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 Child, Youth and Family Services Act, 2017, 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.

Court File and Parties

COURT FILE NO.: FC-12-1778-1 DATE: 20190724

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.D. born [...], 2005, and E.D., born [...], 2008

Emily Comor, OCL for the Children

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – H.D. Respondent Mother – and – A.R. Respondent Father

Counsel: Cheryl Hess, for Children’s Aid Society of Ottawa Jonathan Nadler, for the Respondent Mother Self-represented (for A.R.)

HEARD: June 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 2019

REASONS FOR DECISION

Audet J.

[1] This is my decision following a child protection trial that lasted a little over two weeks. The Children’s Aid Society of Ottawa (“the Society”) is seeking a finding that two children, aged 11 and 14, are in need of protection pursuant to ss. 74(2)(b)(i)(ii), (h), (i) and (j) of the Child, Youth and Family Services Act (“CYFSA or the Act”). These provisions relate to the risk that a child is likely to suffer physical harm caused by or resulting from a parent’s failure to adequately care for, provide for, supervise or protect the child or a pattern of neglect in doing those things, and that there is a risk that a child is likely to suffer emotional harm as a result of a parent’s actions, failure to act or pattern of neglect and/or of the parent’s failure to provide treatment or access to treatment.

[2] Should the court find that the children are indeed in need of protection, the Society seeks an order that the children be placed in its extended care, with access to the mother being at the Society’s discretion.

[3] The children are represented by counsel, who supports the Society’s position.

[4] The mother, H.D. (“the mother”) is seeking the return of the children to her care, under a Supervision Order if necessary.

[5] The children’s father, A.R. (“the father”), did not participate in this trial.

Background

[6] The children at the heart of this lengthy proceeding are A.D. and E.D. A.D. was born on [...], 2005 and is currently 14 years old. E.D. was born on [...], 2008 and is currently 10 years old. Neither child is First Nations, Inuk or Métis. Both children have very special needs. The children’s older brother, K.D., is currently 19 years of age. On May 28, 2015, and on consent of the mother, K.D. was made a Crown Ward (under the former child protection legislation).

[7] The children’s biological parents are H.D. and A.R. Except for the various periods during which the children were placed in the care of the Society, the children have been in the exclusive care of their mother. The father, who resides in Alberta, has never stood in a caregiving role towards the children in any meaningful way. While he presented an Answer and Plan of Care in the context of this protection application (on February 10, 2019), he never attended court; and during the several weeks preceding this trial, he did not respond to the Society’s communications. His current whereabouts are unknown, and he did not participate in this trial.

[8] As of the first day of trial, A.D. had been in the care of the Society (pursuant to various temporary care agreements and court orders) for a total of 1,167 days, and E.D. for a total of 1,095 days. This far exceeds the statutory limit set out in the CYFSA (or its predecessor legislation) for children their age. Various child protection agencies have been involved with this family since K.D., the oldest child, was a young toddler. A.D. first went into care in July 12, 2005 along with his brother K.D. pursuant to a temporary care agreement, and E.D. first went into care in September 2011 also pursuant to a temporary care agreement. They have since been in and out of care on many occasions.

The Children

[9] In order to fully appreciate the decision I am required to make in this matter, one needs to fully appreciate the two very special children who are at the heart of this proceeding.

A.D.

[10] A.D. was diagnosed with Autism Spectrum Disorder in May 2011 after a psycho-educational assessment was completed through the Ottawa-Carleton Catholic School Board when he was in senior kindergarten. A.D. is low to medium functioning on the autism spectrum. He was also diagnosed with Pervasive Developmental Disorder not otherwise Specified. Since his diagnosis, he has shown little progress and remains fixated on the same characters and TV shows. One of his main fixations is Thomas the Train.

[11] His current foster mother, Ms. L, testified that when he came into her care (for the second time) sixteen months ago, he could not shower, brush his hair, brush his teeth or make his own lunch. While he has now acquired (or perhaps regained) these basic life skills, it is unlikely that he will ever live independently. A.D. has significant difficulty engaging in conversation. He will answer some questions directly, but will often revert to reciting lines from one of his favourite TV shows or movies.

[12] Like many other children on the autism spectrum, A.D. does not react well to change. He has certain triggers, like when he is required to put on winter clothes or if the Internet stops working, which generate tantrums and other difficult behaviours. He will exhibit self-stimulating behaviours (“stimming”) when he is anxious or stressed. He desperately needs structure, routine and patience, and his caregivers must master very specific skills to help him develop and achieve his maximum potential from an emotional, developmental and academic perspective.

[13] Despite his significant challenges, A.D. was described by many witnesses as a lovable and huggable big bear. He is a sweet, kind and gentle boy who is very funny and tells great jokes. He is well loved by all who have been involved in his care.

E.D.

[14] In 2014, when E.D. was five years old and in the Society’s temporary care, he was assessed and diagnosed with Attention Deficit and Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”). He was reported to show a lack of sense of danger or awareness of his surroundings as well as poor emotional regulation, verbal and physical aggression, hyperactive and defiant behaviours and other such struggles. His academic development appeared somewhat compromised and his behaviour in school that year had presented difficulties. Several recommendations were made with regards to needed services for him, and an Individual Educational Plan (“IEP”) was put into place for him at school.

[15] In August 2016 (the children had been back in their mother’s full-time care since January 2016), E.D. was brought to the Children’s Hospital of Eastern Ontario (“CHEO”) by his mother who reported that E.D. was out of control and that something was clearly wrong with him. E.D. was exhibiting significant emotional dysregulation, behavioural problems and speaking about seeing demons. He was admitted for a period of nine days during which his mental health was fully assessed by Dr. Helen Spencer and her team at CHEO. E.D.’s prior diagnosis of ADHD and ODD were confirmed by Dr. Spencer, and he was also found to suffer from Reactive Attachment Disorder. He was prescribed medication to manage the symptoms of his ADHD and improve his psychological health, and many recommendations were made with regards to services that he needed to access to assist with his considerable challenges.

[16] E.D. also struggles with significant anxiety which makes relationships with peers and adults very difficult. Ms. L, his current foster mother, testified that when he last came into care sixteen months ago, he had a lot of sadness, but also a lot of anger that came out in tantrums, throwing things and hitting. He was also very fearful, which was shown by his having visions of demons and by him sleeping on the floor of his bedroom.

[17] At school, E.D. was reported to have very few coping mechanisms and poor problem-solving skills. He engaged in a lot of negative self-talk, which included threats of killing (himself and others) and significant services and accommodations were put into place to manage his behaviour, control his tantrums, and assist him with his academic and social development as well as with his emotional regulation. A system was put into place to help E.D. de-escalate when he is emotionally dis-regulated, and this included having large and liberal access to his school’s social worker on any given day, as well as being provided with a “safe space” in his vice principal’s office where he can go whenever he feels the need to be safe, calm down and regroup.

[18] Despite his equally significant challenges, E.D. was reported by every witness as a super sensitive, loving, gentle and caring boy. He is extremely articulate, emotionally expressive and is able to clearly speak about his thoughts and feelings. While his reading skills are at a much lower level than those of his classmates, he is curious and intelligent and uses “big complicated words” in proper context after having asked an adult to research their definition in the dictionary. It was remarkable to see how fond of E.D. every witness from his school was, a sentiment that was clearly shared by his foster mother, many Society workers and various professionals who appeared before me. As stated by Ms. Krista Robb, E.D.’s resource teacher, he “kinda sticks with you”.

History of Proceedings

[19] As stated before, the Society has a lengthy history of child protection involvement with this family, which dates back to February 2002. There have been a total of eleven openings with the Ottawa Children’s Aid Society alone. The evidence before me confirms that the child protection services in the province of Alberta have also been involved, as well as Valoris (in the jurisdiction of Prescott-Russell), and possibly the Département de la Protection de la Jeunesse in Quebec. Essentially, since July 2011 (a period of 8 years), the children have been under the care or supervision of various child protection agencies consistently BUT FOR approximately 20 months in total.

[20] Throughout the various child protection agencies’ involvement with this family, the concerns have remained the same, although to different degrees of severity; the poor conditions of the home, neglect, the mother’s mental health, the mother’s lack of emotional regulation, inadequate supervision of the children, the mother’s inability to meet the children’s needs (physical, mental/emotional and medical), the mother’s drug use, her lack of stable housing and, as of late, her lack of cooperation with the Society. What follows is a brief summary of the most important events that form the backdrop to the current child protection proceedings.

[21] From 2002 onward, concerns were verified by the Society with regards to the unsanitary state of the mother’s home, her marijuana use and her ability to manage K.D.’s behaviour. In October 2003, K.D. was brought into care under a temporary care agreement because of the unsafe state of the home. He returned to his mother’s care one month later.

[22] In July 2005, the file opened again when K.D. and A.D. were left overnight in the care of the mother’s 14 year old brother who was a marijuana user, had ADHD and had difficult behaviour. A.D. was a young infant then, and K.D. was only five. On July 11, 2005, the mother signed a temporary care agreement by virtue of which K.D. and A.D. were placed into the Society’s care for a little less than three months, beginning on August 1, 2005. The temporary care agreement confirmed that the mother was unable to care for the children due to her unstable mental health (untreated depression and anxiety), her strained coping skills, marginal parenting skills (specific to child management of K.D. and lack of consistency and daily routine) and the unclean/hazardous state of the home. The children were eventually returned to their mother’s care, and the file closed in January 2007 as the mother had made appropriate changes to her lifestyle and the children’s needs were being met.

[23] The family’s file reopened in August 2007 due to the mother’s failure to have required dental work done for K.D., but she quickly complied and it was closed again, only to be reopened in December 2008 following reports of inappropriate care given to the children and drugs in the home. However, the file was closed once again because the mother moved to Alberta with the children to be reunited with the children’s father who lived there.

[24] The file reopened in June 2010 because of alleged concerns regarding drug use, the home not being appropriate, the children’s needs not being met and the mother’s inability to manage K.D.’s behaviour. On September 12, 2011, the mother signed another temporary care agreement placing all three children (then 10, 5, and a newborn) in the care of the Society for a period of one month. The mother had called the Society stating that she was stressed, had no family support and was having difficulty managing the children on a day-to-day basis. The mother was referred for counselling through Carlington Community Health Center and she was to follow up with her family physician with respect to her mental health. The mother was also provided with two additional weekends of respite care in November and December 2011.

[25] In July 2012, the Society began a child protection application with respect to all three children, requesting a supervision order. On January 7, 2013, a final order declared all three children in need of protection and placed them with their mother subject to the supervision of the Society for a period of three months. On May 28, 2013, the children were placed into the care of the Society due to an alleged increased drug use (including amphetamines, methamphetamines and high levels of marijuana) by the mother. They remained in care until January 31, 2014 pursuant to various orders.

[26] In January 2014, the Society amended their application asking that the two youngest children, E.D. and A.D., return to their mother’s care pursuant to a supervision order as the mother had demonstrated a significant period of sobriety from methamphetamines. K.D., however, remained in the Society’s care. Upon a status review application in October 2014, the Society requested that the supervision order for E.D. and A.D. be terminated in favour of a four-month voluntary service agreement. This request was granted by the court on December 17, 2014, as the mother was doing well in caring for the two boys, was meeting their needs, was maintaining a clean home free of hazards, was insuring the boys’ attendance at school, and was accessing clinical services for the boys and for herself.

[27] On or about January 2014, the mother moved to the jurisdiction of Prescott-Russell with E.D. and A.D., and a file was opened with Valoris for Children and Adults of Prescott-Russell (“Valoris”) to monitor the mother’s progress and insure the children’s safety. Volunteer services were offered to the family sporadically, as the mother moved back to Ottawa with the boys, then back to Prescott-Russell. On April 23, 2015, Valoris received a referral and investigated concerns about the mother using physical discipline with the children, yelling at them, using drugs and growing marijuana plants in her home. At that time, the mother was living with her stepfather, Mr. B., whom she considers her own father (hereinafter also referred to as the mother’s “father”).

[28] On May 2, 2015, the children were brought to a place of safety following the mother and the maternal grandfather’s arrest following charges of possession and growing illegal substances (marijuana). Over 140 marijuana plants were found in the home. On May 5, 2015, and with the mother’s consent, K.D. was declared a Crown Ward. All charges against the mother were ultimately dropped after her father pled guilty.

[29] A.D. and E.D. remained in care until January 8, 2016. During that time, the mother had supervised visits with the children. After a very rough start, which included significant conflict between the mother and some of the workers responsible for her file at Valoris, the visits were moved to the Rockland office and a new worker was assigned to the family. From that time, the mother’s visits with the children greatly improved, and her interactions and level of cooperation with her new worker were also more positive.

[30] The mother gradually demonstrated commitment and an ability to meet Valoris’ expectations, which included providing a safe and stable home for the children, not using corporal punishment with them, refraining from talking negatively about the foster home in front of the children and from discussing the child protection litigation with them, providing the children with structure in a stable routine, providing adequate supervision and not being intoxicated by alcohol or drugs in the presence of the children. The mother also engaged in “Triple P” group sessions, and was receiving services from her nurse practitioner and counsellor at the Carlington Community Health Center.

[31] On January 14, 2016, the children were returned to the mother’s care under a three month supervision order. On or about March 2016, the mother moved back to the Ottawa region and the Society was asked to supervise the children’s placement with their mother. A new supervision order was made for an additional six months. Concerns and expectations remained the same; providing a clean, safe and stable home; providing the children with structure, routine and adequate supervision; ensuring their regular and ongoing attendance at school; not discussing the litigation with them; remaining drug-free while in a caregiving role and accessing clinical and counselling services to help her with her addiction and mental health.

[32] When the mother moved back to Ottawa in March 2016, Ms. Meredith Gardner became involved with the family as its primary ongoing worker. She testified that at the beginning of her involvement with this family, she had a very good working relationship with the mother; she was monitoring the mother’s progress in applying parenting skills learned, which included providing the children with proper day-to-day routine and discipline, ensuring their regular attendance at school and accessing the various services they needed.

[33] In July 2016, the supervision order was terminated and replaced by a voluntary services agreement signed by the mother on July 12, 2016. While the Society felt that a formal supervision order was no longer necessary, the family continued to need ongoing support from the Society. That voluntary services agreement expired in January 2017. At that time, the mother was again living in a hotel room with the boys while waiting for subsidized housing. Nonetheless, she was presenting as more calm and was still working cooperatively with the Society. E.D. was connected to Dr. Spencer’s team at CHEO, who was monitoring his mental health and the mother was accessing services at Carlington Community Health Center.

[34] Less than two months later, the mother again asked that the children be put into the Society’s care temporarily. The mother was expressing feeling overwhelmed with the children and unable to care for them on a day-to-day basis. She was experiencing financial stress as well, as she was required to pay rent for her apartment while waiting for subsidized housing. Another temporary care agreement was signed by the mother on March 2, 2017, and E.D and A.D. were placed in the care of the Society once again. On that occasion, they were placed in the home of Ms. L. for the first time. This is the same foster home as the one they have been living in since March 2018.

[35] After the children were placed into the temporary care of the Society, the mother continued to live in an overflow shelter hotel room. Shortly before the temporary care agreement came to an end, the mother asked the Society to keep the children in care because she was not ready to have them back. Ms. Gardner explained to the mother that the Society could not sign another temporary care agreement because the children had already been in the Society’s care for longer than allowed under the legislation. She had to take the children back or else the Society would be required to seek an order for extended Society care.

[36] At the end of June 2017, the mother obtained a subsidized housing spot in the same vicinity she lived before, in Vanier. The children were returned to the mother’s care on June 28, 2017. Ms. Gardner testified that, at the time, she still had significant concerns about the mother’s ability to care for the children on a full-time basis. However, they still had a very positive working relationship and she felt that with the Society’s ongoing support, the children could be safely returned to her care.

[37] By then, the children had been attending A[...] school, in Vanier, continuously since January 2016. Many services had already been put into place at that school for these two special needs children, and they were somewhat settled into their routine there. As A.D. was moving into grade 7 in September 2017, a transfer meeting had taken place between the school staff at A[...] and the school staff at I[...] High School, the school which had been identified by A.D.’s teachers and school principal as the best to address his special needs and where he was set to begin high school in September.

[38] On September 5, 2017, the Society was called by the Ottawa Police Services to report that they had attended the mother’s home after E.D. called 911 because he and his brother had been left home alone by their mother. The police officer who attended the home observed that the apartment smelled strongly of marijuana and that E.D. was hysterical because he feared his mother’s reprisal for having called the police. The mother arrived shortly after the police and explained that she had taken her father to work that morning, and that she had only been gone for a brief period of time while the children were still sleeping. After investigation, the Society closed its file.

[39] In the fall of 2017, the mother decided to move to Blackburn Hamlet, a small community located in the East end of Ottawa. As her home was no longer in the catchment of the children’s schools, and transportation could not be arranged from their current residence to their respective schools, the children were moved into new schools in Blackburn Hamlet; G[...] School for E.D. and L[...] High School for A.D.

[40] Shortly thereafter, the Society began receiving calls from E.D.’s school expressing concerns about his hygiene, his behaviour, the fact that he did not have a backpack or a lunch, and E.D.’s disclosures about being left home alone, being afraid and other concerning things. The Society also began receiving calls from the community advising that the mother frequently left the children unsupervised in the home, including in the middle of the night.

[41] On March 1, 2018, and following Ms. Gardner’s interview with E.D. at school, the Society brought the children to a place of safety. They were placed in Ms. L.’s home again, where they remain to this day. Shortly thereafter, the Society filed its protection application seeking an order for extended Society care (then Crown Wardship) for both children.

Finding of Need of Protection

[42] I must first determine whether A.D. and E.D. are in need of protection. Only once this determination has been made can I then assess whether intervention through a court order is necessary to protect the children in the future.

[43] The Society seeks a determination that the children are in need of protection based on the following provisions of the CYFSA:

74(2) Child in need of protection

A child is in need of protection where,

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

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

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

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

(i) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) and that the child's parent or the person having charge of the child does not provide services or treatment or access to services or treatment, or, where the child is incapable of consenting to treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to treatment to prevent the harm;

(j) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide treatment or access to treatment, or where the child is incapable of consenting to treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to the treatment to remedy or alleviate the condition;

[44] Subsection (f) referred to in ss. (h) and (i) above, reads as follows:

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

Findings re: Children’s Statements

[45] Before exploring whether the children are in need of protection, I wish to make the following observations about evidence of various statements having been made by the children to various individuals over the past three years.

[46] The Society’s evidence contained numerous statements made by the children to various Society workers, teachers and school staff, police officers and health professionals involved in their care. A voir dire was conducted early on in the trial to assess the admissibility of some of the statements made by the children to Ms. Gardner, which were adduced for the truth of their content. Necessity was conceded by counsel for the mother, and for good reasons.

[47] Based on the evidence before me, and after a review of the principles set out in Children’s Aid Society of Ottawa v. M.M., 2018 ONSC 786 (and in particular the detailed list of questions relevant to the issue of threshold reliability), I concluded that the statements met the threshold reliability test and held that they were admissible. I advised counsel that the substantial reliability of those statements would be assessed in the context of the evidence as a whole.

[48] Following this voir dire and after discussions with all counsel, and as agreed by them, many other statements purportedly made by the children to other professionals were also admitted into evidence without the necessity of additional voir dires. First of all, many of those statements were not adduced for the truth of their content, but rather to show the children’s state of mind at the time they were made. Second of all, when statements adduced for the truth of their content were made by the children to professionals or people in authority (such as the police, school staff, access supervisors, child in care worker and health professionals), they were admitted on the agreement that they met the threshold reliability test, and on the understanding that their substantial reliability would also be assessed in view of the evidence as a whole. In addition, as each of the witnesses testified at trial, they were questioned on their experience in interviewing children, on their practice with regards to note-taking, and on the circumstances surrounding the making of the statements by the children.

[49] I do not intend to go through all of the statements made by the children to various witnesses which were adduced by the Society to prove the truth of their content. Rather, they can easily be grouped in the following general topics:

• The children have reported being left home alone by their mother and of being scared when that happens;
• They have reported being hungry and that there was often no food at their mother’s home;
• E.D. has reported that after he called 911 in the fall of 2017, his mother punished him in anger by throwing out all of his toys;
• E.D. has reported that his mother has an “anger management problem” and that she often yells at them;
• E.D. has reported being told by his mother not to talk to anybody or to trust anyone, including the Society, his foster mother, his teachers at school and his health professionals;
• E.D. has reported being blamed by his mother for having to go into care, and that she has threatened to put them into care if he did not behave;
• Both children have expressed their changing wishes and preferences about being returned to their mother’s care.

[50] These statements (or some of them) were made by the children to Ms. Gardner (the family’s ongoing child protection worker), to Ms. Côté and Ms. Amirdad (the two Child Youth Counsellors who supervised the mother’s visits with the children), to three witnesses from the children’s schools (Mr. Paul Gautreau, E.D.’s principal at A[...] School; Ms. Krista Robb, E.D.’s Resource Teacher at A[...] School; and Ms. Carrie-Anne Gravel, Vice-Principal at L[...] and later Vice-Principal at A[...] School), to Ms. Cindy Gattas, the children’s Child-In-Care worker, and to Mr. Wayne Ng, E.D.’s school social worker at A[...] School.

[51] Not only do I find that the way the children’s statements were obtained and/or recorded by these various individuals provided me with a significant level of comfort with respect to their reliability, there was a clear coherence in the nature and content of those statements made by the children to these various individuals over time. Some of them were repeated on numerous occasions over the years, to various individuals. Many of them were made to witnesses who had no reason to lie to this Court about the nature of those statements.

[52] In particular, I was significantly impressed by E.D.’s social worker at A[...] School, Mr. Wayne Ng. Mr. Ng has been working with E.D. since November 2018. He testified that he has met and known both A.D. and E.D. over the years, as well as their older brother K.D. Since he became more closely involved in E.D.’s care in the fall of 2018, he has developed a close and trusting relationship with him and sees him regularly, on a weekly basis, and sometimes several times a day. Mr. Ng provided the court with significant insight into E.D.’s complex personality and difficult challenges. E.D. has confided in him on several occasions and has repeated to him many of the statements that he had already made to other people involved in his life, including many of the witnesses who testified at trial.

[53] Finally, K.D., the children’s older brother, also testified in this trial. Many of his complaints with respect to his experience of his mother while being under her care mirrored those expressed by his two younger brothers to these various individuals. Overall, there is a pattern of behaviour on the part of the mother, as reported by the children, which, in my view, is clearly established by significant corroborating evidence, in addition to the evidence coming from the children themselves.

General comments re: pattern of behaviour

[54] The evidence before me made it abundantly clear that the mother has had and continues to have a pattern of the same or similar protection concerns. At times, she is able to care for the children. These are the times which immediately follow the Society’s involvement with this family. During those months, she is engaged and connected to services for her and the children as a result of the Society’s intervention and assistance; she is provided with respite care for the children, she initiates counselling for herself, engages in parenting and other similar courses, seeks access to mental health services, reconnects with some of her supports, and is able to meet the children’s basic needs for short periods of time.

[55] But shortly after the Society leaves her sight, the mother gradually discontinues her access to services, becomes estranged from her supports, moves and falls back into the same patterns which put the children at risk of physical and emotional harm.

Poor Condition of the Home

[56] The mother has a history of keeping an unsafe and filthy home. K.D. testified that when he resided with his mother, the house was filthy, messy and generally in disarray. Ms. Gattas who was involved with the family back in 2005 witnessed the mother’s home at the time which she qualified as “the worst”, “really bad” and “hazardous”. The boys reported to various individuals that their home was dirty and that it smelled bad. When living in Calgary in 2008, the Alberta Children’s Services had to intervene to ensure that the mother clean up her apartment as the condition of the home was found to be unacceptable for the children (then only K.D. and A.D.). The home that she lived in with A.D. and E.D. in Edmonton in 2010 was also found to be filthy by the Alberta Child Protection Services.

[57] In a general occurrence report from the Ottawa Police Services following an incident which occurred on June 19, 2016 at the mother’s apartment, the apartment was observed to be “in shambles”. The police officer reported that “the small two-bedroom apartment had dirty clothing, dishes, empty food wrappers, broken toys and cigarette butts everywhere. Police also observed the two boys to be sharing a bedroom with very minimal furniture including two beds on the floor without sheets only a blanket on either one with the night table in between which housed their hamster cage.”

[58] Pictures of the mother’s home taken by Ms. Gardner in June 2018, at a time when the children were not in her care, are explicit in that regard. I do not accept the mother’s submission that this was an exceptional occurrence due to all the difficulties she was experiencing in her personal life at the time. The mother’s inability to maintain a clean and safe home for sustainable periods of time has been an ongoing issue since 2002; one that is under control from time to time when the mother is supported, assisted or supervised by the Society, but that comes back on a recurring basis when she is not. For that reason, seven supervision orders have listed as a condition that the mother be required to keep her home free of safety and health hazards.

Neglect

[59] Witnesses from the children’s schools have expressed concerns about the children being dirty, having an odour and looking generally unkept. Ms. L., the children’s foster mother, also testified that when A.D. came back into her care in March 2018, he could not shower, brush his hair or brush his teeth. Ms. Gravel, Vice-Principal at both L[...] and A[...] when A.D. was attending those schools, explained that, following observations by staff of the boy’s poor hygiene, they put into place a routine by way of which each day upon entering the school, A.D. would be assisted in washing his face, brushing his hair and his teeth.

[60] As stated before, the children have reported on many occasions and to many different people that they were often hungry and that there was little food available for them at home. K.D. also reported being constantly hungry while living with his mother as a child and not having access to sufficient or healthy food. In the same general occurrence report from the Ottawa Police Services referred to above (June 19, 2016), the police officer stated “police opened the refrigerator and observed it to be very bare, with only milk, eggs and a few condiments, in the freezer was a frozen pizza and frozen Kool-Aid jammers (fruit drink), the cup boards were nearly empty. It appeared as though there was not enough food to sustain two boys and their mother.”

[61] Mr. Gautreau, Ms. Robb and Ms. Gravel all confirmed that, in addition to being provided with breakfast every day at school through the school’s breakfast program (available to all students), the school also provided the children with a lunch most days as they would usually come to school without one. They also provided both children with backpacks, which they did not have, and supplied changing or extra clothes when needed.

[62] I do not accept the mother’s testimony to the effect that she loves to cook and that she used to cook homemade meals for the children all the time. Not only is this clearly contradicted by the above evidence, it is also inconsistent with the many reports of supervised access visits during which the mother is reminded of the importance of bringing healthy snacks and meals for the children during visits instead of take-out and junk food. Despite being provided with food vouchers for that very purpose, the mother rarely (if ever) brought homemade or healthy meals to the children.

[63] The children’s consistent attendance at school, and arrival time, was also a significant concern at the time of their apprehension. All witnesses from the children’s school confirmed this. Some of the children’s school attendance records adduced into evidence during the course of this trial, while not infallible, are certainly a compelling testament to the children’s poor attendance at school while in their mother’s care. Not only did the children miss a significant number of days of school during the periods that they were living with their mother, they were also frequently dropped off or picked up late, sometimes up to one and a half hours late. This caused both children significant anxiety, and undoubtedly made their academic learning very difficult.

Lack of Stability

[64] In her testimony, the mother confirmed having lived with the children in Ottawa, Limoges, Cornwall, Hull, Calgary and Edmonton. In 2008, when A.D. was three years old and E.D. only a toddler, the mother moved to Calgary to be reunited with the children’s father. She later moved to Edmonton, and then in 2009, separated and moved back to Ottawa. In January 2010, she left with the children to go back to Calgary, moving to Edmonton only to move back to Ottawa weeks later.

[65] In Ottawa alone, she lived at 15 different addresses, at least, which included two shelters and three hotels. Many of her moves were dictated by the mother’s own desire to move, and not by circumstances outside of her control. This was the case when the mother chose to move to Blackburn Hamlet in the fall of 2017, resulting in a change of school for E.D., who was well settled at A[...] School and accessing services, and in A.D. having to go to L[...] when I[...] High School had been identified as the best high school for him and prepared for his arrival.

[66] In June 2018, after the children were apprehended, the mother was evicted from her townhome. She remained homeless for over nine months, staying at shelters, couch surfing with friends, family members and an abusive boyfriend, sleeping on the bus, at the casino and at other public places. She finally secured a one-bedroom apartment in the spring of this year, which she obtained on the private market with the assistance of her stepfather.

[67] Through all of the moves that these children went through, they were also often moved from one school to the next. In Ottawa alone, the children attended at least five different schools. Coupled with the constant placements in and out of care, it is no surprise that many of the professionals, school staff and health care providers to these children have come to the conclusion that many of their special needs resulted from, or were significantly exacerbated by, the lack of stability and permanency in their lives.

[68] In E.D.’s psychological assessment report dated January 30, 2014, Dr. Horvath noted that factors she believed contributed to E.D.’s difficulties included past family experiences, separation from his parents, academic difficulties, and peer adjustment issues. In E.D.’s discharge information summary from CHEO made after he was hospitalized in August 2016, Dr. Spencer wrote “psychology was consulted for diagnostic clarification, as E.D. presented with a history of complex behavioural and emotional needs, including a history of multiple foster care placements [...] In addition, he presents with significant dysregulation issues that can be attributed to disruptions in forming attachments with primary caregivers from a young age.”

[69] In a psycho-educational report completed by Dr. Linda Vasudev with respect to E.D. in March 2018, shortly after the children were apprehended for the last time, she noted:

In terms of E.D.’s learning profile, several factors likely contribute to his lowered scores including unstable home life, several school changes, several foster care placements, significant late arrivals to class and high absenteeism, difficulties with attention and concentration, social emotional dysregulation, and anxiety. These factors have undoubtedly negatively impacted his ability to find academic success.

Inability to Meet the Children’s Physical, Emotional and Health Needs

[70] Over the years, the children have been assessed and diagnosed with significant health, developmental and emotional needs. Dr. Paquette who completed a psycho-educational assessment of A.D. in May 2011, recommended that he be referred to the Community Care Access Centre for a consultation in occupational therapy. I am not aware that the mother followed through with that recommendation at the time.

[71] When E.D.’s psychological assessment was completed by Dr. Horvat in January 2014, she made many recommendations for services for him and his mother. Among other things, the mother was referred to Crossroads Children’s Centre, the Centre for Psychological Services and Research and the Coordinated Access Committee for a parent management training. Dr. Horvat stated that E.D. could also benefit from speech and language as well as occupational therapy assessments and services. She recommended that the results of her assessment be communicated with E.D.’s family doctor to review medical treatment options for his ADHD. Finally, she recommended that a reassessment in psychology be done in two years to ensure adequate monitoring of E.D.’s progress and evaluate the possibility of a learning disability if academic concerns persisted.

[72] When E.D. was hospitalized in August 2016, many recommendations for follow-ups, services and treatments were made by Dr. Spencer. She was of the view that E.D. and his mother would benefit from intensive behavioural interventions in the home as well as the ongoing support of the Society. While acknowledging that the mother had participated in parent management training in the past, she stated that ongoing intensive supports to address E.D.’s attachment needs were needed. A referral to CHEO Outpatient Mental Health Services was recommended as she hoped that E.D. and his mother could access support for his self-regulation and attachment difficulties. E.D. was prescribed 18 mg of Concerta to control his ADHD symptoms, and 2mg of Abilify to help him self-regulate. Dr. Spencer stated that the mother would benefit from psycho-education about ADHD and ODD, as well as from support to implement behavioural strategies in her home. The mother was strongly encouraged to discuss this with the staff at E.D.’s school. Finally, a psycho-educational assessment was recommended to update E.D.’s profile of cognitive and academic strengths and needs, and to rule out an underlying learning disorder.

[73] Throughout the significant periods of Society involvement with this family, the mother was provided time and again with resources, directions, support and assistance in accessing necessary available community services for the children. While the mother did, for certain periods of time, properly attend to the boys medical needs, such as ensuring that their immunizations were up-to-date, attending routine checkups and monitoring E.D.’s ADHD medication (after his hospitalization in August 2016), she failed to access most of the services recommended by the various professionals to support the children’s academic, emotional and developmental needs.

[74] When she did access some of these services, initially, she inevitably discontinued her attendance within a relatively short period of time. A good example of this is the much needed and highly recommended attachment therapy that the mother eventually initiated with E.D. in December 2016 with Ms. Anne Kerridge, a social worker at CHEO’s Outpatient Mental Health Clinic. This had been strongly recommended by Dr. Spencer to help the mother establish a safe and healthy emotional relationship with E.D., which in turn would help reduce E.D.’s significant feelings of anxiety. It was also necessary to help the mother gain insight into her emotional response to E.D.’s needs, and to provide him with routine, structure, supervision and physical safety which was deemed essential for healthy attachment to occur between them.

[75] Ms. Kerridge testified at trial that she began working with the mother in individual sessions in December 2016. Although she had seven sessions with the mother (which included some joint sessions with E.D.) from December 2016 to April 2017, the mother missed five scheduled appointments, and as of April 17, 2017, stopped attending all appointments without notice to Ms. Kerridge. The mother only reconnected with Ms. Kerridge to resume her sessions after the children were apprehended in April 2018. While she was told that Ms. Kerridge could resume sessions if a new referral was obtained, the mother did not follow up or obtained a new referral.

[76] During a Plan of Care meeting which took place between the mother and various Society workers, including Ms. Gattas and Ms. Gardner, in April 2017, the mother was provided with the telephone numbers and addresses of various services and programs the boys were to be enrolled in upon being returned to her care the following June. In particular, the importance for the mother to connect E.D. with the Vanier Pediatric Hub was made very clear to her. The Vanier Pediatric Hub is led by Dr. Sue Bennett (a pediatrician), and it offers children and youth living in Vanier or attending one of the Vanier schools various services to address their complex challenges. Its team comprises of a nurse practitioner, a social worker and pediatricians. It also works in conjunction with multiple partners offering services on site, including Crossroads Children's Centre, Centre psychosocial, Youth Services Bureau, Orkidstra, Rideauwood, and First Words.

[77] The mother was clearly told that at the Vanier Pediatric Hub, E.D. would be connected with many of the services he needed, as identified by the various professionals involved in his care. The mother was also directed on many occasions, including during the April 2017 Plan of Care meeting, to connect and enrol A.D. with Autism Ontario, Children at Risk and Service Coordination to access many and much needed services and activities for him. When the children were last brought to a place of safety in March 2018, the mother had not followed up with any of these organizations (although I acknowledge that she might have contacted some of them) and the children were not connected to any of their programs.

[78] Much evidence was adduced during this trial with regards to the mother’s decision to wean E.D. off the medication prescribed to him by Dr. Spencer from CHEO following his August 2016 hospitalization. It was the mother’s evidence that she had done so in the fall of 2017 with the full knowledge and support of E.D.’s pediatrician, Dr. Bialik. The evidence before me confirms that after E.D. was released from CHEO in August 2016, he was put on a daily dose of Concerta and Abilify to help him control his ADHD and pseudo-hallucinations (his visions of demons). The daily doses were adjusted from time to time to monitor their effectiveness and their effect on E.D.’s mental and physical health. By everyone’s account, they helped E.D. significantly in controlling his behaviour and emotional regulation both at home and in school, and his visions of demons quickly subsided.

[79] The mother’s evidence makes it clear that she has a strong resistance to taking medication or to administering same to her children. While she complied with Dr. Spencer’s recommendations with regards to E.D.’s medication for almost a year, by the summer of 2017, she decided to gradually wean him off his medication. By the fall of 2017, E.D. was no longer taking his mediation (both Concerta and Abilify).

[80] While the mother stated that she did so with the complete knowledge and approval of E.D.’s pediatrician, Dr. Bialik, she was fully aware at the time that Dr. Spencer, E.D.’s psychiatrist, had specifically warned her against decreasing E.D.’s medication. In a progress note made by Dr. Spencer in September 13, 2017, she writes: “[the mother] had gone to pediatrician Dr. Bialik for a prescription and in the summer had reduced E.D.’s dose from 27 to 18 mg in spite of the fact that he has gained weight. I explained that there are usually fewer demands on children during a relaxing summer than there are during an academic school year and that given his recent weight gain, E.D. may require a higher dose than 18 mg of Concerta.” She then put a reminder to see E.D. in October to assess his ADHD symptoms and the need to increase his Concerta dose from 18 mg back to 27 mg.

[81] On September 20, 2017, a very upset mother called Dr. Spencer reporting that E.D. is “overreacting”, threatening to kill her and swearing, and asking that he be readmitted to CHEO. The mother was told by Dr. Spencer that re-admitting him did not make sense until her recommendations from the last admission were followed. In her progress note from that day, Dr. Spencer writes that the mother had agreed to try 27 mg of Concerta and to see her the next week with E.D. Despite Dr. Spencer’s clear recommendations, the mother not only refused to increase E.D.’s dose of Concerta to 27 mg, but by October 2017 (at the very latest), E.D. was no longer taking any medication at all. The mother was fully aware of Dr. Spencer’s recommendations, and it appears from the record before me that Dr. Bialik was not aware of them, and that the mother did not relay those recommendations to her either. The mother did not attend additional appointments booked with Dr. Spencer until she retired at the end of 2017.

[82] As a result, E.D.’s psychological health quickly deteriorated. Not only was E.D.’s medication discontinued by the mother against Dr. Spencer’s advice, but she chose to do so around the time that E.D. had to move from A[...] to L[...] as a result of her move to Blackburn Hamlet. This was the worst possible time for E.D. to stop his medication, and the mother’s lack of insight into how those decisions might have impacted E.D.’s emotional health and well-being is disconcerting. E.D.’s behaviour and statements at school became sufficiently troubling for the school to make several referrals to the Society from December 2017 to March 2018. Ms. L, the children’s foster mother, testified that when the children were brought back to her care in March 2018, E.D. was completely out of control and dis-regulated. Despite the fact that he was quickly put back on medication, she testified that it took many months before he was stabilized again.

Being left home alone by their mother

[83] The evidence before me confirms that the mother has left the children home alone during the day and even in the middle of the night on enough occasions for the boys to be fully aware and scared of being left alone by their mother. Lack of appropriate supervision led to police intervention on two occasions (in 2016 and in 2017). In June 2016, the children (then 11 and 7) were left with a 12-year-old babysitter. In September 2017, the police attended the mother’s home as a result of E.D. calling 911. He was reported to have been very upset and crying, not knowing where his mother was.

[84] More importantly, E.D. has reported being left home alone with his brother on many occasions to many people including Ms. Gardner, Ms. Gattas, Mr. Ng and to his school. During the mother’s own testimony, she admitted to leaving the children home alone during the night to shop for groceries for as much as 1.5 hours while the children were asleep.

The mother’s mental health, emotional regulation and drug use

[85] The mother has admitted on many occasions that she suffers from anxiety and depression. Many of the professionals that have been involved in her and the children’s care have observed and confirmed that she suffers from mental health issues. The mother’s inability to care for the children for sustainable periods of time, and her recurring requests to the Society that they be brought into care as a result of her inability to manage them and her feelings of being stressed and overwhelmed, contributes to my finding that she has suffered and continues to suffer from significant mental health issues.

[86] Many health professionals have strongly recommended that the mother participate in psychotherapy and counselling to address her mental health challenges, and that she be assessed to determine the need for medication to help alleviate her symptoms. These professionals include, but are not limited to Dr. Spencer, and the mother’s nurse practionner, Ms. Hoda Mankle. The vast majority, if not the entirety, of the voluntary service agreements, temporary care agreements, interim society care orders and supervision orders related to these children, contained a condition that the mother attend to her mental health issues and receive counselling to deal with them and the stressors in her life. Despite this, and after years of Society involvement, the mother has not meaningfully engaged in mental health treatment.

[87] The mother has done some counselling in the past but has not continued with it. She started seeing various professionals for counselling when required to do so by the Society, only to discontinue their involvement after a few sessions claiming that they were not the correct fit. She is seeing Ms. Gillian Szollos, a Health Promoter and Family Support Worker, as well as Ms. Michele Migneault, a Social Worker, at Carlington Community Health Center, but only for crisis intervention or drop-in sessions on a needs-based basis. In her testimony, Ms. Migneault confirmed that the mother told her that she was only seeking counselling because the Society was asking her to.

[88] The evidence makes it very clear that the mother has not been willing to engage with services and mental health care providers for herself, and that she has reacted very poorly and become angry when the recommendation to get assessed for the suitability of taking mood-stabilizing medication was suggested to her. Examples of such forceful reactions can be found in the progress notes of Dr. Spencer and in the detailed notes of her nurse practitioner, Ms. Mankle.

[89] Instead, the mother chose to continue to treat her depression and anxiety with marijuana, which she takes on a daily basis since she is 13 years of age. At trial, she testified that she smokes marijuana approximately four times per day. While medical marijuana was prescribed to her by a health professional in the past, the mother confirmed that she does not purchase it at a pharmaceutical facility, and instead accesses it through friends and other suppliers. The mother testified at trial that her doctor had confirmed that she needed the highest THC content possible, something that she tries to ensure when she purchases her marijuana. However, Ms. Mankle, her nurse practitioner, confirmed in her testimony that the mother’s doctor had recommended a 12% THC content, which she stated is not a high amount.

[90] Many of the witnesses who testified at trial gave detailed accounts of how the mother is generally unable to regulate her emotions. The school staff at A[...] School, being Mr. Gautreau, Ms. Robb and Ms. Gravel, all attested to the fact that their relation with the mother was difficult at best. From one day to the next, they did not know whether the mother would present as upset, overwhelmed, stressed, angry or emotional. They all stated that, at times, the mother would become upset with the children, treating them curtly, becoming angry and saying inappropriate things to them in front of the school staff, which would cause a physical and emotional reaction in the children. Ms. Gravel testified about an occasion when she was verbally abused by the mother while shopping in a grocery store, in front of her husband and complete strangers.

[91] After the children were brought to a place of safety in March 2018, the relationship between the mother, Ms. Gardner and the Society’s staff in general quickly deteriorated. While Ms. Gardner had been able to engage with the mother in the past and to get her cooperation, this was no longer the case after the Society “stole her children” and “totally blindsided her” by apprehending the children “without notice” (as repeatedly stated by the mother during her testimony).

[92] Ms. Gardner testified that, on many occasions, the mother yelled, swore and verbally abused her, going as far as threatening her and her family with harm. Throughout the trial, and although she admitted to some bad judgement calls, the mother continuously expressed significant anger towards the Society and accepted very little responsibility for her predicament. Throughout her testimony, she casted blame on others, especially the Society, for not providing enough respite services or support to her. I find that the Society did, in fact, provide the family, and in particular, the mother, with significant services and support over the past eight years.

[93] The overwhelming evidence before me shows that the mother frequently yelled at workers, swore at them, and called them all sorts of names. She has told them she hoped they got into car accidents. She made threats to Ms. Gattas telling her that she knew what car she drove, where she lived and where her children attended school. She expressed the wish that both Ms. Gardner’s and Ms. Gattas’ daughters were raped. She hung up on workers, refused to attend numerous meetings, including Plan of Care meetings. The mother’s abusive and threatening behaviour became so problematic that a safety meeting had to be held at the Society and safety planning put into place by Human Resources to address the threat she posed to Society workers. Shortly after the children’s last apprehension, there was a requirement for two workers to be present at all times when in the presence of the mother, due to her aggressive behaviour.

[94] Ms. Mylène Côté and Ms. Leili Amirdad, the two main Child and Youth Workers who supervised the mother’s visits with the children, also testified at trial. They gave numerous examples of the mother’s lack of emotional regulation during access visits and how upset the children were by their mother’s behaviour. There were a substantial number of access reports filed into evidence during this trial. Very few visits were generally positive, and during most of them, the mother was found to be either crying, angry, making inappropriate comments about the Society or about the children’s foster mother to the children, or making inappropriate comments to, or in front of, the children or the access supervisors. Ms. Côté testified that this case has been one of the most taxing cases she has ever had to work on while at the employ of the Society, and that on at least one occasion, she had to take a health day after supervising a visit with the mother.

[95] The mother’s lack of emotional regulation was also apparent in the notes taken by the various employees and professionals who provided her with services at the Carlington Community Health Centre. Despite the significant trauma-informed support provided by the various professionals from that centre to the mother over the years, on several occasions, the mother lashed out at professionals and behaved in an angry and inappropriate manner towards them.

[96] Ms. H. and Ms. J., the mother’s best friends whom she calls her “sisters by choice”, both spoke of the mother’s significant difficulties in keeping her emotional regulation in check, although they tried very hard to minimize the severity and seriousness of her outbursts. Each of them have had important falling outs with the mother. Ms. H. and the mother did not speak for about four years before they reunited at some point after the mother moved back to Ottawa from Alberta. They had another falling out shortly after the children were apprehended in March 2018, only reconnecting again in January 2019. Ms. J. was not in the mother’s life from November 2017 to February 2019, when they finally reconnected.

[97] Nowhere is the mother’s inability to regulate her emotions and to show insight into her behaviour more flagrant than in the detailed notes of her supervised visits with the children. These detailed notes, coupled with the testimony of the various society workers who appeared before me, reveal countless examples of the mother being emotionally dis-regulated at visits with the children, leaving early out of anger, speaking inappropriately to the children, speaking negatively about others, and not paying attention to the children at all in favour of her phone. In fact, most visits had little structure and usually consisted of watching a movie or videos on the mother’s phone. The mother cancelled visits regularly or left early as a result of an emotional outburst or reaction, both of which caused the children significant pain, anxiety and emotional disruption.

[98] During many visits, the mother was observed to turning to the children, especially E.D., for emotional comfort. This behaviour has led to E.D. feeling substantially responsible for his mother’s well-being and emotional state, something that became readily apparent to many of the professional witnesses who appeared before me, including Mr. Ng. During her testimony, Ms. Kerridge, who provided the mother with attachment therapy in 2017, attested to the fact that the mother treated E.D. as her own “human teddy bear”.

Conclusion

[99] Based on the above, I come to the undisputable conclusion that the children were, both at the time of their apprehension and at the time of this trial, in need of protection pursuant to ss. 74(2)(b)(i)(ii), (h), (i) and (j) of the Act, and that intervention through a court order is necessary to protect them in the future. The concerns which gave rise to the need to protect the children remain as live today as they were on the date the children were brought to a place of safety in March 2018.

Disposition

[100] The court’s disposition options in this case are set out in ss. 101 (1) and 102 of the Act. They read as follows:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[101] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of ss. 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[102] In this case, the children have been in the Society’s care for significantly more time than allowed by the Act for children their age. No one from these children’s family and community has come forward with a plan to care for them, other than their father who has since discontinued his engagement with the Society. Orders for interim Society care are no longer available due to the lengthy period of time the children have already been into care. As a result, the children must either be returned to their mother’s care (pursuant to a custody order or a supervision order), or an extended society care order must be made, with or without access. These are the only two options available to me.

[103] In determining the disposition with respect to these children, I am required to make an order that is in their best interests. In determining their best interests, I am guided by s. 74(3) of the Act, which reads as follows:

Best interests of child

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

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

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[104] I have come to the conclusion that the children cannot be returned to their mother’s care, even under a supervision order, as this would put them at significant risk of further harm. Based on all of the evidence before me, and in light of all the factors described above, I find that it is in the children’s best interests that an order for extended Society care be made for them. I come to this conclusion based on the following.

[105] Both boys have significant special needs. Not only do they have basic needs of shelter, food and clothing, which were not always met by the mother, they have significant disabilities as well as educational, developmental, medical and emotional needs which have also not been met by the mother in a meaningful and sustainable way in the past.

[106] Both children need to be connected to many services. A.D. needs to develop his social skills. He cannot be left alone unsupervised and he will not be able to live independently in the future. While he has gained or regained some skills since he was brought to a place of safety in March 2018, such as learning to make his lunch and attending to his hygiene, he cannot multitask and is unable to function on his own. Ms. Gattas explained how his diagnosis of autism is not a label, but a gateway into services for him. A.D. will require a functional assessment and she is working very hard to get him transitioned into adult services. He desperately needs all of those services in order to have a quality of life.

[107] E.D. has significant mental health and emotional issues as well. There was much evidence about his anxiety, ADHD symptoms and his significant struggles in regulating his emotions, particularly without the assistance of medication. Since he was brought to a place of safety in March 2018, he has been put back on his medication which significantly decreases his ADHD and anxiety symptoms and helps him regulate his emotions; he is connected to the Vanier Pediatric Hub where he has accessed many needed services; he is now seeing Mr. Ng on a weekly basis at school, and; he is provided with structure and routine both at home and at school, which is essential for him to keep his mental health issues in check and promote his academic learning and overall functioning.

[108] The mother has been unable to provide the children with the routine, structure, stability, sense of security and connection to much needed services in the past, and the evidence before me makes it clear that she continues to be unable to do so at this time. Despite all the services and supports that she has accessed through the Society or on her own, including the committed support of the professionals at the Carlington Community Center, the mother has shown little to no progress in attending to her mental health needs and gained limited insight into how damaging her decisions, behaviour and life choices have been on her children’s well-being. There is no evidence whatsoever before me that the mother has made a change profound enough to justify a return of the children to her care. As stated by a number of health professionals involved with the mother in the past, sustainable change cannot occur within a matter of weeks; the work required to achieve sustainable gains will be hard and will take years.

[109] The mother’s inability to achieve progress in her parenting of the children is impacted by her estrangement from her extended family members, as well as her very limited support network. Aside from her father, the mother’s only supports are her two friends, Ms. H. and Ms. J., with whom she has had an on-and-off relationship and from whom she has been estranged for years at a time.

[110] The mother has a very difficult and often toxic relationship with her extended family members, particularly her mother. She has no contact with her biological father and has not had any contact with her mother and siblings for many years. The only constant in her life has been the man she considers her father, Mr. B.. As a result, the children have not developed a relationship with their extended maternal family, other than Mr. B. who they refer to as “Poppa”. Mr. B. has been a constant presence and support for the mother through the years since she was a little girl, and he has had regular contact with the children in the past.

[111] However, Mr. B. lives in Cornwall since December 2016, and he does not own a vehicle. While it is his wish to move to Ottawa (he only lived there for a period of eight months before), he cannot do so until he finds work, and he currently does not have any employment prospects in Ottawa. Before the children were brought to a place of safety in March 2018, he saw the boys a few times a year. Since they have been into the Society’s care, Mr. B. has not seen them often.

[112] The children have also had some contact with “Aunt K.”, the mother’s maternal aunt, until she and the mother had a conflict and stopped seeing each other. The children do not know their paternal family, and they have had very limited contact with their father. Sadly, the mother does not have any support network upon which she can rely in a lasting way to assist her with the children if they are returned to her care. This is particularly concerning in light of the children’s very special needs and the fact that the mother, with all of her challenges, is a single parent.

[113] The mother is also estranged from K.D., the children’s older brother, with whom she has had no contact for years. Since K.D. was made a Crown Ward in 2015, the children have been denied an opportunity to maintain a relationship with him. In April 2019, while the children were in care, they were allowed to resume contact with K.D. This relationship seems to be particularly important for E.D. who has expressed a wish to live with him at the time. The children’s relationship with K.D. will not be permitted to continue if the children are returned to their mother’s care.

[114] The children do have an important relationship with their mother. However, that relationship is complex and has been the source of significant anxiety and emotional struggles for both children. A.D. is not his mother’s favourite child nor does he receive much attention from her during supervised visits. E.D.’s status as his mother’s favourite child has been made quite clear through the testimonies of many witnesses. When E.D. has not attended visits, the mother has often left really early for questionable reasons.

[115] E.D.’s relationship with his mother is very conflicted. Much insight was gained about E.D.’s feelings towards his mother through the testimony of Mr. Ng, his social worker from school. While E.D. obviously cares for his mother very much, at times he is angry with her and at times he despises her. While he has expressed missing his mother and wanting to see her, he has also expressed significant worries about his visits with her, her lack of emotional regulation and about his mother’s many missed visits or her early departures without regards for his feelings.

[116] E.D. has also expressed a significant lack of trust in his mother, as well as fear about how she would react if he told her that he did not want to go back into her care. Also significant is the real sense of guilt and blame that he feels about being in care, as he has been blamed for this by his mother on more than a few occasions. He lives in a constant conflict of loyalties towards his mother. Mr. Ng reported that E.D. did not generally speak positively about his mother during his sessions with him and that he needed to be reminded that his mother was fighting to keep him, which he needed to hear.

[117] Ms. Kerridge testified that reactive attachment disorder, which E.D. was diagnosed with, results from a lack of safety between a child and his primary caregiver. She also explained that safety, structure and supervision are vital for children with attachment difficulties. Unfortunately, these were all missing or, at best, highly inconsistent for E.D. and A.D. while in their mother’s care.

[118] Neither children react well to change, particularly A.D. Both children desperately need structure, routine and permanency. They have been in and out of care for most of their lives, and this, coupled with the constant moves from one home to another, from one city to another, and from one school to another, has caused them significant emotional harm and has impeded on their development, their emotional and psychological health, and their ability to achieve success at school. The mother has proven unable to care for those boys in a sustainable way or to provide them with the stability and permanency that they so much need. If they are returned to their mother, I am convinced, based on past history and the mother’s present mental health state, that they will end up back into the Society’s care. This would destroy the steady but slow gains the children have made since being brought into care last year.

[119] In addition, the mother has only had supervised access with the children since March 2018. It would be irresponsible for a court to return these children to her care until she is able to demonstrate that she has made progress in addressing the many concerns raised by her parenting. Even in the context of supervised visits, the mother has been unable to show any sustainable gains in the way she behaves with and in front of the children. During the past sixteen months, she has never moved to the court to increase her access or remove the need for supervision, despite being represented. Even the few attempts made by the Society to have access exercised in the community, with supervision, have proven disastrous.

[120] Despite their significant challenges, and despite being taught by their mother not to trust other adults responsible for their care, the children have been able to develop close and trusting relationships over the past sixteen months with those who are consistent in their lives. As a result, the children will now venture outside and play, something they were fearful of, particularly A.D., when they were brought into care. Both children have learned basic hygiene skills and A.D. now makes his own lunch, one step at a time, but with great pride. He will be attending Camp K[...] this summer where he will be spending time with other kids just like him.

[121] E.D. now seeks out comfort from his foster mother, something he only started to do many months after being brought into care. He is properly fed and cared for, which has made him feel safer and contributed in a significant way in stabilizing his anxiety. He still attends his regular meetings with Mr. Ng, where he continues to unload his feelings about, and experience of his mother as well as other stressors in his life. He is well settled in his school where extraordinary accommodations have been put into place to address his many challenges. A further change of school as a result of another potential move, if returned to his mother, would be seriously damaging to him.

[122] In their current foster home, the children are made to feel part of a family. They have been embraced by Ms. L.’s large and loving extended family and they are treated the same as the other children in that family. Both children have expressed their appreciation of their being part of Ms. L.’s household. While Ms. L. is not putting forward an adoption plan for the boys, she confirmed that she will keep them in her care for as long as it takes to find them an adoptive family, even if it means keeping them in her care until they become adults.

The children’s wishes and preferences

[123] I have kept the issue of the children’s wishes and preferences to the end, not because they are of less relevance in this case, but because it is extremely important to consider the children’s views, which have changed over time, in context.

[124] The children have been taught by their mother not to trust society workers, school officials, medical professionals, their foster mother, their extended family members and even K.D. Despite the insecurities while in her care, E.D. and A.D. understandably trusted their mother above anyone else. Family members including K.D. were in and out of favour; family friends, including Ms. H. and Ms. J., came and went. The children had no stable home or school community. They were in and out of foster care and had multiple child protection workers in at least three different jurisdictions. They have met and been assessed by countless doctors and assessors. The only certainty for these boys was each other, and every time they went into care, they would ultimately be returned to their mother.

[125] Therefore, when the children were brought into care the last time, E.D.’s response was predictable and understandable. He resisted and he was fearful because from his perspective, he was responsible for being brought back into care, and when returned to his mother’s care, would be in trouble. This time around, he had made disclosures which resulted in swift and drastic action by the Society who brought them into care once again. I find, based on the evidence before me, that E.D. believed he would ultimately go back to his mother and so he felt the need to recant and tell everybody that he wanted to go back to his mother’s care.

[126] Although he was happy to see Ms. Gardner when he was first picked up in March 2018 to be brought into care, E.D. quickly became angry. During the weeks that followed, he yelled, he hit and he swore. He stated repeatedly that he wanted to go back to his mother. He stated that he had made up the stories that landed them into care again. In the first months after his apprehension, he was protective of his mother because that is what he had been taught. He was her “teddy bear” and her emotional support. More importantly, he feared her anger for having been brought into care again.

[127] However, slowly but surely, E.D. started to open up to Ms. Gattas, his worker, to his foster mother, to Ms. Gravel, to the vice-principal at his school, and more significantly, to Mr. Ng, his school social worker. On November 13, 2018, E.D. attended a meeting at the Vanier Pediatric Hub. The meeting had been arranged by Dr. Bennett for the purpose of allowing E.D. to express how he felt, what he wanted, and to discuss the next steps in getting him there. Many people were in attendance including Ms. Gardner, Ms. Gattas, Ms. L., Ms. Gravel, and Mr. Ng. The purpose of the meeting was to hear E.D. himself, to allow him to express how he felt and what he wanted as the next steps to achieve his goals. After Dr. Bennett sought an update from everybody present, in turn, E.D. was asked what he wanted. He responded “if you want to do me any favours, then just get me to go home cause I really want to go home”.

[128] As the meeting went on for a little longer, E.D. asked whether he could tell the participants something, but asked to “please not tell mom”. He then became very emotional, started to cry and made a significant number of disclosures. He talked about being left home alone; he described how he was scared and how he was devastated when his mother threw away all of his toys for calling 911, including a teddy bear that he really loved; he reported being hungry at home and never having clean clothes to wear; he spoke of being worried all the time about what mood his mother would be in; he made it clear that he did not want to go back home. Even more revealing, he expressed on several occasions that he was afraid that what he had just said would be reported to his mother, and how angry she would be at him.

[129] E.D.’s disclosure took everyone by surprise. By everyone’s account, the things he talked about were very hard to hear. But all participants who testified during this trial confirmed that it became clear during that meeting that E.D. had finally come to terms with his truth, and had decided to trust everyone in the room with it. As E.D. was upset about his mother finding out about his disclosure, and sought reassurance that she would not be told, the adults in the room agreed that this information would not be shared with the mother until E.D. gave his permission, which he later did. It is as a result of that meeting that a decision was made that E.D. was to obtain ongoing counselling from Mr. Ng, whom he knew well.

[130] Mr. Ng testified that, as counselling progressed and time passed, E.D.’s views about his past experiences and his future became louder, clearer and unequivocal: he had lied to his mother about wanting to go home and he did not want to be returned to his mother’s care. After he resumed contact with K.D. in April 2019, and had the opportunity to share his older brother’s experience with his own, he became even more empowered and prepared to express his true wishes and preferences to the adults around him, including to his mother. This change in E.D. coincided with an increased resistance in attending visits with his mother. By the time this trial began, E.D. had refused to go on visits with his mother on several occasions.

[131] Although E.D. is only 10 years old, and despite all of his challenges, I find that he is a very intelligent young boy. He was described by everyone involved in his care as being extremely sensitive and verbally expressive, being able to use a large and adult vocabulary in proper context. I find that his expressed wish and preference to remain in the Society’s care can be given considerable weight in light of all the evidence before me. They are also consistent with his best interests.

[132] A.D.’s true wishes and preferences are much more difficult to discern. He has significant special needs and cannot carry on a fluid conversation. He was described as low to moderate functioning on the autism spectrum. His own lawyer attested to having significant difficulty engaging him in a conversation and obtaining his views on any matter.

[133] When he first came into care, A.D. did not want to return home. He made many statements about the chaos of his mother’s home and his life there. He regularly said that he did not want to return to that life, and his negative feelings about the possibility of returning home to his mother were made clear to many people around him including his foster mother, Ms. Gravel and Ms. Gattas.

[134] A.D.’s feelings about returning home to his mother shifted at about the same time his father came back into the picture at the end of December 2018. At that time, the father met with the children on two occasions, and thereafter, he started to call them on a regular basis after he returned to Alberta. He also filed a Plan of Care by virtue of which he proposed to take them with him to Alberta, something the children were made aware of. Unfortunately, Alberta brings about very negative memories for A.D. who associates it with the loss of his treasured toy trains that were left behind in a taxi and that he could never recuperate. As A.D.’s fear of moving to Alberta grew, his wish to return to his mother’s care suddenly increased.

[135] So, while over the last few months A.D. has stated on a number of occasions that he wanted to return to live with his mother, the statements are not consistent with his disclosures about life with his mother including not having food or clothes, about the house being smelly and that he had a miserable life there. His wish to return home to his mother is also inconsistent with his statements to Ms. Gattas this past April that she was crazy to talk about the possibility of him going home. Aside from his fears of moving to Alberta, there seems to be no apparent reason for the change in A.D.’s wish to return home.

[136] In all of those circumstances, I come to the conclusion that A.D.’s wishes and preferences in relation to his living arrangements cannot be ascertained with any level of certainty as a result of his significant disabilities. More importantly, his recent change of heart about going home to his mother is inconsistent with his best interests.

Access

[137] It is not disputed that access between the mother and the children should be allowed to continue if an order for extended Society care is made. What is disputed is the form it should take and the frequency of the visits.

[138] When the court makes an order for extended society care, any order for access with respect to the child is terminated (ss. 105(4) of the Act). Subsection 105(5) sets out that in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court may not order access unless it is satisfied that the order would be in the child’s best interests. Subsection 105(6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interest of the child in extended society care. These are:

a) whether the relationship is beneficial and meaningful to the child, and;

b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[139] In determining whether access is in the best interests of A.D. and E.D., I am required to look at the factors set out in s. 74(3), which have been reproduced above. The first mandatory consideration is the child’s views and wishes.

[140] At the present time, E.D. is struggling with access. Prior to the trial, he has asked not to go or has been leaving early. He has also suggested that he attend only one time per week, as opposed to the three visits that are currently in place. There has been a significant shift in E.D. from being upset when his mother cancelling visits to not wanting to attend at all, or at least much less often. There is no doubt in my mind that E.D.’s current resistance to visits is due to the significant guilt he feels towards his mother for having expressed not wanting to return to her care. This is understandable given how poorly his mother reacted to the news when he shared his feelings with her, as evidenced by the notes of the worker who supervised their visit on May 29, 2019.

[141] A.D. continues to attend his visits with his mother and to express his clear wish to continue to see her. A.D. has been very consistent in wanting to attend access visits with his mother and he is clearly upset when they are cancelled or when the mother leaves early or unexpectedly.

[142] I agree with OCL counsel that whether or not access to their mother is meaningful and beneficial for these children is a difficult question to answer. Since A.D. consistently wants to attend visits, we must assume that he finds them meaningful. E.D. may not find his visits meaningful at the moment, but this may change with time and as his conflicted feelings of guilt and anger subside. It is undisputable that the mother has been the children’s sole caregiver from their birth until March 2018 (except for the periods they were in care), and it cannot be argued that the children share a strong bond with her, no matter how complex and plagued with difficulties that relationship may be. The children are not babies; they are older children who will remember forever their life and experiences with their mother. Given the significant amount of time that they have been in her care, maintaining a connection with her, so long as it does not interfere with an adoption placement and continues to be in their best interests, should be promoted.

[143] However, whether or not access between the boys and their mother is beneficial to them will largely depend on whether or not the mother is able to gain significant insight about the impact of her behaviour on the children’s emotional well-being. Will she accept my decision, or use her visits to try and convince the children that everybody got this wrong? Will she learn to use the time she has with the children to support them in their relationships with others and to encourage them to pursue and trust those relationships, or will she continue to teach them not to trust anybody else? Will she use her time with the children to meaningfully engage with them instead of simply putting them in front of the television? Will she be able to behave in a way that is not damaging to the children’s emotional health or will she continue to drag them into an emotional roller coaster at each visit?

[144] In light of all of the above, I find that it would not be in the children’s best interests to impose strict parameters around their access to their mother. In my view, access should be left at the discretion of the Society who will be able to monitor the children’s wishes and preferences in that regard on an ongoing basis, and to make decisions about access with the input of the children, the foster parents and the other professionals who are working with and supporting them.

[145] My conclusion in that regard is further supported by the requirement that the court consider whether ordered access will impair the children’s future opportunities for adoption. I premise my comments in that regard by noting that no adoptive family has been located yet for these children, and as such, any consideration of this requirement is made in abstract.

[146] Nonetheless, the case law has recognized that persons who hold certain attributes may be more likely to impair a child’s opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child when a parent holds a right of access. In Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678, the court discussed the attributes of the parent that would impair the child’s future opportunities for adoption as follows:

1. The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

2. The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child’s sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child’s life.

3. The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

4. The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child’s life and are likely to engage in openness litigation.

[147] Sadly, I find that the mother has many of these attributes. In addition to what has already been discussed above, Ms. L. testified about her inability to have a relationship, communicate and work with the mother at this time. This is unfortunate since they enjoyed a cooperative relationship the first time the children were put in Ms. L.’s care in 2017. The mother’s propensity for anger and confrontation and her inability to listen, to regulate her emotions and to gain insight into her own behaviour will make it difficult for access to work with ease and may very well have a deterring effect on any prospective adoptive families. This is a further reason to support my conclusion that the children’s access with their mother be left to the discretion of the Society.

[148] Section 105(7) of the Act now requires the court to specify who the access holders and access recipients are when making an access order after a child is placed in the extended care of the Society. For the same reasons as set out above, I find that the children should be the access holders for the purpose of s. 105(7)(a) of the Act, and the mother should be the recipient of access for the purposes of s. 105(7)(b) of the Act.

Madam Justice Julie Audet Released: July 24, 2019