish that she is regaining control of her life.

239. I find that it is premature to accept K.C.’s assurance that she has extricated herself from her extremely dangerous relationship with N.B. – or that she is capable of staying away from him in the future.

a. She has made promises before.

b. She has been subject to court orders before.

c. She has broken up with him and then reconciled. Perhaps repeatedly.

d. She has clearly been advised that her life with her children is at stake – and yet she has repeatedly chosen N.B. over her children.

e. K.C. and N.B. have had a long-term, tumultuous, destructive “on again/off again” relationship. They have taken turns chasing after one another. They have taken turns trying to get one another in trouble. At times they have separated. And at times they have been apart simply because N.B. was in jail.

f. She says the relationship has been over for more than a year. But more recently he has complained she has been texting him from unknown telephone numbers. She denies this, but I cannot ignore her earlier statement to police that this is exactly what she planned to do.

g. Given the lack of a dramatic turnaround in any other aspect of her life, it is premature to rule out the possibility of further contact between K.C. and N.B.. And any such contact would represent a huge risk to any child in the mother’s care.

240. K.C. has experienced serious mental health issues, and – as with alcohol and anger management – she has not yet demonstrated insight or management of these issues.

a. She has failed to adequately follow up on treatments and programs recommended during acute periods of emotional distress and suicidal ideation.

b. She has not been diligent or consistent in maintaining contact with her doctor.

c. She has not been diligent in establishing contact with a new family doctor in Brantford.

d. She has not been diligent in following up on a referral to a psychiatrist.

e. She appears not to be taking medications in the manner prescribed.

241. As well, K.C. has not yet resolved her long-standing problem maintaining stable housing.

a. The mother has a long history of moving around, sometimes on short notice. At times her children have been impacted by this transience, having to stay in a shelter.

b. She wants the children returned to her care immediately. But she’s temporarily staying with aunt L.C.-M.. K.C. testified this is a viable indefinite arrangement. But L.C.-M. didn’t come to court to testify. And this is the same aunt who was uncooperative with the Society even on the topic of allowing K.C. to have access in her home.

c. K.C. says she has applied for community housing in Brantford, but she offered no evidence as to how long it might take for such accommodation to be available.

d. K.C. complains of a catch-22 situation: She can’t get community housing appropriate for children until the children are already returned to her care. But the mother was previously given community housing – and she was entrusted with care of her children. She lost both her children and the housing through her own misconduct.

242. I find that K.C.’s access to the children has generally been positive and successful – when she has attended.

a. Visit supervisors have almost universally described positive visits, with good, loving interaction between K.C. and both children.

b. Criticisms of K.C. have been minor and largely irrelevant to the weighty decision I am presented with.

c. She has been criticized for using her cellphone during visits. I accept her explanation that this has been to allow the children to say hello to the maternal grandmother or other relatives.

d. She has been criticized for spending time mingling with other persons at the supervised access site. I accept her explanation that she knows some of these people and it would be artificial to expect her not to say hello.

e. These are minor criticisms.

243. I find that the real problem – and it’s a huge problem – is K.C.’s failure and inability to consistently attend for access.

a. By most accounts, attendance was fairly regular until about a year ago when K.C. took a shift-work job in Oakville. That meant her availability for the children was reduced not only by her unpredictable hours of employment, but also by the extensive transportation time required to take public transit between Hamilton and Oakville. For clarity: K.C. was still missing visits even prior to April 2015. But during the past year she has been missing more visits.

b. K.C. said she took the Oakville job because she needed the money. Certainly finding employment is commendable and a sign of responsibility. But I received no evidence that this was the only employment opportunity the mother could have found. Given the fact that generally K.C. hasn’t worked much, and this wasn’t a particularly specialized or high-paying labour position – it seems strange (or at least unfortunate) that K.C. would have suddenly selected an out of town job which was inevitably going to interfere with access, at precisely the time when the Society was emphasizing the need for her to attend access consistently. It’s a matter of priorities.

c. Ironically, K.C. immediately elected to replace an Oakville transportation problem with a Brantford transportation problem. After quitting her job in June, in July 2015 she moved to Brantford, knowing her visits with her children were in Hamilton; and knowing she lacked the resources to get herself to Hamilton. While K.C. insists she returned to Brantford because it offered a better support network and better opportunities, I heard no evidence that moving out of Hamilton at a critical time in this court case made any sense. She continued to have housing instability in Brantford. Within days of moving to Brantford she got into another drunken bar fight.

d. I find that K.C. did not show enough commitment to attending for access on a regular basis. The Society clearly identified to K.C. the needless disruption and emotional impact the children were experiencing when she cancelled visits – often without notice. Her resistance to the simple suggestion that she should call ahead to confirm her attendance, demonstrates her lack of commitment and insight.

e. K.C. emphasizes she attended five recent visits in a row in Brantford – on the eve of trial. Her lawyer suggests this bodes well for future punctuality and consistency, if only the visits were in Brantford where she now resides. But I must consider this submission in the context of K.C.’s history. K.C. missed a large number of Hamilton visits even when she lived in Hamilton. Geography may be the latest (self-created) excuse. But it doesn’t change the fact that both of these children – particularly T.P. – have experienced needless and repeated disappointment and upset because of K.C.’s inability to prioritize contact with them.

244. I find the Society made reasonable efforts to place each of the children with a relative or member of the community, but none of the proposed parties worked out because either K.C. withdrew the nominee; the person couldn’t be located; or the person refused to become involved. No family or community options exist at this time.

245. I find that at every stage the Society has sought out less disruptive alternatives for the children.

a. The Society worked hard to avoid apprehending the children on August 14, 2014. It made diligent efforts to try to find a family member to take the children, but no one was prepared to do so.

b. Similarly the Society has worked hard to attempt to reintegrate the children to the mother’s care, but at every stage K.C. has resisted reasonable requests – and ignored court orders.

c. I find that there is currently no less disruptive alternative available, other than as proposed by the Society.

246. I find the Society has made reasonable – and indeed exhaustive -- efforts to assist K.C.:

a. Although K.C. may legitimately complain about the number of workers successively assigned to her file, the fact remains that each of those workers tried very hard to connect the mother with appropriate and necessary community resources.

b. Frequently K.C. was resistant to even starting a program – or she didn’t complete it.

c. The Society workers went out of their way to make expectations and requirements clear. K.C. acknowledged during her testimony that they clearly wrote out a summary of what she needed to do, on a number of occasions.

d. The Hamilton Society was particularly diligent in trying to assist K.C. after she elected to move to Brantford. Bhikhai spent many weeks trying to chase down K.C.’s aunt to see if visits could be set up in the aunt’s home.

e. As well, the Hamilton Society was almost aggressive in its requests to Brantford CAS to assist in some way. Rightly or wrongly, the Brantford agency refused to help. While this turf war between child protection agencies was not K.C.’s responsibility, nonetheless she should have anticipated that logistical and practical issues would arise if she elected to move to another city with virtually no notice to anyone.

247. I find K.C. has really shown very little regard for the judicial system; court orders; police; or other community agencies and resources.

a. I say this not to comment on any lack of gratitude or deference. That’s not the point.

b. K.C.’s best case scenario – her only real proposal – is that the children be returned to her under supervision by the Society. Quite predictably, she has gone so far as to say she will abide by any conditions imposed on her, if it means getting her children back.

c. My concern is that K.C. has repeatedly demonstrated the court orders mean nothing to her.

d. Terms of supervision mean nothing.

e. Police trying to help her mean nothing to her – even when she has called them for help.

f. Lying to people in the system means nothing to her. Even lying about lying.

g. I find that based on K.C.’s historic and persistent disregard of past supervision orders and commitments, I would have absolutely no reason to trust that K.C. would cooperate or abide by terms of supervision in the future.

h. As well, K.C. includes her own mother as her strongest support. But her mother has been equally complicit in allowing court orders to be ignored and the children to be jeopardized. And notably, the maternal grandmother did not testify.

248. I am mindful that at times K.C. has made progress.

a. Society worker Friesen, for example, agreed the mother was doing pretty well during the period between March and August 2013.

b. At various times and on various individual topics the mother has shown improvement.

c. But sadly, she’s been unable to show sustained improvement.

249. I must focus on T.P. and A.B.:

a. They are young and vulnerable. They must not be exposed to the chaos of K.C.’s life.

b. They have been in care too long, waiting for K.C. to get her act together.

c. These children need stability and permanency.

d. I note in particular how much both children have improved – particularly T.P. -- since being out of K.C.’s care.

e. Both children are described in glowing terms by their respective foster mothers. They are doing well. They have a lot of promise. They should be given every opportunity for a normal, stable, loving and safe life.

250. During submissions K.C.’s lawyer urged the court to be sensitive to native considerations – but counsel provided absolutely no guidance as to how the court should apply such considerations to this Crown wardship application under the Child and Family Services Act.

a. There has long-since been a finding that neither T.P. nor A.B. are native. K.C. consented to that finding on July 15, 2013. She has never tried to disturb that finding.

b. Early in the proceedings K.C. consented to the Six Nations of the Grand River being removed as a party. She never revisited that issue.

c. Now – during closing submissions – counsel has attempted to obliquely reopen the issue. To raise questions without offering any answers.

d. K.C. admitted that she does not have native status.

e. She testified that she self-identifies as being native and that she is applying for native status. But she didn’t say much more than that on the topic. She didn’t explain why she waited so long to apply, or why she’s been moving so slowly with the application.

f. K.C. was not able to articulate how a native way of life is different from non-native. She made no mention of native considerations in relation to parenting or the best interests of her children.

g. During her dealings with the Society, K.C. repeatedly requested that she be assigned a native worker. Regrettably the Hamilton Society has no native child protection workers. As an aside, I would comment that in a community this size, the Society should remedy that deficiency. But I do not find that staffing limitation in itself to be a failure by the Society to meet its obligations under the Act.

h. Nonetheless, the Society made repeated and diligent efforts to connect K.C. with a variety of native and aboriginal community resources. But to a very large extent K.C. was equally resistant to help from native and non-native agencies. She was unable or unwilling to cooperate with anyone.

i. K.C. refused to take and complete a native alcohol counselling program.

j. K.C. was resistant to violence against women counselling offered through native agencies. In December 2014 she started working with a counsellor through the Native Women’s Centre, but in March 2015 she dropped out, and at trial she couldn’t explain why. She didn’t start again through Novavita until January 2016.

k. She worked closely with Holly Doxtator of the Ontario Native Women’s Association. But she was very selective about what she did and didn’t tell her.

l. In July 2015 she got kicked out of the Native Women’s Centre because she couldn’t follow the rules of the native shelter.

m. She testified she moved back to Brantford because she has many friends and relatives in the area, within the native community. But none of those people – no one from the native community – has come forward to present any sort of plan or assistance for the children.

251. In very non-specific terms, K.C.’s lawyer urged the court to treat this case differently because of the overlay of native issues. He urged the court to apply the principles and philosophy of R. v. Gladue 1999 679 (SCC), [1999] 1 S.C.R. 688, a seminal Supreme Court of Canada decision dealing with historic and cultural considerations relevant to the assessment of native persons in the context of sentencing for criminal code convictions.

252. K.C.’s lawyer referred to the Ontario Court of Appeal decision in United States v. Leonard 2012 ONCA 622 to suggest that Gladue principles should be applied beyond criminal sentencing, and to all native people facing state intervention in their lives. Counsel quoted from the case:

49 In Gladue, the Supreme Court stated, at para. 67, that "[y]ears of dislocation and economic development have translated, for many aboriginals, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation". These conditions, together with bias and systemic racism, have contributed to what the Court described, at para. 64, as a "crisis" in Canada's criminal justice system: the grossly disproportionate incidence of crime and incarceration amongst Aboriginal peoples. Section 718.2(e) of the Criminal Code, which directs sentencing judges to consider alternatives to imprisonment for all offenders but "with particular attention to the circumstances of aboriginal offenders", was interpreted in Gladue, at para. 33 as a "direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently". The Court held that a different approach was required to meet what it had described in R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128 (S.C.C.), at para. 58, as widespread bias against aboriginal people within Canada and "evidence that this widespread racism has translated into systemic discrimination in the criminal justice system". In Gladue, the Supreme Court adopted the conclusion of the Royal Commission on Aboriginal Peoples (Gladue, at para. 62) and the Aboriginal Justice Inquiry of Manitoba (Gladue, at para. 63) that Canada's criminal justice had failed to take into account "the substantially different cultural values and experience of aboriginal people".

50 Gladue mandates, at para. 66, a different framework of analysis for sentencing aboriginal offenders, taking into consideration "the distinct situation of aboriginal peoples in Canada" including:

The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

51 The Supreme Court has emphasized, however, that the focus on systemic factors and specially tailored sanctions does not amount to reverse discrimination in favour of aboriginal offenders by offering them an automatic reduction in sentence. To the contrary, the Gladue approach is intended to avoid the discrimination against aboriginal offenders that flows from the failure of the justice system to address their special circumstances. As explained in Gladue at paras. 87-88:

The fact that a court is called upon to take into consideration the unique circumstances surrounding these different parties is not unfair to non-aboriginal people. Rather, the fundamental purpose of s. 718.2(e) is to treat aboriginal offenders fairly by taking into account their difference.

...[T]he direction to consider these unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system. The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding of an appropriate sentence.

253. The mother’s lawyer referred specifically to the following paragraphs:

52 The Gladue approach has been reinforced by R. v. Ipeelee, 2012 SCC 13, 280 C.C.C. (3d) 265 (S.C.C.), a decision handed down after the Minister gave his reasons in this case. Ipeelee reiterates that the Gladue approach does not amount to reverse discrimination but is, rather "an acknowledgement that to achieve real equity, sometimes different people must be treated differently": Ipeelee, at para. 71.Gladue recognizes that Canadian courts "have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process" and "is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples": Ipeelee, at para. 75.

53 The Gladue principles have been extended by decisions of this court beyond the context of sentencing to address the need to ensure appropriate treatment for Aboriginal people as they interact with the justice system. Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1 (Ont. C.A.); leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 357 (S.C.C.); applying Gladue in the context of civil contempt of court, holds, at para 57: "Although Gladue was focussed primarily on the serious problem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system's engagement with Canada's First Nations." In R. v. Sim (2005), 2005 37586 (ON CA), 78 O.R. (3d) 183 (Ont. C.A.) this court held, at para. 16, that the Gladue principles should not be limited to the sentencing process and that the Ontario Review Board has an obligation to consider the principles in reviewing the disposition of an Aboriginal NCR accused.

254. In response, counsel for the Society referred to the Ontario Court of Appeal decision in C.M.E.M. v. Children’s Aid Society of Waterloo 2015 ONCA 612. At paragraph 14:

14 However, contrary to the appellants' submissions, Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2014 FCA 101, 371 D.L.R. (4th) 725 (F.C.A.), does not stand for the proposition that non-status Indians are included as "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867. Moreover, Gladue was decided under the Criminal Code and does not alter the statutory definitions set out in the CFSA. In any event, we note that the relevant inquiry under the CFSA is the children's status, not the mother's status. The fact that the mother may self-identify as native does not determine her children's status.

255. The Supreme Court of Canada dealt with the issue in Winnipeg Child & Family Services v. K.L.W. 2000 SCC 48. At paragraph 98:

To summarize, the interests at stake in the child protection context dictate a somewhat different balancing analysis from that undertaken with respect to the accused's s. 7 and s. 8 rights in the criminal context. Moreover, the state's protective purpose in apprehending a child is clearly distinguishable from the state's punitive purpose in the criminal context, namely that of seeing that justice is done with respect to a criminal act. These distinctions should make courts reluctant to import procedural protections developed in the criminal context into the child protection context. On the importance of distinguishing between criminal and non-criminal contexts with respect to s. 7 analysis; see Blencoe, supra, at para. 92.

256. I accept the Society’s submission that the expanded application of Gladue principles as set out in United States v. Leonard (supra) does not extend to proceedings under the Child and Family Services Act.

a. Civil contempt and Ontario Review Board proceedings, as mentioned in United States v. Leonard are both quasi-criminal proceedings. One of the potential sanctions for civil contempt is incarceration. The Ontario Review Board process starts in the criminal system.

b. The Child & Family Services Act is a child-focussed statute. The primary inquiry is as to the child’s status, not the parent’s status.

257. More broadly, while I am aware of the prevalence of K.C.’s issues within the native community, it is of little assistance to the court – and of no assistance to the children – to wait until the end of a Crown wardship trial and then raise the native issue with no evidentiary foundation.

a. Parenting issues are complex.

b. Child protection issues are complex.

c. An overlay of native or aboriginal issues only serves to add to the complexity.

d. The Child & Family Services Act specifically mandates certain requirements, approaches and considerations in relation to native children and native families.

e. As a judicial system we try our best to be attuned to all of this.

f. But ultimately judges have to decide each case based upon evidence. And – native or not – the evidence against this mother was overwhelming. The evidence presented by the mother amounted to little more than a promise to get control of her life in the future.

g. K.C. had every opportunity to immerse herself in native community services to address her many problems, to try to get her children back. She chose not to do so.

h. K.C. could have presented evidence at trial addressing the relevance of her self-identified native status with respect to her past. And with respect to her future plans or proposals for these children. She elected not to do so.

i. K.C. could have presented people from the native community to identify real proposals to care for and protect these children. She was apparently unable to do so.

j. Our compassion toward and recognition of the importance of native heritage and families remains unwavering. But special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children.

258. K.C.’s lawyer was critical of the Society for failing to produce independent, professional evidence. But counsel admitted he didn’t ask any questions or present any evidence about such “deficiencies” during the trial.

259. K.C.’s lawyer suggested a Parenting Capacity Assessment (PCA) would have provided better information for the court. But I agree with the Society that a PCA wouldn’t have been appropriate or helpful.

a. The issues and problems were clear and acute.

b. The corrective action required by K.C. was equally apparent, and clearly communicated to the mother.

c. It is impractical, unnecessary, and unaffordable to require a parenting capacity assessment in every case – particularly where there are no clinical issues.

d. If K.C. truly felt a Parenting Capacity Assessment would have been helpful, she could have requested one. Perhaps brought a motion for one.

260. Similarly, in closing submissions K.C.’s lawyer suggested for the first time that the Office of the Children’s Lawyer should have been involved. I agree with the Society that this too was unnecessary.

a. At age seven, T.P.’s views are relevant. But they were clearly presented to the court through a series of witnesses. K.C. did not challenge those descriptions. Indeed, at trial the issue was not so much what T.P. wanted, but rather what the mother was capable of providing.

b. And as with a PCA, K.C. always could have brought a motion requesting the involvement of the Children’s Lawyer if she felt it would have been appropriate.

261. A Crown wardship order is the most profound and intrusive order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J) (1997) 23 R.F.L. 4th 79 (SCJ).

262. An order for Crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a Crown ward, and it changes forever the life of the parent. No one in the family is untouched by this order, and no one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and important decision any court can make. Children’s Aid Society of Toronto v. I.H. 2013 ONCJ 495 (OCJ).

263. It is important not to judge a parent of limited means or potential by unrealistic middle-class standards of child care, provided that the standard used is not contrary to the child's best interests. Jewish Family and Child Service of Toronto v. K.(R.) 2008 ONCJ 774 (OCJ); Catholic Children's Aid Society of Hamilton v. J.I. I.M. and V.I.O. 2006 19432 (SCJ), 2006 19432; Catholic Children's Aid Society of Hamilton v. M. (M.A.) 2003 CarswellOnt 1122 (SCJ).

264. The mother’s plan requires very careful consideration as the children were apprehended from K.C. on both occasions.

265. In considering disposition and determining the best interests of the child, the court must consider the evidence that led to the initial protection finding. This is to enable the court to assess the degree to which the risk concerns that existed at the time of the initial apprehension still exist today. This must be examined from the child’s perspective. Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. 1994 83 (SCC), [1994] 2 S.C.R. 165 (SCC); Halton CAS v. T.L. 2015 ONCJ 255 (OCJ).

266. In this respect, I find that the mother’s situation has not significantly improved compared to her circumstances:

a. On July 15, 2013 when the original protection findings were made, or

b. April 14, 2014 when the children were apprehended.

267. When determining whether an order of Crown wardship is an appropriate disposition, the issue is not whether the children will be better off with parents other than the natural parents. The issue is whether the children will receive a level of parenting care that is below the minimum standard tolerated by our community. Sask. Minister of Social Services v. E.(S.) 1992 8071 (SK QB), [1992] 5 W.W.R. 289 (Sask.Q.B.); Children's Aid Society of Toronto v. A.(N.) 2010 CarswellOnt 11079.

268. However, the court must ultimately maintain a focus on the needs of the child, and the importance of pursuing permanency planning for the child within a timeframe that is sensitive to those needs. Catholic Children's Aid Society of Toronto v. M.M., (2012) 2012 ONCJ 369, O.J. No. 2717 (OCJ).

269. The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The longer the child has been in care, the more intense the focus will become on the child's right to a secure and stable long term placement within a reasonable time frame. Children's Aid Society of Toronto v. D.S. 2009 60090 (SCJ); Children's Aid Society of Toronto v. R.H. 2000 3158 (2000); O.J. No. 5853 (OCJ); Children's Aid Society of Hamilton v. A.D.L. [2009] O.J. No. 4390; 2009 CarswellOnt 6358 (SCJ).

270. If the parent lacks insight and reliability with respect to a fundamental problem such as ongoing substance abuse, the pervasive risk of neglect, physical and emotional harm may justify Crown wardship — even if there are other positive aspects to the parenting plan. Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369.

271. The test is not whether the parents have seen the light and intend to change, but whether they have in fact already changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Jewish Family and Child Service of Toronto v. K.(R.) (supra); Children's Aid Society of Winnipeg (City) v. R. (1980) 1980 3654 (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety: Children's Aid Society of Brockville, Leeds & Grenville v. C. [2001] O.J. No. 1579, 2001 CarswellOnt 1504 (SCJ). Good intentions are not enough.

272. Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. The legal process should not be used as a strategy to “buy” a parent time to develop an ability to parent. (Children's Aid Society of Toronto v. R.H. (supra).

273. There may be situations where a parent's primary weakness is not their own lack of parenting skills — but their lack of judgment and self-control in exposing a child to a dangerous, destructive, or unstable partner. Where the parent denies their partner represents a threat to the child, their insight comes into play. Catholic Children's Aid Society of Hamilton v T. (J.) 2012 ONSC 3893 (SCJ). Where — as in this case — the parent admits the partner is a threat, but promises the dangerous relationship has ended, the parent’s level of commitment and good faith must be scrutinized. Parents in abusive relationships often underestimate the problem or overestimate their ability to control the situation. If a parent has a long history of being unable to extricate themself from a dangerous relationship, Crown wardship may be the only way to ensure that at least the child is kept safe. Children's Aid Society of Stormont, Dundas & Glengarry v J.F. [2007] O.J. No. 2368 (SCJ).

274. I have considered all of the evidence and all of the options.

a. As stated, the only choices available at this point are to return one or both of the children to the mother (with or without supervision) or Crown wardship.

b. In no circumstance would it be safe to return either or both of the children to the mother, even under supervision.

c. K.C.’s life remains unsettled. While there are moments of both sobriety and sincerity, her episodic pattern of extreme crises remains entrenched and frightening.

d. At best, some of the mother’s debilitating personal problems have subsided. But it would be naïve and irresponsible to presume that even a single one of her multiple personal issues has been completely resolved.

e. And having flagrantly violated supervision orders in the past, it is unrealistic for the mother to suggest a future supervision order would provide any measure of reassurance or protection for these children.

275. Regrettably I find that the only option consistent with each child’s best interests is Crown wardship. No less intrusive alternative would address their need for safety and permanence.

ACCESS ANALYSIS

276. Once there is an order for Crown wardship, the focus of the Child & Family Services Act is to establish a permanent and stable placement for the child. The Society has an obligation pursuant to section 63.1 of the Act to make all reasonable efforts to assist a child who is made a Crown ward to develop a positive, secure and enduring relationship within a family through one of the following:

277. An adoption.

278. A custody order under subsection 65.2(1).

279. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.

280. After a Crown wardship order is made, all previous access orders terminate. At that point the court must determine whether an access order should attach to the Crown wardship order. Here the Society seeks an order of Crown wardship with no access for purposes of adoption.

281. Access is dealt with in sections 58 and 59 of the Act. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2.1) creates a presumption against access where the child is a Crown ward. Section 59(2.1) has not been changed by the recent amendments, and reads:

59(2.1) Access: Crown ward A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

(b) the ordered access will not impair the child's future opportunities for adoption.

279. There is a presumption against access to Crown wards. Children's Aid Society of Toronto v. C. (S.A.) (2005) 2005 ONCJ 274, O.J. No. 2154 (OCJ). Access to a Crown ward is the exception, not the rule. D.D. v. CAS of Toronto 2015 ONCA 903 (ON CA).

280. The rebuttable presumption under s.59(2.1) is conjunctive. The person requesting access must provide evidence and satisfy the court on a balance of probabilities with respect to both requirements of the section, or access cannot be ordered. Children's Aid Society of Metropolitan Toronto v. A. (M.) (2002) 2002 53975 (ON CJ), 2002 CarswellOnt 1923 (OCJ); D. (C.) v. Children's Aid Society of Algoma (2001) O.J. No. 4739 (SCJ); D.D. v. CAS of Toronto 2015 ONCA 903 (supra).

281. The first step is to consider whether or not the access to the Respondents would be "beneficial and meaningful." It must be shown to be beneficial and meaningful from the child's perspective — not that it would be beneficial to a parent or family member. Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850 (SCJ).

282. The Divisional Court provided guidance with respect to the first part of the s.59(2.1) test in Children's Aid Society of the Niagara Region v. J.C. (supra). . Aitken J. stated at paragraph 29:

"Beneficial" has been held to mean "advantageous". "Meaningful' has been held to mean "significant" Children's Aid Society of Niagara Region v. J. (M.) (2004) 4 R.F.L. (6th Carswell 2800, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified".

283. Justice Lafrenière adopted those comments in Children's Aid Society of Hamilton v. W.M. (2008) 2008 53130 (ON SC), O.J. No. 4052 (SCJ), finding that it was not sufficient for parents to state that "access was appropriate and that no concerns had been identified." The court held that the mother's access was not "beneficial" because "it does not bring any positive advantage" to the child.

284. The meaning of "beneficial and meaningful" was examined by Justice J. W. Quinn in Children's Aid Society of Niagara Region v. M.J., K.S. and S.S. (2004) 2004 2667 (ON SC), O.J. No 2872 (SCJ). where he commented:

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

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

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

285. It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child. The child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: Children's Aid Society of Niagara Region v. J.C., (2007), 2007 8919 ; 36 R.F.L.(6th) 40 (Ont.Div.Ct.);Children's Aid Society of Owen Sound and Grey County v. T.T., 2005 24909 ; 2005 24909 (SCJ). As Sherr J. stated in Catholic Children's Aid Society of Toronto v. S.S. 2011 ONCJ 803 (OCJ): "Even if there are some positive aspects to the relationship between parent and child, that is not enough — it must be significantly advantageous to the child."

286. Even if instances of access are generally enjoyable for the child, the court may consider whether the beneficial aspects of visits outweigh the child's need for continuity of care, safety, consistency, and a secure placement as a member of a stable family. Children's Aid Society of Toronto v. M.A. (2006) 2006 1671; O.J. No. 254 (SCJ). The quality of the relationship must be the focus. A parent has to show more than just that a child wants access and has a good time during visits. Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ).

287. Similarly, more is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being.

288. The court must also consider the potential detriment to the child if an access order is not made. Frontenac Children’s Aid Society v. C.T. & M.T., 2010 ONSC 3054 (SCJ); Children’s Aid Society of Toronto v. R.H. 2016 ONCJ 181 (OCJ).

289. Given the ages of these children – T.P. is seven; A.B. is three – and given the comparative percentages of their lives that they have remained in care, these two children have somewhat different relationships with their mother.

a. Both children love the mother. And that love is reciprocated.

b. Both children enjoy their visits with the mother – and with one another.

c. T.P. appears to have a stronger bond. Even the mother admitted A.B. is a little more distant, and perhaps a little more connected to the foster mother she has been with for the last half of her life.

d. But without question there is a loving relationship and the children enjoy the visits.

290. But evidence which merely indicates that a parent loves the child and the child loves the parent – and that some of the visits were pleasant and enjoyable – is not necessarily sufficient to establish that a relationship is meaningful and beneficial to the child.

a. The default position for most young children is unconditional love for a parent.

b. Children are eternal optimists.

c. But Judges have to be realists.

d. Children have an immature sense of how they’d like things to be. Understandably, it’s purely emotional.

e. But Judges have to weigh all of the evidence and try to make accurate predictions about how things are likely to turn out. And whether the harm to the child – actual or potential – outweighs the benefit of the relationship.

f. The focus of the inquiry is the nature and quality of the relationship between the child and the parent at the time of the trial, and not a relationship hoped for in the future. CCAS Hamilton v. T.D. & A.A. 2013 ONSC 5650 (SCJ).

291. While the Society acknowledges that in general K.C.’s visits are enjoyed by the children -- when visits occur -- the Society submits that access is not beneficial and meaningful to the children.

292. The evidence in this trial was clear: While the children like seeing K.C., they – and particularly T.P. – have been emotionally devastated by the mother’s inability to maintain regular involvement in their lives. They have been emotionally traumatized by all the unexplained missed visits – often after they have been taken to the access centre -- and by the broken promises and lack of commitment.

293. A relationship cannot be considered “beneficial and meaningful” if it perpetually cycles children through the polar opposite emotions of happiness and heartbreak. Similarly, a part-time or intermittent parent-child relationship does not satisfy the first part of the s.59(2.1) test.

a. Love and affirmation are wonderful. But rejection and abandonment are devastating.

b. After a while, the exact proportions of those experiences become less relevant from a child’s perspective.

c. Good childhood memories don’t neatly cancel out bad childhood memories.

d. And mathematical averaging doesn’t apply when it comes to children’s mental health.

e. For a relationship to be meaningful and beneficial there must be consistency.

294. K.C. insists she’s a good mother. But that’s only partly true.

a. She’s a good mother when she’s sober.

b. She’s a good mother when she doesn’t expose the children to domestic violence.

c. She’s a good mother when she gets her act together.

d. She’s a good mother when she bothers to show up to see her children.

295. Under cross-examination, T.P.’s foster mother agreed the seven year old would be “devastated” if his relationship with K.C. were to end.

a. But that prediction is only half the story.

b. T.P. is currently devastated – repeatedly – every time the mother misses a visit. Every time the mother breaks a promise.

c. Of course I have to consider the child’s emotional reaction if contact with K.C. ends.

d. But equally, I have to consider the child’s emotional reaction if contact with K.C. continues.

296. Given the fact that the mother’s relationship with her children entails generous portions of both joy and sorrow – and in the absence of any reason to believe contact would be more consistent or child-focussed in the future – I am unable to conclude that this relationship is “beneficial and meaningful to the child” as required pursuant to the first part of the s.59(2.1) conjunctive test.

297. The mother presented no evidence to address the second element of the s.59(2.1) conjunctive test — that an access order would not impair a child's future ability to be adopted.

298. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable. Children's Aid Society of Ottawa v. W. (C.) (2008) 2008 13181 (ON SC), O.J. No. 1151 (SCJ); Children's Aid Society of Niagara Region v. C. (J.) (supra). But as it happens, the Society provided uncontradicted evidence that it has a significant number of adoptive homes currently available – including one home with native background. The Society also expressed hope the children could both be placed in the same adoptive home.

299. No promises. But that’s about as good as it gets at a Crown wardship hearing.

300. While permanency planning through adoptive placement is the preferred long term option for Crown wards under the Act, the Society cannot be expected to guarantee that adoption will occur or be successful in every case. Children’s Aid Society of Hamilton v. A.W. & M.H. 2014 ONSC 2423 (SCJ). The Society’s obligation regarding placement of Crown wards is described in the legislation in more reasonable terms as an obligation to “make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family” through adoption, a custody order or a plan for customary care in the case of Indian or native children.

301. The 2011 amendment to the Act allows the Society to make adoption plans for a Crown ward even if there is an outstanding access order and mandates the Society to consider an openness order as part of any adoption planning. But the amendment did not change the s.59(2.1) onus on the parent to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption. Catholic Children’s Aid Society of Hamilton v. L.S. (supra).

302. The phrase “impair the child’s future opportunity for adoption” means more than just impairing a child’s opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717. CAS Toronto v. A.F.; 2015 ONCJ 678 (OCJ).

303. And while K.C. minimizes her conflictual personality and insists she only has anger management problems with the Society, the evidence clearly demonstrated that the mother is prone to erratic, aggressive and repellent behaviour. In candidly assessing future dynamics, the court must consider the reality that estranged parents who hold certain attributes may be more likely to impair a child’s opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward and exposing themselves to interaction with difficult personalities. CAS Toronto v. A.F. (supra).

304. The prospect of further litigation may deter prospective adoptive parents. D.D. v. CAS of Toronto 2015 ONCA 903 (supra). As pointed out in Catholic Children’s Aid Society of Toronto v. L.D.E, 2012 ONCJ 530 (OCJ), there are many ways in which an outstanding openness application could derail an adoption by prospective adoptive parents:

a. They would be facing further litigation;

b. They would not know the result of such litigation;

c. They would not know what form an openness order might take;

d. If an openness application is brought, the adoption will be delayed.

305. The mother has not established that access is meaningful and beneficial to either T.P. or A.B., nor has she established that access will not impair their respective opportunities for adoption. She has satisfied neither component of the s.59(2.1) conjunctive test.

306. The Order:

a. The children T.P. and A.B. are found to continue to be in need of protection.

b. The children T.P. and A.B. are made wards of the Crown and placed in the care and custody of the Children’s Aid Society of Hamilton with no access for the purpose of adoption.

Pazaratz, J.

Released: April 27, 2016

CITATION: Children’s Aid Society of Hamilton v. K.C., N.B. and A.A., 2016 ONSC 2751

COURT FILE NO.: C316/13

DATE: 2016-04-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicant

– and –

K.C.

Respondent

N.B.

Respondent

A.A.

Respondent

REASONS FOR JUDGmENT

Pazaratz, J.

Released: April 27, 2016