CITATION: CAS v. R. & F., 2017 ONSC 3886

COURT FILE NO.: FC-15-472

DATE: 2017/07/14

ONTARIO

SUPERIOR COURT OF JUSTICE

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 THIS HEARING OR THE CHILD’S PARENT OR FOSTER PARENT OR A MEMBER OF THE CHILD’S FAMILY, PURSUANT TO S. 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, c. C.11, as am.

AND IN THE MATTER OF M, born in 2010

AND IN THE MATTER OF C, born in 2014

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

Ms. F (Mother)

Respondent

Mr. R (Father)

Respondent

Marguerite Lewis, Counsel for the Applicant

Dominique Smith – Counsel for the Mother

Emmanuel Gibson, Counsel for the Father

HEARD: September 12-16, 2016; September 23, 2016; November 7-10, 2016; November 14, 2016; November 24, 2016; January 16-20, 2017; January 23-27, 2017; March 13 – 16, 2017, with final written submissions received on April 10, 2017

REASONS FOR JUDGMENT

P.E. ROGER, J.

Overview

[1] Serious allegations are made against the parents, Mr. R and Ms. F. They include allegations of physical, emotional, and sexual abuse. The issues to be decided are whether the Children are in need of protection and, if so, what disposition is in their best interests.

[2] For reasons that follow, I have concluded that the Children are in need of protection and that what is in their best interests is to make a twelve-month supervision order to Ms. F, on conditions, with limited and supervised access by Mr. R.

Introduction

[3] The Children’s Aid Society of Ottawa alleges that M and C (the Children) are in need of protection resulting from the parents’ inappropriate care. It seeks an order that the Children be made wards of the Crown and placed in the care of the Society. The case of the Society relies essentially on the evidence of one of the children, B. B alleges that she and her siblings were tattooed against their will, verbally and physically abused, isolated, drugged, subjected to the frequent fighting of their parents, subjected to degrading discipline, and that she was sexually abused by Ms. F. For reasons that were not communicated to me, none of the other siblings (not including M and C) was called to testify about any of the alleged abuse. B left the parents’ home in September 2013. She made complaints with the Ottawa Police in 2015 resulting in the apprehension of the four children, D, G, M, and C, then left in the care of the parents in March 2015. D and G were made Crown wards on consent of the parents in November 2015; consequently, this Application relates to M and C.

[4] Both parents dispute the allegations of the Society and both allege that there is no evidence, or insufficient evidence, for the Court to make a finding that the Children are in need of protection. They argue that B is motivated by vengeance for being kept away from her biological mother, A.L., and that B’s version of events is not credible. They also both argue that their respective plan, for a return of the Children to their care, is in the best interests of the Children, should an order for protection be made.

[5] The following is provided by way of brief background.

[6] Each of the parents lived through a number of difficulties early on in life. They met in 2004 and, subject to current bail conditions, have since been a couple. Except for rare occasions, they have both, up to now, been the recipient of some form of social assistance.

[7] The father is 44. He has seven children. His first three children, born in 1995 and 1996, are from two different women. Mr. R has had no contact with these women and three children and has provided no form of assistance since 1997. In 1997, Mr. R was incarcerated for assaulting one of the two women. Following his release that same year, Mr. R moved from the region of Toronto to Ottawa. Shortly thereafter, Mr. R met A.L., the mother of his next two children.

[8] When Mr. R met A.L, she had two children from an earlier relationship: B.L. (born in 1994) and B (born in 1997 – she is the child who made the complaints described briefly above at para. 3). Mr. R had two children with A.L.: D (born in September 1999 – one of the four children who were apprehended in March 2015 and later made a Crown ward on consent of the parents) and G (born in March 2001 – the other of the four children apprehended in March 2015 and later made a Crown ward on consent of the parents). A.L. was a drug addict and it is not disputed that her relationship with Mr. R ended in 2003 after he severely beat her. In the words of Mr. R, repeated several times during his trial testimony, they were both fighting, he blacked out and “he beat the living crap out of her for about 45 minutes with blood everywhere”. During his cross-examination, he added that if A.L. had not made it out to the door, she probably would not have made it. Three of the four children, including B, were home when this event occurred. Mr. R pled guilty to aggravated assault causing bodily harm and was incarcerated for six months. He was released in July 2004 and in August 2004 he met Ms. F.

[9] Ms. F is now 31. She and Mr. R had two children together, M and C, being those at issue in this matter.

[10] Earlier on, Ms. F left her parents’ home at 16 (in 2002) and, for some time, lived on the streets, with family, at work in a motel/restaurant, or in shelters.

[11] Ms. F was 18 when she met Mr. R in 2004.

[12] In 2005, Mr. R obtained custody, subject to the supervision of the Brockville CAS, of A.L.’s four children (B.L., B, D, and G - described above at para. 8). He was required to move to Brockville and Ms. F instantaneously became a very young mother to these four children. They lived in Brockville, as a family, for the duration of the supervision order and returned to Ottawa in November 2006. Both Mr. R and Ms. F looked after the four children.

[13] In October 2010, Mr. R and Ms. F’s first child, M, was born, and in […] 2014 their second child, C, was born. As indicated above, it is M and C that the Society alleges are in need of protection.

[14] The evidence indicates that family life became more stressful and more difficult sometime before 2011. In December 2010, the parents’ child, L, was stillborn at 24 weeks gestation. This was obviously difficult and it is still quite difficult for Ms. F, who became emotional at trial every time L’s name was mentioned. In 2011, Mr. R survived three severe prescription medication overdoses (in January, in April, and in July). The children witnessed Mr. R’s overdoses and the Society investigated and met with the children. In 2012, the eldest of the four original children, B.L., left home only to return about six months later when he was out on bail, and Ms. F acted as his surety. B.L. bragged about his criminal experience to his siblings and the family was occasionally subjected to unannounced police checks to ensure that B.L. was where he was supposed to be.

[15] On September 11, 2013, shortly after she turned 16, B attempted to leave home but was initially not successful. B testified that she wanted to leave home, and on Wednesday, September 11, 2013 she attempted to do so. However, the parents were made aware of B’s plans to leave and, to stop her, called B’s school to ask that she wait for their arrival. Ms. F and B.L. attended at B’s school and brought B back home.

[16] B alleges that she was assaulted by Mr. R immediately upon being brought back home on September 11, 2013. She described a vicious attack by Mr. R and subsequent efforts by the parents to keep her home to prevent the detection of her injuries. B only returned to school the following Tuesday, September 17, 2013. Upon returning to school, B informed her teacher, Ms. Fra, that she had been physically assaulted by Mr. R. B also informed Ms. Fra that home was a very strict and difficult place to live in, with drugs and physical violence, and B indicated that she had been punished for wanting to leave. B also mentioned to Ms. Fra that she had been instructed to lie whenever the Society had conducted an investigation and that she had been sexually abused by her stepmother, Ms. F. The parties, when testifying, did not precisely remember these two dates; however, it was agreed by the parties that September 11 and 17, 2013 were respectively the date that B tried to leave home/was brought back home and the date that she subsequently returned to school.

[17] When B returned to school on September 17, 2013, her teacher Ms. Fra took some pictures of B’s bruises and directed B to the school’s social worker. B was then directed to a shelter and was accompanied there by Ms. Fra.

[18] B never returned home after September 17, 2013. The Society investigated and the file was eventually closed. None of this 2013 investigation by the Society was produced at trial by any of the parties.

[19] In March 2015, B and Ms. F exchanged a number of inappropriate text messages after a brief personal encounter (Exhibit 27) and shortly thereafter, or during that time, B attended at the Ottawa Police and complained about the conduct of her parents.

[20] The Ottawa Police conducted an investigation and on March 6, 2015 the four children still living with the parents (D, G, M, and C) were apprehended and the parents were arrested.

Issues

[21] The issues in this application are:

(1) Whether the Children M and C are in need of protection. The answer to this question depends on the credibility of B and of the parents and on the reliability and weight given to the evidence.

(2) If this Court finds that the Children are in need of protection, what disposition is in the Children’s best interests? The available options at this point include placing the Children in the care and custody of one or both of the parents subject to the supervision of the Society or making the Children wards of the Crown with or without access.

Analysis

Are the Children in Need of Protection?

[22] The grounds of protection raised by the Society are ss. 37(2)(a) [physical harm], (b) [risk of physical harm], and (d) [risk of sexual harm] of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“CFSA”). In addition, in its written submissions, the Society submits that the Court could also make a finding that the Children are at risk of emotional harm, under s. 37(2)(g) of the CFSA. These provisions read as follows:

(2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c);

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;….

[23] It has been held that physical harm caused by neglect or error in judgment is still physical harm but it must be more than trifling physical harm. It has also been held that the risk of harm must be a real possibility, not speculative (see Children’s Aid Society of Niagara Region v. P. (T.) (2003), 2003 CanLII 2397 (ON SC), 35 R.F.L. (5^th^) 290). In other words, there must be a risk that the child will likely suffer physical harm. A child may be at risk even if the conduct is not directed specifically towards that child (see Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L. M.), 1995 CanLII 6216 (Ont. C.J.)). Exposure to a pattern of domestic violence may create a risk of emotional harm (see Children’s Aid Society of Toronto v. C. (S. A.), 2005 ONCJ 274, aff’d 2005 CanLII 43289 (Ont. S.C.), aff’d 2007 ONCA 474, leave to appeal to S.C.C. refused, [2007] 3 S.C.R. xiv (note); Jewish Family and Child Service v. K. (R.), 2008 ONCJ 774, aff’d 2009 ONCA 903).

Physical Harm

[24] In this case, there is no evidence that either of the Children, M or C, is in need of protection under s. 37(2)(a) of the CFSA (that either child has suffered physical harm inflicted by the parents).

[25] The evidence is that the parents kept a tidy and clean home, looked after these two children, and that Ms. F regularly sought and attended at medical consultations for the two young children, M and C. I do not accept the arguments of the Society that the difficulties initially observed with either M or C in foster care resulted from any failure of the parents to adequately care for, provide, supervise, or protect the Children or resulted from any pattern of neglect in doing so because, quite simply, these arguments of the Society are not supported by any evidence. The specific facts of this rather difficult apprehension and the Children’s initial separation from the parents and period of transition might just as well constitute a more plausible explanation.

[26] The Society called no medical evidence, no psychological evidence, and no pharmaceutical evidence to prove that the Children suffered physical harm. The Society called no evidence to prove its allegations that B was addicted to Gravol or to any other medication and called no such evidence in relation to any of the other children. The Society spent considerable time questioning witnesses on prescription records, Exhibit 64, but all of these drugs (and there certainly are many, possibly too many) were prescribed by doctors.

[27] I find B’s evidence that she and the children (children refers to all children and Children refers only to M and C) were regularly drugged by the parents to be unreliable. I have no doubt that B felt that she and the children were overly medicated by the parents, as they were given a lot of prescription medication. At the time, B was a child and in her eyes it probably looked as if they were being drugged. However, all of the prescription medications taken by the parents and given by the parents to the children were prescribed, and the Society called no medical or pharmaceutical evidence to prove that any of these medications, or any other over-the-counter medications, were not appropriate. Without medical evidence to the contrary, I find that this perception of B that she and the children were drugged is not reliable. It is more likely to be an inaccurate deduction from her regular observations that the children took or were given a significant number of prescriptions and other medications. Such an inference by B that they were drugged is, to some extent, contradicted by the evidence of B’s teacher, Ms. Fra, who testified that B was a serious and fairly assiduous student prior to leaving home. It is also indirectly contradicted by the evidence of various witnesses called on behalf of the Ms. F, including: Dr. McC, Dr. G, and the family’s pharmacist, S; who did not mention in their testimony that the children appeared in any way to have been drugged. Without any other evidence on this issue and without any expert evidence to contradict these witnesses’ accounts, there is simply no reliable evidence to establish, on the balance of probabilities, that the children were drugged by the parents.

[28] The evidence of the foster mother does not support the Society’s arguments regarding the parents’ neglect of M or C, or of developmental delays on the part of either M or C caused by such neglect. The inappropriate language occasionally used by either M or C, their inappropriate conduct, M’s alleged sleeping difficulties, and M’s requests for medicine after the apprehension could just as well have been caused by a myriad of other factors and it would be pure speculation to accept the arguments of the Society, based on the evidence presented, that these resulted from neglect or abuse by the parents. As well, such arguments of neglect are contradicted by the evidence of Dr. McC, who regularly saw the Children. If the Society intended to prove what it alleges under the heading “Neglect of M and C…”, at pp. 38 and 39 of its written submissions (including allegations of difficulty sleeping, asking for medicine, use of bad language, lack of empathy, and low motor skills), it should have called the appropriate evidence, expert or otherwise, to link what was observed by the foster mother to their allegations of earlier parental neglect. The Society has not called such evidence and the evidence of the foster mother does not at all prove these allegations.

[29] The same can be said about the Society’s assertion, at p. 39 of its written submissions that the access visits of Ms. F demonstrated inappropriate parenting and evidence of neglect (because she allegedly relied heavily on gifts or put numerous activities out that might have overwhelmed the children). These allegations and the examples provided by the Society are contradicted by the evidence.

[30] Despite issues with the parents, which I will address later in my reasons, they attended access visits as soon as they modified their bail conditions and the evidence of the person who primarily supervised all access visits, Ms. Lowe, is quite favourable to Ms. F.

[31] I found Ms. Lowe to have been an honest and candid witness. She was never defensive of any position, spoke practically and honestly about the facts without any exaggeration, and took a sensible, non-judgemental approach when assessing what she observed. She indicated that generally Ms. F was on time, affectionate with the Children, appropriate in her conduct, and that her visits with the Children went well. She mentioned that Ms. F never spoke negatively to the Children about the foster parents and added, in direct contradiction to what is asserted by the Society at p. 39 of its submissions, that the toys and gifts were age appropriate. Unlike others, she attributed some of M’s statements and conduct, including M’s alleged lack of empathy, to what a child of that age might say and do. In this case, the Society’s arguments that these statements and conduct of the Children, M or C, support the Society’s allegations that the parents neglected the Children are unsupported by the evidence.

Risk of Physical, Sexual, or Emotional Harm

[32] This brings us to the risk of harm and to my finding that the Children are in need of protection.

[33] As indicated above, the risk of harm must be real and not just speculative. A risk that children are likely to suffer harm from the parents is fact specific and the factual criteria to be met are specifically provided in the relevant provisions of the CFSA. It is not necessary that the conduct that causes concerns be directed towards the child (or children) that is the subject of the protection application. In this case, the evidence of the Society and of the parents, as it relates to a risk of harm, is quite conflicting.

[34] When assessing the evidence relating to a risk of harm we have to remember what was mentioned briefly above, that B was a child when the alleged events occurred.

[35] Assessing the evidence of an adult witness testifying about events that occurred when he or she was a child requires consideration of the realities of her age and understanding when the events occurred. Inconsistencies or inaccuracies in the evidence of a witness testifying about events that occurred when he or she was a child may not have the same impact that they might for an adult witness. Such inconsistencies or inaccuracies must be assessed in light of the age of the witness at the time that the events occurred and in light of the delay between these events and the trial. The credibility of such witnesses must still be carefully assessed and, while the standard of proof is not lowered, a common-sense approach is required, considering all relevant circumstances relating to the strengths and weaknesses of the witness’s evidence.

[36] This common-sense approach includes an appreciation that a lack of precision in details, dates, location or time, is not something that necessarily impacts in a negative way on a child’s evidence:

[I]t seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

(R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 133, citing R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54–55.)

[37] The burden of adducing evidence to prove harm or a risk of harm is on the Society. The Society must establish a risk of harm by a preponderance of evidence (on the balance of probabilities, or what is more probable) and to do so it must prove the factual criteria specified in the CFSA (see e.g. C. (N. V.) v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796).

[38] The Society relies almost entirely on B’s evidence to establish its case. For reasons that remain unexplained, the Society did not call as a witness at this trial any of B’s siblings (B.L., D, or G). The evidence of B was clear that the entire family was usually present when most of the allegations occurred. Moreover, B was again fairly clear that her brother, B.L., was present during the alleged events of September 11, 2013. At the time of trial, at least two of B’s brothers were of an age where one or both could have testified: B.L. was 22 and D was 17 (and even G was 14).

[39] Towards the end of this trial, I considered calling one of the older siblings under s. 47 of the CFSA. However, when confronted with the possible trial delays and possible prejudice raised by all of the parties, I decided not to do so (see CAS v. R. & F., 2017 ONSC 1669).

[40] Both parents argue, in their submissions, that an adverse inference may be drawn by the Society’s failure to call any of the siblings. The father argues that, at a minimum, the Society failing to call the older siblings means that B’s allegations are uncorroborated by these potential witnesses.

[41] No evidence was provided by the Society that the siblings were not available to testify at trial and the Society makes no mention of this topic in its written submissions.

[42] This is a complicated and fact-specific issue. Obviously, the onus is on the Society and I assume that the children have relevant information. However, I have no evidence that the Society had exclusive control over any of the siblings (B.L., D, and G). The parents point to their restrictive bail conditions but I have no evidence from the parents that they, or any of them, sought and were denied permission to vary any applicable bail condition limiting contact with the siblings. Despite both parents vigorously defending this matter, neither called as a witness any of the siblings and neither provided any evidence or explanation why they did not or did not seek or attempt to so.

[43] Considering the above, it is not at all clear what inference logically flows from the Society’s failure to call any of the siblings. Consequently, in response to what is sought by the parents, the most reasonable thing to do is not to draw a negative inference from the Society’s failure to call any of the siblings as a witness. This seems, in the circumstances, the fairest and most logical way to approach the evidence and the various contradictions, as any of the parties could have called (or could have sought to call) any of the siblings in support of its case and, for whatever reason, none decided to do so (see R. v. Lapensee, 2009 ONCA 646, 99 O.R. (3d) 501, at paras. 41–44; and Buik Estate v. Canasia Power Corp., 2014 ONSC 2959, at paras. 45–49). Nonetheless, this is not helpful to the Society meeting its onus as it leaves most of B’s allegations uncorroborated.

[44] Relevant more specifically to the risk of harm, B testified to the following:

• Mr. R and Ms. F would get along most of the time, but would fight often for any number of reasons. When they did, they would engage in a physical fight, punching and pushing one another, sometimes quite violently. She indicated that this could result in bad bruises, ligature marks, cuts, and swelling. She indicated that they fought frequently from the time when the family lived in Brockville until the time that she left in September 2013. She indicated that Mr. R would occasionally beat Ms. F just like she remembered him beating A.L. (her biological mother).
• Mr. R and Ms. F used drugs at home, including not only prescription medication but marijuana. Mr. R and Ms. F would also drink. She indicated that Ms. F smoked marijuana in the backyard when M was a baby. She indicated that sometimes they were both passed out and she would have to look after M. She described an occasion when B was about 15 when Ms. F walked around in her underwear indicating that butterflies drawn on her pants were flying.
• She and her brothers were frequently and savagely beaten for no reason by Mr. R. She indicated that they would get punched and slapped and that she had bruises everywhere on her body from her face to her legs. She described severe beatings by Mr. R. She indicated that it happened five to six times per week from the age of seven until she left home at the age of 16 — not only to her but to her brothers as well. This included being choked by Mr. R, being forced to stand in a corner with Mr. R stomping on her feet, and being forced to kneel on a metal grate. She indicated that, as a result, she and her siblings missed a lot of school, as they would be kept home until their bruises or cuts were sufficiently healed. She indicated that Mr. R could become really angry when he was drunk. She indicated that Mr. R would throw darts at her and at her siblings.
• The children were verbally abused by Mr. R who would call them names and tell them not to move or tell them to stand straight, while calling them every imaginable name, including “assholes”, “goofs”, “little pieces of shit”, “retards”, and so on. She mentioned that he would call Ms. F by these same names.
• That, for punishment, they were frequently required to write lines, such as I will never do this or that again, which evolved into writing negative lines about themselves such as I’m a goof or worse, as indicated above.
• That her and her two younger siblings, D and G, were tattooed against their will by Mr. R when she was approximately nine years old. She indicated that this hurt a lot when Mr. R applied the scalpel and the needle and that it felt like it took a long time. She said she was never told why this was done and that her brother G cried a lot when he received his tattoo.
• That Ms. F sexually abused her from the time she was about seven until she was in grade 8. She explained that it began in Brockville, occurring in the shower and eventually occurring in other rooms. She described being touched everywhere, including vaginal penetration. She indicated that she knew it was wrong and it felt uncomfortable and abnormal, but that she was told by Ms. F not to tell anyone. She indicated that it happened frequently, Ms. F touching her inappropriately 15 to 20 times per month. She indicated that it finally stopped when Mr. R was hospitalized for his first drug overdose and B refused to sleep in Ms. F’s bed, yelling that she would tell if Ms. F ever tried to abuse her again.
• That they were isolated by their parents, could not invite anyone at home, and could never be alone at home. She indicated as well that she and her siblings had to go to bed early no matter what and that she was forced to dress like a boy. She indicated that she frequently had to pick up her parents’ prescriptions at the drugstore. She indicated that she was inappropriately fed and lost a lot of weight when she was a teenager. She indicated that she was forced, or put, on birth control at the age of 12. As indicated above, she indicated that she and her siblings were given prescription medication, Tylenol, and Gravol to the extent that she felt high, drowsy, and tired. She said these were given to knock them out.
• That the final beating by Mr. R occurred on September 11, 2013, when she was brought home from school after her parents had learned that she had intended to run away. She described a very severe beating by Mr. R. She indicated that Ms. F threatened her that she was dead once they would arrive at home and testified that as soon as they arrived home, Mr. R threw her to the ground and started punching her many, many times, including punches to the face. She indicated that she was then beaten for a number of days and kept away from school until her bruises had sufficiently healed.

[45] All of the above allegations are disputed by the parents who testified and, in the case of Ms. F, called witnesses.

[46] B was called by the Society. Overall, she made reasonable efforts to answer questions, both in chief and in cross. On one hand, she demonstrated reasonable recollection given the passage of time, and she was fairly responsive and not overly argumentative during her cross-examination even when dealing with difficult topics. However, as will be particularize later, some of her evidence is either contradicted or is not supported by the evidence. Specifically, the extent and the severity of the physical abuse that she described is unlikely to have happened considering the extreme severity that she described and the reality that, with one exception, no witness ever observed any mark or evidence of abuse on any of the children, and this negatively impacted my assessment of her credibility.

[47] Mr. R presented as an angry person with a rather large chip on his shoulder. He made a number of rambling speeches describing, for example, how he did not appreciate being judged. He tended to describe himself as a victim and showed little empathy or regret for some of his actions. By way of illustration, Mr. R repeatedly indicated that he beat the living crap out of A.L. (B’s biological mother), without expressing any empathy, regret, or remorse. He later complained about being under the microscope with the Society. Similarly, when he described why and how he tattooed the children (B, D, and G), he did not express or demonstrate any empathy or remorse. Rather, he justified his actions as being protective of the children, explaining that he tattooed them as a means of identification should something terrible happen to any of them.

[48] At times, some of the evidence given by Mr. R is difficult to accept when assessed with the rest of the evidence — for example, when he claimed that he talked for hours to B after she had attempted to leave home in September 2013 or, even on less important points, when he claimed that he did not initially know that A.L. was a drug addict. Both assertions are simply inconsistent with the evidence and offend common sense and logic. At other times, his evidence is difficult to accept as he occasionally gave vague answers to important questions and answered quite differently in chief and when cross-examined by counsel for Ms. F than when he was cross-examined by the Society. While he made efforts to answer questions during his examination in chief and during his cross-examination by counsel for Ms. F, he made little efforts to answer questions when cross-examined by counsel for the Society. For example, when describing his plan of care, Mr. R gave what might be described as “rose-coloured” answers in chief and, by contrast, was quite unresponsive during his cross-examination by the Society on the same topic, refusing to answer simple questions relating to how his access might be structured based on Ms. F’s plan of care.

[49] Occasionally, some of his answers on unimportant topics provided a lot of information and detail, while his answers on important topics were vague, or contained bald statements, and consisted of very little by way of information or detail. Probably the best illustration of this is when, while being cross-examined by counsel for Ms. F, Mr. R very quickly indicated that Ms. F was not present when he tattooed the children (B, D, and G) and that she was not aware that he was planning to do so, but provided no information about where she was or might have been and no information about how or why she was unaware that he was planning to tattoo B, D, and G. He simply said that she was not present and not aware. He did not explain why he did not share with her his plans of tattooing the children. Indeed, if Mr. R was truly worried about the children to such an extent that he decided to tattoo them to ensure their respective identification in the event of the unthinkable, one might question why he did not share some of his concerns and plans with Ms. F. Yet, he did not address this. Considering his explanations, it does not make sense that Mr. R would not have shared his plans with Ms. F. Moreover, Mr. R might have revealed more about his personality and propensity than he intended when, in answer to questions from counsel for Ms. F, he explained that he never observed Ms. F assaulting the children or sexually assaulting B or else he would have beaten the crap out of Ms. F because, as he indicated, he doesn’t like that sort of thing. All of this negatively impacted my assessment of the credibility of Mr. R.

[50] Ms. F had two very distinct personalities when testifying. When questioned by her lawyer or by the lawyer for Mr. R, she sat straight, made eye contact, and was generally pleasant and responsive. By contrast, when examined by the lawyer for the Society, she was frequently angry and snarly and made very little efforts to be responsive. Part of this may very well be explained by the frustration and distrust that she obviously feels towards the Society, and I have allowed for this in my assessment of her credibility. However, her frequent lack of responsiveness to simple questions from the Society had a negative impact on my assessment of her credibility.

[51] I start my analysis of the evidence presented by the Society with what I accept as probable and will progress through the evidence to what I do not find probable.

[52] It is not disputed that the three youngest siblings (B, D, and G) were tattooed by Mr. R.

[53] B testified that she had not consented to receiving a tattoo and I accept this. Mr. R provided a rambling and illogical explanation related to the family living in a risky environment and how he tattooed the children to ensure that each could be identified if anything happened to them. Throughout his explanation, Mr. R did not indicate or make reference to seeking or receiving the consent of the three children nor did he address whether or not they cried or whether or not it might have been painful to have been tattooed by him as they were (i.e. at a young age at home). B indicated that she and one of her younger brothers cried while being tattooed and indicated that it was quite painful. Mr. R showed absolutely no empathy for the three young children that he tattooed and showed no regret.

[54] The period of time during which the tattoos were given to the children varies between the evidence of B and the evidence of the parents. B testified that she was nine, which would have been sometime after September 1, 2006 (or very shortly after the family returned to Ottawa in November 2006). Ms. F was not certain exactly when this occurred but indicated in 2009. She indicated that B.L. wanted a tattoo and received his first, from Mr. R, at the age of 16 (which would have been after February 3, 2010). Ms. F testified that she was not at home when Mr. R tattooed B and B’s two brothers. Mr. R indicated initially that he tattooed B when she was 14 or 15 years old (which would have been in late 2011 or in 2012). However, at para. 19 of Exhibit T (which are notes that Mr. R prepared overnight while he was testifying), he indicates that he tattooed the children in 2010 and when asked if he could clarify between the two time periods, he indicated that it was more likely that he tattooed the children in 2010. This makes sense as he also testified that B.L. wanted a tattoo and that he gave him his first when he was 15 (which would have been after February 3, 2009). Mr. R’s explanation as to why he tattooed the children was, as indicated, incoherent and illogical. Considering Mr. R’s explanation or attempted justification, and considering the near consensus that B.L. was tattooed when he was 15 or 16, the time period from 2009 to 2010 seems the most probable time period when B and the other children were tattooed. At that time, B would have been 11 to 12 years old (not nine as she indicated), D would have been about 10 or 11 years old, and G would have been about 8 or 9 years old. Considering B’s age at the time of the tattoos and considering that, in any event, it occurred quite some time ago, I am not surprised that B lacked precision when she testified that she was nine when she was tattooed.

[55] B testified very clearly that everybody was present when she and her two siblings were tattooed; albeit, her evidence relating to the tattoos focused on Mr. R. Both Mr. R and Ms. F indicated that Ms. F was not aware and that she was not present when B and her two siblings were tattooed, although both were vague about where Ms. F would have been or why she was not aware.

[56] Dealing firstly with whether Ms. F was aware that the children would be tattooed, I find it more probable that Ms. F was aware that the children would be tattooed by Mr. R. I arrive at this conclusion because if Mr. R was as worried about the safety of the children and about being able to identify the children, as he described, it is more probable than not that he would have discussed his plans with Ms. F. Consequently, even if I accepted the evidence of the parents that Ms. F was not present when the children were tattooed, I find, as indicated, that it is more probable that she was at least aware that they would be tattooed by Mr. R and find that Ms. F took no step to prevent the children from being tattooed and, thereafter, took no step to seek medical attention or to report Mr. R to the Society. However, I do not accept the evidence of the parents that Ms. F was not present because their evidence on this point is simply too vague and unconvincing when compared with the evidence of B that they were both present – I therefore prefer the evidence of B that Ms. F was present when the tattoos were applied to B, D, and G.

[57] It is also not contested that Mr. R lived through three drug overdoses and I find that these were probably traumatic for the family and the children and that it probably exacerbated ongoing difficulties at home. I accept the evidence of B about the circumstances of the overdoses as it makes sense when all of the evidence on these events is considered.

[58] I turn next to the events of September 11, 2013. On the balance of probabilities, I find that B was physically assaulted by Mr. R on that day but to a much lesser degree than what she described. I arrive at this conclusion for a number of reasons outlined below.

[59] Firstly, I find it highly improbable that Mr. R had a four to six hour discussion with B after she was brought home from school by Ms. F, as indicated by Mr. R in his testimony. Such a conversation, even if shorter in duration (even if a couple of hours as indicated by Ms. F), seems highly improbable given the little amount of detail provided by the parents as to what was discussed for so many hours. Secondly, B’s evidence about the events of September 11, 2013 contained details about what allegedly occurred that day and, as such, I found her evidence convincing that she was assaulted by Mr. R on September 11, 2013, although not as severely as she described.

[60] Thirdly, and quite importantly, that B was assaulted by Mr. R on September 11, 2013 is reinforced by the evidence of Ms. Fra, which I found to be both credible and reliable. Ms. Fra had a fair recollection of events, provided sufficient detail and information considering her limited involvement with B three years earlier, was equally responsive to all parties, and was not argumentative or evasive.

[61] Ms. Fra was B’s school teacher. She testified that she became concerned when B did not return to school in September 2013, shortly after B had informed her that she wanted to leave home. As a result, Ms. Fra telephoned B’s home to inquire and shortly thereafter B returned to school. Ms. Fra testified that when B returned to school, B was quite upset and had a bruise on her cheek. Ms. Fra understood that B had been punished for wanting to leave and B relayed to Ms. Fra some of her allegations of abuse. B was directed to the school’s social worker, was accompanied to a shelter by Ms. Fra, and never returned home to Mr. R or Ms. F thereafter.

[62] Ms. Fra testified that she took a picture of the bruise that she observed on B’s cheek but indicated that she subsequently deleted or misplaced the electronic copy of that picture. After her testimony at trial, Ms. Fra relayed her frustration about the missing picture to her ex-spouse, who informed her that he still had the picture on his computer. As a result, copies were thereafter produced to counsel for the parents, Ms. Fra was recalled and the pictures and a USB key of the pictures identified by Ms. Fra were entered as Exhibits.

[63] I accept Ms. Fra’s account of how she found the missing pictures as being a plausible explanation. Ms. Fra testified that those were the pictures that she had taken of B and, considering all of the evidence, I accept Ms. Fra’s evidence in that regard and find the arguments of the parents that the pictures are not of B to be, at best, implausible. Ms. Fra is an independent witness with no interest or motive to make this up. Her story is consistent with B’s version of an assault. Ms. Fra did not exaggerate, and I am not surprised that she did not remember the injury to B’s arm or how many pictures she had taken in 2013. Similarly, despite the fact the pictures are close-ups, the evidence of Ms. Fra was clear that the pictures were taken by her and that they are of B’s injuries.

[64] I find the inconsistencies raised by the parents relating to the evidence of Ms. Fra to be of a minor nature, particularly when factoring into that analysis that Ms. Fra was involved with B for a limited period of time and that she testified about events that occurred three years earlier. As indicated, I do not find it concerning that the photographs are close-ups because when Ms. Fra first testified about taking the picture, she described the size of the bruise on B’s cheek quite accurately without the benefit of having recently seen the misplaced picture. Similarly, having observed and listened to the cross-examination that counsel for the parents conducted of Ms. Fra when she first testified about the picture and about how she then thought that she had lost or misplaced the picture, for which she was implicitly criticized by counsel for the parents, I understand her subsequent frustration and venting to her ex-spouse when she later exchanged their child about how could she have been so careless as to misplace that picture. This is a reasonable and sensible explanation which, in the circumstances, makes sense about how the missing pictures were located. It is also reasonable that she did not remember taking more than one picture. While the pictures could have been put to B by the Society when B was later recalled to deal with another issue, B had already testified about the assault, about the picture taken by Ms. Fra, and this had been sufficiently addressed by Ms. Fra.

[65] I also find the arguments raised by the parents about the pictures (Exhibits 45 – 48) to be so obviously self-serving as to be far-fetched. The parents stated that the pictures of the arm looked like a finger, that B had clearer skin, and that B’s eyes were not blue. None of these assertions by the parents would explain why Ms. Fra would make this up. These arguments are an example of the parents denying the obvious and, as such, they make a contribution to my negative assessment of their respective credibility.

[66] However, although the pictures corroborate that B was assaulted by Mr. R on September 11, 2013, they and the evidence of Ms. Fra also convince me that, on the balance of probabilities, B was not assaulted as severely as she described. The assault that B described would have resulted in much more severe injuries, including to her face, than what is revealed by the pictures, being one bruise to her face and one bruise to her arm. While I do not at all diminish how grave and improper I find the fact that B was assaulted on September 11, 2013, on the evidence presented I find that B exaggerated the severity of that assault.

[67] Consequently, I find that it is more probable than not that upon learning that B had tried to run away Mr. R became angry and that he not only smashed B’s phone, as is alleged by the parents, but that he also assaulted B, including to her face, and that he pushed her around and manhandled her causing the injury to her arm. I also find it more probable than not that B was subsequently kept home partly in an effort to mask her injuries, which effort might have been successful but for the telephone call of Ms. Fra and I accept the latter because this makes sense with the rest of the evidence and because the explanations of the parents for B’s temporary absence from school after September 11 (including that Ms. F and B did “girl stuff”) are, in the circumstances, implausible.

[68] Finally, I find it more probable than not that Ms. F knew that B would be assaulted by Mr. R when she brought her home on September 11, 2013, that she took no step to prevent it, and that she was present for some of the assault on B. I arrive at this finding because I prefer and accept as more probable the evidence of B that Ms. F warned her that she was in trouble and she would get it when she got home, and that she was present. I prefer the evidence of B on this point as it was detailed, while the evidence of Ms. F that she was not present was not at all clear. The evidence of Ms. F on her presence was not clear: in chief, Ms. F described that after returning home (on September 11, 2013) B’s telephone was damaged by Mr. R, the three of them had a conversation for a couple of hours, after Ms. F went up to B’s room to do B’s hair and nails, B told her that she was sorry and loved her, and Ms. F denied any assault and bruises on B. However, during her cross-examination and re-examination, Ms. F mentioned that when B was brought back home she (Ms. F) left to pick-up D and G at the bus back from school, and that when she returned about one hour later that B and Mr. R were talking in the living room. While I recognize that these versions are not necessarily contradictory and that they could be made to fit together, they create enough ambiguity for me to prefer as more probable the clearer version of B that Ms. F knew and was present. However, as indicated above, the Society has not established and I do not accept that B was then severely beaten as she described because this is contradicted by the pictures.

[69] In regards to the first allegation described above at para. 44 (fighting between the parents), I find it more probable than not that Mr. R and Ms. F occasionally argued and fought, and that some of their fights were physical, but find that this did not occur as frequently and not at as severely as what was described by B. I make this finding because Mr. R convinced me, by his testimony, that at that time a probable reaction on his part when things did not go his way was to become verbally and physically abusive. However, such fighting between the parents could not have been as frequent and as severe as what was described by B because none of the witnesses called by Ms. F, or anyone called by the Society, expressed any concern about the safety of Ms. F and none ever observed any injuries to Ms. F.

[70] Similarly with respect to the third and fifth allegations described above at para. 44 (physical abuse by Mr. R of B and of her three siblings and writing lines), when I consider all of the evidence, I find it more probable than not that B and her three siblings were occasionally verbally and physically abused by Mr. R and were occasionally made to write lines that sometimes contained derogatory statements towards them; however, I find that this did not occur as frequently as what was alleged by B, and that it was not at all as severe or to the extent suggested by B.

[71] I accept the evidence of B that there were instances of verbal and physical abuse by Mr. R towards her and her three siblings. Mr. R testified that he would have beaten Ms. F if he had known that she abused B, the assault on B of September 2013 is corroborated by pictures, and I prefer the evidence of B about the core allegation of verbal and physical abuse. I find that Ms. F was aware and took no steps to protect the children because I accept the evidence of B that Ms. F was generally at home when these events occurred as this is consistent with the evidence of B and of the parents regarding the parents’ lifestyle. However, as indicated, I find that such assaults occurred to a much lesser extent in regards to both frequency and severity than what was indicated by B. Such core findings are consistent with the bulk of the evidence, including that none of the medical doctors, teachers, or the family pharmacist, all of whom had regular and frequent contact with the family, ever observed any injury; but each had limited opportunities and abilities to observe less severe forms of abuse by Mr. R. For the same reasons, it should be clear that I do not accept that the children were savagely and regularly beaten by Mr. R or that B was forced to kneel on a metal grate, choked, or forced to stand in a corner with Mr. R stomping on her feet, since the evidence presented by the Society does not establish, on the balance of probabilities, that the children regularly missed a lot of school and no one observed any injury on any of the children (with the exception of Ms. Fra in relation to the events of September 2013). However, as indicated, the evidence of B and of Mr. R convinces me that Mr. R occasionally verbally and physically abused B and her three siblings (excluding M and C — there is no evidence that either was ever verbally or physically abused by Mr. R or Ms. F).

[72] I accept and prefer the evidence of B that Mr. R occasionally threw darts in the direction of B and her siblings. This seems probable considering all of the evidence of B and of Mr. R. I note as well that this was not contradicted by Mr. R and I do not accept that this was an inadvertent omission of his lawyer as this trial was most aggressively fought by the parents.

[73] I also accept the evidence of B that she and her siblings were isolated by the parents, rarely left alone at home and not permitted to invite friends at home, because this is supported by the bulk of the evidence, and even the parents admitted some of the allegations that the children were kept at home, that the children were not allowed to have friends at home (subject to limited exceptions), and that they were not allowed to go many places without the parents.

[74] I further accept the evidence of B that the parents occasionally used alcohol and/or marijuana, sometimes to the point of impairment, because the evidence of B about this was convincing, including when she described an example involving Ms. F and butterflies sown on her pants that Ms. F thought were flying and because the denials of the parents were not convincing. However, following his drug overdoses, Mr. R seems to have recently done better in this regard, and there is no recent evidence about this relating to either Mr. R and Ms. F and very little evidence about its impact on the Children M and C.

[75] It should be apparent by now that I accept parts of B’s evidence relating to the core of the allegations described above at paras. 52 to 74, even if I find that she exaggerated. I arrive at the above findings (at paras. 52 to 74) because they make sense and they have an air of reality when all of the evidence is considered; despite the fact that the frequency, the extent, and the severity described by B are inconsistent with the evidence. From my perspective, having observed B and the parents at trial, and having analyzed how the above allegations at their core are confirmed and supported by other evidence described above and how each of these at its core seems to make sense with the rest of the evidence, it is more probable that B exaggerated the above events not because she made them all up, but because she was then a child who misperceived some of what occurred and also because of resentment towards the parents for what she experienced while living in their care.

[76] B’s resentment of the parents and the animosity between B and the parents were palpable during this trial but it would be inconsistent with the evidence, including that of Ms. Fra, the pictures of the bruises to B, and the undisputed fact that the children were tattooed, to find that B made up all of the disputed allegations accepted above. It would also be inconsistent with Exhibits 86 and 87 described below at para. 93. Consequently, as indicated, I do not completely disregard B’s evidence on those points accepted above but rather find her evidence thereon nonetheless sufficiently convincing to establish that the above occurred albeit much less frequently and much less severely than described by B.

[77] The fact that B occasionally sent cards on special occasions to Mr. R and to Ms. F or that she sometimes expressed affection towards them does not contradict these findings, as I accept that B tried to do the best that she could with her situation.

[78] However, considering that B exaggerated some of her evidence, when I consider other parts of her evidence in light of all of the evidence, I find that for these other parts which follow, on the balance of probabilities, the Society has not made them out. Here is my analysis of which allegations are not accepted and why.

[79] While the evidence possibly indicates that Ms. F was a hypochondriac who possibly took too much prescription medication, the evidence presented by the Society is not sufficient to establish, on the balance of probabilities, that Ms. F abused prescription and non-prescription medication. I make the same finding with regards to the allegations of the Society that the children were overly or improperly medicated by the parents. The prescription receipts and patients’ profiles (Exhibit 64) filed by the Society are not in and of themselves sufficient to establish these allegations, considering that Ms. F called the relevant doctors and the family pharmacist, all of whom testified that all medications were properly prescribed and administered. I found all of the doctors and the pharmacist called by Ms. F to be credible and reliable witnesses.

[80] Dr. McC simply stated the facts and answered all questions in a very nonpartisan manner. He confirmed what he prescribed for the Children, M and C, at Exhibit 64. He also confirmed that Ms. F attended regularly at his office with the Children and that she never, on the more than 40 occasions that she attended, appeared either drugged, tired, or injured.

[81] Dr. G has seen Ms. F since 2007 on a significant number of occasions. He testified that all of the medication prescribed to the children and to Ms. F from the clinic where he practised was appropriately prescribed. The Society provided no evidence to the contrary. Dr. G also testified that the children were always appropriately dressed and that from his observations they were appropriately looked after by Ms. F.

[82] The family pharmacist, S, was slightly more protective of the family but still answered questions honestly and candidly. S confirmed that the medication that he provided to the family was all properly prescribed despite candidly noting that the family might have overly depended on medication. He also contradicted B’s testimony relating to her allegations that the parents were inappropriately supplied prescription and non-prescription medication and, on these points, I prefer his evidence to that of B. I therefore do not accept the evidence of B that the children were drugged by the parents. The children were prescribed and given a significant amount of medication and I understand how to B it might have looked and felt as if the children were being drugged by the parents. However, on the balance of probabilities, the evidence presented does not establish that the children were drugged.

[83] I also prefer the evidence of Dr. T to that of B on the issue of contraceptives. Dr. T presented as an extremely credible witness who answered questions in a straightforward manner. She is an obstetrician/gynecologist who followed Ms. F for her pregnancies from about 2007 until August 2014. Like the other health professionals who testified, she never noticed anything out of the ordinary and the family appeared happy from her limited observations. At the request of Ms. F, who expressed concerns that B might wish to be sexually active, Dr. T agreed to see B to provide her counsel. She met with B in the presence of Ms. F but I am convinced, from the evidence of Dr. T, that Dr. T then treated and considered B to be her patient and that Dr. T would have met with B privately if she had experienced concerns about any inappropriate conduct or control exerted by Ms. F. I accept as well that B was prescribed contraceptives as B wanted this for a number of appropriate reasons, which Dr. T described and which I accept. Dr. T saw B during follow-up consultations on more than seven occasions and never noticed anything inappropriate, which I find is consistent with the factual findings described above at paras. 52 to 74.

[84] Similarly, Ms. M, a school principal, was also very credible. Like Ms. Fra, she testified that the children had a good attendance record at school, which again is consistent with the factual findings described above. She also testified, like the doctors and the pharmacist listed above, that Ms. F was a seemingly engaged and caring parent to children that were not her own.

[85] Although the witnesses presented by Ms. F were credible and reliable witnesses, they all had limited opportunities and limited abilities to observe the family and the children. Consequently, they could not have observed or known about those things listed above, which I have found probably occurred. The same can be said about other third parties who regularly interacted with the children, including the police who attended at the family home to check on B.L., while he was out on bail. The same is applicable to the Facebook pictures of B that show her with no injury and to the family picture produced by the parents at trial.

[86] I also do not accept, on a balance of probabilities, that B was inappropriately fed as this is contradicted or not made out by the bulk of the evidence.

[87] Finally, the Society has not proven, on the balance of probabilities, that B was sexually abused by Ms. F. I arrive at this conclusion for the following reasons. Firstly, I found the evidence on this issue, as it was presented by the Society, not to have been convincing. The Society conducted a cursory examination of B and a cursory cross-examination of Ms. F on this topic. As a result, the Society did not elicit sufficient detail from B to meet its onus of establishing these allegations on the balance of probabilities. Secondly, the high frequency and long period of sexual abuse alleged by B, coupled with the lack of detail, make these allegations implausible given that B also described that the entire family was usually home with many doors that did not lock. Finally, I am concerned that B exaggerated some of her evidence as described above in circumstances where she is obviously quite angry at Ms. F and that these allegations, contrary to those accepted above do not fit with anything else. Consequently, when I assess on the balance of probabilities the evidence presented on this issue at this trial the balance tips in favour of Ms. F and I prefer her evidence on this issue to that of B.

[88] Quite independently of the above, the absence of any evidence by the Society relating to some form of assessment of Ms. F in relation to whether she poses any risk of sexual harm to the Children does not bolster the case of the Society on that front or their argument that para. 37(2)(d) of the CFSA is engaged.

[89] A significant amount of court time was spent on family pictures disclosed and brought by the parents at the start of trial. These, along with other documents that were first disclosed at trial, should have been served on the other side well before trial. As a result of late service of documents, the ultimate use made by the parties of these documents was not as organized or effective as it might have been. As an example, of the pictures that were made exhibits by the parties, many date back to when the four original children were in foster care or to when the four original children were younger, such that the pictures were given little weight.

[90] At some point when Ms. F was 16, before she met Mr. R, she met and frequented a Mr. L. I refer to Mr. L and to these long-ago events only to contextualize Exhibit X and the disputed evidence relating to a possible brief relationship between Ms. F and Mr. L, late in 2016, which will be addressed next. Ms. F testified that she did not know when she initially met Mr. L, in about 2002, that he was a pimp. She testified that in 2002 Mr. L was violent if she did not give him her welfare money and she denied earning any other source of income while with Mr. L in 2002.

[91] Submissions were made at the end of trial in relation to the admissibility and use of three exhibits. While I admitted the exhibits on threshold reliability, I indicated that a decision on their ultimate use would be outlined in these reasons.

[92] Although I admitted Exhibit X (documents taken from Facebook by Ms. Lowe allegedly establishing a recent relationship between Ms. F and Mr. L – presented by the Society in support of their theory that Ms. F is attracted to violent men who pose a risk to the Children), I have decided to place no weight on this Exhibit for the following reasons. The authenticity of Exhibit X, of the picture allegedly of Ms. F and Mr. L, and its contents were very much disputed by Ms. F. Ms. Lowe did not know when the pictures were taken, did not know whether the pictures were an accurate depiction or a montage, and she did not take part in any of the communications outlined at Exhibit X. It is also not clear which, if any, of the various parts of Exhibit X originate from the Facebook account of Ms. F. In its submissions (at p. 29), the Society suggests a possible interpretation of the contents of Exhibit X, but such an interpretation is highly speculative. Frankly, when I consider all of Exhibit X it is not clear what these various messages actually mean. Ultimate reliability is a real issue for the Society who seeks to establish the truth of the content of Exhibit X. Considering the above I have therefore placed no weight on Exhibit X.

[93] The situation is different for Exhibits 86 and 87. These are emails that on their face appear to be emails exchanged between Ms. F and Ms. Parke, of the Society, in which Ms. F allegedly admits that Mr. R was violent.

[94] For Exhibits 86 and 87, Ms. Parke testified that she sent and received these emails, seemingly to and from Ms. F, in January 2016. The emails appear related to these events and, to some extent, their respective topic appears related to allowing Ms. F an opportunity to share her experience. At trial, Ms. F denied sending these emails to Ms. Parke. However, she did not deny that the email address listed thereon is her email address. Rather, Ms. F stated, with very little by way of explanation, that many people have her email address and that B.L. knew her password. While it is possible that these emails or that some of them were sent to Ms. Parke by someone other than Ms. F, it is not, in the circumstances, probable. I have considered the arguments raised by the parents and find these to be unconvincing. When I consider these emails, I find that it is more probable than not that they were sent by Ms. F, such that ultimate authenticity and integrity is sufficiently established. The Society introduced these documents for the truth of their content. Necessity was established as the Court strives to obtain the best possible evidence and this evidence would otherwise not be available. Reliability was established as the context and contents of these emails provide sufficient safeguards about their truth and accuracy. Indeed, these emails are factually related to these events and were all sent to Ms. Parke. There is some logic to the sequence and to the contents of the emails. Moreover, their contents do not appear to have been understated or exaggerated and this makes sense as Ms. F states, in these emails, that she loves Mr. R yet she is obviously trying to favorably position herself with the Society. Although there are typos and some stylistic differences, on the balance of probabilities, I am convinced that they originate from Ms. F. Consequently, I have placed some weight on the contents of Exhibit 86 and 87. Their contents are consistent with the above findings.

[95] To summarize, I have found:

• That three of the children (B, D, and G) were tattooed without their consent by Mr. R and that Ms. F, despite being aware that this would occur, took no step to prevent it (see paras. 52 to 56);
• That Mr. R assaulted B on September 11, 2013 and that Ms. F took no step to prevent it; however, that this assault was not as severe as described by B (see paras. 58 to 68);
• That the parents occasionally fought and that Mr. R occasionally verbally and physically abused B and her three siblings, including throwing darts in their direction, and that Ms. F took no step to protect these children; however, that this did not occur as frequently and as severely as described by B (see paras. 69–72);
• That B and her three siblings were isolated to some extent by the parents (see para. 73);
• That the parents occasionally used alcohol and/or marijuana, sometimes to the point of impairment, but that this evidence is primarily historical (see para. 74).

Considering the above factual findings, I find, on the balance of probabilities, that the Society has demonstrated that there is a real risk that the Children are likely to suffer physical harm resulting from the parent’s failure to adequately care for, provide for, supervise and protect the Children. I therefore make a finding under ss. 37(2)(b)(i) and (ii) of the CFSA that the Children, M and C, are in need of protection. I make this finding because the past actions of Mr. R and because the past inactions of Ms. F, described above, constitute a real risk that the Children are likely to suffer physical harm. There is also, for the same reasons, a risk of that the Children are likely to suffer emotional harm.

Disposition

[96] The Court’s disposition options are set out in s. 57(1) of the CFSA. However, due to the restrictions contained in s. 70(1), if the Court is satisfied that intervention through a court order is necessary to protect the Children in the future, then, at this stage, in the Children’s best interests, the Court’s options are practically limited to either (1) place the Children 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, or (2) make the Children Crown wards.

[97] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) is set out in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376.

[98] In determining the appropriate disposition, the Court must decide what order is in the child’s best interests. The Court has considered the criteria set out in s. 37(3) of the CFSA in making this determination.

[99] The least disruptive alternative to the Children is to be favoured (see s. 57(3) of the CFSA).

[100] A Crown wardship is the most profound order that a court can make. To take someone’s children is a power that a judge must exercise with the highest degree of caution, on the basis of compelling evidence and only after a careful examination of possible alternative remedies (see Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J) (1996), 23 R.F.L. (4th) 79 (Ont. Div. Ct.)).

[101] Moreover, in determining the best interests of the child, the Court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child’s perspective (see Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165).

[102] Considering the seriousness of the factual findings made above and the resulting protection concerns, this Court is satisfied that intervention through a court order is necessary to protect the Children in the future.

[103] Next, I assess whether the disposition that is in the Children’s best interests is a return to a parent, with or without supervision or a Crown wardship.

[104] In considering the best interests of the Children and the relevant circumstances of s. 37(3) of the CFSA, I make particular note of the following:

• The evidence, particularly of the foster parent and of the childcare worker, is that the Children are intelligent, at an appropriate level of development, and doing well.
• Ms. F self-identifies as Indigenous.
• The plan of the Society seeks a Crown wardship. No evidence was presented about any proposal for adoption and, as a result, it appears unavoidable that the Children will be moved at least once from the current foster parents irrespective of my order. Further, as no evidence was presented relating to any prospective adoptive family, no evidence was presented relating to when an adoption might occur or the likelihood of the Children being adopted by the same family (likelihood of one multiple placement adoption).
• The plans of the parents seek the return of the Children with supervision by the Society. Each of their plan paints a rather rosy picture, but the evidence of Mr. R regarding his plan was particularly unbelievably utopian. Ms. F recognizes that one option for her plan involves no communication and no contact with Mr. R. She, like Mr. R, testified that she would respect and agree with required supervision by the Society. They both have a fairly good track record of complying with conditions of the Society and of the Court. Moreover, Ms. F acted as a surety to B.L on a number of occasions and I have no evidence of any breach.

[105] The trial was expected to start on September 6, 2016, but was adjourned at the request of the parties to September 12, 2016, to allow the parties time to review relevant transcripts of the preliminary enquiry. This adjournment contributed to the trial not finishing within the allotted time in September, which in turn caused significant delays in finding dates convenient to the parties and to the Court. The trial also took much longer than anticipated by the parties and the many delays have limited the disposition options available to this Court.

[106] In assessing the other paras. of s. 37(3) and the level of risk to the Children I note the following:

• None of the factual findings against the parents made and outlined above relate to the Children M and C. There is no finding of physical harm to M or C.
• The evidence indicates that the parents looked after the needs of M and C.
• Ms. F regularly attended prenatal appointments with her obstetrician and, following the birth of the Children, regularly (if not too often) attended at doctors for the Children.
• The parents kept a clean and tidy home.
• The Children were observed to be well kept and happy.
• Despite a strained relation with the Society, likely resulting from the apprehension, the parents took courses and regularly attended supervised access with the Children.
• The access to the Children by Ms. F was generally appropriate. The access supervisor, Ms. Lowe, noted that Ms. F acted appropriately during access visits. Ms. Lowe did not observe any child protection concerns and commented that the access visits of Ms. F went well. I found the criticism expressed by Ms. Parke of the access of Ms. F to have been unfairly judgmental, occasionally relating to minor issues about which others might disagree. For example, she found the amount of direction provided to the Children by Ms. F to be lacking and she criticized Ms. F’s for failing to initiate sufficient age appropriate activities. I found that Ms. Parke did not adjust her assessment of the access by Ms. F to account or to compensate for the setting of supervised access which may restrict even a well-intending parent.
• Ms. F generally cooperated and worked well with the Society, although she experienced difficulties dealing with Ms. Parke.
• The same is not entirely true for Mr. R. He was observed during supervised access to occasionally struggle with the Children, act inappropriately, and act in a confrontational manner towards the Society.
• The finding is of a risk that the Children are likely to suffer physical harm and the bulk of this risk relates to Mr. R.
• The factual findings made in this matter relate principally to actions of Mr. R and to inactions of Ms. F. Some of these findings, as they relate to Ms. F, find a probable explanation by Exhibits 86 and 87. In these emails, Ms. F expresses that she loves and is scared of Mr. R, whom she describes as verbally and sometimes physically abusive. The Society recognizes, at p. 29 of their submissions (fourth paragraph), that one reasonable interpretation flowing from other disputed events is that Ms. F “was terrified of Mr. R”. Nonetheless, the factual findings relating to Ms. F are serious, as is the risk which is always present that some of the allegations against her that have not been made out, on the balance of probabilities, nonetheless occurred. However, the factual findings made against Ms. F are somewhat tempered by the above analysis of the evidence (including Exhibits 86 and 87) and by how Ms. F otherwise looked after the Children, as well as B and her siblings. For example, the evidence is clear that Ms. F regularly attended school meetings relating to B and her siblings, took seriously their education and homework, and was described by many witnesses as very caring of all of the children. The same positive observations were not made of Mr. R; most witnesses indicated that he rarely attended school and medical appointments for the children.
• Mr. R was the probable catalyst to my factual findings against Ms. F. The factual findings made against Mr. R are not only more serious, they are also the cause of the factual findings made against Ms. F for failing to take steps to prevent the noted actions of Mr. R. In addition, during his testimony Mr. R showed no regret, no empathy, and no introspection of the seriousness of his actions against B. On the contrary, he perceived and described himself as a victim.
• Mr. R represents a much higher risk of harm to the Children than does Ms. F.
• Although Ms. F did not intervene either to protect B and her siblings or to denounce Mr. R she testified that she would not have allowed Mr. R to tattoo the Children. This gives me reasonable confidence that in the future Ms. F is more likely to intervene for the Children.
• Ms. F has shown a reasonable ability to follow conditions and to work cooperatively with the Society.
• Ongoing criminal charges are not directed to allegations against M or C.
• Some of the tension between the parents and B related to: the parents’ animosity towards B’s biological mother, B’s resentment for being kept away from her biological mother, and B’s resentment for how her biological mother was belittled by the parents. This tension is obviously not present with the Children.

[107] Considering the above, separating Ms. F from Mr. R will reduce the risk of harm posed by Ms. F to the Children to a level that could be adequately managed by appropriate conditions.

[108] As a result, when I consider the best interests of the Children and the obligation on this Court not to order the removal of a child unless satisfied that alternatives that are less disruptive to the child would be inadequate to protect the child (s. 57(3) of the CFSA), I find that it would be in the best interests of the Children for this Court to make an order that the Children, M and C, be placed in the care and custody of Ms. F, subject to the supervision of the Society, for a period of 12 months.

[109] Consequently, the Children M and C will be placed in the care and custody of Ms. F subject to a twelve-month supervision order with the following terms:

(a) Ms. F shall not reside with Mr. R and shall have no contact or communication with Mr. R except for what is permitted by the Society or by court order and Ms. F shall immediately notify the Society of any contact or attempt at contact by Mr. R.

(b) Ms. F shall not permit Mr. R to have any contact or communication with M and/or C except for contact and communication that is permitted by the Society or by a court order and Ms. F shall immediately notify the Society of any such contact or attempt at contact by Mr. R.

(c) Ms. F shall cooperate with the Society, which includes attending meetings and answering, or returning the Society worker’s electronic or other correspondence and telephone calls.

(d) Ms. F shall cooperate and allow the Society to visit her home on both an announced and unannounced basis, including on weekends and during the evening.

(e) Ms. F shall allow the Society private access to the Children in the home, at school and in the community.

(f) Ms. F shall attend for random drug screens and testing, at no cost to her (including required transportation and childcare arrangements), within four hours of being requested by the Society, upon condition that the Society provides the transportation and the childcare necessitated by such testing.

(g) Ms. F shall, within ten (10) days of receipt, sign and return all relevant consent forms requested by the Society, including those relevant to the health and welfare of the Children.

(h) Ms. F shall attend and complete all courses and training reasonably suggested by the Society, including any dealing with abusive spouses, upon condition that the Society provides transportation and the childcare necessitated by such courses and she shall as well, at a minimum, contact the Minwaashin Lodge to inquire if and how they could be of assistance.

(i) Ms. F shall notify the Society of any change of email address, phone numbers, or other contact information forthwith.

(j) Ms. F shall notify the Society at least fourteen (14) days in advance of any residential move and any such move is subject to the approval of the Society, not to be unreasonably withheld.

(k) Ms. F shall ensure the Children’s basic needs are met including medical, educational, physical, emotional, and developmental needs.

(l) Ms. F shall bring M and C as required and on a regular basis to their doctors and dentist appointments.

(m) Ms. F shall follow any recommendation made by medical professionals in relation to M and C.

(n) Ms. F shall ensure that any prescribed medication for the Children is administered to them only in accordance with their prescriptions.

(o) Ms. F shall arrange for the Children to be enrolled in school and in pre-school programs that are available and suggested by the Society, at no cost to Ms. F.

(p) Ms. F shall, at all-time, be the primary caregiver for the Children and any alternative caregiver shall be approved by the Society in advance and upon at least a 72-hour notice to the Society. Any proposed caregiver may be interviewed by the Society at the request of the Society and shall submit to police checks and other reasonable screening requested by the Society, at no cost to Ms. F.

(q) Ms. F shall not allow other individuals to be in her apartment between midnight and 6:00 a.m. without the prior approval of the Society, not to be unreasonably withheld.

(r) Ms. F shall abstain from use of illegal substances, not allow illegal substances into her apartment and ensure that visitors to her apartment are not under the influence of alcohol or illegal substances.

(s) Ms. F shall not have any contact with Mr. L and shall not permit Mr. L to have any contact or communication with M and C at any time and shall give notice to Society of any contact or of any such attempt by Mr. L.

(t) Any approval of the Society required by this Order shall be in writing.

(u) Ms. F shall not have any contact or communication with B.L., B, D, or G.

(v) If the Society has specific concerns about the care being provided to the Children by Ms. F, the concerns shall firstly be put in writing and delivered to both Ms. F and her lawyer, Mr. Smith, sufficient to allow Ms. F a reasonable opportunity to address any such concerns.

(w) The Society shall assist Ms. F in dealing with government agencies to have her income readjusted in recognition that the Children will be in her care.

(x) Ms. F shall attend at a parenting capacity assessment as ordered below.

[110] I agree with the submission of Ms. F that it would be helpful to change the worker at the Society responsible for this matter. Indeed, the child protection worker assigned to this file has taken part in this process to such an extent that a productive and constructive relationship with and by Ms. F would be difficult. Such a change will allow Ms. F to work much more cooperatively with the Society.

[111] This brings me to Mr. R and to what occurs after this order. I will deal firstly with Mr. R.

[112] Mr. R currently has supervised access to the Children which he exercises. There have been some issues with his access, as noted above, but he does regularly attend the supervised access visits and he does make reasonable efforts with the Children. It was noted that the Children are happy to see him even if he occasionally struggles to play games or to engage in conversation with the Children. He has taken many of the courses suggested by the Society and has also shown reasonable efforts in that regard (see for example the testimony of Mr. Bondy).

[113] The applicable test for continued access by Mr. R is for the Court to allow access unless the Court is satisfied that continued contact with him would not be in the Children’s best interests. Considering the factual findings made above, I am satisfied that unsupervised or even frequent supervised contact would not be in the best interests of the Children. However, I am not satisfied that limited and supervised access by Mr. R of the Children would not be in the Children’s best interests. Consequently, access by Mr. R shall be supervised by the Society as it has been to date, but shall be limited to one hour once every two weeks (preferably during weekends not to interfere with school), and shall be subject to the following conditions:

(a) Mr. R shall follow the access rules of the Society and shall cooperate with the Society, including returning messages and attending requested meetings.

(b) Mr. R shall notify and keep the Society informed of his residential address, telephone number, and email address.

(c) Mr. R shall sign all relevant consent forms requested by the Society.

(d) Mr. R shall attend and complete all courses and training suggested by the Society.

(e) Mr. R shall not reside with Ms. F and shall not have any contact or communication with Ms. F except for what is permitted in writing by the Society or by court order and Mr. R shall immediately notify the Society of any contact or attempt at contact by Ms. F.

(f) Mr. R shall have no unsupervised contact to M and C.

[114] The above conditions should effectively neutralize the risk of Mr. R being involved with Ms. F and the Children. Ms. F must realize that if she allows or involves Mr. R with her or the Children, in breach of the above, then a Crown wardship order will be necessary to protect the Children.

[115] Mr. R’s stated intention is to ultimately reintegrate with Ms. F and the Children. He therefore seeks permission to bring an access motion during the course of the supervision order.

[116] However, the intention of this Court in ordering a supervision order to Ms. F with no contact with Mr. R is to give the Children and Ms. F a clean break from Mr. R and an opportunity to better their lives. The supervision order described above should allow Ms. F to safely parent the Children. Ideally, she will then learn to move forward with her life without Mr. R. This is required in the best interests of the Children and in this case the integrity of the family unit cannot be preserved. Ms. F has on many occasions been unable or unwilling to act to protect B and her sibling from Mr. R. He obviously has control over her and without further evidence it is at this stage simply too risky to allow them to reside together with the Children or even to contemplate unsupervised access by Mr. R during the period of supervision. Quite simply, if Mr. R was to have any continued involvement with Ms. F and the Children, in any unsupervised setting, I would have ordered a Crown wardship.

[117] The Society did not suggest any possible conditions in their submissions and this would have been helpful to the Court. I will allow the Society an opportunity to do so within the next three (3) business days - until 15:00 on Wednesday, July 19 to provide their comments to paras. 109 and 113, limited to five pages clearly identifying their suggested changes to the above conditions. The parents may respond to the Society’s comments by no later than 10:00 am on Friday, July 21. These brief submissions shall: not exceed five pages each, be limited to addressing the conditions, work from the conditions outlined above and clearly highlight any change or modification suggested to the conditions, and shall be sent to my assistant by email within the allowed time. If the Society does not provide submissions within the allowed time then submissions from parents are not required as I have already considered theirs and, in that event, this Order becomes effective as it is on July 20, 2017. If submissions are provided by the Society then this Order shall become effective on the date of my further Endorsement confirming the applicable conditions.

[118] Finally, I address what happens next, after this order. I deal firstly with the Society’s request for a stay should a supervision order be made and, secondly, with the need for a parenting capacity assessment.

[119] It is regrettable that the parents did not or could not proceed with their criminal trial as expeditiously as they had represented to Justice Mackinnon when they successfully resisted a motion for summary judgment (see para. 8 of The Children’s Aid Society of Ottawa v. C.R. and A.F., 2016 ONSC 1590, where the parents anticipated completing the criminal trial before the end of 2016). As it stands, the criminal trial is currently ongoing and may not be completed before the month of October with a decision not likely before December 2017.

[120] The Society asks, in its submissions, that any supervision order be stayed pending the outcome of the criminal trial.

[121] A court may stay a proceeding on such terms as are just (s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43).

[122] However, it is only in exceptional and extraordinary circumstances that a court will exercise its discretion to stay a civil action when there are parallel criminal proceedings (see Gillis v. Eagleson (1995), 1995 CanLII 7190 (ON SC), 23 O.R. (3d) 164 (S.C.) and Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L. M.), 1995 CanLII 6216).

[123] The best interests of the Children are at the heart of this matter and of the efforts of this Court.

[124] The outcome of the criminal trial is unknown and this, no doubt, creates a level of uncertainty for the Children should Ms. F be incarcerated as a result of the criminal trial.

[125] Nonetheless, it could be months before a decision is rendered in the criminal trial and time is of the essence in child protection matters. The CFSA and common sense require that we proceed as quickly as possible in CFSA matters, in the best interests of the child or children involved, as a few months in the life of a child may be significant. Justice L’Heureux-Dubé puts it best in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, at p. 206:

I share Macdonald's J.'s concerns with regard to the importance of reaching a speedy resolution of matters affecting children. The Act requires it and common sense dictates it. A few months in the life of a child, as compared to that of adults, may acquire great significance. Years go by crystallizing situations that become irreversible.

[126] While I recognize the uncertainty associated with the ongoing criminal trial and the risk of possible harm to the Children should Ms. F be incarcerated, this level of uncertainty and possible risk are not exceptional and extraordinary circumstances.

[127] It happens that CFSA matters are tried before related criminal charges and this creates unavoidable uncertainties. We nonetheless need to proceed as there could be significant delays resulting from a stay pending disposition of the criminal charges and these delays could also prejudice the Children. A trial decision might not be rendered before the end of this year. In addition, the trial decision may be appealed and what would happen to a stay in the event of an appeal of the criminal decision? Moreover, imagine the prejudice to the Children should a stay be ordered and should following an appeal Ms. F not be incarcerated?

[128] Consequently, the Society’s request for a stay is dismissed.

[129] Finally, it would be in the best interests of the Children to make an order for a parenting capacity assessment of Ms. F and of the Children, under s. 54 of the CFSA, with the Family Court Clinic of The Royal Ottawa Hospital. This assessment shall be conducted within the first five months of the supervision order and shall identify any parenting concern and the steps going forward. Ms. F and the Society shall attempt to agree on the assessor to conduct this assessment at the Family Court Clinic within the next 45 days failing which they shall immediately provide to me the names and qualifications of the suggested candidates for my decision. The person performing the assessment shall forward a copy of his or her report to the parents and to the Court within 45 days of completing the assessment. This assessment should allow, going forward, an effective plan to quickly identify required adjustments and long term goals.

Justice Pierre E. Roger

Released: 2017/07/14

CITATION: CAS v. R. & F., 2017 ONSC 3886

COURT FILE NO.: FC-15-472

DATE: 2017/07/14

ONTARIO

ONTARIO

SUPERIOR COURT OF JUSTICE

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 THIS HEARING OR THE CHILD’S PARENT OR FOSTER PARENT OR A MEMBER OF THE CHILD’S FAMILY, PURSUANT TO S. 45(8) OF THE CHILD AND FAMILY SERVICES ACT

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

A. F. (Mother)

C. R. (Father)

Respondents

ENDORSEMENT

Justice Pierre E. Roger.

Released: 2017/07/14