2016 ONSC 599

COURT FILE NO.: 75/14

DATE: 2016/01/25

ONTARIO

SUPERIOR COURT OF JUSTICE

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

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

AND IN THE MATTER OF I.N.

BETWEEN:

Family & Children’s Services of Lanark, Leeds and Grenville

Applicant

– and –

L.R.

– and –

E.N.

– and –

S.F.

Respondents

Nicola Edmundson, counsel for the Applicant

Wendy Rogers, counsel for the Respondents L.R. and S.F.

Ralph Lee, counsel for Respondents E.N.

HEARD:

October 5-9, 14, 15, 19-21, 23, and 26, 2015 (at Perth)

AMENDED REasons for decision

This is an amendment to the Reasons for Decision released January 26, 2016. The amendments occur at:

para. 117, line 2: “the S/F/R family” has replaced identifying name.

para. 123, line 3: “S/F.” has replaced identifying name.

para. 129, line 4: “E.N.” has replaced identifying name.

BLISHEN J.

Introduction

[1] On February 5, 2015 the Ottawa Children’s Aid Society (“the Society”) filed a protection application requesting an order that 20 month old I.N. be made a ward of the Society for six months with access to her parents L.R. and E.N. at the Society’s discretion, due to two separate incidents of inadequately explained, severe bruising to I.N.’s face and head, while in the care of her parents

[2] I.N., born […], 2012, is the daughter of L.R. and E.N. L.R. and E.N. ended their common law relationship in May 2013, when L.R. left with I.N. Thereafter, L.R. and E.N. were involved in an acrimonious custody and access dispute. They initially implemented a week on, week off access schedule for I.N. which was soon changed to a two day on, two day off schedule (or three days if the exchange would otherwise take place on the weekend), pursuant to an interim order under the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[3] Several months after the breakup, L.R. began to date S.F. and became pregnant. I.N.’s half-sister A.F. was born […], 2014.

[4] E.N. has a history with Bruce County Children’s Aid Society. His child C.N. from a previous relationship was apprehended, made a Crown Ward, and subsequently placed for adoption. E.N. has no contact with him.

[5] Neither L.R. nor S.F. have had any previous involvement with a Children’s Aid Society.

[6] There were two incidents of inadequately explained injury to I.N., one in December 2013 and another in January, 2014. Both involved severe bruising to I.N.’s face and head. On both occasions I.N. was seen at the Children’s Hospital of Eastern Ontario. Photographs were taken of her injuries which were included in the joint document brief filed as Exhibit 3. As noted above, at the time of the injuries, I.N. was in the rotating care of each parent – two days on, two days off and the issues of custody and access were before the Family Court. Neither parent offered a satisfactory explanation to the police, the medical professionals or the Society as to how I.N. sustained these injuries. Both were adamant that the injuries did not occur when I.N. was in his or her care. As there was no determination as to how or when the injuries had occurred, I.N. was apprehended from both her parents on January 31^st, 2014 in Ottawa. The matter was transferred to Family and Children’s Services of Lanark, Leeds and Grenville (“the Society”) and a Care and Custody Hearing was held in Perth on March 14^th, 2014.

[7] At the hearing L.R. presented a plan for S.F.’s mother and father to care for I.N. Justice Abrams ordered I.N. be placed with S.F.’s parents, J.S. and B.F., subject to the terms and conditions of a temporary supervision order. Given the inadequately explained injuries to I.N., L.R. was not permitted to reside in the home; access to both L.R. and E.N. was supervised and at the Society’s discretion; and S.F. was not permitted access.

[8] I.N. was placed with J.S. and B.F. on March 21, 2014. J.S. and B.F. have no child protection history raising their own four children; are foster parents with Kelford Youth Services; and have adopted three children through the Ottawa Children’s Aid Society. The Society reported J.S. and B.F were fully cooperative.

[9] On May 2, 2014, S.F. was added as a party and the terms of supervision and access were varied to permit L.R. and S.F. to reside in the home with I.N., with the Society’s prior written approval. The level of supervision of their contact was ordered to be at the discretion of the Society.

[10] After A.F.’s birth on May 30, 2014, L.R. and S.F. were given written permission to reside in the home. S.F.’s access to I.N. was no longer supervised but given that L.R. was still a suspect in the police investigation into I.N.’s injuries, her access to both her daughters continued to be supervised by S.F., J.S. or B.F. On November 1, 2014, L.R. was deemed a safe caregiver and was allowed to exercise unsupervised access.

[11] After the temporary supervision order, E.N. wrote to the Society indicating his dissatisfaction with the order. He stated he would not comply with the order, would not sign consents nor abide by conditions not to consume alcohol or drugs. He wanted I.N. placed in another home. He did agree to a Family Court Clinic Assessment and to sign consents for that assessment.

[12] On May 15, 2014, the Family Court Clinic Assessment was ordered. The focus of the assessment was to identify protection concerns and provide recommendations to the Society to ensure the safety and wellbeing of I.N. The assessment commenced at the Royal Ottawa Hospital in Ottawa in July, 2014 and was completed on October 22, 2014. The report recommended I.N. remain in the care of L.R. and S.F. under the terms and conditions of a six month supervision order with supervised access to E.N.

[13] I.N. has remained in the care of J.S. and B.F. under the temporary supervision order. L.R. and S.F. continue to reside in the J.S./B.F. home with I.N. and A.F. The trial of the Protection Application began October 5, 2015 and concluded October 26, 2015.

Positions of the Parties

[14] L.R. and S.F. request an order for custody of I.N. pursuant to Section 57.1(1) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended (“the Act”) with access to E.N. to be suspended until the recommendations of the Family Court Clinic are followed to the satisfaction of the Court. In the alternative, they propose that E.N. have access once every two weeks for three hours fully supervised at a supervised access facility.

[15] The Society agrees that at his point in time, an order for custody to L.R. and S.F. would be in I.N.’s best interests but requests an order for no access to E.N.

[16] E.N.’s position remains somewhat unclear. His Answer proposed a plan for I.N. to reside with him and his roommate, C.D. C.D. no longer resides with E.N., who now resides off and on with his mother, P.K. and step-father, M.F. During the trial, various plans were presented as follows: for I.N. to live with E.N. and his mother under the terms of a supervision order; for I.N. to live with E.N., his mother and his step-father under the terms of a supervision order and in closing submissions E.N. sought an order that I.N. be placed in his sole care subject to a six month supervision order.

[17] As noted in the Statement of Agreed Facts (Exhibit 2), all parties agree I.N. is a child in need of protection as defined under section 37(2)(a)(i) of the Child and Family Services Act as she has “suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child”.

[18] Therefore, the issue is what disposition, what placement is in I.N.’s best interests taking into consideration the factors listed under section 37(3) of the Act? In addition, what order for access, if any, should be made in I.N.’s best interests, pursuant to section 58 of the Act?

Trial and Evidence

[19] The trial took place over twelve days commencing October 5,2015 and concluding October 26, 2015.

[20] The Society called eight witnesses including the Child Protection Worker and two police officers. Pediatrician, Dr. Michelle Ward, the chair of the Child Protection Team at the Children’s Hospital of Eastern Ontario testified as an expert specializing in child maltreatment, injuries and causes. The Lanark Infant and Child Development Program supervisor who has been working with I.N. and Dr. Floyd Wood from the Family Court Clinic also testified. Dr. Wood was qualified as the Court’s expert in forensic psychiatry, in particular with respect to parenting capacity assessments.

[21] The focus of the Society’s case was on what order would be in I.N.’s best interests considering the factors outlined under section 37(3) of the Act. It was acknowledged there are risk factors but the position taken was it was time to move forward as none of the experts or professionals involved were able to determine how the injuries to I.N. occurred. As L.R. and S.F. have actively participated in all programmes and services requested; have abided by all conditions of the temporary supervision order for over 18 months; and both I.N. and A.F. are doing well with no protection concerns; the Society supported L.R. and S.F.’s plan to obtain an order for custody of I.N. and move into their own apartment.

[22] L.R. and S.F. both testified in support of their plan and called L.R.’s mother, T. R. and S.F.’s mother, J.S., who has been the main caregiver for I.N. since she was placed in the J.S./B.F. home in March, 2014. Affidavits from service providers who have worked with L.R. and S.F., from L.R.’s father, R.R., maternal aunt, N.W. and I.N.’s doctor, Dr. Raphael Shew were also filed in support of their plan. The focus, as with the Society, was on what plan or placement would be in I.N.’s best interests.

[23] E.N. testified along with his mother, P.K., step-father, M.F., sister, A. N. and former roommate C.D.. In addition, E.N. called his psychologist, Dr. Hilary Searles who assists him with pain and stress management issues.

[24] From the outset, the focus of E.N.’s case was on proving that I.N. was physically abused by L.R. and/or S.F. That is how Mr. Nichols’ counsel began his closing submissions. Although risk and the nature of the risk are factors to consider when determining what is in I.N.’s best interests, there was little emphasis or evidence offered with respect to the numerous other factors to be considered under s. 37(3) of the Act.

[25] In addition to the viva voce and affidavit evidence of witnesses, the trial record which contained pleadings, previous orders and the Family Court Clinic Assessment was filed as Exhibit 1. A Statement of Agreed Facts was filed as Exhibit 2. A joint document brief filed as Exhibit 3 contained: police records from the investigations conducted; the Children’s Hospital of Eastern Ontario records along with the records of the other hospitals involved; records from E.N.’s doctor and Doctor Shew who has seen I.N. since her birth; records from the organization providing E.N. with medical marijuana; records from veterans affairs; records from the Lanark Community Programs and photographs. Other photographs were filed as Exhibits 4 and 6.

Injuries to I.N.

December 2013 incident

[26] On December 11, 2013, the Society received a call from the emergency physician at the Perth/Smiths Falls hospital reporting that I.N. was at the hospital with bruises to her face and on her forehead. Her father, E.N., reported to the doctor he first saw the bruises when he picked up I.N. for access that morning. I.N.’s mother, L.R., advised him I.N. had woken up with the bruising under her eye. E.N. advised the attending Society worker, Tammy White, he had cared for I.N. on December 9, 2013 and there were no bruises present when he returned her to her mother’s care that same day. The attending physician was concerned and thought the bruises suspicious.

[27] I.N. was transferred to the Children’s Hospital of Eastern Ontario (“CHEO”) the next day and assessed by the Child Protection Team. I.N. underwent a skeletal survey and a C.T. scan. Although her testing and examination revealed multiple bruises particularly to her head and face, there was no evidence of any skull fracture. She did not require follow-up medical attention. The attending physician was Dr. Fraser-Roberts who, along with other members of the Child Protection Team, concluded that, although the number of bruises was concerning, they could not say they were due to physical abuse. Dr. Fraser-Roberts noted that bruises to the head and face are common for active toddlers, but stated the number of bruises on her face was “somewhat unusual” and that the absence of an explanation for the injury “raises concern for concealed neglect/lack of supervision and/or inflicted trauma”.

[28] The Society and the Smiths Falls police undertook a joint investigation. Both parents were cooperative during the investigation and both maintained they were not responsible for I.N.’s injuries; she had no marks when she left their respective care; and they could not recall any accidents. No criminal charges were laid. Both parents agreed to have their access with I.N. supervised by family members and to work with the Society on a voluntary basis. After signing a contract of expectations, the requirement that L.R.’s and E.N.’s access to I.N. be supervised by a family member was removed.

January 2014 incident

[29] On January 27, 2014, E.N. attended at the Society office in Perth to report he had just picked up I.N. from L.R. and saw some “marks” on her. Child Protection worker, Jon Mathews, documented that I.N. had a split upper lip, a bruise on her forehead about the size of a crayon tip, as well as two light brown bruises on her hairline and near her left temple that were difficult to see. L.R. had written a note to E.N. explaining the split lip. E.N. had care of I.N. until January 29.

[30] I.N. returned to her mother’s care at approximately 9 a.m on January 29, 2014. The assigned family services/permanency planning worker, Judy Porter had a scheduled meeting with L.R. and I.N. on January 29 at 3:30 p.m. L.R. called and left a message for Ms. Porter that morning cancelling the appointment indicating that she, I.N. and S.F. all had cold/flu symptoms.

[31] On Thursday, January 30, 2014 Dr. Duvernet from the Smiths Falls hospital called the emergency after-hours child protection worker advising that L.R. was at the hospital to have her 19 month old daughter, I.N. seen for a cold and swelling of her forehead. Ms. Richards could not provide any explanation to the doctor as to why there was a swelling of the forehead. Dr. Duvernet advised the after-hours worker she had spoken to medical professionals at CHEO regarding I.N.’s facial swelling and an appointment had been made for I.N. to be examined by Dr. Ward of the Child Protection Team at CHEO the next day, Friday January 31, 2014.

[32] The after-hours worker remained overnight (Thursday to Friday) at the Smiths Falls hospital with L.R. and I.N. I.N. was administered antibiotics on two occasions in case her swelling was due to an infection.

[33] On January 31, 2014, L.R. reported the following: I.N. had been tired and had a cold when she was returned to L.R.’s care at approximately 9 a.m. on January 29, 2014. L.R. put her down for a nap at 9:30 a.m. Judy Porter called back at approximately 9:30 a.m. and L.R. explained that I.N. had a fever and was rubbing her ears and that L.R. was giving her Tylenol.

[34] At 11:00 a.m., I.N. woke up and L.R. noticed the swelling on her forehead. I.N. still appeared tired after having a bath and being fed so napped again from about 12:30 p.m. to 4:00 p.m. I.N. ate supper, had another bath and went to bed at 7:00 p.m.

[35] On January 30, 2014, L.R. had to wake I.N. up at 10:00 a.m. She then noticed that I.N.’s forehead was more “puffy” and I.N. had a hard time breathing. She gave I.N. breakfast, cuddles and a bath. I.N. did not want to play and napped from 11:00 a.m. to 2:30 p.m. When she awoke, L.R. noticed I.N.’s head was “more puffed out”. At 3:00 or 4:00 p.m., L.R. and S.F. took I.N. to S.F.’s mother, J.S. and on J.S.’s advice took her to the hospital to be seen for the cold and the swelling of her forehead. L.R. left a voicemail message for Ms. Porter at this time that I.N.’s forehead was “puffed out really big”.

[36] Just after 9:00 a.m. on January 31, 2014, Judy Porter attended the hospital. She was advised it had been a difficult night for I.N. who was tossing and turning throughout the night and at times screaming or saying “No, no, no.” L.R. was observed to be loving and attentive towards her daughter. I.N. sought out her mother for comfort and showed no fear or anxiety around L.R. The after-hours emergency worker notified E.N. of the situation and E.N. was present with his mother, P.K.

[37] As it was E.N’s day to have I.N. in his care, he accompanied Ms. Porter and child protection worker, Jon Mathews to CHEO with I.N. L.R. also attended CHEO with extended family members. By this time, significant bruising around I.N.’s eyes, forehead and hairline accompanied the forehead swelling.

[38] Each parent told the CHEO team of a potential cause for the injuries. L.R. advised that on January 25, 2014, I.N. had fallen and hit her lip on the joint between hardwood and tile flooring at S.F.’s parents’ house. She was not clear how I.N. had landed but said she could have hit her head on the tile floor. She did not recall seeing any injury to I.N.’s head, but only the split lip that was bleeding. She advised E.N. of this when transferring I.N. to him.

[39] E.N. advised that on Tuesday, January 28, 2014, I.N. hit her head on a coffee table when she sneezed.

[40] While at CHEO, I.N. was examined by Michelle Ward, blood work and a C.T. Scan were completed and I.N.’s injuries were photographed. E.N. was attentive and affectionate to I.N. and responded well to her cues. I.N. was seen to approach him without any observed fear or anxiety.

[41] Dr. Ward stated I.N.’s injuries were not considered medical and I.N. had no infection. Further, her blood work indicated I.N. had no predisposition to bruising. Dr. Ward advised I.N. had extensive swelling to her eyes, forehead, up along the left side of her head and on the top of her head. The C.T. scan revealed swelling of soft tissue but no fractures and no bleeding. Dr. Ward rejected the injury mechanisms suggested by the parents and described this as a “significant injury event” and stated that “the injury is secondary to a traumatic event” and she would “expect that someone would know the injury event (either accidental or inflicted) causing harm” because it would have elicited a response from I.N. As bruises cannot be accurately dated, Dr. Ward could not say when I.N. had been injured. However, she advised that E.N.’s report that I.N. hit her head on a table when she sneezed was “highly unlikely to cause this”. Dr. Ward said she did recognize an injury to I.N.’s lip in the X-ray but did not believe the mechanism described by L.R. on Saturday caused the current injuries. She indicated this was “clinically unlikely”, being too long ago. Dr. Ward concluded that “the overall picture is highly suspicious for inflicted injury (i.e. external application of force likely by another individual) in the absence of a reasonable accidental explanation and/or bleeding disorder.” As noted, there was no bleeding disorder suspected in I.N. Dr. Ward and the Child Protection Team arranged to do medical follow-up to ensure I.N. was healing well from her injuries.

The Society’s Investigation

[42] Ms. Porter interviewed E.N. and L.R. separately and neither parent indicated any other mechanism or event that could explain I.N.’s significant injuries. Both were adamant the injuries did not occur when they had I.N. in their care. Both indicated they were the only ones caring for the child. Based on this information, the Society concluded I.N.’s injuries could have occurred in either parent’s home; and advised I.N. was being apprehended and placed in foster care to ensure her safety. Neither parent objected to the apprehension and both indicated foster care would be safer than having I.N. in the other parent’s care. Ms. Porter advised a court action would be initiated and the Society would arrange access to I.N. Both L.R. and E.N. agreed on January 31, to participate in drug screening, engage in community services and sign consents allowing the Society to obtain information regarding their participation in support services.

[43] Both parents made allegations I.N. had previously been returned to his or her care with marks or bruises on her skin, bumps on her head, wearing dirty clothes, wearing a dirty diaper or having a diaper rash. E.N. advised that prior to December 1, 2013 when L.R. moved in with her boyfriend, S.F., he did not have concerns about I.N.’s care.

[44] Both parents allege drug use by the other parent. E.N. was forthcoming about his marijuana use, the need for which he attributes to chronic pain due to hip bursitis and a shoulder injury suffered while in the military. E.N. also admitted to drinking alcohol and using marijuana when he did not have his daughter in his care. Ms. Richards denied substance abuse.

[45] Mr. Nichols advised he was medically discharged from the military in April 2011 and has involvement with Veterans’ Affairs. He further advised he was undergoing an assessment for being bi-polar but was in fact diagnosed with ADHD. Within two months prior to the time of trial he had been prescribed a new medication for ADHD.

[46] On February 13, 2014, Ms. Porter provided E.N. with consents for his doctors and other service providers. On February 19, E.N.’s step-father, M.F. advised Ms. Porter they were not signing the consents until they were viewed by a lawyer. M.F. also expressed concern about the worker and the Society’s management of the case. The next day, M.F. told to Ms. Porter he had been advised by a lawyer not to cooperate with any requests made by the C.A.S. or the police. E.N. did not sign any consents and has still not signed consents to allow Ms. Porter to speak to any service providers.

The Criminal Investigation

[47] The Smiths Falls police and the O.P.P. commenced a joint criminal investigation into I.N.’s injuries on January 31, 2014. E.N., S.F. and L.R. all agreed to take polygraph tests and all were interviewed. E.N. provided another possible mechanism for the injuries to I.N.

[48] Ultimately, the police concluded both S.F. and L.R. were not responsible for I.N.’s injuries. They have yet to report their conclusion with respect to E.N.’s potential involvement.

[49] Police executed a search warrant at E.N.’s home on February 19, 2014 during which they seized his cell phone and observed empty liquor bottles, marijuana, a scale, a grinder, papers and a bong. E.N. was uncooperative during his polygraph tests and a forensic examination of his cell phone has not yet been completed.

[50] Among others, the police interviewed C.D. who was residing with E.N. around the time of the January 2014 injuries. However, his role appears to be minimal as he only arrived at the home the morning of January 29 and does not seem to have been left alone with I.N. or responsible for her care while he was there.

Care for I.N. Following Apprehension

[51] I.N. was taken to a foster home following her apprehension on January 31, 2014.

[52] I.N.’s swelling and bruising continued to progress downwards from her head to the bottom of her face throughout the weekend (February 1 and 2, 2014) with her eyes becoming swollen shut. There was ongoing communication between the Society after-hours worker and the foster parents to monitor I.N.’s progress. The foster parents were diligent in taking I.N.’s temperature and reporting her status.

[53] On February 7, 2014, I.N. was seen for a follow-up appointment at CHEO. A developmental assessment was completed and it was noted that I.N. appeared to be delayed in expressive language.

[54] I.N. was noted to be clumsier than most toddlers. She was later diagnosed in May, 2014 at CHEO with anterior tibial torsion which impacts her mobility and makes her more unsteady on her feet. I.N. is clumsier than the average toddler and may experience more falls. Her physician, Dr. Shew, continues to monitor her gait and will recommend if and when medical treatment is warranted. Dr. Shew advised this issue might resolve itself as she gets older.

[55] L.R. and S.F. participated in numerous programs and followed all the recommendations of the Society and the Family Court Clinic. In addition, they followed all the terms of the temporary supervision order. Their daughter, A.F., is receiving excellent care and there are no concerns expressed by the Society with her safety, care, health, growth or development.

[56] I.N. continues to be followed by infant development as recommended by Dr. Ward at CHEO to assure she is achieving milestones. The infant and development worker, Ms. Lavier advised that I.N. is meeting age appropriate developmental milestones.

Access Visits

[57] L.R.’s access with I.N. between the apprehension and May 30, 2014 when she moved in to the J.S./B.F. home was positive. She was observed to be gentle, affectionate, soft-spoken, attentive, and child focused throughout the visits and to play with I.N. and praise her often. When S.F. attended, I.N. initially did not want to be held by him, but she was happy throughout the visit and went to both caregivers spontaneously for affection.

[58] E.N. continues to have supervised access twice a week. Although he appears committed to I.N., has excellent attendance and is affectionate and caring with her, engaging her in play and praising her often, there have been concerns noted by Society supervisors.

[59] The biggest concern is E.N.’s obsession with examining I.N. for bruises, scrapes or other minor injuries on access visits. Between April 25, 2014 and May 4, 2015, E.N. made 35 reports to the Society of I.N. having marks, bruises, rashes, bug bites and “cold sores” on her body. Between May 4, 2015 and September 28, 2015, he made another four reports that I.N. was being harmed in the Sauvé/Flynn home. E.N. has also made reports to the police of these injuries. The ongoing child protection worker, Judy Porter, is concerned about the effect of this behaviour on I.N. The injuries reported are investigated, which is an intrusive process for the child. The “injuries” have all been determined to be normal childhood scrapes and bruises.

[60] In addition to E.N.’s continual reports regarding injuries to I.N., there are safety concerns for I.N. when on visits with her father. Incidents of unsafe play between E.N. and I.N. have also been observed. During the home interaction for the Family Court Clinic assessment, E.N. placed I.N. in a high risk situation where he had her standing on a counter without support while making smoothies. I.N. was also hurt by slipping and falling back on her head while running in stocking feet towards E.N. Although he responded appropriately and comforted her, he showed a poor ability to anticipate such consequences.

[61] The Society has not been able to move E.N.’s access to his home, to decrease supervision or to have family members supervise. Ms. Porter reports that there are safety issues for I.N. and worker safety issues, if access were to occur in his home. E.N. refuses to work cooperatively with the Society, refuses to meet with Ms. Porter, refuses to engage in child protection discussions and refuses to sign any consents allowing Ms. Porter to communicate with his medical and mental health support.

[62] E.N.’s mother, P.K., has been very vocal about her dislike of L.R. and her absolute belief that L.R. abused I.N. and the kin caregivers are now abusing I.N. She has been equally vocal in her view, according to Ms. Porter, that the Society is failing to protect her granddaughter. She has not demonstrated an ability to work with the Society to move forward and instead focuses on protecting her son rather than encouraging him to deal with his issues. She would not be an appropriate supervisor.

[63] Dr. Wood also expressed concern regarding E.N.’s hyper-vigilance and focussing on minor injuries to I.N. As Ms. Porter stated in her affidavit at paragraph 35:

As I.N. is communicating more and more, E.N. appears to be questioning and coaxing her to report that she is being harmed by one of her other caregivers. I.N. appears to be a smart little girl who is aware that her daddy is looking for “boo-boos” on her person because she will now arrive at access visits and immediately report to her daddy if she has a “boo-boo”…

When I visit I.N. in the Kin home, the first thing she does is tell me she has a “boo-boo” and proceeds to show me where her “boo-boo” is.

[64] Dr. Wood testified this hyper-vigilance in checking for injuries is not beneficial to I.N. Dr. Wood testified the effect on I.N. and her attachment to her mother could suffer if this continues, which it has over the past year. E.N.’s mother, P.K., and step-father, M.F. are clearly supportive of that approach and continue to focus on their belief that I.N. is being physically abused by her caregivers.

[65] In addition to the issues noted above, E.N. has also demonstrated anger, outbursts and aggression towards the Children’s Aid Society worker in front of I.N. At times, he also becomes emotional and cries during the visits.

Family Court Clinic Assessment

[66] The Family Court Clinic assessment was completed on October 22, 2014. On the issue of I.N.’s injuries and her relationship with her caregivers, Dr. Wood concluded at page 37:

Our assessment of S.F. was unfortunately lacking because of little collateral material and invalid psychological testings. While S.F. appears to have struggled as far as identifying educational goals in order to establish himself in a career, he has seemingly been a calming and supportive partner for L.R. There were no factors noted which would place S.F. at increased risk for physical abuse to I.N. L.R. similarly showed no increased propensity to act violently or abusively towards her child, although she does appear as a rather submissive or dependent individual. As such, she might at times find it difficult to assert her own best interest or that of her child, should she fear abandonment by her partner. It is also important to note that there has been no apparently CAS involvement with S.F. and L.R. in regards to their daughter, A.F., nor has there been any notable injury to I.N. since she has been in their primary care.

The Clinic did have greater concerns in regards to E.N.’s risk to have difficulty providing a protective environment for I.N., and possibly even for responding in a possibly harsh or physical manner to his daughter, without premeditation, due to his adult ADHD, cannabis abuse, chronic pain, and history of impulsive and aggressive behaviour. We would, however, suggest that the greater risk that E.N. poses is in his lack of anticipation and common sense as far as keeping I.N. out of dangerous situations.”

[67] Dr. Wood notes that the assessment of I.N.:

…did not reveal any special needs, although her speech and motor skills have been somewhat delayed and should be monitored. However, we did feel that I.N.’s active nature and poor coordination do place her at increased risk for falls or injuries if she is not closely supervised. Parental figures need to anticipate and remove any dangerous situations beforehand, which we did see as a weakness on E.N.’s behalf. On a positive note, I.N. appears to show an attachment to her mother, father and S.F.

[68] The Family Court Clinic concluded by recommending that I.N. be placed in the care of L.R. and S.F. under the terms of a six month supervision order. The terms could gradually be lessened which would allow S.F. and L.R. to move out on their own with I.N. and A.F., should all go well. Dr. Wood suggested that if they did move out, a further supervision order would be advisable to help ensure I.N.’s visibility in the community.

[69] It was recommended that E.N.’s supervised access be continued and that E.N. be gradually permitted to play a more significant role in I.N.’s life under certain conditions: that he not continue to search I.N. for bangs or scratches or overreact to minor injuries; that he not be seen to undermine the importance of L.R. and S.F. in his daughter’s life; that he seek parenting education in regards to safety issues for toddlers; that he have appropriate assessment and treatment for his adult ADHD; that he take anger management counselling; and that he refrain from the use of drugs or alcohol while caring for I.N..

[70] Since the release of the Family Court Clinic assessment, E.N. has continued to search I.N. for injuries and made reports to the Society and at times to the police. In addition, he has not taken any parenting education course nor anger management counselling, and has just recently commenced taking medication for treatment of adult ADHD.

[71] Dr. Wood concludes that:

…it will be very important for I.N. to have parental figures who can work together cooperatively rather than discrediting and demeaning one another in I.N.’s presence. Any protracted and acrimonious dispute over custody and access issues will predictably have a serious traumatic impact on I.N. We would recommend that all the parties make themselves aware of the literature in this area and understand the importance of working together as a cooperative team, rather than combatants.

Unfortunately, as previously noted, the approach by E.N. and his parents is to continue to focus on their belief that L.R. and/or S.F. physically abused I.N. and that they and potentially J.S. and B.F. continue to do so. Therefore, the dispute over the care and placement of I.N. remains acrimonious and hostile. E.N. has simply been unable to move forward.

E.N.

[72] E.N. had prior involvement with the Bruce Children’s Aid Society as his first child, C.N., was apprehended, made a Crown ward and placed for adoption. E.N. has no contact with him.

[73] E.N. suffers from numerous physical and mental health problems which understandably affect his ability to care for a child.

[74] E.N. was diagnosed with ADHD when he was approximately six years old. He did not take medication for ADHD on a regular basis as he reported that he felt depressed when taking it. More recently, he was assessed by a psychiatrist Dr. DeAngelis for bipolar disorder. It was the doctor’s opinion that his presentation was more consistent with ADHD and the doctor prescribed medication which E.N. has been taking for the last two to three months. It is too soon to evaluate the effectiveness of that medication. Dr. Wood reported that signs and symptoms of E.N.’s ADHD were evident during interactions where he would move from topic to topic quickly, forget the discussion and become fidgety and distracted. The Court made similar observations when E.N. was testifying. It appeared difficult for him to focus and at times, it was simply not possible to follow his train of thought.

[75] E.N. joined the military in 2008 and left in 2011 due to injuries sustained during training sessions. He suffers from chronic hip bursitis and has had two shoulder surgeries. He receives a disability pension through Veterans’ Affairs as a result of his injuries. E.N. indicates that his primary daily activities are now geared to help reducing his pain and sometimes helping out with his mother’s work running a diner and chip stand.

[76] E.N. has sought medication to deal with his pain for many years. His health records reveal the opinion of his primary physician, Dr. Walker, that there is “a large element of functional overlay with his pain.” Dr. Walker had significant concerns as to malingering and pill seeking.

[77] E.N. went to a hospital emergency department in October of 2010 for pain and had apparently used 60 Percocets over the prior five days. In December, 2013, he presented again at the emergency department requesting pain medication and on May 18, 2014, he again went to the emergency department for post-operative shoulder pain and reported having taken all of his medication (60 tablets) over five days. At that time, the physician did not feel comfortable prescribing further opioids and instead provided E.N. with Tylenol 3. At a further appointment with Dr. Walker a few months later in August, 2014, E.N. was offered three medication options. He refused them “demanding Percocet”. At that point Dr. Walker ended the doctor/patient relationship. On October 19, 2014, E.N. went to another emergency department and was able to obtain a prescription for Percocet.

[78] In addition to seeking opioids, E.N. has a history of using marijuana, ostensibly for pain management. At first, he did so on a self-help basis, but as of April, 2014, he obtained a prescription for medical marijuana. He used marijuana on an ongoing basis while I.N. was in his care and relied on his neighbours to look after her when he was using. E.N.’s reports as to how much marijuana he uses are inconsistent. E.N. has stated he smokes five grams a day when I.N. is not in his care and none when I.N. is in his care. He indicated to the Family Court Clinic he has been prescribed five grams a day but only uses two grams a day while caring for I.N. In December 2013, he told the Society intake worker he smoked less than a gram a day when caring for I.N. At the Smiths Falls hospital on January 31, 2014 he told to the Society child protection worker, Judy Porter, he smokes one to two grams of marijuana daily when I.N. is not in care and none when she is in his care. The Statement of Agreed Facts (Exhibit 2) indicates E.N. recently received a prescription for Nabilone which is similar to substances found in marijuana. He had previously tried Cesamet, a synthetic oral cannabinoid, but he did not take it reliably according to the reports he provided to the Family Court Clinic.

[79] In addition to his use of medical marijuana, E.N. undergoes physiotherapy twice a week which he finds effective for pain management. He has also done acupuncture and had chiropractic interventions, which he did not find as effective.

[80] The difficulties with E.N.’s use of marijuana were obvious in Court. At one point, he became extremely unfocused and when questioned, indicated he had just smoked approximately a gram of marijuana. He was unable to function in Court when testifying and the trial had to be adjourned for the day.

[81] In addition to the use of cannabis, physiotherapy, some acupuncture and chiropractic intervention, E.N. has been seeing a psychologist, Dr. Hillary Searles for pain related stress issues and has ongoing follow-up for coping strategies and cognitive behaviour therapy. Dr. Searles was not qualified as an expert and her testimony was focused on what would benefit E.N. Her testimony in Court was based on the information received solely from E.N. and his parents. E.N. has not signed a consent permitting Dr. Searles to obtain any information from the Children’s Aid Society.

[82] I find on balance that E.N. can be affectionate, warm and stimulating with his daughter. I.N. was observed by the Children’s Aid Society workers and by the Family Court Clinic to respond very positively and show attachment to her father. Dr. Wood noted that E.N. scored in the normative range for non-abusive parents on the child abuse potential inventory suggesting that he would be unlikely to harm or abuse his daughter in any premeditated way. However, Dr. Wood commented as follows:

We would suggest that E.N. might be at an increased risk to react too harshly and impulsively to frustrations he might experience in dealing with his daughter. E.N.’s untreated ADHD would contribute to E.N. acting impulsively and, in conjunction with his chronic pain, could contribute to the irritability and mood swings which were identified on the psychological testing. We would also suggest that the above risk would be further accentuated by E.N.’s reported difficulties with anger management and the possible disinhibiting effects under the affect of cannabis. While we have no evidence to suggest that E.N. may have purposely abused his daughter, he does show rather poor judgment when it comes to anticipating danger and preventing accidents involving I.N. This was blatantly evident during the home visit during which I.N. fell back and hit her head when E.N. had allowed her to run around the hardwood floors in socks. During that same visit, he was noted to have placed I.N. in another high risk situation by having her standing unsupported on the counter while he was preparing food. A previous police report to the Society also indicated that there were unsafe crib conditions at E.N.’s home when they performed a search warrant. E.N. could most definitely benefit from further parenting education which would be directed towards safety issues involving toddlers. One other concern involved E.N.’s ongoing determination to record and document I.N.’s bruises, as well as his apparent minimal cooperativeness with Society and their recommendations. Such behaviours could theoretically undermine S.F. and L.R.’s role with I.N. and raises questions as to whether E.N. could support their importance in I.N.’s life should this be in I.N.’s best interest. It also raises concerns around E.N.’s ability to work with any professionals who might be involved with I.N. in the future. This would be in keeping with psychological findings that E.N. may not identify closely with social norms or values and has strong opinions of his own as to what is right and wrong. This general distrust of authority appears rooted in E.N.’s personality makeup, and he would tend to lack insight into this and would be prone to minimize or deny his own problems or weaknesses and instead blame any problems on others.

[83] The Clinic concluded that I.N. should remain in her mother and S.F.’s care and that E.N.’s access should continue to be supervised.

L.R.

[84] L.R. indicated, although her parents separated when she was fifteen, she continues to have a good relationship with them. She stated they were always able to co-parent. Both her parents provided evidence to the Court and were supportive of their daughter.

[85] Records provided by L.R.’s family physician, Dr. Raphael Shew, noted that “there were no known addictions, psychiatric or medical problems that could affect L.R.’s parenting abilities.” She has continued to bring I.N. and A.F. for their routine assessments and they are doing well.

[86] L.R. had no previous contact with any mental health professional until the assessment by the Family Court Clinic. She did have contact with a counsellor, Tess Powter from Interval House in Lanark County due to reported abusive behaviour by E.N. Ms. Powter reported L.R. was “a lovely person to work with, who was a smart and capable woman.” She found L.R. to be very child focused and committed to counselling.

[87] Although E.N. and his parents reported L.R. smoked marijuana while pregnant with I.N., there is no evidence she has any ongoing problems with drugs or alcohol.

[88] L.R. reconnected with S.F., who had been a friend of hers in high school, after separating from E.N. in the summer of 2013. They began seeing each other and moved in together in December, 2013. L.R. accidentally became pregnant shortly into the relationship and A.F. was born on […], 2014. L.R. and S.F. moved in to S.F.’s parents’ home with the Court’s approval and have continued to reside there, although they indicate they have a townhouse available to them and plan to move with I.N. and A.F. depending on the results of the Court hearing. L.R. reported to Dr. Wood at the Family Court Clinic that the relationship with S.F. was “really good…we were friends before partners…like the complete opposite relationship than with E.N.”. She also indicated that their families got along well. She described S.F. as “caring, talkative and selfless”.

[89] L.R. recently completed the hairstyling and esthetics program at […] College in B[…] and has obtained employment at a hair salon.

[90] The Family Court Clinic observed that both L.R. and S.F. were encouraging and affectionate towards I.N. and stimulated her by encouraging her to count and say her ABCs. There was warm physical contact observed between I.N. and L.R. including hugs and kisses and S.F. was observed hugging and kissing A.F. and verbally engaging with I.N. I.N. was responsive to both L.R. and S.F. throughout the interaction and was smiling and laughing. The Family Court Clinic also did a home observation and noted that I.N. appeared very comfortable and at ease with L.R. and S.F. It was also noted that J.S. and B.F.’s home was child friendly, warm and loving.

[91] The Family Court Clinic concluded there was no clear evidence that L.R. had intentionally caused any injury to I.N. Dr. Wood indicates in the report:

She has no known history of violence towards others and her psychological scores were in the normal range for non-abusive parents. L.R. has participated in parenting programs through Children’s Aid. There were no concerns regarding her interaction with I.N. at the Family Court Clinic, where L.R. and I.N. were observed as having a loving bond. There have seemingly been no recent injuries to I.N., aside from scrapes and bruises that were felt to be typical toddler injuries when assessed by workers with the agency and by Dr. Ward. We are also not aware of any concerns in regards to L.R.’s care of her and S.F.’s daughter, A.F. (DOB: 30 May, 2014), nor any Society involvement regarding A.F. There was no evidence to suggest that L.R. would present at increased risk to purposely harm or abuse her daughter, I.N.

[92] L.R. has been fully cooperative with the Children’s Aid Society and has shown dedication in her pursuit of programing. Both she and S.F. have engaged in multiple services such as Connections, Good Food for Healthy Babies, Interval House Outreach and meeting with Society workers to strengthen their parenting. As previously noted, there are no concerns by any of the professionals involved with L.R. and as to their ability to parent both I.N. and A.F. and meet their physical, mental and emotional needs. The Family Court Clinic assessment concluded by recommending that I.N. remain in the care of L.R. and S.F. under a continued supervision order once they move out on their own. It is to be noted that this assessment was completed in October 2014 and the trial took place in October of 2015. During the intervening year, L.R. and S.F. continued to cooperate and to care appropriately for both their daughters. The evidence provided by the Children’s Aid Society was there is no need for Society intervention at this time.

S.F.

[93] S.F. was not forthcoming as a witness. He seemed to have significant memory problems and was not of assistance to the Court with respect to the circumstances surrounding the injuries to I.N.

[94] S.F. provided detail of his background to Dr. Wood at the Family Court Clinic. He reported no major medical problems in his family and has a good relationship with both his parents and his three brothers. Records provided by Dr. Chris Fleming indicated there were no ongoing medical, psychiatric or drug issues. Unfortunately, S.F. fractured his hand and has been unable to work for some time.

[95] Dr. Wood concludes with respect to S.F.:

S.F. shows no evidence of any psychotic or major psychiatric illness. He reported few difficulties in his life, and presented a very positive outlook on his past experiences. He reported having a close relationship with his family, which was seemingly observed by Children’s Aid in their reports. S.F. does appear to lack direction and resolve as far as establishing himself educationally or in a career. We tended to lack good collateral sources of information to confirm our clinical opinions and S.F.’s psychological testing was invalidated by his attempts to present himself in an unrealistically positive way. The above do lessen our ability to comment more definitely in regards to S.F.’s mental health and general personality structure. On a positive note, it is our understanding that the polygraph that S.F. willingly performed did not identify him as the primary suspect in any suspected neglect or abuse of I.N. In general, there was no evidence to suggest that S.F. would present a risk for purposely harm or abuse his stepdaughter. Overall, it was our sense that he has had a definite stabilizing effect on L.R., and his calm, laid-back approach is no doubt helpful when he and L.R. are with I.N. or A.F. L.R., in fact, claims that S.F. is now her best friend and she can rely on him, or his family, when she is feeling stressed.

[96] As previously noted, S.F. has also cooperated with all the recommended programs and services and has fulfilled the conditions of the temporary supervision order.

Law and Analysis

[97] All parties agree I.N. is a child in need of protection pursuant to section 37(2)(a)(i) as she has suffered physical harm, inflicted by the person having charge of her or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect her.

[98] Pursuant to section 57 and 57.1 of the Act, disposition orders are made in a child’s best interests and the least disruptive plan is preferred. The criteria for “best interests” are outlined in s. 37(3).

[99] As previously noted, the Children’s Aid Society, L.R. and S.F. propose a custody order under section 57.1 of the Act with limited or no access to E.N. E.N. proposes an order for sole custody to him under the terms and conditions of a supervision order or that he jointly with his mother and/or step-father obtain custody under the terms and conditions of a supervision order. He makes no reference whatsoever to any access for L.R. and/or S.F.

Access

[100] Access is governed by section 58 of the Child and Family Services Act and any access order is to be made in the child’s best interests. Pursuant to section 59(1.1), if a custody order is made as proposed by the Society, L.R. and S.F., which means removing a child from an individual who had charge of the child before the intervention, in this case E.N., the Court shall make an order for access unless the Court is satisfied that continued contact will not be in the child’s best interests.

Best Interests

[101] Section 37(3) of the Act sets out the criteria for determining best interests. It states as follows:

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

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

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

3. The child’s cultural background.

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

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

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

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

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

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

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

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

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

13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3).

The relevant factors in this case are: 1, 2, 5, 6, 7, 8, 11, and 12.

Risk

[102] Based on all the evidence, I find there was a significant risk of physical harm to I.N. at the time of her apprehension two years ago, due to parental abuse and/or inadequate care and supervision. The investigation by the Society, and police was inconclusive and the expert evidence of Dr. Ward from CHEO could not time or date the injuries. No charges have been laid. I am unable to find on a balance of probabilities how the injuries occurred, when they occurred and who had charge of the child at the time. Therefore, there was and continues to be a risk to I.N. while in the care of either of her parents. The question is what has been done and what can be done to alleviate that risk.

[103] Since the Society’s involvement, L.R. and S.F. have cooperated fully with the Society; have accessed services; have received positive reports from the service providers; and have had another child. The evidence of all outside professionals is that both I.N. and A.F. have been and continue to do well in the care of L.R. and S.F.

[104] Regarding L.R., Dr. Wood concluded there was no clear evidence to indicate that L.R. intentionally caused injury to I.N. She has no known history of violence towards others and her psychological scores were in the normal range for non-abusive parents. There were no concerns regarding her interaction with I.N. at the Family Court Clinic, where L.R. and I.N. were observed as having a loving bond. There have been seemingly no recent injuries to I.N., aside from scrapes and bruises that were felt to be typical toddler injuries when assessed by workers at the agency and by Dr. Ward.

[105] Dr. Wood Concludes:

There was no evidence to suggest that L.R. would present an increased risk to purposely harm or abuse her daughter, I.N.

[106] Regarding S.F., Dr. Wood commented:

In general, there was no evidence to suggest that S.F. would present a risk for purposely harm or abuse his step-daughter. Overall, it was our sense that he has had a definite stabilizing effect on L.R. and his calm, laid-back approach is no doubt helpful when he and L.R. are with I.N. or with A.F.

[107] Ultimately, Dr. Wood recommended the placement of I.N. with L.R. and S.F., albeit under the terms and condition of a continued supervision order.

[108] Based on all the evidence, I find on the balance of probabilities that E.N. presented, at the time of apprehension and continues to present, more of a risk to I.N. His significant past and present physical and mental health issues including: chronic pain, previous abuse of prescription pain killers, extensive use of now medically prescribed marijuana (up to 5 grams, or according to police evidence, 15-18 joints a day), ADHD which remained untreated until just before trial and his history of impulsive and somewhat aggressive behaviour, all point to, as noted by Dr. Wood, “Greater concerns in regards to E.N.’s risk to have difficulty providing a protective environment for I.N., and possibly even for responding in a possibly harsh or physical manner to his daughter, without premeditation.” Dr. Wood further noted, “The greater risk that E.N. poses is his lack of anticipation and common sense as far as keeping I.N. out of dangerous situations.”

[109] What has E.N. done to alleviate the risk? Unfortunately, E.N. remains uncooperative with the Society; has not attended or participated in parenting programs; has not taken medication for his ADHD until recently; continues to extensively use marijuana for pain; did not attend an alcohol or drug assessment or treatment; has not attended anger management, and refused to sign consents for the Society to access information from his service providers. With the support of his mother and step-father, he has breached the majority of the terms of the interim supervision order.

[110] E.N. continues to search I.N. for injuries and overreacts to what the Society workers, Dr. Ward and Dr. Wood all consider as stated by Dr. Wood, “minor injuries which most reasonable parents would see as typical for clumsy toddlers such as I.N.”

[111] Dr. Wood testified this hyper-vigilance can cause risk of emotional harm to I.N. and undermine her strong attachment to her mother and S.F. E.N. continues to discredit and undermine the importance of L.R. and S.F. in I.N.’s life given his fixation on proving that L.R. is an abuser. Dr. Wood concludes:

It would be very important for I.N. to have parental figures who can work together cooperatively rather than discrediting and demeaning one another in I.N.’s presence. Any protracted and acrimonious dispute over custody and access issues will predictably have a serious traumatic impact on I.N.

[112] Therefore, there remains a significant risk to I.N.’s physical, mental and emotional development if placed in her father’s care.

I.N.’s Needs

[113] L.R. and S.F., with the assistance of J.S. and B.F., have been able to meet all of I.N.’s physical, emotional and mental needs. The developmental delay in expressive language, noted by Dr. Ward in February, 2014, has been addressed by the involvement of the Infant Development worker, Erin Lavier, who testified that I.N. is now meeting age appropriate milestones. Ms. Lavier will continue to monitor I.N.’s developmental progress.

[114] I.N.’s anterior tibial torsion causes her to have a somewhat knock-kneed appearance but the evidence of Dr. Ward is this will improve with time.

[115] I.N. is described by the Family Court Clinic as having no behavioural problems. J.S. describes her to the Family Court Clinic as “a happy little girl whose strengths were identified as loving to learn, watch and repeat what adults do. She is learning every day.” Dr. Wood indicated that I.N. presented as “a happy and content child who actively engaged with L.R. and S.F. and E.N. She displayed appropriate attachment to both sets of parents and expressed normal stranger anxiety to the team at the Family Court Clinic.”

[116] The real difficulty, as noted above, is E.N.’s undermining of L.R. and S.F.’s relationship with I.N. by continually checking her for injuries. In addition, his well-documented physical and mental health difficulties raise significant concerns as to E.N.’s ability to meet I.N.’s long-term needs.

Relationships and Continuity of Care

[117] For almost two years, I.N. has been well cared for and has thrived as a member of the S/F/R family. Continued contact and involvement with J.S. and B.F. will be important to I.N.

[118] I.N. has a positive attachment to L.R., S.F. and E.N. In addition, as noted, she has a significant ongoing relationship and attachment to J.S.

[119] E.N.’s mother and step-father have supported E.N.’s focus on L.R. and S.F. as abusers and have encouraged his continued checking of I.N. for injuries on visits. P. K. and M.F. do not have a relationship of significance with I.N.

Merits of Plans

[120] Since May, 2014, L.R. and S.F. have resided with S.F.’s mother, J.S. and B.F. with the Society’s approval. There have been no injuries of any significance to I.N. and no concerns with regards with respect to their new child, A.F.

[121] L.R. and S.F. testified they plan to rent a townhouse and to gradually move into that townhouse with both children. They acknowledge the girls are attached to J.S. and a gradual move would be in their best interests.

[122] L.R. is now working as a hair stylist at a salon. S.F. is receiving WSIB as he has injured his right hand and wrist. S.F. testified that he awaiting medical assessment regarding ongoing treatment but in the interim, he assists his mother at her home daycare.

[123] L.R. and S.F. plan to continue to have both I.N. and A.F. attend J.S.’s home daycare and I.N. will attend […] School in S[…] for junior kindergarten. There is no question I.N. has the support of the S/F extended family and also L.R.’s parents.

[124] L.R. and S.F. have fully cooperated with the Children’s Aid Society and have accessed all programs and services recommend to them. They will continue to do so if required. Both L.R. and S.F. presented as having a positive family life and being very child oriented.

[125] As noted at the outset, E.N.’s plan is not clear. Even at the end of trial, it was somewhat vague as to whether the request was for I.N. to be placed with E.N. or his mother, P.K. or both. There was no real plan put forward other than a proposal for daycare funded in part by the military. E.N. testified he purchased, with funds received from the military, some property on which he has a camper and where he plans to possibly build in the future. His plans with respect to long-term housing are unclear. At present, he resides with his mother, step-father, and younger sister.

[126] E.N. testified he receives $2000-$2500 per month from the military which will continue until he finishes his education and obtains a job for 75 percent of his salary while in the military. He has not yet commenced any further education given his problems focusing and dealing with his pain management. He hopes to perhaps obtain a diploma in horticulture in the future but again his plans were vague.

Conclusion

Placement

[127] Based on all the evidence and taking into consideration the relevant factors as to I.N.’s best interests under section 37(3) of the Act along with the other relevant considerations in the legislation, I find on a balance of probabilities I.N.’s best interests will be met by her remaining in the care of her mother, L.R. and step-father S.F. under a custody order pursuant to section 57.1 of the Act. Although Dr. Wood recommended a continued supervision order, his recommendations were made over a year ago. In the intervening time, there have been no concerns expressed by any of the professionals dealing with L.R. and S.F.; they have continued to cooperate fully and follow the terms and conditions of the interim supervision order and the Society is clear they have no protection concerns at this time. That being said, given that L.R. and S.F. have not resided on their own with the two children, it is strongly recommended the Society monitor I.N. during the first few months after L.R. and S.F. begin to reside on their own and ensure, as recommended by Dr. Wood, I.N. attends her medical check-ups on a regular basis and attends daycare, possibly with J.S., on a regular basis. This monitoring could be undertaken by way of a voluntary services agreement.

Access

[128] As previously stated, there is a presumption for access as long as it is in I.N.’s best interests. As previously noted, there is a great deal of love and affection and a strong attachment between E.N. and his daughter, I.N. Unfortunately, E.N. has difficulties making the access an ongoing positive influence on his daughter’s life, as he continues to search her for bangs, bumps or bruises and to overreact to minor injuries which, as noted by the professionals, are typical for clumsy young toddlers. He is thereby undermining the attachment between L.R. and S.F. and I.N.

[129] To terminate E.N.’s access to I.N. and her contact with him would be an extreme measure and should only be undertaken in the most extreme cases. Although there are difficulties as documented, it is hoped that after the judgment of this Court, E.N. will be able to moderate his behaviour in order to continue to have a meaningful relationship with I.N. Therefore, I order E.N. have access to I.N. once every two weeks for a minimum of two hours, fully supervised at a supervised access facility such as the Rose Garden, until the following recommendations of the Family Court Clinic have been met to the satisfaction of the Court:

− Attendance at a parenting education program with respect to safety issues for toddlers;

− Continuing to have appropriate treatment of his adult ADHD as confirmed by a medical practitioner;

− Attending anger management counselling;

− Refraining from the use of marijuana while in the caretaking capacity with I.N.

[130] In addition, E.N. will need to demonstrate he will no longer focus on searching I.N. for injuries during access visits. His visits with I.N. are to continue the beneficial and meaningful relationship I.N. has with her father. A further undermining of the equally positive and beneficial relationship I.N. has with her mother and S.F. could be a reason to make further changes to his visits or terminate them altogether.

[131] I know E.N. has a deep and abiding love for his daughter and I am giving him the opportunity to continue his relationship through visits with I.N. which I find to be in I.N.’s best interests. If E.N. is able to follow the recommendations of the Family Court Clinic and stop focusing on searching I.N. for injuries, it may be that in the future the supervision of his access will no longer be necessary.

Blishen J.

Released: January 25, 2016

2016 ONSC 599

COURT FILE NO.: 75/14

DATE: 2016/01/25

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

ONTARIO

SUPERIOR COURT OF JUSTICE

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

AND IN THE MATTER OF I.N.

BETWEEN:

Family & Children’s Services of Lanark, Leeds and Grenville

Applicant

– and –

L.R.

– and –

E.N.

– and –

S.F.

Respondents

Reasons for Decision

Blishen J.

Released: January 25, 2016