CITATION: Children’s Aid Society of London and Middlesex v. L.W., 2016 ONSC 3

COURT FILE NO.: C194/11-1

DATE: February 1, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

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

BETWEEN:

Children’s Aid Society of London and Middlesex

Joseph Belecky and Michael Cormier for the Children's Aid Society of London and Middlesex

Applicant

and -

L.W., A.B. and Blaine Commandant, Chief of the Wahta First Nation

David Winninger for L.W.

Patricia File for A.B.

Blaine Commandant not appearing

Respondents

AND BETWEEN -

COURT FILE NO.: FC-10-199

BETWEEN:

Family, Youth and Child Services of Muskoka

Lauren Doughty for the Family, Youth and Child Services of Muskoka

Applicant

and -

A.B. and L.W.

Patricia File for A.B. and L.W.

Graham Butler for the Office of the Children’s Lawyer

Respondents

HEARD: 2014 and 2015[^1]

HENDERSON J.

[1] This trial was a combination of two separate child protection proceedings: one involving four children in the care of the Family, Youth and Child Services of Muskoka[^2] (the "Muskoka Society") and the other proceeding concerning a fifth child in the care of the Children's Aid Society of London and Middlesex (the "London Society").

[2] The Respondents, L.W. and A.B., are the parents of all five children. L.W., who is the mother of the children, and A.B., who is the father of the children, have lived together since approximately 2001.

[3] The four children in the care of the Muskoka Society are Kz B., born 2002, Kp B., born 2004, Kg B., born 2005, and Ki B., born 2006. The fifth child in the care of the London Society is Kh B.-W., born 2011. None of the children are Indian or native persons.

[4] By order of Wood J. dated October 1, 2012, the Wahta First Nations was removed as a party to the Muskoka proceedings.

[5] The Muskoka Society is seeking an order granting Crown wardship of the four children in its care without access to L.W. and A.B. The London Society is seeking the same order with respect to the fifth child, Kh B.-W.

[6] L.W. and A.B. are seeking an order that returns all five of their children home to their care.

[7] The Office of the Children’s Lawyer (“OCL”) represents the four older children in Muskoka. In respect of these children, it supports the parents’ position.

[8] Because of the length of the decision, I have included the following Table of Contents for assistance:

Table of Contents

A. Litigation History

(a) The Proceedings in Muskoka

(b) The Proceedings in London

(d) Nature of the Muskoka Proceedings and the Terms of Reference Regarding the Trial of both Proceedings to be Heard in London Family Court

B. Preliminary Matters

(a) Evidence from Witnesses Located Outside of London

(b) Steps Taken to Ensure Comprehensible and Meaningful Proceedings for the Respondents

C. Family Background

D. The Children

(a) Kz

(b) Kp

(d) Ki

(e) Kh

E. The Legal Framework

(a) Status Review of the Court Order dated November 5, 2012 Involving the Muskoka Society

i) The Orders dated September 16, 2011 and November 5, 2012

ii) The Remedies Available

(b) The Test to be Applied: The Best Interests of the Child

F. Analysis

The Muskoka Status Review

(a) The Position of the Muskoka Society

(b) The Position of L.W. and A.B.

(d) Do the Children Continue to be in Need of Protection?

The Application by the London Society

(a) Is the Child, Kh, in Need of Protection?

(i) The Position of the London Society

(ii) The Position of A.B. and L.W.

(b) Analysis

The Disposition
Access

G. Order

Page

A. LITIGATION HISTORY

[9] The four children in Muskoka were apprehended in August 2010 and have been in the care of the Muskoka Society ever since. The Respondents' fifth child was apprehended at birth in London by the London Society and has also been in the London Society's care since that time.

[10] After a trial exceeding 100 days[^3], the four older children will have been in care for over five years and the fifth child in London will have been in care for over four years. These time frames well exceed both the timelines contained in the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] ("CFSA") and those found in the Family Law Rules, O. Reg. 114/99.

[11] A review of the lengthy litigation history in both proceedings is therefore essential to understanding why these children have waited so long for permanency.

(a) The Proceedings in Muskoka

[12] Kz B., Kp B., Kg B., and Ki B. were apprehended and ordered into the care of the Muskoka Society pursuant to a consent without prejudice order of Wildman J. dated August 12, 2010.

[13] These children remained in care pursuant to the order of Wood J. dated September 16, 2010 following a temporary care and custody hearing,

[14] On September 16, 2011, the children were found to be in need of protection pursuant to s. 37(2)(b), (g) and (l) of the CFSA and, on consent, Wood J. signed a final order making all four children Society wards for six months.

[15] On November 5, 2012, the proceedings were returned to the court for a status review.

[16] At the hearing, a Statement of Agreed Facts was not apparently filed by any of the parties but, on the consent of all parties, including the Respondents, Wood J. signed a final order for the Crown wardship of all four children.

[17] The consent order also contained a number of terms and conditions. Among them were many that would not usually be found in a final Crown wardship order. These terms and conditions referred primarily to the responsibilities of the parties in the ensuing months following the order and focussed on contact between the Respondents and the four children. By the time of the order, the Respondents were living in London and the four children were still living in the Muskoka area.

[18] Unfortunately, it became clear that rather than finalizing matters for both the Muskoka Society and the Respondent parents, these terms and conditions, that had been agreed to by the parties and incorporated into the final order, created serious and ongoing uncertainty for the parties and the children. The parties disagreed with respect to the meaning and intent of the terms and conditions as well as, more importantly, their impact on the finality of the Crown wardship order itself.

[19] One fundamental difficulty that arose, for example, was that the children could not be placed in London. Despite serious efforts by both Societies, no appropriate placement could be found in London or the area. In other words, the Muskoka Society found itself in the position of not being able to satisfy the terms of the order.

[20] Ultimately, the Muskoka Society brought a motion for summary judgment on November 5, 2013 seeking the court's permission to place the children for adoption.

[21] In her decision dated December 5, 2013, Wildman J. dismissed the motion on the basis that there were several triable issues. She then referred the matter back to the trial management judge who, she hoped, would make arrangements for a speedy trial.

(b) The Proceedings in London

[22] Contemporaneously with the proceedings in Muskoka, separate proceedings were commenced in London regarding the Respondents' youngest and fifth child.

[23] In early May 2011, L.W. had moved to London to reside with her mother. At the time, she was pregnant with her fifth child. On May 16, 2011, she delivered Kh. Based on information received from the Muskoka Society, the London Society apprehended Kh on May 17, 2011. Kh has been in the care of the London Society ever since. There has been no finding with respect to this child and the trial proceeded on the original application issued May 19, 2011.

[24] The consideration of the questions regarding whether the two distinct proceedings should be tried together and, if so, where, contributed significantly to the delay in this case. The parties and the courts were concerned that if the two matters were conducted separately in their respective jurisdictions, the possibility of contrary findings of credibility and fact arising from the same evidence would result in a perverse outcome. This could be especially so since much of the London case was based on Muskoka's evidence.

[25] In this context, the Respondent parents brought a motion in September 2012 to have all proceedings heard in London. The motion was supported by the Muskoka Society but was opposed by the London Society and the OCL, which represented the four children. In his decision dated September 24, 2012, Quinlan J. dismissed the Respondents' motion. He found that to move the proceedings in Muskoka to London would result in considerable delay, which was not in the best interests of the children.

[26] The Muskoka proceedings continued along their course. The London matter was eventually scheduled for trial commencing February 18, 2014. For reasons that are unclear, the trial did not proceed however. It is well known that the London Family Court was in the midst of dealing with significant challenges regarding a backlog of cases.

[27] In October 2014, during the course of a Trial Management Conference, Senior Family Court Justice Czutrin ordered that the London Society's application for Crown wardship and the Muskoka Society's status review application, in respect of the order of Wood J. dated November 5, 2012, be heard together in the London Family Court.

(d) Nature of the Muskoka Proceedings and the Terms of Reference Regarding the Trial of both Proceedings to be Heard in London Family Court

[28] While not clear at the outset, it became increasingly obvious, as the trial in London commenced in November 2014 and continued over the course of the following weeks, that the Muskoka Society and the Respondent parents, in particular the father, had very different understandings or interpretations with respect to the nature of the Crown wardship order of Wood J. dated November 5, 2012.

[29] Despite indications to the contrary in the opening statement of counsel for the Muskoka Society, as evidence was elicited, the issue arose not only as to the correct interpretation of the order of Wood J. but, perhaps more significantly, as to its fundamental validity. After hearing evidence for 20 days, I became concerned about the issue of the Respondent father's consent, which formed the basis of the Crown wardship order on November 5, 2012.

[30] Resolution of the difference between the positions of the Respondent parents and the Muskoka Society was of vital significance to the determination of my role and jurisdiction with respect to their proceedings.

[31] At this point, I therefore stopped the trial and the parties agreed to conference with another judge in the London Family Court to determine: (a) whether the issues with respect to both the consent of the Respondents to the order of Wood J. and the nature of the order could be resolved; and (b) the jurisdictional basis on which the trial would continue with respect to the proceedings that had been transferred from Muskoka. After two days, the parties entered into and signed an agreement entitled "Terms of Reference." More of this issue and its impact on the trial will be discussed later.

B. PRELIMINARY MATTERS

[32] Before proceeding further with my decision, a few comments are warranted regarding the technical efforts made to accommodate witnesses and make the trial accessible to the Respondent parents, both of whom are profoundly deaf.

(a) Evidence from Witnesses Located Outside of London

[33] I understand that it takes approximately five hours to drive from Bracebridge to London, barring bad weather. Both cities are located in what are colloquially known as "snow belts" and much of the trial was heard over the winter. To accommodate non-Society witnesses such as school employees and foster parents, who were located in the Muskoka area where the four older children reside, a secure video conferencing link was set up between the courtroom in London and a jury room in the courthouse in Barrie, which is about a 1½ hour drive from Bracebridge. Witnesses were attended by a CSO in Barrie and sworn in by the court clerk in London.

[34] Documents in the trial were displayed on the television monitors in London and Barrie using equipment known by its acronym "ELMO." Where documents in the witness' possession were different than those of counsel, a copy of the document to be relied on would be faxed to the witness or vice versa.

[35] In addition to the Muskoka witnesses, the court also heard evidence via secure video conference link from a psychiatrist located at Sick Children's Hospital in Toronto and from an expert located in California.

[36] I am satisfied that there was no negative impact on the proceedings and that the video conferencing of the witnesses greatly facilitated the trial process. The few technical glitches that did occur were resolved promptly by IT staff in both locations.

(b) Steps Taken to Ensure Comprehensible and Meaningful Proceedings for the Respondents

[37] In order to accommodate the parents’ deafness, every effort was made by all concerned to ensure that the proceedings were comprehensible to and understood by the Respondent parents. In view of the length of the trial, a brief description of the arrangements that were undertaken to ensure that the needs of the Respondents were met is warranted.

[38] The Respondent parents communicate using American Sign Language ("ASL"). Throughout the trial, they were assisted by between two and five ASL interpreters. During the Respondent mother's testimony, two additional deaf interpreters also assisted. These interpreters are deaf people who communicate using ASL. I was advised that interpreters who are themselves deaf are able to communicate in ASL better than a hearing person who uses ASL, regardless of that interpreter's abilities. This experience is akin to the increased proficiency of a native speaker of a given language compared to a person who has learned that same language as a second language.

[39] In view of the physical demands of ASL, a minimum of two or three interpreters were required each day to interpret the proceedings to the parents. The interpreters would take turns and spell each other off every 15 minutes. Morning and afternoon breaks were always taken. But for an occasional interruption when witnesses spoke too quietly or lawyers were speaking over themselves, the interpretation for the Respondents of the evidence and all matters in the courtroom was both seamless and instantaneous. Copies of the exhibits were provided to both the parents and the interpreters at the time they were referred to by counsel or the witnesses. ASL is a conceptual language (it is not literal) and has a different syntax and grammar than English. The provision of copies of exhibits to both the parties and their interpreters therefore assisted in the interpretation and the parents' understanding (who had some ability to read written English).

[40] Arrangements were altered as needed when the Respondent parents testified. When the Respondent father testified, two ASL interpreters were used to interpret the questions asked by counsel and the Respondent father's answers. Two other interpreters interpreted the non-sign communication to the Respondent mother, who was sitting in the body of the courtroom. I designated one of the two interpreters interpreting for the Respondent father as the interpreter of record. It was not unusual for the interpreters to consult with each other regarding the appropriate interpretation of a particular word or phrase but only one interpretation was committed to the record.

[41] At the suggestion of the interpreters, both the Respondent father and the designated interpreter were videotaped during his testimony using two cameras that were fed into the Digital Recording Device (DRD).

[42] The Respondent mother started her testimony using the same arrangement as the father. However, her emotional fragility required frequent breaks. Eventually, her counsel indicated that the Respondent mother was having difficulty understanding the questions put to her and therefore requested the assistance of deaf interpreters to replace the two ASL interpreters.

[43] A further change was also made regarding the interpretation itself. For the Respondent father, the same interpreter interpreted both the questions asked of him and answers given by him. However, when the two additional deaf interpreters were retained to assist the Respondent mother, a third ASL interpreter was used to interpret the signed answers given by the deaf interpreters for the hearing participants and the answers were recorded in the ordinary course. That third interpreter was also videotaped. Fortunately, the Respondent mother appeared to be more comfortable with the assistance of the deaf interpreters.

[44] All of the interpreters were provided by Court Services. Unfortunately, because of their limited resources, accessibility to an independent interpreter by the Respondent parents outside of the courtroom was restricted. With my consent, one of the interpreters provided some ad hoc interpretation for both parents when the court was not in session.

C. FAMILY BACKGROUND

[45] In their 14 years together, L.W. and A.B. have moved frequently and have had contact in varying degrees with several child protection agencies throughout their child rearing years.

[46] When Kz was born in 2002, they were living with the maternal grandmother. According to A.B., the public health nurse made a referral to the London Society at that time. It is not clear what the concerns were or what its involvement was.

[47] In December 2002, the parents moved to Toronto and stayed in temporary accommodations. A.B. testified that he was looking for work and better services for the family.

[48] In 2003, they moved again, this time to York Region. A.B. was working in construction in Mississauga and Toronto. The York Region Children's Aid Society became involved over what A.B. described as a "misunderstanding." I was not provided with any details concerning this misunderstanding.

[49] Between approximately August 2004 and May 2005, Kz and Kp were in the care of the Peel Children's Aid Society. These children were returned to their parents' care subject to a six-month supervision order in May 2005.

[50] In or about June 2005, the parents relocated from Brampton to Toronto. Responsibility for monitoring of the family by the Peel Children's Aid Society pursuant to the supervision order was then transferred to Native Child and Family Services of Toronto ("Native Services"). In or about July 2007, the supervision order was terminated but L.W. and A.B. continued their involvement with Native Services on a voluntary basis until May 2009.

[51] In May 2009, the parents moved back to London, where L.W. had grown up. Along with their now four children, L.W. and A.B. moved into the maternal grandmother's one-bedroom apartment where they remained living until March 2010, when they were forced to leave because of over-crowding.

[52] According to the evidence of the maternal grandmother, the London Society was involved with the family while they were living with her. She said that workers had checked out their living arrangements and found the home to be clean and stable for the children. The London Society did not commence any formal proceedings at that time.

[53] Following their move out of the apartment, L.W. and A.B, moved into several temporary residences with their four children. For approximately six weeks in each place, the family lived at Rotholme Women's and Family Shelter in London and Leeder Place Family Shelter in Newmarket before they moved into a friend's home in Barrie. While they were living at Leeder Place, the parents had some contact with the York Region Children's Aid Society. After a few weeks in their friend's home, the family moved out as a result of a disagreement between A.B. and the friend.

[54] The evidence with respect to the parents' intentions at this point is vague. The two older children were at summer camp and the two younger children were in their care. They decided to leave Barrie and returned to London for a brief stay again with the maternal grandmother but then decided to return north again to live there. En route, their truck broke down, as a result of which the family had to spend a couple of days at a motel. During this time, L.W. and A.B. were contacted by a child protection worker but I was provided with no details regarding this contact.

[55] L.W. and A.B. and their two younger children eventually made their way to the home of the maternal grandfather, who lives on the Wahta First Nation Reserve near Parry Sound, Ontario. At this time, L.W. and A.B. also discovered that the maternal grandfather had the two older children in his care and he had been told that these children were to stay with him. He suggested that L.W. and A.B. contact the Muskoka Society to find out why. The maternal grandfather then drove L.W. and A.B. and the younger two children to the Avon Motel on Highway 69 near the town of MacTier. The Muskoka Society apprehended the younger two children at this location shortly thereafter.

[56] On August 12, 2012, L.W. and A.B. consented to a "without prejudice order" placing the children in the care of the Muskoka Society. The Society subsequently placed all four children in the home of their maternal grandfather and his wife.

[57] The maternal grandfather soon found the children too difficult to handle, however. After approximately a month had passed, he asked that they be removed from his care.

[58] At a temporary care hearing on September 16, 2012, Wood J. found that "the parents' transience and lack of parenting skills, the children's failure to thrive to date, the challenges posed by the parents and children's deafness (sic) and the lack of suitable accommodation together mean that there is a real risk of harm if the children are returned." He ordered the children to remain in care.

[59] The four children were then divided into two separate homes: the two older children stayed with a foster family in the MacTier area and the two younger children were sent to live with a foster family in Bracebridge. The two younger children have lived with this same foster family in Bracebridge ever since. The older two children were moved to the home of another foster family in Bracebridge in April 2011, where they have lived since.

[60] Initially, L.W. and A.B. had access to all four children in Muskoka each weekend on an unsupervised basis. Ongoing access became problematic, however, when the parents moved back to London while their children remained living in the MacTier and Bracebridge area. They cannot drive and are of limited financial means.

[61] The current order permits access between L.W. and A.B. and their children one day a month in Bracebridge. However, in reality, the parents usually see their children for two days in alternate months.

[62] As I have already indicated, L.W. and A.B. moved back to London, which was shortly before the birth of their fifth child, Kh, in May 2011. They have remained in London since their return and until recently lived again with the maternal grandmother. The parents initially had access to Kh six hours per day, three times per week, on an unsupervised basis. However, by order of Mitrow J. dated December 12, 2012, access was restricted to supervised access and now takes place twice per week, for one hour each visit.

[63] Upon his apprehension, Kh was placed in a foster home where he remained until July 2011, when he was transferred to "a view to adopt" home. He has remained in the fulltime care of his "view to adopt" foster parent since that time.

[64] As I will describe in more detail later, all four children in Bracebridge have a range of intellectual disabilities and delays. Kh's foster mother has testified that Kh has presented with some language delay. All children are hearing.

D. THE CHILDREN

[65] Any determination of a child's best interests would be challenging, if not impossible, without knowing something about the child. Who are these children? What are their needs?

[66] The five children in this case form two geographic, emotional and environmental constellations: the four children in Muskoka and the one child in London. While the four children in Muskoka get together and interact on a fairly regular basis, they have only met their brother, who lives in London, on two occasions. They met him once in January 2013, for approximately one hour, and once in March 2015, for about three hours. Consequently and, unfortunately, there is virtually no emotional bond between Kh and his four older siblings and vice-versa, except perhaps with Kz. Being the eldest child, Kz seems to have a better understanding of the nature of their relationship.

[67] Another feature that sets Kh apart from his four older siblings is the difference in their socio-linguistic cultures. Kh is a hearing child who lives in a hearing environment and has been raised by a hearing foster mother. On the other hand, the older four children, who are all hearing children as well, were for varying lengths of time in their lives raised by deaf parents, exposed to deaf culture and learned ASL as their first language.

[68] While none of the children have received any meaningful ASL instruction while in care (an issue that will be discussed later), the fact that the older four were exposed to ASL and the deaf culture in their formative years distinguishes their formative years from those of their youngest brother.

[69] One further fact that places Kh in his own constellation, so to speak, is that he is and has been living in a "view to adopt" home. Without in any way diminishing the commitment of the foster parents of the other four children, the evidence before me is that neither of the two sets of foster parents intends to adopt the children in their care. Kh has therefore had the advantage of permanency planning in his life not yet experienced by the older children

[70] Finally, Kh has never been in the fulltime care of his parents. Indeed, in the past three and a half years, his contact with them has been considerably restricted. As will be seen, there is not the same emotional bond between Kh and his parents as exists between the parents and his four siblings.

[71] I turn now then to the evidence regarding each of these five children and start with the oldest child, Kz.

(a) Kz

[72] Kz was nearly eight years old when she was last placed in the care of the Muskoka Society. She has been with her current foster family since April 2011. She has enjoyed a generally good relationship with her foster parents; however, there has been some indication in recent months that she may be withdrawing from the foster parents, particularly the foster father. The reason for this distancing is not clear.

[73] One of the Society worker's described Kz as a "girly girl." She is social, likes to talk, has lots of friends and is generally happy. She likes gymnastics, which she did for a year, and hopes to do again. She also likes dances, bicycle riding and swimming.

[74] Her father described her as sensitive, someone who does not like to see people in pain. He told the court that she likes to get her mother to smile and that she is close to her brothers and keeps them positive.

[75] A consistent theme, even from the Society's witnesses, was that Kz loves her brothers and her parents. She is especially close to her father, who spoils her. It has been observed that she is guarded in any conversation with others concerning her parents for fear of affecting her ability to see them. She has consistently requested to see them more frequently.

[76] Because Kz is the eldest child and, of all the children, lived with her parents for the longest period of time, she was also the most proficient in ASL at the time of her apprehension. Although he notes that Kz is still able to communicate using ASL, her father has also observed a decline in her fluency. This same observation was also made with respect to her brothers as well. A.B. testified that, when she was younger, they were concerned when Kz believed and acted as if she were deaf. It took some time to change her view and accept that she was a hearing person.

[77] When Kz was apprehended, she was found to be in generally good health. However, over time, it became apparent that she also faced several significant challenges:

i. bedwetting: L.W. and A.B. testified that Kz started experiencing an issue with wetting her bed in 2010 while they were staying at the Leeder Place Shelter. The issue continued for a year into her current placement but Kz's foster father indicates that it has now been resolved. A.B. testified that Kz still has accidents, however. He says she gets busy doing something and forgets to go to the bathroom but he is reluctant to embarrass her by talking to her about it.

ii. self-care: When the children were apprehended, the Muskoka Society had concerns about the ability of the children to care for their personal hygiene. While it appears to have been less of an issue for Kz, her foster father testified that at first she could not use a shower (she would just sing and dance in the shower enclosure) and she would not brush her teeth. A.B. has denied these allegations and testified that the children knew how to, and could, care for themselves.

With respect to the children, Kz and Kp, A.B.'s evidence is corroborated by the testimony of their prior foster mother, who said they had no self-care issues. However, where the evidence of the current foster parents concerning this issue contradicts the evidence of A.B, I accept the view of the current foster parents. To the extent this issue concerns Kz, A.B. acknowledged that Kz was "stubborn" and did not always change her underwear. Further, I note that once Kz was in care, she required extensive dental work, including the removal of an abscessed tooth, which reflects a lack of parental attention to the oral health of this child.

iii) parentification: When she was taken into care, Kz was observed to adopt a parenting role toward her younger sibling, Kp. Indeed, her 'mothering' of Kp was of concern to the Muskoka Society. Over time, however, this tendency has fortunately diminished. In his evidence, A.B. acknowledged that Kz's younger brothers looked up to their big sister "big time."

Although there was also evidence that Kz worries about keeping the family together, there is no evidence of a clinical diagnosis of parentification. Dr. Dundas, a psychiatrist at the Sick Children's Hospital in Toronto, spoke to Kz on two occasions. During her testimony, Dr. Dundas was not prepared to render a diagnosis on the basis of the facts presented to her. I am also not prepared to draw any inferences or conclusions in this regard on the basis of the evidence before me.

Dr. Preston, an expert in California, testified that it would not be unusual for the eldest hearing child of deaf parents to assume more responsibility than might otherwise be typical. Whether intentional or not, the eldest child often acts as an interpreter for the parents.

In light of the evidence with respect to how she tended to her infant brother Kh's needs, even though she had only met him once before, I am inclined to find that caring for a younger person was part of Kz's personality and may have been nothing more than that.

iv. academic progress: When Kz was registered at the MacTier Public School in the fall of 2010, the school authorities kept her back a year. The reason is not clear. In any event, Kz has progressed a year later than her peers of the same age ever since.

The Special Education Resource Teacher ("SERT") at Kz's current school testified that, although Kz has no "exceptionality" as defined by the Ministry of Education, she is working well behind grade level. In grade 6, for example, Kz was working at a grade 3 level in reading, writing and math.

The SERT also stated that Kz had speech/language assessments in 2008 and 2010 because of challenges in these areas. She had personally observed that Kz's skills, particularly in language, lagged far behind those of her peers. It was her opinion that the gap faced by Kz will only expand as language becomes more sophisticated in higher grades. Although Kz's skills are improving, they are not progressing fast enough. Kz is also assisted by an Individual Education Plan (IEP) at the school.

Initially, Kz became frustrated and upset with herself but this behaviour and response have fortunately diminished over time. Kz's self-esteem has also improved. Although she is still not confident, she is increasingly happier in school.

The court heard from Leslie Eddy, a psychologist, that Kz has an IQ of 84 in the 14th percentile. Ratings in a variety of subcategories ranged from extremely low to average. The SERT testified that Kz will need intensive support all the way through her schooling. High school will be a challenge for Kz but the SERT hopes she will attain her goal of becoming a veterinarian technician.

(b) Kp

[78] A.B. described his second child, Kp, as an affectionate and inquisitive child.

[79] Kp's foster father indicated that Kp "idolizes" his father and misses his mother and that there was no question that Kp loves Kz and his younger two siblings, in particular. Kp acknowledged Kh but in the foster home did not talk about him. Like his sister, Kz, Kp wanted more visits with his parents.

[80] At the time of his apprehension, Kp was found to be in generally good health but, as with his sister, significant challenges soon surfaced as a result of his serious developmental delays.

[81] Emotionally, Kp presented as withdrawn to the point of sadness and at times displayed anger and aggression to other children. His first foster mother described Kp as defiant. Periodically, he would "gap out," as his current foster father described. The child would just stare off into space.

[82] He was also generally uncoordinated physically. An occupational therapist determined that Kp's fine motor skills were delayed by two to three years in development. More specifically, Kp had "difficulty processing all types of sensory input making it more difficult for him to develop in any area. His nervous system often appears to be unregulated."

[83] Further, Kp's speaking proficiency was non-existent. One of the workers involved with him at the time indicated that he would only say the word "no"; the rest of his language was unintelligible and Kz would have to interpret for him.

[84] His hygiene skills were also delayed. He could not use utensils, brush his teeth or bathe himself. Toileting was a serious issue. His current foster father testified that Kp would defecate regularly in his pants and that it took about two years to resolve this issue. Again, there is some discrepancy between the evidence of the foster father and the first foster mother and A.B.[^4] with respect to the skills of the children in personal hygiene. Again, I prefer the current foster father's evidence in this regard. In Kp's case, the delays in his skill development in this area of his life were consistent with the overall developmental delay in most other areas of his life.

[85] Kp's foster father also testified that Kp would take toys from home to school or school to home without permission.

[86] A considerable amount of trial time was spent regarding the issue of whether the children had been taught by their parents to steal. In the end, I find that there is no probative evidence to support that the parents were engaged in such activity with their children. In Kp's case, the school's SERT confirmed Kp would take things that did not belong to him and without permission; however, she adopted a more sensitive approach than the foster father. In her view, this behaviour was symptomatic of a child experiencing difficulty. At school, the teachers tried not to make an issue of it and attempted to teach Kp the difference between right and wrong.

[87] Last year Kp was in grade 4, a year behind his peer age group. He is performing at an early grade 1 level. His SERT described how, in the early days at the school, Kp would turn inward and rock or bang his head.

[88] Kp is currently taught with the assistance of an IEP. He has an identified 'exceptionality' within the Ministry guidelines of "Intellectual: Developmental." This determination was based on the report of Ms. Eddy, who tested and diagnosed Kp with mild intellectual delay based on, among other scoring, an I.Q of 56. Kp also scored between 'borderline' and 'extremely low' in the subtests.

[89] Given all of these personal challenges, it is therefore not surprising that Kp was also challenged socially. According to the evidence, he has no friends. Kp's foster father says that Kp knows he is "different" and that this makes him sad.

[90] Since his apprehension, however, Kp has improved in many areas with the assistance of resources inside and outside of school and in his foster home. He is less angry and better coordinated. He speaks more fluently and can now participate in a conversation. His self-care skills have also improved; he is now able to take a shower himself, although he likes one of the foster parents to be with him. His oral hygiene is good but he still needs to be reminded to brush his teeth. Overall, however, he requires ongoing supervision. Because he has difficulty processing and following more than one instruction, he relies on cue cards to lead him through, for example, his morning bathroom routine. Routine of tasks is critical to follow through.

[91] Socially, Kp has also fortunately experienced some improvement. Children are more accepting of him and, according to his foster father, Kp has recently had his first birthday party with children from school. The foster father attributes this success to Kp's improved focus and behaviour. Medication for his ADD has also been helpful.

[92] The two younger of the four children in the care of the Muskoka Society, namely Kg and Ki, have lived in the same foster home since September 2010. Their foster mother testified that they can stay in this home as long as needed but that she and her husband are not in a position to adopt them.

[93] Kg's foster mother described Kg as a "really good boy." She has learned how to respond to Kg's needs. She knows if she presses him on an issue, for example, he will shut down, so she backs off. He will usually then open up at a later time when he is less emotional. She added that he is generally easy going and at school is loved by the teacher and fits in well.

[94] In his evidence, A.B. described his son Kg as a "jokester," who likes to get a reaction from his father. According A.B., as he has grown older, Kg has also become more challenging by testing limits.

[95] Kg's foster mother also testified that Kg is confused by the current circumstances. He does not want to be adopted but he does not want to move on. He is happy to go to visits with his parents but he is also happy to return to his foster home. She notes Kg has given up hope of returning to live with his parents.

[96] Kg participates in activities outside of school. He is graduating from Cubs to the Scouts program this year and enjoys bowling and swimming. Unfortunately, when Kg first came into their home, he had hygiene issues: he did not clean himself after using the toilet; and did not know how to wash himself or brush his teeth. At the dinner table, he had no manners and would eat with his hands. Further, he displayed no self-control during play[^5].

[97] In cross-examination, his foster mother was asked if Kg's behaviour could have been a matter of regression. She said that over the years she had seen regression in children but Kg's issues were too profound to be attributed simply to regression.

[98] Currently, Kg's health is generally good. He is required to wear glasses and initially his speech was difficult to understand but this too has improved with assistance through school.

[99] Kg has just finished grade 4 and was working at a grade 4 level, although a little behind his peers. Although not identified with an "exceptionality," Kg does have the assistance of an IEP at school. This includes accommodations in all areas and modifications in language and reading.

[100] His psycho-educational results reveal that he is an "average" student. His speech language pathologist noted improvement in the results of tests conducted in 2012 and then again in 2014. However, she also noted that there will always be a gap as the language of his peers becomes more sophisticated. He should be able to meet, however, the challenges of college level academics. She felt any residual language issues he may encounter should not impair a productive working life.

[101] At Kg's school, the SERT noted that in grade 1, when Kg first came to the school, he was shy. However, she now sees a child who is happy, smiles and gets along with his peers; a child who works hard but quickly; a child who likes to please; and a child who is caring and helpful.

(d) Ki

[102] A Muskoka Society worker described Ki and Kg as "two peas in a pod." However, it is clear that, unfortunately, Ki faces many more challenges across the spectrum than does his brother.

[103] Ki suffers from Shone's Syndrome, which is a rare congenital heart condition and requires him to live with a pacemaker. In the result, Ki has to be careful with exertion and he is unable to sustain much stress. This condition limits what he can do. According to his foster mother, Ki does not like people making a fuss over him.

[104] When he was apprehended, Ki, like his siblings, also lacked personal hygiene skills. He was four years of age at the time but was not yet toilet trained. According to his foster mother, "he had no clue." She disagreed with the suggestion that Ki's lack of bowel and urine control was symptomatic of behavioural regression.

[105] She told the court that Ki was also underweight and required a diet that included a calorie supplement called Ensure. The child was badly in need of dental work, as a result of what the foster mother described as "bottle rot." He had seven dental caps implanted and, in addition, four of his teeth had to be removed. Because of his heart condition, the dental surgery was performed at the Sick Children's Hospital in Toronto.

[106] Like his brother, Kp, Ki also has wide-ranging developmental issues. In September 2010, Ki was verbally unintelligible. His foster mother testified that Kg interpreted the sounds Ki made for her. Even a year later when he started school, the SERT said she could understand only approximately 20 percent of what Ki said. She says now she understands 80 to 90 percent, however.

[107] On the basis of the evidence before me, I am satisfied that some of Ki's speech/language delays were attributable to the fact his first language was ASL. The findings of his speech/language pathologist confirmed that Ki has shown considerable improvement in his verbal skills after a year in school. His receptive language is better than his expressive language. In the pathologist's opinion, language immersion and motivation were key factors at the outset but more recent testing has shown that, although there continues to be improvement, the rate of progress is slowing down. The pathologist believes Ki's cognitive delays will mean he will always be delayed in speech and language, despite school assistance.

[108] Ki was in grade 2 last year, working at a kindergarten level. The SERT from his school testified that he had been retained in senior kindergarten for two years because he was not ready to proceed further at that time. He attends a structured class and is weak in most subjects, particularly language and math. He is able recognize a small bank of words such as 'see' and 'can' but has no number sense. He can rote count to 20 but, according to the SERT, should be able to count to 1000 at this stage in his development.

[109] Like his siblings, Ki is assisted in school by following an IEP. Because of his developmental challenges, his IEP provides both modified and alternative programming. In high school, he will attend an "essential learning" or life skills programme.

[110] Ki's SERT also testified that Ki's fine motor skills are underdeveloped. Initially, he could not cut paper or manipulate things. He is better now and can put together pieces of a puzzle. With respect to his gross motor skills, she observed that Ki walks with what she described as an intermittent gait but it is not extreme.

[111] Ki's SERT, who has worked with Ki since he arrived at the school, has also seen an improvement in his behaviour over the course of his attendance at the school. At first, she said Ki was very angry; he would act out, spit and hit. But he is happier now, helpful, likeable, empathetic and a 'people pleaser' to a fault. He still has difficulty reading social cues, however, and still gets upset sometimes when other students do not comply with the rules. This behaviour sometimes requires adult intervention but school staff have found that the best strategy to deal with him in these situations is to calmly talk him down and not yell at him. Unfortunately, his "policing" of the rules alienates him from his peers and, according to his foster mother, is one reason he has no friends.

[112] Ki's SERT also recounted that, in the early days, Ki would remove toys from the classroom and take them home but this is no longer an ongoing issue. With the assistance of the foster parents, they were able to change Ki's behaviour in this regard. Ki's teacher indicated that, in her view, it was more an issue of Ki not knowing right from wrong.

[113] With respect to his behaviour, his foster mother said that Ki needs routine and, as a result, functions better in school and in the home. Outside these two environments, she says he gets confused. He is unable to safely cross the road by himself, for example. It has been his foster mother's experience that if Ki is required to absorb too much information at once, he gets over-loaded when given instructions.

[114] The foster mother agreed with Ki's SERT in that generally Ki's behaviour has improved but that he still exhibits a temper, particularly when someone cannot understand what he is saying. Also of concern is his willingness to hurt animals. The foster parents have to be careful with him around the family dog. She also indicated though that Ki is generally well behaved and that he listens to her.

[115] The evidence of Ki's foster mother made it clear that, regardless of his delays and challenges, Ki is an affectionate child. He feels close to her.

[116] L.W. and A.B. also told the court that Ki is close to them, as well. Both parents indicated he is especially close to his mother, L.W. She has a strong nurturing disposition which has been particularly supportive during Ki's medical interventions. The evidence of all pertinent witnesses is that he is fond of his siblings and enjoys being with them.

(e) Kh

[117] As I indicated at the outset, Kh forms a separate constellation from his four siblings, who are in the care of the Muskoka Society. He is the youngest child of L.W. and A.B.

[118] He was apprehended at birth and has remained in the care of the London Society since that time. He has therefore never been cared for on either a fulltime or part-time basis by either of his parents. He has never lived with his siblings and, but for two brief visits, has never spent any time with them.

[119] Because he has had such limited exposure to his biological parents, Kh's first language is English, not ASL. Further, also unlike his older four siblings, he has been placed in a 'view to adopt' home, where he has lived for three-quarters of his life.

[120] Further, Kh has experienced few of the personal challenges his older siblings face. According to his foster mother, Kh is in good general health, aside from colds and the odd rash.

[121] One area of concern regarding Kh is with respect to his language skills. A delay was first identified by the workers when he attended daycare. The foster mother also noticed that Kh's language acquisition was behind that of his peers. She has since worked to help him meet this challenge. She advocated that he be moved up with his peers, for example, when the children advanced to pre-school daycare. She also consulted an outside service provider called Tyke Talk but did not pursue their program though because Kh's language seemed to be improving. Kh's foster mother feels that, relative to his friends, his language is in line but she does acknowledge most of his peers are six months younger. With respect to his speech itself, the foster mother has indicated that Kh's diction is excellent.

[122] Kh's foster mother also observed that Kh has difficulty holding a pencil or crayon and consequently has difficulty drawing letters compared to his peers. She has also looked into reading assistance for Kh. Kh started junior kindergarten this fall so, if there are any issues, they will be identified and addressed.

[123] Kh has been consistently described as a happy child who smiles a lot. He gets along well with his peers and he plays well and knows how to share. His foster mother says he brushes his teeth and can use table utensils. In cross-examination, she confirmed that he is toilet trained and has had no history of bedwetting or sleeping issues. He also has had no dental or lice concerns.

[124] One worker identified Kh as a "normal boy." He likes to play with trucks and the slide. A.B. describes him as athletic. His foster mother has enrolled him in swimming and ski lessons.

[125] Kh seems to have an ambiguous relationship with his parents. He refers to his foster mother as "mommy," to L.W. as "mom" and to A.B. as "dad." A.B. made an interesting observation during his testimony. He said that Kh does not see them as his parents, just "people." Kh's bond is with the foster mother.

[126] This bond between Kh and his foster mother stands in contrast with the bond L.W. and A.B. have with the other four children. The difference, A.B. believes, lies in the fact Kh was apprehended at birth.

[127] There is no doubt that communication demands also make a developing and meaningful relationship with his parents more difficult. To this day, Kh exhibits only a minimal ability to sign. L.W. says when he wants her attention, he tugs on her clothes.

[128] But that is not to say there is no relationship. During access, there has been evidence of mutual affection, such as hugs and kisses, and Kh seems to enjoy his visits. The access supervisors have observed appropriate interaction and play between Kh and his parents.

[129] With respect to Kh's siblings, there appears to be little bond. This is not a surprise as the children have only met twice in the four plus years of Kh's life. Their last visit together occurred in March 2015 at an arcade in Barrie. At this time, the only substantive interaction was with Kz, who took Kh under her wing. Kz, being the eldest, better understood the nature of their relationship. Although Kh became upset at the end of the visit, it is unclear whether his reaction was to having to leave his siblings or to leave the games in the arcade.

E. THE LEGAL FRAMEWORK

[130] The analysis of the evidence in the two actions before the court must follow individual pathways. The Muskoka action, involving the four older children, is a status review of a final order. The London action is an originating application in which no findings with respect to the youngest child have yet been made. I shall address the legal framework of each action separately.

(a) Status Review of the Court Order dated November 5, 2012 Involving the Muskoka Society

[131] In the ordinary course, the final order the court is asked to review is easily identified, as are the parameters of that order. This is not so in the present case.

(i) The Orders dated September 16, 2011 and November 5, 2012

[132] In this case, there are potentially two 'final' orders for the purposes of review. The first order was granted on consent on September 16, 2011. In that order, the four older children were found to be in need of protection, pursuant to s. 37(2)(b), (g) and (l), and remained in the care of the Muskoka Society. The second order, also purportedly obtained on consent, was the Crown wardship order of November 5, 2012, referred to above.

[133] This latter order contained the following terms and provisions concerning access and notice to L.W. and A.B.:

The children, namely [Kz B.] (D.O.B. …), [Kp B.] (D.O.B. …), [Kg B.] (D.O.B. …) and [Ki B.] (D.O.B. …) shall be made wards of the Crown with access on the following terms:
The Society shall use its best efforts to place the four children in the London area.
In the event that the Society is unable to do so within 6 months of the date of this order, then the Society shall apply for a review of this order before placing any child for adoption.
Until placement in London, access shall continue as set out in the order of July 26, 2012 plus one overnight visit for the elder two children, and possibly for the younger two children if the Society deems it appropriate. This visit is to occur in London during the Christmas school vacation.
Upon placement in London, the elder two children shall have one overnight visit every two weeks. The younger two children shall have 1 day of access every two weeks to coincide with the elder children's access.
This access shall be reviewed three months after it has commenced and increased if the Society deems it appropriate to do so.
During the first 6 months following the date all 4 children are placed in the London area, the parents shall have the right to:

a) attend at all school functions such as Parent-Teacher interviews, concerts, sports events at their own expense;

b) attend at all medical appointments for the children, at their own expense, and to facilitate this shall be advised of times and locations in a timely fashion;

c) be provided with school information such as report cards and notices of events;

d) be provided with copies of any significant reports generated by the children's caregivers.

The children will not be placed for adoption within the meaning of section 143 of the Child and Family Services Act for 7 months following the date the last of them is placed in the London area.
Thereafter, unless the parents have applied for a review of this order under section 65.1(4) of the Child and Family Services Act, which they may do so as of right, the Society may make adoption placements and the parents' right to review such placements will be restricted to application for an openness order under section 145.1(3) of the Child and Family Services Act.
This Court retains jurisdiction over any further review or application contemplated by this order.
This case is adjourned to January 24, 2013 for the Society to report on the status of its search for placement in the London area.

[134] On November 12, 2013, the Muskoka Society served and filed a summary judgment motion seeking to amend the access terms of the order dated November 5, 2012 so the children could be placed for adoption. L.W. and A.B. opposed the motion, saying that they had been tricked and that they would never have agreed to a permanent placement of the children into care.

[135] Unfortunately, the court record that was provided at the trial was not helpful. No Statement of Agreed Facts had been filed by either of the parties. Further, no written consent endorsement request in which the parties confirmed their consent to the order as granted had been signed and filed by the parties. Instead, it appears that the presiding judge wrote out the terms of the consent order himself.

[136] In her decision dated December 5, 2013, Wildman J. dismissed the Muskoka Society's motion. This decision, and the intervention of the Senior Family Court Judge, led to the trial before me in London.

[137] Wildman J. described the order of November 5, 2012 as "unusual." I have to agree. It might even be described as a "conditional" Crown wardship order. Many of the terms suggest that the agreement of the parties which was incorporated into the court order, and on which the court order was based, was in essence an attempt by the court to provide the parents more time to resolve their challenges.

[138] The provisions in the order regarding (a) placement of the children in London; (b) the extensive and detailed access; and, most significantly, (c) the prohibition barring placement of the children for adoption for seven months; and (d) requiring the Muskoka Society to apply for a review of the order before placing any of the children for adoption, support this interpretation.

[139] In her decision, Wildman J. also had a difficult time discerning the intent of the order:

[25] As there was again no Statement of Agreed Facts, the facts on which the order was based are unclear. This contributes to the mystery that is central to this case: was the November 5, 2012 order intended to permanently make the children Crown wards, albeit with the potential for continued contact with the parents, or was it "one last chance" for the parents to build a relationship with their children and prove to FYCSM[^6] that the children could safely be returned home?

[140] The fundamental conditional or temporary nature of the order, notwithstanding the intended finality of the context in which it was rendered, became evident when the Muskoka Society brought the matter back before the court for review as contemplated by the order. By that point, as the evidence will show, the children could not be moved to London. In his endorsement of June 24, 2013, the presiding judge indicated:

that he was satisfied with the Society’s efforts to move the children to London;
that the parents still want the return of their children; and
that the Muskoka Society argues that, after three years in care, the children require permanency.

[141] He therefore ordered:

that the matter be set down for trial in the November sittings, with priority;
the findings having already been made, the issues for trial would be:

a) whether the Muskoka Society may place the children for adoption notwithstanding paragraph 10 of the November 5, 2012 order;

b) whether it is in the best interests of the children to be placed for adoption or to be returned to their parents; and

c) if the former, whether it is in the best interests of the children that there be an openness component to the remedy provided.

[142] The fact that L.W. and A.B. could still seek return of the children strongly suggests that the Crown wardship order referred to on November 5, 2012 was in fact a Society wardship order. Unfortunately, by November 2012, the prescribed time had expired for a Society wardship order under s. 70 of the CFSA.

[143] Further, in view of the wording, the order also contradicts the intention of the CFSA that a Crown wardship order is to be final: an order that provides a child with a permanent placement. Indeed, s. 63.1 of the CFSA imposes a positive obligation on a society to "make all reasonable efforts" to place the child for adoption once a child is made a Crown ward.

[144] There is no doubt that the order of November 5, 2012 was borne of good intentions and a desire to avoid a long trial and there is no doubt that, in hindsight, the parties would have proceeded differently. However, there is also no doubt that the seeds of confusion were sown in the ambiguous nature of an order to which all parties had purportedly consented.

[145] Despite the indication by Wildman J. regarding the parents' understanding of the November 5, 2012 order, it was not clear at the beginning of this trial whether their consent to the order and the finality of the order, which was before me for status review, were going to be issues.

[146] In her opening statement, counsel for the Muskoka Society indicated as follows:

This matter has a complex history and it is clear now that FYCSM and the parents had very different understandings of the meaning of the Crown wardship order they consented to.

Despite that complex history and differing interpretations of the current order, FYCSM suggests that the clearest way for the court and parties to approach this trial is as though the children were still Society wards and the issue is now whether it is in the children's best interests to become Crown wards or be returned to their parents' care.

This will keep the trial focused on what order is now in the children's best interests rather than on disagreements between the parties about how we got here.

[147] After hearing evidence over the course of the following 20 days (most of which had been dedicated to the London case), I started to hear evidence from a Muskoka Society worker that touched on the purported understanding of the parents of the November 5, 2012 order.

[148] At this point, I suspended the trial proceedings out of concern that in issue in this trial would indeed be the validity of the November 5, 2012 order as a final Crown wardship order, despite the opening statement by counsel.

[149] The parties agreed to participate in a mid-trial conference with Templeton J. to determine whether or not the consent of the Respondent parents to the order, and the nature of the order, were going to be issues at trial. For the benefit of the court and the parties, the parties, including the Respondent parents (each of whom was represented by counsel), the OCL Lawyer for the four children and counsel for both Societies agreed and reduced to writing "Terms of Reference." Briefly, those terms included acknowledgments and the legal framework for the trial:

Both Societies are seeking Crown wardship without access.
The parents are seeking the return of the children which may include a supervision order or, in the event of an order of Crown wardship, access.
The parents consented to the four eldest children remaining in care on November 5, 2012. The current proceeding is a review of the status of the children in care.
The test to be applied is the best interests of the children.
The four eldest children were found to be in need of protection September 16, 2011.
The issue of the father's consent to the terms of the order of November 5, 2012 is not an issue in this trial.

[150] In subsequent discussions with counsel, however, it became apparent that the parties had agreed to disagree. The Muskoka Society refused to abandon the Crown wardship term of the order of Wood J. The Respondent parents, on the other hand, would not concede that they had consented to a final Crown wardship order.

(ii) The Remedies Available

[151] The parties did agree that I should, and could, review the status of the four older children without determining the validity of the order of November 5, 2012 on the basis, as well, that all the remedies available under s. 57 of the CFSA would be available at the conclusion of the trial.

[152] Putting the legal framework of this trial most simply, therefore, with respect to the four older children, who are in the care of the Muskoka Society:

this trial is a status review without having to determine whether the current status of each of the four older children is 'Crown ward' or 'Society ward'.
the remedies available to me in the final disposition are those contained in s. 57 of the CFSA. Because of the expired time limits as set out in s. 70, the only available options are: (a) returning some or all of the children to their parents, with or without a supervision order, or; (b) ordering Crown wardship for some or all of the children, with or without access.
in determining the outcome, it has been agreed by all parties that I am to consider only the best interests of the children.

[153] For the purpose of this trial, the substantive issue to be resolved is whether, upon a review of the "status" of these four older children, I make them Crown wards or return them to their parents' care.

[154] While not ideal, I accepted this resolution believing it to be in the children's best interests to keep the legal process moving forward. In view of the time they have been in care, any further delay would have been unacceptable.

[155] Further, the legal analysis as it applies to this case is virtually identical regardless of the perspective of the parties. The order of September 16, 2011, containing the findings and keeping the children in care as society wards, was an order pursuant to s. 57(1) of the CFSA. That order can be reviewed under s. 64(1). Under subsections (2) and (4), either the society or the parents may apply for review. Section 65 permits the court, when reviewing an order pursuant to s. 64, in the child's best interests, to vary or terminate an order made under s. 57(1). It can also make a further order under s. 57.

[156] Section 65.1 applies to Crown wards. Both the society and the parents may apply for a review of Crown wardship orders under subsections (2) and (4). When reviewing an order under s. 65.1, s. 65.2 permits the court, in the child's best interests, to place the child in the care of a parent subject to society supervision or order the child be made a Crown ward. If the court makes a supervision order, subsection (4) sets out what those terms and conditions might be. Subsection (5) addresses access.

[157] The only significant difference between the two avenues of review is contained in s. 65.1(5). It provides that a parent requires leave of the court to bring a review application if the children, "immediately before the application, received continuous care for at least two years from the same foster parents or from the same person under a custody order." The children, in this case, have been in such care and leave of the court would be required.

[158] Based on the nature of the Terms of Reference reached by the parties as a compromise, 'leave of the court' would not be required. If required, while not specifically addressed, I am of the view that the parties' consent to leave being granted can be inferred from the Terms of Reference.

[159] In C. v. Children's Aid Society of Ottawa-Carleton, 2000 CanLII 22539 (ON SC), [2000] O.J. No. 2063, 9 R.F.L. (5th) 269, Blishen J. set out the criteria for consideration of whether to grant leave pursuant to what is s. 65.1(5):

The court must be satisfied that the status review application for which leave is being brought is bona fides.
Leave ought not be granted if the relief sought can be obtained otherwise than by reviewing the whole order itself.
There must be some unusual circumstances which justify the review, in spite of the child's permanent status.
The judge must be satisfied that the review would likely accomplish the purposes as set out in s. 1 of the Child and Family Services Act.
The applicant must establish a prima facie case.

[160] Taking into account these criteria, I would have no hesitation in granting leave if such leave were required. The parents have been fighting five years for the return of their children. Their bona fides cannot be questioned. The relief they seek, i.e. the return of their children, cannot be obtained short of setting aside the entire order. The fact that the children have been in care for five years without final resolution would be a sufficiently "unusual" circumstance to justify a review. I am satisfied that a review would meet both the paramount and additional purposes of s. 1(1) and (2). Finally, having heard all the evidence, I find the parents have a prima facie case.

[161] As I have indicated, whether I am to be considered as having reviewed the Society wardship order of September 16, 2011 or the Crown wardship order of November 5, 2011, I am satisfied that the legal analysis is essentially the same.

[162] The seminal case regarding the status review of a court order pursuant to s. 64(1) is Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.J. No. 37, 2 R.F.L. (4th) 313. Justice Chappel succinctly summarized this decision (which she referred to as M.C.) recently in Children's Aid Society of Hamilton v. V.B. and M.B., 2015 ONSC 4602 at paras. 68 and 69:

68 The Supreme Court of Canada set out the fundamental principles that apply on a Status Review Application under the CFSA in M.C., Supra. It stated that in dealing with child protection cases pursuant to the CFSA, the court must always keep in mind the overall purpose and rationale of the global legislative scheme. It held that the underlying philosophy of the Act is that the best interests of children must be balanced with the importance of keeping the family unit intact. The court concluded that this philosophy is the foundational starting point for determining the applicable test on a Status Review Application. It emphasized the importance of avoiding unduly restrictive interpretations of the individual sections of the Act which may work at cross purposes with this overall philosophy. Applying these general principles, the court held that in a Status Review Application, it is not necessary to retry the original need for protection order. As the court stated at paragraph 35 of its judgment, "that order is set in time, and it must be assumed that it has been properly made at that time." However, the court also rejected the suggestion that the test in Status Review proceedings involves a pure best interests analysis that places the state and parents on an equal footing with respect to the care of the child. Rather, it set out a two-fold test for the determination of Status Review Applications. The first branch of the test requires the court to determine whether the child continues to be in need of protection, and as a result requires a court order for their protection. The second branch of the test involves a consideration of the best interests of the child.

69 With respect to the first part of the test in Status Review proceedings, the Supreme Court did not state that the child must be found to be "in need of protection" as that phrase is defined in section 37(2)(b) of the CFSA. What is required is that the child welfare agency involved must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future. The Ontario Court of Appeal recently reiterated this point in Children's Aid Society of Oxford County v W.T.C., 2013 ONCA 491, 2013 CarswellOnt 10258 (C.A.). The Supreme Court emphasized in M.(C.), that a preliminary determination of whether ongoing state intervention is required to protect the child is important to ensure that the overall objectives of the CFSA are protected and promoted. In support of its decision on this issue, the court relied heavily on the fact that these statutory objectives include the preservation of the autonomy and integrity of the family unit, and the provision of child protection services in the least restrictive and disruptive manner. The court also held that the inquiry into the child's continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on ongoing concerns respecting the parents' ability to meet the child's needs, or for reasons unrelated to the parties' parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan.

[163] Whether I am reviewing an order under s. 64 or 65.1, the two-prong test would apply. First, are the children still in need of protection? Secondly, what order is in the children's best interests?

[164] I turn then to the factors to be considered with respect to the sole legal consideration regarding the four older children.

(b) The Test to be Applied: The Best Interests of the Child

[165] When determining a child's best interests, the CFSA directs the court to consider s. 1 and s. 37(3).

[166] Section 1(1) states the paramount purpose of the CFSA is to "promote the best interests, protection and well being of children."

[167] Section 1(2) sets out additional purposes:

1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

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.
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.
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.

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

[168] Section 37(3) specifically addresses the circumstances to be considered when determining a child's best interests:

37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
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.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
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.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.

[169] It should be noted that, prior to the amendments to the CFSA in 1999, there was no distinction between s. 1(1) and (2). All purposes were included under subsection (1). To set s. 1(1) out separately and designate it as "the paramount" purpose, the Legislature intended to give it priority above the "additional" purposes. See C. v. Children's Aid Society of Ottawa-Carleton, supra, para. 47.

[170] The view that a family's interest is subordinate to the child's best interests was reinforced by the Supreme Court of Canada decision in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83. Justice Abella, writing for the court, describes the interplay of s. 1(1), (2) and s. 37(3) of the CFSA:

44 The primacy of the best interests of the child over parental rights in the child protection context is an axiomatic proposition in the jurisprudence. As Daley J.F.C. observed in Children's Aid Society of Halifax v. S.F. (1992), 1992 CanLII 14848 (NS FC), 110 N.S.R. (2d) 159 (Fam. Ct.):

[Child welfare statutes] promot[e] the integrity of the family, but only in circumstances which will protect the child. When the child cannot be protected as outlined in the [Act] within the family, no matter how well meaning the family is, then, if its welfare requires it, the child is to be protected outside the family. [para. 5]

(See also Children's Aid Society of Halifax v. C.M.N. (1989), 1989 CanLII 9605 (NS FC), 91 N.S.R. (2d) 232 (Fam. Ct.), per Butler J.F.C., at paras. 34-36; Children's Aid Society for the District of Ottawa-Carleton v. L.H., 1994 CanLII 5236 (ON CJ), [1994] O.J. No. 2501 (QL) (Prov. Div.), per Guay Prov. Div. J., at para. 38; Children's Aid Society of Ottawa - Carleton v. D.L., 1995 CanLII 8878 (ON CJ), [1995] O.J. No. 693 (QL) (Prov. Div.), per Linhares de Sousa Prov. Div. J., at para. 69; F. (B.) v. Children's Aid Society of Kingston (City), 1995 CarswellOnt 2154 (Prov. Div.), per Dunbar Prov. Div. J., at para. 13; Children's Aid Society of Brockville Leeds & Grenville v. C., 2001 CarswellOnt 1504 (S.C.J.), per Ratushny J., at para. 15; Children's Aid Society of Hamilton-Wentworth v. R. (K.), 2003 CanLII 2077 (ON SCDC), 2003 CarswellOnt 2929 (S.C.J.), per Scime J., at para. 44; Family Youth and Child Services of Muskoka v. N.C., 2004 CanLII 18155 (ON SC), [2004] O.J. No. 1733 (QL) (S.C.J.), per Glass J., at para. 28; and A.N. v. Saskatchewan (Minister of Social Services) (1988), 1988 CanLII 5296 (SK QB), 68 Sask. R. 24 (Q.B.).)

45 This Court has confirmed that pursuing and protecting the best interests of the child must take precedence over the wishes of a parent (King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87; Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3; New Brunswick (Minister of Health and Community Services) v. L. (M.), 1998 CanLII 800 (SCC), [1998] 2 S.C.R. 534). It also directed in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, that in child welfare legislation the "integrity of the family unit" should be interpreted not as strengthening parental rights, but as "fostering the best interests of children" (p. 191). L'Heureux-Dubé J. cautioned at p. 191 that "the value of maintaining a family unit intact [must be] [page100] evaluated in contemplation of what is best for the child, rather than for the parent".

46 It is true that ss. 1 and 37(3) of the Act make reference to the family, but nothing in them detracts from the Act's overall and determinative emphasis on the protection and promotion of the child's best interests, not those of the family. The statutory references to parents and family in the Act, which the family seeks to rely on to ground proximity, are not stand-alone principles, but fall instead under the overarching umbrella of the best interests of the child. Those provisions are there to protect and further the interests of the child, not of the parents and therefore, in my view, cannot be relied upon for finding a relationship of sufficient proximity. As explained by Professor Nicholas Bala:

[L]eading Canadian precedents, federal and provincial statutes and international treaties are all premised on the principle that decisions about children should be based on an assessment of their best interests. This is a central concept for those who are involved making decisions about children, not only for judges and lawyers, but for also assessors and mediators.

(N. Bala, "The Best Interests of the Child in the Post-Modernist Era: A Central but Illusive and Limited Concept", in Special Lectures of the Law Society of Upper Canada 2000: Family Law (1999), 3.1, at p. 3.1)

47 Similarly, as Joseph Goldstein et al. noted in The Best Interests of the Child: The Least Detrimental Alternative (1996), at p. 88:

[O]nce justification for state intervention has been established, the child's well-being -- not the parents', the family's, or the child care agency's -- must be determinative... . That conviction is expressed in our preference for making a child's interests paramount once her care has become a legitimate matter for the state to decide. [Emphasis in original.]

48 The factors in s. 37(3), for that reason, are the servants of the paramount duty in s. 1 to protect [page101] the best interests of an apprehended child. This is reinforced in s. 1(2) which states, in essence, that family and parental relationships are to be recognized only to the extent that they are "consistent with the best interests, protection and well being of children".

[171] In short, the child's interests are paramount and the family's interests, while important, are secondary.

[172] Because there has been no finding that the fifth child of the Respondent parents is in need of protection, the legal process involves a different statutory framework. That statutory pathway may be summarized as follows:

CFSA Section

Action to be Taken

Authority to bring the application.

Directing the court to hold hearing and make dispositional order under s. 57.

37(2)

Criteria to be met for finding child in need of protection.

57(1)

Dispositional orders to be made when child found in need of protection.

37(3)

Factors in determining child’s best interests.

57(2)

Inquiry into efforts made to assist child prior to intervention.

57(3)

Inquiry into less restrictive measures.

57(4)

Inquiry into placement with member of extended family or community.

57(9)

Return of child where court order unnecessary.

See L.(R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 5589 (ON SC), [1995] O.J. No. 119, 21 O.R. (3d) 724 (Ont. Gen. Div.).

[173] Because Kh has been in care for more than four years, the timelines in s. 70 have expired. Therefore, the only dispositions under s. 57 available to the court are: (a) to return the child to L.W. and A.B. subject to terms of supervision; (b) declare him to be a ward of the Crown; or (c) returning him to L.W. and A.B. pursuant to s. 57(9).

F. ANALYSIS

[174] Because there are two legislative pathways, one for status review and one for the application, I will approach each separately. Having said that, due to the nature of these proceedings, the same evidence will be considered with respect to both proceedings where relevant and appropriate.

THE MUSKOKA STATUS REVIEW

(a) The Position of the Muskoka Society

[175] The Muskoka Society seeks an order for Crown wardship for all four children without access.

[176] Its submissions followed the two-prong test in the Supreme Court of Canada's decision in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), supra:

Do the children continue to be in need of protection?
Which of the available range of orders is in the children's best interest?

[177] It is accepted by all parties that this analytical approach, whether this be a review of the Society wardship order of September 16, 2011 or the Crown wardship order of November 5, 2012, is the proper approach.

[178] A consideration of the evidence as of September 2011 or November 2012 does not prejudice any party with respect to the first prong of the test.

[179] The Muskoka Society submits all four children continue to be in need of protection for several reasons, regardless of the date.

[180] First, there is a risk of harm if the children are returned to their parents' care. Their identified needs have been addressed and even resolved to some degree during their time in the care of the Society. The dental hygiene of Kz and Ki has significantly improved, for example. Kz's bedwetting challenges have disappeared with medication, attention and care. Intensive instruction, both at home and in school, have addressed some of the children's delays, notwithstanding the fact that significant challenges remain.

[181] The interplay of environmental support and attention, and the children's progress, has been significant and fundamental to the progress they have all experienced. The consistent care and attention to address their needs has been beneficial to all of these children.

[182] Counsel pointed to the observation of Dr. Dundas, a psychiatrist who treated the children, who said that any new caregiver will have to be well prepared and aware of the children's needs. The children need an ongoing, consistently high level of care, an ability and willingness of their caregivers to work with community services and a willingness and commitment from their caregivers to follow through with recommendations. Counsel argues that L.W. and A.B. take a "wait and see" approach and are not really ready to parent the children.

[183] The financial circumstances of the Respondent parents are another concern for the Muskoka Society. L.W. and A.B. are in significant debt. They rely on public funding and, while they admit to needing jobs to make ends meet, they have no plan to find suitable and remunerative employment or other income. As it is, even now, they are experiencing budgeting challenges. Several visits with the children have had to be rescheduled around the receipt of their funds from ODSP, even though the costs of transportation and accommodation have been covered by the Muskoka Society.

[184] In addition to these concerns, the Muskoka Society submits that the parents' lack of organizational skills, their lack of ability to cooperate with the Society, and their personal lack of family support, enhance the risk to the protection of these four children. Even though A.B. and L.W. were able to financially maintain the management and costs of a townhouse in London from August 2011 to December 2013, counsel points out the parents did not have the added responsibility of caring for any of the four children.

[185] Finally, the Muskoka Society submits that A.B. and L.W. have not taken any ownership with respect to the circumstances in which they now find themselves. From the parents' perspective, there is always someone to blame for the difficulties and challenges they face: the system, the schools, the Children's Aid Society.

[186] It is the position of the Muskoka Society that, for these reasons, the four older children of A.B. and L.W. have been and continue to be in need of protection for which the only remedy that is in the best interests of each of them is Crown wardship. In the Society's submission, returning the children to the care of A.B. and L.W., even subject to a supervision order, would be contrary to their best interests. Counsel argues that a return of the children to their parents' care would keep the children on a "bubble of risk." In view of the time it has taken to get this matter to this stage, the time for experimentation is over.

[187] The Muskoka Society also seeks an order for no access. It argues that neither criteria of s. 59(2.1) of the CFSA have been met, specifically that access would be beneficial and meaningful and not impair adoption. Principally, the Society argues that an access order would impede adoption of the children.

[188] Although an access order would terminate[^7] when a child is placed for adoption, s. 145.1 of the CFSA contemplates an openness hearing. The Muskoka Society therefore believes this potential for ongoing contact would discourage people considering adopting one or more of the children.

[189] The position of the Muskoka Society is that it will pursue openness between the children and the Respondent parents with any prospective adopting parents but will do so without the impediment such a requirement for access would create in a court order. Finally, the Society will consent to an access order requiring access by all of the children to each other, as requested by the OCL.

(b) The Position of L.W. and A.B.

[190] At the outset of her submissions, counsel for L.W. and A.B. indicated that a finding that the children were in need of protection was not conceded by the Respondent parents and that L.W. and A.B. were seeking an order for the return or placement of all five of their children into their fulltime care.

[191] Counsel tendered several arguments in support of this position:

The most important issue for both the parents and both Societies throughout these proceedings has been 'housing'. L.W. and A.B. had lived in a townhouse in London for nearly two and a half years. This home was suitable for the entire family. One of the reasons provided by the Muskoka Society at that time for not returning the children to their care was that the Society wanted to determine if the parents would be able to financially carry this home for a period of time.

The evidence demonstrated that, despite significant financial challenges, A.B. and L.W. left this home only because it became clear to them that the children were not going to be returned by the Muskoka Society, despite their efforts. To continue to pay for the cost of a home large enough to accommodate the entire family made no economic sense.

Virtually days before the end of trial, A.B. and L.W. were able to rent another home that is again suitable for the entire family in London. A.B. and L.W. have tendered evidence that shows they would receive a higher allowance from ODSP if they were allowed to parent the children in their home. They would also be able to access other government benefits, which would make their plans for accommodation financially feasible.

A.B. and L.W. have maintained regular and consistent contact with their children, despite the hurdles arising from the geographic distance between them.
The evidence shows (and it is conceded by the Muskoka Society workers) that both L.W. and A.B. and the children share a loving relationship. Historically, the Respondent parents have demonstrated that they are aware of the children's needs. They have been able to deal with community services such as the Toronto Sick Children's Hospital regarding the care of Ki. They have also encouraged the children to abide by the rules of the foster parents.
Counsel for A.B. and L.W. also highlights several failings of the Muskoka Society. In her submission, the Muskoka Society failed to provide, for example, a sufficient number of qualified ASL interpreters to assist with communication between the Society workers and the Respondent parents.

Further, the Muskoka Society did not comply with its statutory obligation to assist the children. Since the birth of Kh, for example, only two sibling visits have been arranged.

Although A.B. and L.W. acknowledged some early issues with school attendance, the school attendance of the children did improve over time.
Not all of the gains and progress achieved by the children can be attributable to the fact that they have been in the care of the Muskoka Society. With the children being in school, many of the developmental and health issues observed by the Society, and relied on as evidence such as speech/language therapy, would have been addressed in any event of the Society's involvement.
A.B. and L.W. are well prepared to accept and raise the children. They have arranged for a school, a doctor and dentist to look after them in the community. They have also been in contact with the Canadian Hearing Society and Community Living, both of which are able to provide support services for the entire family.

[192] A.B. and L.W. tendered a draft order to the court that included a provision that the children be returned to their care subject to supervision by the Society. They anticipate that, if the children are returned, such an order would only be pursuant to supervision.

[193] The draft order the Respondent parents are seeking is comprehensive and includes 30 terms and conditions. In addition to the usual terms and conditions in like circumstances, L.W. and A.B. have agreed to a condition requiring them to remain in the London area for at least three years; to work with community services; to attend a parenting course; to ensure that the children are registered in school and receive regular medical and dental care; and requiring the Society to facilitate ASL instruction for the children. In order to assist transition, the children would be moved into their parents' home over the course of one month, with the involvement of ongoing support services, including counselling.

[194] In the alternative, if the court were to order Crown wardship, the parents seek access. The parents submit that ongoing access with the children would be both beneficial and meaningful to, and for, the children. Further, there is no credible evidence or reason why an order for access to any of the children would impede an adoption of that child. In their view, the concerns of the Muskoka Society are unfounded. One cannot assume there would be an openness hearing. It may get resolved. On the other hand, the fact that the legislation provides for a hearing should not be a deterrence.

[195] Counsel for the OCL canvassed the views and preferences of the four children in Muskoka extensively over the years. He submits that they all have consistently expressed a desire to return home to the care of their parents. He would consent to the draft supervision order put forward by the parents.

[196] In his submissions, counsel for the children also acknowledged the concerns arising in the past however. A.B. admitted to these. A.B. has also said that he would have done things differently. According to counsel, A.B.'s acknowledgement of his previous challenges in parenting the children demonstrates some insight into the needs of the children and their need for outside services. Counsel for the children has asked me to consider the following factors:

Their love should not be underestimated. The Respondent parents and their children love each other. As Dr. Dundas testified, a child's physical needs are important but without love, a child would not develop properly.
The only realistic way these four children will be kept together is if they are returned home to the fulltime care of the Respondent parents. Indeed, the adoption worker from the Muskoka Society has indicated it is unlikely that all four children would be adopted together.
The deaf culture is important to these children. The court heard from two experts in this regard. The deaf culture is the first culture these children were exposed to and lived in and as such is fundamentally important to them. The best chance of their original culture being fostered and nurtured is through the return of the children to their home with A.B. and L.W. and the deaf environment in which they were originally raised.
A supervision order will provide future stability. The Respondent parents have committed to working with services in the community and the Society. The court heard evidence that an adoption will take 12 to 18 months, with no guarantee that it will succeed. Further, in light of their ages, the children will have to consent to their adoptions in any event.
Cooperation is a two-way street. The terms of the supervision order proposed by the Respondent parents may oblige the Muskoka Society to make a concerted effort to support and work with the family.
Although the effect of poor communication might never be known, the opportunity for misinterpretation and misunderstanding by both the Respondent and the Muskoka Society was ever-present.
Although it is yet difficult to determine the effect of the delay of a final resolution of these proceedings on the children, any effect has been felt most acutely by the children.

[197] Finally, counsel for the OCL advocates for intra-sibling access for all five children and parental access with L.W. and A.B., should the court find that Crown wardship is the appropriate disposition.

(d) Do the Children Continue to be in Need of Protection?

[198] As I indicated above, the parties agreed in the Terms of Reference that, while there might be issues regarding the Crown wardship order, the four older children were found to be in need of protection on September 16, 2011.

[199] For the purposes of reviewing whether the children continue to be in need of protection, I find neither party is prejudiced whether the start date is September 16, 2011 or November 5, 2012. As a result, I will use the earlier date.

[200] The Society wardship order of September 16, 2011 was made on consent. The children were found to be in need of protection pursuant to s. 37(2)(b), (g) and (l) of the CFSA. The grounds for the order were described in only general terms: "The parents' transiency and failure to access supports and services have resulted in the children suffering significant developmental and social delays and serious dental neglect."

[201] Because the Respondent parents had not seen the children since May of that year, the order also provided that, prior to a resumption of a regular schedule of visitation, two initial supervised visits were to be arranged: the first visit would take place that same day and the second visit was to be scheduled to occur during the week of September 26, 2012. Unless the Society had any concerns regarding these visits, access thereafter was to be once a month from Friday after school to Saturday at 6:00 p.m. If the Society had "material" concerns, it was to bring a motion to vary the order. The Society and the Respondent parents were to share the transportation. The order concluded with the following:

The purpose of the period of Society wardship is to enable the parents to demonstrate the extent to which they can maintain stable, suitable housing and engage with needed services for themselves and their children.

[202] A great deal of evidence was presented at trial regarding historical concerns of the Society. While only background in nature, this evidence provided an important context for a review of the Society wardship order and added particularity to the general grounds articulated in the order of September 16, 2011. I will therefore review some of the significant aspects of this evidence.

[203] One of the primary concerns that troubled the Society was the family's transience. The evidence disclosed the following history:

In 2004, the Respondent parents lived in Brampton. In August of that year, the Peel Children's Aid Society apprehended Kz and Kp. The Muskoka Society believe that the Peel Children's Aid Society was concerned at the time about marijuana use in the home and elevated finding of the drug in the blood of Kz. The Respondent parents believe the children were removed because their residence was considered to be a "gay" house where a lesbian couple resided in the upstairs area of the home. The Respondent parents take the position that if there were elevated findings of marijuana in the blood of Kz, those findings must have related to marijuana consumption of the gay couple, not their own.
Kz and Kp were returned to their parents' care in June 2005 subject to a supervision order. Thereafter, the Respondent parents moved to Toronto and supervision of the family was transferred to Native Services of Toronto. Initially, the family lived at a shelter called the Family Residence and then, at some point in time, moved to a townhouse in the Don Mills area of Toronto. A.B. testified that they had to move out of this home when the landlord raised the rent beyond their means. From there, the family moved to an apartment on Parma Court in Toronto. A child protection worker with Native Services assumed carriage of their file in October 2006 when the family was living in this apartment. By this time, the Respondent parents had also had two more children.
The apartment where the Respondent parents lived with their four children in a high rise building on Parma Court consisted of two bedrooms and a living area. Unfortunately, the building was located in what the worker described as a 'dangerous neighbourhood'. In addition, the apartment was infested with bugs. The worker advocated on behalf of the family to have their problems addressed, without success. The apartment was cluttered and the family rarely left the apartment, except to obtain groceries. The worker also assisted the family in looking for alternate accommodation but was again unsuccessful.
In or about April/May 2009, the family changed their residence on two more occasions. They left the apartment on Parma Court and moved into a condominium owned by a family friend for a couple of weeks. From there they then moved to London into the one-bedroom apartment occupied by the maternal grandmother. The grandmother left her bedroom to the parents and slept on the couch, while the four children slept on the floors throughout the apartment. Despite the crowded conditions, the worker for the London Society, who made regular visits, found the apartment to be clean and well organized. Although the living arrangements were to have been temporary, the family was still living there as late as March 2010. In March 2010, however, the maternal grandmother received a notice from her landlord that she would be evicted unless the Respondent parents and their children moved out. On March 9, 2010, in the presence of a police officer, the family moved out. The family left without incident.
The Respondent parents and their four children embarked on a nomadic odyssey over the next five months. After leaving the maternal grandmother’s apartment, they moved into Rotholme, a shelter in London. Upon expiry of the six-week housing limit, they moved into Leeder Place, a community housing shelter located in Holland Landing, Ontario. From there, they moved into the home of a friend of A.B in Barrie, Ontario. The Respondents and their children stayed there for about a month until there was a falling out between A.B. and the friend. After a brief stay at the maternal grandmother’s apartment in London, the Respondents drove to a motel near Alliston, where their truck broke down. After repairs to the truck, they were able to make their way north to the home of the maternal grandfather who lived on the Wahta Reserve near Parry Sound. The grandfather took them to a motel on highway 69, near MacTier, Ontario. By this time, in August 2010, the Muskoka Society was involved and noted several concerns with respect to the living conditions at the motel. The children were apprehended.
For the balance of 2010 and into 2011, L.W. and A.B. continued to reside at the motel and had weekend visits with the children. In December 2010, L.W. received confirmation that she was pregnant with her fifth child. At the beginning of May 2011, she took a bus alone to London to have the baby there and live with her mother. A.B. followed a few days later.

Although the Muskoka Society initially thought that the parents were fleeing and abandoning their children, there is evidence that indicates that L.W. had provided notice, albeit short, to the Society by way of an email to the worker on April 29, 2011. In this email, she set out her plan and provided contact numbers. The plan following the baby's birth was vague however. L.W. and A.B. on one occasion indicated that A.B. was going to return to the Muskoka area to spend time with the four older children and try to find a place to live for the entire family. L.W. was going to do the same in London. Meanwhile, the Respondent parents also indicated to an intake worker for the London Society that they were looking for a "fresh start" in London.

Whether the Respondent parents’ move to London constituted fleeing and abandonment remains a matter of argument. A Muskoka Society worker agreed in cross-examination that the move to London by the Respondent parents had merit in the circumstances. L.W. would move into her mother's apartment, which would be an improvement on the motel, and she would have the support of her mother and the medical facilities in London for her new baby.

However, regardless of the Respondent parents' plan for accommodation prior to the birth of their fifth child, their plan changed with this baby's birth and immediate apprehension. A.B. ended up staying here in London to support L.W. and together they concentrated their search for housing in London.

In August 2011, A.B. and L.W. were able to rent a townhouse on Westminster Drive in London with financial help from A.B.'s parents. This home had three bedrooms upstairs and a fourth bedroom in the basement. It was furnished for the children and equipped with assisting devices for the deaf such as flashing doorbells and smoke alarms. Notwithstanding the fact that the home met with the approval of the London Society, however, this home was insufficient to induce either the Muskoka Society or the London Society to change their positions and consider placing one or more of the children back with A.B. and L.W. Because of the financial strain on their budget caused by the amount of rent payable and with no immediate prospect of getting the children back, A.B. and L.W. moved out of this home at the end of December 2013. They returned once again to live with the maternal grandmother in her apartment, where they stayed until October 2015 when A.B. and L.W. moved into a home on Dreaney Avenue in London. It is a multi-bedroom home sufficient to house all five of the children. As of the conclusion of the trial, the London Society had not yet inspected this latest home.

[204] Transience in any child's life exposes that child to a significant risk of impeded social, educational, psychological and emotional development including academic delay and feelings of insecurity. Confirmation of the disturbing and negative effect of the transience of the Respondent parents on their children occurred in the midst of the family's nomadic journey in 2010. At Leeder Place, her third residence in less than two months, Kz began to urinate spontaneously and uncontrollably beyond bed-wetting. A.B. testified that he and L.W. tried some strategies but this challenge continued even after Kz was removed from their care. Kz's foster father indicated at trial that it took medication and a long time to sort out.

[205] The inability or unwillingness of the Respondent parents to provide a stable and structured permanent home life for the children had other negative and serious consequences for the children. Their school attendance suffered. A.B. admitted that while she was in junior kindergarten, Kz was absent 62 days and late 48 days in one school year. When Kz was in senior kindergarten, there was marginal improvement in her attendance. A.B. admitted that his daughter was absent 51.5 days and late 22 days. Ms. McLachlan, the Native Society worker, recalled that school attendance was an ongoing issue and that she had stressed the importance of regular school attendance to the Respondent parents. Because Kz’s first language was ASL, it is not surprising that Kz also presented with speech and language issues early in her school life. In Kz's report card dated March 2007 in junior kindergarten, her teacher noted that Kz's words were not always clear and that her language development would improve with more opportunities to interact with her peers. Kz was eventually enrolled in speech/language therapy through the school, which would have continued until she had caught up to her peers.

[206] Unfortunately, the assistance Kz was receiving ended when the family moved to London in May 2009. The lack of continuity in their education and the support services they needed was further exacerbated by the Respondent parents not returning their children to school until November. The Respondent parents were unable to provide me with a satisfactory explanation for this serious interruption and delay in the education of their children. Kz took part in another speech/language assessment in January/February 2010 that was completed by the Thames Valley District School Board in London. The findings and recommendations of that report were discussed with A.B. on March 9, 2010. Unfortunately, the family was on the move again by May of that year before the recommendations could be implemented.

[207] A further example of the negative impact the ongoing transience had on the children occurred in June while the family was living in the shelter called Leeder Place in Holland Landing. At the time, the three older children attended Holland Landing Public School. Under cross-examination, A.B. told the court that he had not received a letter dated June 23, 2010 from the principal and the SERT at the school the children attended. The letter outlined behavioural and social issues regarding Kp and indicated that Kz had been referred for speech/language assessment. A.B. had not received this significant letter because he and his family had been obliged to leave the shelter and had moved to Barrie without leaving a forwarding address.

[207]

[208] The frequency and nature of changes in the residence of the children created very real collateral damage in their lives. Not only did the lack of consistency and stability impede their social continuity with a peer group, it repeatedly interrupted important academic and developmental programming that had been arranged to address the special needs of each child. The lack of consistency on their home life corroborates the argument of the Muskoka Society that the children's current social, developmental and academic delays were caused, at least in part, by the extended environmental instability they endured. Both A.B. and L.W. agree that the frequency of their change in residence was not good for the children. A.B. even acknowledged that it was appropriate at the time that the children were taken into care by the Muskoka Society in August 2010.

[209] In addition to the problem of transience and its profoundly negative impact on the children's development, the Muskoka Society grounded their case on two other concerns: dental neglect and the parentification of Kz.

[210] After their apprehension, the Muskoka Society arranged for both Kz and Ki to undergo significant dental treatment to address their dental health issues. The cost of this treatment amounted to thousands of dollars for each child. Both L.W. and A.B. indicated that it had been a challenge to get the children to brush their teeth and they were grateful to the foster parents, who had been able to improve this practice with the children.

[211] I have already referred to the Muskoka Society's concern about Kz's behaviour exhibiting 'parentification' but, in my view, there is no probative evidentiary basis before me that corroborates the Society's opinion. I am therefore not concerned about this facet of their submissions.

[212] In addition to the evidence that has provided both historical and recent context for each of the four children, I also note the following evidence regarding their current circumstances and find that:

the children have lived in stable foster homes while in the care of the Muskoka Society. Kg and Ki have lived together in the same home since September 2010 and Kz and Kp have lived together in their home since April 2011. Both sets of foster parents have told the Court that it is not their intention to adopt the children should they be made Crown wards but that these children are welcome and able to continue to live with them for so long as is needed; and
even though ongoing therapy is essential, the speech/language skills of all of the four children have improved since their apprehension; and
the developmental delays for each child have been intensively addressed both at school and at home but challenges remain, some more significant than others. There is a reasonable prospect that neither Kp nor Ki will ever be able to live fully independently; and
the dental health of all of the children is now positive thanks to the intensive intervention and treatment received from health professionals; and
some of the children have received the benefit of individual counselling and tutoring to meet their needs; and
all of the children have been positively and happily engaged in extra-curricular activities.

[213] I find that both placements have provided excellent shelter and support for these very needy children. The children have derived wide-reaching benefits from their experiences in their foster homes with foster parents who are experienced and equipped to recognize and address their needs. These children have thrived in their respective homes.

[214] Against this backdrop, I also find that the children continue to be in need of protection. The children have now been in the care of the Muskoka Society for over five years but the challenges the children faced at the time of their apprehension continue to exist, although less so, by virtue of the involvement of the foster families and the community.

[215] The evidence also shows that even after five continuous years of respite from the demands of child care, five years of opportunity to acquire the parenting skills necessary to meet the needs of their children, five years of opportunity to acquire long-term appropriate housing and financing, A.B. and L.W. are unable to protect these children, or any of them, from risk.

[216] As I have indicated, a fundamental concern throughout the lives of these children has been the Respondent parents' lack of ability, even with community support, to provide and ensure stable housing for their children. Indeed, until almost the end of the trial, the Respondent parents had no substantive housing prospects. Their plans for the children were contingent on obtaining a house large enough for all of them. In the result, their plans and arrangements for the collateral services for the children, schools, medical, etc., were also contingent on resolution of the housing issue. The parents' plan for the children was therefore both vague and uncertain.

[217] However, a few days prior to the end of trial, A.B. and L.W. were able to secure a house on Dreaney Avenue that was described above. It also has a large backyard which the landlord will fence.

[218] Although the house is an important component of the parents' plan, their financial circumstances call into question their ability to finance such a home in the long term.

[219] Poor financial resources and planning have created serious challenges for the parents in their attempts to acquire suitable permanent accommodation for the children. Both A.B. and L.W. receive ODSP benefits. L.W. testified that she expected that their total monthly allowance from ODSP, including shelter allowance, will amount to approximately $1,988. They do not receive the shelter allowance when they live with the maternal grandmother.

[220] A case worker from the ODSP testified that their maximum monthly allowance, whether the Respondent parents have four or five children in their care, would be $2,079. The family's income would be augmented by the Child Tax Credit and other government benefits. The Respondents' rent is $1,100 per month plus utilities. It is clear, therefore, that the cost of adequate and appropriate housing for the children would consume a considerable portion of the family income. Finances would be stretched very thin.

[221] Aside from a limited income, the family is also burdened with considerable debt. According to the parents' financial statement, they owe approximately $7,000 to the Province of Ontario for fines levied against A.B. for driving related offences; approximately $6,000 to Toronto Community Housing for unpaid rent; and approximately $17,000 to the Canada Revenue Agency. Neither A.B. nor L.W. is making any payment toward these debts.

[222] In addition, A.B. and L.W. owe the paternal grandmother $2,000 for the rent she paid for the first and last months' rent on the Westminster townhouse. The debt to the Salvation Army in the amount of $2,200 for first and last months’ rent on the new home is to be repaid at a rate of $61.11 per month commencing November 1, 2015, for 36 months.

[223] Both A.B. and L.W. recognize this challenge and have testified that they know they would need to find remunerative employment to make ends meet if the children were returned to their care. Unfortunately, aside from the need for education or further skills training, there are hurdles to their opportunity for employment. A.B. testified, for example, that he would like to start a towing business. To do this, however, he would need a driver's licence, which he would not be able to obtain until he paid off the debt to the Province for Ontario in fines. Payment of the full $7,000 owing is unlikely so long as his income is limited to ODSP. A.B. acknowledged that he may have to do something else for work. He indicated that, in the past, he has worked in construction; he has knowledge of computers and has repaired and rebuilt them.

[224] L.W. has no employable skills and has never worked outside the home. She does not have a driver's licence because she feels that she is "not ready." She would like to become a baker but needs more education.

[225] The other difficulty is, of course, that if either parent were employed, their creditors would garnishee any income or savings to pay the debts owed and Canada Revenue Agency would take any tax refunds to satisfy its debt.

[226] The major issue for these parents is what would happen if they were to lose this home, as they have lost others in the past. If the children were in the care of the Respondent parents, they would not be able to live at the maternal grandmother's apartment and, in my view, there is substantial evidence to indicate that A.B. and L.W. would either voluntarily, or through no fault of their own, be obliged to resume a nomadic existence with their children. Consequently, the fact that A.B. and L.W. now have a house at this late point in time offers little if any comfort that the current arrangements for accommodation are sustainable and/or would be sustained by A.B. and L.W. Their current housing arrangement provides these children with no assurance of stability in light of the decisions they have made, their conduct and their residential history to date.

[227] The lack of responsible parenting conduct by both A.B. and L.W. in the lives of their children also causes grave concern. While both parents have acknowledged that they could have done things better in the past, their evidence at trial also revealed less than complete acceptance of responsibility for their circumstances. Both Societies were a target for the Respondent parents' criticism and resentment. But other groups were blamed as well. A.B. often blamed what he called the "system." He attributed the children's poor dental health, for example, to the fact that only 'sugary' drinks were available while they were resident at the Rotholme shelter in London.

[228] In the initial Statement of Agreed Facts that was filed in this trial, A.B. indicated that he had spoken to a worker from the York Region Children's Aid Society while they were staying at Leeder Place. A.B. had admitted that he and L.W. had, in fact, left London with the children in 2010 for many reasons, including what he perceived as a lack of available services. He felt that London was not a good place for his family; the children and their schools were not a good match; the school and the London Society were not as helpful as he would have liked; and he had not been receiving the child tax credit because of a miscommunication with the Canada Revenue Agency regarding the non-filing of his income tax forms for the previous two years.

[229] I also find that A.B. and L.W. lack anything akin to the type of family, social and community support system they would need firmly and consistently in place to be able to begin to parent some or all of these children and meet their needs. L.W. has no siblings. Her parents have been separated since she was a young child. She is estranged from her father. The last contact with him was in 2010, at the time of the initial involvement of the Muskoka Society and that experience only drove them further apart.

[229]

[230] L.W.'s mother has provided them support over the years; however, her health has been failing in recent years. She is also reliant on ODSP benefits and is not financially able to provide any meaningful support. During her evidence, L.W.'s mother commented more than once that while A.B. and L.W. were living with her, they kept to themselves and shared little of their private life.

[231] A.B.'s parents live in the Greater Toronto Area and are separated. Both of his parents provided financial support to assist with the rental of the Westminster townhouse in August 2011 but that contact seems to be the last meaningful contact between them. During his testimony, A.B. indicated that his mother would not be testifying in the trial because, although she would be supportive, she did not want to get involved in "Children's Aid Society" issues. Just prior to the end of the trial, however, I was informed that she was indeed going to testify. Unfortunately, shortly after this, she suffered a heart attack and was not well enough to testify before the end of the trial.

[232] A.B. has three siblings: one who lives in Tobermory and two others who live in the Greater Toronto Area. A.B. testified that, over the years, he and his family members would get together for family gatherings. There is no evidence of ongoing contact, however, and L.W. testified that they had not seen A.B.'s siblings since April 2011, when A.B. lost his driver's licence. Although A.B. believes that his family members could provide support, this appears to be more a hope than a reality.

[233] But for the evidence of some limited family support to which I have referred in general, the Respondent parents appear to have no discernible social network of friends or contacts in the community. The maternal grandmother described L.W. as a "loner." L.W. said she had a few friends in MacTier but has since lost contact with them. She has no friends in London. L.W.'s mother testified that L.W. had no one over to the apartment and 90 percent of the time L.W. and A.B. would go out together. She testified that A.B. did have friends over and he went out on his own sometimes but none of these friends were called as witnesses. Unfortunately, L.W. and A.B. also have little involvement with the deaf community in London. According to a worker for the London Society, A.B. had explained this was because they did not like the "drama" in that community.

[234] A.B. and L.W. have lived together for 14 years. A.B. is 43 years of age and is 10 years older than L.W. It was quite evident during the trial that, of the two parents, A.B. has the dominant personality. During his testimony through the ASL interpreter, A.B. impressed me as outgoing, articulate and intelligent. He is a proud man. He is proud of his family. He is proud to be Deaf and, by that, I mean part of the deaf community.

[235] A.B. is also protective of his family. When Kz misplaced a bottle of suntan lotion, for example, she and her foster father returned to the motel to look for it. When they could not find it, they returned to the truck. A.B. stood in front of the truck and angrily signed to Kz's foster father. He was concerned that his daughter was going to get into trouble for something trivial. More significantly, he felt that Kz was being used as an intermediary and that the foster father should have gone directly through him. A.B. is especially sensitive to hearing people using the children as interpreters instead of dealing with him directly.

[236] A.B. is also protective of L.W. During the trial, he stood up in the courtroom and objected to certain questions being asked of her during cross-examination. He also shielded her from uglier events in their lives. He did not tell her, for example, about the nature of the argument he had that precipitated their eviction from his friend's home in Barrie. L.W. only understood that the friend wanted to leave her husband, and A.B. wanted to stay out of it.

[237] On another occasion, A.B. did not disclose to L.W. the nature of conversations he had with the police regarding an incident involving a Mr. Windsor. She was kept unaware that A.B. had been arrested for assault and taken away to be processed.

[238] Dr. Preston, the expert from California referred to earlier, described how some deaf people can fall into one of two categories when dealing with the hearing world. On the one hand, they can be submissive, smile and go along with whatever they are being told without fully understanding what is being said. On the other hand, they can be mistrustful and suspicious.

[239] In my assessment, A.B. fits squarely within this description. Over the course of the trial, for example, A.B. questioned on numerous occasions the integrity of interpreters they encountered to interpret in an impartial manner; the intentions of the child protection workers; and the conduct of the foster parents. He presented as mistrustful of most of those people around him who were involved in the care and decision-making process regarding his children.

[240] Even the judiciary were not spared. On December 14, 2012, Mitrow J. issued an order that access to Kh, in London, be supervised at the discretion of the London Society. Access went from 18 hours per week, unsupervised, to 2 hours per week, supervised. During cross-examination by OCL counsel, A.B. testified that he did not understand why access had been restricted. He felt that there was “something funny going on here” and believed that there had to be collusion between the judge and counsel for the London Society. Although he could produce no evidence of collusion, A.B. did not resile or otherwise temper this view under re-examination by his counsel.

[241] On the other hand, it is also clear that when A.B. was able to trust someone, he was also able to work with that person. This attitude was confirmed by Winsome McLachlan of Native Services, who described the constructive working relationship she maintained with the family over the three years she worked with them in Toronto.

[242] I accept the evidence and also find that A.B. is unable to control himself in stressful situations. On numerous occasions, for example, he had to be told to calm down in the court room. He would often either inappropriately stand up as in an outburst and sign an objection or, while sitting, sign a comment. I was obliged to remind the interpreters that all signs needed to be interpreted into oral communication such that, if spoken, the words uttered would have been heard in the court.

[243] A.B.'s mother-in-law confirmed that A.B. gets upset once in a while, at which times she just lets him calm down. She said she is not afraid of him and observed that "we all get upset."

[244] A.B.'s temper was the subject of a number of incidents described by the foster parents in the Muskoka area. I do not intend to review those events in detail but make the following observations on the basis of all of the evidence before me:

A.B. has a temper that he finds difficult to control from time to time and appears to become more readily frustrated than might otherwise be the case but his conduct does not seem capricious in nature. The overriding source of his excitability appears to be his sense of pride and/or his sense of injustice.
A.B.'s counsel suggested that certain gestures while signing could be misinterpreted as displays of anger. After having had the opportunity to observe ASL interpretation over a lengthy period of time, I am able to appreciate this observation. Dr. Preston confirmed the possibility of emotional misinterpretation in his testimony. By the same token, I do not believe that deaf people are any less prone to anger than the general population.

[245] Notwithstanding the length of the trial and the volume of evidence before the court, L.W., however, remains an enigma. A.B. described her as "meek" and "sweet." L.W.'s mother said that L.W. is shy and keeps to herself. L.W. acknowledges that she is quiet and is quite prepared to leave the "heavy questions" to be dealt with by A.B. That said, the evidence also showed that she was caring and nurturing with the children. Further, despite her shyness, most email communication with the workers was done by her. L.W. admitted to having esteem issues and indicated that she would be interested in taking a course to improve her self -confidence.

[246] Consistent with her nature, L.W. also found testifying to be a very difficult and stressful experience. On several occasions, she required time to compose herself. She would panic and break down if her memory failed her. Her composure, however, improved with the introduction of the deaf interpreters.

[247] Child protection workers have testified that they have been concerned about the apparent imbalance in the relationship. I share that concern.

[248] L.W.'s mother indicated that A.B. does not dominate her daughter and that they do discuss things together. L.W indicated, however, that she does not have much to say but, when she does, A.B. "permits" her to express her views.

[249] I was also struck while A.B. was testifying by the repeated use of the singular pronoun "I" when speaking about his family rather than the shared concept of "we." He appeared to have assumed most of the household responsibilities, including contacts with the outside world, such as schools and doctors, during the course of their family life. He simply described his relationship with L.W. as "OK."

[250] In contrast to A.B.'s approach, L.W. used the pronoun "we" in her descriptions of similar situations. She told the court that family responsibilities were shared equally and that she and A.B. were a good team. L.W. described A.B. as a nice man, a funny man and a good father, who cherished his children and was protective of them all.

[251] For all of these reasons, and taking into account all of the evidence before me, I am satisfied that the Muskoka Society has proven on a balance of probabilities that the children continue to be in need of protection.

THE APPLICATION BY THE LONDON SOCIETY

(a) Is the Child, Kh, in Need of Protection?

(i) The Position of the London Society

[252] The London Society seeks Crown wardship of the child, Kh, without access. The Society argues that Kh is in need of protection and that the only order that is in the child's best interest is the one sought.

[253] Because Kh was apprehended at birth, the Respondent parents have had no opportunity to parent Kh aside from access visits. Consequently, the London Society's position is based partially on the evidence of the Respondent parents' deficiencies in parenting their four older children, who are in the care of the Muskoka Society.

[254] The London Society relies on the family's history of transience, much of which is admitted, and the negative impact of this issue on the development and welfare of the children. Even the housing that they did have was crowded and/or maintained in deplorable conditions: the apartment on Parma Court was bug infested; the maternal grandmother's apartment had only one bedroom; and the Avon Motel was isolated and wholly inappropriate.

[255] Aside from past experience with the four older children, the London Society points to the parents' poor performance in the London Therapeutic Parenting Programme (the TPP) which only confirmed the concerns the Muskoka Society had conveyed to it. The risk of harm is pervasive: A.B. does not recognize the parenting and lifestyle issues and has adopted the attitude that, as long as the children are with them, all will be fine. L.W. has difficulty coping. But aside from conceding they moved around too much, she believed that there was nothing wrong with the way they were raising their children.

[256] A.B. and L.W. exhibited a number of difficulties in parenting that were unrelated to their deafness. The most concerning was their lack of good judgment with respect to the welfare, health and education of the children. Any future planning consisted more of aspiration than reality. If there were difficulties, the Respondent parents blamed someone else.

[257] A.B. and L.W. require lots of support but, even with those supports in place and in service, these parents lack the skills necessary to raise this child, including the provision of a safety net when things go awry. They are isolated and have no friends. There is only very limited support from family.

ii) The Position of A.B. and L.W.

[258] The Respondent parents submit that the apprehension of Kh was based on erroneous and exaggerated information from the Muskoka Society, which has led to disastrous consequences for Kh.

[259] They stress that the move to London in the late days of L.W.'s pregnancy was carefully planned. Prenatal care, appropriate accommodations and proper equipment for the child's arrival were all organized. In addition, the Muskoka Society had been informed of the plan.

[260] After the apprehension of Kh, A.B. and L.W. had generous unsupervised access of 18 hours per week. This allotment of time with their child provided plenty of time for Kh to bond with them. It is their position that, throughout these visits, there were no parenting concerns.

[261] The Respondent parents submit that they believed that their participation in the TPP was not for the purpose of being assessed but rather for the purpose of improving their parenting skills. Their involvement in this program was not considered by them as a replacement for a parenting capacity assessment. In any event, from their perspective, the TPP had many deficiencies. The workers/supervisors had little insight, for example, into deaf culture; an ASL interpreter did not attend with them all day and there was little "therapeutic" about it as the complaints were considered to be trivial.

[262] A.B. and L.W. also stress that their attendance at access visits has been consistent and positive. The reports of the access supervisor are positive. In particular, the supervisors noted displays of physical affection and signing between Kh and his parents.

[263] Further, they argue, there is no evidence of addictions, mental health issues or domestic abuse. In respect of Kh, there have been no clear instances of neglect.

[264] A.B. and L.W. submit that Kh should not have been apprehended in the first place. They point to erroneous and exaggerated claims in the information the London Society received from the Muskoka Society, including the following:

a) that given the history of the family's flight from jurisdictions soon after various Societies became involved, the family was attempting to flee the Muskoka Society at this time as well;

b) that none of the children had attended regular, formal schooling;

c) that all four of the older children were displaying developmental delays;

d) that the oldest child was acting as a parent and was panhandling for money;

e) that the parents owe $6,000 for housing and, as such, are no longer eligible for assistance with housing;

f) that the family has moved several times and has been evicted from various residences for unknown reasons;

g) that most of the children's meals consisted of bread and soup when they lived with their parents;

h) that the parents failed to attend a number of specialist appointments for Kz; and

i) that Kz was diagnosed by a physician as "a failure to thrive" baby.

[265] A.B. and L.W. submit that the apprehension of Kh was clearly overreaching and request that he be returned to their care.

(b) Analysis

[266] Before proceeding further, I hereby make all of the statutory findings required by the CFSA regarding Kh as set out in paragraph 1 of the Application, in addition to the information contained in his birth certificate which is in evidence.

[267] I also have no difficulty finding that Kh is in need of protection. I make this finding for several reasons.

[268] A real consequence of apprehending a child at birth and, as in this case, never returning that child to the care of his/her parents, is that there is no historical or even current evidence of how the parents interact with this child. In these circumstances, the court must usually turn to the parents' past parenting skills and care of other children to assess their skills and other relevant issues regarding their future parenting of this child. There is a commonly stated truism that past behaviour is a reasonable predictor of future conduct. While there are cases in which people have been observed to change their behaviour, such as ending a cycle of addiction, for example, it is my opinion that the truism is applicable in the present case.

[269] On September 16, 2011, the court found the Respondent parents' four older children, who were in their care, to be need of protection pursuant to s. 37(2)(b), (g) and (l). In my analysis regarding the Muskoka case above, I elaborated upon the grounds for this finding, as disclosed from the evidence that was elicited at this trial.

[270] That finding, the historical evidence upon which it was based, and my finding that those children continue to be in need of protection based on the evidence before me also satisfy the onus on the London Society to prove that the youngest child, Kh, is also in need of protection.

[271] My reasons for finding the four older children in continued need of protection apply equally to Kh. I recognize that Kh does not exhibit any of the delays or needs of his siblings to the same extent and therefore would require fewer supports and parental attention. However, I also observe that he has never been parented by the Respondent parents. I also decline to draw an inference, however, that there is a nexus between the limited challenges experienced by Kh and his apprehension at birth.

[272] That said, Kh's foster mother testified that, although Kh did have some early speech delays, Kh has caught up to his peers in speech and language as a result of intensive effort and intervention on her part. I am satisfied that Kh would not have experienced such development, progress and success had he remained in the care of A.B. and L.W.

[273] With respect to the submissions of the Respondent parents in support of their argument that Kh ought not to have been apprehended in the first instant, I agree that there is no evidence of a history of flight by this family.

[274] I also agree that the evidence did show that the four older children did attend formal schooling. However, as I have already stated, their school attendance was highly problematic and contributed to the children's delays. It has been well documented that the four older children suffer delays to varying degrees. This was a basis of the order of September 16, 2011.

[275] I have also addressed the Muskoka Society's allegation of parentification of the oldest child and have dismissed this allegation as a concern. Further, there was no probative evidence that Kz was involved in panhandling and I therefore dismiss that allegation as a concern.

[276] According to the Respondent parents' Financial Statement, they owe at least $30,000 to various entities.

[277] Contrary to the allegation by the Muskoka Society that $6,000 of this amount is owed to Community Housing, the Respondent parents assert that this money is owed to a private landlord. But the only probative evidence as to the actual identity of this creditor is in the parents' own sworn Financial Statement which refers to "Toronto Social Housing" as a creditor. I therefore find that the creditor in this case is a community housing authority. Regardless of the identity of the creditors, carrying so much debt would make, as A.B. acknowledged, relocation difficult.

[278] A.B. and L.W. have testified that they were not evicted from any residence they occupied with their children.

[279] In my view, this position is a technicality. The evidence of long-standing transience by this family is clear and overwhelming. While they were living at Parma Court, the Respondent parents did not pay their rent for three months. If, as they assert, they were not in fact evicted, I am satisfied that they would have been within the near future in those circumstances. In addition, the Respondent parents were evicted from the maternal grandmother's apartment in the presence of a police officer; they had to leave two shelters after the limit of their stay expired; and they were evicted by their friend in Barrie. Although A.B. and L.W. moved out of their Westminster townhouse on proper terms, their overall housing record does not commend itself with respect to their care, support and parenting of their children. There was also some evidence that the family did not eat well.

[280] While the referral was incorrect in describing Kz as having a heart condition, there was evidence from A.B. that, while living in Toronto, he and L.W. were late or missed appointments for their child, Ki, at Sick Children's Hospital. I do accept their explanation as to why Ki's appointment in August 2010 was missed.

[281] There is no direct evidence of a diagnosis of failure to thrive regarding Kz but this allegation by the Muskoka Society was not seriously challenged by the Respondent parents.

[282] In summary, while I agree that some of the information communicated by the Muskoka Society to the London Society was erroneous, I find that the core of the information that was relevant to the basis on which the youngest child was apprehended was correct. The problems of transience, the lack of commitment to consistent schooling, the medical and health issues faced by the children, their social, emotional and academic delays and their diet formed sufficient grounds for the apprehension of the youngest child. I find, therefore, that the apprehension was proper and not overreaching.

[283] In addition to the historical information and evidence regarding the Respondent parents and this family, the London Society placed great weight on the outcome of the TPP. Although I have already found Kh to be in need of protection on the basis of the evidence before me, it is appropriate to consider the evidence concerning this programme in the context of this case.

[284] The TPP (since terminated at the London Society due to lack of finding) was a program of 12 weeks' duration for participant families and was comprised of both therapeutic and attachment components.

[285] A.B. and L.W. attended the programme from September 10, 2012 to November 28, 2012. The stated goals while attending were: (a) to pick up on Kh's cues; (b) develop a routine structure; (c) develop an attachment relationship; (d) learn to be available for Kh emotionally and physically; and (e) learn to participate in and enjoy play time with Kh.

[286] A.B. and L.W. were to arrive at the location of the programme 15 minutes ahead of the scheduled start time of 9:00 a.m. Kh would then arrive and stay until 11:30 a.m. A 30-minute debriefing meeting with the pair would then follow. After six weeks, the time would be expanded so that Kh stayed until 4:00 p.m., followed by a debriefing session. This schedule covered three days a week over the length of the programme.

[287] Anna Gavan, the lead worker in the programme, testified that this plan was all laid out to the parents at a meeting on February 28, 2012 in the presence of an ASL interpreter. For this programme to be successful, it was essential that A.B. and L.W. want to attend. Ms. Gavan indicated that they understood both the nature of the programme and what was expected of them.

[288] Attendance was mandatory and the Respondent parents were made aware of this requirement. Ms. Gavan reported that L.W. attended 27 and A.B. attended 25 of the scheduled 34 sessions. Most of the missed sessions were due to the parents' visits with the four older children in Muskoka. In addition, A.B. was late on occasion because he was attending an upgrading course at Fanshawe College.

[289] Shortly after its completion at the end of November, the London Society returned to court and, by order of Mitrow J. dated December 14, 2012, access was changed to supervised in the discretion of the London Society. The effect was to change the unsupervised access that the parents had been enjoying for 18 hours per week prior to their involvement in the TPP, to supervised access for 2 hours per week after engagement in the TPP.

[290] Supervision notes were taken during each session of the TPP. These notes were intended to track trends, positive or negative, in the parents' parenting skills. Over the course of the 12 weeks, A.B. and L.W. displayed both positive and negative parenting skills. One supervisor summed up their progress by saying they "were consistently inconsistent." There were hugs and kisses for Kh on arrival, for example, but at other times the child was ignored. On one occasion, Kh arrived feeling unwell. Rather than giving his child comfort, A.B. chose to engage in a long discussion regarding why the child was there at all.

[291] The supervisors in the programme found that the parents' participation in child-led playtime was also inconsistent. Mealtime was unstructured and routine, which is important to a child of 18 months, was not followed on a regular basis. In addition, Kh was left alone by both parents, thereby undermining his sense of security. A.B. justified this conduct by saying that Kh needed to learn independence.

[292] The supervisors also cited several safety concerns for the child while in the presence of the parents. On one occasion, L.W. placed Kh in a crib that was intended for infants with mattress adjustments that were set too high for a child of 18 months who could climb. Even though the worker cautioned L.W. about this risk, L.W. left the room to work in the kitchen. The worker remained in the room with Kh until L.W. returned. On another occasion, there was the "choking" incident, more details of which will be reviewed below.

[293] According to the supervisors in the programme, the dispositions of the parents were a study in contrast. L.W. was described as emotionally flat. A.B. conceded to the worker that L.W. was like this which, he thought, might explain why the three oldest children felt closer to him. A.B., on the other hand, demonstrated behaviour that was both aggressive and defiant.

[294] The evidence regarding this programme and the observations of the supervisors regarding the Respondent parents would not, in isolation, found a basis for making a finding that Kh is in need of protection. In my opinion, there are several factors that would compromise the integrity of any negative inferences to be drawn regarding the evidence of the parents' involvement in the TPP by reasons of the particular factual circumstances of this case:

a) The Respondent parents had a different understanding from the London Society with respect to the purpose and nature of the programme. The London Society saw it as having instructional and assessment components. Instruction would be attachment focussed, which is important to child development. The programme intended to foster a secure attachment between child and caregiver by encouraging trust and reducing anxieties. Specifically, parents are taught to be sensitive and respond to a child's cues when the child is in distress or in pain or hungry. The parents are taught to give comfort or food or to calm or reassure the child, as may be necessary. The parents, on the other hand, while accepting an instructional component, did not anticipate the assessment component. It put them on the defensive and it bred resentment.

b) According to A.B., the Respondent parents were reluctant participants. They felt forced into the programme, which immediately undermined the requirement that the parents be willing participants. L.W. and A.B. agreed to enter the programme because of "Therapeutic" reference in the programme's name. They thought they might learn something about parenting.

c) Almost from the start, problems arose. The instruction provided was not the type of instruction the Respondent parents had anticipated. A.B., in particular, resented what he believed to be the judgment/assessment part of the exercise. They do not appear to have fully understood or appreciated what the attachment approach in the instruction entailed. Unlike hands on instruction, for example, regarding food preparation or even child development, the issue of attachment is based on abstract principles. Unless a person fully understands these principles and the goal of attachment, some instruction may well seem "silly," as A.B. described it. In the end, neither parent found anything "therapeutic" about the programme. They said that the only thing they learned was that flavoured drinks could affect a child's development.

d) The misunderstanding by the Respondent parents was aggravated by poor communication. In this regard, I find that both the London Society and the Respondent parents must bear responsibility for the impediments to effective communication.

Prior to commencement of the programme by the Respondent parents, the London Society retained Dr. Cathy Chovaz, a clinical psychologist affiliated with King's College at Western University. Dr. Chovaz also testified at trial as an expert on deaf culture. Dr. Chovaz advised the London Society, and specifically the TPP workers involved with the Respondent parents, about deaf culture and how to work with deaf people in order to maximize both the benefits of the instruction and achievement of the goals of the programme.

One of her critical recommendations was to have an ASL interpreter present at all times the Respondent parents were in attendance at the programme. For whatever reason, this recommendation was not implemented. Rather, an ASL interpreter was made available at the beginning of the session and during the debriefing meetings only. Unfortunately, there were days when the interpreter was not present at all. This lack of resource and assistance had unfortunate consequences. "Teachable moments" were missed. The Respondent parents may have been afforded a better understanding of how to participate in child-focussed play or picking up the child's cues.

The postponement of debriefing meetings to the next day had the same effect. With the assistance of an interpreter present all day, there may have been a greater readiness to reinforce the positive aspects of the parenting rather than so much focus on the negative. Further, the presence and assistance of an ASL interpreter may have alleviated A.B.'s fundamental mistrust of the London Society, which manifested in his anger and frustration. A.B. entered into the programme with a largely closed mind. The underlying misapprehension as to the nature of the programme, combined with the fractured communication, was toxic. This was most evident in the "choking incident."

Kh had arrived at the TPP on the day in question, sick with a cold. His nose was runny and he was congested. He was sitting in a high chair eating a sandwich. His parents were seated at a table close by, watching him. According to one of the workers, who was also close by, she heard Kh breathing but the sound then stopped. She was concerned that Kh was choking, so got up to help. A.B. stood up and prevented her from advancing toward Kh and blocked her view of the child. A.B. then gestured to the worker, which she understood as him telling her that he has five children and that he knows what he is doing. In any event, whatever discomfort the child was in, passed quickly; Kh coughed and that was the end of his issue. Hard feelings persisted, however, for the balance of the programme. No interpreter was present or made available for this visit. A.B. made no apologies for his conduct toward the worker during a subsequent meeting. He said that it was only a little cough and that Kh was not choking. In any event, Kh had to learn not to put so much in his mouth.

This event did not occur in a vacuum. A.B. and L.W. had been repeatedly asked to break up the child's food. A.B. had been asked to cut grapes in half. He did not understand why he should do so, even though it is common knowledge that failure to do so creates a choking hazard for a child of this age.

It was in this context that the worker reacted when she thought that Kh had stopped breathing while eating. I do not find that her reaction was either inappropriate or an over-reaction, as described by A.B. She was responding to the change in the sound of the child's breathing, which A.B. would not have detected even if he were watching the child. A.B.'s reaction, although perhaps understandable, was not helpful. This was not the time for an assertion of parental authority over this child. For A.B. to refer to the fact that he has raised five children begs the question with respect to why he would intervene in the case of a perceived potential emergency.

That having been said, the presence of an ASL interpreter would have greatly assisted in communication, which in turn would most likely have diffused the tension. While such assistance may not have prevented the momentary reactions of the parties, it may have permitted the parties to at least communicate more effectively with each other at the time.

This incident left a bitter after-taste. Dr. Chovaz attended a visit (for which an ASL interpreter was present) about three weeks after the event. She described the workers at the meeting as professional but the atmosphere was "frosty." She also sensed some negative history between the parties and, when the workers began to talk about food sizes, A.B. became angry, put his hat down and left the table.

e) Another factor of concern is that on two occasions Kh was delivered to the programme when he was ill. On the first occasion, he had a heavy cold and, on the second occasion, he was covered in a red splotchy rash. According to the programme's protocol, supervisors insist on a child being delivered to the programme site, even when the child is sick, in order to assess how the parents care for a sick child. The basis for this protocol is that parents have to contend with illness, in any event, if the child is returned to their care. While I may accept that in principle, there comes a point when the child is just too sick. Interestingly, while the Respondent parents and foster mother agreed on little in their evidence at trial, they all questioned the London Society's position with respect to the requirement to send the child even if ill. The foster mother refused to send Kh to the next session.

Even in these circumstances when Kh was sick, the Respondent parents were criticized for taking Kh outside in a stroller. The Respondent parents thought that fresh air would help their son but, in the estimation of the worker, Kh returned even more ill, which she blamed on the decision of the Respondent parents to take him outside. The validity of this criticism would be difficult to ascertain. There was some belief Kh had 'croup' and it is a commonly held belief that fresh cold air actually helps mitigate its symptoms.

f) It is interesting that a programme with a focus on attachment was recommended when there was no indication from the Muskoka Society, which had the Respondent parents' four older children in care at that point, that any of those children suffered from an attachment disorder. In fact, all the workers have acknowledged that this was a loving and affectionate family.

g) Finally, any decision based on an assessment from a programme like the TPP should be approached with some caution. I acknowledge that every effort was made to reflect reality in a superficial environment. However, the fact remains that the environment in which the Respondent parents were asked to participate and were observed was both artificial and unfamiliar to both the child and his parents.

Rules were imposed that no doubt assisted the assessors and facilitated instruction. For example, much to the parents' objection, there was to be no additional access beyond the schedule set out in the programme in order to avoid outside influences that may impair any efforts made in the programme. The TPP was more regimented than real life. The parents were to arrive 15 minutes before the child. This gave them time to get organized and to be ready to greet the child when he arrived. While the greeting is an important and sometimes revealing part of the exercise, it is also somewhat artificial. This is not to say there is no merit to programmes like the TPP but only to say that conclusions about the participants should be tempered.

[295] On the basis of all of the evidence before me, and for the reasons given, and in consideration of all of the legislative factors set out in the CFSA, I find that the child, Kh, who is currently in the care of the London Society, is in need of protection.

THE DISPOSITION

[296] Having found all five of the children in need of protection, the next step in the analysis is to determine the disposition that is in the best interest of each of the children. The options are stark: either an order of Crown wardship with or without access; or an order that returns the children to A.B. and L.W. subject to a supervision order. Strictly speaking, a further option available to the court is to return the children to the Respondent parents without terms or conditions but that claim was not strenuously advanced by the parents. Under the circumstances, this third option has no merit.

[297] Of the two viable options, the decision is to be made in the best interests of the children. Each child is entitled to a determination individually in the context of his/her needs and interests. In other words, each child could have a different outcome.

[298] During argument, I asked counsel for both the parties if I am being asked to consider the same outcome for the children taken as a homogeneous group or individual or different outcomes for each child. The London Society is concerned only with one child, rendering the point moot in Kh's case. The Muskoka Society seeks a Crown wardship order for all four children in its care. The Respondent parents seek a return of all five of their children but, in the alternative, would take whatever children are returned. As one might expect, they were not prepared to select which children. Their counsel reasonably expressed the fear that if some were selected and some not, there could be emotional and psychological repercussions for those not chosen. Basically, they would ask themselves "what's wrong with me?" I acknowledge the unfairness of that issue and did not press further.

[299] I have considered all the needs and best interests of each individual child and I have been unable to determine any rational criteria on the basis of all of the evidence elicited at trial that would change or distinguish the outcomes for all five of these children.

[300] I note that considering the evidence from the children's view, they all love their parents equally, they all wish to go home and they all have special needs of varying degrees. The evidence from the perspective of the Respondent parents is also consistent with respect to their love for all of their children and their desire to have all of their children home. The respective positions of the Societies do not advocate different results for any of the children.

[301] I will now then move on to the disposition analysis. The starting point is s. 57 of the CFSA. The relevant sections are:

Order where child in need of protection

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

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.

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.

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.

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.

Court to inquire

(2) 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.

Less disruptive alternatives preferred

(3) 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.

Community placement to be considered

(4) 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.

Terms and conditions of supervision order

(8) 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.

Where no court order necessary

(9) 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.

[302] Again, because of the expiry of the timelines pursuant to s. 70, there are only three viable alternatives: Crown wardship; returning the children to the Respondent parents subject to a supervision order; or returning the children to their parents without any further order pursuant to s. 57(9). I have already excluded the last as a serious option.

[303] While the parents presented a draft supervision order that was comprehensive and reflected a serious attempt to address all concerns, I do not find it would provide adequate protection to the children.

[304] On the basis of all of the evidence before me, I find that an order for Crown wardship for all five of the children in this case is in the best interests of these children. I do so for the following reasons.

[305] Section 57(1) states that any disposition must be made in the children's best interests. As outlined earlier, when determining best interests, the courts are directed to take into account the considerations in s. 37(3) and s. 1 of the CFSA. With reference to s. 37(3), the factors are neither inclusive nor determinative of themselves. The weight of each depends on the facts of each case with a steady eye on the paramount purpose set out in s. 1(1).

[306] In the discussion that follows, some of the sub-points of s. 37(3) will be blended together, for example 1, 2, 11 and 12. Others, for example 3, regarding cultural background, will be dealt with discretely.

[307] The first and foremost consideration concerns the children themselves. Four of the five children, the ones who were initially in the care of the parents, have a variety of needs that over the years have required intensive interventions. Two of these children, Kp and Ki, are unlikely to ever become fully independent adults.

[308] I have determined that the fate of the children cannot be differentiated from one to the other. This is especially so with respect to the four children in Muskoka. The reasons for my order for Crown wardship also reinforces the conclusion that none of the children should be returned to the parents' care. My reasons are presented in this context.

[309] At this stage in their lives, when they have been in care for over five years in the case of the four older children, and almost five years in Kh's case, all of the children both individually and collectively need certainty, predictability and stability. They need permanency. Their fates have been hovering in a twilight zone of uncertainty for much too long. All other factors pale in comparison.

[310] I have concluded that the Respondent parents, even with a comprehensive supervision order, are unable to reliably provide a certain, predictable and stable plan for any of these children, either singly or as a group. Of the two possible dispositions, Crown wardship is the only answer that meets the needs and the best interests of the children now.

[311] Different choices could perhaps have been made at an earlier stage but that is a matter of speculation. I am required to make this decision now on the basis of all of the evidence before me and in the context of the current circumstances of the children. These circumstances require that the children have permanence and stability in their environment and committed, consistent, extensive and long term emotional, academic and social support. There is no time left for experimentation. Best intentions are insufficient.

[312] Dr. Dundas, the psychiatrist from Sick Children's Hospital, described the children's ideal caregiver as one who is consistent, has the ability to work with professionals, is able to meet the needs of the children at home and is able to provide a predictable environment.

[313] I find that the Respondent parents do not meet this standard for the following reasons. Some of the reasons echo the same grounds for finding the children in need of protection.

[314] With reference to sub-points 1, 2, 11 and 12 of s. 37(3) of the CFSA, dealing generally with the parents' ability to meet the needs of the children, A.B and L.W. have been involved with various Children's Aid Societies since 2002, shortly after the birth of their first child. Their erratic housing record, particularly from May 2009 onwards, landed them in their current circumstances. Other concerns arose from there. That said, I agree with the parents that housing is an important feature of any plan the parents would put forward.

[315] In the closing week of trial, the parents took possession of a home. Although the London Society was not able to inspect it before the end of trial, I will accept that there are sufficient bedrooms for everyone and it is appropriately equipped with deaf assistive devices. The only immediate concern is the lack of fencing in the backyard but the parents say that the landlord has undertaken to install one in the spring. There is also no information regarding the tenants in the other half of the house.

[316] Getting and keeping a house, however, are two different issues. The critical question is can the parents retain the home for any length of time? The parents argue that they were able to maintain the townhouse on Westminster for two and a half years. They managed it despite not having the children and the additional income from ODSP and the Child Tax Credit. It is their position that they are able to provide appropriate housing on a permanent basis.

[317] I disagree. As discussed above, there are serious concerns regarding the parents' ability to keep their home. It is a lot easier for two adults to live frugally than two adults plus four or five children with a variety of needs. Accommodation costs are eating up over 50 per cent of the family budget. Income will be supplemented with the Child Tax Credit and possibly Disability Tax Credits for Kp and Ki. However, the parents owe the Salvation Army $2,200 for the first and last months' rent on the new home. This debt is being repaid in the amount of $61.11 per month starting November 1, 2015 for 36 months. In addition, A.B. testified that he is paying his parents $100 per month in repayment of various advances of money, including the $2,000 from his mother for the first and last months' rent on the townhouse on Westminster.

[318] It is apparent that, however frugal A.B. and L.W. may be, their budget will be exceedingly tight at the expense of adequate and appropriate care of the children. The rent and utilities may get paid, but at what cost? Food and/or programming and/or activities of the children will most likely have to be sacrificed to a greater or lesser extent depending on the expenses for the month. Sufficient nutritional food and the maintenance of a healthy diet is critical for these children. Diet, sadly, has been an issue with these parents in the past. Any non-funded or subsidized programming such as tutoring or activities would most likely have to be discontinued.

[319] Against the backdrop of limited income, there was also evidence of ongoing budgeting challenges. The Respondent parents indicated that when they were living with the maternal grandmother, they were contributing about $200 per month towards their expenses. The months when they went for access visits in Muskoka, they did not give the maternal grandmother any money. She was under the misapprehension that the parents needed the $200 for transportation and accommodation for these visits. It was not until at trial that she learned that the Respondents' expenses to see their children were covered by the Muskoka Society pursuant to a court order. In any event, the expenses for these children would have been minimal, especially on those days when the foster parents sent bagged lunches for the children.

[320] There was also evidence of questionable budgeting priorities. The evidence disclosed that A.B. had been smoking marijuana just prior to the sibling visit of his children in March 2015. In cross-examination, A.B. admitted to smoking marijuana one to three times per week and that he had been smoking marijuana for 27 years.

[321] The evidence disclosed that the cost of this habit is approximately $25 a week or just over $100 per month. Aside from any other concerns there might be about this frequency of use, $100 per month would have an impact on an otherwise lean budget. A.B. testified, however, that the money never came from his ODSP benefits payment. Whether it came from ODSP or earnings he generated from fixing computers or other employment, those funds could have been put to better use for the benefit of the family.

[322] It was interesting to hear L.W. testify about this issue about three months later after A.B. She said that A.B. had quit smoking marijuana about three months earlier. Whether his use of marijuana was an addiction or just a habit, I am skeptical that A.B.'s sudden conversion after 27 years is permanent and am of the view that this cessation probably has more to do with trial strategy than addressing the impact of his use on the family. The evidence was secondhand in any event and no drug tests were adduced.

[323] Troubling as well is the fact that, over the past five years, the Respondent parents have done little or nothing to improve their skills or their circumstances. In 2012, both parents worked to upgrade their schooling but that fizzled out by the fall of that year. Their plans for the future are vague. Both say they want to return to school but, on the assumption the children would return to their care, they also indicate that they would defer these plans for a year in order to allow for a period of adjustment. Both of the Respondent parents testified that then the other parent would go back to school. They could not agree on who would attend first.

[324] After completion of schooling, A.B., who is 43 years of age, would like to run a towing business and L.W. wants to become a baker. For reasons I have outlined above, neither plan is realistic in my opinion. A.B. is unlikely to repay or be able to repay the $7,000 fine he needs to in order to have his driver's licence reinstated. L.W., who has been described as meek, humble and shy, admits to a lack of self-confidence and has self-esteem issues. She has difficulty dealing with people on any meaningful basis unless it is through email. She has not taken any courses or sought any assistance for this issue in the last five years.

[325] I acknowledge the challenges the Respondents face arising from their deafness but any plan put forward has to be clear, workable and realistic. The fact is that over the past five years, A.B. and L.W. have done little or nothing to enhance their prospects of being able to parent their children or any of them on a fulltime basis. The most honest answer was given by A.B, when pressed on the issue. He said they could make do on the ODSP benefits alone.

[326] And that brings me back to a fundamental concern in this case. There is an insurmountable downside to these children if A.B. and L.W. lose the house they currently occupy. The family would be doomed to another nomadic odyssey moving from shelter to shelter. To repeat, their track record shows housing is very difficult to find and they appear to be shut out of the public housing market, likely as a result of the outstanding debt to Toronto Housing.

[327] A term of the draft supervision order addresses housing and attempts to assuage the well-documented concerns regarding historic transience. Paragraph 7 reads:

The parents shall advise the Society(s) of any plan to change housing in advance of doing so, and in any event, shall not move from the London area for a period of at least three (3) years, and they shall ensure stability of schools and services for the children as part of any planned move.

[328] While I accept that this provision was included in good faith, it is simply insufficient in the factual circumstances of this family. It is a hollow statement of intention. When they testified, both A.B. and L.W. said that after getting the children back in their care, their stay in the London area would be temporary. A.B. suggested that this meant a year. I find this suggestion very disconcerting. Although both parents had admitted during their testimony that their moving around created problems for their children, these further responses indicate to me that they really have not learned anything or appreciated the extensive and serious negative impact their decisions in this regard and this behaviour has had on their young family.

[329] The time period of three years referred to in the order proposed by the Respondent parents is an obvious improvement over the one-year commitment indicated in evidence. However, at least two concerns are identifiable with respect to the proposed order in this regard. First, the commitment to stay in the "London area" is meaningless. The "London area" covers a substantial geographic area in which services necessary for the children are inconsistently distributed and most of which services would be located in and restricted to the City of London, in any event. Secondly, the suggested provision contains a time limited commitment to stay in the identified area. This is highly problematic because of the already noted transient lifestyle of these parents. Further, they did not leave their past homes for positive reasons: Brampton (marijuana use upstairs), Toronto (bugs and unpaid rent), London (over-crowding) and so on. There is no evidence that their tendency and willingness to blame their reasons for moving to their next address on external conditions for which they have no personal responsibility would abate even if the children were returned to their care. There never has been a plan. These Respondent parents have never had and/or have never accepted control over or responsibility for their own lives.

[330] I find that there is nothing in the parents' housing plan that alleviates my doubts. I have already noted that past behaviour is often considered to be a reasonable indicator of future behaviour. The plan suggested by the Respondent parents does not provide the "predictable environment" that Dr. Dundas would like to see in the ideal caregiver. In short, the margin for error is too slim; the needs of the children too great; and the consequences for the children too dire in the event of failure for this plan to be accepted as feasible.

[331] As well as housing, the Respondent parents say that they have the necessary services in place for the children. They have arranged for a family doctor, a dentist and a school for the children. Numerous witnesses from the Canadian Hearing Society, the Thames Valley District School Board and Community Living gave evidence with respect to the services these agencies provide.

[332] While I congratulate A.B. and L.W. on developing this part of their plan, my concerns remain. One can line up a hundred agencies and support services but, in order to benefit from them, one has to use them. Again, the parents' track record in this regard raises serious doubts about their future commitment.

[333] As already noted, school attendance was problematic right from the outset with Kz and continued as a consistent problem with the other children. A.B. and L.W. admitted that they were late for some medical appointments for Ki at the Sick Children's Hospital in Toronto. Although they said their children were taken to their dental appointments, the nature and amount of dental treatment required by Kz and Ki at the time of their apprehension strongly suggest otherwise.

[334] A.B. testified that one of the reasons the family left Toronto was because services like daycare were too spread out. He complained that he had to cross town to get there. Yet Ms. McLachlan testified the children were bussed. The only reason A.B. had to personally navigate across the city and deliver the children to daycare was because they did not take the children to the bus stop on time and were late.

[335] When A.B. and L.W. moved to London in 2009, the only service they accessed at that time for the children was their school. Even then there were issues and one of the reasons they left, according to A.B., was because he believed that the school was not "helpful" and "not a good match" for the children. Another purported reason given by A.B. was that there were no services in London, even though the same services, about which evidence was garnered at trial, were also active in 2009. Notwithstanding the concerns they had about living in London in 2009, A.B. and L.W. are apparently now willing to commit to staying in London for at least the next three years.

[336] Ms. McLachlan identified this family as having had "high needs" during the course of time she worked with them. They required a lot of "handholding." She arranged appointments, made introductions and ensured timely attendances although, on occasions, they were able to assume responsibility for these arrangements without her assistance. In his early days, Ki required physiotherapy. L.W. was able to learn the exercises and, after several months, physiotherapy was no longer required. When Ki started going to Sick Children's Hospital regarding his heart condition, Ms. McLachlan went a couple of times initially with A.B. After a while, A.B. became familiar with the routine and the staff were comfortable with him so she stopped going with him.

[337] Ms. McLachlan acknowledged that the provision of many of the services for this family came about because Native Services works on a "wraparound model." Most child protection agencies are not so structured and the provision of services can be challenging, especially in areas where services are fewer and/or more disbursed geographically.

[338] After the family moved to London, the lack of ongoing assistance from Ms. McLachlan or someone in her position probably explains to some extent the family's lack of access to services there.

[339] Indeed, it was not until after this litigation commenced that the type of support they had received from Ms. McLachlan appears to have been re-activated. Counsel for the Respondent parents went well beyond the normal ambit of her retainer to assist her clients. To cite but three examples: she attended a meeting at MacTier Public School in September 2010 with the parents, the principal and other school staff; she also helped the parents look for housing in Midland, Ontario; and, as recently as the spring of 2015, she attended a meeting with the parents at Community Living in London.

[340] There is little probative evidence before me that A.B. and L.W. are able and/or willing to parent these children independently. It is clear that by virtue of their hearing incapacity, they require and are entitled to assistance in this regard. However, A.B., in particular, has never impressed me throughout this trial as a person who is afraid of or shies away from navigating the hearing world. In fact, the evidence indicates that the contrary is true. A.B. takes pride in his ability to actively participate in a hearing world. He was raised in a hearing family. He can lip read and says he understands about 50 per cent of what is spoken. He writes notes legibly and understandably.

[341] During questioning by the OCL counsel, A.B. expressed pleasure at his ability to negotiate things for his family, such as obtaining a better deal to stay past the usual check-out time at the motel in Muskoka during visits. In earlier testimony, he described how he would be able to convince the staff at Sick Children's Hospital to do some testing for Ki, even though they were late for an appointment. To get through day to day, he gestures and sees how people react. If he needs to, he will write notes. As people become more comfortable with his gestures, his need to write notes decreases. He does not consider himself disabled and told OCL counsel that, although he cannot hear, he "can pretty much do everything else everyone else does."

[342] A.B. was asked to describe circumstances in which he uses an ASL interpreter and who pays for the assistance. He said that for some services, such as seeing the doctor, an interpreter is supplied. For other personal activity, such as banking or buying a car, however, he has to arrange and pay for the service. He and L.W. have also relied on the maternal grandmother to contact and arrange appointments with potential landlords.

[343] Notwithstanding the evidence of some ability to be personally independent, however, the evidence is also very clear that without a handler or coordinator, neither A.B. nor L.W. are able to care for and to meet the needs of the children and/or seek out and arrange the appropriate services they require.

[344] The school system is not responsible for, and cannot be, expected to arrange and provide all of the support, therapy and treatment these children require on an almost daily basis.

[345] Further, it has to be borne in mind that the development of each of these children is not static. As they age and mature, their needs change. Their caregivers are required to constantly monitor and meet the demands their needs place on the community resources. The significant and ongoing needs of these children make constant engagement of their caregivers imperative. I am not satisfied that the Respondents are willing or able to engage with the energy, commitment and initiative these children require, even with community support in place.

[346] Crown wardship is also in the best interests of each and every one of these five children because of who these parents are individually and in their relationship with each other. As I stated above, A.B. is clearly the dominant personality. He is confident and garrulous. In contrast, L.W. is meek and quiet. She lacks self-confidence and, as her very emotional behaviour in court indicated during the giving of her evidence, is prone to high anxiety. These parents also differ with respect to how they work together. The evidence at trial revealed a troubling imbalance in the relationship between A.B. and L.W.

[347] In addition, their parenting philosophy does little, if anything, to both meet the needs of these children and advance their best interests. Their philosophy was simply "to make the children happy." Both A.B. and L.W. stressed this many times. Most, if not all, parents want their children to be happy. However, this hope and desire for children does not, and cannot, constitute in and of itself effective parenting. In the eyes of A.B. and L.W., encouraging or allowing their children to be happy meant letting the children do what they want and/or eat what they want. One of the foster mothers indicated that the initial visits among the siblings had to be curtailed because of the over-aggressive play of the boys, in particular. A.B. even described how much "calmer and better" the children were in their behaviour now.

[348] Both parents also admitted that it was a "struggle" to get Kz and Ki to brush their teeth and offered this struggle as part of their explanation for the dental decay. They also complimented the foster parents on training the children to properly brush their teeth.

[349] While there is some evidence that the children were exposed to a proper diet in their parents' care, there were several examples of the children being permitted to choose their own food. A.B. explained to Ms. Smart, a worker for the Muskoka Society, that they ate peanut butter sandwiches all the time because that is what they liked, not that it was the only choice. After a visit on August 22, 2012, a case aid for the Muskoka Society was driving Kg and Ki home from a visit with their parents. Their foster mother had sent a lunch because the boys had complained after a previous visit that they were hungry. Ki told the case aid they did not eat the sandwiches the foster mother had sent because they did not like them. Instead, A.B. and L.W. had taken them to Tim Hortons for donuts during their visit.

[350] Although the Respondent parents criticized a shelter where they stayed for serving sugary drinks, they had no issue providing sugary drinks to the children themselves. This was an ongoing issue, for example at the TPP when they spent time with Kh. L.W. had to constantly be reminded to dilute fruit juice for the baby because of its high sugar content. Even now, during visits, A.B. takes Kh to the vending machines and allows him to pick a drink (usually a can of "5 Alive") which has a high sugar content in comparison to other juices. In cross-examination, A.B. took no responsibility for this conduct and blamed his actions on the foster mother for not telling him what Kh likes to drink.

[351] In his evidence, A.B. also described what the children would eat during their visits. He said that if the foster parents did not send lunches with the children, they would eat fruit, submarine sandwiches, microwave dinners, pizza and treats depending on what they were doing at the time. For snacks, they would go to Bulk Barn where the children were allowed to pick out cookies and candy, which he did not consider "real sugary stuff."

[352] I find that both A.B. and L.W. have adopted a laissez-faire approach to parenting. At TPP, when Kh was walking around with food in his mouth, A.B. declined to intervene, despite the obvious choking hazard. In his view, if the child did choke, it would be a learning opportunity. He said he did not want to frustrate or discourage the child with any discipline.

[353] L.W.'s approach to the children was to talk to the children and redirect them if required. If a child was not listening to one parent, he/she would be passed to the other parent and vice versa. A.B. said that because L.W. was so caring and loving, she would not focus on the negative and would just talk to the children. He also observed, however, that the children learned to "play" the mother. They would tell her how much they loved her and then tell her what they had done wrong.

[354] A.B. also described how he would negotiate with the children. There did not appear to be any consequences for poor behaviour such as deprivation of privileges or timeouts in his discipline of them. Although both parents indicated that they did not use physical punishment, A.B. did admit during cross-examination that he did resort to it on occasion, as he expressed, "to set the tone."

[355] There is substantial probative evidence that because of this lack of discipline, the children ran the household. The household chaos was exacerbated by L.W.'s low energy, which she attributed to low protein levels.

[356] In his testimony, A.B. indicated that he was worried that everything would again fall on his shoulders. L.W. was obviously overwhelmed when the children were in their care in the past but, according to her, she is now feeling better.

[357] Both A.B. and L.W. believe that, because the children are older now, their demands will not be as great.

[358] In my view, L.W. is likely feeling better because the children have not been in her care for a number of years and there is no evidence in support of their theory that the demands of the children will not be as great because they are older. Indeed, the opposite may well be the case.

[359] I also find that the Respondent parents lack a sufficient level of understanding regarding child development and care. During questioning by OCL counsel, A.B. attributed Kp's delays to something that happened at birth. However, L.W. made no reference to a difficult birth and in fact said Kp was an easy baby. A.B. also said that they have to keep Kp's nose clean; he needs oxygen, otherwise he will go jaundiced. He attributed Ki's delays to lack of oxygen to the brain, or his surgery or his apprehension.

[359]

[360] Because of Kp's difficulty processing information, it has been recommended, and the foster parents have been using, cue cards to assist Kp in such things as his morning bathroom routine. A.B. challenged the effectiveness of cue cards, saying that because they were not in sign, his first language, Kp would have difficulty understanding them. There was no evidence in support of A.B.'s opinion. He gave only a lukewarm commitment to the continued use of these cue cards which would "depend on need" as he saw it.

[361] In August 2011, an occupational therapist further recommended that routine and structure were essential to assisting Kp in addressing this particular challenge. I have grave doubts that the parents have either the ability or the willingness to implement such routine and structure, given their parenting style as described above. Indeed, instilling routine was an ongoing issue for both parents at the TPP.

[362] A.B. also questioned the necessity of the medication of bifentin for Kp, which has been prescribed to reduce the symptoms of his diagnosed ADD. It is his opinion that this drug makes Kp like a zombie, despite the fact that both foster parents and the school have noticed a marked improvement in the child's focus and behaviour.

[363] When the London Society nurse tended to Kh in his early weeks, she performed a Nipissing test to determine his stage of development. In her testimony, she complimented the knowledge of the Respondent parents regarding child development. However, Ms. Courville, the child protection worker, cited two occasions when A.B.'s understanding was questionable. When Kh was about six weeks old, A.B. thought the child's neck was weak. The worker told him that this was to be expected for a child of that age. Another time, at the maternal grandmother's home, A.B. thought that the child's trunk should be stronger and that he should be crawling more. Again, the worker pointed out that this was unrealistic given Kh's age at the time.

[364] What is disconcerting is not only A.B.'s lack of even basic understanding of child development but, perhaps more significantly, his attitude toward correction or instruction or education in this regard. Whenever a shortcoming was pointed out, A.B. shut down further discussion with his frequent refrain that he has raised five children and that he knows best.

[365] One example that highlights this attitude concerned the bumper pads that were installed in Kh’s bed. The nurse for the London Society attended at the home of the Respondent parents during a visit with Kh when he was an infant. The nurse assessed, as a matter of practice, the child’s sleep environment. His bed was installed with bumper pads which according to the nurse are related to sudden death syndrome. She asked that they be removed.

[366] Despite the danger, A.B. refused. He said that he had had experience with his four other children and found that children that young can’t keep their arms in the crib until they are nine months old. The nurse said this was incorrect and repeated her request. A.B. said he wasn’t going to remove the bumper pads and as he expressed “that is that”.

[367] The bumper pads were eventually removed after further requests but not for several weeks.

[368] Of the two parents, I have concluded that A.B. is the more influential, if only by force of personality. He is the parent who is most engaged in the parenting and the most outspoken. It was A.B. who dealt with the outside world, the schools, Sick Children's Hospital and the Children's Aid Societies. At times, he was an aggressive advocate for his family, despite his attempts to keep things "light" and "flexible", as he expressed. Many of his relationships with people involved with the family were marked by visceral mistrust and suspicion.

[369] He was convinced that there was collusion between the London Society and the judge when the order of December 14, 2012 was issued and this attitude was especially evident in his dealings with the London and Muskoka Societies. Phrases like "being sidelined", "being set up" or "play weird games" peppered his testimony.

[370] There are numerous examples of A.B. expressing his anger and frustration. Although there were times when he was legitimately so, most instances were triggered by a predisposed mind and his overwhelming attitude that he knew best and was not going to be told what to do. In his evidence, A.B. denied having an anger management issue but did concede that he had to monitor his anger.

[371] As I have indicated, I also find that these parents (on the assumption that A.B. spoke for both himself and L.W.) rarely, if ever, took ownership for the predicament in which they had placed themselves. Their evidence contained a litany of others responsible for their problems: the maternal grandfather; the shelters for the dental issues; the various schools for the children's delays; the Children's Aid Societies; and the foster parents.

[372] Consequently, despite their professions of wishing to work cooperatively and learn, I am satisfied that A.B. and L.W. were and remain very difficult to work with.

[373] I have already referenced the efforts of Ms. McLachlan above but I must do so again. Her evidence was significant in this regard. She encountered the mistrust of A.B. and L.W. at the beginning of her relationship with them. She indicated that they had issues with the previous worker. However, she told them that she would work with them if they worked with her. She also indicated that she would hold them accountable. Within a couple of weeks, she had won them over and was able to work constructively with them for three years until they left Toronto. However, as good a working relationship as they enjoyed, there were unique aspects to it.

[374] First, much of the success was based on Ms. McLachlan herself and the force of her personality. She worked very hard with these parents. She was especially committed to ensuring proper care for Ki, who was medically vulnerable at the time. Her background provided her with the skills to deal with the poor. She had grown up in a housing project in Toronto herself and was determined to leave the housing project and take her parents with her. She obtained a university degree and was successful.

[375] Because A.B. and L.W.'s family was so needy, she concentrated on the big issues they faced. She assisted A.B. and L.W. in their efforts to address Ki's medical issues. She dealt with their landlord regarding the bug infestation issue. She helped the parents look for housing.

[376] I find that with respect to other issues, however, she either downplayed or overlooked their significance. She encouraged school attendance, for example, but appears not to have done much more. The apartment on Parma Court, which had only two bedrooms

Children’s Aid Society of London and Middlesex v. L.W., 2016 ONSC 3

Case Summary

ONTARIO

SUPERIOR COURT OF JUSTICE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 2