This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster– parent or a member of the child’s family.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both
CITATION: CAS v. M.B. & K.D., 2017 ONSC 6504
COURT FILE NO.: 1783/13
DATE: October 31, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
T. Watts for the Applicant
Applicants
- and -
M.B. and K.D
N. Matthews for M.B. J. Kerr for K.D. K. Junger for JO.D., SK.D., SU.D., K.B. and JA.D.
Respondents
HEARD: June 12, 2017, June 13, 2017, June 14, 2017, June 15, 2017, June 16, 2017, June 19, 2017, June 20, 2017, June 21, 2017, June 26, 2017, June 27, 2017, June 28, 2017, June 30, 2017
The Honourable Mr. Justice R. J. Mazza
Introduction
[1] This is a child protection hearing concerning five children whom were found in need of protection on January 8th, 2016. The proceeding before me is to determine whether the children continue to be in need of protection and the appropriate disposition regarding access.
[2] The five children are currently in care at three separate foster homes and are currently seeing their parents in a supervised setting operated by the Children’s Aid Society.
[3] The Society is seeking an order for Crown wardship of all five children with access. M.B. is in agreement with the order sought by the Society and has signed minutes of settlement which details her own supervised access. However, K.D. is opposed to the terms of M.B.’s access.
[4] K.D. also wishes that the children be returned to his care with very restricted access to M.B. The terms of access were set out in the order proposed by K.D.’s counsel, Mr. Kerr.
[5] Throughout this decision, I have summarized what I consider to be the most salient facts in my review of the exhibits and from my review of both the evidence-in-chief and the cross-examination of various witnesses.
Background
[6] K.D. and M.B. are the parents of all five children. JO.D. was born […], 2002; SK.D. was born […], 2004; SU.D was born […], 2006; K.B. was born […], 2008; JA.D. was born […], 2010.
[7] By way of a brief history, the parties met on or about April or May of 2001, and M.B. became pregnant with her first child, JO.D., in July of 2001. However, she did not advise K.D. until September of that year. Her reluctance was to do with a separation between her and her previous partner which was caused by her last pregnancy. She feared facing the same fate with K.D.
[8] During their relationship, the parties separated and reunited on several occasions throughout the birth of their children. They also moved several times. M.B. also found herself moving in and out of shelters because of the alleged physical abuse from K.D., two of those incidents being verified by convictions of K.D. for assault on two separate occasions.
[9] On August 18th, 2012, the official date of separation, K.D. moved in with his friend, T.A.. The matter then proceeded to Family Court.
[10] As a result of temporary minutes of settlement entered into between the parties, the two youngest children resided with M.B. and the three oldest children resided with K.D. Each party also had access, by arrangement, to the children not residing with them.
[11] On July 24th, 2013, the after-hours worker, Kristen Manninen, received a call from the Hamilton Police Services regarding a conflict between K.D. and M.B. A telephone conversation ensued between Ms. Manninen and K.D. He expressed concerns that one of the children overheard M.B. saying that K.D. was dead. Ms. Manninen spoke to her supervisor, the result of which it was decided that the children were not considered to be at risk of emotional harm, and the child protection investigation was not warranted at that time.
[12] However, on August 7th, 2013, Ms. Manninen sent a letter to M.B. advising of possible child protection concerns and requested M.B. contact the office. After a brief conversation with M.B., who had advised Ms. Manninen that she had been a victim of physical violence at the hands of K.D., the Society decided to open up a file on or about August 12, 2013.
Evidence of Cindy Dowhaniuk
[13] Ms. Dowhaniuk is a child protection worker and was assigned the file on August 19th, 2013. After an initial telephone conversation with K.D., she attended the home on August 20th, 2013. After speaking with K.D. and the children, she testified that she had the following concerns: the children were upset that their parents had separated; there were frequent arguments between the parents; there were denigrating comments about one parent against the other; some physical discipline was used by K.D. in the form of spanking; in another incident, K.D. pulled JA.D.’s ears. Ms. Dowhaniuk also had some concern that the second oldest daughter, SK.D., was placed in a caregiving role.
[14] Ms. Dowhaniuk described K.D. as a very conscientious parent, and in her inspection of Mr. T.A.’s home, she found it to be large enough to accommodate sleeping arrangements for all the children.
[15] On August 27th, 2013, Ms. Dowhaniuk had a conversation with M.B., during which she learned that K.D. placed a dog collar on the child, K.B., for having defecated on the lawn.
[16] M.B. also described K.D. as being violent towards her and the children and agreed to meet with the Violence Against Women counsellor, Nancy Smith, on October 10th, 2013.
[17] During a separate investigation of M.B.’s home, although Ms. Dowhaniuk found it to be sparse with furniture and lacking in quantity of food, contrary to K.D.’s allegations that the child, JA.D., had been covered in bedbugs, she found the home to be otherwise clean and had appropriate sleeping arrangements for the children. There was no evidence of bed bugs.
[18] Until August 25th, 2013, K.D. continued to have open access to the children living with M.B., and M.B. continued to have open access with the children living with K.D. However, on that date, circumstances began to change when M.B. contacted the Society worker advising she had observed extensive bruising around JA.D.’s ear. An investigation then followed with the cooperation of the Child Abuse Branch (CAB) and the Child Advocacy and Assessment Program (CAAP).
[19] During Dr. Peter Sanko’s examination of JA.D., he found not only bruising on his ear, but also marks on his chin, his back and his scalp. Also, based on allegations to him by both K.B. and JA.D. that K.D. had pulled JA.D.’s ears, Dr. Sanko decided not to allow K.B. and JA.D. to return to K.D.’s care.
[20] Until the investigation had been completed, the Society would not permit K.D. to have any unsupervised access with any of the children, and the Society commenced a court application on or about November 1st, 2013. Subsequent to the application having been issued, the Society chose T.A. as K.D.’s supervisor. By the temporary order of Justice Gordon issued on or about November 1st, 2013, the children were placed in M.B.’s care subject to supervision by the Society.
Evidence of Stephanie Sheptenko
[21] Stephanie Sheptenko, an employee of the Society since 2005, has been a family service worker for the last three years.
[22] On November 13th, 2013, Ms. Sheptenko accompanied Ms. Dowhaniuk to K.D.’s home advising that the Society had verified that K.D. had physically harmed JA.D., and the Society was awaiting receipt from a report from CAAP while the investigation by CAB was in the process of being completed. Consequently, K.D.’s access visits continued to be supervised.
[23] On November 15th, 2013, Dr. Baird completed his report, forwarded it to CAAP, and noted that the injuries to JA.D. were “highly suspicious for significant inflicted trauma” and were consistent with JA.D. and K.B.’s explanation for the injuries.
[24] On November 22nd, Ms. Sheptenko interviewed the paternal aunt, K.D., and the paternal grandmother, D.D., and concluded that K.D. had been with the children alone for some period of time, during which the injury could have been inflicted.
[25] On December 5th, 2013, K.D. was charged with assault. As a result of very restrictive bail conditions, he was still unable to see the two youngest children. With respect to the other children’s access, visits were Tuesdays and Thursday at the Society office for 1.5 hours per visit. Ultimately, in July of 2015, K.D. was acquitted of the charge.
[26] Ms. Sheptenko continued her testimony and turned her focus to the current relationship between M.B. and S.A., in which M.B. appeared, again, to be a victim of abuse.
[27] An incident of domestic conflict had ensued after an argument between the parties on November 9th, 2013, at which time, S.A. ended the relationship. M.B. expressed fear that because of the altercation, he would return to trash her home.
[28] Shortly thereafter, the police noticed redness on M.B.’s neck, and S.A. was charged with assault.
[29] As well, Ms. Sheptenko spoke with the children JO.D. and SU.D., both of whom said they did not like S.A. because he kept on yelling at and hitting their mother.
[30] On March 18th and March 21st, 2014, S.A. pled guilty to two assault charges.
[31] On April 14th, 2014, the children were apprehended after M.B. admitted that S.A. had trashed her house since, contrary to his probation order, she allowed him to enter the home, thereby compelling the Society to remove the children from her care because of what the Society considered to be her inability to keep the children from risk of harm.
[32] As a result of a second injury to JA.D.’s ear, M.B. was also charged with failure to protect, supervise and provide care for the children under the CFSA.
[33] On or about January 8th, 2016, an order was made with extensive terms and conditions imposed on both M.B. and K.D., placing the two children, JA.D. and K.B. in the care of Ms. S.W., K.D.’s aunt. The three oldest children remained Crown wards.
[34] In a conversation between Ms. Sheptenko and SK.D., SK.D. spoke of K.D.’s use of violence, citing as an example K.D. throwing a shoe at SK.D., putting a leash around K.B.’s neck, hitting her brother, JO.D., with a belt on the back and hitting SK.D. with a belt on the thigh.
[35] Ms. Sheptenko expressed other concerns such as JO.D. not wanting K.D. to ask him questions about whether M.B. was with S.A., SK.D. wanting K.D. not to be angry at her anymore, to communicate with her more and not ignore her, and not to force her to do any math.
[36] With respect to SU.D., she advised Ms. Sheptenko that she visited K.D. on December 23rd, 2014, and because SU.D. was the only child visiting K.D. on that day, he became upset and cut the visit short, thereby upsetting SU.D.
[37] During cross-examination, Ms. Sheptenko agreed that the Society’s concerns were with respect to domestic violence and physical discipline by K.D. and his harsh use of words resulting in concerns over any emotional impact on the children.
Evidence of Shannon Scuccimarri
[38] Ms. Scuccimarri is a family services worker. She testified about discouraging K.D. to compel the children to write letters with threatening consequences if they did not. She also testified about having a discussion with Dr. Baird who examined JA.D. and concluded both injuries to his ears were suspicious and not accidental. Though S.A. was suspected of inflicting the second injury, he denied this during his interview with Ms. Scuccimarri.
[39] In cross-examination, Ms. Scuccimarri did admit M.B. was placed on the Society’s registry for failure to protect the children. S.A., as well, was also placed on the registry for causing harm to the child, JA.D.
Evidence of Kendall Perro
[40] Although Ms. Perro did not provide an affidavit, she gave viva voce evidence beginning with her knowledge of T.A.. She stated that Mr. T.A. had been appointed a supervisor for K.D.’s visits with three of the children. However, Ms. Perro noted that K.D. had gone unattended and unsupervised to the girls dance classes and JO.D.’s boxing lessons. However, she did not have serious concerns about possible harm to the children because there were a number of adults at each event, thereby minimizing possibilities of K.D. causing any trouble.
[41] Ms. Perro went on to say that she had a discussion with K.D. about alternate housing. K.D. had spoken about a house on Pine Crest and would confirm whether it was available either by July or August of 2015. But, ultimately, he made no further efforts to follow up on the availability of that house.
[42] Ms. Perro also expressed some concern about an indiscreet comment made by K.D. about the possibility of being incarcerated in the presence of the foster mother and the girls who, as a result, were upset.
[43] In cross-examination by Mr. Kerr, he suggested that M.B.’s relationship with S.A. continued to put the children at risk and focused on incidents between M.B. and S.A., the first one occurring when M.B. was confronted by Mr. S.A.’s friends while she was waiting at a bus stop. His friends yelled at her and threatened her, compelling her to run into a store and then into one of the shelters.
[44] Another incident took place in April 2015 when M.B., being at a mall with her sister, was confronted by S.A.. To remove herself from an uncomfortable situation, she fictionalized a doctor’s appointment. S.A., not accepting the explanation, accompanied M.B. to the doctor’s office. When they entered the office, M.B. advised the employee to contact the police, and S.A. was arrested on that day.
[45] The third incident took place on Main Street during which S.A. confronted M.B., physically grabbed her, pulled her hair and threw her to the sidewalk.
[46] Moreover, in answering a suggestion by Mr. Kerr that K.B.’s attendance at various shelters was for the sole purpose of getting better residences, thereby benefiting from these attendances, Ms. Perro disagreed that M.B. benefitted from attending the shelters. As well, she was always concerned about the safety for M.B., but had no reason to disbelieve M.B.’s accounting of the events between herself and S.A. being incidents of abuse, and stating that there was no benefit to domestic violence.
[47] To Ms. Matthews, Ms. Perro did agree that K.D. was sometimes inappropriate in his conversations with the children. She also agreed that in her conversation with M.B., M.B. admitted to her that the violence between herself and K.D. was more pronounced than the violence between herself and S.A..
[48] In answering a question by Ms. Junger with respect to M.B.’s behaviour around the children, Ms. Perro agreed that M.B. was very loving, appropriate and nurturing.
Evidence of Fiona Koopal
[49] Ms. Koopal is a child protection worker and was assigned the file on or about August 15th, 2017. Most of her testimony related to the relationship between M.B. and S.A. and how M.B. tried to avoid contact with him. M.B. advised Ms. Koopal that S.A. appeared to be stalking her on Facebook and that he had attended a meeting uninvited at the Society offices, compelling M.B. to cancel the meeting.
[50] In a conversation with S.A.’s probation officer, Ms. Colter advised Ms. Koopal that the relationship between M.B. and S.A. was chaotic, citing as an example M.B.’s decision on several occasions to grant and then revoke her consent to have contact with S.A..
[51] In her conversation with M.B., M.B. appeared to minimize Mr. S.A.’s involvement by first blaming S.A. for assaulting JA.D. and then retracting her statement, stating that JA.D. could have been possibly injured by a swing at the park. This suggestion by M.B. was contradicted by the CAAP assessment which indicated that the child had been injured by an adult.
[52] As of January 2016, M.B advised Ms. Koopal that she was not in a relationship with S.A., primarily because her children always felt unsafe in his presence.
[53] On November 14th and November 16th, 2016, respectively, the parties signed a Statement of Agreed Facts which covered the period of time between January 8th, 2016, the day the protection order was made, to August 20th, 2016. The Statement of Agreed Facts included a summary of the salient facts and have been reproduced in part as follows:
The Mother
The mother’s involvement with Services
a. From January 28, 2016 to April 7, 2016 the children JO.D., SK.D. and SU.D. participated in the LEAF (Learning Effective Anti-Violence in Families) program with the mother. The mother and the children then expressed an interest in completing the program again. JO.D. and SK.D. have since completed the program (which is 10 weeks in duration) with their mother again. SK.D. was unable to attend the second time because of her involvement in extra curricular activities.
b. As of September 29, 2016, the children K.B. and JA.D. started the LEAF program with the mother. It is scheduled to conclude on November 24, 2016.
c. Since January, 2016, the mother has been connected with a housing support worker, legal advocate and counsellor through Good Shepherd Services.
d. The mother is currently connected with a psychologist, Dr. McNail, and is taking mediation to address issues with depression and anxiety.
The mother’s relationship with S.A., Housing and Access
e. On January 6, 2016, the mother advised Society Worker Fiona Koopal (“Ms. Koopal”) that she was no longer in a relationship with S.A. (“S.A.”).
f. On January 6, 2016, the mother advised Ms. Koopal she did not believe that S.A. had assaulted JA.D. in April, 2014.
g. On March 14, 2016, the mother secured her own residence, a one bedroom apartment. Prior to this she had been residing at Womankind since December 2015.
h. On March 22, 2016, a police officer attended the mother’s new residence to assess it for safety. After this, the Society approved unsupervised Saturday visits for the children K.B. and JA.D. at the mother’s home.
i. On March 22, 2016, the mother invited S.A. to her home.
j. On March 24, 2016, the mother advised Krystina Beriault at Good Shepherd Services that S.A. was harassing her.
k. The mother’s unsupervised access was suspended after the Society learned that S.A. had been to her home.
l. On April 23, 2016, the mother’s aunt J.V. began to supervise the mother’s bi-weekly Saturday access visits at her home.
m. On June 29, 2016, Ms. J.V. advised Mr. Jose that she was no longer willing to supervise the mother’s access in the home, as she was concerned that the mother was having contact with S.A.. As an alternative supervisor could not be agreed upon, the mother’s unsupervised bi weekly Saturday visits with K.B. and JA.D. were subsequently cancelled.
n. On April 15, 2016, the mother advised Society Worker Gikson Jose that she had a no contact order against S.A..
o. The mother currently attends access at the Society’s Access Centre with all of the children once per week. Her attendance is consistent.
p. In October, 2016, the mother moved into a new one bedroom apartment.
The Father
Involvement with Services
q. On April 12, 2016, the father completed the Caring Dad’s program. The report indicates that the father would likely benefit from further child centered parenting.
r. At the end of February, 2016, the father completed a further 10 hours of counselling with Paul Ricketts.
s. On May 3, 2016, Paul Ricketts provided a report regarding the 20 counselling sessions he completed with the father. The reports notes that the father had benefited from counselling but that further counselling was required. The father has not completed any further counselling.
Housing and Access
t. At the beginning of January 2016, the father’s access with all of the children was in his home, once per week for two hours on Mondays, supervised by his friend and roommate T.A. (“Mr. T.A.”). Parent Support Worker Megan Scott (“Ms. Scott”) attended for a portion of the visits. Mr. T.A. also supervised a visit every other Saturday.
u. On March 1, 2016, the father refused to allow Society workers Ms. Koopal and Mr. Gikson Jose (“Mr. Jose”) to see the entirety of the home, stating that they did not need to see the bedrooms when the children were not sleeping there. When advised that the workers would need to see the bedrooms before there could be overnight access with JO.D., the father said that he did not want overnight access with only one child and would wait until he could have overnight access with all of the children.
v. On March 1, 2016, Ms. Koopal advised the father that once he applied for subsidized housing, the Society would send a letter of recommendation.
w. In March, 2016, both the children SK.D. and K.B. disclosed that the father had hit K.B. on the head during an access visit.
x. In April, 2016, the father cancelled 3 Monday visits in a row, indicating he was working, and on April 22, 2016, he requested a change in visit days. The Monday visits were placed on hold.
y. On May 11, 2016, the father advised Mr. Jose that he had not yet submitted his housing application but planned to do so the next week.
z. As of May 14, 2016, the father began having overnight access with the child, JO.D. once per week.
aa. On June 29, 2016, the father advised that he no longer wanted Ms. Scott to attend at his home. He said that he would prefer to attend visits at the Agency.
bb. Attempts were made to make arrangements to move the father’s weekday access visits to the home of the paternal grandmother, but the paternal grandmother advised that her home was too small to allow for Ms. Scott’s attendance.
cc. On August 6, 2016, the father took all of the children to Wild Water Works, even though his friend, T.A., who was supposed to be supervising the visit, was not available to go.
dd. Following this incident, the Society withdrew its approval for Mr. T.A. to supervise the father’s Saturday visits.
ee. As of August 20, 2016, the father’s Saturday visits have been supervised by the paternal grandmother D.D. at her home.
ff. On August 30, 2016, the father began attending access visits on Tuesdays at the Agency, with Ms. Scott supervising.
gg. On September 20, 2016, the father advised Mr. Jose that he had not yet submitted his housing application.
hh. As of October 11, 2016, Ms. Scott’s services were discontinued and the father’s Tuesday visits subsequently moved to the paternal grandmother’s home as of October 25, 2016, to be supervised by her.
ii. On October 13, 2016, the father showed Mr. Jose his original housing application. He said he would make copies and then submit it. He advised that he would provide Mr. Jose with a copy the following week.
jj. Currently, the father has visits on Tuesdays and every other Saturday, supervised by the paternal grandmother in her home.
Alternative Kin Options
kk. On May 29, 2016, the paternal grandmother advised Mr. Gikson that she did not want to proceed with a kinship assessment until she knew the outcome of the court proceedings.
ll. On August 3, 2016, the Society advised, through counsel, that the maternal aunt and uncle, J.V. and R.S., had not responded to a letter from the kinship worker, and their kinship file was going to be closed. The Society asked that the parents present any other kinship options immediately.
mm. As of November 4, 2016, neither parent has presented any alternative kinship options, nor have any other family members contacted the Society to advise they wish to present a plan for the children.
Court Proceedings and the Updated Parenting Capacity Assessment
nn. On July 6, 2016, a Status Review Application was commenced. On consent, it was ordered that the parents participate in an updated Parenting Capacity Assessment, to be conducted by Dr. Harris. A Trial Management Conference was scheduled for November 14, 2016, at which time counsel were to present a joint Trial Scheduling Endorsement Form. The above noted Existing Order of January 8, 2016 was continued. The matter was added to the March 20, 2017 trial sittings for a 15 day plus trial. The parents were given until August 12, 2016 to file their Answers.
oo. At the end of May, 2016, S.W. (“Ms. S.W.”) advised that she could no longer care for the children K.B. and JA.D. She was willing to maintain them in her care until the end of the summer.
pp. On August 19, 2016, a Temporary Order was granted that the children K.B. and JA.D. would remain in the care of Ms. S.W. until August 29, 2016, at which time they would be placed in the care of the Society, with access at the discretion of the Society.
qq. On August 23, 2016, Jade Allen from the London Family Court Clinic advised via correspondence that the updated Parenting Capacity Assessment would likely commence at the end of October/early November and be completed by January 2017.
rr. On August 29, 2016, the children K.B. and JA.D. were placed in care. They continue to have access with Ms. S.W. approximately once per month.
[54] In addition to the Statement of Agreed Facts, Ms. Koopal set out, in her affidavit, the Society’s concerns regarding K.D.’s behaviour. Ms. Koopal found K.D. to be harsh, intimidating and sarcastic with the children during access visits and noted that he had not made any progress in addressing those concerning aspects of his behaviour.
[55] Ms. Koopal referred to an incident in which K.D. took the children to a restaurant for breakfast. The children appeared to be well behaved and excited when told of the outing. While in the restaurant, K.D. encouraged the children to “eat lots” but, ultimately, pressured them to consume food beyond their capacity. And for example, when JO.D. was unable to finish his meal, K.D. called him “a little bitch”.
[56] She described further inappropriate behaviour by K.D. in the presence of the children when he threatened to move to the Yukon if the children were not returned to his care.
[57] Ms. Koopal also made reference to the Parenting Capacity Assessment which “highlighted the Society’s concerns”, including Dr. Harris’ opinion that K.D. was “emotionally abusive to his three older children”. She made reference to what she considered to be K.D.’s “extreme negative view of M.B. and her parenting” along with the accompanied concern of how that view would impact on the children’s perspective of M.B. As well, she indicated K.D.’s unwillingness to cooperate with Society workers.
Evidence of Gikson Jose
[58] Mr. Jose is a child protection worker who assumed the file on or about March 9th, 2016.
[59] He described the relationship between himself and K.D. as being friendly at times and at other times being unfriendly.
[60] Mr. Jose reminded the court of the incident in which K.D. took the children to Wild Waterworks without his supervisor, T.A., who, nevertheless, on one further occasion was allowed to supervise K.D. when he took his son, JO.D., to Muskoka.
[61] Mr. Jose also expressed concern, not only over K.D. taking the children to Wild Waterworks unsupervised, but also over his decision to make them walk a distance of six kilometers to their home, which Mr. Jose found to be unreasonable given that the children would have been tired after being at Wild Waterworks all day.
[62] Mr. Jose made a general observation about finding K.D. to be intimidating and controlling in front of the children.
[63] Mr. Jose also spoke of an incident where K.D. hit K.B. for taking too long to paint her nails, an observation which was confirmed by the child, SU.D.
[64] In turning his attention to M.B., he testified that he learned that she had attempted suicide when she applied for ODSP. He also later learned that M.B. was eventually diagnosed with borderline personality disorder and had a compulsive nature to return to men who had abused her.
[65] Mr. Jose also testified that although M.B. was moved to a secure location, she, nevertheless, provided S.A. with that address, giving no plausible reason for doing so. Consequently, the Society was required to move her to another secure residence on May 11th, 2016.
[66] Regarding the children in the care of S.W., he was advised by Ms. S.W. that she would not be able to take care of the children beyond August 16th, 2016.
Evidence of C.V.
[67] C.V. is K.B.’s foster parent. She testified that when K.B. first arrived at her home, she initially demonstrated some sexualized behaviour, but over the two to three months following, that behaviour had significantly diminished. The same could be said for her social and academic status, which also appeared to improve from a grade 1 level to the lower end of grade 2. However, academically, she should have been at a grade 3 level.
[68] However, her academic performance improved once the school placed her in an individual education program, also known as an ‘IEP’ which, in fact, appeared to empower her and improve her academic performance along with her social interaction, giving her confidence to make friends.
[69] K.B. talked very little about her access visits with her parents. She told her foster mother that she became stressed if she forgot to call her father upon her return from each visit with him. Moreover, K.D. expected C.V. to assume responsibility of reminding K.B. to call her father.
[70] K.B. was reluctant to attend the three day a week visits with her Aunt S.W. because she was concerned about not participating in outings with the foster family.
[71] When asked by her foster mother if given a choice of the parent with whom she wished to live, she selected her mother as her first choice and her foster parents as her second choice. Living with her father was not an option.
[72] Ms. V also indicated she was prepared to provide K.B. with a long-term placement, including facilitating visits with her siblings.
Evidence of S.G.
[73] S.G. and her husband are the foster parents of SK.D., SU.D. and JA.D., whom she described as having some difficulty at the beginning acclimatizing to their home. As well, because they had been apprehended, they appeared to be somewhat sad for a period of time.
[74] In describing the three children individually, she described SK.D. as being very active, athletic and a good student.
[75] She found SU.D. to be very social, enjoying spending time with her friends.
[76] JA.D. was rambunctious, verbal, and was very bossy at the beginning. However, his personality had toned down but he was behind academically. She was of the opinion that he may have a learning disability so she has sent him for an assessment.
[77] Generally speaking, but for the odd upsetting incident, such as K.D. threatening to cut off SU.D.’s red hair because she was not taking care of it, and insulting SK.D.’s body because of the change in her body shape, humiliating her, the children appeared to be happy attending visits with K.D.
[78] As to where the children wished to reside, SK.D. indicated that she wants to stay at the foster home at least until she finishes grade 8 and becomes eligible for an athletic scholarship. JA.D.’s and SU.D.’s wishes were uncertain.
Evidence of Annette Santos
[79] Ms. Santos, the children’s services worker, assumed the file on June 17th, 2014 with respect to SU.D. and SK.D., and on August 29th, 2016 with respect to JA.D. and K.B.
[80] Having visited their foster home, she found all children to be comfortable, well looked after, sleeping well, eating well, and easily interacting with other members of the family.
[81] K.B. appeared to like her new school and her teacher, and had made friends at school.
[82] The foster parents appeared to be helping K.B. academically. Although for a period of time K.B. appeared to be disengaged, anti-social, and demonstrated some sexualized behaviour, she appeared to have made an extreme change for the positive, suddenly adjusting well to the foster home. With her negative behaviour significantly reduced, she became more engaged with others, more social and more talkative, and her manners had significantly improved.
[83] As to how the children related to K.D., Ms. Santos’ overall impression was that they appeared to act in accordance with how they thought K.D. expected them to act. This seemed to be their way of avoiding any further physical discipline from him.
[84] SU.D. appeared saddened by K.D.’s comments that he would leave if the children were not returned to his care.
[85] Ms. Santos expressed concerns over a discovery on M.B.’s profile on Facebook, describing herself as A.A. and being married to S.A..
[86] The children expressed concerns to her about S.A. being at unsupervised visits. M.B. ensured them he was incarcerated.
[87] Having confronted M.B. about information on Facebook, M.B. advised that S.A. was not living with her but, in fact, was visiting her.
Evidence of Megan Scott
[88] Megan Scott, who is a family services worker, had visits with M.B. and K.D. and the children between March and May of 2014 and January and October of 2016.
[89] On or about August 22nd, 2016, after a case conference with the workers, she suggested K.D. allow the children to determine how they wished to spend their time with him rather than making their visits so regimented.
[90] She described the children as being incredibly well behaved for the most part. K.D. appeared interested in what was going on in their daily lives.
[91] In describing the behaviour of the children, Ms. Scott gave an example that they would help each other set the table for dinner.
[92] She was of the impression that K.D. exaggerated the seriousness of SK.D. losing her bracelet in the foster home. When SK.D. tried to explain to K.D. how she lost the bracelet, he put his hand up and told her that was enough, giving the impression he did not want to listen to her explanation.
Evidence of Paul Ricketts
[93] Mr. Ricketts shared his discussions with K.D., expressing concerns over K.D. continually using physical violence against the children.
[94] He stated that he also discussed K.D.’s drug addiction to Percocet initiated by M.B.’s motor vehicle accident.
[95] They also discussed the incident of K.D. pulling JA.D.’s ear and placing the dog leash around K.B.’s neck.
[96] K.D. spoke of being physically abused by his father, expressing that he was not intending to raise the children in the same way.
[97] Mr. Ricketts also noticed K.D.’s negative comments about M.B., describing her as a good mother to the children, but only to the age of 18 months, after which she was unable to make any connection with them. K.D. also stated to Mr. Ricketts that there was “a special place in hell for people like her”.
[98] K.D. also admitted to being verbally abusive to M.B., calling her a “bitch” and a “cunt”, and also had been physically abusive, having described an incident wherein he grabbed her by her hands, pushed her against a wall, and threw her on a couch. However, he tried to mitigate and justify his actions by saying that she had punched him first in the face, which compelled him to retaliate.
[99] In turning to the issue of power and control, K.D. identified with power and control over M.B.’s money and also of taking advantage of his significantly larger size, and candidly admitting responsibility for some of the physical violence.
[100] In discussing the incident about the Halloween figurine, Mr. Ricketts expressed concerns because of the history of violence in the household.
[101] During a visit with K.D. and the children on January 21st, 2016, Mr. Ricketts described the children as being well behaved and being fed a healthy dinner.
[102] He also noted K.D. to be complacent with the children, describing the children as “happy and relaxed” and noting that they would hug each other and say “I love you”.
[103] However, also on the same visit, Mr. Ricketts observed K.D. to be more dictatorial and authoritative, which was contrary to K.D.’s professed intention not to enact behaviour similar to his own father.
[104] Mr. Ricketts emphasized K.D.’s need to be able to satisfy the children’s instrumental needs. However, Mr. Ricketts was not completely satisfied with K.D.’s support group, being of the opinion that K.D.’s mother and some other family members were not sufficient enough to help him “as a single father with five children”.
[105] Although he did not testify to this, he did indicate in his report that it was “important for K.D.’s older children to first be returned to his care before the younger children followed suit. This would allow K.D. to acclimate to parenting the oldest children before he had to meet the needs of the youngest children.
[106] In the conclusion of his report, Mr. Ricketts delineated several criteria which, in his opinion, K.D. would be required to meet before the children could be returned to his full-time care:
K.D. would be required to provide for the children’s housing, food, clothing and other needs;
K.D. would have to secure work or find a source of income that does not involve working nights; otherwise, it would interfere with his obligation to care for his children;
K.D. would have to manage his frustration with service providers that are assisting him and his children, as well as manage his frustration with his children;
K.D. would be required to recruit a “support system” which would assume the responsibility of helping him care for his children;
K.D. would have to demonstrate that he could attend any necessary meetings, as well as demonstrate his ability to make sure the children would also be in attending their scheduled meetings and events;
Lastly, K.D. would have to demonstrate that he would be able to discipline the children in an appropriate manner.
[107] Mr. Ricketts did indicate that although 20 sessions had been spent with K.D., he recommended a further 10. However, K.D. refused to attend any further sessions.
Cross-Examination of Mr. Ricketts
[108] Mr. Ricketts admitted that K.D. had “unilaterally terminated the therapeutic relationship” despite Mr. Ricketts having believed a positive therapeutic bond had been created.
[109] In explaining to Mr. Kerr the circumstances leading up to the termination of his relationship with K.D., Mr. Ricketts stated that K.D. appeared to be frustrated with the process, the reason for his decision to end the sessions.
[110] Mr. Ricketts testified the sessions that he did spend with K.D. between November 2015 and February 2016 lasted for one to two hours and consisted of face-to-face discussions. Although there was 20 hours of therapy in total, the fact that there were 10 hours and 10 hours did not suggest that there was any gap between those 10 hour sessions.
[111] Mr. Ricketts admitted that during his visit with the family at T.A.’s place on or about January 21st, 2016, he noted affection between K.D. and his children and that he kissed them as they arrived, and in that hour and a half in which Mr. Ricketts remained at the home, he agreed that there was positive interaction between K.D. and his children.
[112] He was not surprised to hear that, generally, the children were usually well behaved, polite and well mannered.
[113] In turning to his letter of May 3rd, 2016, Mr. Ricketts agreed that he outlined many positive qualities of K.D. and then, subsequently, made a list of what he considered to be K.D.’s “parenting weaknesses”.
[114] In answer to Mr. Kerr’s suggestion that Mr. Ricketts was expressing a distinct possibility of returning the children to K.D.’s care, Mr. Ricketts responded, “These are issues which will need to be addressed prior to that contemplation”, i.e. K.D. being required to meet the six criteria which Mr. Ricketts set out in his report.
[115] During cross-examination by Ms. Matthews, in comparing Mr. Ricketts’ understanding of K.D.’s wiggling of JA.D.’s ears as a means of disciplining him on occasion and K.D. lifting JA.D. by the ear, Mr. Ricketts expressed concern if the latter incident were true. As a matter of fact, he stated it would have impacted on his assessment and his recommendations. In his words, “That may have changed things”.
[116] Mr. Ricketts also admitted that regarding the domestic violence incident between K.D. and M.B., where he pushed her on the couch, he was not made aware of the fact that K.D. held a knife to M.B.’s throat, nor was he aware of the fact that K.D. had been convicted of any of these offences.
[117] Mr. Ricketts also admitted that he was not aware of the incident with the cat leash around K.B.’s neck, which neither K.D. nor Mr. Ricketts discussed, nor did K.D. discuss with Mr. Ricketts the other physical forms of discipline that he had used on the children.
[118] He agreed with Ms. Matthews’ suggestion that K.D. appeared to speak negatively of women in his life, citing as two examples M.B. and Aunt S.W..
[119] Mr. Ricketts also agreed that K.D. did not have any issues with respect to substance abuse, but that the focus of the therapy was to help K.D. manage his emotions and his frustrations.
[120] Mr. Ricketts, having learned that K.D. was also a victim of abuse at the hands of his own mother and father, admitted that he was not surprised that K.D. would apply a similar treatment toward his children.
Evidence of Jordan Hopkins
[121] Jordan Hopkins, a former society employee, had been employed as a family visit worker to supervise and observe visits, a position which he held for three to four years.
[122] Mr. Hopkins supervised 23 visits between K.D. and the children at the Access Centre between February 18th, 2014, and May 20th, 2015. He described the surroundings of the visits as a group setting, which meant each family had their own area, each area being divided into pods where the children would visit the parents.
[123] He stated each visit lasted approximately 1.5 to 2 hours. He had observed that the children appeared to be always happy to see their father, describing the visits as appropriate, at which K.D. always brought nutritional meals.
[124] In his opinion, the visits were safe, positive and appropriate. K.D. engaged with the children and there were never any arguments amongst the children. Sometimes visits had an educational component.
[125] He found no need for K.D. to discipline the children, did not see him as being harsh or mean, and always found the children to be well behaved and well mannered.
[126] As well, the children appeared not to be afraid of K.D., and he described them as being typically intimidated as most children are with their parents.
[127] In comparing the children’s visits with K.D. to their visits with their mother, he found M.B. to have difficulty managing the children, whom he described as sometimes rambunctious in her presence.
Evidence of Dr. Kimberly Harris
[128] Dr. Harris was declared an expert in clinical psychology, child development, domestic violence and interpretation. Dr. Harris administered the psychometric testing and prepared and completed the Parenting Capacity Assessment as well as two supplementary reports.
[129] Dr. Harris conducted personal interviews of M.B. and K.D. and observed the interaction between them and the children.
[130] Beginning with her interview of M.B., she described M.B.’s history of being in and out of foster care until the age of 14 and of never having the benefit of the love and warmth of her own family.
[131] M.B. went on to describe her abusive relationship with K.D. recalling that she required his permission to go to work and of having to provide him with one half of her pay cheque.
[132] She spoke of being assaulted by K.D. on two occasions. Eventually she developed a feeling of paranoia and of being stalked, firstly by K.D. and his family, and secondly by S.A..
[133] M.B. also spoke of her willingness to accommodate the needs of others rather than fulfill her own needs. In Dr. Harris’ opinion, this type of behaviour would eventually lead to an unstable sense of self and, ultimately, an erosion of her self-worth.
[134] Dr. Harris, having satisfied herself that M.B. was a victim of an abusive relationship, explained that such a relationship has been marked by certain characteristics.
[135] To begin with, there was the issue of safety, whereby the victim felt safer to stay in the relationship rather than put her life at risk at the hands of the abuser upon leaving. The victim also developed a financial dependency, hoping the abuser would take care of her instrumental needs.
[136] Lastly, although the victim psychologically realized she should not return to that abusive relationship, for some unexplainable reason, she, nevertheless, returned.
[137] In her consideration of M.B.’s parenting abilities, Dr. Harris opined that despite M.B.’s sincere attempts to take care of her children’s instrumental needs, realistically, M.B. was only able to nurture her children. In Dr. Harris’ opinion, any effort by M.B. to meet her children’s instrumental needs was insurmountable.
[138] In turning to K.D., she briefly discussed his history, particularly his relationship with his father which K.D. described as difficult. In a report, K.D. described how his father fed into his fear of the dark by not turning the lights on in his bedroom and how his father had assaulted him by kicking him in the face, throwing him on the ground and telling him not to be afraid of the dark.
[139] Although K.D. never witnessed domestic violence between his parents, he did remember an occasion when his mother struck his father. He also described his father as drinking excessively, and remembering him returning home drunk on several occasions.
[140] K.D. described his relationship with his mother as being very positive during his childhood, being filled with her love and emotional nourishment. But for a rare occasion in which his mother either hit him with a fly swatter or struck him in the face, the main form of discipline meted out by his mother was depriving him of privileges and grounding him. To this day, his relationship with his mother continues to be positive.
[141] In turning to his relationship with M.B., he described it as “tumultuous, including incidents of abuse, of police involvement, and of many separations”. He talked about being afraid of M.B. and, at times, having to restrain her from striking him.
[142] Dr. Harris also performed psychological testing on both M.B. and K.D. and reviewed all collateral information made available to her, including police reports and police occurrence reports. She then conducted interviews with the children.
[143] In her interview with SK.D., SK.D. told Dr. Harris that she had three wishes: the first was for K.D. to be nicer and not to be so harsh with discipline, especially with his words; the second was for M.B. not to date S.A. because he hurt JA.D.; the third was for an improved attitude from K.D. SK.D. also reported that she loved her foster home but still wanted to spend a little more time with M.B., and, ultimately, to live with M.B.
[144] In describing K.D. and M.B.’s different parenting styles, SK.D. stated that her dad used physical discipline, citing such examples as K.D. slapping JO.D. on the head and slapping SK.D. on the back, butt, and arm. Such physical discipline, however, was not acceptable to M.B.
[145] Regarding collateral information related to K.B., Dr. Harris noted that M.B. found K.B.’s social, emotional and behavioural functions to be within normal range. However, K.D., having not seen K.B. since the alleged assault, was unable to provide any opinion on his daughter.
[146] As a source of information, S.W. expressed concern about K.B.’s “lies” and “outbursts”. Nevertheless, she described her as “a happy child who is normally obedient”.
[147] K.B.’s teacher described her as infrequently lying but “always excited to learn, and has a good, positive attitude”.
[148] With respect to JA.D., M.B. found JA.D. to be “a very loving and happy boy”. K.D. was, again, unable to provide any opinion as he had not seen JA.D. since the assault.
[149] S.W. found JA.D. to be a very happy and cooperative child, but JA.D.’s teacher found him to often lack the ability to concentrate, to not be able to sit still, “to be sometimes reckless”, at other times to “ignore instructions” and to repeatedly be spoken to before he responds. However, she also found JA.D. to be “happy and energetic”.
[150] Dr. Harris also included in her second report Dr. Baird’s description of JA.D.’s injuries wherein Dr. Baird concluded that “the extensive bruising of JA.D.’s ear and to the scalp and skin behind the ears is highly suspicious for an inflicted injury”. “The bruising would require a high energy forceful impact or a forceful crushing mechanism”.
[151] Dr. Harris then turned to her observations of the interaction between the children and their mother, and then with their father, respectively. Dr. Harris came to certain conclusions about the direct impacts on the children from their different parenting styles.
[152] She described K.D. as one who shares “many characteristics of men who perpetrate woman abuse (including the need for control, a sense of entitlement, possessiveness, and difficulty with emotional regulation). Consequently, these characteristics have a direct impact on his parenting of the children”.
[153] “K.D. intends to be authoritative and controlling in his parenting. He expects absolute obedience from the children and acknowledged that they would never say no to him. The children are afraid to challenge him or to freely speak their minds for fear of reprisal”.
[154] She further described him as being possessive of the children and personalizing their behaviour, believing that misbehaviour (even minor things such as putting their feet on a coffee table) reflects directly on him as a parent. In her opinion, this can “transcend into physically abusive behaviour (e.g., putting a dog collar on K.B.; using the belt) and emotionally abusive behaviour (e.g., instilling guilt in the children; three days’ silent treatment; belittling). K.D. is still in the stage of minimizing abuse and rationalizing it as in the best interest of the children, using the children’s excellent behaviour and good adjustment as evidence of his excellent parenting skills”.
[155] In describing whether or not they would effectively apply their parenting skills, Dr. Harris opined as follows in her report:
“Although both parents have cognitive abilities that suggest they should be able to understand the Society’s concerns, solve day-to-day problems as they arise, and benefit from programming to address their issues, there are a numbers of factors that could, nonetheless, affect their problem solving skills. Certainly in the case of M.B., fear, stress, stability and poverty can highjack a person’s cognitive resources robbing them of the energy, attention and problem solving ability needed for effective parenting or for exercising good judgment.”
[156] In the case of K.D., Dr. Harris surmised that what may serve to cloud his judgment was his low benchmark for what was harsh and emotionally abusive parenting behaviour as demonstrated by his father. So, therefore, in comparison, he would perceive his own parenting decisions and actions as strict, but certainly not abusive.
[157] She further described M.B. as being unable to have control over the children. In her words, “She could not keep them contained even for a 90-minute access visit, requiring intervention from Society workers. She expressed frustration at times, and at other times seemed to withdraw emotionally from the visits”. From Dr. Harris’ perspective, it seems inconceivable that M.B. would be able to care for the two youngest children on her own as a single parent.
[158] Dr. Harris drew several conclusions in her first assessment:
a. She was not recommending a return of the children to either parent at that time;
b. Neither plan of care presented by the parents was feasible. In the case of M.B., the primary concern was of safety imposed by S.A.;
c. M.B. has only demonstrated a very short period of stability. As a matter of fact, M.B. acknowledged that she lacked confidence and authority in parenting her children and SK.D. had become a caregiver to her.
[159] K.D. continued to minimize and rationalize his harsh parenting and did not have good insight into how his parenting is emotionally abusive to the children. She found that he did not have “a good understanding of abusive dynamics in his relationship with M.B., and lacked awareness of how his statements and actions toward M.B. served to undermine her parenting and character in the eyes of the children, particularly JO.D.”.
[160] As well, in her following reports, Dr. Harris made the following observations with respect to K.D. Overall, it was her opinion that:
“K.D. had made very little progress in addressing the concerns raised in the previous two PCA reports. He continues to deny historical abusive behaviour except for one incident involving K.B. (where he put the dog collar around her neck which is in the third report). He continues to speak very negatively about M.B. and places all blame for the children’s apprehension and the current circumstances on her. He continues to show disregard for the authority of the Society with his refusal to meet with workers and to not maintain parameters around access, which the courts have ordered be at the discretion of the Society”.
[161] K.D. also did not seem to understand the impact of his behaviour on the children or demonstrate a willingness to make changes based on the children’s stated wishes, citing as an example his insistence that the children phone him every night. The children were concerned about facing consequences on the next visit where he would scold them for not calling him despite that a phone call was not always possible due to their busy schedule of activities.
[162] Further in her report, she referred to K.D.’s lack of progress at the Caring Dads program, describing him as not aware of child-centered fathering, not being aware of abusive, neglectful parenting behaviour, not understanding discipline or refusing to accept responsibility for use of unhealthy parenting, and eliminating barriers to better relationships. She indicated that K.D. continued to speak negatively about M.B., other family members, of Society members; all of this was apparent at the Caring Dads program, which eventually was discontinued because K.D. did not demonstrate any significant progress.
[163] She described M.B.’s progress as improving but fragile, needing to work on her “mental health stability, community involvement and developing her support network”.
[164] In the third report, she did not recommend any further services. In her opinion, K.D. had exhausted all resources to make a change in a timely enough fashion to meet the needs of the children. Apparently though, in her opinion, K.D. would benefit from ongoing therapeutic treatment from someone like Mr. Ricketts. It would then be more for his own personal growth rather than meeting the needs of the children.
[165] She concluded that access should be specific in a court order whereby the children would benefit from access with their mother and father on a more equal timesharing arrangement. Any change in access should be left at the discretion of the Society in consultation with the children.
[166] During cross-examination, Dr. Harris, being asked by Mr. Kerr whether she assessed the truth of M.B.’s statements with respect to the assaults, stated it was not unusual for a woman who had been abused to blame herself, but it is very uncommon for women to lie about women abuse. So, based on statistics, Dr. Harris stated she had no reason to doubt M.B.’s credibility.
[167] Regarding M.B.’s decision not to disclose her suicide attempt to the society, Dr. Harris stated that although she was not forthright sometimes, she was forthright at other times. She focused on the fact that M.B. was making efforts to address her mental health by making use of services of organizations such as the Good Shepherd.
[168] Regarding her borderline personality disorder, she admitted it was a serious diagnosis. She also admitted that although M.B. was ultimately assessed with borderline personality, the assessment had not taken place by the time the first assessment had been completed. In any event, personality disorders cannot be diagnosed through psychological tests.
[169] In comparing the tests given to K.D. and tests given to M.B., Dr. Harris agreed that K.D. demonstrated strength to empower the children to problem solve. In fact, her comment with respect to the second test was that “according to this measure at this time, K.D.’s response did not reflect an increase to physically abuse the children”.
[170] When comparing K.D.’s test results to the results of M.B.’s tests, she concluded that M.B.’s tests were, in fact, invalid because she “faked a good response”.
[171] In her assessment of K.D.’s test, she stated that K.D. answered his questions in a consistent kind of way, concluding that he answered the tests accurately.
[172] However, although she admitted that K.D. did answer the test accurately, she emphasized that it was only a test, which is why her report was 70 pages long and consisted of interviews, multiple tests, and observations of the children and their parents.
[173] In responding to Mr. Kerr’s suggestion that M.B. was a liar, Dr. Harris concluded that M.B. was emotionally dysregulated, and “has issues with sensing red flags when things cross over from appropriate to inappropriate in terms of her interpersonal relationships”.
[174] She therefore took exception to Mr. Kerr’s suggestion that M.B. was a liar, saying that “I strongly disagree with that kind of language used to describe someone who has a significant trauma history and has experienced woman abuse”.
[175] Again, in suggesting that perhaps M.B. was not credible, Dr. Harris said the following:
“Well, I think both parties have challenged me with their credibility in some ways. They both perceive things differently, so we have to rely on collateral information to corroborate some of that, in your own observations, is a clinical judgment to ascertain what is going on and ultimately, what is going to be safe or dangerous for the children”.
[176] In Mr. Kerr’s suggestion to Dr. Harris that M.B. continued to have contact with S.A., which, in fact, gave the CAS concerns, she agreed it would also concern her but was not entirely surprising given that M.B. was a woman abused and that she had fragile stability.
[177] In turning to her description of K.D. in the first assessment with his interaction with the children, she admitted describing the children as being well behaved and appropriately managed during visits with K.D., whereas the children’s visits with M.B.’s were, in contrast, chaotic.
[178] She admitted describing “K.D. [as being] more achievement oriented, kind of wanting the children to be well behaved, successful in school and go on to have good jobs”, and described M.B. as more relationally oriented, wanting the children to feel loved and nurtured.
[179] She also admitted that K.D. had some positive qualities and some “insight into objectionable parenting behaviour in the past”, but she said “he knows very little about the dynamics of power and control in his relationships”.
[180] In explaining why M.B. was still in contact with S.A., Dr. Harris stated that “generally” it took a woman “multiple attempts at leaving” “permanently”.
[181] In cross-examination by Ms. Matthews, Dr. Harris said that one of the concerns she had if the children were placed with K.D. is his continual undermining of M.B., which reminded Dr. Harris of the Facebook incident where K.D. saw M.B. on the bus, took a photo of her and then put a nasty comment on Facebook about her.
[182] In answer to Ms. Matthews’ suggestion that K.D. himself also posed a risk to the children, Dr. Harris stated, “I think it’s pretty clear in my report that I do think the risk the dad poses with the children are significant to the extent that it’s my opinion they should not be returned to him”.
[183] Her position did not change in her updated report in February of 2017.
[184] Dr. Harris stated that in her opinion, K.D. did not make significant improvement.
[185] In responding to Ms. Junger’s cross-examination about SK.D.’s wishes, Dr. Harris stated that SK.D.’s wish to stay with the foster parents to finish school is a wish that should be respected, if possible, because “she’s been doing well there, she had been successful. It’s her wish”.
[186] In responding to Ms. Junger’s suggestion that K.D. wished to have SK.D. returned to his care without finishing grade 8 in her current school, Dr. Harris responded that SK.D. should not be in her father’s care because it would not be a “healthy outcome for her”.
[187] In focusing on SK.D.’s best interests, Dr. Harris stated “SK.D. has had a lot of disruption, and she, like any child, craves stability” “And she is asking for just a little bit more stability for a little bit longer period of time, so I would honour those wishes of her”.
[188] In an answer to Ms. Junger’s suggestion to Dr. Harris that she emphasized the importance of maintaining a balanced and significant relationship with both parents, Dr. Harris said “despite the concerns regarding M.B., what gets lost is her nurturing behaviour towards the children and the children’s wishes to be with her and the positive interactions that she has with them in the context of the access that she has had. I’ve seen that to be very positive. She is nurturing, caring, she can be responsive to them and they love spending time with her and they are very connected to her, particularly the older two girls”. So, in Dr. Harris’ opinion, it is very important that they maintain contact with their mother.
[189] Therefore, Dr. Harris disagreed with K.D.’s suggestion that M.B. should have two hours of access to the children once a week for a year simply because it would be very difficult for M.B. to maintain a positive relationship with her children when they would be spending the majority of the time with K.D. So, it is “in the children’s best interest to maximize the time they spend with their mother, provided it’s safe”.
[190] When Ms. Junger asked Dr. Harris why she believes that “K.D. cannot alter his behaviour or change in a sufficient way to address the risks”, Dr. Harris answered as follows:
So, because he’s had 20 hours of counselling, so far, with a very skilled psychotherapist who has a very good understanding of woman abuse and abuse dynamics, and has also worked essentially with, you know, perpetrators of violence in general, like in jails and stuff, so I was very careful in who I recommended would be helpful for this dad in terms of psychotherapy, so he’s had that. He’s had Caring Dads, which is a pretty intense therapy intervention to dads who are abusive to their partners. He has not made any change.
[191] With respect to the tests in which K.D. appeared to be successful, Dr. Harris explained that although he appears to have some knowledge, “that is much different than the implementation of that knowledge and the day-to-day parenting of your children”.
[192] Finally, she stated that with respect to K.D.’s shortcoming, “I think the speed at which he will learn to alter his behaviour in long-term counselling would not match the speed at which he would need to modify his behaviour in order to meet the needs of their children in relation to their relationship with their mother. If the children are going to go home to him, he needs to change” “Almost immediately”.
[193] In responding to Ms. Junger’s concerns about JO.D. maintaining a relationship with M.B., particularly within the context of K.D.’s suggestion that JO.D. should see M.B. at his discretion when he turns 16, Dr. Harris stated it should not be in JO.D.’s discretion. The only expectation for JO.D. should be “that he sees his mother”. However, Dr. Harris does not have high hopes that K.D. would allow JO.D. to see M.B.
Testimony of K.D.
[194] K.D. is 35 years of age, was born in Hamilton, he is the second of five children and has a grade 10 education. At the age of 16, after an incident which he referred to as a meltdown, he was hospitalized for approximately six weeks at McMaster Children’s Hospital, the result of which he thinks he was diagnosed with a Bipolar disorder. Since then he has not suffered any symptoms.
[195] He stated that he drinks socially and smokes marijuana late at night three to four times per week, but never in the presence of the children.
[196] He met M.B. in 2001, and as a result of a rapidly developing relationship, she became pregnant with the first child, JO.D. Although, he later learned she was hesitant at first to tell him about the pregnancy for fear he would leave her.
[197] After the birth of his first child, he procured a job at Pollard Windows which offered high pay and benefits. However, because his job consisted of basic labour, requiring him to remove windows from a truck, he was dissatisfied with the lack of progress he was making in the company and, therefore, quit his job and found new employment with KCH Framing as a framer.
[198] He testified that he and M.B. obtained their first subsidized house after he alleged M.B. faked separation and moved into a shelter. This, in fact, gave them priority for housing.
[199] K.D. testified he was upset when he was told of M.B.’s second pregnancy, only because had he known sooner, he would not have left his job at Pollard Windows.
[200] After SU.D. was born in […] of 2006, and after what he considered to be another fabricated separation, whereby M.B. attended a shelter, the parties obtained another unit at U[…] Street, Unit […] in Hamilton.
[201] The parties separated in 2006, and after a contested hearing in Family Court, M.B. was granted custody. However, the parties resumed cohabitation, which was once again interrupted by another altercation in July of 2007. The result of this altercation was K.D. being placed on probation, after which the parties, nevertheless, continued to see each other for about 20 days per month.
[202] In discussing M.B.’s parenting style, he found her to be an excellent caregiver to all the children to the age of 18 months. From that point on, he found her to be unable to manage the children as either toddlers or as they continued to mature.
[203] After another resumption of the relationship, M.B. then registered for a PSW course while K.D. took care of the children. Shortly after, the parties then relocated to L[…] Avenue, during which time K.B. was born.
[204] When JA.D., the last of five children, was born, M.B. was still working as a PSW and K.D. continued to be the caregiver.
[205] M.B. maintained her employment until she was told by K.D. that he needed to go to work and was no longer interested in caring for the children.
[206] In discussing an incident of high conflict between the parties during their marriage, K.D. described an incident in which he returned home from a Halloween party and had a physical fight with M.B. However, in order to avoid further altercation, he went to lie down and fell asleep. He woke to a disheveled home and was charged with assaulting M.B. with a weapon. He neither remembered how the home was disheveled nor how the assault charge came about.
[207] He currently has two convictions of assault against him and two breaches of probation.
[208] The parties ultimately separated in August 2012, and while K.D. remained at T.A.’s place, M.B. moved to Crystal Beach with the children, initially staying with her father and then moving into her own residence.
[209] M.B. continued to visit K.D. with the children on weekends from Crystal Beach until March 31st, 2013, when she and the children did not appear. Their absence gave K.D. cause for concern and therefore, he drove to Crystal Beach. Upon attending M.B.’s home, he found what he described as “a pigsty”. However, in not finding her there, he went to her father’s place and accidently set off the alarm, after which the police arrived. The matter was temporarily placed in the hands of the Family and Children’s Services of Niagara Falls.
[210] After an application was commenced at Family Court in 2013, the parties entered into temporary minutes of settlement wherein K.D. was given custody of the three oldest children and M.B. was given custody of the two youngest children. Terms of access were also included in the temporary minutes.
[211] He denied causing JA.D.’s injuries to his ear, stating he never intended to administer pain and used it as a form of mild discipline on previous occasions. In any event, he was acquitted of the charge and suggested that, in fact, JA.D.’s ear was injured by S.A. who had been in the company of M.B. when JA.D. was staying with her.
[212] He also admitted to non-compliance with the supervision order while attending Wild Waterworks without T.A., as well as attending JO.D.’s boxing classes and his children’s recitals.
[213] He thought he had benefitted from the sessions with Paul Ricketts inasmuch as he believed he improved his behaviour by not using condescending remarks towards the children and by not denigrating M.B. in the children’s presence.
[214] In providing his recollection of several incidents, which gave the CAS cause for concern about his inappropriate behaviour, he stated that, first, when he took the children to breakfast he denied forcing them to eat more than they were able, and that calling JO.D. a “shit stain” or “a little bitch” was really a term of endearment.
[215] Second, asking JO.D. to provide M.B. with a Michael Myers Figurine was intended to be an innocent, not a harmful, gesture.
[216] Third, he denied cuffing JA.D. in the head and pushing him into the water. And in explaining why he made the children walk home after Wild Waterworks, in his opinion, the children were used to it and it was a better option than waiting one hour for a bus.
[217] Fourth, regarding his reaction to SK.D. losing her bracelet, he did not deny chastising her and refusing to talk to her, nor did he deny threatening to cut SU.D.’s hair unless she took better care of it.
[218] He also denied that he would never change his parenting style simply because he knew that his parenting style had to change as the children got older.
[219] His only explanation as to why the children were obedient to him without question was just a matter of respect for him.
[220] As to the accusation that he posted M.B.’s picture on Facebook along with a rude comment, he had no recollection.
[221] In turning to his plan of care and housing the children, he testified he had, in fact, contacted some people advising he was looking for a house that can accommodate five children. To date, he has only been able to locate a two bedroom apartment and, therefore, his housing situation remains uncertain.
[222] In outlining assistance that he would receive in helping him care for the children, he stated that he had five aunts, three uncles and some good friends. He expressed his opinion that the children remaining in foster homes was damaging to the relationship between him and his children.
Cross-Examination by Ms. Watts
[223] Ms. Watts began by asking K.D. why, in his application, he failed to mention that he had been charged and convicted twice for assaulting M.B. He responded that he did not feel it was important information and would have filled it out had he been asked to do so.
[224] In referring K.D. to the conditions of M.B.’s home that he came upon at Crystal Beach, he admitted that the condition of the home, which he said contained a rotting smell and “looked like a tornado had blown into the house”, was not typical of the conditions of previous residences in which he and M.B. had lived.
[225] He went on to admit that although he did not have the custody of the children after the March Break, he attempted to register them in Viscount School, closest to his current residence, but was unsuccessful. Although the children were registered at A[…] School, which is too far from his own residence, he admitted that the children had not attended school after March Break for a period of time, approximately 20 days.
[226] A lack of transportation was his explanation for the children not attending A[…] School. However, when asked why he did not arrange for one of his many friends to drive the children to school, even though they would have likely complied, he made no attempts to make such an arrangement.
[227] When asked about the assault on M.B. in 2007, he did not deny being under the influence of alcohol but admitted he was not intoxicated.
[228] He does not intend to stop using marijuana if the children are placed in his care since he does not feel it would impair his responsibility to care for them, nor is he concerned about setting a bad example for the children.
[229] In turning to the financial circumstances of M.B. and K.D. during their cohabitation, he admitted that M.B. paid all the bills and that they were in her name, and although he admitted there was a power and control issue between himself and M.B., it was not over money and, therefore, he denied that he required her to give him one half of her salary in return for which he paid her an allowance.
[230] He has not had steady employment since 2006, and when he told M.B. he wanted her to quit her job as a PSW so he could go back to work, he was only able to obtain part-time construction work in the Spring of September 2012.
[231] He did not deny that since the Society began their application in November of 2013, he has only worked on a part-time basis at several jobs such as framing, painting, and, as well, working nights as a chicken catcher.
[232] He now has part-time employment with Torres Painting where he is paid in cash.
[233] In answer to the question by Ms. Watts concerning examples of physical discipline which he used on the children, such as placing the cat collar on K.B., spanking the children on the bum with his hand, and hitting the children with a belt, he agreed that such physical discipline was inappropriate and should be avoided at all costs.
[234] In justifying placing the children in a corner, he stated it was on the recommendation of the CAS.
[235] He also denied the second injury to JA.D.’s ear, blaming it on S.A..
[236] He further stated that K.B. was lying when she reported to multiple people that K.D. had hit her during an access visit. He also said that JA.D. was lying about K.D. tapping him on the head and pushing him in the water at the waterpark.
[237] Other than admitting he takes the children to the corner by the ear, he said JA.D. and the other children were lying about K.D. causing injury to JA.D.’s ear which led to K.D.’s supervised access.
[238] In explaining the collar incident, he said he put it on K.B.’s neck to humiliate her so she would not perform that act again.
[239] At one point in the cross-examination, Ms. Watts impeached K.B.’s July 12th, 2013 affidavit, in which K.D. denied name-calling incidents, making negative comments, or abuse to the family, particularly with a belt. Specifically the paragraph stated “I have never abused my children”. K.D. admitted that that was now incorrect.
[240] Although he admitted to emotional abuse of the children in the past, he nevertheless has changed to some extent, but also admitted a complete change will not happen overnight. Therefore, he disagreed that the Society had any reason to be currently concerned about emotional abuse towards the children.
[241] He intends to keep maintaining a relationship with the foster parents not because of the children’s positive experience, but because he eventually wants to coax them away from their care.
[242] With respect to programs and counselling in which he participated, he was of the opinion that he benefitted from his sessions with Mr. Ricketts. He stated that the CAS denied him of a further 10 hours and instead made him complete the Caring Dads program in July of 2016.
[243] He admitted to not cooperating with the CAS by not allowing Ms. Koopal and Mr. Jose into the home because, in his opinion, they had already seen his home on several previous occasions. He would not allow Ms. Koopal in because T.A.’s brother and parents had moved in.
[244] As for trying to obtain housing, he said the CAS had hindered him in procuring housing because they had not given him any documentation confirming that the children would be returned to his care. Although it took him six months to complete the application, he blamed the delay on his work commitments.
[245] He admitted to breaching court orders and bail conditions in February 2008, October 2008, and July 2017.
[246] K.D. said SU.D. lied when she indicated that he spoke to the children about the court proceedings and denied encouraging JO.D. and SK.D. to attend the trial.
[247] Though he admitted speaking negatively of M.B., he says he has not done so in a year and a half.
[248] Although he agreed he had unauthorized access to the children, he disagreed it was in breach of a court order because the access was in a public location.
[249] With respect to the Facebook posts, he admitted taking M.B.’s photograph on the bus, posting the photo on Facebook and adding a comment to that photo that she was an unfit mother.
[250] In referring to his parenting style, K.D. described it as “fair”, “pleasant”, “easy-going”, “but not an easy pushover”, and that he does not think he is strict.
[251] Although he did not recall telling Dr. Harris that SK.D. and SU.D. are afraid of him, he answered that, in any event, his children are no more afraid of him than children of any parent because of something they should not have done.
[252] He acknowledged that he threatened to cut SK.D.’s hair, but said it was not as bad as when M.B. cut her ponytail.
[253] In closing, Ms. Watts asked K.D. what he would do differently. He responded by indicating he regretted the incident which involved the cat leash and admitted to making mistakes, but at this stage in life, he would like to move forward with his children, an achievement that he could accomplish if he was assisted by a CAS social worker who did not have a jaded history with him.
Cross-Examination by Ms. Matthews
[254] K.D. doubted the genuineness of M.B. attending shelters, stating to Ms. Matthews that her first time in a shelter was because she owed back payments in her rent.
[255] Although Ms. Matthews suggested the children have a healthy relationship with the foster parents, K.D. maintained his position that it was damaging the relationship between him and his children.
[256] Although he agreed his behaviour would not change overnight, he disagreed with Dr. Harris’ opinion that he needed longer time to address the concerns before the children were returned to his care. If he was referred to other counsellors, he would do everything possible for “the wellbeing of my children”.
[257] Again, he disagreed with Ms. Matthews in that he did not recall speaking to the children about the court proceedings.
[258] Regarding his parenting style, he believed himself to be firm but fair, and although he agreed that M.B. was a great caregiver to the children in their early years, he insisted that she had no capacity to care for them after the age of two.
[259] He admitted telling the children to call their mother ‘M[…]’ because she treated them like a friend, not a parent.
[260] He explained the slasher figurine incident was not an attempt to intimidate M.B. As far as denigrating her on Facebook, he denied knowing the children would, in fact, see the photo with the accompanying comments about their mother. Nevertheless, he knew that SK.D. had a Facebook account.
Re-Examination by Mr. Kerr
[261] In any event, the children never sustained any physical injuries because of his use of physical discipline.
[262] As for his breach of bail, he indicated M.B. was aware of that breach.
[263] In addressing the suggestion that he only worked part-time, he reminded Ms. Matthews that he worked full-time at Park’s Furniture for six months, then Pollard Windows for two years, and also full-time at KCH Framing for a year. The last job was terminated because he was arrested on the charge against JA.D.
Testimony of M.B.
[264] M.B. admitted to being a foster child until the age of 14. She met K.D. at the age 18 and, ultimately, gave birth to all five children.
[265] She then referred to the assault charges, describing the first incident in which K.D. choked her and threatened to throw her out the window. In the second incident, he took her upstairs to the bedroom and threatened her with a knife, threw her on the bed and then fell asleep beside his daughter, SU.D.
[266] However, believing that K.D.’s family would be the only family of support, it motivated her to resume their relationship.
[267] She reiterated being told by K.D. to give him one half of her paycheck and admitted maintaining the Percocet prescription until 2012 for K.D.’s sake only.
[268] Their ultimate separation in 2012 was precipitated by K.D. punching her in the stomach because she tried to interfere with his method of disciplining of the children with the use of the belt.
[269] In describing her parenting style, she saw herself as a kind and loving person who does not resort to methods of physical discipline. In any event, she had tried to discipline the children in her way, but K.D. would undermine her efforts by telling the children to call her M[…], which was a sign to her that K.D. did not respect her.
[270] Regarding both incidents of the figurine and of Facebook, first, M.B. felt threatened by the gifting of a Michael Myers figurine by her son, JO.D. Second, she felt denigrated when K.D. took a photograph of her on the bus, calling her a “bad mom” within earshot of other people and placing the photo on Facebook with an accompanying caption: “If you see this woman, do not put her around children because she’s a very bad mother”.
[271] M.B. understands that she is not a position to have the children return to her care but wishes to continue access with them. With respect to her relationship with S.A., she understands she needs time to put the relationship behind her to the point wherein she intends to contact the police if he should, in fact, contact her.
[272] In turning specifically to SK.D., she stated that she would support SK.D. staying in care so she could finish her school and win an Athlete of the Year award in that particular school.
[273] She did not support K.D.’s plan of care, finding him to be emotionally and physically abusive, and was concerned that the children will not be safe in his care.
[274] Lastly, regarding her son, JO.D., she has been concerned that he has missed two of three visits without acceptable explanations. The first one because of the lack of a driver, and the second one simply because he was not home. With respect to her access to the other children, her sister A. is prepared to supervise those visits at the Access Centre during the week and on Saturdays in the community or in her home.
Cross-Examination by Ms. Watts
[275] M.B. admitted that contact with Mr S.A. would affect her access to the children. M.B. also admitted in order to keep S.A. at bay, she and her sister, A., have put into place a safety plan, which includes calling 911 if S.A. appears, as well as M.B. moving to an anonymous residence, thereby making it less likely for her to run into S.A., K.D., or K.D.’s family.
Cross-Examination by Mr. Kerr
[276] M.B. admitted to Mr. Kerr that she has been accompanied to court by support workers from the program run by Good Shepherd, but none of M.B.’s family have ever been present during court proceedings.
[277] She denied Mr. Kerr’s suggestion that she played the victim card.
[278] M.B. admitted the last time she was at a shelter was in September of 2016, and did not deny that during her relationship with K.D., she was admitted to approximately 20 shelters; however, she disagreed that the shelter was like a vacation because she had certain duties to perform, such as cooking, cleaning and apartment searching.
[279] She admitted the shelters assisted her in finding housing and furnishing the house, but when she went to a shelter, she did not leave her property behind but returned to collect most of it.
[280] She admitted being involved in altercations with K.D. wherein she locked him out of the house and would scream at him, but she never scratched or slapped him.
[281] She further admitted that she spoke of times when K.D. forced her to get him a drink or he spat on her. But she also admitted that she did not include those examples in either of her court documents or in any police report.
[282] Regarding the two convictions against K.D., she admitted that on the occasion where K.D. choked her for a six hour period, his hands were on her neck which prevented her from screaming. Therefore, L., with whom she was staying at the time and was sleeping down the hall, would not be able to hear the commotion. She stated she was subjected to intermittent choking and threats to throw her out the window. She denied exaggerating the event and said that she called the police the following night. She was also perplexed as to why the one conviction was reduced to a charge of common assault and not an assault with a weapon.
[283] She admitted telling a doctor on June 6th, 2012 that K.D. can be a good dad, but was quick to qualify that comment by saying that it does not mean that he is not an abusive dad.
[284] She did not deny staying at T.A.’s house when she visited Hamilton between September 2012 and March 2013.
[285] In turning to the ear incident in October 2013, although JA.D. appeared to be injured and M.B. did call the CAS and her lawyer, she did not mention to the CAS that S.A. had been in her apartment alone with JA.D. the previous day.
[286] She did not deny being with S.A. during the time JA.D.’s injuries were discovered which led to the children being apprehended on April 14th, 2014.
[287] Although she admitted she was warned to have no contact with S.A., she was also told by Stephanie Sheptenko that if she should decide to resume such a relationship, she would receive assistance from the Society. Yet, she also admitted that several workers told her to desist seeing S.A. permanently. Therefore, she admitted it was a dumb choice to return to that relationship, something she wished she never, in fact, decided to do.
[288] She also admitted that despite the numerous assaults against her, numerous bail and probation breaches by S.A., the damage to her property and the break-ins to her home, she, nevertheless, continued to have an on and off relationship with him.
[289] She admitted making excuses for his behaviour, trying to minimize his abuse despite the fact that he has been linked to approximately 25 occurrences recorded by the Hamilton Police Services.
[290] Concerning her mental health, she admitted two suicide attempts, first on November 2014 about which she did not inform the CAS because she was embarrassed, and the second attempt in May 2016, where again, she did not inform the CAS but made the people at the shelter aware of that attempt.
[291] Although she was not able to complete The Bridge to Recovery program because the sessions were four days a week and, therefore, significantly interfered with her access, she was able to complete the Manage Emotions program prescribed by Dr. Baird, which took place only once a week from August to December 2016.
[292] With respect to her parenting style, she admitted that the younger children were rambunctious during access visits and did not completely disagree with the Society’s observations that she had some trouble managing the children during the visits.
[293] She also stated in defence of herself that keeping five children in a pod setting was not very easy when the children wanted to play with toys which were outside the room. Her explanation as to why K.D. was able to manage the children was because they were afraid of him and not afraid of her.
[294] In closing, although she wants her children, she realized the Society is not prepared to have the children returned to her care. She has to be serious about showing them she will stay away from S.A., and therefore, is consenting the children become Crown wards for the time being.
Cross-Examination by Ms. Junger
[295] She admitted to Ms. Junger that she consented to Crown wardship because she did not want the children to grow up in an abusive relationship since that kind of relationship would destroy them.
[296] To elaborate, she was concerned that they would find themselves in relationships in which they might mirror the same kind of behaviour which she experienced.
[297] She knew the three children, SK.D., SU.D., and K.B. wanted to live with her, a desire which she said is mutual, but she also understood it will take a while before that is even a possibility.
[298] There is no doubt about the closeness she has with her children and that she enjoys visits with them. They either watch movies or go to Bayfront Park.
[299] The children have expressed their concern about their relationship with K.D. M.B. was alarmed at the Waterworks incident and was upset that K.D. told the children to call her M[…], which they have done in the past during their visits, but admitted the last time was in 2015.
[300] Concerning her suicide attempts, she said there was no triggering event other than she felt like a terrible mother. On both occasions, she was not able to sleep and therefore was not able to shut down.
[301] Continuing with K.D.’s inappropriate behaviour toward her, she recalls him locking her out of the house, making her sleep outside which required her to go to the shelters. This happened on two occasions when they were living on O[…] Crescent around 2012.
Submissions by Ms. Watts
[302] Ms. Watts submitted that pursuant to the Catholic Children’s Aid Society Hamilton v. T.D., a case of Justice Chappel, the underlying philosophy of the Act is that the best interest of the children must be balanced with the importance of keeping the family intact. Although no one is disputing that the children continue to be in need of protection, the disposition is what the court must now concern itself with.
[303] Ms. Watts reminded the court that the children were originally placed with M.B., subject to the Society’s supervision. All children have been made Society Wards. Ms. Watts submits to the court that there is no alternative relative or neighbour with whom the children can be placed. And although a presentation was made by the paternal aunt, and the maternal aunt and uncle, J.V. and R.S., neither of those plans were approved.
[304] Ms. Watts submitted that the paternal grandmother was also willing to present a plan but would not follow through until she learned the outcome of the court proceedings.
[305] The Society is seeking Crown wardship with access. M.B.’s access appears to be more limited than K.D.’s as proposed by the Society. M.B., having admitted she cannot care for the children, has insight into her limitations and believes that a viable alternative for the children in these circumstances is Crown wardship.
[306] The main obstacle with respect to increased access to M.B. has been her historical relationship with S.A., who, himself, has a history of abuse against M.B.
[307] Given Dr. Harris’ comments, M.B. is truly a victim of domestic violence and has little to no support. She, in fact, is vulnerable to future incidents of abuse should she resume a relationship with S.A..
[308] As Ms. Watts indicated, the Society has absolute discretion in determining appropriateness of any increase in access to M.B. Of course, any resumption of a relationship with S.A. would be an insurmountable obstacle for more frequent access to M.B.
[309] However, Ms. Watts did indicate that the Society has no concern if M.B. resumes her relationship with S.A., provided the children are not present at the time. As Ms. Watts stated, it is difficult for the Society to monitor or tell M.B. that she cannot be in a relationship with S.A..
[310] Ms. Watts submitted, on a positive note, that M.B.’s access is currently being supervised by her sister A., and while that supervision is in place, there has been no evidence of any concerns regarding M.B.’s contact with S.A..
[311] In turning to K.D., Ms. Watts submitted it was clear that K.D. presents a risk to the physical and emotional harm of the children. K.D. does not appear to be successful in learning from individual support groups, including the Caring Dads program, and has not, in her opinion, demonstrated insight into the need to change his parenting style or demonstrate an ability to alter his behaviour.
[312] In referring to Dr. Harris’ initial Parenting Capacity Assessment, Dr. Harris noted that K.D. exhibited what she called emotionally abusive behaviours. She described K.D. as being harsh, belittling, and instilling fear and guilt in the children. He sometimes used physical discipline in spite of the fact that he was told it is inappropriate.
[313] Furthermore, Ms. Watts submitted that although K.D. definitely loves his children, love is not enough. He is not able to recognize the negative impact of his expectation of the behaviours of the children.
[314] Ms. Watts further submitted that although K.D. has been provided with services and tools which would help him adjust his inappropriate behaviour and learn how to better respond to his children, he has, to date, not been able to implement the strategies which have been recommended.
[315] If K.D. chooses to work, which the Society is not discouraging, he must understand he must do so in a way to be able to balance and manage both his work duties and his duties as a father to the children, which include taking them to meetings at the school, dental appointments, and extracurricular activities.
[316] Regarding the children SK.D. and SU.D., both have reported incidents of physical discipline in the past and both have reported that K.D. continues to be negative about M.B.
[317] Moreover, they both felt guilt, anxiety and concern over consequences which may follow if they did not call their father every night after they were dropped off by their driver.
[318] While the children may have expressed a desire to want to go home, it is not necessary in their best interest. She spoke of two incidents of physical abuse demonstrated by K.D.: the one incident regarding placing a leash around K.B.’s neck for defecating on the lawn, and the second incident regarding the use of a belt in the form of punishment, which K.D. said was encouraged by M.B.
[319] A further example of the use of physical discipline was described to Ms. Dowhaniuk by the child, JO.D., who admitted to Ms. Dowhaniuk that K.D. had pulled JA.D.’s ears on several occasions using it as a means of guiding him across the street, leaving his ears red. K.D., on the other hand, described it as merely wiggling his ears.
[320] Ms. Watts went on to submit, as another example of inappropriate discipline, K.D. sending the children to the corner. Evidence of such discipline was represented by the grease stains which K.D. pointed out to Dr. Harris when she visited the home. That kind of behaviour, Ms. Watts submitted, is abusive and inappropriate because it was demeaning to SK.D. and JO.D. given their ages and, therefore, was done to shame them. In her opinion, it would have been better for K.D. to discuss their inappropriate behaviour with the children rather than embarrass them.
[321] In turning to JA.D.’s injury, Ms. Watts reminds the court that it was verified by Dr. Baird who persuaded the Society that K.D., in fact, inflicted the injury on JA.D. It was also verified by JA.D. that it was K.D.’s decision to punish JA.D. for jumping on his grandmother’s bed.
[322] She reminds the court that Dr. Baird’s report was quite detailed in describing the injury, noting there was bruising, crushed blood vessels and damage causing blood to leak into the surrounding tissue.
[323] In addition to physical discipline exercised by K.D., the Society has also expressed concerns about K.D.’s lack of follow-through in the parenting and anger management programs in which he had expressed an interest.
[324] For example, he did not participate in the anti-violence program.
[325] Moving on to Dr. Harris’ assessment, Dr. Harris has been consistent in her position that the children cannot be placed in the care of either parent. And although in the assessment she thought there was potential for K.D., which could be nurtured through recommended services, she concluded by the end of the third assessment that he had regressed. Not only did Dr. Harris express concern about K.D.’s harsh and abusive parenting style, she also concluded that he failed to recognize that he, in fact, engaged in such behaviour.
[326] Dr. Harris indicated that K.D. intended to minimize the form of physical discipline, such as using the belt.
[327] Regarding domestic violence, he does not appear to have accepted a responsibility in spite of having two previous convictions.
[328] Dr. Harris also expressed concern with K.D.’s apparent disregard for rules and authorities, his use of intimidation and harsh discipline tactics, and his tendency to denigrate others, including M.B. and his own children.
[329] Dr. Harris further expressed concerns about the children being afraid of challenging their father and speaking their minds for fear of reprisal. She noted, in that regard, that he has a history of abuse in instilling guilt, using the silent treatment, and belittling the children.
[330] Although K.D. admitted some economic abuse to Dr. Harris, he would not admit, as told to her by M.B., that he required her to hand over to him 50% of her pay.
[331] Ms. Watts further submitted that Dr. Harris stated, through her interviews with the two oldest children and in preparing her Parenting Capacity Assessment and the following supplements, that all children did not notice any change or any difference in their father’s behaviour.
[332] In fact, when speaking with K.D. on November 2nd, 2016, Dr. Harris submitted that K.D. admitted to her that he did not feel any difference in the way he was acting and was not intending to change his parenting style.
[333] Dr. Harris concluded in her third and final report that until K.D. demonstrates a genuine acceptance of responsibility and demonstrates a shift in parenting style, which would require his significant investment of time and effort into counselling, the best interest of the children is to remain in care.
[334] Ms. Watts indicated that from a practical perspective, K.D. has done very little, if anything, to look for alternate housing, having been residing with T.A. since 2013.
[335] He appears to have made little very effort to obtain alternate housing despite the fact that he mentioned, on several occasions, that he had been putting in the effort.
[336] Although he appears to be making $900 to $1,100 a month, there is no explanation as to why he could not use the money as a down payment for his first and last month’s rent.
[337] Ms. Watts submitted that K.D.’s failure to demonstrate a dramatic change in his parenting style has been the obstacle which has prevented the Society from providing him with assistance in placing the children in his care, which, in turn, perhaps would assist him in obtaining appropriate housing.
[338] And although K.D. may be eligible for housing at some point, Ms. Watts reminded the court that from December 2015 to October of 2016, he made no effort to submit an application for housing.
[339] In conclusion, she further submitted that K.D. has exhausted all services made available to him, which she summarized as follows:
a. One-on-one psychotherapy;
b. Exposure to the Caring Dads program;
c. Discussions with various Society workers who delineated the concerns of the Society;
d. Having the benefit of a parent support worker in the home;
e. Three Parenting Capacity Assessments.
[340] Although Dr. Harris stated that counselling would help K.D. improve his own personal development, nevertheless, she does not feel comfortable with the court returning the children to his care given that his level of improvement does not justify it.
[341] Hypothetically, Ms. Watts submitted that even if the children were returned to K.D.’s care under supervision, given his history of lack of cooperation with the Society, the concern is that K.D. will not follow through and not allow the Society to meet regularly with the children.
[342] Further concern is the likelihood that K.D. will continue to speak negatively about M.B. to the children, which, in turn, will seriously disrupt the flow of access between the children and their mother. Moreover, the Society does not know whether or not K.D. will, in fact, encourage and facilitate access between the children and their mother.
[343] Ms. Watts questioned, as well, K.D.’s comments that he had plenty of family support when, in reality, he has very little support from his aunts and uncles. And although he does have support from his friend, T.A., in actuality, it was only his mother who came and testified that she, in fact, would offer him her support.
[344] In conclusion, she reminds the court, again, of K.D.’s statement to Dr. Harris that he does not wish to change his parenting style. He made that clear to both Dr. Harris and the Society workers. And although in his testimony he has said differently, nevertheless, it is contrary to what he expressed to Dr. Harris and to the workers throughout this file.
[345] Therefore, Ms. Watts indicated the only plan for the safety, stability and permanency is to make the children Crown wards with access. It is in the best interests of the children at set out under Section 37(3) of the Child and Family Services Act.
[346] Ms. Watts then turns to Section 65 which governs the status review applications and reminds the court of its options under Section 57 of the Act, which are then limited by Section 70, which states that the court should not make an order for Society Wardship with respect to a child who is more than 6 years of age and has been in the Society’s care for more than 24 months.
[347] Ms. Watts further reminds the court that a 6 month extension is available under Section 70 and is deemed in the child’s best interest as set out in Section 70 (4).
[348] Ms. Watts reminds the court that the court has two options: either to make the children Crown wards or return them to K.D., M.B. already having recognized that the children cannot be returned to her care.
Submissions by Mr. Kerr
[349] Mr. Kerr began by stating that the children are now 15, 13, 11, 9, and almost 7, and were described in the report as being polite, well mannered, “good kids”, with no significant behavioural issues, except the child, K.B., who demonstrated some sexualized behaviour, which has been resolved at the foster home.
[350] He referred to the history of M.B. who had, what he called, a horrible upbringing, described by Dr. Harris as “sad, horrible, and very depressing”.
[351] K.D. was raised primarily by his mother but did suffer some abuse from his father.
[352] M.B. was described as a good mother to her children up to the age of 2, but according to K.D., was not able to relate to them after that age.
[353] In referring to the criminal charges against K.D. of 2007 and 2008, although there are conflicting versions of what transpired, it, nevertheless, was not enough to keep the couple permanently separated from each other.
[354] Mr. Kerr submitted that prior to the parties’ ultimate separation in 2012, they seemed to have been living together for the most part with short times of separation in between.
[355] Despite M.B.’s affidavit that suggests that K.D. did not spend a lot of time with the children, the evidence would suggest the opposite, mainly, that he spent, in fact, a substantial time at home with his children and was a prominent and continuous presence. In fact, it was because of his presence that the children seemed to be well behaved, polite, and well mannered.
[356] Their children have not required any counselling or additional services through the Society.
[357] Mr. Kerr further submitted that there appears to be no significant history of substance abuse, and with respect to physical abuse, although K.D. appears to have been described as a person who bullies both his wife and his children, he submitted that the court must consider the seriousness and veracity of these allegations.
[358] Beginning with K.D.’s record, which ends in 2008, by that time he had two convictions: one for which he pled guilty and one for which he was found guilty, the latter being not an assault with a weapon but an assault. K.D. spent some time in custody and was also on bail for short periods of time.
[359] With regard to domestic violence, which Mr. Kerr described as being on the low end of the scale with no noted injuries, hospitalization or possible bruises to M.B., he alleges that she had lied and exaggerated about the domestic violence issues as well as the financial abuse.
[360] Mr. Kerr stated that M.B.’s credibility generally is very suspect and that she tends to play the victim card which is evidenced by her attendance at various shelters. He asked the court to accept the fact that M.B. used the shelters as a means of obtaining improved subsidized housing, which is also exemplified by her receiving benefits such as cab rides, bus tickets and food vouchers due to the sympathetic ear of the Society workers.
[361] However, in spite of many attendances to the shelters, the parties had been together for at least 10 years, which suggests that M.B. is a woman who lies, is deceitful and devious. Over and over again, she has talked about terminating her relationship with S.A., and yet, time and time again, she would return to him.
[362] Though M.B. described S.A. as one who provided financial support, Mr. Kerr submitted the consequence of her resuming a relationship with him is to expose the children to this very lethal person. And although Dr. Harris suggested that M.B. cannot help herself, Mr. Kerr is asking the court to accept that she would return to S.A. voluntarily and not under compulsion.
[363] In returning to the specific assault where she talked about K.D. choking her all night, he is asking the court to not accept that as factual in view of the fact that her sister and his cousin, L., were 20 feet down the hallway. The incident went on from 1:00 a.m. through to 7:00 a.m., and in all that time, L. never heard any commotion.
[364] Mr. Kerr further asked the court to consider that the fact that M.B. did not tell the Society about her suicide attempt is deceptive in that regard. He also asked the court to be alert to the fact that she is diagnosed with both post-traumatic stress disorder and borderline personality disorder, both of which Dr. Harris has noted to be serious mental disorders.
[365] Mr. Kerr goes on to submit that the lack of credibility is apparent and is significant as the court is being asked to determine who is the more credible witness with respect to K.D.`s ability to care for the children, as distinguished from M.B.’s inability to care for the children.
[366] He further submitted that M.B.’s living condition at Crystal Beach resulted in the children having head lice and bug bites. He submits that the court should contrast those living conditions with the living conditions the children have experienced in the home of Mr. T.A.. He described it as a clean and decent place with lots of room for the children.
[367] Mr. Kerr submitted that M.B.`s affidavit is full of lies and is fraudulent, particularly when she alleged that K.D. never worked in a day and resorted to financial extortion.
[368] Mr. Kerr reminds the court of Ms. Dohawniuk’s affidavit, in which she describes the children as equally responsive to each other, respectful and well-behaved, and that K.D. presented as a very conscientious parent.
[369] Regarding the injury to JA.D., Mr. Kerr reminds the court that the child was in M.B.’s care at the time, during which she did not seek medical advice and omitted telling the authorities on that critical day that S.A., in fact, had been in the home the night before.
[370] The children were in M.B.’s care between November 2013 and April 2014, at which time they were apprehended. Up to that point, the children were having poor attendance at school and there was a period of chaos and turmoil as set out in Dr. Harris’ PCA.
[371] It is also clear that K.D. did well in the psychometric testing but that Dr. Harris’ conclusions are the result of subjective findings based upon information provided to her by people such as M.B., whose credibility he is asking this court to consider to be suspect.
[372] In turning to the visits of M.B. and K.D. with the children, as observed by Dr. Harris, Dr. Harris observed that K.D. came to the visits with good meal, fed the kids well, and the visits themselves appeared to be uneventful and planned with no major incidents. This is contrasted with M.B.’s visits, which Dr. Harris described as being somewhat chaotic. As well, M.B. had no ability to organize or structure the visits and, at times, was unaware of all the children’s whereabouts or when any of the children left the room. As well, the children were observed as yelling in her presence.
[373] It has been five years since K.D.’s last conviction. Mr. Kerr submitted that in fact K.D. did learn to take some responsibility for his abusive behaviour towards M.B. and the children and learned about child-centered fathering.
[374] He also recognized the impact of his behaviour on M.B. and her parenting, and he recognized his unhealthy emotional abuse of his parenting behaviours, acknowledging stages of child development and the requirement to respond to the children’s needs. As well, he made some headway in problem solving, managing frustration and luring alternatives to physical punishment. He also spoke of rebuilding trust and working together with M.B.
[375] Apparently, the Caring Dads program gave encouraging words, describing him as being “motivated to learn how to be a better parent so that he can gain custody of his children”.
[376] Mr. Kerr reminds the court of Mr. Ricketts’ comments about K.D. being very involved with the children. He is a father who loves his children, expressing it both verbally and physically. And although he points out his weaknesses, nevertheless, in Mr. Kerr’s opinion, the positives outweigh the negatives.
[377] With respect to access to M.B., he is asking the court to consider her lies, deceptions, misstatements and exaggerations which, he submits, bears directly on how much access she would have to the children. In another circumstance, had K.D. not been in the picture, this could have easily been a Crown wardship, no-access case.
[378] In closing, K.D. wants all five children returned to him. He will obtain accommodation; housing should not really be a major issue. He has the support of his mother and his aunt, both of whom have been in attendance at trial on a regular basis.
[379] With respect to the oldest child, SK.D., it is in her best interest to return home as this is her grade 8 year and she is gifted academically.
[380] In justifying the two hours of access to M.B. recommended by K.D., Mr. Kerr submitted the visits are now being supervised by her sister, A., of whom there is no personal knowledge and no confirmation she is a trustworthy supervisor. Therefore, it is necessary for there to be a prolonged period of time of supervised visits in order for A. to demonstrate that she has the ability to keep S.A. away from the children.
[381] Although the foster parents are caring well for the children and they are committed long-term, that can change frequently. And in any event, Mr. Kerr submitted they expressed a desire to be with each other and to be with a parent, whether it is Mother or Father.
Submissions by Ms. Matthews
[382] Ms. Matthews is asking the court to accept the minutes of settlement as signed by M.B., but not by K.D. with respect to M.B.’s access going forward.
[383] In addressing the concern Mr. Kerr raised with respect to M.B.’s sister, A., as a supervisor of the visits, Ms. Matthews submits that it wasn’t disputed that A. had suspended access when she was suspicious M.B. was seeing S.A., which is proof, according to Ms. Matthews, that A. was quite capable of being a responsible supervisor when M.B.’s access was in the community. This should be contrasted with K.D.’s access supervisor, T.A., who failed to consistently supervise K.D.’s access with the children on each and every occasion.
[384] Ms. Matthews also asks the court to be concerned about K.D.’s judgment to bring a motion to have his son JO.D. be in attendance and participate at trial. Moreover, K.D. also wanted to bring the same motion on behalf of his daughter until he was told by the court at the ruling that not permitting JO.D. to participate in the trial applied to all children.
[385] Moreover, Ms. Matthews indicates that the paternal grandmother, in fact, played a part in trying to convince the children to attend court, which she submits is an example of the paternal grandmother’s poor judgment.
[386] Ms. Matthews then turns to Dr. Harris’ reports, which she described as being thorough in her collection of the evidence and in her opinion.
[387] Ms. Matthews agrees with Dr. Harris’ position that the children should not be returned to either parent.
[388] And although M.B. did not expect to have the children returned to her care, Ms. Matthews submits that access to M.B. should be allowed in accordance with the minutes of settlement which she signed and which includes her consent that the children remain Crown wards with access.
[389] Ms. Matthews reminds the court of Dr. Harris’ observations in her assessment as related to K.D., wherein she indicated in her first assessment K.D. “resorts to intimidation, harsh discipline of the children, or denigration of others”.
[390] Again, she reminds the court of further examples of K.D.’s behaviour towards the children, such as pointing out to Dr. Harris grease stains on the wall from forcing the children to stand in a corner. She reminds the court of K.D.’s humiliation of JA.D. by sending him in a corner when he didn’t take his shoes off. Continued belittlement would escalate which would end up emotionally abusing the children.
[391] K.D.’s harsh discipline is, again, evident in the affidavits of Stephanie Sheptenko, Shannon Scuccimarri, Cindy Dowhaniuk and Gikson Jose.
[392] Ms. Matthews also submits that despite the fact that K.D. had completed the Caring Dads program, had sessions with Paul Ricketts and worked with Megan Scott, she agreed with Dr. Harris’ assessment that he had not benefited from those interventions and, instead, required sustained counselling to enable him to provide a healthy and balanced parenting of the children.
[393] Ms. Matthews points out K.D.’s treatment of Megan Scott when she outlined in paragraph 129 to 136 of her affidavit K.D.’s behaviour towards her which consisted of undermining her, mocking her, and humiliating her in front of the children.
[394] Further, Ms. Matthews submits K.D. has never cooperated with the workers, and the workers, in turn, have sometimes felt powerless around K.D. She sets out an example from Ms. Koopal’s affidavit the incident when K.D. asked the children what they do when he yells “protest”, resulting in the children hitting the ground, which is behaviour Ms. Koopal described as inappropriate, surprising, and concerning in spite of the fact that it was done in front of Ms. Koopal who is a person of authority and whose authority was totally disregarded by K.D.
[395] K.D.’s lack of cooperation was also noted in Mr. Jose’s affidavit. While Mr. Jose was not allowed to visit inside the home, it was told by K.D. that he would never work with Mr. Jose.
[396] K.D. has demonstrated his refusal to comply with court orders.
[397] With respect to M.B., K.D., in part, demonstrated little regard for the fact that she was a victim of domestic abuse, citing as an example M.B. telling K.D. that she loved him when he put a knife to her throat in order to avoid any harm or death which is indicative of a woman who has been intimidated in an abusive relationship.
[398] Ms. Matthews further agrees with Dr. Harris’ approach that neither parent is capable at this time of resuming care for the children. She simply stated at page 53 of the first assessment where she described K.D. as seeing the world as unfair and had displayed disregard for rules and authority.
[399] Ms. Matthews goes on to say that the foster parents appear to have great insight into the needs of the children. They have identified the concerns brought to the attention of the Society, the children having been in the same foster home since apprehension, and had some stability. If returned to K.D., Ms. Matthews submits that his demanding behaviour will lead to emotional abuse, which the Society is attempting to protect the children from.
[400] The other concern about returning the children to K.D.’s care at this time is, as Dr. Harris indicated, that “the children may normalize abuse, and that this will follow them into their intimate relationships as adults is most telling”.
[401] For the recommended access to M.B. by K.D., namely, two hours per week for a year, Ms. Matthews reminds the court that JO.D. is now living with his father and has already missed access visits with his mother which suggests K.D. in now in a position to limit JO.D.’s access to M.B.
[402] With respect to M.B.’s ability to be a nurturer, she also indicated that she did, in fact, do something practical: she registered the children in dance.
[403] With respect to whether they should be returned to K.D., she reminded the court that the foster parents said all the children are thriving and doing well in their care. They are currently stable.
[404] Regarding the injury to JA.D.’s ears, Ms. Matthews goes on to submit K.D. was punishing the child.
[405] In terms of the limitations on both parents to parent the children, although they appear to have some good skills, what is preventing them from problem solving and effective parenting is set out in page 56 of her first PCA.
[406] As for K.D.’s support system, Ms. Matthews points out and reminds the court that the paternal grandmother minimized the abusive behaviour inflicted upon K.D. by his own father. Moreover, the paternal grandmother made light of K.D.’s threat to cut off SU.D.’s hair, saying that there must have been a reason for it.
[407] Ms. Matthews also reminds the court that K.D. has failed all services available to him aimed at Caring Dads, psychotherapy intervention, and a personal support worker.
[408] In recognizing that M.B. may have lied in certain situations, Dr. Harris, having taken into consideration that possibility, nevertheless, still made her recommendations.
Submissions by Ms. Junger
[409] Ms. Junger spent much of her submissions with respect to M.B., indicating that M.B. has signed the minutes of settlement, and that there is nothing in the evidence that would suggest M.B. should not have any access less than what she is asking for; this is in spite of K.D.’s position that he wants M.B. to have very limited access.
[410] Ms. Junger reminds the court that Dr. Harris called M.B. incredibly nurturing, that her access is positive, and that she is caring and responsive.
[411] With respect to the issue raised by Mr. Kerr regarding her sister, A., the Society clearly had assessed her as an appropriate supervisor and that access appears to be going well and uneventful. Ironically, although Mr. Kerr may be critical of A., he doesn’t give the same criticism about Mr. T.A. who, in fact, failed to supervise access when he was obliged to do so.
[412] Lastly, Ms. Junger said in the face of the criminal convictions of K.D., the court should be concerned about his ability to foster a loving relationship with the children and their mother. She, in fact, expressed the children’s wishes: SK.D. and SU.B. want to remain in foster care until they finish grade 8, and their desire to live with their father is their secondary position.
[413] The other concern is that if the children were returned to their father’s care, the court should be concerned about access to M.B. being disrupted, which, ultimately, could give rise to significant protection concerns for the children emotionally. It is important that the children want to be together. SK.D. and SU.D. want to remain in care so they can stay together.
[414] Ms. Junger finished by saying that if the court decides the children should be with their father, K.D. should be subject to stringent programs.
[415] Regarding the child SK.D., specifically, Ms. Junger said that Dr. Harris indicated SK.D. is craving stability, and to return to her father in the circumstances would be a difficult transition for her, would destabilize her, and could affect her negatively.
Reply Submissions by Ms. Watts
[416] With respect to K.D.’s suggestion through Mr. Kerr that M.B. lies, although he is asking the court to accept the fact that she is a liar and is deceitful, at the same time he is asking the court to accept that S.A. is a risk.
[417] With respect to the psychometric testing that, in fact, K.D. had passed, Dr. Harris explained that he has the ability to articulate what he believes is an appropriate response.
Analysis and Conclusion
[418] Based on my review of the relevant section of the Child and Family Services Act (CFSA) I am faced with two options.
[419] The first option is to return the children to the care of their father, K.D., under terms of supervision and with specific terms of access to the mother, M.B., who has already consented to an order of a Crown Warship.
[420] The second option is to make all children Crown wards with specific terms of access to each parent.
[421] In coming to my decision, I have carefully considered all of the evidence
The Mother, M.B.
[422] Beginning with M.B., I am satisfied that indeed she was a victim of abusive relationships, firstly with K.D., the father of the five children, and secondly with S.A..
[423] In that regard, I am particularly persuaded by the evidence of Dr. Harris whose expertise I accept and whose opinions I find credible. In her PCA and in her supplementary reports, Dr. Harris concluded that M.B., in fact, was a victim of abuse. She cited the characteristics of an abusive relationships and I find those characteristics are indeed applicable to M.B.’s relationships.
[424] In her answer to Mr. Kerr’s question, although Dr. Harris admitted not primarily focusing on the credibility of M.B., she did conclude that nothing about the information she received from M.B. presented her with any doubts and that M.B., in fact, gave her credible accountings of the incidences of abuse.
[425] Although it was suggested by Mr. Kerr in his cross-examination of M.B. that M.B.’s various visits to shelters were really a deceitful plan to enable her, the children and K.D. to obtain better accommodation, I find the evidence on the whole does not unequivocally support that theory.
[426] In my opinion, each time M.B. attended the shelter and each time M.B. was provided with a new residence, no suspicion was raised by the subsidized housing authority. And given the numerous times that she attended shelters, I would reasonably assume that questions about the authenticity of her frequenting shelters would have been raised at some point during her many moves.
[427] Therefore, I have no reason to believe that M.B.’s decision to move to shelters with the children was less than justifiable given her violent relationship with K.D.
[428] Consequently, her self-worth has been eroded significantly, and her fragility, I find, was demonstrated by her two attempts at suicide.
[429] Also, Dr. Harris described M.B.’s progress as “improving but fragile, needing to work on her ‘mental health stability’, community involvement, and developing her support network”.
[430] I am also reminded of Dr. Harris’ observations and conclusions, namely, that in her opinion, “M.B. has only demonstrated a very short period of stability. As a matter of fact, M.B. acknowledged that she lacked confidence and authority in parenting her children, and SK.D. had become a caregiver to her”.
[431] Further, Dr. Harris also recognized M.B.’s limitations as a caregiver to the children, concluding that M.B. did not have the capacity to meet the children’s instrumental needs or independently care for them. Dr. Harris did, however, find M.B.’s strength, as it related to the children, was her ability to be a kind and caring nurturer.
[432] M.B. herself has recognized her limitations and has, I find, appropriately consented to Crown wardship.
[433] Therefore, for M.B., I need only consider an appropriate regime of access.
The Father, K.D.
[434] Regarding K.D., I have considered the evidence and the observations of the workers who testified, Mr. Ricketts’ sessions with K.D. and his observations and opinions, Dr. Harris’ report and her opinions and conclusions, and K.D.’s testimony.
[435] I have no doubt he has great love for his children, but as Ms. Watts stated in her submissions, love is not enough.
[436] Although K.D. has claimed that he has learned from his sessions with Mr. Ricketts and as well as from his discussions with Dr. Harris, I find the evidence on the whole does not persuade me that he has reached a level of development which would give this court the needed comfort to return the children to his care, even under a supervision order.
[437] To begin with, I am, again, persuaded by the opinion of Dr. Harris, who, from her detailed assessments, described K.D. as being possessive of the children and personalizing their behaviour. She talked about his lack of recognizing the insignificance of minor misbehaviours, such as putting feet on the table. She concluded the inappropriateness of his decision of three days of silence between himself and SK.D. She observed that K.D. had a tendency to instill guilt in the children and belittle the children, all of which she collectively described as emotionally abuse behaviour.
[438] She went on to say that rather than recognizing that as a flaw, K.D. used the children’s good behaviour as evidence of his excellent parenting skills.
[439] Regarding his relationship with M.B., Dr. Harris described K.D. as not having a good understanding “of abusive dynamics in his relationship with M.B.” She spoke of his lack of awareness in his statements and actions toward M.B., humiliating her and debilitating her parenting, no doubt sometimes witnessed by the children.
[440] Dr. Harris stated K.D. continues to speak negatively about M.B. and seems to place the blame of the children’s apprehension on her.
[441] I find that K.D.’s treatment of M.B., which included both physical and emotional abuse, is integrally connected with his role as a parent. On several occasions he used physical discipline on the children and on other occasions he emotionally humiliated them.
[442] And yet, throughout his testimony, he denied that certain incidences of physical discipline against the children did not, in fact, occur.
[443] He denied hitting JA.D. in the head and pushing him into the water, contrary to the observations by at least two of his children.
[444] He has denied discussing court proceedings with the children. Although, it was K.D. who encouraged JO.D. and SK.D. to actually apply to the court for the purpose of participating in the proceedings, only to be prevented from doing so by my ruling.
[445] As well, he has shown disdain for authority, not only in his refusal to meet with the workers when asked, but by refusing to let the workers into his home, terminating counselling sessions with Mr. Ricketts, and being satisfied with the limited results he received from the Caring Dad’s program.
[446] He denied saying he would never change his parenting style contrary to Dr. Harris’ observation that, in fact, he did not make such a denial.
[447] I find he has subjected the children to emotional harm in the past. I am reminded of the incident where he made fun of SK.D.’s body shape, humiliating her to the point where she began wearing loose clothing during her visits with K.D. I am reminded of his threats to cut SU.D.’s hair, which caused her significant upset and fear. I am reminded of his use of putting the children in the corner when they were disobedient, pointing out to Dr. Harris, in almost boastful fashion, the grease stains on the walls from the children sitting there. However, I find he failed to recognize the humiliation experienced by the two oldest children and failed to be sensitive to the negative impact resulting from the misuse of this form of discipline.
[448] Although these incidents have taken place in the past, I am also reminded of Dr. Harris’ opinion that by the third assessment, she found K.D. to not have dramatically changed his parenting style.
[449] The fact that they have been described as often being well behaved during their visits, I find is less about their respect for him and more about their fear of reprisal for what he may perceive to be less than proper behaviour.
[450] Moreover, regarding the daily responsibilities of K.D. to the children, I find it would be difficult for him to meet their instrumental needs. He has only a part-time job and has no residence.
[451] As well, I am not convinced that he has community support. Although he mentioned in his testimony that he had five aunts and three uncles and friends to help him raise the children, none of them came to court, none of them testified, and none of them came forward to offer themselves as kin caregivers to be assessed by the Society.
[452] Moreover, what gives me grave concern, and I find is of significant importance, is my finding that K.D. would not likely encourage a meaningful relationship between M.B. and the children. I have come to this conclusion for a number of reasons.
[453] In his own proposed order, he suggested that M.B. have access to the children a minimum of two hours per week for 12 months, but made no provision for increased access or any future access within the community.
[454] Second, in his interview with Mr. Ricketts, he stated about M.B. that “there is a special place in hell for people like her”. And although K.D. has not seen Mr. Ricketts since 2016, I find there is nothing in his behaviour since then that would convince me he no longer entertains that thought.
[455] Then there was the suggestion that the children call M.B. ‘M[…]’ rather than ‘Mother’ or ‘Mom’.
[456] Moreover, there were K.D.’s actions on the bus of taking M.B.’s picture and placing it on Facebook with the denigrating comment that she will never be a fit mother.
[457] In addition, there is the fact that a time of trial, JO.D. missed two of his three visits with his mother, for which I find to be skeptical reasons.
[458] As well, I am reminded of Dr. Harris’ testimony wherein she disagreed with K.D.’s suggestion that M.B. should have two hours of access with the children once per week for a year. Such limited access, in Dr. Harris’ opinion, with which I agree, would be very difficult for M.B. to maintain a positive relationship with her children simply because they would spending the majority of their time with K.D. In Dr. Harris’ opinion, it would be in the children’s best interest to maximize the time they spend with M.B., provided it is safe.
[459] As for the children themselves, presently they are in foster homes, have stability in their lives, and appear to be thriving personally, socially and academically.
[460] In my determination of what I consider to be an appropriate order, I have considered, firstly, circumstances under Section 37(3), which refers to the best interest of the child.
[461] Specifically, I have considered paragraph’s 11 and 12 of Section 37 (3) which read as follows:
11.) The risk the child may suffer harm through removed from, kept away from, returned to, or allowed to remain the care of the parent.
12.) The degree of risk, if any, that justify the finding that the child is in need of protection.
[462] I have also considered the court’s options under Section 57 of the Child and Family Services Act, which outlines the powers of the court. In the case before me, I find there is neither a less disruptive alternative, nor is there a suitable community placement.
[463] I have also considered Section 65 and Section 70 of the same Act, and the timelines within those sections which impact on the options available to this court.
[464] Accordingly, based on my assessment of the evidence, I find the children, other than JO.D. continue to remain in need of protection, and that if returned to the care of K.D., they are likely to suffer either physical or emotional harm, or both.
[465] Therefore, the four children, other than JO.D., shall be made wards of the Crown and be placed in the care of the Children’s Aid Society with access.
[466] Regarding the terms of access for the four children, I have considered and endorsed with some changes, the proposed order filed by the Children’s Aid Society, which includes terms of access to both M.B. and K.D. I am in agreement with the terms of access to the children by M.B., but I intend to make some modifications to K.D.’s access.
[467] With regard to the child JO.D. who is currently in K.D.’s care, JO.D. shall remain in K.D.’s care with terms of supervision and access, again in accordance with the proposed order filed by the Society.
[468] Specifically, although I agree with paragraphs 9 (a) and 9 (b) of the proposed order, there will be the following additional sub paragraphs:
c) After a period of 4 months, if there are no new concerns, K.D.’s day access may be unsupervised for 8 hours on alternate Saturdays and Sundays.
d) K.D. may attend the children’s extracurricular activities if the request if made to the Society in advance.
e) K.D. may have telephone access to the children living with C.V. each Tuesday between 6:30 p.m. and 7:30 p.m.
f) K.D. is to have telephone access to the child living with S.G. on Thursdays between 6:30 p.m. and 7:30 p.m.
g) On each occasion, telephone calls are to be initiated by the children with the assistance of a foster parent, if necessary.
h) The length of the phone calls will be in accordance with the children’s wishes.
i) Any overnight access will be at the discretion of the Society.
[469] In conclusion, I may be spoken to with respect to any clarification of this order.
Mazza, J.
Released: October 31, 2017
CITATION: CAS v. M.B. & K.D., 2017 ONSC 6504
COURT FILE NO.: 1783/13
DATE: October 31, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicants
- and -
M.B. and K.D
Respondents
REASONS FOR JUDGMENT
Mazza, J.
Released: October 31, 2017