WARNING

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.: 18-103

DATE: 20210201

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 –

A.R.

Respondent

S.C.

Respondent

D.A.

Respondent

Melanie Verdone, for the Applicant

David J. Barnhart, for the Respondent A.R.

Robert Vitulano, for the Respondent S.C.

Penelope Gardner, for the Respondent D.A.

Stephane Perrault, OCL

HEARD: November 30, 2020, December 1, 2, 3, 4, 7, 8, 9, 10, 11, 2020

REASONS FOR JUDGMENT

Justice Hélène C. Desormeau

Introduction

[1] At the commencement of the hearing of this child protection trial, eight year old G, had been in the interim care of the Children’s Aid Society of United Counties of Stormont, Dundas and Glengarry (the “Society”) for approximately 411 days, while almost three year old J was in the Society’s care for approximately 578 days. In total, G was outside of his Mother’s care for approximately 1059 days, of which 648 were with kin pursuant to supervision orders.

[2] The Court must now determine whether a continued finding is appropriate, and if so, what disposition is in the children’s best interest.

Position of the Parties

[3] A.R. (the “Mother”) is the mother to both 8 year old G and two year old J, who are brothers. G’s father is S.C. and J’s father is D.A. Of note, through D.A., J is of Cree, First Nations, heritage.

[4] The Mother presented a plan for the return of both children to her care, with or without a supervision order. The Mother opposes a continued finding that the children are in need of protection (“Finding”). Alternatively, the Mother seeks access to the children.

[5] At trial, neither S.C. nor D.A. chose to participate. No evidence was called on behalf of either father. Counsel however made representations on behalf of their clients. S.C. consented to a continued finding regarding G. He supports both the Society’s and the Mother’s plans, and deferred to the court to make the ultimate determination. He requested to be an access holder, with access at the discretion of the Society or as deemed appropriate by the Court. S.C. supported a sibling relationship between the brothers. Through counsel, D.A. also consented to a finding that J is in need of protection, and sought to be an access holder, with access either at the discretion of the Society or at the discretion of the Mother. Given both of their positions, the Father’s requests will only be addressed at the end of this judgment.

[6] The Society sought an Order for Extended Society Care for both children. The Society supported the Final Orders including terms of access at the discretion of the Society for each child with their parent, and that the children as well as the parents be considered as access holders.

[7] The Office of the Children’s Lawyer (“OCL”) only represented G. The OCL supports the Society’s position. Should the court order Extended Society Care, then the OCL submitted that both children should be access holders to each other and to their parents.

[8] To facilitate the flow of evidence and conserve limited court resources, all witnesses at trial relied on affidavit evidence as well as a viva voce update to same for direct examination, and were subject to cross examination.

Background

[9] The parties filed a Statement of Agreed Facts (“SAF”), upon which the Court relies to set out some of the background.

[10] On or about May 26, 2017, G was removed from his Mother’s care and placed with his maternal aunt, S.R. On June 22, 2017, a temporary without prejudice order was made placing G in the temporary care and custody of S.R., subject to the supervision of the Family and Children’s Services of Frontenac, Lennox and Addington (“FCSFLA”). S.R. resided in the Stormont, Dundas and Glengarry (SD&G) jurisdiction whereas when the child was taken to a place of safety, he was residing in Kingston with his Mother. On August 31, 2017, both A.R. and S.C., G’s parents, were noted in default.

[11] On September 28, 2017, G was found to be a child in need of protection pursuant to section 37(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11[1] and was placed with S.R., subject to the supervision of the Society, with access to the parents at the discretion of the Society. G remained subject of extensions of the supervision order in the care of S.R. until its termination on June 26, 2019. On that same date, G was placed in his Mother’s care under a six month supervision order. G however had been on extended access in his Mother’s care since April 1, 2019.[2]

[12] In December 2017, after reports were received that A.R. and D.A. were residing in the SD&G jurisdiction, Katie Vachon was assigned to consider a request for a file transfer from FCSFLA. The Mother was pregnant at the time. On March 22, 2018, a Final Order was made transferring the file from FCSFLA to the Society. Additionally, on April 11, 2018 a temporary order was made to reflect the file transfer to the Society and to change the references in previous orders to the Society’s involvement.

[13] J was born in February 2018, and was discharged from the hospital into the care of his parents, A.R. and D.A. The Society agreed to continue to support the couple with their newborn son on a voluntary basis. During this time, both the Mother and D.A. continued to express to the Society their ultimate goal of having G returned to their care.

[14] On August 13, 2018, J was brought to a place of safety. On August 17, 2018, a temporary, without prejudice order was made placing J in the temporary care of the Society, with access to the parents at the discretion of the Society. J initially resided with his Maternal Grandmother but then later moved to a foster home.

[15] On September 19, 2018, a temporary order was made by Desormeau J. that it was in G’s best interests to extend the directed timelines.

[16] On October 10, 2018, following a temporary care and custody hearing before Champagne J., it was ordered that J would remain in the temporary care of the Society, but the parents access was to be increased.

[17] On November 28, 2018, Lafrance Cardinal J. made a final order finding that G continued to be in need of protection, and he was placed in the care of S.R. and her then partner, D.C. under a six-month supervision order.

[18] During this time, the Mother and D.A. continued to exercise access to both children while the Society continued to assess the children’s reintegration into their care.

[19] On January 30, 2019, a final order was made by Desormeau J. whereby J was found to be in need of protection. He was placed in the temporary care and custody of his parents, subject to the supervision of the Society, for a period of six months, subject to eight conditions.

[20] On April 1, 2019, S.R. advised the Society that she was no longer prepared to care for G with the knowledge that the Society continued to work towards G’s reintegration into A.R.’s care. As noted above, G was returned to his Mother’s care on April 1, 2019, by way of extended access.

[21] Throughout the following months, the Society workers continuously met with the family for both scheduled and unscheduled meetings. Both the Mother and D.A. were positively engaged with the Society, continued to use their supports for relief, and no concerns were observed or reported by G, who was interviewed on a regular basis.

[22] On June 26, 2019, as noted above, Champagne J. made a final order whereby a finding was made that G continued to be a child in need of protection. G was placed with the Mother, subject to the supervision of the Society for a period of six months, with 10 conditions.

[23] On August 28, 2019, the supervision order of January 30, 2019 was terminated on consent. J remained in the care of his parents.

[24] Following the termination of J’s supervision order, the Society remained involved with the Mother and D.A. and continued to support the family, as well as supervising G’s placement in the Mother’s care.

[25] In September and October 2019, the Society’s concerns increased.

[26] On October 11, 2019, A.R. and D.A. attended a meeting at the Society’s office. The Society’s concerns related to reported conflict and drug use were reviewed with the couple. A safety plan was developed whereby the children’s Maternal Grandmother, C.F., would be present with the Mother while in the presence of the children. Further, the safety plan required that D.A. not attend the home while the children were present.

[27] On October 15, 2019, G and J were removed from the care of the Mother and D.A. and taken to a place of safety, without a warrant.

[28] An early status review application was issued on October 17, 2019. Interim without prejudice orders were made by Desormeau J. on October 18, 2019 placing both G and J in the temporary care and custody of the Society, with access to their parents at the Society’s discretion.[3] Both children were placed in the care of S.R.

[29] The Mother started supervised access with the children on November 21, 2019.

[30] Following the children being brought to a place of safety on October 18, 2019, D.A. did not attend for a single access visit with his child J, nor with G.

[31] On March 17, 2020, the Society suspended in-person access visits due to the COVID-19 pandemic. The Society arranged for the Mother to exercise virtual access with G and J.

[32] The Mother last attended a virtual visit with the children on July 27, 2020.[4] Visits were resumed by way of court order on November 25, 2020. The Mother did not comply with the court order or attend two access visits during the course of the 10 day trial, the first one being December 1, 2020 as set out in the SAF.[5]

[33] During the November 26, 2020 access visit, the Mother inquired on a number of occasions from G if he remembers the family dogs from her Father’s home. While initially he indicated that he did not, he ultimately stated that he remembered them. It was the Mother’s recollection that during this visit, G expressed that he wanted to go see the Mother and his grandparents and play with the dog. The CAS worker on the call cannot confirm or deny this statement being made as there was a lot of noise during the call.

[34] The reason for the absence of visits between July 27, 2020[6] and November 25, 2020 is disputed.

[35] Following the COVID-19 pandemic, S.C. exercised virtual access with G. In late-April 2020, S.C. resumed in-person access visits with G, which occurred in the home of the Paternal Grandparents, and remained supervised. These visits were scheduled to occur every two weeks, from Fridays at 4:00 p.m. to Sundays at 2:00 p.m. In addition, S.C. continued to have scheduled telephone calls with G. In August and September 2020, S.C. was incarcerated and the Society’s communication with him was limited. In early September 2020, S.C. advised the Society he had been staying at Maison Renaissance since August 26, 2020. The Society had no contact with S.C. from September 23, 2020 to October 14, 2020. On October 30, 2020, S.C.’s access visits with G resumed, until his arrest and subsequent detention just prior to the November 30, 2020 trial date.

[36] Ultimately, as set out in the SAF, J has been found to be a child in need of protection on one occasion, namely January 30, 2019. G has been found to be a child in need of protection on three occasions, namely September 28, 2017, November 28, 2018 and January 26, 2019.

Hearsay Evidence

[37] Throughout the trial, the court heard a number of hearsay statements proffered for various purposes by Society witnesses. At the end of the trial, the Court heard arguments regarding the necessity, reliability and relevance of the hearsay statements, and the purpose for which they were tendered.

[38] Prior to hearing closing submissions, the Court ruled on which statements were admitted as evidence at trial. Some of the statements were admitted on consent on the parties, some by the Court as narrative and a few for the truth of their contents. The statements admitted into evidence form but one part of the evidence at trial.

[39] Anything upon which I intend to give any weight is addressed when referencing that comment. Anything not directly mentioned has been given no weight.

Credibility

[40] As in all cases, the credibility and reliability of witnesses are important considerations, particularly where there are different versions of events advanced by the parties.

[41] In assessing credibility, the Court is concerned with the witnesses’ truthfulness: R. v. C.(H.), 2009 ONCA 56 at para. 41. Reliability involves consideration of the accuracy of the witnesses’ testimony, considering their ability to accurately observe, recall and recount events in issue: R. v. C.(H.), ibid. A credible witness may provide unreliable evidence, as it is possible that the witness has misperceived events, has a poor memory or could simply be wrong. Ultimately, the Court must assess not merely the witnesses’ truthfulness, but also the accuracy of their evidence.

[42] As stated by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51 at para. 49: “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”

[43] Justice Nicholson, in Christakos v. De Caires,2016 ONSC 702, citing with approval Novak Estate, Re, referenced the following:

In assessing credibility in the face of conflicting evidence, MacDonald, J. adopted the outline set out in Novak Estate, Re, 2008 NSSC 283, 269 N.S.R. (2d) 84 (N.S. S.C.), at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133 (B.C. C.A.), it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 (N.S. C.A.) [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. (R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part, or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. R. (D.), 1996 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.) at [para.] 93 and R. v. Howe supra). [Emphasis in original.]: Christakos v. De Caires, 2016 ONSC 702 at para. 10.

[44] The Ontario Court of Appeal in R. v. Williams stated the following about inconsistencies:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)(1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31: R. v. Williams, 2018 ONCA 138, at para. 33, citing with approval R. v. M.(A.), 2014 ONCA 769, at paras. 12 to 14.

The Society’s witnesses

[45] The Court heard from five Society employees on behalf of the Society: Katie Vachon, Tara MacGillivray, Cassondra Wheeler, Christiane Brunet, and Michelle Dufour. Generally speaking, I found the Society witnesses both credible and reliable, and where their direct evidence contradicts that of the Mother, I prefer that evidence over the Mother’s.

[46] I found Katie Vachon’s evidence to be both credible and reliable. Her evidence was both internally and externally consistent. It was presented in a forthright and neutral fashion. It was clear that Ms. Vachon and the Mother worked well together, and apart from one statement allegedly made by the Mother about how she got a black eye, the evidence was not contradicted or contested in any fashion.

[47] Where Ms. Vachon’s evidence differed from the Mother’s evidence or D.A.’s evidence, I prefer Ms. Vachon’s evidence. Further, given Ms. Vachon’s detailed observations regarding her conversation with G on July 24, 2018, coupled with the lack of denial by the Mother and D.A., I accept this evidence as truth of its contents.

[48] Tara MacGillivray’s evidence was straightforward and balanced. She described her interactions with the Mother and D.A. as initially positive. The Mother and D.A. were engaged and they properly implemented and used the safety plan. Ms. MacGillivray spoke positively about the parenting skills exhibited by the Mother and D.A., as well as the bond between them and J.

[49] In cross examination she agreed that she had no evidence to discount the Mother’s explanations about her appearance and a missed meeting in September 2019. Despite the Mother’s explanations however, Ms. MacGillivray maintained her concerns, which I found to be reasonable.

[50] Ms. MacGillivray’s evidence was that she was not looking for perfection from the Mother, and gave the Mother the benefit of the doubt regarding certain concerns such as bussing. When questioned about the steps taken to assist the Mother to address the Society’s concerns, Ms. MacGillivray elaborated about the multiple meetings organized and the extra chances given to the couple prior to taking more intrusive measures.

[51] Ms. MacGillivray’s description regarding her interactions with G were credible and supported by the Mother’s evidence, as well as that of other Society workers. I found her account regarding a meeting with G on October 7, 2019 at the school, the steps taken to gain his trust, as well as her method of maintaining her notes from the interview elevate it from a normal child/worker interview, thereby heightening its reliability.

[52] Ms. MacGillivray’s evidence as a whole came across as balanced, and I found it to be externally and internally consistent. I found her evidence to be both credible and reliable.

[53] Cassondra Wheeler’s evidence was straightforward and concise and was both externally and internally consistent with the remainder of the evidence heard at trial. While Ms. Wheeler’s evidence did not appear as balanced as that of Ms. MacGillivray or Ms. Vachon in discussing the Mother’s strengths versus the Society’s concerns, in fairness to her there appeared to be very few opportunities due to the Mother’s lack of engagement to permit this to occur. As a whole, I found Ms. Wheeler’s evidence to be both credible and reliable.

[54] With regard to Ms. Wheeler’s two discussions with G, despite them occurring virtually, there were sufficient indicia of reliability to permit them to be considered by the court. I accept that G expressed feeling safe in his placement with S.R., and that his visits with his Mother were good, even if she did not, from his perspective, talk about much.

[55] Ms. Brunet’s evidence was fair and balanced. She spoke positively about the children and their love for their Mother. Her description of the children was corroborated by the Mother’s own evidence. I found Ms. Brunet’s evidence to be straightforward, credible and reliable. She was insightful as to G’s needs as well as the Mother’s bond with the children. I accept her evidence as presented.

[56] Ms. Dufour’s evidence was straightforward. She presented the Mother in a fair and neutral light, speaking about the Mother’s positive attributes as well as areas of concern.

[57] While there was an inconsistency in the Society’s evidence with regard to who attended the October 11, 2019 meeting with Ms. Dufour and the child, I am not persuaded this undermined the reliability of Ms. Dufour’s evidence about this meeting. I found Ms. Dufour’s evidence regarding the meeting sufficiently reliable to consider it as trial evidence.

[58] Her evidence was balanced, and she was able to answer tougher questions without hesitancy. She acknowledged there was no reason to disbelieve some of the Mother’s version of events. I found Ms. Dufour’s evidence trustworthy, credible and reliable.

The Respondent Mother’s witnesses

[59] The Mother testified in a very persuasive fashion in direct examination. She was focused on her plan for the return of the children, and was direct in her answers.

[60] However, she was evasive in providing concrete answers in cross examination. She disagreed with evidence found in her Affidavit, such as the number of times she was homeless or couch surfing. She deflected blame from any responsibility for what the children were exposed to during her care of them, such as G being exposed to any domestic conflict due to the Mother’s relationship with S.C. or D.A.

[61] I found the Mother’s evidence both internally and externally inconsistent. On numerous occasions, the Mother’s affidavit evidence was contradicted by her testimony, including around such details as when she quit methadone and the number of times she moved. Further, there were a number of inconsistencies as between the Mother’s and J.R.’s evidence.

[62] Ultimately, I am unable to find the Mother either credible or reliable.

[63] J.R.’s evidence was clear and concise. There is no doubt he supports and loves his daughter and his grandchildren. He is prepared to do whatever it takes to assist them.

[64] I found J.R. to be credible in the manner he conveyed his evidence. He did not seem to exaggerate when speaking of the Mother.

[65] It was equally clear that he has chosen the Mother’s evidence over the allegations of the Society, the Maternal Grandmother and S.R. He was, however, in the dark regarding the allegations of domestic conflict, drug addiction concerns, and the Mother’s relationship with D.A. Nonetheless, he was forthcoming about his thoughts and beliefs.

[66] While the majority of his evidence was internally consistent, it was not externally consistent with the totality of the evidence presented at trial. Where the evidence is at odds, I find it appropriate to place less reliance upon the externally inconsistent portions of J.R.’s evidence.

[67] T.C.’s evidence was presented in a straightforward and forthright manner. She is able to identify both the Mother’s strengths as well as past weaknesses. She is clearly a strong support person in the Mother’s plan, and believes in the Mother’s ability to resume care of the children.

[68] T.C.’s evidence was both credible and reliable. I prefer T.C.’s evidence where it conflicts with the Mother’s evidence.

Evidence at trial

Katie Vachon

[69] Katie Vachon was the first worker from the CAS of SD&G (the “Society”) to become involved with this family. She was involved with the family from December 12, 2017 to April 26, 2019. She first became involved because the Society was contacted by a worker from FCSFLA as G was residing in the Society’s jurisdiction with his aunt, S.R. and her then partner. It was believed, and later confirmed, that the Mother and D.A. had moved to this Society’s jurisdiction.

[70] When the Society accepted the file transfer, Ms. Vachon reviewed the protection concerns advanced by the Kingston CAS, which were identified as the Mother’s and D.A.’s substance abuse, domestic conflict and neglect of G. G was removed from the Mother’s care on or about May 26, 2017. Kingston CAS advised the worker that the Mother and D.A. had very limited engagement with their agency and had not exercised access with G since the summer of 2017.

[71] Ms. Vachon first met the Mother and her mother C.F. (the “Maternal Grandmother”) on December 20, 2017. At the meeting, Ms. Vachon advised the Mother of the concerns she had for her unborn child, particularly in relation to drug use, transiency and domestic violence. The Mother advised Ms. Vachon that she was seeking treatment through the Methadone clinic, which Ms. Vachon described as a positive attribute.

[72] Ms. Vachon’s evidence was that the Mother was open and engaged with her, even through the difficult times. Though there were breaks of time with no contact, after things settled the Mother continued to engage with Ms. Vachon. Ms. Vachon also received clean drug test results from the Mother and D.A. and the Mother expressed a commitment to wanting to work with the Society.

[73] As a result, when J was born, he was discharged to the couple’s care. The couple was described by Ms. Vachon as being very capable in identifying J’s needs, as well as being calm and nurturing. They were both very focused on J’s well-being. Ms. Vachon noted a positive bond between J and his parents, and that they in turn had a healthy relationship with him. Both parents were appropriate and actively involved in parenting J. The child’s needs were met, there being ample food and supplies in the household.

[74] While the couple had not seen G since the summer of 2017, visits with him resumed at the end of February 2018. During this time period, the Mother had two phone calls with G, but no face-to-face visits.

[75] After reviewing the danger statements and safety goals with the couple, a trajectory was developed with the aim of returning G to their care and closing the file.

[76] There were occasions when Ms. Vachon was concerned about the safety of the children, including when the couple tested positive for illicit substances in their drug screenings. For instance, on July 24, 2018 G reported there to be “yelling and screaming and saying bad words” leading him to be afraid and not wanting to attend some visits with his Mother and D.A. During this particular disclosure interview, Ms. Vachon noted G’s hands to be trembling, and that G cried throughout the interview and presented as very sad. It was not denied by the Mother that she and D.A. had a “brief argument”, and the Mother attempted to justify the situation. D.A. refused to discuss the concerns raised. Pending a meeting with D.A. to discuss how to protect the children from conflict, a safety plan was put in place to ensure J was not exposed to conflict. At the meeting which took place August 2, 2018, the couple acknowledged that the children had been exposed to a “minor conflict”. Access resumed between G and the couple, with the condition that a worker would check in during access visits.

[77] Prior to the above incident, on June 5, 2018 Ms. Vachonwent to the couple’s home unannounced, where the Mother presented with a black eye. At that time, the Mother explained the injury was due to falling off a chair and hitting her head and elbow and hurting her back while changing a lightbulb. However, on August 13, 2018 when Ms. Vachon attended due to concerns about illicit substances in the couple’s drug screens and reports from the Maternal Grandmother, the Mother told the worker that her black eye had actually been caused by D.A. The Mother however minimized D.A.’s responsibility by saying it was her fault, that she is hard to live with, and that “he doesn’t hit me for no reason.” She also indicated she has “gotten in the way” when D.A. was upset, causing the injuries. At trial, the Mother denied making these statements to Ms. Vachon.

[78] Due to all of the concerns which were discussed at the August 13, 2018 meeting, Ms. Vachon presented to the Mother a plan of J being with her alone in her care, without D.A., on a temporary basis. Though the Mother was prepared to go with J to the Maternal Grandmother’s home that night, she was clear that she would return to D.A. the following day. Meanwhile, when discussing with D.A. what was going to occur with J due to the above concerns, D.A. stated that he was “finished” with the Mother and began packing his belongings. D.A. also denied any drug use and denied any physical violence between himself and the Mother. Ultimately, given the concerns and positions of the parents, J was brought to a place of safety and initially placed with the Maternal Grandmother. However, due to the fact that the Maternal Grandmother did not pass the kinship assessment, J was moved to a foster home on August 30, 2018.

[79] On or about September 13, 2018, Ms. Vachon met with the parents to discuss the trajectory and next steps. She wanted to capitalize on the positive aspects she had observed regarding their parenting, while developing a safety plan around the Society’s concerns. Of primary concern, the parents needed to demonstrate their ability to manage conflict in a productive manner over a consistent period of time.

[80] At that time, G was reluctant to have visits in D.A.’s presence, so the trajectory for his return was more gradual than what was set out for J’s return. Ms. Vachon reviewed the trajectory and set out the Society’s bottoms lines on September 28, 2018. D.A. did not engage with the worker at that meeting. The Mother advised she was waiting to connect with Maison Interlude to begin outreach counselling. The couple meanwhile indicated that they continued to attend counselling sessions through counselling and support services.

[81] As time went on, access increased between the couple and J. Further, G resumed contact with D.A. by November 2018. The delay in D.A. engaging with the Society posed a conflict in G’s return as the Mother’s plan involved D.A. Ms. Vachon’s view was that in order to successfully reintegrate G, the Society absolutely needed D.A. to be engaged in the process.

[82] The parents were encouraged to develop a natural safety network to support them in caring for the children and in addressing their own personal challenges. The Maternal Grandmother remained a constant support. The Maternal Grandfather, J.R. and his partner, T.C. were never identified as supports.

[83] The couple demonstrated their ability to meet the Society’s bottom lines, and when Ms. Vachon attended for both announced and unannounced meetings, she did not note any concerns. The couple was also engaged in counselling services, maintaining their sobriety and reported no concerns of conflict. As a result of their progress, J was returned to their care pursuant to a supervision order on January 30, 2019.

[84] The couple continued to meet with Ms. Vachon, and reviewed their safety plan where in instances of conflict, one would walk away to ensure the children were not witness to the adult conflict. The couple shared examples of using their safety plan, for which they were commended.

[85] In early April 2019, given that G reported no concerns at the couple’s home and he presented as comfortable in their care, G returned to this Mother’s and D.A.’s care. An order for same was made June 26, 2019. The file was transferred to Child Protection Worker (“CPW”) Tara-Ann MacGillivray on April 24, 2019.

[86] Ms. Vachon was asked in cross examination if it would have eliminated a lot of issues if the Mother had terminated her relationship with D.A. at the time of Ms. Vachon’s involvement. Ms. Vachon indicated it was a difficult question to answer as she had not been able to assess the Mother as an independent caregiver. Further, while there were clear concerns about domestic violence, there were also allegations of drug use and neglect which would need to have been monitored and reviewed over a period of time. Ms. Vachon also indicated the Mother would have needed to demonstrate the Mother’s ability to break the cycle and pattern with D.A. over a period of time as the Mother had shared with the worker that the relationship went back a number of years. The Mother would need to show an ability to protect the children from conflict and violence while parenting on her own. Ultimately, during Ms. Vachon’s involvement, the Mother’s plan always involved a joint plan with D.A.

[87] The Mother’s evidence regarding her involvement with Ms. Vachon is that it was a positive experience and they worked well together. The Mother described Ms. Vachon as very helpful and indicated she worked proactively with the couple to resolve the Society’s concerns. The worker offered new tools and ideas regularly, and she was overall a fantastic worker.

Tara-Ann MacGillivray

[88] Ms. MacGillivray officially took over the file from Ms. Vachon on April 24, 2019. Ms. MacGillivray was, however, involved from March 2019 onward. Ms. MacGillivray described her observations of J on March 13, 2019 as him being a happy baby and comfortable with both the parents. She observed that the Mother spoke to J in a loving and soft manner to him. She also described G as appearing shy, noting that he was not engaged with her. G was placed with the couple on extended access on April 1, 2019.

[89] Ms. MacGillivray’s information was that the Society’s main concerns were in relation to the couple’s cycle of conflict and domestic violence, as well as their engagement in drug use and the children’s exposure to same.

[90] In March and April 2019, by all accounts the couple were doing well and they were commended by the workers for their progress and commitment to maintaining their sobriety and engagement in safety planning.

[91] In May 2019, though, G had been reportedly absent from school for four days. The couple were coping, did not appear overwhelmed and the children were being appropriately cared for by the parents. The Mother explained G’s absences to the worker in advising G had appointments for three days and was sick on the fourth day. During Ms. MacGillivray’s visit, she spoke privately to G who expressed missing his aunt S.R. and that he had a desire to see her. On May 23, 2019, though G reported to the worker that there had been some verbal conflict. G said he was not afraid and expressed that he liked living at home. When the concern of verbal conflict was addressed with the Mother, it appeared she had appropriately engaged in the safety plan. In June, the couple continued to be appropriate with the children, using their safety plan if conflict arose and thereby protecting the children from same.

[92] Child and Family Worker (“CFW”) Michelle Dufour saw the couple in July 2019. The next time Ms. MacGillivray saw the couple was August 16, 2019, where she discussed concerns about both of them receiving positive drug screen test results. It was the Mother’s position that the worker at the clinic misread the test results, and denied any drug use. The couple nevertheless had a safety plan arranged should they have a “slip” in the future. J was observed to be appropriately cared for and dressed, and the couple were attentive to his needs. Later that month Ms. MacGillivray re-attended the couple’s home and noted that G was really engaged with her for the first time. G expressed no concerns regarding his Mother and D.A., stating that they were getting along and things at home were going well.

[93] In September 2019, Ms. MacGillivray attended the home twice without anyone responding to her presence, and received a report from S.R. regarding concerns about G.

[94] On October 2, 2019 when the Mother was reached by telephone, she offered explanations for the missed visits, including being ill, having to take J to the clinic, as well as there being multiple deaths in the family with which they were dealing. When Ms. MacGillivray attended the couple’s home on October 3, 2019, the Mother presented as pale with a gaunt face. She was also dressed in pajamas and did not have her usually stylish appearance. Her movements were sluggish, a point of contrast with her normally alert presentation at previous meetings. The Mother’s evidence was that this was due to her bought with the flu. The Mother was upset regarding the concerns raised by S.R., leading her to speak negatively about S.R. in G’s presence and expressing her plan to temporarily suspend access. The Mother expressed concerns that S.R. was causing issues, making things up and speaking ill of her and D.A. Ms. MacGillivray then met privately with G, who expressed concerns about domestic violence in the home and verbal abuse between D.A. and his Mother, which had been occurring for a few weeks. G thereafter expressed concerns about the worker revealing to the couple that he had made any potentially negative statements. G indicated “they don’t want me to tell because they don’t want me to be taken away.” I accept this last statement as truth as well as evidence of the child’s state of mind. In cross examination, the Mother conceded that it was possible G thought if he reported concerns he would be taken from her care. This was due to conversations they had with G where the Mother explained why the Society was involved and she made it clear that she did not want him taken away.

[95] As a result of the conversation with G above, it was decided that Ms. MacGillivray would speak to G at school the following day, but he did not attend school that day. The school meanwhile informed the Society of G’s frequent absences or late attendances. It was not challenged that G was late 13 times. Ms. MacGillivray’s evidence was that G was also absent three and a half days for school. Ms. MacGillivray also received a report from the Methadone clinic that the Mother’s carries (take home doses) were reduced to three per week, down from six as a result of the recent drug screens.

[96] In an effort to address the Society’s concerns, Ms. MacGillivray attended the couple’s home on October 7, 2019, unannounced, with CFW Michelle Dufour. While the Mother appeared sickly, gaunt and dressed in her pajamas, J was observed to be smiling and happy. When asked about G’s school attendance, the Mother denied his absences, but admitted that G had been late due to missing the school bus. She explained that the mornings were challenging as G had not been sleeping well. She ultimately agreed, however, about the importance of G receiving an education. Immediately thereafter, the workers attended G’s school to speak with him.

[97] When G met with the workers at the school on October 7, 2019, he described verbal conflict between D.A. and his Mother, as well as seeing broken glass in the bathroom and a broken bathroom door. G indicated that J had been asleep during the conflict. He indicated that he witnessed his Mother throw a glass vase at D.A. G confirmed that his Mother had recently been sick, and that D.A.’s mother had recently died. He described hearing D.A. threaten to punch his Mother in the face, and expressed his wish to the workers that D.A. no longer be threatening his Mother. G repeated the words he had heard D.A. call the Mother, which included “liar”, “moron”, “low life” and “pig”. G indicated that he and J had been in the room when this all occurred. G again asked the worker not to tell his Mother what he told her, for fear of being grounded. G explained that the arguing made him feel scared and he was worried for his Mother and J. I accept the last comment as G’s state of mind regarding events in the home. As for the child’s statements about the conflict, given the context in which the statement was obtained, a neutral setting where notes were made contemporaneously without editing, I accept what G indicated he witnessed and/or overheard as truth. Finally, I find that G heard D.A. use pejorative words toward the Mother as in the Mother’s own evidence, she admitted he may have heard D.A. use the words.

[98] The couple met with the Society workers on October 9, 2019 to discuss the Society’s worries based on their meeting with G. The couple denied throwing things and breaking the bathroom door. The Mother downplayed G’s comments to the workers and suggested that he has a tendency to overreact. The workers’ evidence is that the couple admitted to using fentanyl as a replacement for their usual methadone treatment as they had been unable to meet with their doctor. The Mother in her evidence did not recall making this statement, and testified that she has never used fentanyl.

[99] The end result of the October 9, 2019 meeting was that the Society’s bottom line was that D.A. and the Mother could not care for the children while residing in the same home together due to the concerns regarding conflict and drug use. The couple strongly objected to the Society’s concerns and bottom lines. The Society concluded that the couple required a safety plan over time, failing which the children were going to be brought to a place of safety. After a while, though still upset about the allegations supported by comments made by G, the Mother agreed to reach out to her Mother, C.F. D.A. indicated he was going to return home to pack his belongings and eventually left. Later that day, Ms. MacGillivray and another worker attended the Maternal Grandmother’s home and developed a temporary safety plan where C.F. would be in the home with the Mother and D.A. was not to be present in the home. It was clearly established that if D.A. attended the home, neither C.F. nor the Mother were to allow him in and would report it immediately to the Society. D.A. was also advised of the plan, which he agreed to but expressed frustration about having no place to go and having to sleep on the streets. D.A. also indicated he would no longer financially support the Mother or children if he was not residing in the home. The worker explained that the plan would be reviewed the following Tuesday. Thereafter the worker and the Mother met with G to explain the situation and to assure him it was not his fault.

[100] Afterward, the workers, the children, the Mother and Maternal Grandmother all attended the Mother’s home. D.A. was still in the home despite having left several hours earlier to pack and leave. He eventually angrily left the home, casting blame on either G or the Mother. The Mother attempted to explain and mollify D.A.’s comments to G. Prior to the workers leaving, the Maternal Grandmother maintained that she would not allow D.A. in the home.

[101] On October 11, 2019, the workers, the Mother and the Maternal Grandmother had a meeting to engage in further safety planning. It was suggested by the Society to prevent escalation that D.A. not participate as J was to be present. The Maternal Grandmother maintained her commitment to the safety plan for as long as required. The Mother and the Maternal Grandmother were reminded that D.A. was not to attend the home when the children were present. The Mother confirmed D.A. was aware of this prohibition. The Mother advised that she and D.A. were separated and would never reside together again, but she would see him after a month, and also advised she would see D.A. on the weekend when the children were not in the home. From the Society’s perspective, the Mother’s intentions regarding the relationship with D.A. were unclear. The Mother presented as resistant to bringing more supports into her support network, despite the requirement by the Society of a safety network as a bottom line. There were discussions about the Mother’s intention to use drugs if the children were not in her presence, and the effect this could have on the children when they were with her, such as G missing his bus. The Mother was dismissive of this concern and explained that the bus arrived at different times. However, in the Mother’s viva voce evidence, she denied saying that she would use drugs that coming weekend.

[102] Despite the Maternal Grandmother’s commitment to the safety plan, Ms. MacGillivray felt she was not supportive of the Society at the above meeting, and was concerned she would not report to the Society if the Mother did not follow the safety plan. Workers attended the home during the long weekend and did not observe nor receive any reports of D.A. being present.

[103] On October 15, 2019, CPW Cassondra Wheeler[7] and CFW Michelle Dufour attended G’s school to speak with G. G advised that D.A. had recently been in the home and had been having contact with the children, which I accepted into evidence as narrative. As a result of same, the Society determined that G and J would be brought to a place of safety to ensure their safety and well-being as the Mother and Maternal Grandmother were not adhering to the safety plan. While the workers attempted to obtain a warrant, the Justice of the Peace was not present. As such, at 8:00 p.m., with the assistance of the police services, due to concerns of imminent harm to the children, Ms. Wheeler and Ms. MacGillivray attended the Mother’s home. The Mother was in the garage at the time but agreed to meet the workers outside. The Mother denied that D.A. had attended the home or that he saw the children. The Mother then entered the home and Ms. MacGillivray overheard the Mother yelling in the children’s presence. The Society suspected D.A. was in the garage. The children were taken to a place of safety, being S.R.’s home.

[104] On October 18, 2019 a temporary order was made placing G and J in the temporary care and custody of the Society, with access at the discretion of the Society. Ms. MacGillivray offered to meet with the Mother to arrange for access visits, which was declined as the Mother wanted her lawyer to be present.

[105] On November 1, 2019, Ms. MacGillivray met with the Mother, who advised that she and D.A. continued to reside together but were in the process of obtaining separate residences. She confirmed that the police had attended her residence in late October, but indicated it was due to landlord issues, denying any alleged conflict with D.A.

[106] On November 7, 2019, the Mother, her lawyer and Ms. MacGillivray met to discuss access. The Mother’s plan involved the return of the children to her care, with her and D.A. living separately for a year, during which time they would maintain their relationship. Ms. MacGillivray commended the Mother for her good physical care of the children and acknowledged the attachment between herself and the children. Though the Mother disagreed with the Society’s concerns, she was advised she needed to engage in safety planning in order to move forward, which necessitated a support network. However, the Society did not consider the Maternal Grandmother as an appropriate participant to the safety planning as she had been unable to comply with the previous safety plan. She could nevertheless be an emotional support to the Mother. The Society offered dates for safety planning to take place, and the Mother proposed one person, but the Mother did not confirm any dates for such a meeting.

[107] In the interim, on November 7, 2019, it was agreed that the Mother would have access to the children two hours per week, supervised by the Society. Due to Ms. MacGillivray assuming a new role at the Society, the file was transferred to CPW Cassondra Wheeler, who met the Mother on that date.

[108] In cross examination, Ms. MacGillivray explained the “Signs of Safety” philosophy employed by the agency, which is that the clients are the expert, not the worker. The worker is there to facilitate getting the network together and to help get to the root of the problem. The Society empowers the family, with the parents, to develop a plan for when identified concerns, triggers or red flags occur. The Society underscores that services do not equal safety. As Ms. MacGillivray put it, once the Society identifies the worries, it is up to the client to address the worries in a manner that works for her. When things were not going well in September 2019, Ms. MacGillivray attempted to meet with the Mother in October 2019 to address the Society’s concerns. Those attempts to meet with the Mother were somewhat unsuccessful.

[109] Ms. MacGillivray maintained in cross examination that during her involvement, the Mother never provided any clear direction that she wished to present a plan for the return of the children as a single parent. Further, Ms. MacGillivray’s evidence was the Mother never brought up her Father or Step-Mother as part of her plan or network. Ms. MacGillivray questioned where they both had been since the Society’s involvement.

Cassondra Wheeler

[110] Ms. Wheeler assumed ongoing carriage of the file as of November 6, 2019. On November 15, 2019 there was a family meeting where safety planning and steps to move forward were discussed. The Mother advised the workers that she and D.A. were no longer in a relationship. She further advised the workers that she had a prescription for marijuana and maintained she did not engage in drug use. The Society expressed to the Mother that they felt the children should remain in the care of the S.R. for the time being, which greatly upset the Mother, causing her to leave the meeting. No progress was made regarding safety planning or access. Following this, Ms. Wheeler attempted to reach the Mother on November 18 and 19th, without success. However, on November 20, 2019 the Mother attended the Permanency Planning meeting. At that meeting, the Mother was advised of the Society’s position to place the children in extended society care with a view of adoptions by S.R., with which the Mother disagreed.

[111] At the November 15, 2019 meeting, a plan was developed to resume access visits between the Mother and children. The plan was that the Mother would attend the Society’s office forty-five minutes prior to the access so the worker could then pick up the children for the visit. The visits would start at once per week for two hours. The Maternal Grandmother was also invited to the visits. Another meeting took place at the Mother’s home on November 25, 2019, but D.A. was not present, and had been staying at a friend’s home. The Mother identified her drug of choice as cocaine, and that she used substances to pass the time as she did not like being alone. She also advised the worker of her plan to move.

[112] The Society received a call from the police regarding an incident which occurred on November 26, 2019 between the Mother and D.A. A no-contact order was put in place due to the incident, forbidding D.A. from contacting the Mother. The Mother’s evidence, however, was the incident had nothing to do with her, and advanced that the no-contact order was due to her being a witness for what occurred at her friend’s home. The Mother’s evidence was the only direct evidence and as such I accept her version of events. D.A. was arrested and charged for breaching his no-contact order with the Mother on December 2, 2019.

[113] Ms. Wheeler was concerned about the Mother’s inconsistent attendance at access visits. Though her visits were once per week, she missed three visits. The Society alleged the Mother missed the December 23, 2019 visit as well, but the Mother’s evidence was that it was cancelled by S.R. During this time, D.A. was not having access to the children as he had not met with the Society to plan for access.

[114] Ms. Wheeler spoke to the Mother on January 20, 2020, and arranged to meet January 23, 2020. At that time, the Mother advised the worker that she was renting a room in a home where D.A. also resided. Ms. Wheeler attended the Mother’s home on January 23, 2020, where she suspected the Mother was under the influence due to her appearance. This was denied by the Mother in her evidence. When speaking to the worker, the Mother denied that she and D.A. were living in the same residence, but indicated they were sharing a phone at the time. The Mother’s evidence was that she had her makeup done as she had just come from another appointment. Though she was surprised and felt rushed, overall, the Mother felt the meeting went well.

[115] The Mother did not attend her visit for January 27, 2020, or the meeting scheduled for the same day though the Society had provided a taxi for her to attend. In her evidence, the Mother disputed this assertion, and recalled meeting with Ms. Wheeler after the January 27, 2020 visit. She did not attend the CAS meeting of January 29, 2020.

[116] On February 3, 2020, the Maternal Grandmother shared some of her concerns about the Mother with Ms. Wheeler. On the same date, both the Mother and Maternal Grandmother had a visit scheduled to celebrate J’s birthday, for which the Mother attended forty minutes late.

[117] Ms. Wheeler met with the Mother and Maternal Grandmother on February 18, 2020, prior to a scheduled visit. The Mother presented as rested and positive. The Mother advised Ms. Wheeler that she had quit methadone as she was sick of going through the withdrawals, though D.A. occasionally brought her some methadone. The Mother confirmed that she and D.A. were residing at the same address, a boarding house, but in different rooms. Ms. Wheeler offered the Mother information about Maison Interlude, but she declined the use of same and declined D.A. had been physically violent towards her. The services were again offered on February 24, 2020, as well as those at Canadian Mental Health Association, which the Mother felt were unnecessary. On that date the Mother reconfirmed she was no longer participating in the methadone program. On March 5, 2020, the Mother moved to the Maison Interlude shelter.

[118] On March 17, 2020, the Society suspended all in person access visits in light of the COVID-19 pandemic. The Mother’s access was converted to regularly scheduled telephone calls, supervised by CFW Dufour.

[119] In April 2020, the Mother resided with G’s Father, S.C. for a short period of time in Hawkesbury.

[120] Ms. Dufour made repeated attempts to reach the Mother, including three times on April 15, 2020, twice on April 20, 2020, twice on April 30, 2020, and twice on May 4, 2020. She left a voicemail message on each day requesting a call back from the Mother. On May 6, 2020, the Mother was reached, where she confirmed she was residing in Grenville, Quebec with J.M. J.M. is a person the Mother indicated she “guessed” she was in a relationship with. The Mother indicated that she had ended her relationship with D.A. during the time she was staying at Maison Interlude. As a result of returning late to Maison Interlude, which was S.C.’s fault, she was asked to leave. She stayed with S.C. until there was a conflict due to S.C. wishing to resume their relationship, which she opposed. The Mother told Ms. Wheeler that she was not in a good place, and was down to 90 pounds. While at the shelter the Mother had, however, begun to work with Addictions Services, but stopped since leaving. She continued to attend the methadone clinic, but did not have any carries.

[121] On May 21, 2020, the Mother advised Ms. Wheeler that there had been an incident with J.M. where they were not getting along, and the police brought her to S.C.’s home for a short period of time.

[122] Ms. Wheeler spoke with G about the visits on May 20, 2020 via FaceTime. G indicated the visits were good, but his Mother did not talk about much. She also spoke to G on June 18, 2020 where no concerns were reported.

[123] Ms. Wheeler also supervised the Mother’s calls to the children on May 21, 2020, where the Mother presented with very dark black eyes. Another visit took place on May 28, 2020 after the worker called the Mother five times to ensure the visit would occur. During these visits the Mother expressed love of the children and asked G questions to prompt conversation. At the end of the May 28, 2020 visit the Mother was advised that face-to-face visits would not yet resume due to concerns about the Mother following COVID-19 safety protocols.

[124] On June 11, 2020, Ms. Wheeler was unsuccessful in her attempts to reach the Mother as scheduled. On June 12, 2020 she was successful in reaching the Mother, and described her as giddy, repetitive, and over talkative. Ms. Wheeler suspected the Mother was under the influence of a substance given her atypical behaviour and presentation, though the Mother denied the suggestion. The Mother indicated she was only using methadone, and with the support of her doctor, she was almost finished the treatment. This made her giddy and repetitive. The Mother had resumed residing with J.M., but the reflection in the mirror showed the Mother in a room that resembled a hotel room as opposed to J.M.’s home. The Mother’s viva voce evidence confirmed she was in a hotel room with S.C. on that day. Things had not been going well with J.M., and that day she was in a good mood, and she felt the meeting had gone pretty well.

[125] The visit of June 23, 2020 and July 6, 2020 did not take place as the Mother did not answer Ms. Wheeler’s phone or messenger calls.

[126] Ms. Wheeler also tried to reach the Mother on June 25, 2020, and June 30, 2020, sending messages or calling her through messenger for a meeting, to which she received no answer.

[127] On July 9, 2020 the Mother had a virtual visit with G, where the Mother advised that G’s paternal grandmother only had six months to live, which the worker advanced was inappropriate. The Mother’s evidence on this point was that she was not aware of a plan to break this news to G, and she felt it was important for G to know that was why S.C. had not seen G lately. Ms. Wheeler meanwhile attempted to have the Mother change the subject, then resorted to trying unsuccessfully to end the call between the Mother and child resulting in disconnecting only herself. The Mother’s evidence is that during this time, she had reassured G, and he stared to calm down. However, upon Ms. Wheeler’s return to the conversation, the worker did not allow her to continue to console G. Ms. Wheeler’s evidence was that G was no longer visible on the call, and when he returned to the screen he no longer wished to talk to the Mother, and he ended the call. That same day the Mother confirmed she returned to reside with J.M., was no longer on methadone and continued to meet with the Quebec child protection agency. She did not have any updates regarding counselling or addictions services.

[128] On July 20, 2020, August 4, 2020, and August 17, 2020 Ms. Wheeler attempted to reach out to the Mother without success, leaving a Facebook message asking the Mother to contact her as soon as possible. On September 8, 2020 the Mother messaged Ms. Wheeler wishing to speak to her, but the worker was on vacation. Upon her return, five days later, Ms. Wheeler provided the Mother a phone number and asked her to call, but received no response.

[129] On October 7, 2020 Ms. Wheeler phoned the Maternal Grandfather, J.R., to canvass if he had any information about the Mother’s whereabouts. J.R. indicated he had not seen the Mother in a month, the last time he had seen her had been the morning D.A. attended J.R.’s home. At that time, police had been contacted, and D.A. had been arrested on the strength of a warrant. J.R. told Ms. Wheeler that since that time he had been searching everywhere for the Mother. He agreed to advise the worker if he heard from his daughter. Ms. Wheeler was never made aware of the Mother’s whereabouts until she provided an affidavit dated November 3, 2020.

[130] On November 9, 2020, four months after the last contact with the Mother, Ms. Wheeler spoke to the Mother by telephone. The phone number provided by the Mother was at J.R.’s home, where the Mother advised she had been living for about a month. The Mother also advised she had been sober for approximately a month, now using suboxone rather than methadone.

[131] In cross examination, Ms. Wheeler noted that one of the Society’s primary concerns was domestic violence. When asked, Ms. Wheeler elaborated that there is a difference between domestic violence and domestic conflict. From her perspective, domestic conflict is where both parties are engaging in the violence. Domestic violence, meanwhile, usually alludes to power and control of a victim, which in this case the Society was concerned about as the Mother might be a victim.

[132] Ms. Wheeler’s evidence in cross examination was that the Mother frequently expressed that she no longer wished to present a plan with D.A. and that they were no longer in a relationship. However, the Society would find out that was not what was occurring. There was much secrecy around the couple’s relationship status.

[133] When asked about what guidance or recommendations Ms. Wheeler made with regard to safety planning for the Mother, her evidence was that the Society does not dictate what needs to be done. The Society provides guidance for the family and support to keep the children safe and outline their bottom lines. The family and supports are responsible for creating a safety plan which addresses the Society’s concerns.

[134] When challenged in cross examination that Ms. Wheeler really did nothing useful on this file, her evidence was that much of her time was spent trying to get into contact with the Mother and D.A., with little success. The lack of contact made it difficult for Ms. Wheeler to assess the viability of the children being returned to the couples’, or Mother’s care. Ms. Wheeler indicated she did not recall the Mother advancing a plan to be the children’s sole caregiver; however, the Society had no issue with that type of plan as they were looking at every option available for the children’s return to the Mother. Regardless of whether or not the Mother and D.A. were together, there still needed to be safety planning to ensure the children were not exposed to domestic violence or conflict. Ms. Wheeler tried to get the Mother in a better place, to look at the danger statements and the trajectory, which could have looked any way she wanted it to look. Because of the limited contact with the Mother, it was difficult to engage her on any plan. Another stumbling block was the Mother’s reluctance to bring her network to the table to support her and the children in a safety plan.

[135] When questioned about the outdated safety plan which was created in or around 2018, Ms. Wheeler’s evidence was that the concerns of the Society were still the same, as were the goals for the Mother, regardless of whether D.A. formed part of her plan or not. Further, similar to Ms. MacGillivray’s evidence, Ms. Wheeler testified that services do not mean safety, and if the Mother does not have supports, then the Society remains concerned.

[136] Ms. Wheeler outlined her current concerns with the Mother, which included how her drug use may impact her ability to parent as well as the issue of domestic violence between the Mother and D.A., a concern that remained salient given recent contact between the Mother and D.A. in the last month. Ms. Wheeler later elaborated that the Society’s concerns of domestic conflict did not solely revolve around D.A. as domestic conflict had also been prevalent in the Mother’s relationship with S.C. and J.M. The Society is also concerned about the impact to the children when the Mother goes a long period of time without seeing the children, as well as missing visits with no explanation.. Finally, the Society has concerns about the Mother’s current living arrangements.

[137] When asked to comment about the safety plan set out in the Mother’s affidavit dated November 3, 2020, Ms. Wheeler appreciated that it indicated who would be involved but did not indicate what the safety plan would be, nor the role the children would have in the plan. The full safety plan would outline for the children who they could reach out to if they needed help or had any concerns. Similar to a fire plan, the plan would need to be practised with the children to ensure they are able to follow through with the plan if needed. Further, the plan was only presented on or about November 3, 2020, and the Society would usually want to assess the plan over time, not a month before the trial.

[138] Ms. Wheeler admitted that of the visits she supervised between the Mother and children, generally speaking the Mother did well during the visit. In the recent November 2020 visits the Mother told the children that she loved them and missed them, and she was appropriate. She also presented well, did her best to engage the children, and was able to redirect J to engage with her. The Mother also provided a reasonable solution to enable the children to be individually engaged with her, which was difficult due to their relative ages.

Christiane Brunet

[139] Ms. Brunet was assigned to the file on November 6, 2019 as the children’s permanency worker. She would routinely observe the children in the kin home, and she met with the children privately in person or virtually. Ms. Brunet never interviewed J due to his young age.

[140] Ms. Brunet met with G on December 9, 2019. During that meeting, G indicated things were going well in his life. He indicated visits with his Mother were good, and had no worries about the visits. At that time, he wanted to see his mother four days per week, but on the weekends he wanted to see his father, his Maternal Grandparents Nana and Papa, and his friends. G had no worries at all to express to Ms. Brunet. These statements were admitted on consent as truth of their contents.

[141] Ms. Brunet met with the Mother at the agency on January 6, 2020, prior to an access visit, in order to develop goals for the three month plan of care for the children. The Mother assisted in providing information regarding the children’s service providers, their educational, religious and familial background as well as their needs. Ms. Brunet remarked in cross examination that the Mother’s insight with regard to G was helpful and that she was knowledgeable about him.

[142] Occasionally Ms. Brunet assisted in the Mother’s access visits, such as that which occurred on January 13, 2020. At this visit, the Mother appeared well and brought snacks for the visit. The children were happy to see their Mother. The visit was positive overall, and the Mother interacted with the children in an appropriate manner. G told his mother “you are a good mommy”, to which she replied, “that’s because I love you guys.” At the end of the visit, the Mother put the children into their car seats and gave them hugs and kisses goodbye. G commented that it was hard to say goodbye and he wished the visits were longer. On the ride home, G stated that he wished he could see his Mother more often and have longer visits with her, at the Mother’s home. G also indicated that he liked the kin home but also liked it with his Mother too. These statements were admitted on consent as truth of their contents.

[143] On February 10, 2020, Ms. Brunet met with G privately. G indicated he liked the visits with his Mother. When asked if he would change anything about the visits, he said they were fine the way they were. These statements were admitted on consent as truth of their contents. Both G and J were observed to be affectionate toward S.R. J interacted positively with his caregivers and was meeting his developmental milestones.

[144] Ms. Brunet supervised the February 18, 2020 visit between the children, their Mother and Maternal Grandmother. The children were happy to see them both, and enjoyed a positive visit. There were no concerns noted and J appeared comfortable in his Mother’s care.

[145] In mid-March 2020, due to the pandemic, all face-to-face visits were suspended. Prior to that the Mother was exercising access on Mondays to 3:00 p.m. to 5:00 p.m. Virtual visits were instated for both the Mother and G’s father, S.C., who had also been having visits with G. Given D.A. remained unengaged, he was not exercising access.

[146] On March 23, 2020 Ms. Dufour met with S.R., J and G via facetime. J appeared well and healthy, and interested with S.R. He however did not like talking and/or seeing people over the telephone and cried when Ms. Dufour waved and spoke to him. G interacted with Ms. Brunet for approximately five minutes, but he did not want to talk about his parents.

[147] On April 13, 2020, the worker provided the kin home a box of cultural support items for J so he could learn about his Cree heritage.

[148] On September 18, 2020 Ms. Brunet brought G to his OCL Lawyer’s office, where she sat in for the meeting. G was much more forthcoming with his lawyer than Ms. Brunet had experienced herself. On consent of the parties, and admitted as truth, the follower were G’s disclosures to the OCL. G expressed concerns for his Mother, hoping she was okay, as he had not seen or heard from her in months. G indicated he had seen information on his Maternal Grandmother’s iPad to lead him to believe that his Mother went to D.A. for help because of her new boyfriend J.M. G advised the OCL that he knew D.A. would not hurt his Mother (now) because he has a criminal record and does not want to go back to jail. G was aware D.A. was not allowed to leave D.A.’s mother’s side. G expressed a desire to see his Father, S.C. and that he misses him. He would like to see S.C. once per month, but he did not want to live with him because his Father is “boring”. He did not wish to see D.A.

[149] When the OCL inquired what G would like to see happen between he and his Mother, G voiced at first that he did not know. He then expressed that his first choice was to live with Nana (Maternal Grandmother) because she is nice and always says please, and second choice would be to live with S.R. If asked to choose between his Mother and Father, he would choose his Mother. When asked if he remembered how things were between his Mother and D.A, G indicated they were terrible times because they were always being mean to each other, especially D.A.

[150] G told the OCL that he would change nothing about living with S.R. as it is perfect, and rated how happy he was living with her as a 9/10. G expressed that he did not want to hurt anyone’s feelings, and felt it would hurt S.R.’s feelings if he told her he wanted to live with his Maternal Grandmother. However, his Maternal Grandmother told him that she would not raise J as it was too much work, and G did not want to live without J. G expressed wanting J to grow up knowing him.

[151] Ms. Brunet’s evidence from the OCL was that there had been five meetings with G from October 30, 2019 onward. At each meeting, G expressed to the OCL a desire to continue residing with S.R., except for the September 17, 2020 visit where he indicated that his grandmother was his first choice.

[152] Ms. Brunet described J as a happy and healthy two year old toddler, who is in the beginning stages of developing age-appropriate self-care skills. J’s Father D.A. is of Cree heritage, though D.A. chooses not to identify with that part of his identity. J has no outstanding medical concerns and is meeting his developmental milestones. He attends daycare and interacts positively with other children of his age.

[153] G was described as a pleasant, happy and healthy eight year old child, who loves to joke around. He is very able to articulate his likes and dislikes, such as when he does not want to talk about something. He loves to play video games, and will go for walks and bike rides with S.R. G continues to develop age-appropriate self-care skills, and helps out around the house. G shows affection toward S.R., and maintains a positive relationship with his Maternal Grandmother. While G had asthma, his medical needs are being met, as are his dental needs. S.R. has been working with G regarding his patience and anger management skills. G achieves satisfactory results in school, though he requires improvement in the areas of responsibility, behavioural and competing tasks and homework assignments. He does well in areas that require collaboration with others.

[154] Ms. Brunet testified that visits between the children and the Mother were reinstated, to occur virtually, three times per week. It was a term of access that the Mother would check in with the worker twice immediately before to a visit, at both 60 minutes and five minutes prior. The Mother missed the visit scheduled for December 1, 2020 due to being at the clinic. Though Ms. Brunet did not supervise any of these visits, her evidence was that they went well, but if anything were a little chaotic due to the ages of the children.

[155] Ms. Brunet also indicated that G has been consistent about who he wants in his life, such as his Maternal Grandmother who he misses when he does not see her. He also expressed loving and wanting to see and spend time with his Mother. He worries about her when he does not see her. Because of the consistency of his expressed desires, Ms. Brunet is not persuaded that his wishes have been influenced. G also expressed a desire to see his Father. With regard to S.R., G has been consistent that there is nothing he would change at her home, that he enjoys living there with his brother.

[156] While G clearly worries about his Mother when he does not see her, Ms. Brunet indicated in cross examination that they are concerned about the Mother being reliable in seeing the children. If the visits are not consistent and regular, this could be damaging to G. G was described as intelligent and intuitive. For instance, if he receives three calls from his Mother one week, he would expect to receive the same amount of calls the following week. Initially, when the Mother resurfaced, the Society had the expectation that the Mother would meet with the workers three times to demonstrate consistency and motivation prior to access being reinstated.

[157] Ms. Brunet acknowledged the Mother’s importance in G’s life, and she believes G misses both his Mother and Father.

[158] When discussing the review of the Plan of Care with the Mother, Ms. Brunet’s evidence was that while the Mother participated in the three month review, there were issues in being able to consistently reach the Mother.

[159] With regard to when G sees his other family members, he sees the Maternal Grandmother regularly, unsupervised as her partner is present. He also sees his Father, supervised at his Paternal Grandparents’ home.

Michelle Dufour

[160] Ms. Dufour had been assigned as a Child and Family Worker on this matter since August 14, 2018. In her role, she has supervised visits between the children, the Mother and D.A. She has also reviewed the Triple P program with the parents. The crux of her evidence stems from June 2019 onward, when both J and G were with the couple.

[161] During her early involvement, Ms. Dufour described the Mother as being engaged and receptive to the Triple P program and suggestions. During this time, the children were observed in the home, and they presented as happy and appropriately dressed. The Mother was also observed responding appropriately to the children, and she used the Triple P strategies with success. Ms. Dufour’s involvement with D.A. was limited, but he had agreed in August 2019 to allow the worker to provide him with anger management strategies to reduce the impact on the children. The worker also met the parents on September 5, 2019 to continue to assist them with their parenting skills and implementing different strategies. After this, the couple rescheduled meetings on three occasions and missed the September 30, 2019 meeting.

[162] Ms. Dufour was present for the October 9, 2019 meeting with the parents at the Society, where the concerns were outlined with the couple, including the concerns regarding domestic conflict, G’s school attendance and difficulties in connecting with the family. Ms. Dufour’s evidence of this meeting mirrors that which is outlined by Ms. MacGillivray, above. This meeting resulted in a safety plan involving the Maternal Grandmother staying at the Mother’s home with her and the children. Further, D.A. was not to be in the children’s presence. The worker was also present for the October 11, 2019 safety planning meeting described above, where due to a lack of babysitter for J, necessitating his attendance, it was suggested that D.A. not attend to ensure there was no conflict or escalation. Following this the worker received derogatory and accusatory text messages from D.A. about breaking up the family and the “lies” the Society was relying upon. Though the worker tried to ensure D.A.’s voice would be heard, D.A. refused to meet with the Society workers.

[163] Ms. Dufour and the worker Cassandra St. Pierre attended G’s school on October 15, 2019 to interview the child. Of note, Ms. Dufour’s affidavit indicated she attended with Cassandra St. Pierre, whereas Ms. MacGillivray’s affidavit indicates that it was Cassondra Wheeler who attended. Regardless, I have direct evidence that Ms. Dufour was present, which is sufficient in the circumstances. At that time, as noted above, G disclosed that D.A. has been in the home while the children were present over the course of the last couple of days.

[164] On October 15, 2019, the children were brought to a place of safety. Following this, access arrangements were made whereby the Mother would see the children on Mondays from 3:00 p.m. to 5:00 p.m., supervised at the Society’s office. The Mother was to attend 45 minutes prior to the visit and meet with the worker, while another worker would gather the children from school or S.R.’s home.

[165] On November 19, 2019, when Ms. Dufour attempted to reach the Mother to confirm access and send a taxi to pick her up, D.A. picked up the telephone.

[166] Ms. Dufour supervised the Mother’s first visit, which took place November 21, 2019. The visit was described as positive overall. The Mother was affectionate as she hugged, kissed and cuddled with both children. The next visit was November 28, 2020, where the Mother advised the worker that she and D.A. had separated. The Mother was affectionate and attentive to J and provided him appropriate supervision. The Mother’s focus was more on J, while G watched a movie and coloured, appearing distracted and quiet. The Mother spoke negatively about S.R. to G, and G defended S.R.

[167] The Mother’s scheduled visit for December 2, 2019 did not proceed due to the Mother’s non-attendance. This was disputed by the Mother in her evidence as she recalled writing a letter to Santa on that date. The December 9, 2019 visit also did not proceed despite it having been previously confirmed and despite numerous attempts by Ms. Dufour to contact the Mother. On December 11, 2019 the Moher advised the worker that she failed to attend the visits as she had no transportation and no telephone, as she shared a phone with D.A. who took it with him to work. Ms. Dufour had previously offered to send a taxi to transport the Mother, and confirmed this wold occur in the future. The Mother confirmed she was residing at the Monte Carlo Motel, and rather than provide a room number she offered to wait outside for the taxi. Despite Ms. Dufour’s evidence, the Mother in her evidence denied missing any visits in December 2019, and clearly remembers those visits.

[168] Regarding the December 23, 2019 visit, while the Mother texted Ms. Dufour that she was in a taxi, it turned out that this statement was not accurate. The taxi sent for by the Mother waited ten minutes at the Monte Carlo Motel, and the Mother did not appear.. Ultimately the visit was cancelled. Though the Mother agreed to meet with the worker later that day, when the worker attended the Mother’s home for the scheduled meeting, the Mother did not answer the door. The visit of December 30, 2019 was similarly cancelled as the Mother did not present herself to the taxi and did not attend. The Mother denied any knowledge of this visit being scheduled.

[169] The January 20, 2020 visit was positive, with J running to his Mother with excitement. Love, attention and affection as well as appropriate parenting skills were exhibited. The Mother was late for the February 3, 2020 visit to celebrate J’s birthday. The Mother appeared dishevelled, offering no explanation for being late. She advised the worker that things had been difficult as she and D.A. were stressed about finances. She further indicated she did not have methadone for a week, and it was having an impact on her. She made several comments about being in pain and feeling sick throughout the visit. Toward the end of the visit, the Mother appeared tired and was moving very slowly. The Maternal Grandmother gave the Mother several pills at the end of the visit. The evidence presented about what these pills contained was contradictory. The Mother’s evidence was that the pills were Tylenol and Gravol while the Society believed they were narcotics.

[170] While G presented as reluctant to attend the February 24, 2020 visit, the visit went well, and the Mother was noted as being attentive and affectionate. J also ran to the Mother at the start of the visit.

[171] The Mother did not make herself available in time for the February 28, 2020 meeting with Ms. Dufour. The Mother did however attend the March 9, 2020 visit, during which G was mostly quiet.

[172] On March 17, 2020 all in-person access visits were cancelled due to the pandemic. The Society made arrangements for the Mother and S.C. to have virtual visits with the children. On March 23, 2020 the Mother informed the worker she was residing at Maison Interlude in Hawkesbury, and D.A. was attempting to locate her by contacting her family. On March 25, 2020 the Mother was advised she was on a list to receive technology to communicate with the children during the pandemic, and until then there would be three way calling taking place.

[173] While the Mother was 15 minutes late attending the March 26, 2020 call, it nevertheless took place. During that call the Mother told G that she got a new apartment and “it will just be me and you buddy”. G appeared emotional and was crying, but did not indicate why. The March 30, 2020 call took place despite the Mother being six minutes late. The April 2, 2020 call went well. At that time, the Mother confirmed with the worker she was residing in S.C.’s home. On April 6, 2020 the overall tone of the call was positive. The Mother advised the worker she was now residing at her friend J.M.’s home as S.C. thought they were reconciling and acted inappropriately toward her. The April 9, 2020 visit took place, but the April 14, 2020 visit did not despite the worker’s attempts to reach the Mother. Ms. Dufour reached the Mother on April 16, 2020. The Mother advised she had missed her call with the children because she missed a couple days of methadone and this caused her to sleep until 4:00 p.m.

[174] The April 16, 2020 visit was positive, with both the Mother and G expressing love toward the other. After the call, the Mother expressed frustration that the visits were not face-to-face. The worker relayed the importance of social distancing prior to in-person visits taking place. The Mother was also encouraged to reach out the CPW Wheeler, who had been trying to reach her.

[175] On April 20, 2020, the Mother had a Facebook video call with the children. The worker noted the Mother looked significantly thinner. The April 21, 2020 visit was positive and appropriate, though the Mother appeared to have “heavy eyes” and they were closed at various times during the call. The Mother was again reminded to return Ms. Wheeler’s calls, and promised to do so that day. While the April 23, 2020 visit started late, it was overall positive The April 27, 2020 visit took place with the Mother lying in a bed. The Mother tried to engage the children, but they were distracted. The April 30, 2020 call was positive. The Mother indicated to Ms. Dufour that she had a call scheduled with Ms. Wheeler following the visit, which turns out did not take place as the Mother did not answer the telephone.

[176] The Mother acted appropriately during the May 1, 2020 visit. Following the call. the Mother and worker agreed to complete a health assessment to explore the feasibility of face-to-face visits. The May 4, 2020 visit did not take place despite attempts by the worker to reach the Mother. The Mother also missed an appointment with Ms. Wheeler scheduled for that same day, which Ms. Dufour reminded the Mother about less than an hour before the meeting. The following day the Mother contacted Ms. Dufour to express frustration about the lack of contact from CPW Wheeler, despite her missed appointments with that worker. With Ms. Dufour’s assistance, a meeting was set up for May 6, 2020, which did proceed.

[177] Ms. Dufour was a few minutes late for the May 7, 2020 phone call, but it proceeded nevertheless, and the discussions were appropriate. The May 12, 2020 visit did not take place despite the worker’s attempts to reach the Mother. The Mother later advised she had been asleep. The May 14, 2020 call was positive. The May 19, 2020 call did not proceed due to the Mother not answering the call. The June 2, 2020 call was positive. The Mother was emotional following the call, expressing frustration that no matter what she did, it was not good enough for the Society.

[178] The June 4, 2020 call started late, and apart from the Mother leaving G on the line without her for approximately two minutes, it was positive overall. On June 8, 2020, the call took place, but the Mother was not feeling well due to methadone related issues. G was quiet on the call. The June 11, 2020 call commenced late as the Mother was at the bank. An appointment was set for later that day with CPW Wheeler, which the Mother missed despite the reminder. The call was rescheduled for the following day, which proceeded.

[179] On June 15, 2020, the Mother did not call the worker in advance, as expected. She nevertheless picked up when Ms. Dufour called her on video. During the call the Mother was lying in bed, closing her eyes and yawning. At one point, the Mother stopped talking. G disconnected as requested, and it took three to four minutes to rouse the Mother, who denied falling asleep. The Mother denied being under the influence. G returned to the call unexpectedly, which permitted the Mother and child to exchange “I love you’s” and goodbyes. The June 18, 2020 call did not take place, despite attempts to reach the Mother.

[180] During the June 25, 2020 call, G appeared distracted and the call was ended as he did not want to engage. At this time, the Mother confirmed she was still residing in J.M.’s home, but as roommates. On June 29, 2020 J.M. advised that the Mother was no longer residing with him. The following day Ms. Dufour and the Mother spoke, where the Mother advised that J.M. was acting like D.A., and she would not let him “treat me like shit”. She explained she was staying with friends but was homeless 90% of the time. The Mother spoke of D.A. punching her daily when the children had been removed from their care. She explained this was as a result of his childhood trauma which caused him to be aggressive and use drugs. In her evidence, however, the Mother denied any physical abuse occurred. The Mother further indicated she stopped methadone treatment on June 1, and had suffered withdrawals until June 25, leaving her unable to leave her bed. She indicated she had not used that month. The Mother also advised that she and S.C. had fought over drug use, but did not report this to the Society despite G attending visits with S.C. Further, the Mother indicated she had not used drugs prior to G’s first apprehension in 2017. Rather, she was using while she waited to get G back, and would stop once the children were returned. It was explained to the Mother that face-to-face visits would not resume until she passed the health assessment, which she understood. Finally, when asked what it would look like if she was using again, the Mother described how she would likely disappear for two to three weeks, and not maintain contact with the Society or the children.

[181] The Mother missed the visits scheduled for June 18, 2020; June 23, 2020; July 2, 2020; July 6, 2020; July 13, 2020; and July 20, 2020. The visit for July 16, 2020 was cancelled by Ms. Dufour due to concerns that the Mother’s heightened state was related to drug use

[182] In mid-June, Ms. Dufour provided strategies to S.R. due to J’s behaviors including biting, spitting out food and hitting G. In late-June S.R. and her partner broke up, which necessitated a move. This did not affect S.R.’s long term plan that she was presenting for the children.

[183] In July 2020, G had an overnight visit with his Maternal Grandmother. The Maternal Grandmother continued to have regular overnight visits with the children thereafter.

[184] The Mother had a visit on July 27, 2020, the last one until visits were reinstated in November 2020. The Mother advised she was residing with a friend in Hawkesbury, and that she was maintaining her sobriety. When speaking with G, he questioned why she had missed the phone calls. In response, the Mother indicated she had lost her cell phone. During this call Ms. Dufour noted G seemed reluctant to speak. G also told the Mother “keep talking, you scare me when you stop talking”. This statement is admitted to as evidence under the state of mind exception.

[185] On August 4, 2020 the worker reminded the Mother by message to connect with CPW Wheeler, who was having difficulty reaching her. On the same day, J.M. messaged the worker to advise the Mother had taken off.

[186] Ms. Dufour next spoke to the Mother on August 24, 2020, who advised she was residing in Kingston with her Father, and had been there for a week. She indicated D.A. paid her $500.00 taxi fare to permit her to return, and that they had “settled things” but were not in a relationship. They maintained regular contact despite the no-contact order that was in place. She spoke of her Father (J.R.) and his girlfriend T.C. as her supports. They had previously been supports in May 2017, and were prepared to be her supports again.

[187] On September 11, 2020 Ms. Dufour received a message from the Mother. Ms. Dufour was not able to reach the Mother directly and spoke to J.R., who agreed to relay a message to the Mother of the worker’s attempt to reach her. On September 14, 2020 Ms. Dufour received a message from the Mother, but when she responded later that day the Mother did not reply. On September 24, 2020 the Mother questioned if the worker was aware that J.R. had contacted CPW Wheeler. Ms. Dufour was unaware, but advised the Mother that they were all trying to get in contact with her, to which there was no response.

[188] In cross examination Ms. Dufour clarified that when interviewing G, the questions were very open ended, and she let G lead the conversation. G provided a level of detail that provided assurances to the worker about the veracity of his concerns and allegations.

[189] Ms. Dufour also spoke of when G had been returned to the Mother’s care. The couple was using their family-led safety plan, which included J’s former foster parents and the Maternal Grandmother. Ms. Dufour’s evidence was that the Society offered services, but did not prescribe them to the parents. For instance, providing Triple P, directing the Mother to Maison Interlude, and suggesting the Caring Dad’s program for D.A., which D.A. attended but did not fully engage with. The Society did not recommend methadone treatment, but it was a service that the couple was already receiving and maintaining during the Society’s initial involvement.

[190] Ms. Dufour confirmed that the couple shared the parenting role for the children, and they had worked very hard and were successful with the reintegration of the children. Following taking the children to a place of safety, due to the global pandemic, J’s former foster parents were unable to be supports to the family.

[191] When addressing the most significant issue the Mother needed to address, Ms. Dufour’s view was that the domestic violence went hand-in-hand with the addiction issues. When one of these issues were at play then so was the other, and the Mother’s mental health in turn decreased.

[192] It was also clarified that on September 5, 2019, the concern on that date was that G was not registered for school, which was due to a miscommunication with the Society. The Mother was engaged and social at that time. By the October 9, 2019 meeting, the Society had received troubling disclosures from G, the family was disengaging, there were concerns about the drug screens and G was frequently late for school. At that meeting the couple both admitted to using fentanyl while in Kingston as they didn’t have access to the methadone. They suspected the fentanyl had been laced with other substances. This was, however, disputed by the Mother in her evidence. Ms. Dufour indicated that the couple had a difficult month in September, and she testified that she had no reason to deny they had visitors, and they were sick. At the meeting, the Society identified concerns about drug use as they saw a pattern of concerning behaviour, such as the Mother sleeping a lot, G not getting to school on time, and the child’s needs not being met. The Society was able to assist identifying a safety person to come to the home and help monitor the situation and address these concerns. The couple had other supports available, such as a neighbour named Sarah, another named Vivian, and cousins, but the family did not want to bring them forward as they did not want to feel babysat and have people knowing their business. This made it difficult to generate a workable safety plan with them. The Society needed an immediate plan to address the concerns, permitting them to develop a larger network in the near future. It become even more difficult after the Maternal Grandmother demonstrated an inability to follow the safety plan. Accordingly, the Society could no longer trust her.

[193] Ms. Dufour was able to shed some light on the Mother’s contact information, confirming that the information was input manually into CPIN, which was updated frequently. The Mother frequently had different numbers, and had advised Ms. Dufour to reach out to the Maternal Grandmother if she had difficulty reaching her.

[194] It was the worker’s evidence that G is very intelligent, and recognized the pattern of access visits with the Mother. She also confirmed that the children have a good attachment with their Mother and that they are always happy to see her. Ms. Dufour went on to confirm that the Mother is very capable of having positive interactions with the children when she is in a good place. Visits between the Mother and children are frequently positive and are meaningful. The Society agrees that she will always be the children’s Mother. On the other hand, they are concerned about the impact on the children when the Mother goes back and forth in her involvement in their lives and in her ability to protect and care for them.

[195] Ms. Dufour disagreed with the suggestion that the Mother was consistent in communicating with her regarding the visits. Her evidence was that the Society went long stretches of time during which the Mother would miss multiple scheduled visits. They then lost contact with the Mother altogether. When they work with a family, the Society prefers the parents attend all of the scheduled visits, or at least inform them of any expected absences so the children are not disappointed. Ms. Dufour also confirmed that face-to-face visits were reinstated by the Society, in general, on or about May 2020. This was not the case for the Mother due to the concerns noted above.

[196] With regard to the Mother’s current plan, Ms. Dufour was unable to comment about J.R. or T.C., apart from saying that she was aware historically the Mother did not have good relationships with them and that she was happy that the Mother was able to rebuild the relationships. It was, however, her understanding that G may have known the Maternal Grandfather as a newborn, but has had no further interaction to her knowledge in the past couple of years.

The Mother, A.R.

[197] Similar to the Society’s case, the Mother and her witnesses provided affidavit as well as viva voce evidence. The Mother also relies on her amended Answer and Plan of Care.

[198] The Mother is 31 years old. She is both G and J’s biological Mother.

[199] G’s Father, S.C. and her were in a relationship for approximately five years. The Mother confirmed that when she met S.C., he was in treatment for drug addiction issues. There is a fifteen year age difference between them. They met when the Mother was nineteen years old. About three months after G was born and following the Mother’s separation from S.C., the Society became involved with her and G. The Mother confirmed the first time was due to domestic conflict between her and S.C. Another time was because S.C. would attend the Mother’s home regularly when he was using drugs, in the middle of the night, asking for money and refusing to leave. She had to call the police to have him removed. The Society attended both in January 2013 and February 2013. Then another report came in March 2013, wherein the Mother admittedly attacked S.C. as he had taken her money, leaving her with no money for rent or groceries. The Society’s file was closed in March 2014. There was another opening in January 2015 due to another verbal dispute. The Mother admitted that G had heard one of the arguments, and was very upset by it. She recalled telling the worker that when G heard an argument, he would put his hands over his ears, and that to her, it meant that there was a lot of yelling and screaming, prompting her to stop. It bothered the Mother that G reacted that way. It also bothered her that S.C. did not react and wanted to continue arguing. This formed part of the reason the Mother moved to Kingston.

[200] S.C. suffers from mental health issues due to past drug use, and has never played a significant role in G’s life. G was born in Cornwall in 2012. The Mother left Cornwall when G was turning 3 years of age, moving to Kingston. Until she moved to Kingston, she was in receipt of Ontario Works. The Mother moved to Kingston because she felt she had more support available, along with all of her friends and family who had already moved to Kingston with whom she remained in contact.

[201] The Mother acknowledged that S.C. followed her to Kingston to be close to G. Though G and S.C. spent time together, this was stopped by the Mother when S.C. became very unstable, ending up in the hospital. The Mother’s viva voce evidence was that this occurred in April 2017, and she still spent time with him in June and July in order to be supportive. In her evidence at trial, the Mother also stated S.C. left Kinston on or about July 2016. However, her affidavit references S.C.’s move to Hawkesbury to reside with his parents in January 2017.

[202] In cross examination, the Mother confirmed that it was actually in May 2015 that the Kingston CAS became involved. At that time, police showed up at the Mother’s home to advise that S.C. had been picked up and was mentally unstable. The Society closed their file as the Mother presented J.R. and T.C. as supports. At G’s birthday party in August 2015, there was a disagreement as either T.C. or S.R. were concerned about the Mother’s use of marijuana.

[203] Her viva voce evidence was that while G attended school, she too was attending school full time and found part time work as a medical administrator for a doctor’s office. She spoke of being very emotionally stable and how she and G were doing well in starting a new career. G was a very happy child, and the family had a lot of support from friends and family. However, her affidavit evidence was also that she had just graduated with a Medical Office Diploma and was looking for employment in the field. She got behind on the monthly bills, which resulted in her eviction from her apartment and her cell phone being cancelled.

[204] Initially in her evidence the Mother testified that G never spent a night away from her. Later when discussing the photographs from G’s infancy, she corrected herself to indicate that J.R. and T.C.’s home was the only place that G ever slept away from home. This regularly included Friday nights and Saturdays. The pictures depicted a happy child who loves his family.

[205] The Mother never brought home any boyfriends that G did not already know, and their home was a safe place. G had her full attention all of the time, and they attended fun activities such as going to the beach, the library, and the park frequently. The Mother has a very large extended family, and they all have children G and (J’s) age.

[206] The Maternal Grandmother would frequently talk to G on the phone, but she did not visit often. The Maternal Grandmother and her partner had unrealistic expectations of how the Mother should live her life, thinking higher education was ridiculous.

[207] Pursuant to her affidavit, The Mother dated D.A. for approximately nine months prior to moving in together in the summer of 2017. She had been friends with him and his sister since they were children, approximately 27 years. In her testimony, the Mother’s evidence was that he moved into her apartment some time in April 2017. Later in her evidence the Mother indicated she did not start a relationship with D.A. until after G had been removed from her care. He had, however, been residing with her temporarily, and moved out after G was removed. Prior to that, the last time the Mother had seen D.A. had been in May 2015 in Cornwall.

[208] On May 17, 2017, G was taken to a place of safety due to concerns about the Mother’s drug use and conflictual relationships. The concerns arose as a result of S.R. making reports against the Mother. The Mother, however, denies ever using drugs while she was caring for G. Despite the bad blood between them, the Mother preferred that G reside with S.R. rather than be placed in foster care.

[209] When the Kingston CAS apprehended G, the Mother believed it was due to G not attending school regularly and G throwing out and not eating his lunches. She recalled G missed a lot of school that month, but denied it was fifty days that year. She recalled that she had only been evicted after G had been apprehended. She denied any knowledge of D.A. using drugs while near her or G. T.C. and J.R. were down the street from the Mother’s home and were aware of what was going on; however, they were having their own issues at the time.

[210] After G was apprehended, the Mother moved in with J.R., but then she became depressed and went to stay with D.A.’s sister. She had the thought of numbing her depression and D.A. was unable to assist her so she went off on her own, into the wrong neighbourhoods. She was living in a motel in July and August, using drugs, mainly smoking heroin. The Mother’s evidence was that her depression caused her to use drugs. She felt dead inside, and had no reason to move forward. She resorted to drugs to kill the pain. Her evidence was that she only started using drugs in late June 2017, after G had been removed from her care.

[211] In or around July or August 2017, the Mother found out she was pregnant with J.

[212] In late August the Mother reached out to D.A., and he helped her by taking her to Cornwall. The Mother was not in contact with anyone in July and August, including J.R. and T.C. She, however, maintained contact with the Kingston CAS and had phone conversations with G during this time.

[213] The Mother moved to Cornwall on September 1, 2017 as G was already in Cornwall and she wanted to be closer to him. She brought D.A. with her as she was pregnant with their child and wanted to move forward with this relationship. The Mother notified the Cornwall CAS of her arrival to the city. She and D.A. initially resided in a motel, then moved to Carleton street. The Society inspected and approved of the residence.

[214] D.A. brought the Mother to the methadone clinic on September 1, 2017 to get off street drugs. On September 6, 2020, she started treatment with Dr. Leclair for methadone. At that time, she also received a prescription for marijuana, which helped with her morning sickness, depression and anxiety.

[215] J was born in February 2018. Her affidavit indicated that at the time of his birth, the Society had no protection concerns regarding parenting skills or the Mother’s ability to care for J. She did however acknowledge in cross examination that Ms. Vachon was working with the family voluntarily, the Mother agreed that there were services being recommended, such as one-on-one counselling, couples counselling, and addictions counselling.

[216] The Mother described her involvement with the SD&G CAS workers. She spoke positively of Katie Vachon, the first worker, calling her an “overall fantastic worker”. Ms. Vachon worked proactively with the Mother and D.A., frequently offering new tools to address any concerns the Society had. She helped G’s relationship with D.A.

[217] The Mother was also complementary of Michelle Dufour, who was also very hands-on and always called them back, even if she was on vacation. She felt it was easy to maintain communication with those workers. Ms. Dufour assisted with Triple P and offering tools to help with behavioural issues, for which she saw almost immediate progress.

[218] The Mother was shocked and upset by J being taken to a place of safety on August 13, 2018. J was placed with the Maternal Grandmother, due to concerns about the drug test results being positive for traces of cocaine, as well as concerns regarding domestic conflict. Following J’s apprehension, the Mother attended the Maternal Grandmother’s home daily to care for J. On September 24, 2018, without the Mother’s approval, J was removed from the Maternal Grandmother’s home and placed in foster care. The Mother nevertheless maintained her contact with J, and her visits were consistent and positive.

[219] At the time of J’s removal, the Society expressed concerns about the couple’s history with substance abuse. In the Society’s assessment, the couple’s substance use issues at the time justified the removal of J from their care. The Mother felt the Society had overreacted. She had been prescribed two grams of marijuana per day to control pain and anxiety by Dr. Leclair. She had explained to the Society that she occasionally had difficulty affording the marijuana through the government facilities and therefore bought marijuana from a street dealer. This was why there were negative trace results found by Dr. Leclair. She produced clean drug test results, and was able to satisfy the Society’s concerns. She and D.A. had six carries per week, the maximum amount of carries allowed by the recovery program.

[220] To address the concerns of domestic conflict, both parents engaged in personal counselling, the Mother through an outreach program. With the Society’s support, they also devised a safety plan to manage arguments and disputes in the home between them. They received advice and encouragement from their CAS worker for the safety plan.

[221] As a result of their hard work, a trajectory plan was created which envisioned J’s return to the couple’s care. Coupled with the safety plan and cooperative work with the Society, J was returned to their care on January 30, 2019. Initially the idea was to commence with a shared parenting regime of G with S.R. and the Mother, with a plan of returning G to the Mother. S.R. strongly objected to this plan, and refused to cooperate with its implementation. In spite of S.R.’s opposition, G was also returned to the Mother’s care on April 1, 2019. As a result, S.R. abandoned G and she cancelled all proposed visitation arrangements.

[222] The couple continued to work positively with the Society, and as a result, a supervision order regarding J was terminated.

[223] The Society notified the Mother of reports received from G’s school regarding absences of 3.5 days, and instances of being late 13 times. The Society also received allegations by G and S.R. regarding the couple’s drug use and the conflict between D.A. and the Mother. The Society found traces of opiates in the couple’s weekly methadone lab tests, and claimed the Mother presented as sick, weak, exhausted and was losing weight. The Society refused to accept the Mother’s explanations.

[224] The Mother tried to explain that in September 2019, the family received information that D.A.’s aunt and his Mother were both very ill and in the hospital. D.A. was asked to go to Kingston to help him with their affairs. D.A.’s aunt passed, but his mother got better, both of whom were intravenous drug users. The aunt’s funeral was on a Saturday, and therefore the Mother was able to attend as the children were with the former foster parents or the Maternal Grandmother. D.A. assisted in taking care of arrangements in Kingston, which took approximately three weeks. After the aunt’s funeral, his uncle and cousin came to Cornwall for five days. It was a lot of work for the Mother to care for the uncle, who only had one leg, and two children. While D.A. was in Kingston, they all caught the flu, and upon his return D.A. caught it too. The Mother was very sick and it took two weeks to recover. This was a very stressful time.

[225] While in Kingston, the Mother purchased drugs from a friend, and she explained this accounted for the traces of drugs in her drug screening tests. However, in her affidavit, the Mother’s evidence was that they were “involuntarily contaminated with residue opiates from cleaning [the family members] home and sorting their personal items and living space.” The Society did not accept that the opiates found in the Mother’s urine were mere traces. Dr. Leclair did not terminate their methadone carries, and they continued to receive six carries per week.

[226] Regarding the concerns of G’s school, when the Mother enrolled G in school in September 2019, the Society had also enrolled him into another school. The first three weeks the couple had to bring G to school themselves because of this mix-up and bussing issues. With D.A. in Kingston, the Mother had to take care of this alone.

[227] The worker, Ms. MacGillivray, was not very understanding of the situation and offered no support. Ms. MacGillivray simply accused them of past issues they had in their lives. Ms. MacGillivray attempted to visit one time when the children were with the Maternal Grandmother and the couple were getting groceries at the far side of town. The parents were told if they did not keep the meeting, it would have dire effects on their case. They tried to make the meeting, but by the time they arrived, Ms. MacGillivray was no longer there. They felt they were not given a fair chance, and that Ms. MacGillivray was looking for issue to bring up to make them look bad. It was never good enough for her.

[228] Despite what the couple did to alleviate the concerns. The couple felt ignored. D.A. became upset and refused to communicate with the Society, though he supported the Mother’s plan. The Society failed to offer the couple, or the Mother, any resources.

[229] The home life was becoming very stressful, which affected their relationship. It caused them to blame each other, which usually happened after the children went to bed. They nevertheless continued to use their safety tools, such as taking walks. When Ms. MacGillivray accused them of having domestic conflict, they felt that the safety plan had been working. That did not satisfy her, though it successfully resolved the domestic conflict. Unlike Ms. Vachon, who was very proactive and was driven to help resolve problems, Ms. MacGillivray did not listen to them, and they felt blamed.

[230] A week prior to the children being taken to a place of safety, the Society gave the Mother an ultimatum that she could either have the Maternal Grandmother reside with her, with D.A. residing outside of their home; or they would take the children. As a result of the allegations, D.A. decided to separate from the Mother. Further, the Maternal Grandmother moved in with the Mother as parenting the children was her first priority. The Mother’s evidence was that she and her mother understood that D.A. was not to be on the property or to communicate with the children.

[231] The Society noted no concerns when they attended the Mother’s home on October 12, 13 and 14, 2019. On October 15, 2019, the Society and the Cornwall Police Services took both G and J to a place of safety, without a warrant. The children were placed with S.R., against the Mother’s wishes. The concerns reported by the Society mirrored those from the prior apprehension, and D.A. was directed to separate himself from the Mother and children. As a result of all of these, there was a collapse of the existence of the Mother’s family plan. Though D.A. promised to help support the Mother financially and work together as in the past to re-establish their previous parenting plan, this did not occur.

[232] Following the children being taken to a place of safety in October 2019, the Mother described her relationship with the new workers as very poor. She felt like she and D.A. were being accused of issues that had already been resolved, and that the workers were not listening or accepting the couple’s answers. The Society did not accept the situation in which they found themselves, with falling ill and family members dying. The newer workers did not offer any tools to make things easier. They kept the couple in the dark about G’s issue, which would ultimately cause conflict within the couple. They became fearful the Society would remove the children despite how hard they worked, and how successful they were, in the past.

[233] Immediately following the children being brought to a place of safety, Cassondra Wheeler took over from Tara MacGillivray. At the beginning of Ms. Wheeler’s involvement, when D.A. was still in the home, she attended to see and speak to them often, but that stopped very quickly. It was hard to get into contact with Ms. Wheeler. Most of the communications occurred from January to March 2020. The Society never offered or allowed communication to go through the Maternal Grandmother despite the Mother asking for this.

[234] The Mother attended the meeting where the Society addressed the issues that lead to the children being taken from her care. At that meeting, there was no talk about safety planning, or a trajectory. They were told to bring family members to the table to deal with the situation. She told the Society that their friends and family were not willing to work with CAS and they did not want them in their homes, which the Mother understood. It was unrealistic to their supports that they would have to supervise the parents or reside with them. They had D.A.’s oldest daughter, the Maternal Great-grandmother and her cousin Tammy as supports, but not to reside with them. Without the family coming to the table, they felt they lost their children.

[235] The Mother’s viva voce evidence was that following the children’s removal, she immediately pursued visitations with the children, but the Society would not allow her access with the children while she was involved with D.A. The Society consistently pressed for her to leave D.A., and the only way she would get to see the children was if she was a sole parent, with her own income and residence. Later in her evidence the Mother testified that the Society never told them D.A. had to move out, and that this was a choice he made on his own so that the children could be returned.

[236] After the children were removed, the Mother stayed in the family home on Carleton Street, and D.A. moved back into the home. Then D.A. moved to a residence on Sixth Street, which was a rooming house. The Mother was forced to leave the Carleton street home on November 25, 2019. On November 27, 2019 D.A. was arrested for allegations of break and enter, as opposed to the Society’s allegation that he assaulted her. The Mother denied that D.A. had ever assaulted her, and he had never been charged with assault. There was however a no-contact order as the Mother had been a witness to the break and enter. This ended D.A.’s financial support of the Mother, resulting in a severe hardship on her and their relationship. The Maternal Grandmother and her partner were not supportive of the Mother’s relationship with D.A. and therefore refused the Mother temporary shelter. She was alone, homeless and penniless.

[237] The Mother moved to the Monte Carlo Motel from December 1st to 3rd, 2019. She then moved to the same rooming house as D.A., which had a separate entrance and was not connected to the main house. The Mother did not have a cell phone, so D.A. would leave his with her while he was at work. During this time, D.A. felt himself to be the target of the Society and S.R. The relationship between he and the Mother deteriorated rapidly as the Mother became isolated, frustrated and depressed. D.A. accused the Mother of disloyalty; he became jealous and possessive of her. He seemed to be angry with everyone.

[238] In December 2019, D.A. and the Mother agreed it would be best for her to present a plan on her own. She told the Society of this, which was never accepted as truth. The Society never acknowledged she was presenting her own plan for the return of the children.

[239] During January and February, the Maternal Grandmother transported the Mother to access visits. Meanwhile, the Mother withdrew from methadone treatment, resulting in her looking ill and weak.

[240] As a result of increasing harassment by D.A., and realizing she needed to protect herself from him, the Mother went to Maison Interlude. Her Society worker had described the shelter, and the Maternal Grandmother assisted her in applying to attend. On March 20, 2020, the Mother left the Sixth Street home to attend the shelter, and had no communications with D.A. until August 2020.

[241] During this time, the Mother felt there was no progress being made. Her visits were supervised at the CAS office. They never told her why the Maternal Grandmother was not suitable to supervise her visits. Initially, the Mother testified that the Society cancelled the couple’s Christmas visit with the children and the Mother had no other visits until January 2020. Later in her evidence she testified that she had moved to Sixth Street on December 23, (as opposed to December 3, above), and there was no visit that day. In cross examination, the Mother’s evidence was that the December 23 visit was moved to December 27, then it was cancelled by S.R. They did not have any holiday visits until January 2 or 4, 2020.

[242] In or around March 2020, the Mother went to the Maison Interlude shelter in Hawkesbury, following communications with S.C. where he indicated he and his family would support her relocating to Hawkesbury. The Mother contacted Ms. Dufour to advise of same. She tried to communicate with Ms. Wheeler, and left a voicemail message. She provided Ms. Dufour and Ms. Wheeler the cell phone number and Facebook contact information which she had until July 2020.

[243] During her time at Maison Interlude, they assisted in putting her on a list for social housing, put her in contact with her doctor from the methadone clinic, Dr. Leclair to recommence her treatment, and started domestic violence counselling. There was no additional counselling available at Maison Interlude, and very limited options in Hawkesbury. The Mother applied for Ontario Works, and attempted to apply for apartments which due to the pandemic was next to impossible.

[244] After the Mother left Maison Interlude, she stayed with S.C. for a week. Then she met J.M., from whom she rented a room. She left J.M.’s home as she was not open to a relationship with him. J.M. made it clear to her she could only stay if they were in a relationship together. She then stayed with her friend K. for a couple of weeks then moved to Kingston. The Mother’s evidence was confusing regarding the timelines as she also testified she stayed with her friend K. for six weeks after leaving Maison Interlude. She also testified that she resided with J.M. from the second week of April to the second week of July 2020. Further, she stated in her affidavit that she resided with S.C. and his family for several weeks.

[245] She felt that the methadone treatment as prescribed by Dr. Lelcair had no end in sight. While initially the methadone helped with the cravings and withdrawal symptoms she had, the methadone kept increasing, which became a health concern to her. The Mother indicated her teeth started rotting, her emotional health deteriorated. At the end, she was down to 89 pounds. There were no treatment facilities in Hawkesbury which is one reason she decided to move to Kingston.

[246] During June and July 2020, the Mother told Ms. Dufour how she was feeling, and discussed her self-detox with her. It took her 21 days to completely detox.

[247] The Mother made every effort available to her to stay in contact with the children by telephone access calls. Her evidence was she seemed to always be borrowing a phone. She was not granted face-to-face contact due to the global pandemic. Her evidence was that she tried to explain every time she missed or was late for a scheduled visit. She was under the impression that S.C. would seek G face-to-face. He did not face the same penalty as her despite COVID-19. G would spend weekends at his Father’s home, where the Mother was limited to three virtual visits of 20 minutes per week.

[248] In speaking to Ms. Wheeler, she needed to pass a health assessment in order to reinstate face-to-face visits. She completed the assessment, but visitation did not happen again. Ms. Dufour told the Mother this was because the Mother was living out of province at this time.

[249] The Mother’s evidence changed frequently as to when the last visit she had with G occurred, be it either July 9, 2020 or July 27, 2020. Thereafter, the next visit was November 25, 2020. Despite the termination of the visit, the Mother continued to try to connect with Ms. Wheeler periodically when she was still in Hawkesbury, but received no feedback or returned calls from her. When the Mother asked Ms. Dufour for access, she was told by Ms. Dufour that she was not permitted to make those decisions. The supervisor also did not return the Mother’s calls.

[250] In late July 2020, the Mother decided she was going to move back to Kingston. She recalled telling Ms. Dufour of this intention, and how she felt she did not have any support, and was having a horrible time trying to find a job and a place to live with the children. The conflict between herself and S.C. was rising, and she was homesick. Ms. Dufour was on vacation at the time but was generally supportive. The Mother cannot specifically recall, but believes she also advised Ms. Wheeler either by voicemail message or Facebook message. The Mother reached out to J.R. and T.C. who invited her to return, and they would help her get a job and a place to stay. On or about July 30th or 31st, the Mother called J.R. to let him to know expect her.

Move to Kingston

[251] When the Mother decided to return to Kingston, she reached out to D.A., and told him of her plan to move to Kingston and her current situation. On that day, she could not reach her Father. At that time, she used a friend’s phone as J.M. had taken her cell phone and refused to return it. J.M. had been very controlling. The Mother had not spoken to D.A. since March 2020. She told him she had some money, but not much after the cab ride to Kingston. D.A. invited her to “stop” at Napanee (which is beyond Kingston), where his Mother would give her some money for food and a place to stay. D.A. gave her $600.00.

[252] That day, on or about August 1, 2020, the Mother went to Kingston, but as J.R. was working she stayed at a friend’s home. The next day she went to Napanee to pick up more money, where her uncle saw her at the Tim Horton’s and picked her up. J.R. picked her up on August 2, 2020 at the uncle’s home. Initially, her evidence was she has been at her Father’s house since August 2, 2020, which was the first time she had been able to reach him. The Mother also testified that most of August, September and October she spent time looking for apartments and jobs. In her Affidavit, the Mother’s evidence was that she stayed with friends for the Month of August, and reconnected with her Father on October 19, 2020, asking him for help. The Mother explained the contradiction by indicating that she had spent time at J.R.’s home and in October, she spent three weeks with him full time.

[253] The Mother reached out to Ms. Dufour from the Maternal Grandfather’s phone on August 4, 2020, and provided her that phone number. On August 24, 2020, the Mother also provided the exact address where she was residing in Kingston and a telephone number.

[254] Apart from when she moved to Kingston, the only other time the Mother saw D.A. was on or about October 21, 2020, when he showed up at the Maternal Grandfather’s door at 8:00 a.m. He insisted it was important to talk to her, and told her to get dressed as he would be back at 9:00 a.m. She waited outside for him, but the police officer showed up, with D.A. in the back seat. He was arrested due to someone reporting a suspicious person in the neighbourhood. She never heard from him after that.

[255] The Mother’s evidence is she no longer uses methadone. She stopped filling her marijuana prescription when moved to Kingston. She did not start to have any cravings until she moved to Kingston, at which point in time she felt depressed and defeated. In the past, in times like these, the Mother had resorted to using drugs.

[256] T.C. brought the Mother to Street Health on October 1, 2020, and the Mother has been using their services ever since. Through Street Health, on October 27, 2020 she started to use Suboxone, which reduces or takes away cravings. However, with Suboxone, the Street Health program requires the Mother to attend counselling she is also provided tools to avoid relapse.

[257] Her Street Health counsellor encouraged her to keep a journal, which they discuss every time they meet. She has also been more involved in her health, doing physical activities to alleviate the pressure. Her gym membership was paid for by the counsellor, as well as the cost of transportation, to help her deal with problems both physically and emotionally.

[258] The Mother confirmed the first time she reached out to Ms. Wheeler since moving to Kingston was in early November 2020, the day before court.

Future Plan

[259] On or about October 1, 2020, the Mother, J.R. and T.C. elaborated the plan they initially put together in August 2020. The Mother indicated that she is very close to her family, and became tight-knit when she initially moved back to Kingston with G. They see each other regularly, and cherish each other and stay connected. Their family helps each other, and are well known in Kingston. The Mother spoke of a strong relationship with the Maternal Grandfather, who is very accepting of her and where she is in her life. She can tell him anything and if there is a problem he gives her the tools to solve the problem. T.C. is also a great help, and she is grateful to have her in her life. T.C. has helped the Mother in the past, and now is helping her obtain services. T.C. is very knowledgeable in this regard, and has a very encouraging and positive outlook to help achieve goals.

[260] Even after having moved to Cornwall, the Mother maintained her bond with J.R. and T.C., through phone calls and pictures. J.R. would send Christmas gifts and birthday gift, and would call to talk to the children on those special occasions.

[261] Since returning to Kingston, the Mother speaks to J.R. during the week, and he is generally home once per week. He travels in and out of Kingston throughout the week and checks in on her. T.C. goes to see the Mother almost daily, sometimes twice a day. The Mother is often at home alone so T.C. comes by to ensure the Mother is not depressed by herself. T.C. is just a phone call away at any given time.

[262] J.R.’s home is large enough to accommodate the family, and there is room to play in the yard. There are parks in the community, the neighbourhood is very appropriate, and there are good schools and daycares. There is a dog that G adores at J.R.’s home.

[263] The plan would be for G to school a ten minute walk from the home. J would attend the same daycare G had previously attended, and where her stepbrother and stepsister attended. J would attend Monday to Friday.

[264] The Mother has a lot of extended family, about 32 cousins, 5 aunts, 5 uncles who all live in or just outside of town. They are all very close and very aware of their situation.

[265] The Mother described G as a very confident, outgoing and hands-on individual. She has never known G to be an angry child. However, since removed from the Mother’s care, his emotional development has been affected, and he has had outbursts of anger. Given there are many services in the community, the Mother feels G would benefit from counselling to talk about his emotions. He would have the same pediatrician as before. She confirmed meanwhile that Ms. Brunet’s description of both J and G were accurate.

[266] The Mother is very confident that her safety plan with the support of J.R. and T.C. will be successful. That very well-thought-out plan of care is outlined at paragraph 97 of the Mother’s affidavit and includes but is not limited to:

a. The Mother and children will reside with J.R., following his house rules and advice, as well as those of T.C. She will cooperate with both J.R. and T.C.

b. No direct or indirect contact with S.C., D.A., J.M. or any similar kind of person.

c. G would have no contact with D.A. or J.M.

d. The children will attend school, and their educational needs will be met and remain a priority.

e. The children’s physical, emotional, and developmental needs will be met.

f. The children will not be exposed to any adult conflict.

g. The Mother will maintain a healthy and safe lifestyle, including continuing to seek medical treatment and counselling, as necessary. She will abstain from use of any non-medically prescribed drugs or intoxicants.

h. The Mother will cooperate with the Society and provide information regarding all service providers. She will allow announced and unannounced visits from the Society.

i. She is in receipt of Ontario Works.

j. She has tested negative for COVID-19, and tested negative for drugs.

k. Once the children are in school, she will seek part time employment. She will devote her full time attention to the daily care and upbringing to G and J.

l. The children will have a reasonable access schedule to family members, including C.F. and S.R.

[267] The Mother expressed that she would be prepared to work with both Kingston and Cornwall CAS. She further indicated that she has no desire to use drugs, and there would be no domestic conflict. She does not see D.A. and if he showed up she would call for assistance. She will choose her children, and their safety is the most important aspect of her life, and more important than any romantic relationship.

[268] Neither J.R. nor T.C. will allow the children to be in harms way, or to see conflict. They will protect the children. They will not support any of the Mother’s negative decisions.

[269] The Mother has accepted the mistakes she has made, and knows how to make better decisions. She is confident moving forward there will be positive outcomes. If the children are returned, their belongings including their bedroom sets, toys, etc., as well as her own, are in storage which she can quickly retrieve.

[270] She would never take away the Maternal Grandmother from the children. She recognizes the importance of that relationship. As for S.R., the Mother suggested that mediation would assist, and G should have a relationship with his aunt. As for the children’s Fathers, they would have to get access through CAS.

[271] While the Mother took no issue with Ms. Brunet being present for an OCL meeting, she is nevertheless concerned that G was not asked if he would want to reside in her care if D.A. was not permitted in the home. Her thought would be G would want that most of all.

[272] The Mother also expressed concern when she was rebuked by a worker when she stared to discuss her future plans with the children. She is concerned nobody told G she left Cornwall to get away from D.A.

[273] She advances the S.R. does not have the skills, experience, understanding or instincts that the Mother has to parent the two children.

[274] The Society has repeatedly remarked on the Mother’s special relationship with the children and her superior parenting abilities. Attached to her affidavit at Exhibit A is a summary of these positive statements made by the Society, totalling 80 such instances. I accept these statements in their entirety.

[275] The Mother is concerned about the lack of evidence as to the adoptability of G and J, either separately or together.

[276] The Mother fought hard and successfully terminated her dependency on methadone, which made her sick and weak in the past year. She is prescribed daily use of suboxone by her new doctor. Her urine is pre-tested for drugs prior to receiving each dose. She provided proof of the treatment plan, and is attending addictions counselling. She eliminated her medical marijuana and instead has a prescription for nabolone. She has eliminated D.A. from her plan, and secured herself against any further contact from him.

[277] The Mother loves both of her boys, and only wants what is in their best interest and welfare. Those interests would be better served in her care. She does not want the boys separated. She will cooperate with the Society to advance her plan of care.

[278] She believes that G and J need the security of an uninterrupted and continuing relationship with their Mother. She is the parent with the strongest bond and commitment since their births, despite the interference, forced separations from her and the intrusions and interruptions by the Society and others throughout their early years. G and J need stability and consistency in their young lives.

[279] In spite of her many problems, the Mother has never relented from her commitment to the children and they have responded and adapted well to the changes these difficult circumstances put on them. Their bonds together have been impeded but were never broken. She requests the immediate return of the children to her care and custody.

Cross examination

[280] The Mother denied knowledge of having been noted in default by the Court in August 2017. Her evidence was that her lawyer never gave her any paperwork to fill out. However, she acknowledged receiving paperwork and going to court. She acknowledged that G went for months without seeing his Mother. During this time, the Mother’s evidence was that she was working with CAS as much as she could in Kingston, but it was not until she moved to Cornwall that she got help. The Mother disputed Ms. Vachon’s evidence that the first meeting was December 20, 2017 as she recalled a meeting at Murphy’s Inn. She recalled having face-to-face visits with G prior to J’s birth, which ran contrary to the Society’s evidence that the first in-person visit with G took place March 8, 2018.

[281] When asked about the black eye she had on June 5, 2018, the Mother’s evidence was that this occurred prior to J’s birth. The Mother indicated she climbed on to a bar stool and fell off. She was pregnant at the time, and caused herself a black eye and bruise on her elbow. At that time, the police had attended her home, as an argument occurred at their neighbour’s home. She denies ever telling Ms. Vachon that D.A. hit her.

[282] Contrary to Ms. MacGillivray’s evidence, it was the Mother’s recollection that Ms. MacGillivray went to the home in August and September 2019, thereby causing her stress. She agreed, however, that the meeting of September 20, 2019 was missed. She did not recall if the appointment was rescheduled for September 30, 2019, where the Mother was not present. Her recollection was of Ms. MacGillivray attending the home in September while G and J were sick with the flu. The Mother disagreed the next meeting took place on October 3, 2019.

[283] With regard to the October 3, 2019 meeting G had with Ms. MacGillivray, though she could not indicate what G would have told the worker, she recalled having a dispute with D.A. in their room while the children were in bed. She recalled D.A. also having a heated argument with the neighbour, where a discussion of stealing came in as the neighbour had taken their clothes. She denied D.A. ever threatening to punch her in the face or threatening her in other ways. The Mother implied that G must have misunderstood. When asked about the October 7, 2019 disclosures made by G, the Mother’s evidence was that she recalled having quite a few disputes with D.A. in late September and October. They felt very pressured by the Society, and at that point they started to blame one another. She did however indicate it was possible G heard those harsh words (liar, lowlife, etc.) being used. She denied anything being smashed. She denies saying that if G wakes up and hears things, it is not her fault. They did their best to keep things quiet. At no time did G appear to be awake.

[284] When confronted with Ms. MacGillivray overhearing the Mother telling G that “I warned you this would happen”, the Mother claims she never actually said that. She believed D.A. made this statement. D.A. also would have told Ms. MacGillivray “I hope you’re happy, it’s all because of you”, and not said that to G.

[285] The Mother acknowledged she had no access visits with G or J in August, September or October 2020, and access was reinstated on November 25, 2020. Since then, as of December 8, 2020, she had missed one visit and one was cancelled due to non-compliance with the check in terms.

[286] The Mother agreed with the statements regarding her relationship with D.A.: (a) on October 11, 2019, the Mother told the Society that she and D.A. were separated and would not reside together but would see each other again in a month; (b) on November 1, 2019, the couple were still in a relationship and wanted to reside together; (c) on November 7, 2019 the couple were going to get separate residences and try to work thought out with CAS; (d) on November 15, they were no longer in a relationship; (e) when the worker called the Mother, D.A. answered the phone; (f) on November 27, 2019 the Mother is a witness to a crime committed by D.A., resulting in a no-contact condition on D.A.; (g) on December 1, 2019, D.A. breached the no-contact order when helping the Mother move to the Monte Carlo; and (h) D.A. and her were residing separately, but in the same rooming house in December 2019.

[287] With regard to her lack of contact with the Society from August to October, the Mother’s evidence was that she was frustrated with the Society as all of her attempts were futile and being ignored. Many of her phone calls went unanswered. She did not have the means to contact the Society.

[288] The Mother was asked about her statement of residing with her father as of August 2, 2020 and J.R. not having information about the Mother’s whereabouts on October 7, 2020 or not having seen her in a month, the Mother explained that J.R. was on the road six days a week and the statement was accurate. Further, J.R. drove the Mother to a friend’s home two days after D.A. was arrested. J.R. knew she was fine, but not aware of her day-to-day business. Eventually J.R. found her at her friend’s home to advise that her lawyer was looking for her. She admitted to having little contact with her lawyer after her visits ended in July.

[289] The Mother agreed with the OCL’s statement that in the past 3.5 years, G had been in her care for approximately six months. And J has been with S.R. for fourteen months, the longest time in his life at one place. She also agreed that the last face-to-face visit was February 2020.

[290] In her affidavit, the Mother stated that she had been homeless and/or penniless and/or couch surfing six times since November 27, 2019. She agreed she had moved approximately twelve times from November 2019 to October 2020 (11 months), though indicated she had difficulty finding a place to rent.

[291] When asked if G was exposed to domestic violence due to her relationship with S.C., the Mother’s answered G was subjected to S.C.’s behaviours at the time, though there was no relationship and she did not want him around. He nevertheless continued to bother them. She did her best to call the police. She indicated she did not engage in arguing with S.C., but G was subjected to S.C.’s ranting and raving at the time.

[292] When it was put to the Mother that G was exposed to parental conflict while she was in a relationship with D.A., the Mother’s evidence was they did their best to keep their private adult issues away from G. She felt G had not seen a lot of conflict between herself and D.A.

[293] When asked to elaborate about Kingston CAS’s concerns about her drug use and relationship conflicts, as set out in her affidavit, her evidence was the conflict was allegedly with D.A. She believed this was reported by S.R., and questioned it as S.R. at the time had never been to their house or gone to social events with them or G. She was then asked if the conflictual relationship could have been with S.C., but the Mother was adamant the Kingston CAS was concerned about D.A. When asked about her statement that the children were taken away due to G not attending school, she said the children were taken away due to G having Tylenol. It was put to her that she was aware that the concerns by CAS were about conflictual relationships, as set out in her affidavit, and she denied that was a concern.

[294] When questioned about going back to S.C. in March 2020, with whom the Society had concerns regarding conflict between he and the Mother, the Mother’s evidence was that he had gotten treatment for his mental health issues and that therefore it was not a problem.

[295] On three separate occasions the Mother’s evidence was she tried to make it on her own, while in Cornwall, Hawkesbury and in Kingston. She indicated that the problem was the global pandemic, there were no apartments or jobs available at the time. While in Kingston however, she received calls back for jobs, but did not accept them as she had to get ready for the court and her children. She advanced that the Society had as one of their bottom lines that she get her own apartment and income. Despite having Ontario Works as income, she felt that $700 per month was not adequate.

[296] When asked how long she knew J.M. before moving into this home, her viva voce evidence was she had met him a few times while she and S.C. had been in a relationship, and a few times when she and G went to visit S.C.’s family. She knew him well enough to accept his offer. However, at paragraph 84 of her affidavit, which she now states is incorrect, it says she met J.M. in mid-April 2020. When it was put to her that J.M. had her escorted out of his house with the police, the Mother indicated that she was the one who called the police for an escort. Her affidavit at paragraph 86 indicated otherwise. She admitted that after leaving J.M.’s home, she returned about a week later as he had explained his actions from the week prior were due to him having a bad day. She returned to J.M.’s home to care for his children so he could return to work. It was put to her that S.C., D.A. and J.M. all had similar behaviours, and blamed her for their behaviours. She agreed that she was the cause of J.M.’s issues. She also testified that she and D.A. did not have conflict problems until the children were apprehended. They had conflict issues when Ms. MacGillivray was in their file, who failed to give them tools to address the concerns. Further, the concerns were not brought to their attention until G was taken to a place of safety and D.A. was asked to leave.

The Maternal Grandfather, J.R.

[297] J.R. testified in support of the Mother’s plan for the return of the children to her care. He is the Maternal Grandfather to both G and J, and the Mother’s Father, as well as S.R.’s Father. He is 52 years old.

[298] The Maternal Grandmother, C.F. raised the girls in Cornwall, but he kept in contact with them throughout their lives. The Mother returned to Kingston when she was 18 years old. There is a lot of extended family who all stay in touch. They are a tight-knit group, who spend a lot of time with each other and look after each other.

[299] While J.R. does have a criminal record, there have been no charges in over 20 years. He does not use illicit drugs or alcohol.

[300] He recalled that in 2015, when the Mother and S.C. were together, S.C. was having some problems. J.R. was aware that there was some CAS involvement around that time.

[301] The Mother moved to Kingston, got herself an apartment about a block from J.R.’s home, and close to all amenities. S.C. moved to Kingston as well, to have a relationship with G. They did not find out until later that he had significant mental health issues. However, J.R. had helped the Mother get a lawyer to get visits sorted out during this time.

[302] From 2015 to 2017, G had been spending every weekend at J.R.’s home with him. The Mother was also there two to three times per week. During this time, the Mother went to school every day and G went to school or daycare. There were no issues with the Mother’s health and no drug issues. He went to her place frequently and never saw any drugs or alcohol. There were a lot of groceries and the house was appropriate. The Mother also spent a lot of time with the family.

[303] The Mother was doing fine on her own, enrolled into college and G was in school. Things seemed to be happy. Maternal Grandmother came down and spent a week and then S.R. joined her. When S.R. showed up, D.A. was there. S.R. knew him from her childhood and attended J.R.’s house, screaming and hollering about how bad D.A. was, and she was going to do something about it. The Mother said they were not dating; they had just run into each other. Within about a month, S.R. went to CAS and made a lot of accusations. Nobody knew what was going on, then all of a sudden CAS showed up with the police.

[304] When J.R. got the information, he came back home from work. He had a meeting with the worker. The Mother wanted G to stay with J.R. and T.C., which was not an option. When he asked why G was removed from the Mother’s care, he was informed it was due to the Mother using drugs. He told them that S.R. uses more pot in one day than anyone he has ever heard of, which made no difference to the worker. He indicated that whatever the Maternal Grandmother or S.R. alleged; it was all false. He warned them that they would not transport the Mother for her visits, and when this turned out to be true, he refused to help out the Society. T.C. nevertheless helped out and they both gave money for the bus. The Mother took numerous trips to Cornwall, but when she arrived she was not allowed to see G. After about a month or so, J.R. went to see G at S.R.’s home. He knocked on the door, and S.R. informed him that there was an order from Cornwall CAS that he could only see G through supervised visits. Only later did he find out it was actually at S.R.’s discretion.

[305] After G was removed from the Mother’s care, things went downhill fast for the Mother. She was downhearted and became depressed. The Society did not offer much help. The Society believed that the Mother and D.A. were dating, but that was not true, they had simply run into each other on the street, which S.R. blew out of proportion. During this time, the Mother would talk to J.R. regularly, and show up at the house to shower once to twice per week. Though she smoked pot, he did not believe she used any other drugs. He felt the Mother was not ready to live at his house full time as she was mad that J.R. was not there the day G was removed from her care.

[306] J.R. was not aware that there was court following G’s removal from the Mother’s care. Though he spoke to Kingston CAS workers on three separate occasions on his own behalf, nothing came of it. The Mother never told J.R. about court.

[307] When the Mother arrived in Cornwall she was a “broken person”. J.R. called the Maternal Grandmother and she refused to help her. J.R. did not think it was a good idea for the Mother to move to Cornwall.

[308] When the Mother got her children back, he would stop during his run and see her. He did not want to bring stuff for the boys as he felt that was him being selfish as if the boys spoke about J.R. or T.C., the Maternal Grandmother and S.R. would be “down the Mother’s throat” due to her contact with them. However, whenever she needed anything, the Mother would contact him. When she went to Hawkesbury, while everyone thought she had taken off, she had called and told him. The Mother told him she could not deal with S.R. and the Maternal Grandmother anymore, so she went to see if S.C.’s family would help her. Toward the end of May, early June 2020, the Mother had called him, and he offered to come get her, but she did not know what to do. She told him she would call him back, but did not. A couple days following that the police called to ask if he had seen her. He was told the Maternal Grandmother had put out a missing person’s report. They believed she was in Kingston or Gananoque. He drove around but did not see her. Then his younger brother called and said she was in Napanee. J.R. went and got her. He told the Mother to call the police. She called the Maternal Grandmother, telling her she wanted nothing to do with her or S.R., and not to send the police looking for her again. She accused them of lying about her.

[309] The Mother stayed with J.R. for about a week. She was “messed up”. When he came home on the Saturday, she was gone. T.C. had no idea where the Mother had gone to. About a week later, the Mother called him at about 4:30 a.m., half crying on the phone, saying she was scared and did not know what to do. J.R. went to get her. She stayed with him for a couple of weeks, then left again. Sometime around late September, early October, she called him again as she was in town. She had tried to do it on her own, but it had not worked out. She wanted to come home and get the children back before they were completely taken away. He called T.C., and together then went to get the Mother. In his affidavit, J.R. referenced this occurring October 19, 2020. Since that date, they got her into Street Health and went to see a doctor, who put her on suboxone.

[310] J.R. acknowledged that he had received a phone call from a worker on or about October 7, 2020, asking where the Mother was. He told the worker he had not seen her in quite a while, as she was gone for seven or eight days. While he had agreed to call the worker once he found the Mother, the worker never texted him the number to call. He did call at one point, leaving a message with Cornwall CAS, but never received a call back.

[311] The Mother did not like speaking to T.C. or him, so she got a counsellor. She started journaling, then eating again, getting up in the morning and gradually returned to a normal life and routine, which entailed getting up at 6:30 a.m., cleaning the house, getting dressed, and walking the dogs. She does not otherwise leave the house. She has a friend nearby, and they hang out together, but not in the romantic sense.

[312] J.R. knows the Mother is not perfect, but she is “getting straight”. He believes that if she is given half a chance, she will make it work. She had everything she needs to stay stable, with the support of her family and network.

[313] When asked about D.A., J.R. testified that he had showed up in Kingston a few months prior, when he was sent to jail. He called just after the Mother arrived there, saying he was in town and wanted to meet her. J.R. drove her there, and he invited D.A. to the house as they had family over. About a day or two later, J.R. found out that D.A. was not supposed to be around the Mother. The next time D.A. attended was in the evening. J.R. told D.A. that the Mother did not want to see him, and told him to leave. The Mother knew he had attended that evening. The next day he returned at about 7:30 a.m. J.R. picked up the phone and called a local judge he knows, and then called the police. He told the police there was a weirdo in their neighbourhood, rather than reveal the truth as it would affect the family. Until he testified, the Mother was not aware that J.R. had called the police on D.A. The police however had driven by as D.A. wanted to speak to the Mother. J.R. told the police there was no-contact conditions on him. D.A. has not been around since that time.

[314] J.R. is prepared to support the Mother in her plan, and provide her the safety and security she needs. J.R. reviewed the plan of care in his affidavit and is prepared to follow through with all of it. That plan of care is the same as the one detailed above, as presented by the Mother.

[315] J.R. has a close relationship with T.C. and together they are committed to supporting the Mother in her plan.

[316] In his affidavit, J.R. indicated he has a special relationship with the children, in particular G. They call him Grampa.

[317] T.C. and J.R. are strong parental figures to the Mother, role models, and they are there for guidance, support, advice, and love.

[318] He will keep her away from unsavoury characters like S.C., D.A. and J.M. He feels that the biggest concern are those three men, as when they get around her, she gets on the wrong path as she feels sorry for them.

[319] He resides in a three bedroom home in Kingston, and confirms there is sufficient space for the Mother and for G and J to reside. With a moment’s notice he can have the home fully furnished and child-friendly.

[320] J.R. owns his own 18-wheeler transport truck, which he uses for employment. He has been on contract with Rim’s Transportation for the last 10 years. He earns approximately $75,000.00 per annum. His usual trip is Monday to Friday; however, his daily routine is flexible. Every weekday, he travels back and forth on Highway 401 between Hamilton and Montreal. This permits him the ability to stop in Kingston when necessary to support the Mother with her appointments.

[321] The Mother has her own phone, but there is no data on it. She can only use it to phone people. J.R. and T.C. plan to go through the call memory log to see if there’s a number they do not recognize.

[322] The Society is welcome at his house any time they want as he has nothing to hide.

[323] J.R. agrees to comply with any orders. He takes his responsibility seriously, and if things are not being dealt with, he will pick up the phone and advise of same.

[324] He believes that the Mother will be successful. She had realised her errors and asked for help. Street Health has given her guidance and she is following their suggestions. J.R. was clear about his intentions when he told her if she leaves, she is not to come back, and she has not left. She has been at his house for two months, despite being free to leave. She has gotten better.

[325] Ultimately, his priority is his grandchildren. He wants them to have a chance at life, a good education and a clean house. The Mother can be a part of the program if she wants to be, but ultimately this is for the grandchildren. At this point, he believes she wants to be a part of that plan, so he will support her.

[326] In cross examination, J.R. indicated that prior to G being removed from the Mother’s care, he had no concerns about G not getting looked after. However, G was at J.R.’s home most of the time. When with the Mother, G looked happy and clean. He had no concerns about G’s school attendance. J.R., however, had found out G missed about 50 days of school, but the principal would not share the information with him when he asked about it.

[327] J.R. was not aware the Mother was being evicted. He was aware the Mother smoked pot, outside. He was aware that at Christmas time, when he had given the Mother a dog, that dog was traded for pot. He believed D.A. had traded it.

[328] He admitted he had never met J.

[329] He recalled that he had no contact with the workers other than two or three workers who called him, looking for the Mother. This would have been since August 2020, when the Mother was residing at his home, but he was on the road working. He would advise T.C., who would inform the Mother after T.C. finished work.

[330] He admitted that the Mother never confided in him about drug or domestic conflict issues she was going through. He was not sure if it was the Mother or people around her using drugs, but he does not believe she was using as others were saying she was.

[331] When asked about his knowledge of D.A. being in Napanee and the Mother attending to see him, J.R.’s evidence was she went there as she had no money and he paid for the taxi. She had to go there to get money as she had none in hand.

[332] When asked if he knew what precipitated the Mother leaving, though he was not certain, he felt she had started getting more social and was sleeping a lot. The Mother was gone a couple or three weeks, shortly after the incident with D.A. He then went to get her. J.R.’s evidence is the Mother has been at his house for the past two and a half months, likely since October 19, 2020.

The Maternal Step-Grandmother, T.C.

[333] T.C. testified in support of the Mother’s plan for the return of the children to the Mother’s care. She is the Mother’s Step-Mother, as well as S.R.’s Step-Mother. T.C. does not have a criminal record, does not drink alcohol or use illicit substances. She is 50 years old, and the ex-common law wife of J.R. Despite this, she maintains a close relationship with J.R, and communicates almost daily. They are both committed to supporting the Mother in her plan.

[334] Her evidence was that she kept in contact with both girls throughout their adult lives. The Mother was raised in Cornwall, but returned to Kingston after leaving home.

[335] T.C. was able to confirm that J.R.’s home has plenty of space for the Mother, G and J, and attached photographs to her affidavit as evidence of same. She herself has a two bedroom apartment.

[336] T.C.’s plan was to support the Mother however required, including transporting her to appointments, running errands and helping with the children’s appointments, on request.

[337] T.C. has a college degree as a development service worker, and is employed in Kingston as a personal support worker for seniors as well as a counsellor for the mentally handicapped. She has worked in this field since 1990. She expressed an understanding of the suffering and manipulation the Mother experienced in her relationships and dangers associated to her and the children. She has knowledge, training and experience to assist the Mother to obtain services to help her achieve her goals including a safe, secure and healthy lifestyle for her and the children.

[338] She expressed that she had been supporting the Mother and helping her through this crisis, protecting her from disagreeable characters such as D.A., S.C. and J.M., as well as any other like-minded individuals. She and J.R. are prepared to be tag-team members of the Mother’s safety plan.

[339] She works approxiamely fourteen days per month, and is with the Mother every day when she is not working. She is also available to schedule back-up care giving for the Mother and the children. In the last couple of months, T.C. has seen or spoken to the Mother daily.

[340] T.C. has taken the Mother under her wing since her arrival back in Kingston. This has included providing advice, guidance and emotional support, as well as acting as a role model, mentor and parental figure. She has assisted the Mother in organizing, scheduling and attending appointments to help establish services for her. She has introduced the Mother to “Street Health”, to organize her counselling and addictions treatment. She has accompanied her to the appointments. She has also assisted the Mother in renewing her OHIP card, opening a bank account and purchasing a cell phone.

[341] T.C. has discussed and is committed to following the Mother’s plan of care, as outlined above. Ultimately, she is committed to helping the Mother however she can to have the children placed in her care.

[342] She also spoke about how prior to G’s apprehension in 2017, he, and the Mother, used to stay over frequently at J.R. and T.C.’s home. They also cared for G when the Mother was in school, or on the weekends. Prior to the apprehension, T.C. did not have any concerns about the Mother’s parenting abilities. The Mother was described as a great mom, who payed close attention to G and his activities. Close to the time of apprehension however, there were concerns about drug use and the Mother’s choice of partner. She was there at the apprehension, and recalls the Society indicated the concerns were drug use and G’s school attendance. While the Society apparently was concerned about the Mother’s use of marijuana, according to T.C., S.R. smoked just as much, if not more than the Mother, yet G was placed with S.R.

[343] T.C. did not approve of the Mother staying with D.A. They moved to Cornwall together. Thereafter, the Mother would communicated with J.R. on his telephone, and with her occasions via Facebook. She was aware the Mother was pregnant with J, but neither J.R. nor T.C. met J. They felt it would be too hard on the children, if they were only in their lives periodically. They also were not permitted to see the children through S.R., who threatened to call the police on J.R. and T.C. if they attended her home. The only contact they had was sending gifts and money. There were never any virtual meetings with G and J either while they were in the Mother’s care.

[344] Though T.C. and J.R. told the Mother their door was always open, there was no request to assist her until July 2020. T.C.’s evidence was they saw her in August a couple of times, when the Mother would stay a few days and then leave, and then return. From early September onward the Mother stayed at J.R.’s home, and asked them to be a part of her plan.

[345] T.C. and J.R. helped the Mother get stabilized, then in October the Mother reached out to Street Health, where her first appointment was October 26, 2020. The Mother met with a doctor to assess her needs. She started on Suboxone, and also signed up for counselling for domestic violence, mental health and regular counselling for her depression. T.C. confirmed the Mother attended all her appointments, and was very positive during the whole process. She was adamant that she was changing her life for her children. She started gaining weight, was energetic and started being her old self again.

[346] T.C. committed to be the court’s eyes and ears, and ensure the children are safe and healthy. She would prioritize them over the Mother. She indicated that since July 2020, the Mother has grown as a person, she had obtained the help she needed for her drug addition and mental health. She was 100 percent confident that the Mother can succeed, and she knows this is her last chance. The Mother confides in T.C., and for the most part tells her everything. T.C.’s evidence was that the Mother is 30 years old, while she cannot tell the Mother what do to, she can provide her opinion, which the Mother hears. The Mother also knows that she would tell the court or CAS if she thought someone was going on that was detrimental to the children.

[347] When asked about any contact between the Mother and D.A., she was aware that the Mother met D.A. once, with J.R., as D.A. had money for her. J.R. invited D.A. back to the house for a family event, which both T.C. and the Mother told him was inappropriate. There was also a time when D.A. was escorted off J.R.’s property. She also spoke in cross examination that the Mother spent approximately a week in Napanee, where D.A. resided, but did not believe she was with him.

[348] In cross examination, T.C. was surprised to hear that the Society had been involved with the Mother at least five times prior her moving to Kingston, due to disputes with S.C. When asked about the grounds for the Kingston CAS apprehension, T.C. admitted she too had concerns about the Mother, in particular the involvement with D.A., who likely introduced the Mother to drugs. However, she thought G was safe as he was primarily at T.C.’s home. He stayed there sometimes twice per week, as well as weekends at that time. In cross examination though, T.C. indicated that the Mother was in the process of going to rehabilitation, which fell apart when Kinston CAS intervened. The Mother was devastated and not in the proper frame of mind to put a plan in place at that time.

[349] T.C. had not seen any domestic conflict between the Mother and D.A. She confirmed that when the Kingston Society expressed concerns, there was discussion about the Mother going to a woman’s shelter, but the Mother did not accept that option.

[350] T.C. also admitted that she had told the Mother in the past to stay away from D.A. as she felt he was an unsavory character. The Mother did not listen to T.C. From the time G was taken to a place of safety in May 2017, until the Mother moved to Cornwall in August 2017, the Mother was upset and did not keep in contact as much as before with J.R. and T.C. They nevertheless helped the Mother when she asked for help.

[351] She also admitted when the Mother first moved back to Kingston, she was couch surfing and associating with a bad part of society until she moved in full time with her Father.

Issue 1: Are the children in need of protection

[352] The paramount purpose of the CYFSA as set out in s. 1 is to "promote the best interests, protection and well-being of children". The CYFSA is remedial legislation and should be interpreted broadly with a view to achieving this purpose: Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, at para 17.

[353] The structure of a child protection application under the CYFSA is a two-step process. First, the court must decide if the child is in need of protection under s. 74(2) of the CYFSA. This section sets out when a child is in need of protection: Children’s Aid Society of Toronto v. R.M., supra, at para 18.

[354] The Society advances that the children are in need of protection pursuant to section 74(2) (b) and (h) of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1:

74(2) 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;

(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;

(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.

[355] In short, the Society sought a finding that the children are in need of protection due to risk of physical or risk of emotional harm. The Society’s evidence centers around their concerns regarding to domestic conflict; suspected drug use; G’s poor attendance at school; and lack of engagement with the Society workers.

First Nations Finding

[356] After the completion of the trial, I discovered that the child J’s particulars appear never to have been confirmed, despite the January 30, 2019 consent finding that J is in need of protection. As such, prior to reading the reasons for judgement onto the record, J’s particulars were confirmed on the record.

[357] It is agreed that D.A., and therefore J is of Cree heritage. In Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 (Ont. C.A.), Benotto J.A. noted that the CYFSA requires “a finding as to the children's First Nations status” [para. 59] prior to making a finding that the children are in need of protection, and stated that it was an appealable error to fail to make that finding as the divisional court in that matter had therefore “failed to address the significance of these children's connection to their Indigenous culture, community and heritage", at para. 61: Simcoe Muskuka Child, Youth and Family Services v. A.M.B. and N.M., 2020 ONSC 7953, at para. 8.

[358] I was initially concerned with regard to service on the band or First Nations was necessary, and whether the First Nations community be given an opportunity to come into this litigation to make submissions as to the best interests of the child. However, the fact that J is First Nations, the corresponding finding that he is First Nations, does not necessarily mean that service on the band or the First Nations of Ontario is necessary. S. 79 (1) 4 of the CYFSA provides that a “person chosen by each of the child's bands and First Nations, Inuit or Métis communities” are necessary parties entitled to service of the application. However, under s.1(2) of the regulation identifying First Nations communities, the Child, Youth and Family Services Act, 2017, List of First Nations, Inuit and Métis Communities, O. Reg. 159/18, the only identified First Nations Community is the Inuit Tapariit Kanatami; there is no First Nations community identified in that regulation or in any other regulation made under s. 68(1) of the CYFSA identifying indigenous communities under the legislation. Because of this, there is no First Nations community which can be served with process in child protection litigation in Ontario under the CYFSA. See Simcoe Muskuka Child, Youth and Family Services v. A.M.B. and N.M., 2020 ONSC 7953, at paras. 10 and 11.

[359] As set out by Sherr J. in Catholic Children's Aid Society of Toronto v. S.T., 2019 ONCJ 207, [2019] O.J. No. 1783 (Ont. C.J.) at para. 49, where a Métis or other First Nations community cannot be identified under the CYFSA, that community's statutory rights under the act, including the right to “notice and participation in a protection proceeding” are not activated.

[360] Although certain other considerations are activated by a finding of First Nations heritage, including a right to placement in a First Nations home where possible and customary care, there is no necessity to serve a First Nations community with notice of proceedings as no First Nations community is identified under the CYFSA or its regulations: See Simcoe Muskuka Child, Youth and Family Services v. A.M.B. and N.M., supra, at para. 11.

[361] As such, I find there is no need for service on the First Nations Nation of Ontario, or any other First Nations community as they presently remain unidentified under the CYFSA.

[362] Finally, based on the record before me, the January 30, 2019 finding by me, which was made on consent of all parties, was defective. New statutory findings are hereby made to remedy that deficiency, such that J is found to be First Nations, pursuant to s.90(2)(b) CYFSA.

Domestic Violence / Domestic Conflict

[363] A parent’s repeated pattern of partnering with physically abusive partners, which has exposed a child to domestic violence, is a ground for finding that a child is at risk of likely suffering physical harm and is in need of protection under s.74(2(b)(i) and s.74(2)(b)(ii) of the CYFSA: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, paras. 47 to 49.

[364] Verbal abuse, aggression, and inappropriate situations that children are exposed to can constitute risk of physical harm: Catholic Children's Aid Society of Hamilton v. S.(L.), 2011 ONSC 5850, at para. 380.

[365] Domestic violence places children at risk on a number of levels. Witnessing violence perpetrated against the mother may have an abusive and detrimental impact on a child's development. Children may feel guilty, blame themselves and feel depressed. They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence. They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss: See Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274, [2005] W.D.F.L. 3688 (Ont. C.J.), affirmed on appeal November 25, 2005 (Ont. Sup.Ct.), further affirmed at, (Ont. C.A.), permission to appeal to the Supreme Court of Canada denied, (S.C.C.); Jewish Family and Child Services v. K.(R.), 2008 ONCJ 774, at para. 29.

[366] It is not necessary for the Society to prove an intention to cause the child harm before finding that a child is in need of protection. A pervasive pattern of exposing a child to domestic abuse is sufficient: Children's Aid Society of Niagara Region v. P. (T.), (2003), 2003 2397 (ON SC), 35 R.F.L. (5th) 290 (Ont. S.C.J.); Jewish Family and Child Services v. K.(R.), supra, at para. 28.

[367] As set out by Bale J. in Catholic Children’s Aid Society of Hamilton v. I.B., 2020 ONSC 5498 at paras. 163 to 165:

Children of parents in abusive relationships have been found to be in need of protection by many courts, and the negative impact of children's exposure to domestic violence is well-documented, including for example: insecure attachments, aggressive and antisocial behavior, poor academic performance, propensity for delinquency, peer violence, conflict and suicidality: Children's Aid Society of Hamilton v. C.G. and S.B. 2013 ONSC 4972 at para. 157.

Domestic violence is not limited to physical assault: it embraces a range of behavior which includes mental and emotional abuse, with implications that spill-over to children. The environment in such households is frequently chaotic, volatile, escalating, charged and degrading and the exposure of children to such an environment on a pattern basis is devastating to their development: Children's Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2009 ONCJ 70 at para. 75.

In order to militate against such a finding the court may require evidence demonstrating that the abused parent understands the cycle of abuse and has broken the pattern, for example by seeking counselling, leaving the relationship and moving to a safe location. An abused parent's continuing failure to leave an abusive relationship may well be a reason for placing the children in extended society care: Children's Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 at para. 100, Children's Aid Society of Ottawa v. E.L., 2019 ONSC 3724 at para. 94. The child's opportunities for a permanent and stable placement should not await the time that might be required to establish that the risk to the child has been satisfactorily addressed: Children's Aid Society of Toronto v. S.A.C., supra.

[368] Ms. Wheeler testified regarding the difference between domestic violence and domestic conflict. She indicated domestic conflict is where both parties are engaging in the violence. Domestic violence, meanwhile, usually alludes to power and control being exercised over a victim. In this case, the Society was concerned about the Mother being a victim.

[369] I have heard throughout the trial the concerns raised by the Society regarding G, and sometimes G and J, being exposed to domestic violence while in the care of the Mother.

[370] It was not disputed evidence that the Mother has seen G put his hands over his ears when he heard an argument between the Mother and S.C. Her evidence was that to her, it meant that there was a lot of yelling and screaming, prompting her to stop. This was one of the reasons she moved to Kingston with G.

[371] There was contemporaneous evidence from Ms. MacGillivray of two conversations she had with G in October 2019 where he would have reported having heard verbal abuse between D.A. and the Mother. The first was on October 3, 2019, after which G asked the worker not to reveal what he had said. He told the worker that “they don’t want me to tell because they don’t want me to be taken away.” As noted above, I accept this statement as truth as well as evidence of the child’s state of mind. In cross examination, the Mother conceded that it was possible G thought if he reported concerns he would be taken from her care. This was due to conversations they had with G where the Mother explained why the Society was involved and she made it clear that she did not want him taken away.

[372] As a result of this conversation, G spoke to Ms. MacGillivray and Ms. Dufour on October 7, 2019, where he again described the verbal conflict between D.A. and the Mother. This included hearing D.A. threaten to punch his Mother in the face, and calling her a “liar”, “moron”, “low life” and “pig”. G was afraid of this being repeated to the Mother for fear of being grounded. He also reported feeling scared and he was worried for his Mother and J. G had indicated that he and J had been in their room when this had occurred. As discussed above, I admitted G’s statements regarding his fears under the state of mind exception. The remainder of the statement set out herein, where D.A. called the Mother names and threatened to punch her, were admitted by me as truth of their contents. The Mother’s own evidence was that there were a lot of disputes in September and October, and admitted that G may have heard D.A. use those words.

[373] On a balance of probabilities, I am persuaded that G was exposed to domestic violence in or around late summer, early fall of 2019. I find that D.A. was verbally and emotionally abusive toward the Mother, which was witnessed and/or overheard by G.

Drug use

[374] Justice Healey in Children’s Aid Society of Simcoe County v. W.(T.), 2012 ONSC 3635 wrote at paragraph 112:

There is a substantial body of jurisprudence that stands for the proposition that where a parent is abusing drugs or alcohol, the child is at risk: Lennox and Addington Family and Children's Services v. S.W., 2010 ONSC 2585, [2010] O.J. No. 1862 at paras. 6, 13-15, 22, 47-51, 58-62, 106; Children's Aid Society of Ottawa v. M.C., [2003] O.J. No. 6307, 2003 67754 (Ont. S.C.J.) at paras. 22-24, 31, 34;Children's Aid Society of Waterloo Region v. F.(S.J.M.), [1994] O.J. No. 955, 1994 4424 at paras. 12-13; Children's Aid Society of London and Middlesex v. S.M., [2000] O.J. No. 2064(S.C.J.) at paras. 22-23; Children's Aid Society of Durham v. M.F., [2000] O.J. No. 4007 (S.C.J.) at paras. 3-5, 12-14; Children's Aid Society of Hamilton v. L.V., [2009] O.J. No. 1468 (S.C.J.) at paras. 11, 13, 70, 80-81, 83, 94, 97; Children's Aid Society of Owen Sound v. A.L., [2008] O.J. No. 5133 (Ct. J.) at paras. 34, 40, 58-61; Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 at paras. 28-32; Frontenac Children's Aid Society v. S.A.E., [2001] O.J. No. 5487 (S.C.J.) at paras. 3, 23, 27, 29. As Perkins J. stated in Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 (S.C.J.) at para. 30:

The father's objection to the trial judge's taking judicial notice of certain facts surrounding drug addiction is not well founded. The substantial impairment of a person's parenting abilities caused by cocaine, to the point of obliviousness and unconsciousness, and the resulting risks to children in the parent's care, are facts commonly understood by reasonable people, and all the more by judges who hear child protection cases. That there is a serious risk of relapse among people who have been regular users of narcotics is similarly well known. We are long past having to prove these basic facts in each case.

[375] The use of drugs will usually not be a protection concern unless there is some link to the parent’s parenting: Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489, at para. 195; also see Catholic Children’s Aid Society of Toronto v. V.A., [2010] O.J. No. 5835 (OCJ); Children’s Aid Society of Toronto v. T.L., 2018 ONCJ 691 (Ont. C.J.). found that the absence of evidence that a parent’s drug use in and of itself negatively impacts on his/her parenting capacity or skills, the drug use in and of itself cannot constitute an impediment to good and competent parenting.

[376] The Society, specifically Ms. MacGillivray, spoke to the couple on August 16, 2019 about concerns of them both receiving positive drug screen test results. The Mother denied any drug use, and advanced that the worker at the clinic misread the test results. The couple nevertheless had a safety plan in place should they have a “slip” in the future. At the same time, there were no concerns noted by Ms. MacGillivray about the parents’ ability to meet the children’s needs.

[377] On October 3, 2019, when Ms. MacGillivray attended the couple’s home, the Mother appeared with a gaunt face, and dressed in pajamas rather than dressed as she normally would be dressed. Coupled with missed appointments by the family throughout September 2019 and G arriving late at school, this raised the Society’s suspicions about drug use. The Society also did not accept the Mother’s explanation regarding the death in the family, another family member being ill, D.A.’s trip to Kingston, and the entire family having the flu. Ms. MacGillivray also received a report from the methadone clinic that the Mother’s carries were reduced to three carries per week as a result of recent drug screens.

[378] The Mother denied stating she used fentanyl when she went to Kingston for the funeral. She also denied ever using fentanyl. Further, in her evidence, the Mother indicated she had a prescription for medical marijuana, but due to the high costs of same, she occasionally bought marijuana on the street. In her affidavit, the Mother provides yet another explanation for opiates to be detected. Regardless, the Mother’s evidence was Dr. Leclair did not terminate the methadone carries, and contrary to the Society’s assertions, the couple continued to receive six carries per week.

[379] Given the contradictory evidence regarding drug use, I am not persuaded the Society has proven, on a balance of probabilities, that the Mother and/or D.A. were in fact engaged in illicit drug use. Further, even if they had met this onus, the evidence does not support this alleged drug use affecting their parenting abilities.

School attendance

[380] Failure to ensure a child regularly attends school can pose a risk of emotional harm, as the child’s social, emotional and educational development will be impaired. Children’s Aid Society of Toronto v. P.(J.), 2009 ONCJ 1, 2009 O.J. No. 2401 (OCJ); Children’s Aid Society of London and Middlesex v. W.(L.), 2016 ONSC 3; Children’s Aid Society of Toronto v. E.U., 2014 ONCJ 299.

[381] It is not novel for a court to find that any child who is habitually absent or late from school without sufficient cause may be a child in need of protection. See: SMCYFS v. C.C., 2019 ONSC 4541.

[382] Justice Shaughnessy found the following in Children’s Aid Society of Durham (County) v. P.(B.):

The CYFSA is engaged where neglect of education becomes a child protection issue. To decide otherwise is to relegate children who are at risk of emotional harm due to a parent's failure to provide educational instruction without the remedies and protection afforded to any other child who is at risk of emotional harm. In my view this would be an absurd, illogical and inequitable result which would be incompatible with the object of the [CYFSA]found in S. 1(1) of its preamble.

The [CYFSA] focuses on the consequences of abuse and neglect, or the reasonable risk thereof, of any number of unspecified parental responsibilities. There is no limit to the kind of responsibility that a parent may breach for the purpose of scrutiny under the [CYFSA], provided the breach gives rise to a protection concern under the provisions of the Act. It follows then that the education of a child is one of the responsibilities of parents. Accordingly, neglect of education which either causes emotional harm, or the risk thereof, may be dealt with under the [CYFSA] provided the Society can relate it to a protection issue under S. [74 (2)] of the Act. See Children’s Aid Society of Durham (County) v. P.(B.), 2007 CarswellOnt 7069, at paras. 33 and 44, cited with approval in Chatham-Kent Children’s Services v. H. (A.), 2014 ONSC 2352, at para. 172.

[383] The evidence shows that G missed four days of school in May 2019. The Mother’s evidence regarding those absences was that G had appointments for three days and was sick on the fourth day.

[384] In the fall of 2019, up to October 7, 2019, it was not challenged that G was late 13 times. Ms. MacGillivray’s evidence was G was also absent three and a half days for school, which was denied by the Mother.

[385] Generally, this concern is that the child’s educational needs were not being met. Though there was evidence in the past which led to G’s initial taking to a place of safety of significant school absences, that evidence is, from my perspective, dated.

[386] With regard to current evidence which led the Society to take G to a place of safety in October 2019, based on the evidence before me, on a balance, I am not persuaded that G’s educational needs were not being met.

Lack of Engagement

[387] The Society advances a concern about the lack of engagement in the parent(s) as a risk factor. While I have also addressed this concern in the disposition section, below, I wish to note the following evidence. When G was first taken to a place of safety, the Mother’s level of engagement was abysmal. Based on the evidence, I find she chose not to see G from the summer of 2017 until end of February 2018. This evidence is a permissible consideration under s. 93 CYFSA, which permits the Court to consider past conduct. I also note that from the time the children were taken to a place of safety on October 15, 2019, the Mother’s first access visit did not take place until November 21, 2019. Further, the Mother chose not to exercise access to the children from July 27, 2020 to November 25, 2020. Therefore, in total, I find that the Mother did not see the child(ren) for approximately twelve months since the involvement of the local Society or Kingston Society.

[388] D.A. meanwhile has not attended a single access visit with either child. In total, D.A. has gone over 12 months without access to his child J.

Timing

[389] As stated by Czutrin J. in Children’s Aid Society of Hamilton-Wentworth v. R.(K.), [2001] O.J. No. 5754 (Ont. S.C.J.) (SCO- Family Branch) at para. 50, “the court is free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter, some other date, depending on the circumstances. This is consistent with the Act and certainly consistent with the Supreme Court of Canada decision in Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 83 (SCC), [1994] 2 S.C.R., 165 (S.C.C.).

[390] Further, as stated by Zisman J. in Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8 at para. 129:

The court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over time. However, even if the need for protection at the initial stage was found to have been resolved that does not change the court’s ability to make a finding of need for protection. For example, in this case although the initial concerns were ameliorated by placing the children in the care of the mother, the fact the children were at risk of harm initially in the shared care of both parents and as a result of the father’s behaviour can result in a finding of need for protection.

[391] The Society has the onus to prove on a balance of probabilities that the child is in need of protection. The risk of harm must be real and not speculative. The “court may determine that a child is at risk of suffering harm even though the conduct that causes concern is not directed specifically towards that child.” (Catholic Children's Aid Society of Hamilton v. A. (M.), 2012 ONSC 267 (Ont. S.C.J.) at para. 13; also see Children’s Aid Society of Toronto v. R.M., supra, at para 19.)

Risk of physical harm and/ or risk of emotional harm

[392] Section 74(2) (b) involves a risk of physical harm to the child. The risk is that the child is likely to suffer physical harm. “Likely” to suffer has the implied connotation of “more probable than not”. Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, at para. 17.

[393] Justice Madsen listed out the following principles which are applied where the Society is alleging that the child is in need of protection due to physical harm or risk of physical harm in Children’s Aid Society of Haldimand and Norfolk v. K.H. (mother) and R.J. (father), at para. 141:

a. The Society must prove causation by act, omission, or pattern. It is not necessary to prove intention: Jewish Family & Child Service v. K. (R.), 2008 ONCJ 774 (Ont. C.J.) at 28, affirmed at Jewish Family & Child Service v. K. (R.), 2009 ONCA 903, 2009 CarswellOnt 7908 (Ont. C.A.);

b. Physical harm caused by neglect or error in judgment is still physical harm. However, it must be more than trifling physical harm. Children’s Aid Society of Niagara Region v. P. (T.)(2003), 2003 2397 (ON SC), 35 R.F.L. (5th) 290 (Ont. S.C.J.) at 60; Children’s Aid Society of Rainy River (District) v. B. (C.) 2006 CarswellOnt 7548 (Ont. C.J.) at 19, 2006 ONCJ 458 at 17;

c. Harm caused by neglect or error in judgment comes within the finding: Children’s Aid Society of Niagara Region v. P. (T.), 2003 2397 (ON SC), [2003] O.J. No. 412 (Ont. S.C.J.) at 65, 2003 CarswellOnt 403 (Ont. S.C.J.);

d. The risk of harm must be real and likely, not speculative: Children’s Aid Society of Rainy River (District) v. B. (C.), [supra]; Children’s Aid Society of Ottawa-Carleton v. T., 2000 21157 (ON SC), [2000] O.J. No. 2273, 2000 CarswellOnt 2156 (Ont. S.C.J.) at 8;

e. A child may be at risk even if the conduct is not directed specifically towards that child: Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.), 1995 6216 (ON CJ), 1995 CarswellOnt 4393 (Ont. Prov. Div.), 1995 ONCJ 6216;

f. Limited capacity of the parents may lead to harm or risk or harm if there is an inability to sufficiently acquire or improve parenting skills: Children’s Aid Society of Hamilton v. O. (E.), 2009 72087 (ON SC), [2009] O.J. No. 5534 (Ont. S.C.J.), at paras. 211-215, 2009 CarswellOnt 8125 (Ont. S.C.J.).

[394] Section 74 (2) (h) is a ground that involves risk of emotional harm to the child. Therefore, it looks to the future. The type(s) of harm, the degree of the harm, and the causal connection of the harm to the Mother’s or (step-)Father’s conduct, pre-requisites for a finding under (h) grounds, are all necessary for the Society to prove to the court that it has met the test with respect to this ground. Although no actual emotional harm symptoms are needed to be shown, the society cannot rely only on the existence of reasonable grounds to believe that a risk exists. This ground requires the society to show that the risk does exist, and to do it on the balance of probabilities. “Risk” has been said to mean “more likely than not”: Children’s Aid Society of Algoma v. J.B., supra, at para. 17.

[395] In its evidence, the Society must first establish that there is a risk that the child will suffer at least one of the emotional harms found in 74(2)(f), being anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development. Second, that the degree of the harm is one that is serious, as opposed to minimal, mild or moderate. Third, it has to establish that the risk of whatever emotional harm it is alleging, is causally connected to, or “resulting from”, the parents, and specifically by the actions, failure to act, or pattern of neglect of these parents: Children’s Aid Society of Algoma v. A.B., 2018 ONCJ 831, at paras. 13 to 15.

[396] Sometimes, the evidence of a child's distressed reactions to parental behaviour is sufficiently clear that a finding of a risk of emotional harm can be made without the opinion of an expert. See: Children's Aid Society of Ottawa v. P.Y., (2007) 2007 14325 (ON SC), 2007 O.J. No. 1639 (Ont. S.C.J.); Catholic Children's Aid Society of Toronto v. S.E., 2016 ONCJ 279, at para. 94.

Analysis

[397] Ultimately, the burden is on the Society to prove, on a balance of probabilities, that there is a risk to the children of physical harm by the person having charge of the child or caused by or resulting from that person’s (1) failure to adequately care for, provide for, supervise or protect the child, or (2) pattern of neglect in caring for, providing for, supervising or protecting the child.

[398] Additionally, and/or alternatively, the burden is on the Society to prove, on a balance of probabilities, that there is a risk to the children of emotional harm, demonstrated by serious (a) anxiety, (b) depression, (c) withdrawal, (d) self-destructive or aggressive behaviour or (e) delayed development, 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.

[399] The court is mindful that fairness demands recognition of the unique dynamics of the child protection litigant: women, particularly single mothers, are disproportionately and particularly affected by child protection proceedings; parents are often poor, uneducated, or members of minority groups; and even when parents are represented by counsel, a power imbalance often exits: Kawartha-Haliburton Children's Aid Society v. M.W. at paras. 68-69; also see CCAS v. I.B. et al., 2020 ONSC 5498.

[400] I have considered the evidence as a whole in determining whether or not the Society has met their onus with regard to the risk of physical harm to the children, and I find that they have not.

[401] I turn now to the risk of emotional harm. As noted above, the Society must first establish that there is a risk that the child will suffer at least one of the emotional harms found in 74(2)(f), being anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development. Second, that the degree of the harm is one that is serious, as opposed to minimal, mild or moderate. Third, it has to establish that the risk of whatever emotional harm it is alleging, is causally connected to, or “resulting from”, the parents, and specifically by the actions, failure to act, or pattern of neglect of these parents.

[402] On the first part, Ms. Brunet’s unchallenged evidence was that she was working with S.R. regarding his patience and anger management skills. Further, it was not challenged that G’s school results denote that he requires improvement in his behaviour. The Mother’s evidence was that she had never known G to be an angry child. However, she testified that since removed from her care, his emotional development has been affected, and he has outbursts of anger.

[403] Ms. Dufour’s uncontested evidence was that she provided assistance to S.R. to address J’s aggressive behavioural issues, which included biting, and hitting G.

[404] Ms. MacGillivray tendered evidence that hearing the Mother and D.A. arguing made G feel scared, and worried for his Mother and J.

[405] On the July 27, 2020 virtual visit between the Mother and children, supervised by Ms. Dufour, G would have told the Mother “keep talking, you scare me when you stop talking”. This was the last time he spoke to his Mother until access visits were reinstated on November 25, 2020.

[406] Based on this evidence, I find the Society has met the first part of the three-part test.

[407] I have reviewed and considered all of the evidence, including G’s expressions of fear for himself, J, and the Mother in trying to determine whether the degree of harm is serious. I have also considered G’s expression of fear of being removed from the Mother’s care based on his disclosures. Ultimately, the disclosures led to a safety plan to which the Mother failed to adhere, resulting in G and J being taken to a place of safety.

[408] Ultimately, I find the degree of harm is serious, and this, coupled with the emotional burden on this young child satisfies the second part of the test.

[409] The third part of the test is whether the risk of emotional harm is resulting from the parents actions, failure to act or pattern of neglect. The evidence already outlined above satisfies me on the third part of the test. This includes the repeated exposure of G and J to domestic conflict, and the failure of the parents to protect the children from same. Further, though the Society worked with the parents to try to prevent the children from being taken from their care, I am satisfied based on the evidence that the parents failed to comply with the terms of the safety plan, necessitating the children being taken to a place of safety.

[410] As such, I find that the children continue to be in need of protection under s.74(2)(h), and that the intervention of the Society is required. I note at this point that both S.C. and D.A., through their counsel, consented to the finding that the children continue to be in need of protection.

[411] In addition to the above, I note that there is case law to the effect that a year long period of not seeing a child is consistent with a pattern of neglect and will likely result in emotional harm: see Children's Aid Society of Hamilton-Wentworth v. R. (K.), [2001] O.J. No. 5754 (Ont. S.C.J.); also see Family and Children’s Services of Guelph and Wellington County v. P. and S., 2020 ONSC 7418, at para. 104.

[412] As found by the Court, above, the Mother chose to not see her child(ren) for a total of 12 months. D.A. has also chosen not to see J for over twelve months. Based on this evidence, I find that the children continue to be in need of protection under s.74(2)(h), and that the intervention of the Society is required.

Issue 2: Disposition

[413] The Society seeks that the children be placed in Extended Society Care. The Mother asks that the children be immediately returned to her care. Alternatively, the Mother asks that they be returned to her care with a supervision order with reasonable terms. In the final alternative, the Mother asks to have reasonable, liberal and unsupervised access to the children to be gradually increased to include overnight and eventual placement of the children in her care.

[414] If the Court finds that the child is in need of protection, then the second step of the process is engaged under s. 101 of the CYFSA, which states in part:

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.

[415] Section 101 (8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.

[416] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children's Aid Society of Toronto v. S.A.P. et al, 2019 ONSC 3482(Ont. S.C.J.); and Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 489, at para. 214.

[417] In determining if a protection order is necessary to protect the child in the future, the importance of emotional ties between a child and the child's caregiver are an important consideration. In Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.),1994 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.), the Supreme Court expressed, at para. 37, that the Child and Family Services Act "seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail". Because of this goal, the best interests of the child is "an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children's Aid Society of Toronto v. S.A.P. et al, supra; and Children’s Aid Society of Toronto v. Y.M., supra, at para. 215.

[418] An order under ss. 101 or 102 is only made if the Court is "satisfied that intervention through a court order is necessary to protect the child in the future". Such orders are made "in the child's best interests", as set out in s. 74(3) of the CYFSA. (Children’s Aid Society of Toronto v. R.M., supra, at para. 23)

[419] Before making an order under s. 101 or 102, the court is required to (1) inquire into the Society’s efforts to assist the child before intervening; (2) be satisfied that less restrictive alternatives have either failed, been refused or would not adequately protect the child and (3) consider placement with a relative, neighbour or other member of the child’s extended family or community.

[420] In order to determine the proper disposition, the Court must determine what is in the children’s best interest, having regard to the paramount purpose of the Act as found in s.1(1) CYFSA; the additional purposes of the Act as found in s.1(2) CYFSA, and s.74(3) CYFSA. Section 74(3) sets out the following criteria:

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.

[421] The Court is mindful that pursuant to s.8(2) CYFSA, the child’s views are to be given due weight, in accordance with the child’s age and maturity.

[422] I am mindful that the COVID-19 global pandemic had a significant effect on everyone, including the court. On March 16, 2019, the Emergency Management and Civil Protection Act, also known as O. Reg. 73/20 suspended the operation of any statute back until September 14, 2020. There was nothing in the regulation exempting the CYFSA. I am also mindful that the suspension of the statute in s. 2 of the regulation is "...subject to the discretion of the court..." Therefore, it is open to the court to find that, for instance, that it would not be in a child's best interests to suspend the time limits.

Types of dispositions available

[423] The evidence shows that as of November 30, 2020, G has been in the interim care of the Society for approximately 411 days, and almost three year old J, for approximately 578 days. In total, G was outside of his Mother’s care for approximately 1059 days, of which 648 were with kin pursuant to supervision orders.

[424] Despite the six month suspension of the CYFSA pursuant to the Emergency Management and Civil Protection Act, the timelines as set out in s.122 CYFSA are nonetheless expired. Alternatively, I find that it would not be in the children’s best interest to suspend the time limits in this particular case.

[425] The available dispositions are Extended Society Care or returning the children to their Mother’s care, unless I am satisfied that pursuant to s.122(5) CYFSA that a further extension is in the children’s best interest. On this issue, I agree with Murray J. in Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, that a more liberal interpretation of the statute permits multiple extensions of time, for no more than six months at a time, in the appropriate case. The court citied with approval the Catholic Children’s Aid Society of Toronto v. S.(S.), 2011 ONCJ 803, which held that while the importance of permanency planning must be kept in mind, an inflexible approach to the extension of time limits should not be permitted to block a resolution that is in a child's best interests. This interpretation lines up with the paramount purpose of the Act. Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, at paras. 161 and 162.

[426] As stated also by Sherr J in Children’s Aid Society of Toronto v. Y.M., supra, at paras. 225 to 227:

An order placing a child in the extended society care of the society is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J.) (1996), 23 R.F.L. (4th) 79 (Ont. Div. Ct.)

The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children's Aid Society of Toronto v. S. (D.) [2009 CarswellOnt 6725 (Ont. S.C.J.)], 2009 60090. also see Children’s Aid Society of Toronto v. Y.M., supra, at para. 225.

A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. H. (R.), 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.). also see Children’s Aid Society of Toronto v. Y.M., supra, at para. 225.

Is intervention through a protection order required to protect the children in the future

[427] As set out above, the court must determine if intervention through a protection order is required to protect the children in the future. Based on the totality of the evidence, for reasons set out in the analysis above and reasons found below, I find that court intervention through a protection order is required to protect both children in the future.

Efforts by the Society

[428] The Society's duty to provide services to a family is a fundamental issue in determining whether or not the risk to a child of being returned to a parent can be addressed. If every available service is not provided or not provided in a timely manner, then a parent is not given a reasonable opportunity to engage in those services and the ability of the parent to benefit from those services cannot be assessed by the court. See: Children’s Aid Society of Toronto v. (C.)L., 2016 ONCJ 432 at para. 123; cited with approval in Children’s Aid Society of Toronto v. R.B., supra, at para. 155.

[429] The Society’s concerns throughout the file were domestic conflict and/or violence; drug use; G’s school attendance and the parent’s lack of engagement. The parents demonstrated very strong parenting skills, as noted not only by the Mother in Exhibit A to her affidavit, but throughout all of the workers’ notes. The Mother also has an unquestionable bond with the children. D.A. and J shared a bond as well, however G was not bonded with D.A.

[430] Through Ms. Vachon, the first worker on the file, the Society supported the parents’ choice to attend the methadone program. Her evidence was that the parents were open and engaged with her, providing clean drug screens, and expressing commitment to working with the Society. As a result, J was placed in their care upon birth. Ms. Vachon reviewed the danger statements and safety goals with the couple, and a trajectory was developed for the return of G to their care and to eventually close the file..

[431] In August 2018, when concerns about domestic violence and drug use resurfaced, Ms. Vachon offered alternate measures to taking J to a place of safety. When the parents refused, J was brought to a place of safety. Thereafter, Ms. Vachon met with the parents to discuss the trajectory and next steps. She assisted them in creating a safety plan to ensure the children were protected while with the couple. Given G was reluctant to have visits in D.A.’s presence, Ms. Vachon created a separate and more gradual reintegration trajectory. Meanwhile, the Mother sought out individual counselling, and as well, the couple attended counselling. There was a delay in G resuming contact with D.A. given D.A.’s lack of engagement with the process.

[432] The parents were encouraged to develop a natural safety network to support them in caring for the children and in addressing their own personal challenges. The couple demonstrated their ability to meet the Society’s bottom lines, and when the worker attended for both announced and unannounced meetings, she did not note any concerns. The couple was also engaged in counselling services, maintaining their sobriety and reported no concerns of conflict. As a result, J was returned to their care under a supervision order on January 30, 2019. G was returned to the Mother’s care by way of extended access in early April 2019, and thereafter under a supervision order dated June 26, 2019.

[433] Ms. MacGillivray took over the file in April 2019. At that time, the couple was doing well, they were committed to maintaining their sobriety and engagement in safety planning.

[434] When Ms. MacGillivray raised concerns of G’s school absences with the Mother, she received reasonable explanations. When there were concerns reported of domestic conflict, this was again addressed with the Mother, who had appropriately engaged the safety plan. This safety plan was also engaged in June 2019.

[435] In August 2019, when there were concerns about drug use, explanations were offered, and the couple were still committed to the safety plan should they have a slip in the future.

[436] In September 2019, Ms. MacGillivray attended the home twice without a response. On October 2, 2019, she reached the Mother. Ms. MacGillivray then attended the home on October 3, 2019, and the Mother’s appearance and presentation sparked renewed concerns of drug use, despite the Mother’s explanations for same. After receiving information from the school regarding G’s attendance and receiving reports from the methadone clinic, Ms. MacGillivray felt further explanations were required. She reattended the home on October 7, 2019, and addressed the school issue. However, after speaking to G at school, concerns of significant domestic conflict arose. These concerns necessitated another meeting with the couple on October 9, 2019, where the Society set out their bottom lines that D.A. and the Mother could not care for the children while residing in the same home together due to the concerns regarding relationship conflict and drug use. The couple strongly objected to the Society’s concerns and bottom lines. The Society concluded that they required a safety plan over time, failing which the children were going to be brought to a place of safety. On that same day, though D.A. was frustrated and left, the Mother nevertheless engaged in the interim safety plan, awaiting a more fulsome discussion scheduled for the following week. That safety plan included the Maternal Grandmother residing in the Mother’s home, and D.A.’s temporary prohibition to attend the home.

[437] Two days later, another meeting was held to engage in further safety planning. The Mother presented as resistant to bringing more supports into her support network, despite the requirement by the Society of a safety network being a bottom line. Despite the Maternal Grandmother’s commitment to the safety plan, Ms. MacGillivray felt she was not supportive of the Society at the above meeting, and was concerned she would not report to the Society if the Mother did not follow the safety plan. Workers attended the home for spot checks throughout the weekend.

[438] On October 15, 2019, Ms. Dufour and another worker attended G’s school whereby disclosures were made by G of non-adherence to the safety plan. This necessitated the children being brought to a place of safety.

[439] On October 18, 2019, Ms. MacGillivray offered to meet with the Mother to discuss access. She declined to attend without her lawyer. A meeting took place November 1, 2019 and November 7, 2019. At the November 7 meeting, the Society expressed that further safety planning, with the Mother’s supports, was required in order to move forward. The Mother was to get back to the Society to confirm the date for the meeting. In the interim, access was reinstated, in a supervised setting until safety planning could occur.

[440] As discussed by many Society witnesses, the local agency employs the Signs of Safety philosophy, where the parents are the experts, not the workers. The worker is there to facilitate getting the network together and to help get to the root of the problem. The Society empowers the family, working closely with the parents to develop a plan for when identified concerns, triggers or red flags occur, as services do not equal safety. As Ms. MacGillivray put it, once the Society identifies the worries, it is up to the client to address the worries in a manner that works for her.

[441] Ms. Wheeler took over the file from Ms. MacGillivray on November 6, 2019. The Mother attended meetings with the worker and/or the Society on November 15, 2019, November 20, 2019, January 20, 2020, and eight other occasions between January and July 2020 to discuss safety planning, access, offer services and obtain updates. From November 15, 2019 to November 4, 2020, Ms. Wheeler also attempted to reach or otherwise engage the Mother eighteen times without success. The Mother effectively disappeared from July 27, 2020 to November 4, 2020. Only when the Mother filed an affidavit setting out a detailed plan for the children’s return did she re-engage with the Society. In total, Ms. Wheeler either met with or attempted to meet with the Mother approximately 29 times in a 12 month period. I find this is more than reasonable in the circumstances.

[442] Given D.A.’s lack of engagement with the Society after October 2019, and his agreement to a final Order, I have not outlined the numerous attempts made by the workers to bring him back to the table.

[443] That being said, I am satisfied that they frequently attempted to have him engage and safety plan such that he could have a relationship with the children and/or J.

[444] While the Mother submits that the Society failed in its obligation to provide her and D.A. with services, I do not agree. I find the Society tried on countless occasions to support the Mother in her pursuit to have the children returned to her care. I find that the Mother was aware of what was required, as she had previously, and successfully, met those requirements.

Community or family plans

[445] The children are in the care of their maternal aunt. While the Mother now disputes this being in the children’s best interest, when G was initially apprehended this was a placement she supported.

[446] The Society previously considered the Maternal Grandmother as a kin caregiver, but she did not pass the kinship assessment. There is no evidence of other plans proposed by any other party.

The Society’s plan of care

[447] The Society is seeking Extended Society Care of the children. They plan on keeping the children with their aunt, S.R.

[448] The evidence is clear that G feels safe in his aunt’s care. S.R. has satisfied the Society of her ability to meet the children’s needs.

The Mother’s plan of care

[449] The Mother’s plan of care is outlined above, and entails the children being returned to her, with or without a supervision order. They would all reside with her Father, J.R. and have support from both J.R. and T.C.

[450] The Mother supports continued contact between the children and S.R. as well as their Maternal Grandmother.

[451] The Mother proposes what she calls a safety plan in her plan of care, including terms and conditions about the unsavoury characters in her life, and protecting the children from any drug issues.

[452] The Mother’s safety plan is not child-focused, and does not include what the children will do, or who they will call, if there is a breach of the terms.

[453] Further, as indicated by the Society, the Court agrees that the ideal plan would be tested over a period of time. This plan was proposed by the Mother on or about November 3, 2020, after a three month absence from the children’s lives and from the Society.

Least Intrusive Option

[454] The least intrusive option in this case would be a supervision order. Most supervision orders envision some level of working relationship between the parent(s) and the Society. Supervision orders frequently contain terms requiring the parent(s) to cooperate with the Society with home attendances, to ensure school attendance, and to abstain from substance abuse, with the focus being the protection and safety of the children while in their parent(s) care.

[455] The lack of engagement or unwillingness to cooperate with the Society has been found to be a relevant factor when determining if terms or conditions of a supervision order could adequately protect a child if returned to their parent(s): CAS v. J.D., 2018 ONSC 3298, at para. 39.

[456] I find that the Mother was offered many opportunities to engage in safety planning in order to mitigate the risk to the children, whereby a supervision order could be considered. As noted above, I have found that the children are at risk of emotion harm due to their continued exposure to domestic violence. I was not persuaded that there was sufficient evidence of risk to warrant a finding on the issues of drug use or school attendance, though that does not mean these are not a concern to this Court.

[457] G was removed from his Mother’s care in May 2017, and returned in April 2019. He was again removed from her care in October 2019. J was removed from the couple’s care in August 2018, and returned to their care in January 2019. He was removed from the couple’s care in October 2019. Both times the children were taken from the Mother and/or couple’s care, the concerns noted by the Society were the same. The Mother and D.A. demonstrated an ability to meet the Society’s bottom lines thereby enabling both children to return to their care in 2019. Neither of them, however, were able to demonstrate an ability to engage and/or stay connected with the Society following the October 2019 removal.

[458] From the Court’s perspective, both in August 2018 and October 2019, prior to taking more intrusive measures, the Society gave the Mother the opportunity to choose the children as her priority. Both times, she choose D.A.

[459] Based on the evidence before me, since October 2019, the Mother has continued down a path of choosing abusive, or at the very least toxic, men to spend time with, regardless of whether or not the relationships were romantic or platonic.

[460] While there is no doubt that the COVID-19 global pandemic has affected the Mother’s opportunities to have face-to-face contact with the children, this does not explain away all of the choices she made since October 2019. The most significant of which was disappearing from the children’s lives from late July to November 2020.

[461] When this Court ordered that access between the Mother and children be reinstated on November 25, 2020, there was one condition placed on the access. The Mother was required to call in to confirm that the access would be taking place on the date in question, sixty minutes in advance of same, and again five minutes prior to the call taking place. Within two weeks, the Mother failed to confirm her attendance, resulting in those visits not taking place.

[462] The Court would have expected, or at least hoped, that the Mother realised the potential in this opportunity to show she could be consistent in her access. The two missed visits occurred during the course of the ten-day trial. The Mother had to have realized the importance of demonstrating her commitment to the children. However, despite what the court would expect as the Mother’s best behaviour, she could not prioritize the children. This spoke volumes to the Court about the Mother’s ability to meet the children’s needs on more stringent conditions, such as those that would be envisioned in a basic supervision order.

[463] There is no doubt that the Mother loves the children with all of her heart, as they do her. Further, it was the Society’s own evidence that when the Mother is not dealing with domestic violence or drugs, she is a fantastic parent.

[464] I have no difficulty in accepting the Mother’s evidence that she has enrolled into counselling, is taking suboxone and is currently managing her sobriety. I also accept that the Mother now has a support network available to her and the children.

[465] I have trouble, however, with the proposition that J.R. will be a strong support for the Mother and children when the evidence shows he is typically on the road five to six days per week. T.C. only works a reasonable fourteen days per month. However, the plan does not have the Mother residing with T.C. When boiled down, the plan has the Mother and children effectively living on their own. This plan has never been tested, and was not presented until the last possible moment. Further, by their own evidence J.R. and T.C. last saw G in May 2017, and have never met J. Though blood relatives, they are almost strangers to these children.

[466] Further, the evidence shows that within the last fourteen months, the Mother has had significant housing instability. She has also been unable to maintain regular access with the children, and has been unable to maintain contact or engage with the Society.

[467] The risk of returning the children to the Mother is far too high. When considering the Mother’s evidence, the fact that the Mother lacks insight and accountability as to her own actions elevate that risk.

[468] Based on the evidence as a whole, I do not find that a supervision order in favour of the Mother would mitigate any risk of harm to the children.

[469] Further, for the Court to make a supervision order, it would need to be confident that the Mother would comply with the order. See: Children's Aid Society of Windsor-Essex v. H. (L.), 2004 ONCJ 196, [2004] O.J. No. 3889 (Ont. C.J.), and Jewish Family and Child Services of Toronto v. K. (A.), 2014 ONCJ 227 (Ont. C.J.). (as cited in Children’s Aid Society of Toronto v. Y.M., supra, at para. 290.

[470] Based on the evidence, I have no confidence that the Mother would consistently comply with a supervision order.

[471] Furthermore, I do not find it would be in the children’s best interest to make an extension order pursuant to s. 122(5) of the CYFSA, enabling the Court to make the children an interim society care ward beyond the time limit set out in s. 122(1) CYFSA. The evidence does not show how more time would remedy the lack of engagement and commitment of the Mother toward the children.

[472] Both G and J need to move forward with their lives, and they cannot continue to wait on a proverbial shelf for their Mother to see the light and make them her priority.

[473] Having taken into account all of the factors outlined in the CYFSA and the evidence presented at trial, I find the least intrusive option is an order for Extended Society Care of both children.

Best Interests of the Child

[474] In determining what is in the children’s best interest, I have considered s. 74(3) of the CYFSA, the paramount purpose of the Act found in s.1(1), as well as the additional purposes found in s. 1(2), and s. 8(2). I am alert to J being of Cree heritage.

[475] I have the benefit of G’s views and wishes, as articulated by the OCL and by Ms. Brunet. Though G is only eight years old, the evidence supports a finding that G is a very intelligent little boy who knows what he wants. He is capable of expressing himself freely. Through the evidence I have heard that G is also capable of understanding the consequences of his words, such as when he expressed fear of the worker repeating to his Mother the concerns he expressed. I find this demonstrates more maturity than one would expect in an average eight year old.

[476] I accept that G wishes to continue to reside with S.R., which is the Society’s current plan in their request for Extended Society Care. I also accept that G does not wish to be separated from J. The evidence is clear that G’s views and wishes have been consistent throughout the OCL’s involvement, with the exception of a meeting in September 2020 where G expressed a desire to reside with his Maternal Grandmother as his first option, and S.R. as his second option.

[477] I recognize that J is too young to express his views and wishes.

[478] The evidence shows that G is happy in S.R.’s care. G has spent over three years, out of the last three and a half years, in S.R.’s care. J has resided with S.R. for fourteen months, the longest time in his life at one place. This has been a stable home environment for both.

[479] Conversely, the Mother has admittedly moved approximately twelve times in the past eleven months. Though I have no doubt the pandemic played a role in this transiency, J.R.’s evidence was clear that his door was open to the Mother since at least May 2020. I find she did not officially take him up on that offer until approximately October 19, 2020.

[480] S.R. is G and J’s aunt, and therefore is aware of the children’s cultural background. She has also been supplied materials by the Society to ensure J’s Cree heritage remains a vital part of his life.

[481] The Mother is prepared to continue to facilitate access between the children and their Maternal Grandmother, as well as their Fathers, as directed by the Society.

[482] S.R. has facilitated a continued relationship between the children and their Mother and their Maternal Grandmother. She has also facilitated a relationship between G and his Father, S.C.

[483] The evidence supports a finding that both children have a bond with their Mother, their aunt, their Maternal Grandmother, and each other.

[484] Both children have a positive relationship with their Mother, S.R. and their Maternal Grandmother.

[485] I find that there is a continued risk of emotional harm to the children if they were returned to their Mother’s care.

[486] I find that the Society’s plan for G is consistent with his views and wishes, and given his level of maturity and age, this should be afforded considerable weight.

[487] The Society’s plan for G and J will better meet the children’s physical, mental and emotional needs and level of development. It will better meet their needs for continuity and stability.

[488] The risk of placing the children with their Mother is unacceptably high.

[489] The least disruptive option for G and J, consisted with their best interests, is to place them in the extended care of the Society.

Access

[490] Section 104 of the CYFSA sets out the Court’s powers in relation to access. Section 105(4) states that where the Court makes an order that a child be placed in extended society care, any order for access is terminated. Section 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 to such a child unless it is satisfied that the order would be in the child's best interests. Section 74(3) sets out the best interests considerations, which includes a consideration of the child’s views and wishes, subject to the appropriate weight.

[491] Section 105(6) of the CYFSA sets out additional factors to be considered in determining whether an access order would be in the best interests of a 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.

[492] As stated by Sherr J. in Children’s Aid Society of Toronto v. Y.M., supra, “The approach to access for children placed in extended society care has significantly shifted as a result of the passage of the Act in 2017. It is now a best interests test. Whether the child's relationship with a parent is meaningful and whether access would impair the child's opportunities for adoption while important, are only two of many factors to consider. The presumption against access under the Act's predecessor (the Child and Family Services Act) no longer applies.” See: Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 (Ont. C.A.); and Children’s Aid Society of Toronto v. Y.M., supra, at para. 306.

[493] Pursuant to the CYFSA, the future needs of the children are a relevant consideration. The CYFSA in and of itself must be interpreted in a liberal and expansive fashion. This interpretation was endorsed by the Ontario Court of Appeal in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415. The court set out the following:

a. Pre-CYFSA case law that provided a rigid definition of beneficial and meaningful is no longer applicable. This includes the requirement that access must be “significantly advantageous” for the child.

b. In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future. This would include the prospect of an openness order.

c. The child’s best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child’s development of a positive relationship; (iii) continuity in the child’s care and the possible effect on the child of disruption of that continuity; (iv) 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 [Emphasis added].

d. The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.

e. The “beneficial and meaningful” test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child’s best interests.

f. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.

g. A child’s best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies.

[494] In Children’s Aid Society of Toronto v. J.G., supra, the Court concluded with these comments: “The CYFSA requires a new approach to determining access. I note too that access can come in many forms that depart from in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child’s specific needs and age-appropriate wishes.”

[495] Pursuant to subsection 105 (7) of the CYFSA, the Court must specify who is an access holder and who is an access recipient in its decisions.

[496] In Children's Aid Society of Toronto v. Y.M., 2019 ONCJ 489(Ont. C.J.) Sherr J. discussed factors to be considered in determining whether a parent should be an access holder: “The court's preference is always, where it is in the child's best interests, to make the parents access holders. This gives them a say in the contact they will have with the child post-adoption and they don't have to rely on the society or the Office of the Children's Lawyer (if the child is made the access holder) to determine the contact.” (see Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, at para. 182)

[497] The Society’s position is that access between the parents and the children ought to be at their discretion, with each being considered an access holder.

[498] The Mother submits she should have reasonable, liberal and unsupervised access to the children to be gradually increased to include overnight and eventual placement of the children in her care.

[499] In considering what is in G and J’s best interest, the Court is mandated to consider their views and wishes, which will be given due weight in accordance with their age and maturity. While there is no evidence regarding J’s views and wishes, the court has heard that G wishes to continue to see his Mother and Father, with whom he has a close bond.

[500] It is critical that the children’s current placement not be destabilised. The evidence shows that the Mother and her sister, the children’s kin caregiver, have not had the most positive relationship in recent history, and not since G first went to reside with S.R.

[501] The Mother’s evidence is clear that she does not support the children remaining in S.R.’s care, alleging that S.R. is incapable of meeting their needs. The fact that S.R. has been the children’s stabilizing force for over a year undermines the Mother’s argument.

[502] The Mother currently enjoys supervised virtual access with the children. This access however has not been consistent.

[503] The Court heard evidence by the Society regarding the emotional impact of the Mother’s inconsistency on the children, in particular the impact upon G.

[504] With regard to both S.C. and D.A., both Fathers through their counsel consented during the course of the trial that an order for access between the Father and the child be at the discretion of the Society. Both Fathers wish to be access holders.

[505] I have considered s. 74(3) of the CYFSA, the relevant case law, the evidence and the submissions of the parties. I find it is appropriate to grant the Mother specified access to both G and J, to occur as detailed in the Final Order, below.

[506] The Mother, G and J shall all be named as access holders.

[507] I find it appropriate to make an order for access between D.A. and J, at the discretion of the Society. Both D.A. and J shall be access holders.

[508] I find it appropriate to make an order for access between S.C. and G, at the discretion of the Society. Both S.C. and G shall be access holders.

[509] Though I understand that the Society’s plan is to have the children remain in S.R.’s home, should this ever change, I find it is appropriate to order sibling access a minimum of once per month. Both the children will be access holders.

Final Order

[510] Final order to go as follows:

1. The children, G and J, continue to be in need of protection under s.74(2)(h) CYFSA.

2. The Mother shall have access to the children as follows:

a. Commencing February 7, 2021 and every Sunday thereafter, the Mother shall have supervised virtual access to the children, G and J, for one (1) hour. The Mother shall communicate with the Society, or its designate, two (2) hours prior to the visit to confirm it will be taking place. Should the Mother not confirm two (2) hours in advance, that visit will be cancelled.

b. Should the Mother attend five (5) consecutive months of virtual visits (20 consecutive visits), and provided that she adheres to the COVID-19 safety protocols, as well as provides a negative COVID-19 test taken within four (4) days of the first visit, then the Mother shall be permitted supervised face-to-face visits with the children for three (3) hours every second Sunday.

c. Should the Mother and the Society not agree as to who is an appropriate access supervisor, then the Mother shall use the Centre York Centre, provided the CYC offer their services given the CAS involvement, recognizing that the visits will be reduced to two hours per two weeks. The dates for the CYC visits shall be those which are available and can be offered by the CYC, with an attempt to accommodate the children’s caregivers’ work schedule. The Mother is directed to make herself available for such access to occur. Should the CYC decline to offer services, then access shall be supervised by the Society.

c. Should the Mother miss six (6) visits within a two (2) month (8 week) time period, then all visits shall be suspended until further order of this Court, or at the Society’s discretion to reinstate same. In this circumstance, either the Mother or the Society may bring a motion, on notice to each other, to reinstate and/or terminate access. This motion shall be heard before Desormeau J., or her designate.

d. In the event that the Mother does not consistently attend for access, or acts in a manner that attempts to undermine G or J’s placement, the Society may bring a motion to change the terms of access, on notice to the Mother.

3. The Mother, G and J shall all be named as access holders.

4. There shall be an order for access between D.A. and J, at the discretion of the Society. Both D.A. and J shall be access holders.

5. There shall be an order for access between S.C. and G, at the discretion of the Society. Both S.C. and G shall be access holders.

6. Should G and J no longer reside together for any reason, there shall be an order for sibling access a minimum of once per month. Both the children will be access holders.

7. No costs.

Madam Justice Hélène C. Desormeau

Released: February 1, 2021

COURT FILE NO.: 18-103

DATE: 20210201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

v.

A.R.,

S.C., and

D.A.

REASONS FOR JUDGMENT

Justice Hélène C. Desormeau

Released: February 1, 2021

[1] Though the CFSA was repealed and replaced with the CYFSA on April 30, 2018, s.37(2)(g) of the CFSA stated: A child is in need of protection where 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.

[2] The SAF indicates J was placed with is Mother on extended access since April 1, 2019, however J was already in the care of the parents. Based on the Status Review Application dated October 17, 2019, it is clear that the SAF should have read G instead of J.

[3] Note – at that time, there were separate proceedings for each child. The files were merged in 2020 for trial purposes.

[4] Despite the SAF, the Mother’s evidence at trial, set out below, was that the last visit she had with the children was July 9, 2020.

[5] The second missed visit was not disputed during the evidence.

[6] Or July 9, 2020.

[7] Ms. Dufour’s affidavit references Cassandra St. Pierre.