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-14-1375-5 DATE: 2020/01/30

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 Jo. B.-P. (DOB: […], 2009), Ja. B.-P. (DOB: […], 2011), J. B.-F. (DOB: […], 2013)

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – K.B.-F. (Mother) C.L.P. (Father of Jo.B.-P., Ja.B.-P.) L.P. (Father of J.B.-F.) Respondents

COUNSEL: Mark Hecht, for the Applicant Wendy Rogers, for the Respondent (Mother) Cheryl Hess, for the children

HEARD: January 13, 14, and 15, 2020

REASONS FOR DECISION

A.E. LONDON-WEINSTEIN J.

Introduction

[1] This is a status review application brought by the Children’s Aid Society (The Society). The Society seeks a custody order in favour of the maternal grandmother. The Society requests that access to the children be at the maternal grandmother’s sole discretion. The children are Jo. B.-P., who is 10, his brother Ja. B.-P., who is 8, and their sister J. B.-F., who is 6.

[2] The respondent K. B.-F. (hereinafter the Mother) is the mother of all of the children.

[3] The respondent C. L.P. is the father of Jo. B.-P., and Ja. B.-P.

[4] The respondent L. P. is the father of J. B.-F.

[5] C.L.P. was served with materials in this matter and did not file materials or participate in the trial. He has been found in default.

[6] L.P. could not be located. The Society obtained an order dispensing with the need for service.

[7] The Mother did not attend the trial, although her counsel remained present. Counsel did not have instructions to participate in the trial but given her attendance and the filing of a plan of care, I did not note her in default and the matter proceeded as an uncontested trial.

[8] The Mother seeks the return of the children to herself with a voluntary service agreement with negotiated terms, or that the children be returned subject to the imposition of a supervision order by the Society. The Mother wishes to raise the children with her partner M.S. There is a history of violence by M.S. toward the Mother, some of which has occurred in front of the children.

[9] The statutorily required findings that the children were in need of protection, their dates of birth and the fact that none of the children are of First Nations, Inuk or Métis heritage were made on November 1, 2017.

[10] The parties attempted to resolve this matter through mediation and an offer to settle, but the parties were not able to reach an agreement and the matter proceeded as an uncontested trial.

[11] The Mother has a history with the Society, both as a child where she witnessed domestic violence and experienced sexual abuse, and as a parent where she has had not infrequent interventions by the Society.

[12] In 2014, the Society began an application to remove the children from the care of the Mother.

[13] In August of 2014, a care and custody motion was argued and the children were returned to the care of the Mother.

[14] One month later the children were apprehended again. The middle child Ja. B.-P. was placed with his maternal grandmother.

[15] The older boy and the youngest child were placed in foster care. In March of 2015, a final order was made placing Ja. B.-P. with his maternal grandmother for three months and placing the other two children in foster care for three months.

Background to the Proceeding

[16] On September 5, 2014, Polowin J. made a temporary order under the Child and Family Services Act [1]. Jo. B.-P. and J. B.-F were placed in the temporary care and custody of the Society. Ja. B.-P. was placed in the temporary care and custody of the maternal grandmother.

[17] In March of 2015, Jo. B.-P. was placed into foster care along with his sister, and his brother Ja. B.-P. was placed with the maternal grandmother subject to a three month supervision order.

[18] In December of 2015, Mackinnon J. ordered that all three children be placed in the care and custody of their Mother subject to a supervision order for 10 months.

[19] In October 2016, the Society consented to the Mother obtaining a custody order in relation to the children.

[20] In December of 2016, MacLeod J. made an order granting custody of all three children to the mother, and access to the father C. L.P. once a week.

[21] At a status review in April of 2017, the Society sought an extension of the supervision order in relation to the Mother. While that matter was before the court, the children were again apprehended. The children were placed into the care of their maternal grandmother. A new kinship assessment which supported her care of the three children was conducted.

[22] A previous kinship assessment had been conducted in relation to the maternal grandmother being an appropriate caregiver for Ja. B.-P., when he suffered a skull fracture at the home of his Mother. A television fell on his head, injuring him severely.

[23] In July of 2017, all three children were ordered by Doyle J., to be in the temporary care and custody of their Mother subject to a supervision order by the Society.

[22] In November 2017, there was a finding that the children were in need of protection. They were ordered to be in the care and custody of their Mother, subject to a six month supervision order.

[24] In April of 2018, Doyle J. ordered that all three children remain in the temporary care and custody of their Mother subject to a six month supervision order by the society.

[25] In November of 2018, Shelston J. ordered that all three children be placed in the temporary care and custody of their maternal grandmother.

[26] The children have been residing with their maternal grandmother since November of 2018. The Society seeks an order that all three children be placed in the custody of the kin caregivers, in this case, the maternal grandmother pursuant to section 102 of the Child, Youth and Family Services Act [2]. The Society seeks that access by the Mother or other family members be at the sole discretion of the maternal grandmother.

[27] On February 21, 2019, Engelking J. ordered all three children to remain in the care and custody of their maternal grandmother.

[28] At the status review in June of 2019, the Society filed a status review, seeking a custody order in favour of the grandmother.

[29] The Society called five witnesses who testified viva voce and were cross examined by counsel for the children. Counsel for the Mother did not call evidence, nor did she cross-examine witnesses. The lawyer for the children called one witness.

[30] The primary issues to be determined are as follows:

1. Do the children remain in need of protection?
2. If so, is a further protection order required to protect them?
3. If so, what dispositional order is in their best interests?
4. If a custody order is made in favour of the maternal grandmother, should access be at her discretion?

Evidence

[31] The first witness for the Society was Teena Laing. Ms. Laing is an experienced child protection worker with the Society. She became involved with this family in October of 2017 in relation to a flea infestation. She also had contact with a police detective who was concerned that an individual accused of sexually abusing children was residing with the Mother. The Repeat Offender Parole Enforcement (ROPE) Squad removed the individual who was found on a mattress with J. B.-F., who was four years old at the time.

[32] Ms. Laing testified that the Society had concerns that the Mother chose partners with a propensity for domestic violence and that some of this violence occurred in front of the children. Ms. Laing testified that she found it difficult to meet with the Mother.

[33] At this time the Mother was enrolled in a program at Bethany Hope which offers education, food, medical attention and individual counselling to young parents. The Society was also concerned about her use of marijuana.

[34] The Mother was banned from Bethany Hope for six months as she continued to attend the centre with men, despite being repeatedly warned not to do so.

[35] Ms. Laing reiterated that it was difficult to obtain an appointment with the Mother.

[36] On March 9, 2019, Ms. Laing received a call from the Mother. Police attended the home. The man who the Mother was seeing at the time, M.S., was charged with assault and mischief. The Mother showed Ms. Laing a used syringe in the house. Ms. Laing observed that the Mother appeared frightened of M.S. The Mother stayed with a friend that night and the children stayed with their maternal grandmother.

[37] As a result of the information she received from the Mother, Ms. Laing engaged in safety planning with the family. The children had been present when this incident of violence occurred. The Mother had previously been in a women’s shelter as a result of being the victim of domestic violence where another man was the perpetrator.

[38] M.S. was charged in relation to this incident. However, just three weeks later, the Mother admitted to Ms. Laing that she wished M.S. to return to the home, despite the fact that her children were present in the home when this incident occurred.

[39] The Mother did attend for some counselling with Maureen Sullivan, a domestic violence counsellor with the Western Ottawa Resource Centre. The Mother authorized the release of information regarding her counselling. She went for counselling twice on her own and once with Jo.B.-P.

[40] During this period, the children lived with the Mother and spent weekends with the maternal grandmother.

[41] On June 12, the Mother sought approval from the Society for a continuation of the relationship with M.S. Her plan at that time was to co-parent with M.S.

[42] The Society had a concern regarding drug use by M.S. Eventually, the criminal charges relating to M.S. were resolved and he agreed to attend New Directions. This program is designed to prevent recidivism of domestic violence. The Mother admitted she was using marijuana, but only on weekends when the children were not present.

[43] In the fall of 2018, Ms. Laing picked up the Mother and took her to her counselling appointment with Ms. Sullivan. The Mother was ill with a cyst which had to be surgically removed. There was an admission that she and M.S. had been involved in a physical altercation where the Mother said she punched him in the face. Ms. Laing indicated she felt concerned for the Mother’s safety at this time.

[44] On the drive home, the Mother was sporadically in tears. Ms. Laing discussed her safety and asked her if she would consider returning to a shelter. The Mother refused to answer Ms. Laing.

[45] In November 2018, a call from the school regarding the youngest child prompted Ms. Laing to interview the children. Ms. Laing, as a result of the information she received, contacted police and attended the home. The Mother answered the door. She was clearly upset and had been crying.

[46] M.S. left with police. The Mother agreed to not allow him back into the home.

[47] In November, the maternal grandmother collected the children. Ms. Laing indicated that during that week the Mother was yelling and screaming and hanging up the phone on her.

[48] The children remained with their maternal grandmother. The children were apprehended and a supervision order was granted to the grandmother. Access to the Mother was to be supervised by the Society. The Mother was angry and refused to attend supervised access visits. The Mother did not exercise access to her children from mid-November until the first week in January 2019.

[49] In January of 2019, the Mother was attending supervised access visits on a regular basis and was willing to resume counselling. She put M.S. on a lease and M.S. was to finish his New Directions course.

[50] In March, the Mother was having increasing difficulty with pain and knew she needed surgery. The Mother admitted to Ms. Laing that M.S. injected her with needles.

[51] I admitted this evidence, although it is in out of court statement being admitted for the truth of its contents in the absence of contemporaneous cross-examination, as it is admissible as an exception to the rule against hearsay as an admission against interest.

[52] The Mother was aware of the role of Ms. Laing in determining whether the children were in need of ongoing protection from the Society. The Mother was aware that her statements to Ms. Laing could be used against her in these proceedings. I found that this statement was admissible as the Mother was clearly making a statement against her own interests, in circumstances where the threshold level of reliability was provided due to the circumstances of the giving of the statement. Necessity was provided by the fact that the Mother did not attend the trial and was not available at the trial.

[53] Ms. Laing suggested that the Mother arrange for treatment for drug addiction. Ms. Laing provided Narcon kits and advised that taxi service would be provided if needed. Ms. Laing testified that she was concerned about the Mother being able to get to the hospital if required.

[54] Ms. Laing testified that she received a call shortly after the Mother left her company from M.S. who was in a rage about Narcon being dropped off at the house.

[55] On April 4, the Mother missed a visit to the children because she was working with M.S. doing roofing. On April 7, she had surgery.

[56] Ms. Laing said that the Mother refused to meet with her in April. The Mother did not see her children for the next eight weeks. A meeting with the Mother, her lawyer and M.S. ended in yelling and screaming.

[57] From March 27 until June 4, Ms. Laing only had phone access with the Mother. However, the Mother was resuming her access visits half of the time.

[58] The last home visit Ms. Laing attended was November of 2018. Ms. Laing asked for consents for the release of information from Recovery West based on information she received from the Mother and M.S.

[59] This meeting came to an end with M.S. yelling that he wanted the children to be brought home. The Mother would not speak directly to Ms. Laing but would speak to her co-worker. Ms. Laing testified that M.S. was living in the home.

[60] The last time Ms. Laing saw the Mother was when she supervised her access on December 27. Her last access visit with the children was the Wednesday before this trial commenced.

[61] Ms. Laing’s general observations were, that at the outset of her work with the Mother, that the Mother was open to feed back and was affectionate with the children. Her house was clean, and she was engaged with the children’s school. In September of 2018, things began to change. Ms. Laing opined that the Mother has a pattern of always having a male partner in her life. Those male partners are violent and there is fighting in front of the children.

[62] Ms. Laing believes that the Mother is isolated and has regressed. In terms of the plan proposed by the Society, Ms. Laing testified that the grandmother has been a lifelong stabilizing influence for the children. She has spent most weekends and school breaks with the children. The children spend Christmas Eve and Christmas Day with the maternal grandmother. She has been the secondary caregiver to the children since their birth.

[63] In regard to access, Ms. Laing said that she hoped access could be determined by the Mother and the maternal grandmother together. However, the erosion of the relationship between the Mother and grandmother has made this impossible. Access is only possible now, according to Ms. Laing, if it is supervised by a third party. Ms. Laing had concerns about the mental health of the Mother. On some days she is not coherent. Drug use may be exacerbating these mental health concerns. Ms. Laing said she has seen track marks on the Mother’s arms. M.S. is believed to have a history of opiate addiction.

[64] The Mother always had supervised visits at the Society, although visits with less supervision are available.

[65] The access visits were available twice a week, but the Mother only came once a week due to her pending surgery. Ms. Laing indicated that the Mother brought snacks to the visits and gifts at Christmas. However, she sometimes puts M.S. on the phone, against the direction of the Society. The children have no desire to have contact with M.S.

[66] Ms. Laing was aware that the middle boy suffered a severe skull fracture at the home of his Mother, which was an accident. As a result of his need for enhanced medical care, he was placed with his maternal grandmother.

[67] The second witness for the Society was Karen Carkner, an access supervisor for the Society. Ms. Carkner is a child and youth counsellor for the Society.

[68] Ms. Carkner supervised access beginning in January of 2019 to present. She also had prior involvement with the family in 2015. Ms. Carkner testified that the Mother registered for the Beyond The Basics Parenting Program from January to the end of March. Ms. Carkner found the Mother to be very engaged at first but seemed to lose interest over time.

[69] Ms. Carkner testified that when the children were not with the Mother in 2015, the Mother saw them twice a week and her attendance was consistent. She would bring snacks for the kids, demonstrate affection and provide activities. However, she was observed to be irritable at times with a low tolerance for frustration.

[70] In 2019, Ms. Carkner was involved in supervising access beginning in January once a week for one and a half hours. The Mother had not seen the children for a period of time. The children were in the care of the maternal grandmother at the time. When the Mother failed to attend for two consecutive Saturday access visits which had been arranged by the Society, access visits reverted to being once a week. From January 28 to the present time, Ms. Carkner estimated the Mother attended roughly half of the access visits. The Mother did provide notice when she was not coming. In November of 2019, the Mother attended all four scheduled visits.

[71] In December 2019, the Mother attended two of four visits. On December 18, she texted Ms. Carkner and said she was not attending as she had a lot of running around to do. She visited with the children on December 27 and December 30. In April and May of 2019, the Mother did not attend any visits with her children. In March, she attended two of six visits and in June she attended two of four visits.

[72] There were 53 visits overall. The Mother generally arrived on time and brought a snack for the kids. The Mother was observed to consistently demonstrate affection to the children. Ms. Carkner was candid with the court in saying that she could plainly see that the Mother loved her children. The children, in response, appeared to Ms. Carkner, to be open to receiving affection from their Mother. Sometimes the family would walk to a nearby grocery store as part of the visit. These short excursions remained supervised by Ms. Carkner.

[73] Ms. Carkner did feel that the Mother is irritable with the children at times. She felt the Mother could be harsh at times with the children. The Mother also speaks about M.S. in front of the children and has been observed to make negative comments about the maternal grandmother in front of the children.

[74] Ms. Carkner observed the Mother speaking to M.S. on the phone during a visit in November. Approval for this call had not been obtained in advance. The oldest child pushed his chair to the other side of the room. The youngest child spoke on the phone to M.S.

[75] Ms. Carkner felt that it became progressively more difficult to communicate with the Mother. A visit in October had to be cancelled as the Mother was overwrought and angry when she arrived and wanted to discuss the court process with the children. The children were advised that their Mother had come all the way for a visit but was not able to meet with them. Naturally, they were disappointed, according to Ms. Carkner.

[76] The last access visit was January 8, 2020. The children had not seen the Mother since December 27. The December 30 visit was cancelled due to severe weather. The children arrived and their Mother told the children that she could not see the children for one year. She advised the children that she has done everything she can do to fight for them, but that this is their last visit. I did not admit this statement for the truth of its contents, but merely for the fact that it was said. I found it was said, as Ms. Carkner was watching behind the mirror, and emerged into the room due to her concerns about what was being said. This evidence is also relevant to the state of mind of the children, regardless of the truth of the contents. Ms. Carkner testified she was of the view that access would continue until the final order. She has not heard from the Mother since that last access visit on January 8.

[77] Ms. Carkner has had ongoing contact with the maternal grandmother. She has found the maternal grandmother to have played an active role in case planning.

[78] Shannon Peace testified for the Society. She works at Bethany Hope Centre, a community resource centre for parents under 30.

[79] Ms. Peace met the Mother in 2014, but she had been a client of the centre in 2011. She reported one incident of aggressive behaviour in the lunch room toward her children when the Mother threw something at her children. The children came regularly for lunches.

[80] Ms. Peace was aware and reported an incident of violence against the Mother by the Mother’s partner at the time (Shawn). The incident was alleged to have occurred in front of the children. Ms. Peace reported the incident to the Society.

[81] There were 27 visits with Ms. Peace during the Mother’s involvement with the centre. She felt that the Mother was resourceful and had moments of clarity where she could see her own weaknesses. At times the Mother demonstrated a desire to do better.

[82] The relationship between the Mother and the maternal grandmother was strained by the trauma which the Mother experienced as a child. Ms. Peace felt this trauma may have had a negative impact on the Mother’s mental health. In particular, Ms. Peace felt that witnessing domestic violence as a child and experiencing it as an adult had a negative impact on the Mother’s mental health.

[83] Ms. Peace was aware that the Mother was suspended from the centre for six months for bringing men to the centre who were a high risk to the community. She had been warned to desist from this behaviour, but it persisted.

[84] Ms. Peace, like Ms. Laing, felt that the Mother had a pattern of engaging in relationships with men who were violent, and of placing these relationships ahead of the needs of her children.

[85] The next witness for the Society was Tina Sul, a probation officer at Ottawa West probation office. Ms. Sul was the probation officer for M.S. The Mother attended in April of 2018 to seek to file her written and revocable consent to permit contact with M.S.

[86] Ms. Sul confirmed that she was aware the Mother had a history of being the victim of domestic violence. Ms. Sul refused to facilitate the signing of consent and advised the Mother she would call the Society if she signed it. The Mother did not sign the consent that day, but later signed it on May 7 with a different probation officer.

[87] On February 4, 2019 the Mother attended a meeting with M.S. and Ms. Sul. An argument broke out in front of the probation officer. Ms. Sul cautioned M.S. that he was on probation for domestic violence. Ms. Sul said M.S. looked at the Mother in a manner that was so intimidating that it made Ms. Sul feel uncomfortable.

[88] Ms. Sul called the police after the Mother left and M.S. left. She requested police perform a wellness visit in relation to the Mother. As mentioned above, an incident occurred between the Mother and M.S. which resulted in criminal charges, M.S. received a suspended sentence and probation for the assault of the Mother and the mischief charge.

[89] The final witness for the Society was the maternal grandmother of the three children, Ms. B. Ms. B. is 45 years old and suffers from Multiple Sclerosis which she testified is well controlled with appropriate medication. She works from home at her own business, expediting visas and passports.

[90] Ms. B. has been with her partner Barry for five years. She has a 23 year old son who does not live with her, but who, on her evidence faces his own life challenges. She admitted she does not have a relationship with her daughter at the moment. She was unable to recall her daughter’s age at trial, although this failure may have been due to nervousness. She testified that her daughter did not want her to be with another man other than her father. However, Ms. B. testified that her daughter’s father, Mr. F. has been “torture since day one.”

[91] Ms. B. claimed that the Society did not help her when Mr. F. was hostile and violent toward the children. Ms. B. described her daughter as her “little buddy” who grew up with her. She testified that she had to work numerous jobs to make ends meet. She also finished high school.

[92] When her son was born the family had many challenges. Ms. B. said her daughter reported being abused by her father. Ms. B. claimed she called the police and the Society but nothing came as a result of this investigation. Ms. B. said she took her daughter to counselling.

[93] When she was just 11, her daughter indicated she had been inappropriately touched by her father. She had left the access visit with her younger brother and walked to the McDonald’s restaurant on Carling Avenue. The police picked her up.

[94] Apparently, no charges were laid do to an inconsistent polygraph test. The test was never taken again according to Ms. B., despite the fact that police ordered Mr. F. to reattend for a second polygraph test.

[95] I found it hard to accept that the Society would not follow up on an allegation of sexual abuse, or that the Ottawa Police Service would simply drop an allegation of child sexual abuse because a suspect failed to return for a polygraph. Ms. B. said that Mr. F. continued to enjoy court ordered visits every second weekend. Given the allegations, this seemed incongruous. Ms. B. said that despite the allegation of child abuse, she was encouraged to facilitate access to Mr. F. She also said her son became so violent she had to turn him over to his father.

[96] Ms. B. testified that she got a job on the weekends at Burger King so that she could spend time with her teenage daughter and they could hang out together. While Ms. B. felt that this was a bonding experience, I was unsure that this was a positive experience for her teenager.

[97] When her daughter was 14 or 15, Ms. B. was diagnosed with M.S. and a crushed vertebrate in her back. She overdosed on pain medication. There was a lot of fighting going on in the house. Ms. B. claimed that her doctor told her not to live in conflict. Ms. B. therefore went and stayed with a friend and left her daughter alone in the house.

[98] Her daughter’s boyfriend moved into the house. The two teens were not attending school. The house where her teenage daughter was living caught fire. The children had to move out. Her daughter moved in with a friend. Soon the daughter discovered she was pregnant. Ms. B. said her daughter was angry at her for getting sick. I do not have the daughter’s version of these events as she declined to attend this trial. However, in my view, it is equally likely that her daughter was angry at being abandoned, as opposed to being angry at her Mother’s illness.

[99] During this time her son was attending the Royal Ottawa Hospital to seek help for his challenges. Ms. B. was living in a car. She testified she was driving all night long for work and during the day attending at the apartment where her daughter was living to sleep. She gave her car keys to her daughter to allow her to drive in exchange for being able to sleep at the apartment.

[100] A dog which the daughter obtained destroyed the apartment which her Mother rented for her. She called the police when her teenage daughter would not return her personal belongings. Ms. B. said she had to pay $3,000 in damages as she had co-signed for the apartment.

[101] When the oldest boy was born, the two teenagers and their baby moved in with Ms. B. They were very messy. The daughter left without warning, claiming she had been evicted by her Mother. A second baby boy was born. The baby’s father left. The daughter began dating a new man. The youngest baby came sometime after this period of time. The daughter then began dating Shawn.

[102] Ms. B. recalled the incident when the middle boy climbed on a dresser and a television fell on his head, inflicting a severe skull fracture. Ms. B. was willing to assume care of the boy while he was recovering and so he came to reside with her.

[103] A kinship assessment was conducted. Representatives of the Society met with Ms. B. and her partner, Barry. The other two children were living with their Mother during this time.

[104] The other two children also ended up in foster care. Ms. B. ensured that the middle child had access to his siblings who were living with foster parents during this time.

[105] Ms. B. said that she received a phone call at Christmas in 2016 advising her that her daughter was ready to have her children return. Ms. B. attended at the foster mom’s house to make sure the kids were okay.

[106] Ms. B. said it came as a surprise to “all of us” that the Society was returning the children to her daughter. While Ms. B. testified that she was supportive of her daughter, I was left with the impression that she did not approve of the return of the children to their Mother.

[107] Ms. B. continued to have the children visit her on weekends when she could. She visited with them on summer holidays and would take them for weeks at a time if she had holidays.

[108] Ms. B. received a call from her daughter indicating that M.S. had bit her in the hand and beat her up. He threatened to kill the children according to the Mother. Ms. B. flew back to Ottawa from Toronto and retrieved the kids. This was the incident which formed the basis for the assault and mischief charge. I admitted this evidence only for narrative to explain why Ms. B. flew back to retrieve the children. I did not admit this evidence for the truth of its contents. While the evidence was necessary, I had concerns about the reliability of the statement. It was not a complete statement and I was concerned about the incomplete nature of the utterance in question.

[109] Ms. B. said the children have been in her care ever since that incident. Her daughter is estranged from her and sometimes sends her violent and angry text messages.

[110] After she retrieved the children, Ms. B. said her life was engulfed in the care of the children. Workers came to her house every couple of days. Another kinship assessment was conducted.

[111] Her daughter requested that she bring Advil to the hospital when she was there for surgery and when her Mother refused, the daughter became very angry. M.S. called Ms. B. and screamed at her. Ms. B. called the hospital to report this incident.

[112] Ms. B. said that the children have been visiting their Mother on Wednesday after school. In the past few months, Ms. B. said her daughter has made almost every visit. However, when she had surgery, she was gone for three or four months without speaking to her children.

[113] Ms. B. felt that some of the access visits were happy, but the youngest child is frequently crying at the end of the visits. The last visit on Wednesday left all of the children upset, Ms. B. said.

[114] Ms. B. said she liked the idea of the children being in her custody. She loves being a grandma. She could not imagine the children going to a stranger. The children bring her joy and she wishes to help them. Ms. B. said that she hoped the children would one day be able to go back to their Mother. I did not accept that Ms. B. hoped the children would return to their Mother. She seemed to prevaricate on this point and said that perhaps she and her daughter could share the children. Despite her evidence to the contrary, I was not convinced that the grandmother appreciated the importance of parental contact with the children.

[115] Ms. B. said that the children will never be alone with their grandfather, or with her son.

[116] She hoped that her daughter would be willing to sign up for supervised access through a family services program. However, there is an eight month waiting period and both parties have to be willing to engage in the counselling.

[117] Ms. B. demonstrated a good knowledge of the children’s activities at school. She has the children in a good routine and engages in activities with them.

[118] The oldest child is in a special program for one year at a different school. He is thriving in this program. All of the children have cultivated friendships at school and enjoy school. They are engaged in regular activities including swimming every weekend.

[119] Ms. B. lives with Barry in a 2.5 bedroom condo. The children share a bedroom. However, Ms. B. is willing to move to a bigger residence if the children are to permanently reside with her.

[120] Ms. B. has family support from her own Mother, and from her sister.

[121] Ms. Hess for the Office of the Children’s Lawyer, called Melissa Rumney as a witness in this trial. Ms. Rumney is a social worker who has been employed by the Society for the last 12 years.

[122] Ms. Rumney worked for nine years as a child protection worker and was formerly an assessor.

[123] Ms. Rumney has been working with the family since November of 2018. Ms. Rumney met with the maternal grandmother, Ms. B. every six weeks.

[124] She described the oldest boy as more subdued than his siblings. She found him open to more in-depth conversations than his siblings. He has a good relationship with his grandmother and loves school. He also loves his Mother and usually enjoys his visits with his Mother.

[125] The middle boy is in grade three. He has Attention Deficit Hyperactivity Disorder for which he takes medication. He has a good relationship with his family and is doing well in school.

[126] The youngest child is in grade one. She is doing well socially and academically. Ms. Rumney found her to be a fun loving child who is affectionate with her family.

[127] Ms. Rumney had never seen the children’s Mother interact with them as she has not supervised an access visit.

[128] While the children formerly expressed a desire to go home, they more recently have expressed a desire to remain with the maternal grandmother, who they call Nana.

[129] Ms. Rumney testified that the maternal grandmother once spanked the youngest daughter, which prompted the child to say she would prefer to live with her mom. However, Ms. Rumney, after speaking to the maternal grandmother felt that this was an incident which would not be repeated. Ms. B. now disciplines the children by removing privileges.

[130] Ms. Rumney’s evidence confirmed that Ms. B., at this time in her life is a much better grandmother than she was a Mother to her own children. Ms. Rumney found her to be cooperative with the Society. Generally, she felt that the grandmother did a good job parenting the children.

[131] While Ms. Rumney testified that the concerns regarding protection remained in relation to the children’s Mother, due to addiction issues, and violence in the home, she had no concerns with the children remaining with their maternal grandmother.

Credibility of the Witnesses

[132] I found the witnesses from the Society to be credible. I found their evidence to be reliable. All of the workers were willing to acknowledge the positive qualities and the progress which the Mother in this case sometimes exhibited. I found this willingness to admit positive qualities in the Mother to be a mark of a credible witness.

[133] I found that the maternal grandmother was at times anxious to portray her past in a more positive light than was warranted in the circumstances. For example, she essentially abandoned her 14 year old daughter, leaving her alone with her boyfriend, who was also a teenager. The child later became pregnant. The house burned down. The child did not attend school. I also found her evidence regarding the abuse of the daughter just not being followed up on by both the police and the Society to be not credible. The grandmother seemed to blame both the Society and the police for failing to do enough to help with that situation. I do not accept that the police or the Society would not follow up on a complaint of sexual abuse of a child. Rather, I found that the maternal grandmother was attempting to shift responsibility for the lack of follow up with regard to allegations of abuse by her daughter.

[134] I also found that the grandmother was not being completely honest with the court when she said she hoped the children could be returned to her Mother. I found her later comment that perhaps she and her daughter could share the children to be a more sincere expression of her views.

[135] However, much time has passed since the days when Ms. B. was a Mother. She has proven to be a stabilizing and positive force in the lives of her daughter’s children. I accepted that she loved them and that she will do everything in her power to help them grow up to be well adjusted adults. She is also, unlike her daughter, equipped to raise the children.

[136] The maternal grandmother is involved with the children in their day-to-day activities. She works from home and is stable financially. Her health issues are under control.

[137] The Mother’s plan is that she and M.S. will raise the children together. M.S. has a history of domestic violence toward the Mother. The Mother has a history of engaging in relationships with violent men. Much of this violence has occurred in front of the children. The Mother has demonstrated an unwillingness, on the evidence before me, to care for her children without M.S.

[138] There is evidence of drug use by both M.S. and by the Mother of the children. The Mother has had a history with the Society. There have been periods when the children were not in her care. The evidence of Ms. Laing, Ms. Carkner and the maternal grandmother spoke to the Mother’s irritability, volatility and low tolerance for frustration. The Mother has demonstrated a repeated failure to protect her children from men who are violent towards her. There has been a general regression in terms of her ability to engage with professionals willing to assist with the development of parenting skills. There is some evidence of mental health concerns with the Mother.

[139] The children appear to be thriving in the care of their grandmother. There are no identifiable protection concerns on the evidence before me in relation to the maternal grandmother. As I indicated, she is a much better grandmother than she was a mother. The grandmother consents to having custody of the children and her evidence satisfied me she fully appreciated the full impact of that decision.

Legal Analysis

[140] In a status review hearing the original order being reviewed is assumed correct. This is not a secondary hearing, or a re-trial of the order previously made. (See Children’s Aid Society of Hamilton v. C.G., 2013 ONSC 4972).

[141] The analysis proceeds in two stages, as set out in the Ontario Court of Appeal in Children’s Aid Society of Oxford v. W.T.C., 2013 ONCA 491:

1. I must first determine whether the children continue to be in need of protection and, as a consequence, require a court order for their protection;
2. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the children.

Child in need of protection

S.74. A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[142] I have found that the children remain in need in need of protection and in need of intervention by the court to protect the children in the future. I find that there is a very real risk that the children will be harmed by the Mother’s pattern of neglect in protecting her children from the effects of domestic violence. The Mother has an ongoing pattern of cultivating relationships with partners who are violent. The children have witnessed this violence on more than one occasion. The evidence of drug use by the Mother in this case also poses a significant risk that the children are likely to suffer physical harm by the failure of their Mother to adequately care for them or to supervise them. Having determined that the children remain in need of protection, and as a result, require a court order for their protection, I must determine which of the range of orders is in the best interest of the children.

[143] The Society seeks a custody order under s. 102 of the Act. Section 102 reads—(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 the 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.

[144] Section 101 of the Act reads:

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.

[145] The Society lead a body of evidence which demonstrated the efforts the Society has made to assist the children before seeking an order under s. 102. A section 102(2) order authorizes me to make a custody order which is deemed to be made under the Children’s Law Reform Act [3] with respect to these children.

[146] Section 114 of the Act deals with the ability of the court to vary orders on a status review application. Upon an application for review of status the court may, in the child’s best interests,

(A) Vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order; (B) Order that the original order terminate on a specified future date; Make a further order or orders under s. 101; or (C) Make an order under s. 102.

[147] Section 74(3) lists a number of factors which must be considered when determining what order would be in the children’s best interest. I have considered those factors, and all of the factors which I viewed as relevant.

[148] The children’s views and wishes must be considered and given due weight given their ages and maturity. The children in this case have expressed a wish to remain with the maternal grandmother. While they are young children, they are not too young to express their views with clarity. The children’s needs are being met by their grandmother. The oldest boy is receiving special educational treatment. The middle child is on appropriate medication for his ADHD. The maternal grandmother is able to meet the physical needs of the children by having them receive proper medical care, by interacting with teachers, and by engaging them in community activities, like swimming. Unfortunately, the evidence before me is that the Mother is not in a place where she can provide the children with the appropriate care of their physical, mental and emotional needs.

[149] I have also considered the importance for the children of a positive relationship with a parent and a secure place as a member of a family. This aspect of the order troubled me a great deal. The Society sought access to be at the sole discretion of the grandmother. At the issuance of this order, supervised access will no longer be available to the Mother through the Society. Given the deterioration of the relationship between the Mother and the daughter, I have concerns that access to the children will be limited. Several proposals for private supervision, or meeting in the community or through a family member were proposed in this trial. Ultimately though, the seat of the problem is that the Mother is so angry with the grandmother that the prospects for access are compromised. I can understand the Mother feeling that the grandmother has taken her children, and her bitterness about her own childhood trauma. However, the issue of access rests squarely with the Mother coming to terms with the fact that if she wants to see her children, she will have to demonstrate that she is willing to be civil to her Mother and to follow whatever terms the maternal grandmother deems necessary. The test for determining what is in the best interests of the children is a balancing test. As indicated, I have concerns that access to the Mother will be lost for a time, perhaps for good. However, I had to weigh this concern about the loss of parental access with the other factors such as the safety of the children, their need for a stable home, the need to protect them from witnessing family violence, their need for regular health care and the fact they have been in the care of their maternal grandmother since November of 2018. In my view, the children cannot be returned to their Mother at this time. The Society plan has merit, and while not perfect, in my view the Society plan is in the best interest of the children. I have significant concern, based on the evidence, that the children will suffer real psychological harm, neglect and potential physical harm if returned to their Mother. The Society’s plan will better meet the children’s physical, mental and emotional needs. The Society’s plan will better address the children’s physical mental and emotional level of development. The Society’s plan will better address the children’s need for continuity and stability. I have found that the risk to the children if they were to be returned to their Mother at this point to be too high, and that the Society plan is the only realistic plan before me.

[150] The least disruptive disposition, consistent with the children’s best interests is to place them in the care and custody of their maternal grandmother, pursuant to Section 102 of the Act. Access to the children will be at her sole discretion.

Released: January 30, 2020 A.E. London-Weinstein J.

Footnotes

[1] Child and Family Services Act, R.S.O. 1990, c. C.11

[2] Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am.

[3] Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am.