minicounsel

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

-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster– parent or a member of the child’s family.
-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both

COURT FILE NO.: C-274/16 DATE: 2017-04-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton Applicant – and – A.S. (Mother) -and- C.P. (Father of A.S-P.) -and- J.B. (Father of A.B.)

and- N.S. (Paternal Grandmother of A.S-P.) Respondents A.H. (Paternal Grandmother of A.B.) Not a Party to this Proceeding

Counsel: Treena Watts, for the Applicant A.S. (Mother) – Not appearing C.P. (Father of A.S-P.) – In default, not appearing J.B. (Father of A.B.) – In default, not appearing N.S. (Paternal Grandmother of A.S-P.) – In-person Jennifer Swan – Counsel for A.H. (Paternal Grandmother of A.B.)

HEARD: April 3, 4, 5, 2017

THE HONOURABLE MR. JUSTICE A. PAZARATZ

1This scheduled 10 day Crown wardship trial ended up virtually uncontested by the parties. However, for reasons set out below, the trial proceeded for two and a half days primarily on the issue of a plan presented by a paternal grandmother who was never made a party.

The People

[2] There are two children: a. A three and a half year old daughter A.S-P.. b. And a 21 month old son A.B..

3The mother of both children is A.S., age 20.

4The father of A.S-P. is C.P., age 20.

5The father of A.B. is J.B., age 21.

6C.P.’s mother (A.S-P.’s paternal grandmother) is N.S.. She was named as a party to the action.

7J.B.’s mother (A.B.’s paternal grandmother) is A.H.. She was not named as a party to the action.

Society’s Application

[8] On February 24, 2016 the Children’s Aid Society of Hamilton (“the Society”) commenced a Protection Application seeking: a. A.S-P. to be placed with N.S. for a period of six months, under Society supervision. Access to A.S-P. by A.S. and C.P. to be in the discretion of the Society. J.B. to have no access to A.S-P.. b. A.B. to be made a Crown ward with no access by A.S. or J.B..

[9] On September 14, 2016 the Society filed an Amended Application seeking: a. A.S-P. to be placed in the custody of N.S. pursuant to s.57.1 of the Child and Family Services Act (“the Act”). Access to A.S-P. by A.S. and C.P. to be in the discretion of N.S.. J.B. to have no access to A.S-P.. b. The Society did not change its request that A.B. be made a Crown ward with no access by A.S. or J.B..

Trial Dynamics

10The following dynamics were addressed at the commencement of trial on Monday, April 3, 2017:

[11] Neither of the fathers, C.P. and J.B., have ever filed Answers, in relation to the original or amended Society Applications. a. They were both noted in default on June 13, 2016 and again on January 9, 2017. b. Neither of them have any involvement with either child.

[12] N.S. attended at the opening of trial. a. She has never filed an Answer but she and the Society have been cooperating fully. b. A.S-P. has been in N.S.’s care since November 2015, initially under a kinship service arrangement and later pursuant to a temporary order. c. The evidence overwhelmingly supports agreement between the Society and N.S. that A.S-P. should be placed in N.S.’s custody pursuant to s. 57.1 of the Act.

[13] The mother A.S. did not attend court when the trial was called at 10:00 a.m. on April 3, 2017. a. The mother had filed an Answer requesting that both children be returned to her care, if necessary subject to a supervision order. b. A.S. was represented by counsel on September 19, 2016 when this trial was scheduled. c. Her lawyer subsequently brought a motion to be removed from the record. On October 28, 2016 that Order was granted. d. I received evidence that A.S. has largely fallen out of touch with the Society. She had her last visit with the children on January 31, 2017. She has not disclosed her whereabouts. e. I concluded that the Society had made reasonable efforts to maintain communication with the mother by text and by telephone. f. I also concluded the Society had made reasonable efforts to notify the mother that the matter had been called to trial for the morning of April 3, 2017. Those efforts included text and telephone messages on Friday, March 31; Sunday, April 2; and again prior to 10:00 a.m. on the morning of the commencement of the trial. g. At 12:30 p.m. the mother was paged again, with no response and no indication that she planned to attend. h. At that point, relying upon the Society’s unchallenged evidence in relation to A.S-P., I made a final order placing the older child in N.S.’s custody. That eliminated the need for N.S. to remain in attendance. i. The only remaining issue related to the younger child A.B., and the trial proceeded for the duration of April 3; all day April 4; and until about 1:00 p.m. on April 5. On each day the mother was paged but did not attend. j. As the trial concluded on April 5th I received updated evidence of Society worker Natasha Escott’s continuing efforts to encourage the mother to attend and participate in the trial. Those efforts included an exchange of texts on the afternoon of April 3 in which A.S. actually stated that she would most likely be attending for the second day of the trial on April 4. k. However, as stated, the mother never attended. I proceeded in relation to both children on the basis of the evidence presented during the trial.

[14] When the trial commenced, a preliminary issue arose in relation to A.S-P.’s paternal grandmother A.H. a. On February 28, 2017 – after the trial sittings had commenced and with this trial imminently to be called – A.H. brought a motion requesting that she and her partner J.H. be added as parties. She wished to present a plan for A.S-P. to be placed in her care. At the time A.H. was representing herself. b. The motion was argued before me on March 10, 2017 based on affidavit materials. c. On March 14, 2017 I issued a 22 paragraph endorsement dismissing A.H.’s request. d. However, when the trial commenced on April 3, 2017, A.H. attended with a lawyer she had retained. Her lawyer advised that A.H. had filed a Notice of Appeal in relation to my dismissal of her motion to be added as a party. The grounds for appeal were somewhat unusual: A.H. said she had never been served with one of the affidavits the Society relied upon in resisting her motion. e. The Society seemed surprised by the allegation. It disputed that there had been any irregularity with service of documents. It would be relying on an affidavit of service indicating that a collection of documents – including the disputed affidavit – had been properly served on A.H.. f. Nonetheless, A.H. insisted that even though she received all of the other documents referred to in the Society’s Affidavit of Service, an important affidavit was missing.

[15] This prompted some discussion about trying to take a practical approach to the situation. a. Despite the Society’s expressed confidence that A.H.’s appeal would be unsuccessful, I invited counsel to consider all possible eventualities. b. We were dealing with a Crown Wardship application for a 21 month old boy who has been in foster care almost his entire life. It was critical that we attempt to achieve some permanence in his life, in a fair and unassailable manner. c. We had 10 days of trial time allocated. With the mother failing to attend, the Society would otherwise be proceeding on an uncontested basis. d. But if it was ultimately determined that there had been a procedural defect with respect to A.H.’s motion to be added as a party, natural justice might well lead to a re-visiting of A.H.’s potential status – and perhaps even a new trial. e. And even though one of the reasons I dismissed A.H.’s motion was because of concern that it would delay proceedings, A.H.’s lawyer indicated there would be no delay because A.H. was prepared to participate in the trial immediately and as scheduled. f. I invited counsel to explore whether some agreement might be reached to allow A.H.’s plan to be considered by the court.

[16] To their credit, after lengthy deliberations, counsel for the Society and A.H. reached agreement: a. A.H. would not be added as a party. b. But A.H. would be permitted to testify and outline her proposal that A.B. should be placed in her care. c. The Society would call some additional brief witnesses to deal specifically with A.H.’s proposal. d. A.H. would withdraw her request that she be added as a party. She would abandon her appeal. e. The extra time required for all of this would be perhaps two days of trial time. In the scheme of things, it was a reasonable allocation of resources to ensure fairness, and guard against A.B. getting caught up in future legal wrangling.

17Notably, A.H. did not dispute – in fact, nobody disputed – the overwhelming evidence in relation to the parents A.S., C.P. and J.B..

18At trial, nobody disputed the need for protection findings in relation to both children. Nobody disputed that the appropriate disposition for A.S-P. was to be placed in N.S.’s custody.

[19] A.H. did not dispute what the parents had done – particularly her son J.B.. This trial was really about: a. How much did A.H. know about what the parents were doing and what the children were exposed to? b. Should A.H. have done more to protect the children from the parents? c. Can A.H. be entrusted to care for A.B. and protect him in the future, if the now 21 month old boy were to be placed in her care?

Evidence at Trial

20I received and considered a significant amount of evidence.

[21] The Society presented affidavits of the following Child Protection Workers: a. Susan Smarz, dated January 26, 2017. b. Jojy Luke, dated January 11, 2017. c. Jennifer Conroy, dated January 24, 2017. d. Natasha Escott, dated January 27, 2017.

[22] The Society called the following witnesses: a. Natasha Escott (supplementing and updating her affidavit). b. Lisa Topa (Child Protection Worker). c. Olga Bakai (Child Protection Worker). d. Constable Katrina Farrell (Hamilton Police Service). e. Detective Harold Harris (Hamilton Police Service).

[23] The Society also filed and relied upon the following: a. Business records from Interval House relating to A.S.. b. Multiple occurrence reports from Hamilton Police Service relating to A.S. and J.B.. c. Society Access Centre visit notes from August 24, 2015 to February 23, 2017. d. Ten page medical report dated September 22, 2015 from pediatrician Dr. Nura Hawisa, prepared for the Child Advocacy and Assessment Program (CAAP) in relation to injuries sustained by the child A.S-P. at age 22 months. e. Forty-eight 8x10 colour photographs of multiple and significant bruises and injuries all over A.S-P.’s body. f. A transcript of proceedings before Justice F. Campling of the Ontario Court of Justice on June 15, 2016, at which time J.B. pleaded guilty to seven charges including assaults upon both A.S. and A.S-P.. g. A 319 paragraph Request to Admit dated January 27, 2017, issued by the Society and served upon A.S. on January 31, 2017. A.S. did not respond to this document or challenge any of its contents. h. The Society’s Plan of Care.

24A.H. testified in support of her proposal.

The Parents’ Story

[25] The following is a brief summary of the facts relating to A.S., C.P. and J.B.. a. A.S. has a history of being involved in multiple violent relationships with men. b. In June 2014, A.S. went to the Martha House shelter with A.S-P., indicating that C.P. had been physically, emotionally and psychologically abusive with her. She said A.S-P. had witnessed domestic violence, and A.S. wanted to leave the relationship. c. That’s when the Society became involved. They tried to help A.S. develop a safety plan. But rather than engage in recommended services to address domestic violence, A.S. almost immediately entered into new relationship with J.B. – who ended up being more violent than C.P.. d. And as with C.P., throughout the whole of her relationship with J.B., A.S. denied that he was abusive. e. On August 21, 2014 police attended at A.S.’s apartment for a report of a domestic disturbance. A.S. and J.B. both denied any conflict. They said they had just been talking loudly. f. On August 25, 2014 a Society worker asked the couple about reports of yelling, trashing the backyard, and breaking items. They denied anything had happened. A.S. had several large bruises on her left arm. She said they had been play fighting. J.B. had a black left eye. He advised the Society he didn’t remember who had hit him, and he would not answer further questions about it. g. On August 28, 2014, A.S. took A.S-P. to stay with the paternal grandmother N.S., as she was facing eviction from her apartment. h. On September 4, 2014, A.S. told a Society worker that J.B. had a bad temper and got mad easily. But she denied any abuse and said it was all play fighting. She said she bruised easily. A.S. told the Society J.B. had punched holes in walls and broken windows. She couldn’t explain why. i. On September 4, 2014 A.S. developed a safety plan with the Society which included A.S-P. remaining with N.S.. j. Thereafter there were more police calls about disturbances between them, and damage to A.S.’s residence. k. On October 5, 2014, A.S. moved into an apartment on Rosslyn Avenue in Hamilton. J.B.’s mother A.H. found her the apartment. It was right beside A.H.’s own apartment on the second floor of a house converted into a triplex. The two apartments were separated by a common wall. The proximity of those two apartments came to be an important issue in this case. l. After A.S. moved in she brought A.S-P. home to live with her. m. The Society kept coming around to see how she was doing. A.S. advised the Society that J.B. wasn’t actually living with her. She said he was still living next door with his mother, A.H.. But she admitted he visited a lot. A.S. insisted to the Society that there was no domestic violence between them. n. On December 17, 2014, A.S. advised the Society that things were going well and there were no issues with domestic violence. But on December 24, 2014 police again attended A.S.’s residence for a domestic disturbance. A.S. told police she wasn’t worried about her safety or A.S-P.’s safety. She said it was just a verbal fight. o. On February 4, 2015, A.S. was seen with a black eye. She advised the Society that A.S-P. had thrown a toy at her and it caused the bruise. She denied J.B. had been violent. p. On February 13, 2015, A.S. advised Society worker Olga Bakai that there was ongoing conflict in the relationship, but it was only verbal. She told the worker that when they argue, J.B. wants to leave to cool down – but she will yell at him, discourage him from leaving and this escalates him further. A.S. admitted to Bakai that holes in the drywall of her apartment were the result of J.B. throwing objects at the wall. q. On February 27, 2015, police attended at A.S.’s apartment because J.B. had kicked five holes in the wall and the door to A.S-P.’s room. The front door of the apartment was off the hinges. A.S. declined to complete a Victim Impact Statement and refused to allow police to take photos of the damage. J.B. was charged with mischief under $5,000.00. He was placed on conditions prohibiting him from having contact with A.S.. r. A.S. didn’t initially disclose the criminal charge to the Society. When a Society worker found out about it in March 2015 and expressed concern about J.B.’s escalating violence, A.S. said she knew it looked bad, but things were improving. A.S. was pregnant with A.B. at that point. She said bruising on her arm was caused by A.S-P.. s. In March 2015, the Society reminded A.S. she should have no contact with J.B.. But A.S. said she wanted the “no contact” criminal order lifted because she wanted J.B. to be part of their baby’s life. t. The Society continued to work with A.S., warning her that J.B. was dangerous. A.S. expressed confidence that J.B. was taking his medications again. By May 2015, she advised she was planning on reconciling with him. u. In June 2015, A.S. advised the Society that the outstanding charges against J.B. were going to be dropped, and that he would be taking a Men’s Anti-Violence program. A.S. said they would be reconciling, but J.B. would still be living next door in his mother’s apartment. v. On […], 2015 A.S. gave birth to A.B.. w. On July 15, 2015, the Society made an unannounced visit to A.S.’s residence. They found J.B. hiding in a bedroom with A.S-P., even though he wasn’t supposed to have any contact with A.S.. The Society reminded them that J.B. could only attend A.S.’s apartment if J.B.’s mother A.H. was present. A.S. and J.B. agreed. But on July 27, 2015 Society workers returned to A.S.’s residence unannounced. Once again, J.B. was there. A.H. wasn’t. x. During the July 15, 2015 meeting, the Society urged J.B. to start taking his medications regularly, because his aggressive behaviour escalated when he was off his medications. y. On August 10 or 11, 2015, A.S-P. was seen with a bruise on her face, near her cheek. A.S. explained that A.S-P. fell off a swing at the park. z. On August 14, 2015, A.S. fled from the apartment with one month old A.B. and contacted police, reporting that J.B. was damaging the apartment. When police arrived, they arrested J.B. after observing that the child A.S-P. was covered in bruises. The mother advised police that J.B. had assaulted her two days earlier, leaving her with bruises. She told officers that over the past couple of weeks J.B. had been keeping A.S-P. away from her in a separate bedroom. She said J.B. destroyed a baby bassinette she had purchased for their son A.B.. She also told police that on August 12, 2015 she heard loud thumping noises coming from A.S-P.’s room – and A.S-P. could be heard crying. (She later described it as a slapping sound.) When she asked J.B. about it, he responded by punching her in the arm and the right side of her head. She said she ultimately fled with A.B. after J.B. threw a pot from the stove at her, narrowly missing her and A.B.. He also started throwing black paint all over the kitchen. A.S. ran from the apartment, leaving A.S-P. behind. aa. As a result of the August 2015 incident J.B. was charged with 17 offences including assaults on A.S. and A.S-P.. bb. A.S. later said she knew J.B. had been hitting A.S-P. for about two weeks. She said J.B. had been “acting weird” ever since A.B. was born. But she said she didn’t called police sooner because J.B. had threatened to kill her and the children. A.S. said J.B. had thrown her on the bed, stomped on her head, and kicked her head, arms, legs and back. cc. But when A.S. was advised that both children were being apprehended following the August 14, 2015 incident, A.S. stated: “I shouldn’t have called.” She then started changing her story and said she didn’t know J.B. had been abusing A.S-P.. She said A.S-P. didn’t have any fear of J.B.. dd. Upon apprehension, both children were taken into care. Eventually A.S-P. was placed with N.S. where she still resides. A.B. has remained in foster care since he was one month old. ee. Following J.B.’s arrest, A.S. briefly entered into a relationship with his brother. ff. On September 25, 2015 J.B. was released on bail. He was to reside at his grandfather’s residence. gg. On September 30, 2015, A.S. and J.B. were seen getting into a cab together outside her home. When J.B. saw police approaching he ran away. A.S. explained that J.B. had come by to give her a goodbye kiss. She said he had apparently “changed” since his release from jail. She told the Society they were still in love. hh. On October 1, 2015 police attended at A.S.’s residence around midnight looking for J.B.. She refused to let them in. ii. On October 2, 2015 police attended her residence again. She was home but failed to respond when they knocked. Police then kicked in her door and discovered J.B. hiding in an attic section connecting A.S. and A.H.’s apartments. J.B. was re-arrested. jj. On October 16, 2015, A.S. told the Society she didn’t want to be with J.B. but feared he would act upon suicide threats if she left him. kk. On February 27, 2016, A.S. contacted police to advise that J.B. was sending her unwanted messages (from jail) through Facebook. ll. On June 15, 2016, J.B. entered a guilty plea in relation to seven of the charges against him, including assaults upon both A.S. and A.S-P.. He remains in custody serving his sentence in relation to those charges – in addition to “institutional charges” for more problems he caused while in jail. mm. J.B. has not seen A.S-P. or A.B. since August 2015.

[26] Meanwhile, A.S.’s situation has remained unstable. a. The mother failed to engage with recommended community services, including the Get Connected Program and Violence Against Women counselling. Despite attending an appointment in November 2015, the mother declined further services. The mother said she would be accessing services through a woman’s shelter, but she did not follow through. b. In February 2016, A.S. advised she was in a relationship with a new boyfriend. But on March 13, 2016 the boyfriend called police to remove A.S. from the home. She was intoxicated and refused to leave. She was arrested after she began kicking police officers. She had to be restrained on the ground, handcuffed and placed in a police van. She refused to attend a shelter or detox facility. c. By April 2016, A.S. had returned to the boyfriend’s residence. But police again had to be called after a verbal dispute and a small struggle over an iPad. She advised police the boyfriend had assaulted her. d. On June 4, 2016, the boyfriend again called police to have A.S. removed from his home. She was intoxicated. After going to a friend’s home, she and the boyfriend reconciled a few days later. e. In July 2016, the boyfriend kicked her out again. f. The mother had no stable residence. She refused to attend a shelter or agree to have access at the Society’s Access Center. As a result, her access visits were put on hold. Those visits were scheduled to recommence at the end of July 2016, but the mother did not attend the first two visits and access was again placed on hold. g. Also in July 2016 the Society received information the mother was working as an escort. Although the mother initially denied this, she eventually admitted to escorting. She said the partner she had been living with had introduced her to this. She later admitted to the Society that her work as an escort is one of the reasons she hasn’t been able to attend for access regularly. h. The mother advised the Society she had obtained a new residence in August 2016. However she was not home when a worker came by for a scheduled visit to see her new residence. She subsequently advised that she would be moving again. i. The mother’s visits were reinstated in August 2016, but she continued to miss many visits, and she failed to stay in touch with the Society. j. A.S. has shown no insight into the impact of exposing her children to domestic violence. She has failed to protect them from real and foreseeable dangers which resulted in A.S-P. not only witnessing but also suffering horrible abuse. She continues to pursue a dangerous and unstable lifestyle, unaware or unconcerned about the danger her decision to escort presents to her own safety and any child placed in her care.

27The evidence clearly shows that during all of this time the Society was consistently trying to work with A.S. to deal with multiple issues including health, lifestyle, substance abuse, housing, parenting and domestic violence issues. But she hasn’t followed through. She hasn’t kept in touch with the Society. And her access has been irregular.

[28] As stated, C.P. and J.B. have both been noted in default. a. Neither father has had any access to either child in a very long time. b. Both fathers are overwhelmed with personal, behavioural and lifestyle problems. c. The Society has well-founded confidence that N.S. will continue to properly care for A.S-P., and that she can be trusted to exercise discretion as to any access between C.P. and A.S-P.. d. There is no circumstance in which it would be safe for J.B. to have any access to A.S-P. or unsupervised access to A.B.. e. The facts overwhelmingly support the relief requested by the Society, in relation to both fathers.

[29] As for A.S., the uncontroverted evidence overwhelmingly establishes that neither of these children could be safely returned to the mother. a. She has repeatedly made choices – and lied – to promote her own objectives, in complete disregard of the jeopardy and physical harm she has exposed her children to. b. She has no insight with respect to her own pattern of destructive personal relationships. She has ignored repeated attempts by the Society to help her address issues related to domestic violence. c. She has exposed the children to violence. To violence against her by J.B.. To violence she participated in. And to violence which directly and significantly harmed A.S-P.. d. She has repeatedly and consistently demonstrated a fundamental lack of insight with respect to the impact of witnessing domestic violence – in all its forms – on young children. e. She and J.B. both repeatedly ignored not only directives and safety plans formulated by the Society – but they also repeatedly breached a series of court orders prohibiting J.B. from having any contact with A.S. or attending at her residence. f. A.S. clearly lacks any ability (or inclination) to provide either child with a safe and stable environment.

A.H.’s Story

[30] As stated, A.H. didn’t dispute any of that narrative in relation to A.S. and J.B.. a. But she insisted she knew little about what was going on in the apartment next door. b. She denied ever committing to the Society that she would be part of a “safety plan” to prevent A.S. and J.B. from fighting, and to protect A.S-P.. c. She said she wasn’t around much and she was powerless to intervene. d. Now she wants her grandson A.B. in her care. e. She says the Society has unfairly rejected her as a potential caregiver for A.B., and they are blaming her for her son’s wrongdoing. f. And she promises to keep A.S. and J.B. away from the child, and to fully co-operate with the Society in the future.

[31] For reasons set out below, I do not accept A.H.’s proposal or her version of events. a. I found all of the evidence presented by the Society to be credible and internally consistent. b. I did not find A.H. to be a credible witness, and there were many inconsistencies in her story. c. To the extent that A.H.’s evidence conflicted with the evidence of Society workers and police officers, in every instance I found the Society’s witnesses to be more accurate and reliable.

[32] A.H. briefly described the chronology: a. Her son J.B. and A.S. started seeing one another in June 2014. b. A.H. didn’t know A.S. very well when she found her the adjacent apartment. c. At that point J.B. was still living with A.H.. d. But once A.S. moved in to the building, J.B. spent most of his time with his girlfriend.

A.H. & The Society

[33] A.H. described her first involvement with the Society in relation to A.S.. a. In October 2014, soon after moving in, A.S. invited A.H. to come over to meet a Society worker. b. A.H. testified she had no prior knowledge of the meeting. It took place in A.S.’s kitchen and lasted about five minutes. c. A.H. said the discussion with the Society worker wasn’t very detailed. At that point A.S. only had the one child A.S-P.. d. A.H. confirmed to the worker that she had helped A.S. by finding the apartment. A.H. volunteered that she would help A.S. in the future “as best I could”, if she needed parenting help, supplies, or someone to talk to. e. A.H. testified there was no specific expectation that she would assume responsibility for A.S.. She simply told the worker she’d help the single mother if she could. f. She also volunteered that the Society could use A.H.’s telephone number if they needed to reach A.S., because A.S. didn’t have a phone of her own.

[34] I accept the evidence of Society witnesses (including Smarz and Escott) that A.H. has understated the nature and extent of her communications with the Society. a. As of October 2014, the Society had good reason to worry about A.S.’s judgment and history of partnering with violent men. b. As of October 2014, A.S. had already told the Society that J.B. had a bad temper and got mad easily. c. As of October 2014, A.H. knew that J.B. had what she described as a short fuse. He was subject to what she minimized as “little outbursts” when he’s not on his medication. She testified that he wasn’t really a violent person, but she knew he sometimes broke things when he was angry. d. I accept the evidence that during the October 2014 meeting the Society made it clear to A.S. and A.H. that they were very concerned about the unstable and volatile environment A.S-P. was being exposed to. e. I accept the Society evidence that A.H. reassured the worker that “she checks in on the mother all the time.” f. I find that as far back as October 2014, the Society was conveying to A.H. serious concerns about A.S. and J.B.; and A.H. was reassuring the Society that she would watch for signs of inappropriate or dangerous behaviour in the adjoining apartment. g. Indeed, even if she hadn’t been asked and agreed to keep an eye on things, as of October 2014 A.H. knew her unpredictable and explosive son had moved in with a woman who had a (then) one-year-old vulnerable child. It is beyond comprehension that A.H. could have been so indifferent to the dangers that child was obviously being exposed to.

[35] A.H. testified about her next meeting with the Society concerning A.S.. a. It was a Saturday around Valentine’s Day in February 2015. Once again, without any prior discussion A.S. asked A.H. to come to her apartment to meet with a Society worker. b. There had been conflict between J.B. and A.S.. The emergency worker asked A.H. to make sure J.B. and A.S. stayed away from each other for the balance of the weekend, until a regular worker could get involved and try to work out more long-term arrangements. c. A.H. agreed to take J.B. over to his grandfather’s house. But A.H. also told the worker she wouldn’t be around to monitor the situation because she had pre-arranged Valentine’s Day dinner plans with her fiancé. d. A.H. testified her understanding was that the Society was merely asking her to try to keep J.B. and A.S. apart for the weekend. She didn’t perceive it to be a long-term request, and she was unaware of any stipulations about whether J.B. could have contact with A.S-P.. e. A.H. said she dropped J.B. off at his grandfather’s residence. She then went to dinner and spent the night at her fiancé’s. f. The following day when she returned home, A.H. discovered that J.B. had already returned to A.S.’s apartment. g. Under cross-examination she admitted she never advised the Society J.B. had breached the agreement that he would stay away for the weekend.

[36] Society worker Olga Bakai testified about that February 2015 meeting with A.S., J.B. and A.H.. a. As an after-hours emergency worker, Bakai received a call from an emergency room doctor from McMaster Medical Center. A.S-P. had been brought in by A.S. and J.B. concerning a tibia fracture. b. The doctor didn’t have concerns about the fracture itself: the explanation of accidental injury matched the injury itself. c. But the doctor was concerned about the level of conflict between the parents earlier in the day. And the fact that A.S-P. had been present during the conflict.

[37] Bakai testified she ended up attending the mother’s residence, where J.B. and A.S-P. were present. A few minutes later A.H. arrived. Bakai spoke to all of them. a. The worker testified the conversation was mainly about safety concerns in the home: the lack of doors and staircase barriers. b. A.S. and J.B. admitted there had been a verbal conflict earlier that day. c. J.B. admitted to Bakai that he had thrown a chair at a wall. Bakai said she observed damage to the wall. d. J.B. explained he has ADHD and he has trouble controlling his anger. He said when he feels angry he goes for a walk. But A.S. admitted that when J.B. gets angry and tries to walk away, A.S. stops him from leaving and further escalates the situation. e. Bakai testified that with A.H.’s rented portion of the building being adjacent to A.S.’s, A.H. confirmed she was aware of verbal conflict between A.S. and J.B.. f. Bakai said she asked A.H. to help with safety planning. She said A.H. agreed. g. Bakai proposed that for the balance of that weekend, A.S. and J.B. were not to be alone together with A.S-P.. They all agreed. h. A.H. agreed she would be present if J.B. was to have contact with A.S-P.. However, this discussion took place on a Saturday. A.H. said she couldn’t be present Saturday night as she had pre-arranged Valentine’s dinner plans. All three adults agreed J.B. would go to his grandfather’s residence while A.H. went to her Valentine’s dinner.

[38] I accept the evidence of Bakai that on February 14, 2015 she asked A.H. to participate in a safety plan, to ensure that J.B. was never alone with A.S.. A.H. agreed. But A.H. failed to follow through. a. Even by A.H.’s own admission, she agreed to ensure that J.B. stayed away from A.S. through the balance of Valentine’s Day weekend. b. Yet she testified that when she came back to her residence on the Sunday, she saw that J.B. had returned to A.S.’s apartment. She knew the Society had good reason to worry about him being there. c. She failed to follow through on her commitment to the Society.

[39] A.H. testified about another impromptu meeting with a Society worker in A.S.’s kitchen on May 20, 2015. a. She said Society worker Lisa Topa expressed concern that A.S. and J.B. were always fighting. The worker was also concerned about some holes in the walls in A.S.’s apartment. A.H. testified she understood they had thrown something at the wall. b. She said the Society asked that she “keep my ear out” and watch out for any problems in A.S.’s apartment. c. She testified she told the Society she would do the best she could. But she reminded them that she had to work full-time, and she also spent most evenings at her fiance’s residence. d. She told the worker she would do her best if she happened to be home. But she explained it’s hard for her to babysit two grown adults.

[40] Topa also testified about that May 20, 2015 meeting: a. Topa said she outlined to A.S., J.B. and A.H. the Society’s concerns about escalation in J.B.’s aggressive behaviour. b. Topa said A.H. appeared to be aware of the problem. A.H. explained that J.B. had been off his medications. c. This would have been the third meeting the Society had with A.H. expressing concern about J.B.’s behaviour, and asking A.H. to help monitor her son. d. At that point A.H. knew J.B. still had criminal charges outstanding from February 2015 for kicking holes in A.S.’s walls and for damaging her door. A.H. testified she was aware of J.B. damaging walls and doors. She had been aware that he had been off his meds, and from her own experience she knew how volatile he could be when he was off his meds. e. A.H. would have been aware as of May 2015 that J.B.’s criminal court order prohibited him from even coming around A.S.’s residence. f. In that context, A.H.’s suggestion that the Society merely asked her “to keep an ear out if she happened to be home” appears to be a gross understatement of the level of urgency and expectation the Society was trying to convey.

[41] A.H. testified about yet another unexpected discussion with Society worker Lisa Topa in […] 2015, about a week after A.B. was born. a. Again, she was invited to join the discussion in A.S.’s kitchen. A.S. and J.B. were both present with the children. b. A.H. said she presumed the Society was doing a routine follow-up after A.B.’s recent birth. c. She said the Society encouraged J.B. to get back on his medication. A.H. supported the idea, and J.B. seemed to follow up on the suggestion. d. A.H. said the meeting was very short, and she was given no specific documentation or instruction. e. “I always told them I’d do the best I could to keep my ear out. But I wasn’t home that often. I always let them know that.”

[42] Lisa Topa also testified about her unannounced visit to A.S.’s residence on July 15, 2015. a. When Topa arrived, A.S. told the worker that J.B. was at his grandparent’s residence. b. However, when Topa entered a bedroom to check on A.S-P., Topa discovered that J.B. was standing in a corner of the bedroom, wearing pants but no shirt. c. Topa then asked that A.H. join them (from her apartment next door). d. Once again Topa was advised that J.B. had been off his medications. e. Topa testified she reiterated to A.S., J.B. and A.H. that J.B. is not to be present in A.S.’s apartment unless A.H. was also present. f. Topa testified A.H. specifically agreed she would supervise any contact J.B. was to have with A.S.. g. Topa said A.H. never expressed concern about her work schedule interfering with her ability to supervise J.B..

[43] I accept the Society’s evidence. a. They continued to have well-founded concern about A.S-P.’s safety if J.B. came to A.S.’s residence. b. A.H. knew they had good reason to worry. c. The Society requested A.H.’s commitment as part of a safety plan. d. A.H. gave a commitment. e. The Society relied on that commitment. f. If the Society hadn’t received and relied upon A.H.’s commitment to monitor J.B., the Society might have taken additional steps which might have prevented A.S-P. from being horribly abused by J.B..

August 14, 2015 Incident

[44] A.H. described the events of August 14, 2015: a. She was home alone in her apartment. A.S. telephoned her crying. A.S. said she was at a Mac’s Milk; she had called the police; she was sorry; and then she hung up. b. A.H. said she immediately went next door to A.S.’s apartment where she found J.B. and asked him what was going on. J.B. told her they got into a disagreement and A.S. had left with A.B.. A.S-P. was still with him. c. A.H. testified she became quite stressed out dealing with this situation, because J.B. and A.S. had been creating so many problems. d. She said she went outside to retrieve some of A.S.’s clothes which J.B. had thrown into a children’s pool. While she was outside she saw police cars out front. Police officers approached and asked if J.B. was inside. A.H. noted that at that point A.S. and J.B. were already known to the police because of their past conflicts. e. A.H. told the police J.B. was upstairs. They asked her to go get him. But when she went inside she discovered that J.B. had taken A.S-P. into A.H.’s apartment, and he had locked her out. f. She said for a period of time she tried to coax J.B. to unlock the door. He expressed fear that police were going to arrest him. g. A.H. convinced J.B. that the police only wanted to ensure that A.S-P. was returned to A.S. peacefully. After that the police only wanted the two of them to stay away from each other while they cooled off. (At this point no one had seen that A.S-P. was badly injured.) h. After convincing J.B. to open the door, A.H. said she helped him put a sweater and shoes on A.S-P.. She said J.B. carried the child out of the building, kissed her goodbye, and then A.H. started carrying A.H. toward A.S.. i. But before she got very far a female neighbour ran up screaming “give me that baby” and scooped A.S-P. out of A.H.’s arms. The neighbour kept screaming at police “He (J.B.) abused her, arrest him.” j. A.H. said all of this happened quickly, with a great deal of tension and commotion. She said as a result she didn’t notice any bruising or unusual marks on A.S-P.. k. She said it was only much later that she learned of extensive bruising on the young child. She didn’t know anything about it.

45A major part of the Society’s theme is that A.H. is protective of her troubled son J.B.; she minimizes his misconduct and covers for him; and she has been wilfully blind to all the harm he has caused to A.S. and to A.S-P..

46In that context, the issue of what A.H. says she saw – and what she says she didn’t see -- on August 14, 2015 tells us a lot about her powers of perception and veracity.

47Quite simply, is it credible that A.H. might not have notice how badly injured A.S-P. was?

[48] The Society filed a September 22, 2015 report by Dr. Nura Hawisa, a pediatrician with the Child Advocacy & Assessment Program (CAAP) in relation to A.S-P.. a. When A.S-P. was examined in the McMaster Emergency Department she had multiple bruises all over her body. “They were difficult to count due to their multitude. Many of the bruises were coalesced together.” b. The child had multiple facial bruises, mainly on the right side of the face. There were also scratch marks on the side of the chin and near her right eye. c. There were multiple bruise marks on her neck. d. There was bruising around her left ear. e. There were bruises on her scalp. f. A.S-P. had multiple bruises on her upper chest. g. There were multiple variable size bruises on her back and buttock. h. There were “significant large bruises located on the right arm”. They appeared to be multiple bruises coalesced together. i. There were multiple bruises on the left thigh. j. The doctor summarized that A.S-P. presented at hospital with significant bruises distributed all over her body - “too many to count.”

[49] Dr. Hawisa concluded: “It is important to recognize that not only did A.S-P. experience physical assault; she also was exposed to partner violence between her mother and mother’s boyfriend. There is ample literature to explain the negative emotional/behavioural consequences from exposure to this in addition to the potential risk of physical injury.”

50In fairness, A.S-P.’s bruising from the neck down wouldn’t have been visible until her clothing was removed at the hospital. I accept A.H.’s evidence that during her interaction with the child, A.S-P. was wearing pants and a long-sleeve shirt, which would have covered much of the bruising eventually detected.

51But that still doesn’t explain why A.H. wouldn’t have noticed multiple injuries to the young child’s face and head – including injuries to her left eye, chin, jaw line and cheeks.

[52] Constable Katrina Farrell of the Hamilton Police Service testified about what she observed of the child’s condition on that same day: a. After A.H. helped retrieve A.S-P. from her Rosslyn Avenue apartment, a Society worker brought A.S. and the child to the police station. b. Farrell testified that when she met them at the front of the police station, A.S-P. was wearing a long-sleeved shirt and pants. c. Farrell testified she immediately noticed bruising on A.S-P.’s face, “particularly on the right side.” d. They all then went to McMaster University Medical Center, with the Society worker transporting the children; Farrell transporting the mother. e. Farrell testified she was present when A.S-P.’s clothes were removed for hospital staff to examine the child. f. Farrell said there was “substantial bruising throughout her body.” g. She said the bruising was particularly evident on her left bicep when A.S-P. took her shirt off. “It actually looked like a black marker had been coloured on her arm.”

53Detective Harold Harris of the Hamilton Police Service testified about a videotaped interview of A.H. he conducted on August 31, 2015, in relation to A.S-P.’s injuries.

[54] A.H. described to Harris her observations during the period leading up to August 14, 2015: a. She didn’t notice any injuries or anything unusual about A.S-P. “other than some toddler bruises.” b. A.H. said the day before A.S-P. was taken to the hospital on August 14, 2015, she noticed a small dime-sized bruise on A.S-P.’s face. She was told it was from the child falling in a park. c. She said with her apartment being next door to A.S. and J.B., she used to hear them fight all the time. If she heard banging or screaming she would bang on the wall to get them to stop.

[55] Harris testified A.H. had little information about A.S-P.s’ injuries when she was apprehended on August 14, 2015. a. A.H. was in her own apartment, but she didn’t know anything was wrong until there was a lot of commotion, with police and the Society becoming involved. b. She said everything happened very quickly. c. She denied telling her son J.B. to hide. But at one point he and A.S-P. were locked inside her apartment. She was locked out. There was discussion about police kicking the door in. J.B. then opened the door. d. A.H. insisted her involvement was brief. Police asked her to help retrieve A.S-P.. She did what she was asked. She helped get A.S-P. ready. e. A.H. told Harris she didn’t observe any of the bruises documented in numerous colour photographs taken after A.S-P. was taken to the hospital. f. Harris testified he showed A.H. some of the close-up photographs of significant bruising on the child’s face, and different parts of her body. A.H. responded “I never saw her with bruises.”

56A.H. also told Harris the Society knew she had to go to work so she wouldn’t be around very much. She said there was nothing she could have done to prevent the injuries. She added: “It’s hard to believe your own son can do this.”

[57] Society worker Lisa Topa testified that on August 18, 2015 – a couple of days after J.B. was charged with assaulting A.S-P. and A.S. – Topa again spoke to A.H.. a. A.H. told her that during the last few weeks something had changed with J.B.. b. A.H. said she was working Monday to Friday 7:00 a.m. to 3:00 p.m. and was rarely able to attend at A.S.’s apartment. c. A.H. said she saw a bruise on A.S-P.’s cheek a week earlier, and when she asked, A.S. and J.B. said A.S-P. injured herself falling off a swing at Gage Park. d. A.H. said she never saw any bruises on A.S. and had never seen J.B. assault the mother. e. A.H. said from her adjacent apartment she sometimes heard them fighting, so she would either text or knock on the door to tell them to knock it off. f. A.H. said A.S-P. did not appear fearful of J.B.. g. A.H. said she wasn’t going to bail J.B. out. h. A.H. denied knowing that J.B. had been abusing A.S-P.. i. A.H. said she didn’t think J.B. was capable of doing such a thing. She told Topa it was horrible to think that her own son could do something like that.

58Topa testified that even if A.H. only had brief interaction with A.S-P. on August 14, 2015 – including physically helping A.S-P. get dressed – it would be hard to understand how A.H. wouldn’t have noticed the very extensive bruising on A.S-P.’s face.

59The evidence is clear that a number of police officers, Society workers and medical staff immediately noticed that A.S-P. was badly injured as soon as they took one look at the child. All of these people noticed even with little or no background information alerting them that A.S-P. had just been through some terrible experience.

[60] And yet A.H. insists she didn’t notice anything wrong with the young child, despite all of the background information she had: a. She knew J.B. had been acting erratically and violently in the presence of A.S. and A.S-P. for many months. b. She knew in the recent past he had been getting worse. c. She knew on August 14th that J.B. was so out of control that A.S. had fled with the baby, called for police assistance, and then called A.H. in a panic. d. She knew that J.B. was agitated and had locked himself in A.H.’s apartment with A.S-P.. e. A.H. testified she was distracted by the commotion of events. But she appears to have given no thought to what that commotion would have been like for a 22 month old child. f. A.H. testified she had direct, face to face contact with A.S-P. after J.B. let her in to the apartment. She said she helped put a sweater on A.S-P. because it was a cool day. Under cross-examination she was unable to explain how she could have had such direct physical contact with the child, and still not noticed ghastly facial injuries. g. A.H. gave different accounts of whether she was the one who physically carried A.S-P. most of the way out from her apartment to the driveway – or just some of the way. Whichever it was, she testified it all happened within about 45 seconds. She insisted that didn’t give her enough time to notice injuries which strangers noticed instantly.

[61] And then there are the 48 8x10 colour photographs filed by the Society. Haunting close-ups of a little girl covered in bruises and injuries. a. On November 26, 2015 A.H. told Society Kinship Services Worker, Jojy Luke, that she felt the many pictures of A.S-P.’s injuries had been “photo-shopped” by police, to fabricate evidence against her son. b. A.H. did not pursue this photo-shopping allegation at trial. c. I reject this allegation of tampering with evidence in its entirety. d. This vexatious claim was clearly a desperate attempt by A.H. to cover-up for her son’s actions – and her own inaction.

[62] A.H. testified about her reaction to J.B. being charged. a. She said at the outset she accepted J.B.’s assurance that he hadn’t harmed A.S-P.. She felt he was “an easy target to blame.” b. “I said there’s no way he did this. As a mother you don’t want to believe he’s capable of something like that.” c. She said she was fortified in her belief by looking at photographs of A.S., J.B. and A.S-P. taken at the Gage Park about a week prior to August 14, 2015. She said A.S-P. seemed so happy. She was in a swim suit and there was no sign of any bruising anywhere. d. But she said after J.B. pleaded guilty, she had to face reality. “I don’t want to believe in my heart that he did this, but he pled guilty.”

A.H.’s General Awareness

[63] During her testimony A.H. gave inconsistent descriptions of how much she knew about problems in A.S.’s adjacent apartment during the many months leading up to August 14, 2015.. a. At times she said she never really heard A.S. and J.B. argue very much. She said she wasn’t around much. Sometimes neighbours would tell her after the fact about hearing yelling from A.S.’s apartment. b. At other times A.H. testified she heard arguing coming from their unit. She would sometimes bang on the wall to get them to stop. Sometimes they would bang back and shout through the wall that everything was fine. c. At times she testified she had no idea what was happening in their relationship. But under cross-examination she admitted she knew they were arguing constantly. “I knew they weren’t good together.” “They were poison for each other.” d. At times A.H. said she was absolutely fed up by all the problems and tension created by A.S. and J.B.. But under cross-examination she said she didn’t alert Society workers to any concerns, because she was rarely home and didn’t know much about what was going on. e. She said she was aware that in November 2014 J.B. had been charged with mischief for putting a hole in a wall in A.S.’s apartment. But she was vague about the extent to which she was aware of violent outbursts which led to walls being damaged by J.B. on other occasions. f. She said one time she noticed that J.B. had a black eye and A.S. had some bruises. But she accepted their explanation that they had just been play fighting. g. Under cross-examination she denied any knowledge of several incidents when police had to attend because of arguments between A.S. and J.B.. But she admitted that as of August 14, 2015 the police were already well acquainted with the two of them. h. She recalled several occasions when doors in A.S.’s apartment got broken. She assumed J.B. had caused the damage. But if she tried to discuss the damage with either of them, they would tell her to mind her own business. “Those two were like talking to a wall.”

[64] During her evidence A.H. conveyed a general sense of indifference to what life would have been like for A.S-P. living with A.S. and J.B.. a. Under cross-examination she admitted J.B. and A.S. had a destructive, high conflict relationship. b. She admitted there was lots of yelling and banging and damage to the apartment. c. She admitted that A.S-P. would have been present during all of this aggression and commotion. d. She admitted that A.S. has a very small apartment, and that A.S-P.’s exposure to the violent and frightening behaviour would have been intense. e. Asked whether she ever thought about A.S-P. regularly witnessing such aggressive and destructive behaviour, A.H. responded: “To be honest, I never really thought about it.” f. She said A.S. and J.B. were both adults. She left them to live their lives. She had her own life to deal with. She didn’t feel it was her responsibility to babysit the two of them. And she didn’t feel it was her responsibility to step in to protect A.S-P.. g. She said Society workers were regularly attending A.S.’s home. She presumed they were aware of the conflict and that they would deal with the problem. h. She insisted that if she had actually known A.S-P. had been physically harmed, she would have contacted authorities. But short of physical harm, she didn’t feel it was her place to intervene. i. She admitted she didn’t convey any worrisome information to Society workers, during those several meetings when they expressed their concern about her son. j. She testified that she had hoped J.B. would start behaving himself after A.B. was born in […] 2015. She hoped he would “grow up a bit.”

[65] During cross-examination A.H. was consistent – but vague – in denying that she had breached a commitment to follow a “safety plan”. a. She said there never a specific “safety plan.” Nobody ever clearly explained to her what they wanted her to do. b. She said she always made it clear to the Society that she couldn’t do much to monitor what was happening in the A.S.’s next door apartment, because she wasn’t around very much: c. On weekdays she had to leave for work by 6:00 a.m. and she wouldn’t return home until 4:00 p.m. d. Most weekdays she’d come home from her factory job briefly to shower, and then she’d spend the balance of the evening (including overnights except for some Fridays) at her fiancé’s residence. (They have since married.) e. So she wasn’t physically present very much to notice what J.B. and A.S. were doing.

[66] Beyond that, she said the Society should have understood that even if she was present she really had no control over her son. a. If she tried to become involved or voice an opinion, both A.S. and (especially) J.B. told her to mind her own business. b. She said J.B. would swear at her and firmly tell her not to meddle. c. She said J.B. is very strong-willed, and she felt helpless to do anything.

[67] A.H. had difficulty explaining why: a. At times she told people there was no safety plan. b. At times she said she thought the safety plan had been lifted. c. And at times she said she misunderstood the safety plan she had agreed to.

[68] A.H.’s description that she had always been cooperative with authorities – both before and after August 14, 2015 – was contradicted by further evidence from Constable Farrell: a. On September 30, 2015 Farrell and another officer were dispatched to attend the Rosslyn Avenue building where A.S. and A.H. had their adjoining apartments. Police were investigating a report that J.B. was having contact with A.S., in violation of his bail terms. b. Farrell parked her cruiser a distance away. As she approached she noticed a taxi in front of the residence. J.B. and A.S. were about to get into the vehicle. c. She testified that when J.B. saw the officers he took off running back toward the house. Farrell and her partner engaged in a foot chase but they lost sight of him. d. Farrell said she spoke to A.S. who was not forthcoming about where she was actually living. e. A.S. told the officer that J.B. had just stopped by to give her a kiss goodbye. A.S. said J.B. had “changed” and that he felt bad for what had happened. f. Farrell testified she then spoke to A.H. who was also outside the building. g. Both A.S. and A.H. initially allowed Farrell to check their respective apartments, so see if J.B. had gone there. h. Farrell and her partner then left and checked the neighbourhood for about 10 to 15 minutes, but they couldn’t find J.B.. i. When the officers returned to the building, they again asked to check the two apartments to see if J.B. had come back. j. A.S. allowed the officers to search her apartment a second time. k. But A.H. refused to allow the officers to enter her apartment. l. Farrell said A.H. made it clear she didn’t want J.B. to go to jail. A.H. also said she wanted custody of A.B..

69Farrell testified she never located J.B. on September 30, 2015. But he was located by police a few days later – at A.H.’s apartment.

[70] A.H. testified about her September 30, 2015 interaction with Constable Farrell: a. A.H. said she was outside getting into her own truck when she saw police arrive and start chasing J.B.. b. She said at that point she was fed up with J.B.. She said she didn’t call police to report J.B. was breaching his bail terms because she was aware that someone else had already called police. c. Contrary to Farrell’s evidence, A.H. insisted she cooperated with police and never refused to let them search her apartment. d. She denied ever helping J.B. breach his bail terms or hide from police. e. She admitted that police subsequently found J.B. hiding in her apartment while she was at work. But she said he was there without her knowledge or permission.

71The evidence of Constable Farrell was clear, unequivocal and balanced. The evidence of A.H. was vague and self-serving. I have no hesitation in accepting Farrell’s evidence that A.H. initially allowed her to search her apartment – but later A.H. refused to cooperate.

A.H.’s Proposal

[72] A.H.’s evidence about the details and merits of her proposal to care for A.B. was relatively brief. a. She said she has supervised access to A.B. twice a month, and visits have gone well. The Society does not dispute this. b. Her requests for expanded or unsupervised access have been refused. c. She and her husband are steadily employed. They have no criminal records. They share a two bedroom upstairs unit in a house with a downstairs in-law suite for her husband’s father. d. Her husband has a nine year old son who visits on weekends. There is a bedroom suitable for both that child and A.B.. e. She has already identified an available daycare facility.

[73] A.H. testified the Court and the Society could trust her if A.B. was placed in her care. a. She would make an absolute commitment that neither A.S. nor J.B. would have any access to A.B.. b. She would call the police if necessary to get a restraining order against J.B. to keep him away. And she would turn him in if he breached the restraining order. c. She said she would cooperate with the Society and do whatever was necessary to have A.B. placed in her care.

74Under cross-examination she admitted that she has never previously contacted either the police or the Society about any concerns, even when she knew J.B. was misbehaving or breaking the rules. But she promised she would do so in the future.

[75] Lisa Topa testified about the Society’s evaluation of A.H.’s kinship proposal in relation to A.B.. a. Soon after the children were apprehended on August 14, 2015, A.H. expressed interest in presenting a kinship proposal to care for A.B.. b. But Topa explained to her that N.S. had already presented a plan to care for both children, and the Society could only assess one plan at a time. c. Topa testified she expressed concern to A.H. that she had not abided by the Society’s safety plan. A.H. acknowledged she wished she could have been around more often. A.H. told Topa she never should have agreed to be part of the safety plan. d. N.S. eventually decided not to pursue a kin plan in relation to the younger child, so Topa initiated a kinship application for A.H.. e. However at a Society meeting on April 5, 2016 Topa expressed concern that during her 10 months of interaction with A.H. leading up to the August 2015 assault on A.S-P., A.H. repeatedly failed to follow the Society’s safety plan, and A.S-P. ended up being terribly injured. f. Topa said on April 5, 2016 the Society decided to defer making any decision about A.H. as kin, because the mother appeared to be making some progress. So the Society was going to focus on a possible reintegration plan with the mother. g. Topa said in July 2016 A.H. again called wanting to be re-assessed. But Topa told her the Society was still focussing attention on the hope of reintegrating the children with the mother. h. But when it became clear that neither child could be safely returned to A.S., the Society determined that placement of A.S-P. with N.S. was appropriate; but placement of A.B. with A.H. wasn’t a safe option.

A.H.’s Credibility

[76] As stated, much of this trial focussed on A.H.. Her credibility. Her reliability. Her parental judgment. a. On the critical issue of how much she knew about the danger J.B. posed to A.S. and to A.S-P., she was vague and kept changing her story. b. On the issue of protecting A.S-P. from exposure to domestic violence and physical arm, A.H. alternated between “I didn’t know anything was wrong” and “I didn’t think it was any of my business.” c. Her wilful blindness to A.S-P.’s vulnerability was shockingly inconsistent with her purported commitment to A.B.’s safety. d. On the tough questions – like how she could have put a sweater on A.S-P. on August 14, 2015 without noticing that the child’s face was horribly bruised – A.H. struggled without ever coming up with a plausible explanation. Even if the toddler’s horrific injuries were mostly concealed by pants and a long-sleeve shirt, the bruising on her face would have been immediately obvious and shocking. e. Throughout her testimony A.H. displayed an overwhelming self-centeredness, lacking even a hint of parental insight. f. She openly admitted that she was preoccupied with her own life. She gave virtually no thought to protecting A.S-P. from obvious and imminent danger. And even after her own grandson A.B. was born, she did nothing more than “hope” that J.B. would grow up a bit. g. I accept the clear and internally consistent evidence that the Society repeatedly and specifically advised A.H. about its expectation that she had an important role to play in a safety plan. h. I accept the Society’s evidence that A.H. breached specific commitments to monitor the situation and advise the Society of any problems. i. I accept the evidence of Constable Farrell about how obvious A.S-P.’s injuries were at first sight. And I accept Farrell’s evidence that A.H. became uncooperative on September 30 when police were looking for J.B.. j. A.H.’s blanket commitment to future cooperation with police and the Society is hard to accept, given her evasive and uncooperative interaction with these agencies in the past. k. She has consistently demonstrated that she is neither inclined nor able to resist her son J.B.’s erratic and aggressive behaviour. l. She has a long history of covering and making excuses for him. Of glossing over and even denying his horrible, dangerous behaviour. m. While it is understandable that A.H. loves her son and will do anything to keep him out of trouble, that mindset is completely incompatible with the responsibilities A.H. would have to assume if A.B. were to be placed in her care.

77In short, A.H. has given us no reason to trust her. And I don’t trust her.

Analysis

78There is no dispute concerning the statutory findings pursuant to s.47(2) of the Act. Among the requirements, the Society has established that both A.S-P. and A.B. are not Catholic, and do not qualify as Indian or native.

79The evidence overwhelmingly supports a finding that both children are in need of protection.

[80] Where a child has been found in need of protection, s.57 of the Act sets out the disposition options. 57(1) Order where child in need of protection Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

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. 57(2) Court to inquire In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 57(3) Less disruptive alternatives preferred The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 57(4) Community placement to be considered Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[81] I am satisfied the Society fulfilled its obligations pursuant to s.57(2) to assist the family and the children. a. Prior to the apprehension of A.S-P. and A.B. in August 2015 the Society pro-actively worked with various family members, identifying outstanding protection concerns and attempting to implement safety plans. b. Both before and since the apprehensions the Society has attempted to work with the parties and with A.H.. c. Referrals have been made to community service providers. d. Despite resistance and a lack of cooperation, the Society has worked exhaustively to assist both children. e. And despite the Society’s reasonable and sustained efforts to work with the parents, the respective risk concerns have not abated.

[82] I have considered the least disruptive alternatives for each of A.S-P. and A.B.. a. Section 57(3) of the Act requires that the Court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child b. Paragraph 2 of s.1(2) requires the Court to consider the least disruptive course of action that is available and is appropriate, so long as it is consistent with the best interests, protection and well-being of the child. c. In relation to A.S. and J.B. there is absolutely no less disruptive alternative safely available other than to remove A.S-P. and A.B. from their care. d. C.P. has not been actively or beneficially involved in A.S-P.’s life. He has been noted in default. He has not advanced any sort of plan or proposal to be involved with his daughter. e. J.B. is violent, abusive, lacks insight and maturity, and has actually harmed A.S-P.. He is in custody. f. A.S. lacks insight with respect to exposing her children to violence. She has participated in the violence A.S-P. was exposed to. She failed to protect A.S-P.. She has consistently denied the Society’s well-founded concerns, and resisted reasonable and necessary safety plans. She has been resistant to the Society’s efforts to help her deal with her many problems. Her lifestyle is out of control and dangerous. She has been unable to maintain any sort of commitment to either child. She has demonstrated that she is untrustworthy and unreliable.

83Subsection 57(4) of the Act requires the Court to look at community placements, including family members, before deciding to place a child in care. With both fathers noted in default, and the mother failing to attend for the trial, in many ways the s.57(4) mandate came to be the primary issue in this trial.

[84] In relation to A.S-P., as stated, the evidence overwhelmingly supports the joint request by the Society and N.S. that A.S-P. should be placed in N.S.’s custody pursuant to s. 57.1 of the Act. a. N.S. came to assume temporary caregiving responsibilities toward A.S-P. for a period of time after A.S. broke up with C.P.. b. A.S-P. has been in N.S.’s care since at least November 2015. The child is doing extremely well in that placement. c. The Society has well-founded confidence that N.S. will continue to act in the child’s best interests and protect A.S-P. from any negative or harmful contact by any adult – including C.P. and A.S..

85The Society considered and appropriately rejected the maternal grandmother in Saskatchewan as a potential placement for either child. There are historic concerns about her and she has no ongoing involvement in either child’s life.

[86] That leaves us with A.H.’s proposal that A.B. be placed in her care. I fully agree with the Society that this proposal is unrealistic, unsafe, and contrary to the best interests of this vulnerable 21 month old boy. a. From the moment A.S. and A.S-P. moved in to the apartment next door, A.H. would have known that her son’s violent and erratic behaviour would have posed a danger to both mother and daughter. b. I reject A.H.’s description that she had no idea how bad things were. c. I reject A.H.’s description that the Society never really explained the magnitude of the concerns, or the nature of their expectations on A.H.. d. I accept the Society’s evidence that it clearly and repeatedly explained the need for a safety plan; that A.H. agreed to participate in a safety plan; that the Society relied upon A.H.’s assurance; that A.H. failed to live up to her commitments under that safety plan; and that both A.S. and A.S-P. suffered actual harm. e. While it is possible that from time to time there may have been some lack of precision about some components of the safety plan, in broader terms there can be no doubt that the Society was asking A.H. to actively monitor J.B.’s interaction with A.S.; that A.H. agreed to do so; and A.H. completely failed in her responsibility. f. I find that A.H.’s wilful blindness and unconditional protectiveness of J.B. is best exemplified by her completely implausible description of the events of August 14, 2015 – and in particular her insistence that that she didn’t notice A.S-P.’s horrible facial injuries (followed by A.H.’s desperate speculation that police must have photo-shopped the 48 graphic colour pictures of the injuries). g. She knows the violence J.B. is capable of. She admits that she has no ability to resist his impulsive behaviour and erratic behaviour. She keeps making excuses for him. She has never stood up to him. She has never notified either the Society or the police when he has acted inappropriately toward A.S. and A.S-P.. To the contrary, she has subverted efforts by the Society and the police, to try to keep her son out of trouble. h. A.H. has maintained an on-going relationship with J.B., and there is every reason to believe this will continue after he is released from jail. It can be reasonably anticipated that if A.B. is placed in A.H.’s care, J.B. will try to have contact with the child. (A.H.’s description that it would be hard for J.B. to come to her home because she does not live on a bus route, provides little reassurance.) It is equally foreseeable that A.H. would be ambivalent – or at the very least ineffectual – in keeping J.B. away from A.B., notwithstanding her blanket assurances to the contrary. i. She has never really been able to control him. She has never really tried to control him. She has never alerted authorities when he has been dangerously out of control. j. A.H.’s callous disregard for the ongoing horror which her son J.B. inflicted on A.S-P. eliminates any possibility that this court could have confidence in her parental insight, judgment or trustworthiness in relation to any child. While A.H. may have felt less of a connection and obligation because A.S-P. was someone else’s grandchild, her indifference and passive complicity raise fundamental questions about whether she has the capacity or inclination to prioritize A.B.’s well-being over her unconditional loyalty to her own troubled son. k. The Society does not dispute that A.H.’s twice a month supervised visits have gone well. But at best this is a “periodic visiting” relationship. As I weigh the strengths and weaknesses of A.H.’s proposal, there aren’t many strengths.

[87] In determining the appropriate disposition, the Court must decide what is in the children's best interests. Section 37(3) of the Act sets out a non-exhaustive list of criteria, which I have considered: 37(3) Best interests of child Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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.

[88] The disposition options now available to the Court are constrained by the time limitations set out in s.70 of the Act. 70(1) Time limit Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding, (a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or (b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship. 70(2) Same In calculating the period referred to in subsection (1), time during which a child has been in a society's care and custody under, (a) an agreement made under subsection 29(1) or 30(1) (temporary care or special needs agreement); or (b) a temporary order made under clause 51(2)(d), shall be counted. 70(2.1) Previous periods to be counted The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody as a society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody. 70(3) Idem Where the period referred to in subsection (1) or (4) expires and, (a) an appeal of an order made under subsection 57(1) has been commenced and is not yet finally disposed of; or (b) the court has adjourned a hearing under section 65 (status review), the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be. 70(4) Six month extension Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

89A.S-P. and A.B. have both now been in care longer than the maximum periods allowed by the legislation, even factoring in any possible extension pursuant to s.70(4). Time must be considered from a child’s needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. CAS Toronto v. R.H. 2016 ONCJ 181.

[90] In all the circumstances, the Court is left with a limited range of alternatives for each of the children: a. In A.S-P.’s case the only available options are placement with N.S. (under a supervision order or a custody order pursuant to s.57.1) or Crown wardship. b. In A.B.’s case the only available options are placement with A.H. (under a supervision order or a custody order pursuant to s.57.1) or Crown wardship. c. None of the parents are before the court asking that a child be placed with them. d. There is no further time to continue Society wardship.

91With respect to A.S-P., for the aforementioned reasons a s.57.1 custody order in favour of N.S. is in the child’s best interests.

92With respect to A.B., for the aforementioned reasons, placement with A.H. would be inappropriate and unsafe.

93A supervision order would be inappropriate and ineffectual in circumstances in which A.S. and A.H. have each clearly demonstrated that they are unwilling or unable to reliably work with the Society and comply with terms of supervision.

[94] Among the additional considerations with respect to determining the disposition for each child, I have considered: a. The paramount purpose of the Act (s.1(1)). b. The Society’s Plan of Care (s.56). c. In A.B.’s case, the statutory pathway for a disposition hearing (not involving a native child or a potential custody order) as set out by Perkins J., in CAS v. T.L and E.B. 2010 ONSC 1376. d. The fact that a Crown wardship order is the most profound order that a court can make. CAS of Toronto v B. (M). 2017 ONCJ 120; CCAS of Hamilton v. G. (J.) (1996), 23 R.F.L. (4th) 79 (Ont. Div. Ct.). e. The Society has the onus, on a balance of probabilities, to establish not only that these children are at risk of harm, but also the degree to which the risk concerns that existed at the time the children were brought into the Society’s care still exist today. The risks must be examined from the children’s perspective. CCAS of Toronto v. C.M. , [1994] 2 S.C.R. 165 (S.C.C.). f. The risk each child may suffer by remaining in a parent’s care; as well as the risk of emotional harm each child may suffer by being kept away from a parent (or other significant person in their life). CAS of Toronto v. S. (G.) , 2012 ONCA 783 (Ont. C.A.). The risk must be real and not speculative. CCAS of Toronto v. M. (A.) 2016 ONCJ 625 (OCJ). g. The fact that a lack of parental insight with respect to fundamental problems like physical and emotional harm may justify Crown wardship even if there are other positive aspects to a parenting plan. CAS of Hamilton v. C. (K.) 2016 ONSC 2751 (SCJ); CCAS of Toronto v. M. (M.) , 2012 ONCJ 369 (Ont. C.J.). h. The many ways in which a child’s exposure to domestic violence creates a risk of emotional harm. Jewish Child and Family Services of Toronto v. K.R., 2008 ONCJ 774 (OCJ); CCAS Toronto v. E.S. 2016 ONCJ 279 (OCJ). i. Each child’s need for permanency.

[95] In all the circumstances I find the following dispositions to be consistent with the statutory requirements and in the best interests of the children. a. A.S-P. is placed in the custody of N.S. pursuant to s.57.1 of the Act. b. A.B. is made a Crown ward.

Access

96In relation to A.S-P., the Society and N.S. have proposed that any access to the child by either C.P. or A.S. shall be in the sole discretion of N.S. as the sole custodial parent. I find that this is an appropriate determination. The evidence is reassuring that N.S. will exercise that discretion appropriately and safeguard the best interests of the child.

97In relation to A.B., upon the child being made a Crown ward, any existing interim access order automatically terminates (s.59(2)).

[98] Section 59(2.1) creates a statutory rebuttable presumption against the Court making any further access order. 59(2.1) Access: Crown ward A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that, (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child's future opportunities for adoption.

99This is a conjunctive burden. The onus is on the person seeking access to establish that the relationship is beneficial and meaningful from the child’s perspective, and that an access order will not impair the child’s future opportunities for adoption. This is an extremely difficult onus for parents to discharge.

100Neither C.P. nor J.B. have requested access to either child.

101A.S. did not participate in the trial and did not present any evidence in relation to either aspect of the conjunctive s.59(2.1) test.

[102] The evidence does not satisfy me that any of A.S., J.B. or A.H. have a relationship with A.B. which is beneficial and meaningful from the child’s perspective. CCAS of Hamilton v .L.S. 2011 ONSC 5850 (SCJ). a. A beneficial and meaningful relationship is one that is significantly advantageous to the child. CAS of Niagara v. M.J. , [2004] O. J. No. 2872 (SCJ). b. It must be an existing relationship, not a future hoped-for relationship. This precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. A child’s life cannot be put on hold while a father or mother learns how to be a responsible parent. CAS of Niagara v. M.J. (supra) c. It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child. The child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: CAS of Niagara v. C. (J.) , (2007) , 36 R.F.L. (6th) 40 (Ont. Div. Ct.). d. Even if there are some positive aspects to the relationship between parent and child, that is not enough. It must be significantly advantageous to the child. CCAS of Toronto v. S. (S.) , 2011 ONCJ 803 (OCJ). e. Even if the relationship is beneficial and meaningful, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made. CAS of Niagara v. M.J. (supra); CAS Toronto v. R.H. (supra). f. The challenge is finding the fine balance between what will preserve a beneficial and meaningful relationship in the best interests of the children and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the children in their new adoptive home. CAS of Ottawa v. B. (J.) 2017 ONSC 1194 (SCJ). g. An access order cannot be merely a consolation prize for disappointed adults. CAS of Hamilton v. C.H. , 2014 ONSC 3731 (SCJ).

103Similarly, I received no evidence to suggest an access order would not impair A.B.’s opportunities for adoption. Given the volatility of A.S. and J.B.; and given A.H.’s uncooperative and unreliable approach throughout; it would be quite understandable and foreseeable that potential adoptive parents might be dissuaded by the prospect of having to deal with any member of A.B.’s extended family.

104I have considered the fact that the respective determinations herein may likely preclude sibling contact for A.S-P. and A.B.. Given the circumstances, their ages, and their minimal contact with one another since apprehension in August 2015 (basically A.B.’s entire life), the lack of sibling contact is a regrettable but unavoidable component of each’s child’s best plan in life.

[105] Final order in relation to A.S-P.: c. The child is found to be in need of protection pursuant to the following sections of the CFSA: s.37(2)(a)(i); 37(2)(a)(ii); 37(2)(b)(i); 37(2)(b)(ii); and 37(2)(g). d. The child is found to be non-Catholic, Not Indian and Non-native. e. N.S. shall have sole custody of the child A.S-P. pursuant to s.57.1 of the CFSA. f. Any access by the mother A.S. or the father C.P. shall be in the discretion of N.S.. That discretion shall include authority to determine whether any access occurs, and if so, any terms or conditions. g. J.B. shall have no access to A.S-P.. h. Service of this order upon the mother shall be dispensed with, save and except that the Society shall notify the mother by text that a final order has been made in relation to A.S-P.. i. The Children’s Aid Society of Hamilton shall be served with notice of any motion or application to deal with any issue of custody or access in relation to the child A.S-P..

[106] Final order in relation to A.B.: j. The child is found to be in need of protection pursuant to the following sections of the CFSA: s.37(2)(b)(i); 37(2)(b)(ii); and 37(2)(g). k. The child is made a ward of the Crown, without access.

107Service of this order upon the mother shall be dispensed with, save and except that the Society shall notify the mother by text that a final order has been made in relation to A.B..

108The Society shall notify the mother by text that she may contact them to pick up a copy of this judgment and the resulting orders, or if she gives them a mailing address, the documents can be mailed to her.

Pazaratz, A.

Released: April 11, 2017

The People

The People

Society’s Application

Society’s Application

Trial Dynamics

Trial Dynamics

Evidence at Trial

Evidence at Trial

The Parents’ Story

The Parents’ Story

A.H.’s Story

A.H.’s Story

A.H. & The Society

A.H. & The Society

August 14, 2015 Incident

August 14, 2015 Incident

A.H.’s General Awareness

A.H.’s General Awareness

A.H.’s Proposal

A.H.’s Proposal

A.H.’s Credibility

A.H.’s Credibility

Analysis

Analysis

Access

Access

The People

The People

Society’s Application

Society’s Application

Trial Dynamics

Trial Dynamics

Evidence at Trial

Evidence at Trial

The Parents’ Story

The Parents’ Story

A.H.’s Story

A.H.’s Story

A.H. & The Society

A.H. & The Society

August 14, 2015 Incident

August 14, 2015 Incident

A.H.’s General Awareness

A.H.’s General Awareness

A.H.’s Proposal

A.H.’s Proposal

A.H.’s Credibility

A.H.’s Credibility

Analysis

Analysis

Access

Access

Cited By (2 cases)

Catholic Children’s Aid Society of Toronto v. K.G., 2021 ONCJ 621

Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557

Cited By (2 cases)

Catholic Children’s Aid Society of Toronto v. K.G., 2021 ONCJ 621

Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557