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 NO.: 21-111

DATE: 20210526

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, S.O. 2017

BETWEEN

Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry Applicant

– and –

S.F. Respondent

B.F.-S. Respondent

A.B.-F. Respondent

Melanie Verdone, for the Applicant

Catherine Purvis, for the Respondent S.F.

Eve Theriault, for the Respondent B.F.-S.

Self-represented

Stephane Perrault, OCL

HEARD: May 12, 2021

RULING ON TEMPORARY CARE AND CUSTODY HEARING

Justice Hélène C. Desormeau

[1] This ruling is in relation to a temporary care and custody hearing held May 12, 2021 with regard to the children E, who is 7 years old and A, who is 2 years old.

[2] For the reasons set out below, the order sought by the Children’s Aid Society that the children be placed in the temporary care of the Society is granted, with access at the discretion of the Society.

Materials reviewed

[3] The court has reviewed and considered the following evidence filed for this motion:

(a) For the Society: a. Affidavits of Andree-Ann Richer, dated April 15, 2021 and May 12, 2021; b. Affidavit of Jennifer Rutt, dated April 15, 2021; c. Affidavit of Stacey Bergeron, dated May 6, 2021; and d. Affidavit of J, dated May 7, 2021.

(b) For the Mother: a. Notice of Motion; b. Affidavit of S, dated May 5, 2021, as well as her Answer and Plan of Care and factum; and c. Affidavit of Maxwell Price, dated March 30, 2020;

(c) For R, the paternal grandmother: a. Affidavit of R, dated May 5, 2021 and factum.

(d) For the OCL: a. Views and wishes from counsel table.

Background

[4] The Society is seeking an order that E and A be placed in the temporary care and custody of the Society, with access to the parents at the discretion of the Society. The parents oppose the Society’s motion and seek an order returning the children to the Mother’s care, with or without supervision of the Society, or alternatively to R’s care, pursuant to the supervision of the Society.

[5] The Mother to both children is S.F. (“S” or “the Mother”). A.B.-F. is E’s Father. He has been noted in default. A’s Father is B.F.-S. (“B”), who also acted as a Father to E. B is currently incarcerated on a number of charges which are salient to Society’s involvement with this family. Given B’s incarceration, he supports the Mother’s plan for the return of the children to her care, or alternatively, proposes that the children be placed in kin care with his Mother, R.F. (“R”, or the “paternal grandmother”). The other salient parties in this matter are J.P., the children’s maternal grandmother, (“J” or “maternal grandmother”), and M.T., the children’s maternal uncle.

[6] The children are not First Nations, Metis or Inuk children and do not identify or associate with a Band or Indigenous community.

[7] A brief overview of the history of this file shows it commenced in Kingston, where S and B had been residing since approximately September 2019. Family and Children’s Services of Frontenac, Lennox and Addington (“Kingston CAS”) became involved with the family following allegations that B had an electronic image that depicted him sexually abusing a pre-pubescent girl. While police investigated the matter, the Kingston CAS developed a safety plan that was adjusted several times.

[8] On or about April 22, 2020, B was arrested and criminally charged with possession and accessing child pornography, sexual assault, sexual exploitation, sexual interference and creating child pornography. He was detained and subsequently released on bail. Conditions of B’s release included to reside with his surety, R, in South Glengarry, not have any direct or indirect contact with S, and his internet use was to be done under the supervision of his surety. S was also arrested and charged with possession of child pornography after she withdrew her cooperation with the police investigation. She was released on a recognizance. The charges remain outstanding before the Ontario Court of Justice in Kingston.

[9] A protection application was brought following S and B’s arrest. In April 2020, Minnema J. granted a temporary order, placing the two children in the care of J, the maternal grandmother, subject to the supervision of the Kingston CAS, and under the conditions of that order. One such condition permitted the Mother to reside with J, provided that her contact with the children was supervised. B’s access to the children was supervised by his mother R and/or the maternal grandmother J. While initially the access between B and the children was virtual, eventually it moved to in person access, supervised as per the direction of the Kingston CAS.

[10] Given S and J’s cooperation together, as well as their cooperation with the Kingston CAS, that S consistently stated she continued to have no contact with B, that the children’s needs were being met and their behaviours were being well managed, on October 27, 2020, Kingston CAS brought a motion to vary the April 2020 temporary order. On consent, Minnema J. granted a temporary order placing the children in the care of the Mother, subject to the supervision of the Kingston CAS under terms and conditions, with access between the children and B to be at the discretion of the Kingston CAS.

[11] The Mother and J received the approval by the Kingston CAS to move with the children to Cornwall. Kingston CAS received the assistance of the Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry in Cornwall (“Cornwall CAS” or “the Society”) to supervise the placement as its agent. B’s access to the children increased to every weekend, supervised by one or both of the grandmothers.

[12] In late February 2021, B was arrested and charged with several sexual offences, including sexual assault against E based on statements made by E to the police and other evidence collected by police. B is currently being detained at the Ottawa-Carleton Detention Centre. As a result of the charges, B has strict no-contact provisions with the children.

[13] On April 16, 2021, Leroy J. made a temporary, without prejudice order placing E and A in the care of the Society.

The Applicable Law

[14] The Child, Youth and Family Services Act (“CYFSA” or “Act”) promotes as its paramount purpose the best interests, protection, and wellbeing of children and recognizes the need for help to give support to the autonomy and integrity of the family unit. It also recognizes that the least disruptive course of action available and appropriate should be considered. It provides that services to children should respect the child’s need for continuity of care and for stable relationships within a family: Children’s Aid Society of Algoma v. T.W., 2018 ONCJ 451, at para. 28; also see preamble of CYFSA as well as s.1(1) and s.1(2) CYFSA.

[15] Section 74(3) sets out the criteria the court must consider making an order or determination in the best interests of a child:

(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. 2017, c. 14, Sched. 1, s. 74 (3).

[16] Section 94(2) CYFSA states that where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

[17] Section 94(4) CYFSA states that the court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

[18] Section 94(5) CYFSA goes on to state that before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

[19] Where the court makes a temporary order under section 94(2)(b) or (c) CYFSA, section 94(6) CYFSA permits the court to impose reasonable terms and conditions relating to the child(ren)’s care and supervision on the parent or the person who will have care and custody of the child under the order, other than a foster parent, who is putting forward a plan or who will participate in a plan for care and custody of, or access to the child(ren). It also allows the court to impose reasonable terms and conditions on the Society that will supervise the placement. If the court makes an order pursuant to 94(2)(d), section 110 applies with the necessary modifications.

[20] The legislation creates a hierarchy of the choices available to the court, starting with the least intrusive option of 94(2)(a) CYFSA.

[21] Before making an order under s.94(2) CYFSA, the court shall take into consideration the child’s views and wishes, given the due weight in accordance with the child’s age and maturity, unless they cannot be ascertained: See s.94(11) CYFSA. In this case, the OCL is able to present E’s views and wishes. A is two years old and unable to verbalize her views and wishes.

[22] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), 2000 CarswellOnt 2156 (Ont. S.C.J.) at para. 6. Simply stated, this is a two-part test that the Society has to meet.

[23] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) CYFSA): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448, at para 29; CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., 2019 ONSC 5365, at para. 39; also see s.94(2) CYFSA.

[24] Terms and conditions relating to the children's care and supervision must be reasonable and proportionate to the specific risks highlighted by the evidence: CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., supra, at para. 40.

[25] The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827 (ON SCDC), [2005] O.J. No. 5050 (Ont. Div. Ct.). The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care: CCAS of Toronto v. M.L.R., 2011 ONCJ 652.

[26] The temporary care and custody proceeding, though governed by a self-contained code of procedure contained in the Act and the Rules will follow the normal principles of evidence except that the interests of the children are not to be thwarted by an over rigid application of the rules of evidence or procedure. But the interests of the child will always require that the truth be established and the rules of evidence and procedure followed: Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., 2019 ONCJ 961, at para. 47.

[27] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., supra at para. 38.

[28] Evidence is not to be excluded solely on the basis that it is hearsay evidence and it follows that any party can lead evidence of statements made which are either not repeated or denied in court. This is particularly pertinent in relation to statements made by the children to social workers or their own counsel concerning how he or she has been treated: Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., supra, at para. 51.

[29] As the Caspers J. goes on to state in O.-D.B. and D.B., surpa, the fundamental principle is succinctly articulated by Justice Katarynych in her decision in Children's Aid Society of Toronto v. M. (A.), 2002 CanLII 45665 (ON CJ), [2002] O.J. No. 1432 (Ont. C.J.) at paragraphs 69 and 70,

Just dealing requires a respect for the rules of evidence. At the risk of stating the obvious, what is evaluated in this motion, as in any other motion, is evidence. Supposition, conjecture, speculation, leaps of hyperbole, innuendo, gossip, unqualified opinion where qualified opinion is required - all have no place in an affidavit. If the decision-making in the motion is to be just, counsel must ensure that the affidavits are stripped of this sort of material before they are filed in the motion record.

At this early stage, the evidentiary case can be expected to include information obtained from others that is then advanced through the vehicle of a social worker's affidavit as "credible and trustworthy" evidence. The information must rise to the level of evidence....

[emphasis in original]

Analysis

[30] Based on evidence which I must find to be credible and trustworthy, the onus is on the Society to satisfy the court that (a) there are reasonable grounds to believe that there is a risk that the children are likely to suffer harm and that (b) the children cannot be adequately protected by an order returning the children to the Mother, with or without a supervision order. The burden of proof on the Society is something less than proof on a balance of probabilities.

[31] If the Society discharges its burden of proof under s.94(2)(a) and (b) CYFSA, such that the children cannot be returned to the care of the Mother, then I must evaluate the alternate plan proposed by the paternal grandmother to determine if placement, subject to the Society’s supervision, does not place the children at risk.

[32] I must consider the least restrictive order available and appropriate in the circumstances of this case, which is consistent with the best interests, protection and well being of the children in question: Children’s Aid Society of Halton (Region) v. A.(J.), 2011 ONCJ 624, at para. 43.

[33] In view of E’s ability to express to his OCL counsel his views and wishes, these must also be considered, given due weight.

[34] Having considered the circumstances of this case, at this early and interim stage of the child protection proceedings, I conclude that the children cannot be returned to the Mother’s care, with or without a supervision order for the following reasons.

[35] In or about March 2020, the Mother discovered disturbing images on B’s computer, which she photographed. She later admitted to the Society worker that she saw a picture of a hand which she identified as B’s hand, on a child’s vagina. The picture also depicts a blanket, which was later thrown away.

[36] The Mother confronts B, who convinces her not to report the information to the police. It is another party who advises the police, which results in the criminal charges mentioned above against the Mother and B. Despite the criminal charges, the Society’s involvement, and strict supervision conditions with regard to B’s access, on or about February 2021, photographs of E giving fellatio to B are discovered online.

[37] I am unable to conclude, based on J’s contradictory evidence, whether she personally saw the photograph taken by the Mother. It is more likely than not that she did. The evidence suggests R was also aware of the photograph.

[38] J states that B and the Mother directed her to discard the blanket depicted in the photograph. The Mother states that she threw it out herself. J assumes the blanket was discarded as it had semen on it. The Mother tells the worker Ms. Richer that she threw out the blanket because of the bad memories it conjured, not because there was semen on it. Regardless of the reason or who did it, this is destruction of potentially important evidence.

[39] J provides the court with some salient and yet inconsistent evidence regarding seeing the picture in question and how the blanket came to be disposed of. J admits to having lied about B co-sleeping with A. Due to these inconsistencies, I place very little weight on J’s evidence where it is not otherwise confirmed.

[40] E makes a disclosure to his Mother regarding to B and “white stuff” coming out of B’s penis, and E also says something about B’s penis in his bum. E tells the police about when he would have disclosed to his Mother that B puts his penis in E’s bum. E tells the workers, and police, that he expressed concern about B’s behaviour while the family resided in Kingston. According to J, the disclosures occurs shortly after B’s initial arrest.

[41] It is not denied by the Mother that E made concerning statements about B. Her evidence to the Society workers is that this disclosure would have occurred in the summer of 2020. The Mother’s evidence is that after E made the disclosure, she discussed same with both the maternal and paternal grandmother. Seemingly, the Mother and grandmothers “collectively concluded” that nothing untoward had occurred between B and E. While R suggested the Mother take E to the hospital if she believed E had been harmed, this did not occur.

[42] The Mother also confronted B, who was “adamant that he had never harmed E and that he would never harm E in a sexual manner”.

[43] In February 2021 the Mother tells the police that E never gave any indication that B was harming him.

[44] R initially indicates that the Mother never brought forward E’s comments about B’s penis, but later confirms knowledge of same.

[45] E expresses to a number of Society workers that neither the Mother nor R believed him regarding the disclosures.

[46] E also expresses to a number of workers that his Mother did not “save him”. I find this to be evidence of E’s state of mind.

[47] E tells his uncle M.T. that B’s abuse commenced when the family resided in Kanata, which would have been in or about 2017/2018.

[48] E tells the police that sexual abuse occurred in Cornwall, Kingston and when the family resided in Ottawa.

[49] The evidence shows that when one or both of grandmothers were “supervising” the access visits, neither were as vigilant to the terms of the order as required, affording B opportunities to be alone with E and/or A.

[50] The paternal grandmother confirms with the Society workers that B co-slept with A, with her knowledge, despite the strict supervisory conditions. She suggests that the door to the bedroom was open at all times and therefore she could see him with A.

[51] The Mother acknowledges being aware of B having been previously accused of sexually harming a 5 year old male child when he was 12 years of age. The protection concerns about B with regard to that incident were verified by the Society.

[52] The Mother’s evidence in her May 5, 2021 affidavit is that she was “completely appalled and sickened to recently learn that B had previously sexually abused E and that he continued to do so on access visits” at R’s home. She did not believe him capable of these actions, and as a result, reconciliation is no longer a possibility. The Mother acknowledges her tragic error in judgment in believing B’s assurances that he would never harm the children.

[53] Despite all of the above concerns as well as the criminal restrictions on contact, I find that the Mother continued to have both virtual and physical contact with B.

[54] I have no difficulty in finding that the Society has met the first part of the two part tests to keep the children in care. There are reasonable grounds to believe that there is a risk that if the children are returned to the Mother that the children are likely to suffer harm.

[55] The Mother presents a plan of care which includes a commitment to work closely with the Children’s Treatment Centre and any other recommended agency or professionals to obtain help for E in dealing with the trauma associated with his victimization, apprehension and dislocation of his family.

[56] The Mother agrees to work cooperatively with the Society.

[57] The difficulty I have with the Mother’s evidence is that she previously stated that her relationship with B was terminated. The evidence supports that despite criminal no-contact conditions, she continued to see B both virtually, and more troubling, physically.

[58] She purports to have been manipulated by B, and notes her error in judgment in believing B would never harm the children. However, the evidence shows her prior knowledge of B’s history as a youth, as well as having seen physical proof of B being sexually inappropriate with the Mother’s niece. This should have sent up the red flags, despite the assurances given by B.

[59] Further, despite E’s disclosure to his Mother, there is no evidence that E was ever taken to the hospital to verify or disavow the allegations of sexual abuse.

[60] The evidence suggests that E could have been abused by B as early as 2017/2018.

[61] It is unclear at this early stage whether in fact the Mother was naïve, was being manipulated or was being willfully blind to what was happening in her home. Until B’s most recent arrest in February 2021, she demonstrated no insight regarding the risks to her children.

[62] I accept that the Mother loves the children deeply and has taken steps to address the issues raised by the Society. However, I have legitimate concerns about her judgment.

[63] I have also considered E’s views and wishes. Though he is only 7 years old, according to the worker Ms. Richer, E is a well-spoken, intelligent and very engaging boy. This is not contested by any party. E has told the worker, and his counsel, that at this time he does not wish to return to his Mother’s care, nor does he wish to be separated from his sister. E has been through a significant amount of trauma and changes. In addition to the sexual abuse, he also recently learned that B is not his biological father.

[64] The Mother submits that the risk to the children has been eliminated as B is currently incarcerated and cannot have contact with the children. Unfortunately, the Mother demonstrated an inability to abide by court orders when she continued to see the Father despite a no-contact order against her. While B being incarcerated mitigates the risk of him physically harming either child, it does not remove the risk of emotional harm should he reach out to the Mother or the paternal grandmother, both of whom have been manipulated by him.

[65] The Mother describes in her affidavit and Answer and Plan of Care the steps she wishes to take to improve herself for her children. However, B was charged in February 2021 there is very little evidence of concrete steps already taken by her other than in crisis situations.

[66] I am not satisfied that the Mother’s lack of judgment was isolated.

[67] I find that supervision terms would be inadequate to protect the children if they were placed in the temporary care of the Mother.

[68] The denial of the Mother’s request leads me to the next step, to determine whether it is in the children’s best interest to make an order placing them in the care and custody of a relative or a member of the children’s extended family or community.

[69] In order for me to determine if the children would be adequately protected if placed in the paternal grandmother’s care, I must be satisfied that the supervision and the conditions will be adhered to in a meaningful manner.

[70] R’s evidence, as found in her affidavit dated May 5, 2021, is that she does not support any contact between the children and their father given the serious nature of the criminal allegations of him having harmed the both children.[^1] R states that the children’s needs and in particular their need for a safe environment is paramount.

[71] R speaks of playing a fairly large part in the children’s lives, particularly since the family moved to Cornwall. In March 2020, R provided support to the family, she states in her affidavit that “[a]t the time, I did not believe that [B] was guilty of the allegations that had been made against him.” She indicates she was surprised by the Kingston CAS regularly modifying the safety plan with little notice, and gradually reducing the face-to-face contact between B and the children.

[72] In April 2020, she became B’s surety. She indicates she took her responsibilities as a surety very seriously and was aware of the conditions B had to follow as part of his bail conditions. Only after his arrest in February 2021 did she become aware that B had access to an iPad that belonged to E, which J permitted him to keep in the home.

[73] R did not facilitate any contact between the Mother and B, as per his criminal release conditions. She states that at no point while supervising the children did she see anything inappropriate occur between B and either of the children. Her evidence is that she would have called the police and contacted the Society had this occurred. When B was arrested on February 28, 2021, the charges came as a complete shock to her. She has not had any contact with the children since March 18, 2021.

[74] When R reached out to the Society for access, she was advised of the Society’s position that they opposed access to the children under any circumstances. It is only on April 20, 2021 that she is advised by Kingston CAS that they had verified she was fully aware of the potential risk B posed around the children and that she did not protect the children from harm. While the Kingston CAS indicates that both grandmothers were supposed to be present for any access visits, the evidence as I see it does not support the assertion of simultaneous dual supervision being required.

[75] R’s plan is to have the children placed in her care, in her home in Martintown. She will continue to follow the children’s routines including daycare. She will enroll E into intensive counselling offered at the Children’s Mental Health Services at the Cornwall Community Hospital or be supportive of any other counselling or services E is attending. She has the support of several neighbours and friends who know the children and some of whom are fully aware of the criminal allegations against B. Finally, she will continue to support regular and frequent access with the Mother under any conditions imposed by the Court or the Society.

[76] R will not permit any contact between B and the children.

[77] If the children are not placed in her care, she would like to be able to have some contact or access with the children in order to maintain her pre-existing relationship with them.

[78] Based on the Society worker Mr. Price’s affidavit, it is clear that R was aware of B’s criminal charges of sexual abuse when he was 12 years old.

[79] Notwithstanding having knowledge of the allegations before the court, R does not address in her affidavit any information about knowledge of the photograph which led to the first set of charges.

[80] Based on her conversation with the Society worker Ms. Richer, R vaguely recalled the Mother sharing some comments about E referring to B’s penis. It would have been helpful if this had been addressed in R’s affidavit.

[81] Based on the evidence which I accept, I find that R permitted B to co-sleep with A despite the strict supervision conditions. I do not accept that R was able to properly supervise B when he and A were co-sleeping in a different room, despite her assertions to the contrary.

[82] Unfortunately, given the Mother and R’s affidavits were dated the same date, and the Society worker Ms. Richer’s May 12, 2021 affidavit, there are some allegations raised which are not addressed by R, such as R’s knowledge of the blanket being thrown out. R did however advise Ms. Richer that she would never tell anyone to destroy any evidence.

[83] E has expressed to his counsel that he does not want any contact with R. The OCL advocates on E’s behalf indicating that he would oppose E being placed with R. He submits that to bring the child back to the home where it is likely he was sexually assaulted is not be in E’s best interest. OCL suggests that input from E’s trauma counsellor would be beneficial to properly address this issue. Counsel reiterates that the children should not be separated.

[84] I have no doubt that R loves the children and wishes to care for them.

[85] However, B is charged with serious and significant allegations of a sexual nature, and there was a valid court order requiring all access to be supervised. In fact, in the face of Minnema J’s order of October 27, 2020 at paragraph 2, which states that “B shall not be left alone with the children, shall not be present in the children’s bedrooms, shall not sleep in the same room as the children…”, R permitted B to co-sleep with A.

[86] Ultimately, I am not persuaded, based on the evidence that I find credible and reliable, that the paternal grandmother will abide by the terms and conditions that would be imposed by this Court.

[87] Based on the foregoing, I find that the least disruptive placement for these children at this time is continued placement in care.

[88] This is also the placement that is consistent with the children’s best interests, having regard to the factors set out in section 74 CYFSA.

Access

[89] I turn now to the issue of interim access, which is governed by s.94(8) CYFSA, which states that an order made under clause 94(2)(c) or (d) CYFSA may contain provisions regarding any person’s right of access to the child on such terms and conditions the court considers appropriate.

[90] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the Act: Jewish Family and Child Services of Greater Toronto v. S.(H.B.),[2012] O.J. No. 5055 (Ont. C.J.); Children’s Aid Society of Oxford County v. C.O., 2020 ONCJ 400, at para. 15.

[91] The Society’s position is that access should be at the discretion of the Society.

[92] The Society’s plan, as articulated at the motion, is to have A see her Mother two to three times per week, at this time at the supervised access centre, supervised by a Child and Family Worker. E’s access to his Mother would remain once per week, as per his current wishes. He would be permitted daily telephone calls to his Mother, at a set time. He would also be permitted to attend A’s visits, should he wish to attend.

[93] The Society currently opposes commencing access between the children and R. This is strongly driven by E’s statements that he does not wish to have contact with R.

[94] The Mother is seeking regular overnight access with the children.

[95] R is seeking access under terms that the court considers in the children’s best interest.

[96] At this time, E’s views and preferences are to maintain the current access schedule with the children and their Mother. He does not wish any contact with R.

[97] The Mother has demonstrated a commitment to having regular access with the children. Until the most recent Society intervention, she has always been a central part of their lives.

[98] The Mother’s parenting is not at issue. It is her ability to follow orders, to protect the children from actual or risk of sexual harm. It is the ability not to be manipulated, or be blind, to others who could harm the children.

[99] The Mother is in the process of accessing services to help address these issues. She appears to be committed to the children’s eventual return to her care.

[100] The evidence informs the Court that it is in the children’s best interest to increase the Mother’s access as she continues to engage in services. At this stage, I find the Society’s proposal regarding increasing access is acceptable. I find that discretion is required to permit a trajectory to be built and complied with as the Mother continues to make gains and as E becomes more open to seeing his Mother frequently.

[101] Turning to R’s request for access. R has not seen the children since March 18, 2021. Prior to then, she was seeing the children, since January 2020 onward, regularly. She is prepared to agree to supervised access if so required.

[102] E is currently opposed to seeing R. This may change.

[103] E has been through a lot of trauma, some of which likely occurred at R’s home.

[104] I believe E needs counselling, which may open up the possibility of him having access to R.

[105] At this time, I am not persuaded it would be in E’s best interest to make an order for access to R. Nor am I persuaded it is appropriate to separate the children for the purpose of A having access to R. As such, I leave access between R and the children at the discretion of the Society.

Disposition

[106] The order sought by the Children’s Aid Society that the children be placed in the temporary care of the Society is granted.

[107] With regard to the Mother and to R, access shall be at the Society’s discretion.

Madam Justice Hélène C. Desormeau

Released: May 26, 2021

[^1]: Though the affidavit references allegations against both children, at this time the court is only aware of allegations of B harming E.