Court File and Parties

COURT FILE NO.: 17-R1001 DATE: May 16, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – JR and DB Respondents

COUNSEL: Tara MacDougall for the Applicant Kristin Robins for the Respondent JR No-one appearing for DB

HEARD: April 29 to May 3, 2019

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — 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.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.

JUSTICE SALLY GOMERY

[1] In this status review application, the Children’s Aid Society of Ottawa (the “Society”) seeks an order for its extended care of the respondents’ child ABR, born […], 2017, under section 101(1) of the Child, Youth and Family Services Act (the “Act”).

OVERVIEW

[2] ABR is almost two years old. She has been in foster care since she was three months old. She had been initially placed in her mother JR’s custody and care in early August 2017, subject to supervision. She was apprehended and placed in the Society’s interim care on August 25, 2017. On December 4, 2017, the Court found that ABR was in need of protection and she became a ward of the Society for a four month term. The Society filed this application in March 2018.

[3] ABR’s father did not respond to this application and was noted in default.

[4] Given ABR’s age and the amount of time she has already been in foster care, there are only two possible outcomes to this case. I must either order that ABR be placed in the Society’s extended care with a view to her being put up for adoption, or she must be returned to JR’s care and custody. My primary task is to determine which outcome is in ABR’s best interest.

[5] JR indisputably loves ABR. Every Society worker who has seen them together agrees that she has good parenting skills when she is with her. JR makes sure that ABR is well fed, clothed and cared for. She plays with her, engages with her and gives her guidance. ABR is happy to see her mother and calls her “mama”. They have an obvious bond.

[6] The Society’s involvement with the family stems from the danger presented by DB and the violent verbal and physical fights between DB and JR. ABR was taken into the Society’s care because DB was found in JR’s apartment with her, even though his access with ABR was supposed to be supervised by a third party.

[7] JR and DB have had a toxic, on-again, off-again relationship since early 2016. The Ottawa police have been repeatedly called to intervene in their verbal and physical fights. DB has assaulted and threatened JR. She testified at trial that he had hurt her so many times that she could not remember them all.

[8] Despite this, JR and DB continued to live together sporadically until July 2018. She moved to a new apartment in early August 2018 and promised the Society that the relationship was over. But there were signs that JR and DB remained involved. JR missed a series of access visits in late October 2018 and had an unexplained black eye. DB was found in her apartment in early December, even though he was not supposed to know where she lived or have the means to get in. On December 31, 2018, a few days after DB was released from jail, JR agreed to celebrate New Year’s Eve with him, in breach of a court order and JR’s undertaking to the Society that she would report any attempted contact to the police. At the end of the evening, he beat her up and threatened to kill her.

[9] In early January, JR moved into a women’s shelter and told the owner of her apartment building that DB did not have her permission to stay there. In February, the Society allowed her to have ABR for days at a time and overnight. It told JR that, if these visits went well, it was open to returning ABR to her care on a full-time basis rather than seeking an extended care order. The Society warned JR, however, that she could not have contact with DB, because of the risk he presented to her daughter. It was not aware, at that point, about JR’s contact with DB a few weeks earlier.

[10] On March 15, 2019, JR was observed by a Society worker walking around the neighbourhood with DB. When confronted about this, JR initially claimed that DB had been misidentified, then eventually admitted that she had been with him. The Society decided it could no longer support ABR’s return to JR.

[11] The Society argues that JR has not shown that she will protect ABR from the risk arising from her relationship with DB. Over the past twenty months, she has missed many access visits due to her relationship with DB. She has also missed most of her counselling sessions with her Violence Against Women (VAW) counsellor and has failed to complete programs that would help her break all contact with DB. Although she has had the support from a network of people, JR has not been honest with them about her ongoing contact with DB, or meaningfully sought help to avoid it. By agreeing to meet with DB on December 31, 2018 and again on March 15, 2019, the Society says that JR has shown that she has not conclusively decided to end her relationship with him.

[12] JR agrees that DB should not have any contact with ABR. She argues however that placing ABR up for adoption would not take into consideration the positive relationship and bond that she has with JR. She points out that she did not have ABR with her when she met with DB in March and says that, by prohibiting any contact with DB, the Society failed to recognize that victims of domestic violence often struggle to remove themselves from their abusers. JR contends that she has made great progress in resisting DB’s attempts to engage her and that, with adequate support from the Society, she could protect ABR from the risk DB presents to her.

ISSUES

[13] On this status review application, I must answer three questions:

a. Is ABR a First Nations, Inuk or Métis (FNIM) child? b. Does ABR continue to be in need of this court’s protection? c. If so, what order is in ABR’s best interests?

[14] Prior to addressing these issues, I will review the parties’ relevant history and make determinations of fact based on the evidence provided during the five-day status review hearing.

THE PARTIES’ HISTORY

[15] JR is 23 years old. Her mother, WB, and an older brother both live in Ottawa. The Society was involved in her family when JR was growing up due to her brother’s behavioural issues and her mother’s struggle with alcoholism. JR testified that her father also sexually abused her.

[16] JR receives income support from the Ontario Disability Support Program (ODSP). Since 2014, she has also received support services from Kate Muscat, a worker with Ottawa Carleton Living Skills. According to Muscat, JR has a learning disability. She also used an assistive hearing device during the status review hearing. JR is able to manage the activities of her daily life on her own, but Muscat assists her with budgeting, navigating ODSP and other government programs, and ensuring that she gets to medical, dental and other appointments.

JR’s relationship with DB prior to March 2017

[17] JR first met DB on New Year’s Eve 2015 at a party at a friend’s place. A few weeks later, they met up again and quickly fell into a relationship. JR testified that it was “pretty good at first”. They would party and get drunk together. The partying increased and they both started using drugs.

[18] DB and JR moved into an apartment together and he began to physically abuse JR, especially when he had been drinking or taking drugs. She stayed in the relationship despite this. JR could not say what made her want to stay.

[19] At trial, the Society produced reports from the Ottawa Police Service detailing calls involving DB. I accept the observations of police set out in these reports as accurate unless contradicted by other evidence that I find more reliable.

[20] Some of the police reports involve fights between DB and a previous partner with whom he had two children. Incidents involving DB and JR began in May 2016, when police responded to the first of many noise complaints at their residence. JR had discovered DB having sex with another woman, apparently in retaliation for her infidelity. This resulted in a screaming argument. When the police arrived, however, JR begged them not to take DB away. This pattern repeated itself in other reports.

[21] Later that same day, the police were called again by WB, JR’s mother, after JR arrived at her apartment and passed out. She was taken to hospital by ambulance because she had taken drugs and was threatening to kill herself.

[22] There were six further police reports in response to altercations between DB and JR in June, August, November and December 2016. As a police officer noted in one of these reports, they “were both very dramatic with each other and go from yelling “I love you” to each other and seconds later screaming “fuck you” at each other. Both lack the ability to properly communicate their thoughts and feelings with each other and appear to be using the police as an intervention tool to make the other listen to what they have to say.”

[23] JR admits that, when dealing with the police, she sometimes lied about what had occurred. On June 30, 2016, for example, when a bus driver called to report that she had attempted to commit suicide by jumping off a bridge, she told police that the driver had misconstrued her actions. At trial, she admitted that she had in fact tried to kill herself after DB said he wanted to break up with her on her birthday. In August 2016, DB suspected that JR had been unfaithful and attempted to hang himself in a park. JR tried to prevent him from doing this. A passerby called the police. When the police arrived, DB said he had been mugged or had had a seizure. JR testified that she loved him and so went along with “his stupid story”.

[24] During her testimony, JR also admitted that she had either lied to or not been fully frank with various other people, mostly in respect to her dealings with DB. This history affects my appreciation of her evidence. I will have more to say about this later.

[25] In October 2016, JR learned that she was pregnant. She said that DB’s physical abuse became worse during her pregnancy and there were incidents that she did not report to the police.

March 1 to August 30, 2017

[26] On March 1, 2017, police were called in response to a reported assault at JR’s apartment. JR was at this point six months pregnant. In her statement to police, JR said that DB had grabbed her by the hair and dragged her to the floor from the couch, hit her, grabbed her by her upper and lower arms and slapped her across the mouth. She stated that DB had repeatedly accused her of having sex with his step-father. According to the police report: “When they first met, he would throw her around. However starting August 2016, he began hitting her. He punched her in the face in August 2016.” JR told police that she had not reported any of these earlier occurrences to the police as she was scared of what DB might do. She said that, during the assault, DB had threatened to hurt her family and to have people waiting outside her apartment to hurt her, and also to kill himself.

[27] Ottawa Community Housing (OCH), the public housing agency that owns the building where JR was living, changed the lock on her apartment door while the police were there. DB was charged with assault, drug possession, and failure to comply with conditions of an earlier judicial release. An officer told JR to call 911 if DB showed up again at her apartment in the future.

[28] JR did call the police back to her apartment nine days later to report a further assault. When the police arrived, they found DB there again. JR said that they had been assaulted by four men who had stormed into the apartment after an earlier confrontation between one of them and DB. DB was charged with breaching the terms of a recognizance he had signed not to attend at JR’s apartment.

[29] At trial, JR was asked how it was that she let DB in her apartment on March 10, when he had assaulted her a week earlier. JR said that he told her that he never intended to hurt her and asked her to help him get out of charges that had been laid as a result of the March 1 incident. This is an example of how DB is able to manipulate JR.

[30] At trial, I heard testimony from Michele Thorn, a child protection worker with the Society who was assigned to do a pre-natal assessment of JR and continued to deal with the family for two months after ABR’s birth. Like all of the Society’s workers who dealt with JR, DB and ABR, Thorn refreshed her memory from notes she took at the time. I am satisfied that she recounted what she observed without exaggeration or bias. Where her testimony conflicted with that of JR, I prefer Thorn’s testimony.

[31] The Society became aware of JR’s pregnancy and the assault charges against DB in late March 2017. The Society had been involved with DB’s children with his former partner. Thorn sent a letter to JR, who phoned her in response and agreed to a meeting.

[32] On April 27, 2017, Thorn met with JR and DB. Kate Muscat, JR’s support worker, also attended this meeting. Thorn talked to JR and DB as a couple about what they were doing in preparation for their baby’s birth and what support they might get from public agencies. She then met with each of them separately. Thorn asked JR about the incidents involving police in early March. JR denied that DB had assaulted her on either occasion, even though this contradicted what she had told police on March 1. She did tell Thorn that she and DB argued more than the average couple, they yelled and screamed, and that their relationship was “rocky”.

[33] Thorn testified that she took it as a good sign that both JR and DB showed up for the pre-natal meeting, since the Society had no means to compel them to co-operate with her assessment prior to ABR’s birth. She was satisfied with their preparations for the baby. Even though JR denied any past assault by DB, Thorn thought she showed some insight with respect to her situation. At the meeting, both JR and DB signed consents for disclosure of reports from the Ottawa Police Services and Ottawa Public Health.

[34] On […], 2017, JR gave birth to ABR at a local hospital. ABR was a healthy baby girl with no serious health concerns. Drug screens were negative.

[35] Thorn visited JR and ABR in the hospital on May 15, 2017, just before they were discharged. She had by this time received a copy of the police reports involving DB. Although she did not share all of the information in these reports with JR, she expressed concern to her about DB’s history, and told JR that he could not spend time with ABR unsupervised. JR agreed that her mother or aunt would supervise any visits by DB.

[36] On May 17, Thorn visited JR’s apartment. Although DB was prohibited from contact with JR further to the terms of his March recognizance, he was present for this visit with JR’s consent. On June 2, Thorn visited JR and ABR at the residence of DB’s mother, TB. DB was again present and remained after Thorn left, since TB was there to supervise. JR told Thorn that DB was back on medication and wanted regular visits with ABR.

[37] In the first few weeks after ABR was born, Thorn thought she was doing well. During her visits, she saw that JR had adequate baby supplies and both she and DB cared for her appropriately. She had been seen by a public health nurse and paediatrician. Thorn spoke with Muscat, who was providing JR with ongoing support. She also reported no serious concerns.

[38] On June 19, JR called the police to report that DB was in her apartment and had assaulted her. JR had let DB in earlier that day, even though her aunt had not arrived to supervise his access to ABR. She had asked DB to leave but he refused and pushed her down, covering her mouth to prevent her from screaming. When he fell asleep, she went to a neighbour’s apartment and phoned police. She thought that DB had been up all night taking drugs.

[39] JR testified that the June 19 incident was “a big wake up call”, but she nonetheless was not willing to end things with DB. She told police that they were trying to fix their relationship. At trial, she explained that DB was not just her partner now but the father of her child. She also stated that he was very different from her father, who had sexually abused her.

[40] Thorn was contacted by the Ottawa police with respect to June 19 incident and met with JR alone. JR admitted to Thorn that DB had physically abused her during pregnancy and threatened to hurt her if she told police. She confirmed the June 19 assault, although she still denied that DB had assaulted her in March 2017. JR wanted Thorn’s support for a housing transfer, which Thorn agreed to provide. Thorn also suggested that JR get counselling with respect to domestic violence.

[41] On July 7, a neighbour called Thorn to advise that DB was present again in JR’s apartment. Thorn went to the apartment accompanied by police officers. JR denied that DB was there but police found him hiding in a closet in the bedroom. Thorn testified that JR screamed at her to get out of her house. She initially denied that DB had been there overnight, but then admitted she had texted him the night before to get help with the baby. DB was arrested.

[42] Thorn told JR that the Society would seek a formal supervision order. In the meantime, she again told JR that DB could not have any unsupervised access to ABR.

[43] On July 11, 2017, Thorn met with JR again before transferring the Society’s file to Kristin Moir, another case protection worker at the Society. JR told Thorn that she had blocked DB from her social media accounts and did not want anything more to do with him. According to Thorn, however, she was vague about her future intentions. She recanted from her earlier statement that DB had assaulted her during her pregnancy, now saying that she had attacked him.

[44] Moir was the child protection worker involved in the family after July 2017, except for periods when she was on vacation or leave. She testified at length, using her contemporaneous notes to refresh her memory as needed. Moir was clearly familiar with the family’s history and tried to be even-handed in her account, acknowledging when she did not recall an event or could not be sure of certain details. I find Moir’s testimony to be reliable. Where her testimony conflicted with that of JR, I prefer her evidence.

[45] Moir explained that she is an “ongoing worker”. Once an investigation by an intake worker like Thorn has given rise to concerns, she works with the family over the long-term. In ABR’s case, the Society’s concerns stemmed from DB’s violent history, JR’s relationship with him and the risk this presented to his daughter.

[46] On July 19, 2017, the police returned to JR’s apartment in response to a neighbour’s call about a domestic dispute. When the officer arrived, she found DB there with JR. They denied having an argument and produced a statement from JR revoking the no-contact order that had been imposed in March following his conditional release on the assault charge.

[47] On July 20, Moir left a voicemail for JR about the call she had received from the police about this incident. She also spoke with DB, telling him that he could not go to JR’s apartment any more as the Society would only permit him to spend time with ABR under its direct supervision.

[48] A few days later, Moir had still not received any response to her voicemail to JR. She left her another message warning her that, if she did not comply with the Society’s requirement that DB’s access must be supervised, the Society might apprehend ABR. This prompted a call from JR, who again denied that she and DB had an argument on July 19. She nonetheless acknowledged the Society’s conditions for DB’s access.

[49] On August 8, 2017, the Society obtained a court order placing ABR in the temporary care and custody of JR, subject to supervision by the Society. JR and DB were present at the court hearing when the terms of the order were read. Further to the order, JR was prohibited from permitting DB to have access to ABR unless approved in advance by the Society, and prohibited from residing with JR and ABR. He was given a minimum of two access visits a week. JR was required, among other things, to participate in counselling to address mental health issues and domestic violence, and follow all recommendations. DB was likewise required to participate in counselling with respect to mental health, anger management, substance abuse and domestic violence and to follow all recommendations. Both JR and DB were also required to complete a parenting program.

[50] Moir testified that she explained all of these conditions to JR. She also set them out in an email to JR on August 23.

[51] At this court appearance, Danielle Swim, a child protection worker who attended with Moir, observed that ABR was alert and smiling. Both parents were affectionate with her and attentive to her needs during the hearing. JR and DB told Swim that they loved one another and wanted to be together. They felt they had dealt with their past issues. DB said that he would do whatever the Society wanted so that they could be together as a family with ABR.

[52] On August 17, two Society workers, Dayna Balaban and Michael Kearney, attended JR’s apartment unannounced. DB was not found in JR’s apartment and they reported no concerns about her care of ABR.

[53] On August 25, Moir and Kearney arranged for another unannounced visit, with the police, following a call from one of JR’s neighbours. They found DB in the apartment with ABR and JR. JR told Moir that DB had only arrived ten minutes earlier. Moir knew that this was untrue as she had been outside the apartment building for the previous hour, waiting for the police to arrive. As well, there was men’s clothing and medication in DB’s name in the apartment. Moir told JR that DB’s presence at the apartment was contrary to conditions of the August 8 court order and apprehended ABR.

August 26, 2017 to July 31, 2018

[54] When ABR was apprehended on August 25, 2017, JR’s aunt JJ indicated that she would like ABR placed with her. JR seemed to support this at first. On August 28, 2017, however, she told Moir that she preferred that ABR be placed in foster care. At trial, JR testified that she changed her mind about a possible kinship placement with JJ because her aunt had said disparaging things about her. Another reason for JR’s objection is that she did not want to discontinue her relationship with DB, and hoped to convince the Society to return ABR to their joint care and custody.

[55] Moir testified that, despite JR’s change of heart, she referred ABR’s potential placement with her aunt to the Society’s kinship department. JJ did not pass the assessment.

[56] On August 29, Moir met with JR and DB following a supervised access visit. DB said that the domestic assault charges against him had been dropped, and that he and JR wanted to present a plan together and live together as a family. Moir again recommended VAW counselling for JR and couples counselling for both of them. Moir testified that the Society was willing to work with JR and DB at that point. I accept her evidence.

[57] On August 30, 2017, the Society obtained an order placing ABR in the temporary care and custody of the Society, with access at least three times a week by JR and twice a week for DB, which access could be exercised jointly.

[58] Allysun Lowe, Jennifer Campbell and André Pitre are Child and Youth Counsellors (CYCs) with the Society who supervised access visits by JR and DB at various times between August 31, 2017 and the date of trial. They took detailed notes at the time which they used to refresh their memory as needed or, in Lowe’s case, to swear an affidavit on which she was cross-examined. They were credible witnesses and I have no basis to conclude that their evidence was inaccurate or unreliable. Observations of access visits by three other CYCs, Erin Henry, Leili Amirdad and Tarragh Pugh, were set out in the parties’ agreed statement of facts.

[59] In the first few months after ABR’s apprehension, JR and DB continued to pursue a joint plan to regain care and custody of ABR. JR attended most access visits on her own, with DB accompanying her only occasionally. During these visits, JR gave her daughter affectionate and appropriate care, feeding her, changing her diaper, and engaging with her. She sometimes asked the CYCs for guidance and accepted their suggestions about issues with ABR. The counsellor who observed these visits had no concerns about how she interacted with ABR. But JR also cancelled or missed many access visits with ABR during this period.

[60] JR testified that, after ABR’s apprehension, her relationship with DB was “a bit better”. He saw how depressed she was and was willing to do anything to make her happy. JR said that this lasted about a month. The stress of the situation then started to get to DB and he started using drugs again. He also began to abuse JR physically again.

[61] Based on the observations of Lowe and Campbell during this period, I conclude that JR has exaggerated the length of time that things got better. I find that DB began to abuse her again within a week of ABR’s apprehension. He hit her and prevented her from going out without him. The record of her physical appearance during this period, her missed visits with ABR, and her statements to the CYCs, bear this out.

[62] On September 5, 2017, DB called Lowe to say that JR was sick, so could not attend a visit that day. The next day, when JR visited ABR alone, she had a large oval bruise on her right lower jaw. She told Lowe that she had been bitten by her godson. Lowe reminded her that, according to DB, JR had been sick the previous day. JR then mentioned menstrual cramps and vomiting.

[63] During this same visit, JR told Lowe that the police had come to her apartment the night before in response to a call by a neighbour but there was “nothing happening”. She acknowledged however that DB had been roughhousing with her and she had said “Ow, you’re hurting me”. She also testified that DB controlled her movements when she was with him, and did not want her to go out without him because he suspected she was unfaithful.

[64] I do not believe JR’s statement to Lowe about why she missed the visit on September 5, or how she got the bruise on her jaw observed the next day. Her account of being bitten by a toddler hard enough to leave a bruise is implausible. In my view, her excuse of illness was fabricated or at the very least embellished to justify JR’s missed access visit. I conclude that she missed the visit due to DB’s behaviour, and that she lied to Lowe and to the police about what prompted her to yell so loudly that a neighbour called the police.

[65] I am not surprised that JR attempted to hide DB’s abuse. Victims of domestic violence often do not disclose what is happening or actively try to mislead others about what is happening. JR testified that she feared DB. She also said that she loved him and wanted to keep her family together. If she disclosed his ongoing physical abuse, this would make it more difficult or impossible for them to regain custody of ABR. In light of this, JR’s misleading statements to the police and Society workers on this and other occasions are not unexpected and even understandable. What is more concerning, for the purpose of this proceeding, is that JR still today does not admit the extent of DB’s abuse.

[66] JR and DB cancelled their next joint visit set for September 11. They left a voicemail for Lowe a few minutes before the visit was set to begin saying that JR had been sick for several days and was “puking blood”. She said that she was going to the doctor. She cancelled another visit on September 20, saying that she was sick and going to the hospital. At the next access visit on September 22, DB mentioned JR’s visit earlier that week and Lowe reminded him that JR had cancelled it. DB then said that they were still awaiting test results.

[67] JR did not produce any medical records at the time, or at trial, that show that she missed access visits in September 2017 for medical reasons. At trial, JR stated that she sometimes coughs so hard that she spits up blood. She said that Lowe’s record of her voicemail saying that she was “puking blood” was inaccurate. I do not accept this, as there is no reason for Lowe to have mistranscribed JR’s message. She also provided the same reason, in the same words, for a missed appointment months later. I find that the reasons that JR gave for the missed visits were fabricated. A few missed access visits are not conclusive. But JR’s failure to acknowledge the full extent of the problems in her relationship with DB, even now, is again worrisome.

[68] On September 22, Moir sent Muscat an email listing the conditions in the Society’s revised plan of care for ABR. These included the earlier requirements that JR participate in VAW counselling on domestic violence and meet with Muscat regularly, as well as complete a parenting program and attend couples counselling with DB. DB was required to participate in a program for fathers with anger management issues, obtain counselling on domestic violence and other issues, and attend for drug and alcohol assessment.

[69] On September 29, Lowe supervised JR’s visit alone with her daughter. JR said that DB was not there because she had kicked him out. She told Lowe that the Society would not return ABR to her care if DB was living with her.

[70] On October 2, Moir met with JR at a court appearance. They discussed her relationship with DB as Moir was concerned about recent events. JR told her that DB had moved out on the advice of her lawyer and this made her “so sad”. She said that she still wanted to exercise access with ABR jointly with DB since they were still in a relationship but just not living together.

[71] JR told Moir that she had met with a counsellor, Sandy Pinhey, from the VAW program. According to the agreed statement of facts, she attended five sessions with Pinhey from October to December 2017. Topics discussed included safety planning, elements of a healthy relationship, warning signs for potential abuse, and employment or continuing education.

[72] During the rest of the month of October 2017, JR cancelled two more access visits due to stomach pain or stomach flu, and once due to confusion about her access schedule. She did not produce any medical notes to support this. During a visit with ABR on October 13, JR said she was very sore because she had been attacked by a dog. Erin Henry, the CYC who supervised the visit, observed that JR appeared to be in pain, was walking slowly, and asked for help carrying ABR up the stairs. Henry asked JR if she had seen a doctor and she said she had, but was only treated for surface scratches. Henry did not see any scratches or marks on JR.

[73] Both parents attended three positive access visits on October 23, 27 and 30. Henry noted that they were affectionate with ABR, played with her, read to her and cared for her by feeding her, changing her diaper and holding her. She had no concerns about their care.

[74] On October 30, JR, DB, ABR’s foster parents and Stephanie Beland met to discuss the Society’s outcome plan. Beland had taken over for Moir while she was on short-term leave. At the meeting, Beland noted that ABR was meeting all age appropriate milestones. Since JR and DB had not attended access visits consistently, a reduction of visits to twice a week was discussed. JR and DB insisted that they had been ill with food poisoning or flu, that they wanted to parent together and were willing to do programs together.

[75] At this meeting, JR and DB proposed that the Society would return ABR to JR, who would live with DB’s parents, while DB would move into JR’s apartment. After this meeting, Beland took steps for the Society to assess DB’s parents for a kinship placement but the assessment was not positive.

[76] JR attended access visits during this month consistently but DB only attended twice. JR continued to exhibit good parenting skills during these visits.

[77] Outside of these visits, JR and DB continued to fight and then get back together. During visits on November 3, November 17, 20 and 21, JR told counsellors that DB had left in the middle of the night taking all of his belongings with him, that that she was tired of making excuses for him and had called the police because he was threatening to commit suicide. She said that DB was jealous and was not taking steps to fix their relationship. Asked at trial to explain the reason for a fight that led the police to call at her apartment three days later, however, JR said that DB wanted to leave and she wanted him to stay. This is not only inconsistent with her earlier statements to counsellors that she wanted to end the relationship but also with the idea that DB was no longer living at her apartment. He was still there on December 1 because, when Campbell phoned JR to cancel an access visit, DB answered the phone.

[78] On December 1, Beland met with JR and Muscat in preparation for the upcoming court hearing on the Society’s application for an interim care order. JR advised that she wanted ABR back in her care and custody. She said that she would start to attend VAW counselling twice a week, continue to work with Muscat, and reinstate contact with Ottawa public health nurse. She also told Beland that she would not give DB any access to ABR without the Society’s consent.

[79] During this same conversation, however, JR acknowledged that DB’s presence in her life was an ongoing issue. She said that he continued to physically assault her and isolate her from her friends. She showed Beland bruises from being thrown across the room. Every time JR left the house, DB would accuse her of infidelity. He had taken money from her ODSP cheque. JR said that DB had been staying at her house, because he had no other place to go and she “felt bad that he didn’t have any other options”. JR wanted him out of the home but feared him and feared he would attempt suicide; every time she mentioned it, he would threaten to kill himself and on one occasion even tied a noose. JR also feared that DB’s friends, who had access to guns, might shoot at her windows. She wanted a housing transfer.

[80] Beland encouraged JR to gain independence from DB, and advised her that the Society would not return ABR to her care unless it was confident that DB was no longer around.

[81] On December 4, 2017, the court issued a four-month wardship order over ABR. JR was given at least three access visits a week under the Society’s supervision with a view to eventual home visits once this was assessed to be safe. DB was given a minimum of two access visits a week subject to reduction if he continued to miss visits. At this appearance, Beland advised JR and DB that they could no longer exercise access jointly. At trial, she explained that she thought that this might allow JR to visit ABR more often.

[82] DB did not attend any visits with ABR after the interim care order was issued. Once he missed two consecutive visits, he was told he would have to meet with Beland before any further visits were scheduled. A meeting was set up in early January but he did not attend or reschedule. As a result, he had not seen ABR for a scheduled access visit since early December 2017.

[83] JR testified that she realized that the interim care order would only last four months and that she had to do everything possible during this time to regain care and custody of ABR. But she had once again decided to try to make her relationship with DB work, after finding out that she was pregnant again. Even though she miscarried later that month, JR remained committed to the relationship because DB supported her emotionally through the loss of the pregnancy. On December 15, JR attended an access visit and told Henry that they were engaged. She said that she was angry that their access visits had been separated and she did not understand why as their joint visits with ABR had been “perfect”.

[84] The history of JR’s access visits for the next few months reflects her decision to continue her relationship with DB. In December, she cancelled a series of access visits stating she was ill. In January, February and March 2018, she attended a total of sixteen visits and either cancelled or did not attend fifteen. She also missed three plan of care meetings with Beland and ABR’s foster parents.

[85] The reason that JR most often provided for missing her visits was that she was sick or had to see a doctor, but she never produced any medical notes to support this. In a February 20 email to Moir, Muscat noted that JR had also cancelled every visit with her over the preceding three weeks. Muscat testified at trial that JR generally avoided her during periods when she was living with or spending time with DB.

[86] Police attended at JR’s appointment for noise complaints four times in February and March 2018. One of these complaints, like one of the reports in December 2017, appears to have been based on an unfounded complaint by a neighbour unhappy with JR. The other three all followed loud confrontations between DB and JR. The worst of these was on March 9, when police arrived in the late evening to find them yelling and screaming at each other in front of their apartment building. JR told the officer that DB got upset because she had been contacted on Facebook by an old boyfriend. The officer told JR that the police and OCH security were continually having to attend because of the couple’s fights and that she was in danger of losing her housing if they did not find another way to resolve their issues. Despite this, two days later, the police were called back to JR’s apartment after another loud argument.

[87] On March 22, JR met with Moir following an access visit. She apologized for cancelling earlier meetings, saying that she had been dealing with DB and feeling depressed and not seeing anyone. JR told Moir that they were no longer engaged after he ripped her engagement ring off her finger and threw it in the street. She also told Moir that police had been to her apartment twice over the last few weeks because of her arguments with DB. JR said that he accused her of lying about where she was during access visits and VAW counselling, and also accused her of being a prostitute. DB was not taking prescribed medication or seeing his doctor, and JR suspected he was using illegal drugs. She said that he had hit her and pushed her against the wall during Christmas holidays. JR said that life was “chaotic” with DB and said that she was now ready to choose ABR over DB.

[88] JR also told Moir, during this meeting, that DB had not been living with her for the past three months or been around over the last six weeks. Neither of these statements were true, based on the evidence at trial.

[89] Moir testified that she saw this meeting as a positive development. She encouraged JR to resume VAW counselling, work with Muscat, see a doctor about birth control and depression, and attend all access visits. She also suggested that JR apply for a housing transfer due to her conflicts with her neighbour. She pointed out that DB had not complied with conditions in the interim order or seen ABR since December 2017. She told JR that the Society was planning to apply for an extended care order. JR said she expected this. The Society did in fact file this application that same day.

[90] Despite filing the application, the Society decided at the end of March that JR’s visits would be partially instead of fully supervised. This meant that she could take ABR outside for walks and otherwise spend time alone with her during her access visits. Pitre warned JR that, if she had any contact with DB, any unsupervised access would be revoked.

[91] JR exercised access with ABR more consistently in April, missing only two visits. These visits went well and no concerns were noted. JR continued to exhibit good parenting skills when she was with her daughter.

[92] At the same time, JR continued her troubled relationship with DB. Police were called to JR’s apartment three times in April following complaints of noise caused by fights between JR and DB. On April 1, JR told the attending officer that DB was emotionally abusing her and had spit in her face. When the officer indicated that he would arrest DB for assault, JR changed her story. She and DB then “indicated that everything was fine and that their argument was over. They both wanted to stay with each other”. During another police call on April 27, the couple were arguing because DB was thinking of moving out.

[93] In May 2018, JR again only missed two access visits with ABR. Her visits went well and the CYC who observed them had no concerns about JR’s parenting skills.

[94] There are some signs that JR was trying once again to end her relationship with DB at this point. On May 7, during an access visit, JR told Campbell that DB had come to her apartment without her permission. She also thought he was using cocaine. She said that they were no longer together. On May 10, during another access visit, JR reported that DB had banged on her door at midnight and she had called building security.

[95] On May 15, Moir met JR and Muscat at JR’s apartment. Moir saw that her front door was broken and she had a black eye. JR blamed a neighbour for this, and said that she had completed a housing transfer. She had not seen her VAW counsellor recently but planned to do so the next day, and was staying in regular contact with Muscat. She told Moir that she was seeing a new guy and that her relationship with DB was “really over this time”, even though he had been at the apartment just a few days earlier. JR acknowledged that DB had been mentally, physically and emotionally abusive towards her. Moir advised her that, when she moved, she could not her new address to DB.

[96] In June 2018, JR again attended all but two access visits with ABR and took further steps to keep DB away. On June 14, JR told Pitre that DB was in jail because he had showed up drunk and under the influence of drugs, had kicked in her door and held her hostage. Police charged him with assault and drug possession. When DB was released on June 15, he was subject to a new no-contact order.

[97] In an updated plan of care filed with the court on June 21, the Society indicated that it would consider amending its application for an extended care order if JR exercised access to ABR on a more regular basis, demonstrated that she was able to avoid exposing ABR to domestic violence, developed and followed a safety plan with the Society, got VAW counselling, met regularly with Muscat and completed a self-esteem course. At a court appearance that same day, Moir told JR that ABR would not be returned to JR’s current apartment due to DB’s ongoing presence there and conflicts with her neighbour. If however she ceased to have contact with DB, the Society would consider returning care and custody to her.

[98] JR testified that, when she had this discussion on June 21, DB was still living in her apartment. She immediately phoned him and told him to leave, and he did so. According to JR, this was effectively the end of their relationship.

[99] Based on the other evidence at trial, however, I cannot conclude that the relationship ended in June 2018 as JR told Moir at the time and again when testifying at trial.

[100] JR’s testimony about DB’s presence in her apartment on June 21 contradicts what she repeatedly told Society counsellors during access visits in March and May about having already ended the relationship. DB’s presence at her apartment on June 21 also breached the terms of the new no-contact order. A further incident in mid-June likewise shows that JR continued to tolerate and even encourage an ongoing relationship with DB.

[101] On June 15, 2018, Campbell, a counsellor who had supervised access visits with ABR, encountered JR and DB at Glow Fair, a local street festival. She testified that they were holding hands. JR greeted Campbell. Campbell saw them later on that same evening being affectionate with one another while watching a concert, holding hands and embracing each other.

[102] Campbell told Moir about what she had observed at Glow Fair. When Moir spoke to JR about it, she claimed that Campbell was lying, that DB had been harassing her and she had not been with him voluntarily. Moir told her that, if DB attempted to contact her again, she should report this to the police. She and Muscat also encouraged JR to report DB’s alleged harassment to the police.

[103] Muscat testified at trial that JR seemed reluctant to report the Glow Fair incident to police. She finally did so, eleven days later, on June 26, 2018. According to the police report, JR was in line to get into the festival when she noticed DB standing in line behind her. She ignored him and told him that he had to stay away from her, as required in the no-contact order. He nevertheless continued to follow her. When he persisted, JR reported his conduct to a police officer on site but did not get the officer’s name or know what he had done about her complaint.

[104] The officer who investigated JR’s June 26 report contacted her two weeks later to get further details. JR informed him that she was not willing to provide a formal statement or participate in any investigation of her complaint. In these circumstances, the officer concluded that there was no point in pressing charges.

[105] At trial, JR admitted that she lied to Moir and to police about the Glow Fair incident, because she panicked after being seen by Campbell. She acknowledged that she remained willingly with DB after bumping into him at the festival. But she denied that she was holding hands with him or that he had his arms around her, as Campbell reported.

[106] I prefer Campbell’s evidence with respect to what occurred. She had no reason to misstate what she had seen. JR admittedly lied to Moir, to Muscat and to the police by inventing a story about how DB had stalked and harassed her to the point where she reported his actions to a police officer on site at the festival. In these circumstances, I cannot accept that she was telling the truth at trial when she denied holding hands and embracing DB.

[107] As I have already mentioned, it is not surprising that JR struggled with ending her relationship with DB or that she was not always frank with the Society. Victims of domestic violence often make excuses for their abusers and try to hide what is happening. What is more concerning is that, in testifying at trial, JR was still not ready to accept responsibility for her own actions and she was still not truthful about what occurred.

[108] In July 2018, JR’s attendance at access visits once again became inconsistent. She attended eight visits and cancelled six others. The missed visits on July 9 and 10 seem to have been genuinely due to illness. But JR’s excuses for the other missed visits are not credible.

[109] JR had a violent interaction with DB in early July. She testified that, on July 4, DB threatened her, grabbed her and pushed her to the ground when they ran into each other in the local neighbourhood. DB was apparently upset that JR had reported him to the police. JR reported the July 4 threats and assault to police and DB was taken back into custody.

[110] On July 16, JR cancelled an access visit, saying she had to meet with a detective about the charges against DB. There is no police report of any such meeting and no evidence of any statement given to police on this date. In fact, on the very next day, JR told the officer investigating her Glow Fair complaint that she was not willing to provide any statement. I find that the excuse given for the missed visit with ABR on July 16 was a fabrication. I infer that DB pressured her, verbally or physically, to recant from her complaint and this is why she missed the July 16 access visit.

[111] JR cancelled further visits on July 20, 23 and 24, saying she was sick and had to go to the hospital. In cancelling the visit on July 20, she said she had bronchitis. On July 23, she said that she was bleeding excessively and later told him she thought she might have an ovarian cyst. On July 27, when Moir asked JR for a medical note with respect to the missed access visits, JR told her that she had spilled juice on them, so would have to get new copies. She again mentioned a possible ovarian cyst then, when reminded that she had claimed to have bronchitis, said she had had both.

[112] JR’s changing story about her medical complaints, and her justification for not having a medical record, are implausible. In cross-examination, she said that she went to the hospital on both July 23 and 24, but left without seeing a doctor each time. If this had in fact occurred, there would be a record of her attendance in the emergency room and she would have been able to produce that record for Moir and for the purpose of this trial.

[113] On July 30, 2018, JR moved into a new apartment. The Society considered this a critical step since JR said she would not provide DB with her new address.

August 1, 2018 to January 3, 2019

[114] During much of the period between August 1, 2018 and January 3, 2019, JR appeared to be in a position to focus on regaining care and custody of ABR. She testified at trial that her life became less stressful because she did not have to “worry about being beaten up every day”, and she no longer had to deal with a neighbour who had been harassing her.

[115] When Moir visited JR’s new apartment on September 5, JR said she was taking steps to comply with the conditions set by the Society for ABR’s return to her care and custody. She told Moir that she had met with a group of survivors of sexual abuse and had enrolled in school for remaining high school credits, and was enjoying spending more time with her mother, who now lived across the street. She said that the police had come around looking for DB but denied that he had been around. JR admitted that she had missed most of her VAW counselling appointments in 2018 but said she was going to see her counsellor again soon.

[116] JR acknowledged some setbacks. She had been dropped from a self-esteem course after missing the first two classes. She was not in regular contact with Muscat. She said that she was depressed but was not taking anti-depressant medication that had been prescribed. As a result, she had missed access visits.

[117] Moir testified that she was nonetheless hopeful that JR was moving towards being in a position to regain care and custody of ABR. As a result, at around this time, the Society vacated the date it had set for the hearing of a summary judgment motion on its application for an extended care order.

[118] JR was generally consistent in exercising access to ABR after July 2018, and these visits continued to go very well. There were however two periods when she missed several access visits in a row for implausible or unsubstantiated reasons.

[119] In early August, JR cancelled four access visits. On August 3, she again claimed, as she had in September 2017, that she was going to the doctor for “puking blood”. She offered to provide a medical note but did not do so. She missed a visit on August 9, reporting that she had inexplicably woken up on her bathroom floor with a bump on her head. She cancelled another visit the next day, saying that she was waiting in a clinic to be seen by a doctor, so she could get a note about her missed visit the day before. No note was ever produced. As I have already noted, if JR sought medical attention for illness, there would be a record of this. I therefore cannot accept her evidence as to why she missed these visits.

[120] In late October and early November, 2018, JR again cancelled six access visits in a short span of time. On October 22, she said that she had fallen down the stairs at her mother’s residence and had to see a doctor. She cancelled another visit the next day, ostensibly on doctor’s advice. On October 24, she cancelled a scheduled home visit, saying she had to go out of town to visit grandparents. Moir conveyed concern that she had missed access visits and her parenting course. JR said she had been going through a lot and was going to speak to someone. But the very next day she cancelled another visit, citing pain caused by her fall and lack of sleep.

[121] During her next access visit on October 29, JR had the remains of a black eye and a mark on her cheek. She said that this was caused by her fall, although she had only mentioned sore ribs when talking about it before. At trial, JR stood by this story.

[122] On October 30, after JR cancelled a meeting with Moir that she had confirmed just a day earlier, Moir emailed Muscat to see if she had seen her recently. Muscat responded that she was also concerned and “There is definitely something happening but she won’t tell me.”

[123] On October 31, JR told Moir that she would not be home for a visit because she was going to see her father. She likewise told Muscat that she was going to see her father off at the airport. When Muscat offered to give her a lift, however, JR did not respond.

[124] On November 1 and November 2, JR again failed to show up for scheduled access visits with ABR or call to cancel them. Moir visited her apartment unannounced, but no one responded to her knock and she could hear no noise within the unit.

[125] When JR attended her next visit with ABR on November 6, Pitre asked her about the missed visits and whether DB was back in the picture. JR said that Muscat had been worried about the same thing. She also mentioned that she had refused to let the police into her apartment when they came looking for DB. JR said that she was having a hard time because her father left, and that she made some “stupid choices” but now ready to focus on ABR again.

[126] Moir did another unannounced home visit at JR’s apartment later the same day. JR did not answer her knock on the door. Moir tried calling her on her cell phone and could not hear it ringing in the apartment. JR returned her call a short time later and said that her cell phone was not working. She denied that she had any ongoing contact with DB. She said that she would not be able to complete the parenting course because she had already missed so many classes. She told Moir the same thing that she had told Pitre: she had missed access visits due to her father’s departure from the country. She added that she “wasn’t really motivated” to see ABR.

[127] In cross-examination, JR denied that she lied about why she missed access visits in late October and early November. I can place little weight on this denial. I have already mentioned other instances where JR was clearly not truthful or her evidence was implausible.

[128] JR’s pattern of behaviour during this time –missed access visits, avoidance of Muscat, unexplained absences from her residence and unsubstantiated medical excuses– is consistent with her behaviour when she was in a relationship with DB. Her mother had no recollection of JR falling down the stairs at her apartment house. JR’s facial injury was not consistent with a fall. Her account of how she was affected by her father’s departure was odd, since she never mentioned spending time with him. It is also odd that she would have refused Muscat’s offer to drive her to the airport, if in fact she was seeing him off. Finally, for reasons that I will set out shortly, I believe that JR shared her new address with DB at some point prior to December 2018.

[129] Taking all of this into account, I conclude that JR spent time with DB in late October and early November 2018, and that this was the reason for her behaviour and injuries at the time. I conclude that she lied to Moir and Muscat about what was happening at the time, and did not tell the truth when she testified about this period.

[130] After this episode, JR visited ABR consistently over the rest of the month of November. Her visits at this point were extended to last up to two and a half hours at a time and she was allowed to spend some time alone with ABR, without supervision, and go on short walks outside with her. The counsellors who observed the visits had no concerns. Overall she demonstrated good parenting skills.

[131] On December 3, during an access visit with ABR, JR got a call from DB from her apartment, to which he had somehow gained access. DB asked if he could spend the night there. JR refused and hung up. DB called again and JR threatened to call the police. DB told her that, if she did so, he would kill her when he got out on bail. After her access visit, JR told Pitre about these calls and he assisted her in contacting the police. She testified that she spent the night at her mother’s place and, the next day, returned to her apartment.

[132] The following day, JR attended a further access visit and a safety meeting with Moir, Pitre and Muscat. JR was encouraged to move into a women’s shelter. The Ottawa Police Services’ Partners Assault Unit attended and access visits were moved to the Society’s premises for JR’s safety.

[133] JR has at various times provided various explanations for how DB got into her apartment on December 3. She said that she left her home in a hurry that day to get to the access visit on time and failed to lock the door. Asked how DB knew where she lived, she speculated that he might have learned about it from another tenant in the building or through mutual friends, or he might have obtained her address from his mother, TB, either because she mentioned it accidentally during an evening of drinking or gave it to her for the purpose of a meeting in the fall of 2017.

[134] None of the possible explanations about how DB got JR’s new address account for how he knew that, on December 3, 2018, she would accidentally leave her front door unlocked.

[135] There is a further mystery. In January 2019, DB was again found in JR’s apartment even though she had left the front door locked when she moved into a women’s shelter. At trial, JR said that she found her keys in the apartment when she returned to it on December 4, and speculated that DB must have had a copy of them made when he was in her apartment on December 3, before police arrived and arrested him.

[136] To account for DB’s ability to get into her apartment in December and again in January, JR is asking me to accept a series of coincidences. First, DB somehow discovered her new address. Second, he came to her apartment on December 3, the one day that she accidentally left her front door unlocked, and found her house keys inside. Third, he had the foresight to go out to the local hardware store to make a copy of the keys before phoning her.

[137] I do not find this scenario plausible. I do not accept JR’s evidence that DB’s presence in her apartment on December 3 was unexpected or that he got in because she happened to leave her door unlocked that particular day. I infer that she shared her new address with him at some point after she moved and gave him a key, likely in late October when she was unaccountably absent for a series of access visits and had a black eye.

[138] After his arrest on December 3, DB stayed in detention until Christmas Eve. On December 20, JR told CYC Amirdad that she was stressed because DB could be released from jail soon, and she had received a call from DB’s lawyer asking if she would consent to seeing him, which JR had refused to do. JR had been staying with her friend LA, but had moved out after an argument. Muscat had encouraged JR to stay with her mother but DB knew her mother’s address. Amirdad expressed sympathy for JR’s situation and suggested she call the shelters every day in case a space opened up. Muscat testified that JR followed this advice.

[139] Despite this, when DB contacted JR a few days later to ask whether she would celebrate New Year’s Eve with him, she agreed. Prior to accepting his invitation, JR did not reach out to her mother, her friend LA, Muscat, Moir or her VAW counsellor for advice or support. She did not report his invitation to any of them or to the police, even though he was breaking the conditions of his release by contacting her and the possibility that he would contact her had been discussed at the December 4 safety meeting. She instead agreed to see DB, who had threatened to kill her a few weeks earlier and had just been released from jail as a result of her report to police. At trial, JR explained that she was lonely over the holidays, and that she and DB had traditionally spent New Year’s Eve together.

[140] The evening ended badly. JR testified that they had a few drinks and then, as DB prepared to drop her off at her apartment, she “said something stupid” and he “beat the shit out of her” and again threatened to kill her.

[141] JR cancelled visits with ABR on December 27 and 28, 2018 as well as on January 2, 2019, saying that she was sick. This series of cancelled visits suggests that she may have spent more time with DB than just December 31. She cancelled a fourth visit on January 3, 2019. During her next access visit on January 7, Amirdad noticed that JR had a black eye. JR told her that she had attempted to defend her friend on New Year’s Eve when her partner became physical and was hit. At trial, JR admitted that her explanation to Amirdad of how she got a black eye was not truthful.

January 4, 2019 to April 26, 2019

[142] On January 4, 2019, JR moved into a shelter for women fleeing violent relationships. This was a first stage shelter, where residents have rooms but share communal kitchen and living quarters. No men are permitted on site.

[143] JR’s access visits with ABR on January 7 and 9 were positive. When walking to the visit room, ABR said “mama” a few times. They were affectionate with each other and interacted well. When JR learned that DB had showed up at her apartment again, she told OCH staff that he did not have her permission to be there. As a result, the OCH called the police.

[144] On January 11, Moir learned from shelter staff that things were going well, and that they were open to access visits at the shelter. At a court appearance that day, the Society agreed to postpone the trial of its application for an extended care order. Moir testified that she hoped that, with all of the support and safety available at shelter, JR could start having ABR for home visits for a day at a time and then overnight. She stated that this was the Society’s final big effort to move this case in the direction of ABR’s re-integration into JR’s care and custody. She was not aware at the time that JR had spent time with DB less than two weeks earlier.

[145] On February 4, Moir met with JR at the shelter. She noted that visits were going well and told JR that she could have ABR three full days a week. If these visits went, ABR could eventually stay overnight at the shelter with her mother. JR was also given permission to go out in the community with ABR during day visits.

[146] During this meeting, Moir reminded JR that she could not meet up with DB and had to report any contact with him. JR told Moir that DB had in fact called and threatened her, and that she had reported this to his probation officer. (It is not clear to me if this was true, since no report of a call to DB’s probation officer was filed into evidence.) JR did not want to see her VAW counsellor Pinhey anymore, but was talking to Muscat daily and seeing her once a week. She talked to Moir about moving to a second stage shelter to have more privacy.

[147] Around this time, Moir and JR discussed the parenting course that JR had been ordered to complete. Moir told JR that the Society would not insist on this, because ABR’s re-integration seemed to be going well and no parenting issues had been identified. Moir testified that she also did not want to overwhelm JR.

[148] On February 23, JR contacted the police to report that DB had sent her several text messages in violation of his no-contact order. According to the police report on this incident, DB asked if he could meet up with her to pick up some belongings he needed for work. JR acknowledged that DB did have some clothing at her apartment, even though she had insisted to Moir that she had got rid of it all. At trial, JR did not present a plausible explanation for this. I infer that DB’s belongings were in the new apartment because he had spent time there, despite JR’s denial that this occurred.

[149] A few days later, JR moved to a second-stage women’s shelter, where she still resides. The shelter has sixteen units. Although there are communal areas and services, the women and children living in the shelter have greater independence.

[150] At trial, Patricia Smith, a family support worker at the shelter, described the services available to its residents and her interactions with JR. Services include a peer support group that meets every two weeks; a mother’s support group that provides a series of sessions over 10 weeks; and childcare services that run every morning or afternoon during the week.

[151] In addition to Smith, the shelter’s staff include a women’s advocate and a safety worker. Staff are not on site on weekends or every evening but, if a resident needs crisis counselling, they can call the first stage shelter, which can contact staff if necessary.

[152] Residents must participate in the shelter’s programs and pay rent. Smith testified that a resident would be asked to leave if she violated the shelter’s prohibition on men or violence. Beyond this, residents are largely free to come and go as they wish, and their activities off-site are not monitored.

[153] In theory, each woman who is admitted to the shelter can only stay a year, but the length of stay typically extends to an average of 18 months, to allow the resident to find safe, affordable housing. When a woman leaves, she is transitioned into the community with the help of the outreach worker.

[154] As a family support worker, Smith stated that her role is to meet with new residents when they arrive, to understand why they have come to the shelter and what they need by way of support. She then provides appropriate referrals. New residents in particular get advice about what to do if they encounter their abuser.

[155] Smith recalled that, during her intake meeting, she and JR discussed her need for a crib and daycare arrangements for JR as well as a safety plan.

[156] Moir visited JR at the new shelter on March 13, 2019. She reviewed the support that would be available when ABR began living with her again, such as local play groups and public health services. Moir reminded JR that, if DB tried to get in contact with her, she must phone the police immediately. A settlement conference was set for March 21, at which time the Society intended to propose that ABR be returned to JR’s care and custody subject to a supervision order.

[157] Two days later, JR and DB were seen together by Kearney, one of the Society’s child protection workers who had apprehended ABR in August 2017. Kearney initially saw JR and DB in a drugstore, then followed them while they walked around the neighbourhood, then back into the drugstore again. Kearney went into the drugstore and greeted JR, who did not immediately recognize him. DB then introduced himself, using his first name only. ABR was not with JR and DB.

[158] Kearney phoned Moir to report what he had seen. Moir in turn left a voicemail for JR telling her that her visit with ABR that weekend had been cancelled pending the Society’s decision about what to do. JR responded by claiming that Kearney was mistaken her companion as DB. She wrote: “I know more than one [person with the same first name as DB]. So I don’t think it’s fair that the worker just assumed it was … ABR’s dad. I would not jeopardize all the hard work I’ve put in getting her home especially a week before she was just about to be returned to me just to be with him. I know the consequences of what that might be. So I would not do that.”

[159] JR followed up on this by sending Muscat a photo of a friend dressed in the clothing that DB had been wearing, and asked her to intervene with Moir on her behalf. In an email to Moir on March 15, Muscat said that JR “swears that it is not him”. She told Moir that JR was “okay” but “annoyed and upset” that her visit with ABR was cancelled. Three days later, JR was still accusing Moir of unfairly cancelling her visits with ABR based on a case of mistaken identity.

[160] At a settlement conference on March 21, JR finally admitted that she had been with DB on March 15. She claimed that she had run into him by accident in the neighbourhood. At trial, she admitted that this was not true. She had agreed to meet with DB after he contacted her on Facebook and asked to see her. She thought he might have changed. She testified that, within a few minutes, she realized that he was no different than he had been in the past and that she had made a mistake. Despite this, when Kearney observed them over a fifteen to twenty minute period, JR was making no effort to end their encounter.

[161] Over the rest of March until the beginning of trial, JR had regular access visits with ABR under the supervision of the Society at the local Boys and Girls Club. She spoke regularly with her support worker Muscat, got counselling from her VAW counsellor and had two discussions with Smith, the family support worker at the shelter.

[162] At trial, JR described her decision to see DB on March 15 as “a stupid mistake” and said she no longer wishes to have any contact with him. She expressed regret that she has not been with her daughter for much of her life. In cross-examination, however, JR admitted telling Moir on March 21, 2019 that she still loves DB. She also admitted that, on April 25, 2019, she told Campbell that she could “only go so long” without talking to him.

[163] In further cross-examination on the last day of trial, JR was asked about a selfie and two messages that DB posted on his Facebook page the evening before. In the messages, DB referred to these proceedings and said that his further contact with ABR “depends on how tmr turns out”. Asked how he knew about the trial, JR speculated that perhaps she had been seen at the courthouse or he might have learned about them through mutual friends. She admitted that, during one of the lunch breaks during the trial, she went to the local shopping centre and bought a cap identical to the cap that DB was wearing in the selfie. She denied however that she was in contact with him or that she had given him the cap.

[164] I have already indicated that I do not find JR a credible witness. JR admitted that she had some communication with DB after she learned that they had been seen together on March 15. Although she testified that she no longer wished to be in a relationship with DB, she also said that she still loves him and cannot manage to avoid contact with him for any length of time. I do not accept her explanation of how DB knows about the proceedings or how he got a cap identical to one she purchased. In my view, she remains in contact with him.

The plans for ABR’s care proposed by the Society and JR

[165] The Society asks that I make an extended Society care order for ABR so that she could be adopted. Further to its proposed order, both ABR and JR could exercise access to each other, at the discretion of the Society.

[166] Kim-Kay Levesque, an adoption worker with the Society, testified about the adoption process. She noted that the Society cannot pursue any specific adoption placement for ABR until the court makes an order for extended care. She described how adoptive families are found and matched with children, and how they are assessed and vetted by the Society.

[167] Based on her review of ABR’s file and discussions about her profile with her colleagues, Levesque said that there are at least six families waiting to adopt who could meet her needs. Three of these families are of mixed race, like ABR, and one family already includes a child of mixed race. Moir testified that ABR’s current foster parents, who have been caring for her since she was apprehended, are not in a position to adopt her.

[168] Levesque said that the Society would only consider adoptive families who are willing to have some form of openness with JR. This could range from pictures and letters to face to face contact. Ongoing openness training is provided to adoptive parents. Levesque acknowledged, however, that she could not predict how much access JR might have to ABR once she is adopted. She said that adopted children usually see their birth parents only once or twice a year.

[169] JR seeks an order placing ABR in her care and custody, subject to a twelve month supervision order and other conditions. Further to the proposed conditions, JR would, among other things, meet regularly with a VAW counsellor, continue to meet regularly with Muscat, and follow a safety plan negotiated with the Society. She would not allow any contact between ABR and DB, would not leave her residence with ABR except for activities pre-approved by the Society and would immediately contact the police and the Society if DB were to approach her when ABR is present. JR would undertake not to disclose her address to DB or to anyone else who might share this information with him, and to be “open and honest with the Society about any potential safety issues that may arise, including any contact she has had with [DB] and/or with the police, such that meaningful support and safety planning can be provided”.

[170] At trial, JR described her proposed weekly schedule, should she get care and custody of ABR. This includes participation in local playgroups and visits with Muscat, WB and LA.

DETERMINATION OF ISSUES

(1) Is ABR an FNIM child?

[171] Under subsection 90(2)(b) of the Act, before determining if ABR is in need of protection, I must determine if she is a First Nations, Inuk or Métis (FNIM) child. The Society takes the position that she is not. Her mother JR takes no position on this issue.

[172] I begin by noting that, in the December 4, 2017 order, the Court found that ABR did not have Native Status. This finding was made under the previous Child and Family Services Act, and was not based on the full hearing record. I must therefore give this issue fresh consideration.

[173] According to an agreed statement of facts filed by the parties, DB’s mother, ABR’s paternal grandmother TB, described herself to a Society worker as “native” in October 2017. She initially said that her father, ABR’s great-grandfather, had some Algonquin heritage. When asked further about this some months later, TB said she might have either Algonquin or possibly Metis heritage. She said that there was no band involved. She did not know of any family members connected to any specific geographic area; her parents lived in Gatineau and so she speculated that her father’s indigenous heritage might be connected to that area. TB said that she had no official status, no band membership, and no involvement in any of the aboriginal community centres. She had obtained information about her indigenous heritage from her father, who had been adopted and is now deceased. When asked about any cultural practices, teaching or traditions that she followed, TB said no and laughed.

[174] A Society worker also asked JR and DB about their ancestry. DB’s father is Jamaican. DB said that he had Algonquin heritage but provided no further details. JR did not identify any indigenous heritage.

[175] Ontario Regulation 155/18 (the “Regulation”) sets out the circumstances in which a court can find that a child is an FNIM child. This includes cases where there is “information that demonstrates that … a relative or sibling of the child identifies as a First Nations, Inuk or Métis person” under section 1(c)(i) of the Regulation. The question here is whether the information provided by ABR’s grandmother TB meets this criterion.

[176] In Bruce Grey Child and Family Services v. ABR B.-C., 2018 ONSC 516 (“Bruce Grey CFS v. B.-C.”), Hardman J. provided a thoughtful analysis of subsection 90(2)(b) of the Act. Its purpose is the promotion of the best interests, protection and well-being of children, by helping to maintain and emphasize their possible connection with their FNIM heritage and with a particular cultural community. A child’s connection to an indigenous band or community is a factor that the court must take into consideration in determining their best interests under subsection 74(3) of the Act. Where a court finds that a child is an FNIM child, it must give notice of child protection proceedings under subsection 79(1) to the band or community to which the child belongs or identifies with, so that the band or community can take part in the proceedings if they wish.

[177] In Bruce Grey CFS v. B.-C., Hardman J. concluded that, to achieve the purposes of a FNIM finding, it must be grounded in evidence of membership or connection to a specific band or community. He wrote at para. 46:

It is important that the court have sufficient evidence of a connection of someone – the child, parent or named relative – to a particular band or identifiable community in order to make that statutory finding, identify that band or community as a party, ensure service to a designated representative and have the expectation that that band or community will have an interest in at least considering participating in the proceedings.

[178] In Children’s Aid Society of Algoma v. C.A., 2018 ONCJ 592 (“CAS Algoma v. C.A.”), Kukurin J. emphasized that the language of the regulation requires only “information that demonstrates” a connection between a child and a FNIM band or community. In his view, even an ambivalent or tenuous connection would meet this test. Kukurin J. chose to adopt this expansive approach in light of the new language in the Act. He also noted that: “If a child is identified as First Nations on information that is too tenuous or on a connection that is too ambiguous, the band or the First Nation still has the option of not participating actively in the case or with the child.” This of course presupposes that a specific band or community has been identified.

[179] In Catholic Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 76 (“CAS Toronto v. S.T.”), Sherr J. held that a lack of information about what specific band or community a child might be connected with did not preclude a finding that they are an FNIM child. He pointed out that, given the history of many indigenous peoples in Canada in the twentieth century, they may have incomplete or fractured memories of their connections. Even if notice cannot be provided of proceedings because a specific band or community has not been identified, a child’s indigenous heritage can still be taken into account in the best interests analysis.

[180] I agree that the language in the Regulation should be broadly interpreted to accomplish the purposes of the Act. I also agree that the history of indigenous peoples, and the wording of the Act, mandates flexibility in considering what evidence is required for a finding under subsection 90(2)(b), and that information that does not permit notice to be given to a particular band does not preclude an FNIM finding for the purpose of considering a child’s best interests. There must however be some information that would allow the court to do this. If there is no information about a connection that can be taken into account, in a meaningful way, when I assess ABR’s best interests, then no purpose is served by identifying her as an FNIM child.

[181] In CAS Toronto v. T.S., the child’s grandmother identified as Metis, saying she was 12.5% Metis from the Turtle Tribe or Clan; she had a status card; she said that her native tribe was called “Maite Native”; and she provided details about her great-great-grandfather’s personal history. In CAS Algoma v. C.A., the child’s father had stated that his grandfather was not only a status Indian and had an Indian Status card, but was also a member of the Batchewana band. In both of these cases, the courts recognized the children as FNIM children.

[182] TB’s father, ABR’s great-grandfather, may have had some indigenous ancestry. But we do not know whether that ancestry is Algonquin or Metis, what band or community he might have been linked to, or even the geographic area where ABR’s ancestors might have lived. No one has passed on any family history, folklore or traditions that could form part of ABR’s cultural identity. We have no information that would permit this court to give notice to a specific band or community or even direct any further investigation. More fundamentally, nothing has been provided that could factor meaningfully into a consideration of ABR’s best interests.

[183] In these circumstances, I conclude that the information provided is not sufficient to identify ABR as an FNIM child under the Act.

(2) Is ABR still in need of protection?

Legal framework

[184] Section 74 (2) of the Act set out the circumstances in which a child is in need of protection. Further to subsections (a) and (b), a child is in need of protection if he or she has suffered physical harm inflicted by the person having charge of the child, or caused by or resulting from that person’s failure to adequately protect the child, or there is a risk that they will suffer such physical harm. Under subsections (f) and (h), a child is also in need of protection if they have suffered serious emotional harm, or at risk of doing so, as a result of actions, a failure to act or a pattern of neglect on the part of the child’s parent or the person having charge of the child.

[185] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm: See: Children’s Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J No. 2154 (O.C.J), aff’d, [2005] O.J. No. 4718 (S.C.), aff’d 2007 ONCA 474, leave to appeal to S.C.C. refused [2007] S.C.C. No. 462). As noted in Children’s Aid Society of Sudbury & Manitoulin v. T.S., 2009 ONCJ 70 (“CAS Sudbury v. T.S.”) at para. 34, citing his earlier decision in Children’s Aid Society of Algoma v. P.(D.), 2006 ONCJ 170:

Even if there is no direct violence to children in a family context, the continuous exposure to domestic violence among the adults in the family unit may have an impact on the healthy emotional development of children. Aside from the emotional impact on children as they grow into adults, the exposure to domestic violence is often related to the violent and angry behaviour of children who end up in the youth criminal justice system and eventually as adults in the adult criminal justice system.

[186] Once a court has found a child in need of protection, a judge presiding over a status review hearing does not need to revisit this decision. The Society must however show, on a balance of probabilities, that it continues to be necessary to protect the child, such that the court should issue an order for that purpose: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165 (“CAS Toronto v. M.C.”), at paras. 35 to 37. The need for continued protection may arise from the circumstances that triggered the first order for protection, or from circumstances that have arisen since that time. The court must “continually evaluate the need for State intervention in order to ensure that the objectives of the Act are being met”; CAS Toronto v. M.C., at para. 35.

Analysis

[187] Through its orders in 2017, this court recognized that ABR was in need of protection. This need resulted from DB’s history of violence and the toxic relationship between DB and JR. Although she had not yet suffered any verifiable harm when she was apprehended, ABR was at risk of both physical and emotional harm if she remained with JR. She could be hurt during a physical fight between DB and JR, or as a result of her exposure to the ongoing, heated verbal conflicts between her parents. JR demonstrated that she could not be counted on to protect ABR from these risks, even after the court issued a supervision order. Although she was clearly and repeatedly told that she must not give DB unsupervised access to ABR, she continued to do so.

[188] For the purpose of this application, JR concedes that ABR remains in need of protection. While this admission is significant, the court has to come to its conclusion on this point.

[189] Since the apprehension, JR and DB have often fought so violently that the police have been called to intervene. Some of these fights involved physical assaults, while others were limited to yelling and screaming. JR recognizes that ABR would have been harmed by being exposed to such conflicts. She does not think that DB would purposely hurt ABR, but concedes that he could do so accidentally while being physically violent towards her. She also agrees that ABR would be emotionally harmed by witnessing the arguments between her parents, during which both have accused the other of infidelity and threatened to kill themselves.

[190] The risk that DB presents to ABR has not diminished over time. He has continued to engage in violent behaviour toward JR and the level of violence has increased. JR testified that the beating he gave her on December 31, 2018 was the worst one yet, and he threatened to kill her after making the same threat a few weeks earlier.

[191] DB has not taken any steps to deal with his anger management issue or to find ways to resolve his differences that does not involve violence. He has not complied with the conditions set by the court or undergone drug and alcohol assessments. JR tried to persuade him to participate in counselling but he refused. DB has repeatedly violated no-contact orders, assaulted and threatened JR. Recent Facebook posting aside, he has not shown even a minimal commitment to parent ABR, having failed to exercise access to her for almost eighteen months. He does not pose less of a risk to her now than he has in the past.

[192] The risk that DB presents is based not just on the threat of physical and emotional harm if he is in contact with her but the risk that JR will not take adequate steps to protect her daughter. This is because, over the twenty months since ABR was apprehended, JR has not taken the necessary steps or acquired the tools to break the cycle of violence that has kept her in an abusive relationship with DB.

[193] In Children’s Aid Society of Ottawa v. S.S., 2016 ONSC 4499 (“CAS v. S.S.”), my colleague Shelston J. conducted a status review with respect to the children of a father with a history of domestic violence. He noted that the father lacked insight, in that he blamed his partners for being partially responsible for his physical abuse.

[194] In this case, JR shows a similar lack of insight. She testified that she knows that she cannot control DB’s actions. When describing what happened when she saw him on New Year’s Eve, however, she said that he beat her up after she “said something stupid again”. In JR’s view, DB’s physical abuse is something she should be able to control; if she could simply avoid saying things that provoked him, he would not hit her, and their relationship could be fixed.

[195] Asked why she had remained committed to DB for so long, JR said that she thought he would be a better parent than her father, because her father sexually abused her. This displays a tragic lack of self-esteem on JR’s part and a willingness to tolerate domestic abuse in the absence of something even worse.

[196] JR also testified that she held Thorn responsible for her continued relationship with DB after May 15, 2017. She claimed that, if only the Society had shared all of the information it had about DB’s history, she would have ended the relationship then. I do not believe this. Muscat, WB, LA, Moir and other Society workers all testified that they all tried, repeatedly, to convince JR that she had to sever ties with DB. She received counselling from her VAW counsellor about healthy relationships. She was told over and over again that she might lose her daughter if she remained in contact with DB. None of this prevented her from continuing in the relationship. JR’s willingness to blame Thorn for her current situation shows that she has not come to terms with her own role in it. This lack of insight is deeply concerning.

[197] JR has not obtained sufficient counselling to allow her to distinguish between healthy and unhealthy relationships. After attending a few VAW counselling sessions in 2017, she only saw Pinhey a total of six times in 2018, even though sessions should ideally occur every two weeks. At trial, JR stated that she found the VAW counselling difficult because it caused her to relive the sexual abuse by her father as well as the physical violence inflicted by DB. Since March 15, 2019, JR has once again started attending VAW counselling sessions. Because this development is so recent, there is no way to tell if it will give JR any new insight.

[198] I find that the relationship between JR and DB has not ended and that it continues to present a risk of physical and emotional harm to ABR. As a result, I find that ABR continues to be in need of this court’s protection.

(3) What outcome is in ABR’s best interests?

Legal framework

[199] The paramount purpose of the Act is “to promote the best interests, protection and well-being of children”. Every decision I make under the Act must further this goal.

[200] Subsection 74(3) of the Act sets out factors that a court should consider in determining what outcome will be in a child’s best interests. The best interests of a child are decided by balancing the factors relevant to any particular case; CAS Toronto v. M.C., at para. 38.

[201] The Act’s additional purposes are set out in subsection 1(2). These purposes refer, among other things, to the desirability of maintaining a child’s ties with their families. For example, the Act recognizes that, while parents may need help in caring for their children, “that help should give support to the autonomy and integrity of the family unit”. Likewise, services to children and their families should be provided in a manner that “builds on the strengths of the families, wherever possible”.

[202] The Act requires the court to consider whether these additional purposes can be achieved without compromising the best interests of the child. For example, further to subsection 101(2), when considering what protection order to make, a judge must ask what efforts the society has made to assist the child before intervening. Under subsection 101(3), a court must not make an order removing the child from the care of a parent who had charge of them before intervention unless it is satisfied that less disruptive alternatives would be inadequate to protect the child.

[203] Placing a child in extended society care is the most intrusive order that a court can make. Taking a person’s child away from them is a power that a judge must exercise only with the highest degree of caution, on the basis of compelling evidence, and after a careful examination of possible alternative remedies; Catholic Children’s Aid Society of Hamilton-Wentworth v. G.T. (J.) (1996), 26 R.F.L. (4th) 79 (Ont.Div.Ct.); CAS v. S.S., above, at para. 132; Chatham-Kent Children’s Services v. L.L., 2016 ONSC 2944 (“Chatham-Kent CS v. LL.”), at para. 48.

Analysis

[204] In conducting my analysis, I must focus on ABR’s circumstances and needs. She is, by all accounts, a happy, healthy, well-adjusted and energetic two year old. She loves music and dancing and playing with other children. She is inquisitive and a bit bossy and headstrong, as two year olds sometimes often are. She has lived with foster parents for the last 21 months and has a healthy attachment to them. She is also excited to see JR and calls her “mama”.

Relevant factors under s. 74(3)

[205] Like any other child, ABR needs to have a safe, secure and loving home environment. She is physically, mentally and emotionally vulnerable. She is small and lacks the ability to defend herself. She is highly impressionable, learning rapidly every day from the examples around her. Her views of the world are being formed. Emotionally, ABR has a limited ability to understand why people do what they do, or to grasp the choices that adults make. Her vulnerability makes it particularly important to limit risks to her safety and well-being.

[206] ABR’s life will be disrupted whether I grant the application or order her returned to JR’s care. Her foster parents are not candidates to adopt her. She will be leaving the home she has known almost all of her life.

[207] JR argues that her daughter’s care would be less disrupted if she is returned to her because of their relationship, and because she had ABR with her on overnight visits in February and March. I agree that ABR might feel more secure, in the short term, in her mother’s care than the care of new adoptive parents. If however her care is returned to JR and the Society is required to intervene again in the future, this would likely create further significant disruption in ABR’s life.

[208] Some factors clearly weigh in favour of ABR’s return to the care and custody of her mother. Foremost among these is the love and affection they have for each other. Although an order could be made for reciprocal access rights, their relationship would be profoundly compromised if ABR were adopted. ABR has also spent some time with her grandmother WB.

[209] JR shows good parenting skills when she is with ABR. She tends to her needs, feeding, changing, washing and soothing her. She engages with her, plays with her and gives her guidance. She brings her toys and reads to her. She has accompanied her to medical appointments. None of the Society’s workers have noticed anything during her supervised visits that cause them any concern. They said that JR asked for advice as needed and followed their recommendations. Pitre described JR as “a very good example of how parents should interact with their children during access visits”.

[210] I do however note that JR missed many access visits during periods that she was living with DB, and since, when she has periodically been back in contact with him. When he is in her life, she does not have as much time for her daughter. This is obviously a concern, to the extent that DB remains in the picture in the future.

[211] JR’s current shelter can accommodate ABR. JR can remain in the shelter for a further seven months or so, and then transfer back to subsidized housing. She has taken steps to obtain subsidized day care for ABR. She has found playgroups in the local community and a support program for young mothers.

[212] Other factors weigh in favour of the Society’s plan. If she were adopted, ABR would be safe from the risk of physical and emotional harm arising from DB’s violent acts and her parents’ toxic relationship. She would achieve permanency and security. ABR is of mixed Caucasian and Jamaican heritage. An adoptive family of mixed race could also offer her a sense of identity that JR arguably could not provide.

[213] The weight of the remaining relevant factors depends on whether DB will continue to be a presence in JR’s life, and by extension in ABR’s life, if she is returned to her mother’s care.

[214] ABR’s physical, mental and emotional needs could be met through adoption. ABR’s needs could also be met if she was placed with JR, subject to the risk that her physical and emotional well-being might be compromised through her mother’s ongoing relationship with her father.

[215] Through adoption, ABR could gain a secure place as a member of a family. She might also be able to achieve this by returning to JR’s care, if JR severed her ties with DB.

[216] ABR may suffer emotional harm by losing regular contact with her mother through adoption. She may also suffer emotional harm if she is returned to JR’s care and then exposed to her violent relationship with DB.

Has the Society fulfilled its obligations under subsection 101(2) of the Act?

[217] An additional factor I must consider before I weight ABR’s best interests is whether the Society has provided the family with appropriate services.

[218] Further to subsection 101(2), when considering what protection order to make, I must ask what efforts the Society has made to assist the child before intervening. In Catholic Children’s Aid Society of Hamilton v. M.A.M. (“CAS Hamilton v. M.A.M.”), at paras. 20-21, Stayshyn J. held that services should be offered to maintain the integrity of the family unit and observed that, if a society has not given parents reasonable access to such services, their ability to benefit from them cannot be assessed.

[219] The evidence shows that the Society has provided JR with reasonable and even ample assistance to be in a position to regain care and custody of ABR.

[220] When ABR was first apprehended in August 2017, JR and DB were presenting a joint plan to regain custody. Moir testified that the Society did not foreclose this possibility, but required that both parents participate in counselling and programs to address the history of domestic violence in the home. When DB failed to exercise any meaningful access to ABR, the Society suspended the parents’ joint visits, in an effort to maximize JR’s opportunities for contact with her daughter.

[221] Moir and Beland took steps to obtain kinship assessments to explore the possibility of ABR’s placement with JR’s mother or aunt. The possibility of placement with ABR’s grandparents was also briefly canvassed.

[222] When JR told the Society that she had ended the relationship and would no longer include DB in her proposed parenting plan, Moir encouraged her to get a housing transfer and, later on, a transfer to a shelter. In late 2018, when she appeared to have escaped DB’s influence, JR was given longer visits with ABR, including unsupervised outings in the community and, eventually, overnight visits. Muscat was included in meetings and visits with the Society whenever JR indicated that this would be helpful.

[223] The Society abandoned its motion for summary judgment in late 2018. In early 2019, it adjourned the hearing set for its application and was prepared to consent to a supervised care and custody order in JR’s favour at the settlement conference scheduled for March 21, 2019. The Society changed its position only after JR was seen with DB on March 15, despite having promised that she would phone the police if he contacted her again.

[224] Throughout this history, Moir, Beland and other Society representatives provided other support to JR, to help her achieve independence from DB. For example:

• They encouraged her to pursue VAW counselling.
• They emailed Muscat every few weeks, to give her regular updates, to better their understanding of JR’s situation and to co-ordinate services to her.
• They wrote letters supporting JR’s requests for a housing transfer in the summer of 2018, and her request to move into a shelter in January 2019.

[225] In some instances, the Society’s workers went above and beyond their professional mandate. For example, Moir offered to go personally to JR’s apartment in early 2019 to make sure that all of DB’s belongings were removed and delivered to him. Numerous Society employees took the time to talk to JR before and after access visits, to find out how she was doing and to listen to what she had to say. They encouraged her to focus on ABR and to take the necessary steps to protect both mother and daughter from the risks presented by ongoing contact with DB.

[226] I was impressed by Moir’s testimony. She agreed that the Society’s ultimate goal, where possible, was to re-unite children with their parents. In my view, she is and was clearly invested in helping JR, has respect for her as a person and a parent, and appreciates the challenges she has faced. She expressed sincere regret that she was no longer able to support reintegration after she learned that JR had met with DB in March 2019.

[227] JR’s counsel pointed out that Moir is not part of the team at the Society that specializes in domestic violence cases. She characterized the Society’s approach as “black and white”, and faulted Moir for not holding a formal planning meeting when JR entered the second stage shelter in February 2019.

[228] I am satisfied that Moir has a solid understanding of the challenges arising from domestic violence. She testified that this has been an issue in many cases she has dealt with over the sixteen years she has worked with the Society. She has also taken courses and seminars offered by the Society in this area, and drawn on her experiences working in a prison.

[229] There was moreover no evidence that a formal safety network or additional safety meeting in February 2019 would have made any difference. Pinhey, who is a specialist in domestic violence, had not succeeded in getting JR to attend counselling on any consistent basis. LA, a friend who succeeded in breaking free of an abusive relationship, encouraged JR to confide in her, but was not told about her evening with DB in late December 2018 or that she agreed to see him again in March 2019. Muscat and WB likewise were in the dark.

[230] Moir, Pitre and Muscat convened a safety meeting with JR on December 4, 2018, after DB turned up in her apartment. They encouraged her to move into a women’s shelter. The Partners Assault Unit spoke with JR. A week later, JR had a further discussion with Amirdad about how she feared that DB would contact her once he was released from detention and got advice on what to do. She has had many discussions since mid-2018 with Society representatives and police about the need to keep away from DB and what she should do if he contacted her. None of this prevented her from agreeing to meet with DB a short time later.

[231] When JR moved to the second stage shelter, she had access to additional resources. She could participate in a support group with other residents, all of whom are women fleeing their abusers, led by individuals who work in this area. She met with Smith, who is knowledgeable about the challenges involved in breaking the cycle of violence, and who discussed a safety plan with her. There were other staff available day and night, either on site or just a telephone call away, if she needed advice. And yet, on the cusp of regaining care and custody of ABR, she spoke to no-one before agreeing to meet with DB in March 2019.

[232] The Society must provide services that promote the purposes of the Act, which include the maintenance of family relationships, to the extent that this is consistent with children’s best interests, well-being and protection. It can refer them for services that may assist parents and support their efforts to get access to them, as it did here. It does not however have the power to force anyone to use the resources available to them. I am satisfied that the Society met its obligations under the Act.

Weighing of ABR’s best interests

[233] In this particular case, my determination of ABR’s best interests hinges on whether I conclude that ABR will be safe from the risk of physical and emotional harm if she is returned to her mother’s care. Is it more likely than not that JR will be able to shelter ABR from her toxic relationship with DB? Or is it more likely that the Society will have to intervene again at some future date?

[234] In Children’s Aid Society of Ottawa v. C.M., 2019 ONSC 2597 (“CAS Ottawa v. C.M.”), at p. 13, my colleague Roger J. observed that:

Good intentions on the part of parents are not enough – what is required is proof that the parents have changed and are now able to give the child the care that is in his or her best interest.

[235] I must be guided not by what JR hopes will happen but what the evidence indicates is more likely to happen.

[236] To ensure that ABR is protected while in her care, JR proposes a twelve month supervision order that could be extended further by the Court or by the Society. Unfortunately, I am not convinced that she will be able to comply with these conditions. The evidence at trial shows that JR has consistently failed to use the resources extended to her to break free of DB, has not sought assistance in avoiding contact with DB, has allowed him to breach no-contact orders, and has not been honest with the Society or the people around her about incidents of domestic violence.

[237] Many of the commitments that JR proposes to make are the very things she has been required to do, but has not done, since the Society first became involved with the family almost two years ago. She was told to seek VAW counselling in the summer of 2017, and again after ABR was apprehended, and again as a term of the December 4, 2017 interim care order. JR participated in some VAW counselling in late 2017 but attended only a handful of sessions in 2018. She sought out counselling again in April 2019. I have no reason to think that she would have done this had her meeting with DB on March 15 not been discovered. As she herself has admitted, she finds the VAW counselling very difficult.

[238] Similarly, JR has repeatedly been directed to complete various courses, including programs on parenting and self-esteem. She has not followed through. She had to drop both programs after missing several classes.

[239] DB remains a presence in JR’s life. Even though she says that she ended her relationship with him in the summer of 2018, she continued to spend time with him in August, October and December 2018, and then again more recently a few weeks ago. She says she still loves him. I have concluded that she remained in contact with him during the status review hearing.

[240] I have reviewed the history of the interactions between JR and the Society at length because it shows a pattern. JR spends time with DB, he abuses her, she lies about what is happening until she has finally had enough and says that the relationship is over. A few weeks later, the cycle repeats itself. This is still ongoing.

[241] JR has made some progress but not enough to give her significant insight into what motivates her relationship with DB. She has remained in contact with him even though she was told of the impact this might have on her ability to regain care and custody of ABR. She has repeatedly allowed him to breach conditions of his release after he was detained for assaulting her.

[242] At trial, JR said that she lied to Moir about her encounter with DB on March 15 because she panicked. She had been repeatedly warned about the consequences of renewing her relationship with DB, and realized that the discovery of her encounter with him might ruin her chance of regaining care and custody of ABR. The Society’s discovery of the March 15 encounter did in fact result in its termination of attempts to re-integrate ABR into her care.

[243] In this context, JR’s actions with respect to March 15, and her history of lying to the Society about the full extent of her relationship with DB, is somewhat understandable. JR’s ongoing inability to be honest with those in her support network, however, limits their ability to help her or prevent her further contact with DB.

[244] WB acknowledged that JR did not “tell her everything”. Among other things, WB did not know that JR and DB spent New Year’s Eve together.

[245] LA described herself as JR’s best friend. Since early December 2018, she and JR had been in contact every day. Like WB, however, LA was not aware that JR agreed to celebrate New Year’s Eve with DB. JR did not tell LA that DB assaulted her that night. JR did not reach out to LA before agreeing to meet with DB in mid-March.

[246] JR told Smith, the family support worker who discussed a safety plan with JR in February 2019, that her meeting with DB on March 15 happened by accident. She did not tell her that she actually agreed to meet with DB.

[247] Muscat has been JR’s life skills support worker for four and a half years. She said that, since January, they have texted each other daily and seen each other once a week, and that she can continue to provide her with up to ten hours of time every week. Muscat’s ability to provide ongoing, practical support to JR is a key component of the proposed supervision order.

[248] Up until now, however, Muscat has not been able to do anything to dissuade JR from continuing a relationship with DB, and JR has not been frank with her. Muscat admitted that she did not know about DB’s abuse until the Society got involved, and that JR continued to misdirect her. In early 2018, for example, Muscat emailed the Society to ask about JR’s visits with ABR because she suspected that JR was being dishonest about how often she was seeing her. Muscat admitted that, in 2018, JR continued to conceal her interactions with DB from her. For instance, she did not tell her about the Glow Fair incident; Muscat found out about it from the Society. JR did not tell Muscat about her contact with DB on New Year’s Eve 2018 until sometime after March 15.

[249] JR has furthermore taken advantage of Muscat’s loyalty to conceal her relationship with DB. When she was caught with DB in March 2015, she lied about it to Muscat and asked her to try to persuade Moir that Kearney had misidentified DB. In cross-examination, Muscat acknowledged that JR actively took steps to deceive her but denied that this was manipulative, insisting instead that it simply showed poor judgment.

[250] Muscat said she would report any contact between JR and DB to the Society if ABR were returned to JR’s care. If history is a guide, I am not confident that she would provide any effective supervision. For example, she stated at trial that JR’s conduct in late October 2018 was not “proven” to be linked to DB, despite all of the indications to the contrary. She acknowledged that DB’s presence at JR’s apartment was suspicious, but said it was “hard to know what happened”. Muscat did not tell the Society when she found out that DB had been found in JR’s apartment in early January, because JR was not in the apartment with him at the time. Apparently she did not stop to consider how he unlocked the door.

[251] Muscat’s role is to support JR physically and emotionally. She is not in a good position to be a whistleblower and in the past has shown no inclination to play this role. If JR is not willing to confide in Muscat, and Muscat requires hard evidence of abuse before she will report to the Society, it is unlikely that she will be able to do much to protect ABR from the risks presented by DB.

[252] Finally, I note that, in her proposed supervision order, JR has not in fact undertaken to avoid any further contact with DB. The proposed order prohibits only contact between ABR and DB. JR is willing to commit to being “open and honest with the Society about any potential safety issues that may arise” including safety issues that could arise from contact that JR has with DB. This assumes that such contact may occur.

[253] In Children’s Aid Society of Toronto v. C.(S.A.), 2005 ONCJ 274, [2005] O.J. No. 2154 (O.C.J.), Justice Zuker made insightful comments about the effects of domestic violence. At para. 95, he noted that victims are often reluctant to disclose that they are being abused or the extent of the abuse. This failure to reach out to those who might help them feeds into a cycle of violence. In light of this, JR’s continued reluctance to be honest and open with those around her is troubling.

[254] I have considered other cases where courts considered the best interests of children with parents who had a history of domestic violence.

[255] In CAS Sudbury v. T.S., above, Keast J. considered a society application for Crown wardship for three children of a mother who had been repeatedly assaulted by their father. The mother had made substantial progress in overcoming substance abuse issues and gaining good parenting skills. Keast J. nonetheless granted the Society’s application. After a lengthy review of the parents’ history and the social science literature on domestic violence, he concluded that the mother’s undertaking to comply with a proposed supervision order was unrealistic. Keast J. said that he must examine her past actions, in order to evaluate the likelihood that she would be able to resist continuing in a relationship with the father. He noted that she had been discovered with him in her apartment as recently as two weeks before the trial, despite a no-contact order. He found, based on the mother’s history of denial and minimization of the father’s behaviour, that she would “likely give in to him” if he sought further contact with her; CAS Sudbury v. T.S., at paras. 41 to 48.

[256] Justice Keast did not think that the mother’s proposed supervision order would lessen the ongoing risk to the children, because she had not received therapy that would enable her to stay away from the children’s father. He noted that the society had learned of the mother’s recent contact with the father by happenstance. He wrote, at paras. 72-73:

In a high-risk case such as this, supervision orders are not intended to be the primary vehicle to implement therapy. Therapy should commence well before the start of a supervision order. It is not the therapy per se that reduces risk to children; it is the absorption and implementation of the therapy. …

Children’s aid societies do not have the resources to monitor high-risk cases under a supervision order. … If the children are sent home without reliable information on risk reduction, then a supervision order becomes an experiment to determine absorption and implementation of therapy. This is not the purpose of a supervision order.

[257] In CAS Ottawa v. C.M., above, a father who had struggled with alcohol addiction argued that regaining custody of his daughter would give him the opportunity to show that he had changed his life. Roger J. rejected this argument on the basis that “giving the father a chance would mean giving the child one less chance at permanency”; CAS Ottawa v. C.M., at p. 13. It would prioritize the parent’s aspirations and well-being over the probable safety of the child.

[258] In CAS Ottawa v. S.S., a child was apprehended by the Society based on the risk arising from the father’s repeated abuse of the mother. The mother sought the child’s return subject to a supervision order. Shelston J. held that, through her conduct since the apprehension, the mother had shown that she put her relationship with the father ahead of her child’s interests. She had not followed up on counselling or parenting courses. She also failed to advise the Society of an incident of domestic abuse and allowed the father to breach his bail conditions related to an assault charge against her. Shelston J. concluded at para. 163 that:

[T]here is a risk that the child would suffer harm if returned to the mother’s care. If the mother was serious about having her child returned to her, she needed to provide the court with sufficient evidence to convince the court on a balance of probabilities that she was serious about rehabilitating her personal issues and distancing herself from the father. She has not.

[259] It is true that, in CAS Ottawa v. S.S., the mother was openly pursuing a continued relationship with the father. JR has stated that she does not wish to do so, and has taken some concrete steps to isolating herself from him. Despite this, she remains in contact with him and is not telling the truth about doing so.

[260] I have also considered Chatham Kent v. L.L., above. In that case, Heeney J. overturned an order for Crown wardship over a two-year old child. The mother in that case had a history of poor judgment in her choice of partners, but good parenting skills. The society’s original plan was to return the child to her care, but it changed its mind after it discovered that she had re-established a pen-pal relationship with a former boyfriend who was in prison for murdering his sister. The judge who heard the society’s application concluded that the mother could not be trusted to avoid contact with the child’s violent father or another unsuitable partner.

[261] In his decision, Heeney J. held that the judge who made the order had failed to weigh all of the factors relevant to the child’s best interests or consider whether a less intrusive order – a return to the mother’s care subject to supervision – would protect the child. But an even more important consideration was the mother’s conduct after this order had been made. She had abided by non-communication orders for two years, showing that she was likely to comply with a similar term if it was incorporated into a supervision order. In light of this, the society supported a revised order. As noted by Heeney J., the fresh evidence on the appeal “changes the landscape completely”; Chatham Kent. v. L.L., at para. 50.

[262] Unlike the mother in that case, JR cannot provide the court with evidence of past compliance with no-contact orders. Instead, like the parents in CAS Sudbury v. T.S., CAS Ottawa v. C.M. and CAS Ottawa v. S.S., she is asking the court to trust her and give her one more chance to show that she can protect her child from an abusive parent. But this would require, at the very least, proof that JR has taken steps to address what has caused her to remain in a relationship with DB, despite his violence towards her as recently as a few months ago. It requires more than good intentions.

CONCLUSIONS

[263] ABR has just turned two. She has spent 21 of the 24 months of her life in foster care. I find that, if she were returned to JR’s care, even with a supervision order, the Society would likely have to intervene again at some point, creating more disruption and uncertainty for her. Such an outcome would not be in her best interests.

[264] The problem here is not a single mistake that JR made by agreeing to meet with DB on March 15, 2019. It is much more fundamental. Based on the evidence over the past two years, JR has not engaged in the counselling and therapy that would allow her to understand what an unhealthy relationship she has with DB, or the threat it poses to her child. As a result, JR is willing to assume the risk DB presents to ABR for the sake of continued contact with him. Her relationship with DB has until recently also prevented her from exercising access to ABR consistently. Although she has been more present for her daughter in the last few months, JR has not taken advantage of the support and resources extended to her to help her sever ties definitively with her abuser.

[265] JR has not shown that she can and will say “no” when DB reaches out to her. The proposed contact order does not in fact preclude continued contact between JR and DB. If I amended it to do so, I have no confidence that JR could comply with it.

[266] I have enormous sympathy for JR’s situation. Her own childhood did not give her a clear understanding of how a loving partner behaves or how to distinguish between a healthy relationship and an abusive one. Despite this, JR has some wonderful parenting skills and a desire to be with and care for her daughter. But a critical parenting skill is consistently putting your child’s needs ahead of your own preferences or aspirations. My focus cannot be on giving JR one more chance to show that she places ABR’s interests ahead of ongoing contact with DB, when she has failed to do this over the past two years.

[267] The physical and emotional risks that led to ABR’s apprehension continue to exist. DB still presents a risk to ABR. She continues to require this court’s protection. In January 2019, JR took an important step by moving into a shelter. But she remains in contact with DB. She has not fully acknowledged the risk he presents or equipped herself to protect ABR from that risk.

[268] My focus must be on ABR’s best interests. I find that they are better served by an order for extended Society care. I do not make this order lightly, but based on the compelling evidence that JR is not in a position to protect her daughter from the risk arising from DB’s violent behaviour and her toxic relationship with him.

[269] The Society’s plan gives ABR an opportunity to have a happy and stable childhood free from the threat of domestic violence. It is the least disruptive alternative consistent with her best interests. I would not make this order otherwise.

[270] Until the Society has provided notice to JR of the identification of an adoptive family for ABR, she may continue to exercise access for no fewer than three supervised visits per week, at a time and place and of a duration to be determined by the Society.

[271] The order will otherwise give both JR and ABR access rights to the other, subject to the Society’s discretion.

Justice Sally Gomery

Released: May 16, 2019

COURT FILE NO.: 17-R1001 DATE: May 16, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: The Children’s Aid Society of Ottawa Applicant – and – JR and DB Respondents

BEFORE: Madame Justice S. Gomery

COUNSELS: Tara MacDougall for the Applicant Kristin Robins for the Respondent JR No-one appearing for DB

REASONS FOR JUDGMENT Madame Justice S. Gomery

**Released:** May 16, 2019