The Children’s Aid Society of Ottawa v. K.D. and D.A.

COURT FILE NO.: FC-06-232-6

DATE: 2021/11/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of Ottawa Applicant

– and –

K.D. Respondent

Hayley Marrison-Shaw and Danielle Marchand, for the Applicant

Cedric Nahum and Alyssa Denley, for the Respondent K.D.

D.A. Respondent

Kimberley Pegg, for the Respondent D.A.

Susan Galarneau, for the child, K.D.W.D.

HEARD: September 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 2021

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 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.

REASONS FOR JUDGMENT

m. smith j

Overview

[1] The children involved in this trial are KDWD, born […] 2012 and IYD, born […] 2016 (the “children”). The parents are the Respondents: KD (“Mother”) and DA (“Father”).

[2] The Mother has two older children with the Father’s brother, JA: MD (15 years old) and AD (14 years old) (the “siblings”).

[3] The Applicant, the Children’s Aid Society of Ottawa (the “Society”) seeks a finding that the children are in need of protection, an order placing the children in the Extended Care of the Society, and an order for access between the children, Mother, Father and siblings.

[4] The Mother seeks an order returning the children to her care. The Father supports the Mother’s Plan of Care and he seeks an access order, to be exercised through the Society.

[5] The children have been in Society care for over two years. IYD and KDWD have been in care for 834 days and 1006 days, respectively. On July 25, 2018, the children were placed in the care of Valoris for Children and Adults of Prescott-Russell (“Valoris”) pursuant to a Temporary Care Agreement (“TCA”). They were returned to the Mother’s care in September 2019. On August 6, 2020, a warrant to apprehend the children was obtained by the Society. While the children were in the care of Valoris and the Society, they were placed with IR (“Foster Mother”) and JSVF (“Foster Father”) (collectively, the “Foster Parents”).

[6] The issues that need to be determined are the following:

a. Are the children in need of protection?

b. If the children are in need of protection, what Court order is required for their protection and in their best interest?

c. If the children are placed in the Extended Society Care, is access between the children and the Mother, Father and siblings meaningful and beneficial?

[7] For reasons that follow, I find that the children are in need of protection. The children are to be placed in Extended Society Care, with access to the Mother, Father and siblings.

Introductory remarks

[8] This was not an easy decision to make and it leaves me heavy-hearted.

[9] I have no doubt that there is a lot of love and affection amongst the Mother, children, and siblings. That came across very clearly in the testimony of the witnesses and the evidence that was filed as exhibits in the trial.

[10] KDWD and AD have been more intimately involved in these proceedings and may feel that they have played a role in the outcome of this trial. None of the children and siblings should have any of these thoughts and beliefs. While the trial may be about the children and what’s in their best interest, the result of the trial is not because of the children, the siblings or what they may have done or not done.

[11] In arriving at my decision, I have considered all the evidence, including KDWD’s preferences and wishes, as well as AD’s evidence. I recognize that placing the children in Extended Society Care is one of the most profound orders that a Court can make. However, based on the totality of the evidence, and through no fault of the children and/or siblings, I conclude that it is in the best interest of KDWD and IYD that they be placed in Extended Society Care.

Witnesses

[12] The Society called the following witnesses: Stéphanie Cote (child protection worker at the Society), Richard Provonost (family support worker at Valoris), Manon Jacques (child and youth counsellor at the Society), Melanie Rochon (child protection worker at the Society), the Foster Mother, Melissa Pierre (social worker at Conseil des écoles catholiques scolaires du Centre-Est), Émilie Pilote-Cloutier (teacher), Dr. Michel Samson, and Isabelle Parisien-Fisher (child protection worker at Valoris).

[13] The Mother and Father testified along with JG, AW, and AD.

[14] In most trials, the credibility and reliability of witnesses come into play. This trial was no different.

[15] The assessment of credibility is not a scientific exercise and it involves a consideration of many relevant factors, including the following: (i) the ability to consider inconsistencies and weaknesses in the witness’ evidence; (ii) the ability to review independent evidence that confirms or contradicts the witness’ testimony; (iii) the ability to assess whether the witness’ testimony is plausible; (iv) the demeanour of the witness, including their sincerity and use of language; (v) it is important to consider the motive that witnesses may have to fabricate evidence; (vi) there is no principle of law that requires a trier of fact believe or disbelieve a witness’ testimony in its entirety. A trier of fact could believe none, part, or all of a witness’ evidence, and may attach different weight to different parts of a witness’ evidence: see Dai v. Ding, 2019 ONSC 6118, at paras. 38-39.

[16] I found the Society’s witnesses to be credible and reliable. While there may have been a few minor inconsistencies in some of the evidence (i.e. whether a certain event occurred precisely as described), I do not find that it affected the reliability of the evidence given by the Society’s witnesses. I found that they presented fair, neutral, and trustworthy testimony.

[17] Where the evidence of the Society’s witnesses contradicts with the Mother, the Father, and their witnesses, I prefer the evidence of the Society’s witnesses. I found that some of the evidence given by the Mother, the Father, and their witnesses had some inconsistencies and contradictions that tend to undermine the credibility and reliability of those portions of the evidence.

[18] The Mother argues that the Society accepted the Mother’s evidence because it chose not to cross-examine the Mother. I reject this argument. The Mother was thoroughly cross-examined by counsel for the OCL. The Society is entitled to rely on the totality of the evidence given by the Mother, which includes the cross-examination.

Statutory Findings

[19] Pursuant to s. 90(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 Sched. 1 (“CYFSA”), the statutory findings, based on the Agreed Statement of Fact dated September 10, 2021, are:

a. The children’s names: KDWD, born […] 2012 and IYD, born […] 2016.

b. The children are not First Nations, Inuk or Métis persons.

c. The children’s parents: KD and DA.

d. The children were brought to a place of safety on August 6, 2020.

Admitted Facts

[20] The parties filed five Statements of Agreed Facts dated February 22, 2007, May 14, 2009, May 14, 2015, September 3, 2021, and September 9, 2021.

[21] Prior Court orders are admissible in subsequent proceedings, and the Court is entitled to take judicial notice of prior decisions of the Court: see Attorney General of BC v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657, at paras. 37-38; Children’s Aid Society of Toronto v. I.H., 2017 ONCJ 760 at paras. 35-58. Statements of Agreed Facts are admissions which are an exception to the hearsay rule: see Children’s Aid Society of the Regional Municipality of Waterloo v. M.W., 2020 ONSC 1847 at para. 53.

Child protection involvement

[22] Valoris and the Society have been intermittently involved with the Mother and Father since April 2006, which coincides with the birth of MD. Throughout the years, there have been several Court orders placing MD, AD and the children in the temporary care and custody of the Society.

[23] The relevant admitted facts are set out in the text that follows.

[24] At MD’s birth, the Mother tested positive for marijuana and opiates.

[25] Since March 2006, the Society has been involved with the Mother and JA due to concerns pertaining to unstable lifestyle, drug use, unsafe environment, and criminal activities.

[26] MD has been placed in the Society’s care for a total of 466 days between September 2006 and May 2015. AD has been placed in the Society’s care for a total of 301 days between October 2008 and May 2015.

[27] The first Court order was made on September 15, 2006 by Mackinnon J. granting an order that MD be placed in the temporary care and custody of the Society. This was due to the Mother’s unstable lifestyle (including drug use), unsafe living conditions and lack of cooperation.

[28] On March 25, 2008, Blishen J. granted an order placing MD in the custody of the Mother with supervised access to JA, as arranged between the parties. The Mother agreed to work with the Society on a voluntary basis.

[29] MD and AD were apprehended on October 15, 2008 because of serious concerns with respect to lack of supervision. On that day, the Society worker first attended the home unannounced and MD (two years old) came to the door and tried to open it. The Mother was sleeping. The worker tried calling the Mother’s cellular phone and MD answered. The worker could hear AD (one year old) crying. The worker entered the home and observed the Father sleeping in the Mother’s bed. When the Mother was confronted about the fact that MD and AD could not be left alone, the Mother did not appear to understand the safety concerns, nor was she remorseful of the situation.

[30] On November 19, 2008, Pedlar J. granted an order that MD and AD be returned to the Mother’s care, subject to an interim supervision order that included that the Mother abstain from drug use, regular attendance of MD and AD at day care from 10:00 a.m. to 5:00 p.m., pre-approved alternate caregivers, and to notify the worker in advance of any change of residence and phone number.

[31] On January 27, 2009, MD and AD were apprehended and placed in their previous long-term foster care. The Society was told that MD, AD, and the 14-month-old child of the Mother’s sister ID were left in the care of a 14-year-old babysitter from January 25 to January 27, 2009. The Mother did not attend to pick up MD and AD. The children did not have appropriate winter clothing.

[32] On May 15, 2009, a Final Order of six months supervision order to the Mother was granted by Toscano Roccamo J. It was terminated by Métivier J. on December 10, 2009.

[33] On November 24, 2014, the Father went to the maternal grandmother’s home and kicked the door down. The Mother and Father left to a hotel, leaving her kids with the maternal grandmother.

[34] On November 26, 2014, the Society was contacted by the Crown Attorney’s office advising that there was a no contact order between the Mother and Father. Also, there was a no contact order between the Father and the maternal grandmother, due to a conviction of assault relating to an incident between them in September 2013.

[35] On December 3, 2014, AD explained to the Society workers that they (Mother, herself and siblings) were living at a hotel since the summer. The Society workers attended at the hotel and observed rolling paper and marijuana in a container on the night table beside the bed. The Mother admitted to using marijuana and Percocet, as prescribed by her doctor. She denied using marijuana in the presence of her kids.

[36] On December 4, 2014 at 11:15 a.m., the Society attended at the hotel to apprehend the kids. The Mother and MD were sleeping. The Mother was overall cooperative and helped gather the kids’ belongings. Marijuana was observed again on the night table.

[37] The Society was informed that on December 17, 2014, the Father was charged with criminal harassment, uttering threats and two breaches. He was detained and remained incarcerated until released on April 22, 2015.

[38] On May 25, 2015, Mackinnon J. found MD, AD and KDWD to be in need of protection and made an order placing them in the Mother’s care subject to the Society’s supervision, with conditions, for six months. The Mother agreed, amongst other things, to cooperate with the Society, undergo random urine screens, stop using marijuana, not contact the Father (directly or indirectly), contact the police if the Father tries to contact her or the kids, ensure that the kids are not exposed to adult conflict, and meet with a violence against women counsellor to discuss/explore and address issues of domestic violence.

[39] This supervision order was terminated by Sheffield J. on January 7, 2016.

Domestic violence

[40] The Mother acknowledges being a victim of domestic violence by the Father.

[41] The Father denies that he was physical towards the Mother but acknowledges threatening the Mother with violence.

Children statements

[42] The children have mentioned incidents of domestic violence. On April 29, 2021, during an access visit supervised by Ms. Jacques, IYD started talking about her dad, saying she didn’t like him and didn’t want to see him because they had to call the police. KDWD told her to stop talking and IYD mentioned that daddy has been in and out of jail often. KDWD again told IYD to stop talking and said it was not the place. IYD then said to her mom, “remember when Daddy came back to your house and wanted to get her purse". KDWD told IYD not to talk about daddy and the Mother said it was fine. IYD then said, “you were crying in the corner. Is it true?” The Mother said, “you tell me, did I cry in the corner” and IYD replied, “yes I saw you”. IYD said that she told her foster parents. KDWD asked if she felt embarrassed and the Mother didn’t reply.

[43] KDWD often expresses concerns for his Mother and wanting to protect her.

[44] KDWD has expressed being fearful of his Father and not wanting visits with him. However, KDWD has attended visits with his Father inconsistently and at times expressed a vacillating desire to attend. When KDWD expresses that he does not want to attend, the Society doesn’t force him to attend.

[45] On October 8, 2020, KDWD described reasons his dad was mean and expressed being afraid. However, subsequent to this he did attend access with his father.

[46] On December 2, 2020, Ms. Rochon asked KDWD to do an activity. He was asked to name the people in his house that he feels safe with and would allow inside. KDWD named the following people: Mother, JA, ID, Foster Mother, Foster Father, MD and Melanie. Ms. Rochon asked him to write outside the house, the people he doesn’t feel safe with; KDWD wrote the Father with a picture of a heart with an X on top and explained that it is because he doesn’t like him. He mentioned that his dad is mean.

[47] On July 22, 2021, KDWD asked Ms. Jacques if his Mother would see his Father when he came for access, while his Mother was leaving access.

[48] KDWD has been consistently expressing a preference and desire to return to his Mother's care, and he does not want to return to his biological Father's care.

[49] KDWD has consistently expressed that he does not want to be placed or in the care of "Coco". Coco is a friend of the Mother.

[50] KDWD has consistently expressed a desire to remain with his sister, IYD.

[51] KDWD has consistently expressed no concerns about his current foster placement.

[52] Although the children’s statements are contained in the agreed statements of facts and therefore filed on consent, I find that they are admissible statements under the state of mind exception to the hearsay rule.

Issue one: Are the children in need of protection?

[53] The Society seeks a finding that the children are in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii) and 74(2)(h) of the CYFSA. The basis for this need of protection is three-fold: (i) the children’s exposure to domestic violence; (ii) the Mother’s failure to meet the children’s basic needs; and (iii) the Mother’s intermittent drug use.

[54] The Mother argues that the Society has not met the burden of demonstrating that the children are in need of protection.

[55] I find that the Society has proven that the children are in need of protection on the basis of the exposure to domestic violence and the Mother’s failure to meet the children’s basic needs.

Legal principles

[56] Sections 74(2)(b)(i), 74(2)(b)(ii) and 74(2)(h) of the CYFSA deal with the risk of physical harm, a pattern of risk of physical harm, and a risk of emotional harm.

[57] A risk of harm must be real and likely, not speculative: see Children’s Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458, at para. 19; Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Fam. Ct.), at para. 8.

[58] It is not necessary for the Society to prove that the parents had the intention to cause harm: see Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, at para. 28, aff’d 2009 ONCA 903.

[59] Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, inadequate shelter/food are common circumstances leading to findings of physical harm/risk of physical harm: see Children’s Aid Society of Oxford County v. E.M.T., 2019 ONCJ 767, at para. 16.

[60] 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 needs protection under ss. 74(2)(b)(i) and 74(2)(b)(ii) of the CYFSA: see Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, at paras. 47-49.

[61] An exposure to a pattern of domestic violence is accepted as creating a risk of emotional harm to children: see Children’s Aid Society of Toronto v. C.(S.A.), 2005 ONCJ 274, at para. 144, aff’d 2005 CanLII 43289, leave to appeal to Supreme Court of Canada refused, [2007] S.C.C.A. No. 462.

[62] Verbal abuse, aggression, and inappropriate situations that children are exposed to can constitute risk of physical harm: see CCAS v. L.S and W.D., 2011 ONSC 5850, at para. 380.

[63] Domestic violence is not limited to physical assault. Failure to leave an abusive relationship may be a reason for placing the children in extended society care: see CCAS v. I.B. et al., 2020 ONSC 5498, at para. 165.

[64] Police occurrence reports are admissible with respect to the information that was clearly from personal knowledge of the recording officer or information that was received from another police officer who was acting under a duty to report what was admitted. Further, recorded comments made by one of the parents may be admitted as statements against interest: see Catholic Children’s Aid Society of Toronto v. L.(J.), 2003 CanLII 57514 (ON CJ), 39 RFL (5th) 54, at para. 16.

[65] Instability of housing and caregiving arrangements can create a risk of harm: see CCAS v. L.S. and W.D., at para. 380.

[66] A prolonged inability to access available resources to provide children with a stable environment can raise valid protection concerns. Children need stable housing and for parents to have a stable plan for them: see Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, at para. 147.

[67] Failure to ensure that the child regularly attends school can pose a risk of emotional harm, as the child’s development will be impaired: see Children’s Aid Society of Toronto v. P.(J.), 2009 ONCJ 1, at para. 65; Children’s Aid Society of London and Middlesex v. L.W., 2016 ONSC 3; and Children’s Aid Society of Toronto v. E.U., 2014 ONCJ 299, 45 RFL (7th) 413, at para. 107.

[68] Where a parent is abusing drugs or alcohol, the child is at risk: see CAS v. W., 2012 ONSC 3635, at para. 112.

[69] The Court should be free to consider whether the child is in need of protection at the commencement of the proceedings, at the hearing date, or for any other date. There cannot be an absolute rule as to the relevant date: see Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754, at para. 50; Children’s Aid Society of Toronto v. RM, 2019 ONSC 2251, 24 R.F.L. (8th) 384, at paras. 83-95.

[70] If a caregiver wishes to challenge the apprehension, it should be done at the motion for temporary care and custody hearing: see Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, 50 R.F.L. (7th) 272, at para. 51.

Analysis

Children’s exposure to domestic violence

[71] The Society submits that there is both a risk of physical and emotional harm due to the parents’ domestic abuse and the children’s exposure to it, such that KDWD expresses fear of his Father, and concern for his Mother.

[72] The Mother admits that she has been the victim of domestic abuse by the Father. However, she argues that the question is one of degree, meaning that the evidence does not establish that the children are in need of protection because of the risk of domestic violence, or the exposure to domestic violence. The Mother says that in the seven incidents of domestic violence, the Mother reacted appropriately, either by calling the police or refusing the Father entry to her home. The Mother states that the Society has exaggerated the concern of domestic violence.

[73] I disagree with the Mother’s position. In my opinion, the concern of domestic violence is real. I recognize that the Mother has taken some minor steps towards addressing the issue of domestic violence, such as attending group counselling. Also, the Mother has made some progress over the years by denouncing the Father’s conduct and calling the police on a few occasions. However, in my view, the Mother’s efforts are insufficient to ensure the safety of the children. Despite the existence of conflict between the parents, the Mother has maintained a relationship with the Father, without regard to the children’s best interest. I do not believe it to be intentional on her part. The Mother is a victim of domestic violence and regrettably, her behaviour is not uncommon.

[74] The evidence described below shows that the pattern of abuse, in the presence of her children, has been continuous for several years. The Mother is drawn to the Father and wants to maintain a connection with him, as recent as this past summer. The Mother is prone to minimize the extent of the abuse and the impact that domestic violence may have on the children.

[75] The Mother and Father have known each other since she was 12 years old. She described the Father as her best friend, and he was close to the maternal grandmother and the Mother’s sister. The Mother and Father started a romantic relationship approximately six months after the birth of AD. It lasted until KDWD’s birth. They tried to rekindle the relationship, resulting in the birth of IYD, but it did not work. The Mother testified that she has not lived with the Father since IYD was a baby.

[76] The Mother has had many disagreements with the Father and at times, she could not put up with the stress. The Father was disappointed and angry that the children were being placed in foster care. The Mother said that the Father was not violent towards her and that he never hurt her, intentionally or unintentionally. The Mother was asked if there were any significant issues with the Father over the course of their relationship, to which she responded, “no major issues”, only “a lot of arguing”. She acknowledged that there were a lot of verbal altercations.

[77] The Mother first denied that KDWD told her that he was afraid of the Father. She was unable to provide any reasons why KDWD may be afraid of his Father. She testified that if KDWD ever expresses this fear to her, she would reassure KDWD that there is no danger with his Father. The Mother believes that her children should have a relationship with the Father. The Mother considers the Father as part of her family. In terms of importance that the Father spend time with the children, she ranks it a 10 on 10. She grew up without a father and she believes that a father is important in the children’s lives. If KDWD does not want to see his Father, the Mother testified that she would encourage KDWD to see his Father. When asked to clarify whether she would encourage KDWD or compel him to go, the Mother responded: “I don’t see any risk. I would ask him to go.”

[78] During the cross-examination, the Mother was taken through some of the violent incidences that she experienced at the hands of the Father. She acknowledged that it was difficult to go through these experiences. She admitted that KDWD has seen his Father upset and contrary to her previous testimony, she now recognized that it would make sense that KDWD was fearful of the Father.

[79] The Father acknowledges that there has been some domestic violence, but he qualifies it in saying that domestic violence is a broad variety of things. The Father testified that he does not have the impression that KDWD is afraid of him. He does not recall any times where KDWD was scared but does acknowledge that he got upset at him (i.e. playing video games for over five hours). The Father believes that KDWD likes it when the Mother and Father are together.

[80] Four police occurrence reports were filed as exhibits. The incidents took place on July 21, 2017, December 10, 2019, December 25, 2019, and May 7, 2020. These police reports reveal that that KDWD and/or IYD were present for some of the conflicts involving the Mother and the Father.

[81] Ms. Cote testified that the Father told her that he resided with the Mother in or around March and April 2020. The Mother denies that the Father lived with her during this period. The Father does not recall saying that specifically to Ms. Cote but did admit staying with her a few times.

[82] The Mother acknowledges that the hostility with the Father worsened after the commencement of COVID-19. The Father was showing up more often at her home. The Mother recognizes that, during one incident, IYD was scared because of the Father’s yelling. The Mother was getting fed up with the Father and therefore had him arrested on May 7, 2020.

[83] On May 7, 2020, the Mother reported that she was at a store when the Father threatened her and beat her. The Mother now claims that the Father never physically hurt her and that she lied to the police. She did however provide a very detailed account of her physical attack, including the location where he punched her. The Mother admits that she received threatening calls and/or texts. Examples of these are found in the police report and include the following: the Father would come over and “beat the fuck out of her”; “that he would make sure the kids go to CAS and never come back home to mommy because mommy is going to die today”; and “I’m coming over and this time its for real I’m gonna hurt you so bad and punch your face in until your fucking dead I fucked you up good the last times this time your going to meet your mom (her mother passed away November 5, 2017)”.

[84] The Father admitted threatening the Mother. He explained that he thought this method would get him to see his children. He says that he now sees that this was not a good choice.

[85] During cross-examination, the Mother admitted that in or around the May 7, 2020 incident, she was very afraid of the Father because he hurt her in the past and she was well aware of what he was capable of doing. She also admitted that despite the Society’s conditions that the Father not be in contact with the children, the Mother had previously allowed such contact to occur.

[86] The Mother admitted that certain portions of the May 7, 2020 incident were true, namely those statements that pertained to her fear for her safety and that of her children: “tired of living life always having to watch over her shoulder fearing for her life and being worried of what could happen in front of her children”; “that this shit has been going on for too long year and years and it will only get worse”; “the she will end up retarded or dead”; “that something needs to be done for him to realize that what he’s doing has to fucking end or he will put an end to her”.

[87] Following the May 7, 2020 incident, the Father was charged with uttering threats to cause bodily harm and death, assault, and breach of conditions. The Mother says that after this arrest, things changed. The Father did not come around anymore. The Father plead guilty to the charges of uttering death threats.

[88] The Mother’s evidence regarding the May 7, 2020 incident is concerning. She says that she lied about the assault to protect her family, fearing that the Society would apprehend the children again because the Father had been in contact. I have a great deal of difficulty in accepting the Mother’s testimony that she fabricated an elaborate story to the police for this reason. I believe that the Mother is not being completely truthful with the Court because she fears that this incident will show the gravity of the Father’s propensity to violence.

[89] In addition to the incidents involving the police, there were others where the parental conflict and domestic violence took place in the presence of the children. For example, the Father attended at the Mother’s house in an agitated manner and in a loud voice, demanding that the Mother hand over her purse. The Father wanted to see if the Mother was still using Percocet. This incident appears to have occurred sometime before May 2020, yet the children remembered it well because it was recounted by them on April 29, 2021 (see the Agreed Statement of Fact dated September 10, 2021).

[90] The Father said that recently, he has been in contact with the Mother to discuss the situation and the Court proceedings. They are supporting each other.

[91] Ms. Cote confirmed that during an unannounced visit at the Mother’s home in July 2021, she heard the Father’s voice.

[92] Ms. Cote met with the Mother on several occasions to discuss the domestic violence issues. Ms. Cote suggested that the Mother attend violence against women counselling. Ms. Cote assisted the Mother in elaborating a safety plan in the event of a violent incident to ensure her safety as well as the children’s safety.

[93] I believe that the Mother has not been entirely open with the Society workers throughout the years as well as with this Court in respect to her experiences of domestic violence and her ongoing relationship with the Father. Understandably, the Mother’s responses to her domestic violence experiences (either denying or minimizing what has occurred) is often common amongst victims of domestic violence. The Mother has also minimized the effect of domestic violence upon her children. I find it unlikely that the Mother was unaware, as she claims, that KDWD was afraid of the Father. Without disparaging the Mother, I find that she is exercising poor judgment in her continued desire to continue a relationship with the Father.

[94] During argument, the Mother submitted that there is no actual evidence that KDWD is fearful. The Agreed Statement of Facts dated September 3 and 10, 2021 say otherwise. Although the Mother finally acknowledged that there are reasons for KDWD to be fearful of his Father, I find it concerning that the Mother would encourage a relationship between KDWD and the Father. What is even more concerning is that she would compel him to see his Father. The evidence is clear that KDWD is fearful of the Father and that he finds him to be a mean person. Although KDWD has participated in some access visits with the Father, he has had a vacillating desire to attend, or in other words, some hesitation. The Mother seems to believe that KDWD and the Father are closer than before and when KDWD sees the parents together, he is fine. The Mother’s belief is inconsistent with the evidence that is before me.

[95] The Mother has been unable to establish the appropriate boundaries, to the detriment of her children, which in my view puts into question her ability to ensure that the children will be protected.

[96] Following a Family Group conference in May 2019, the Mother had agreed to obtain a restraining order against the Father. Ms. Parisien-Fisher had spoken to the Mother about it on a few occasions and offered her the appropriate support. The Mother was planning on obtaining one, yet she changed her mind. She testified that she did not have any reason to obtain a restraining order. She said that in or around the time of the Family Group conference, she did not fear for her safety, nor did she fear for the safety of her children.

[97] During cross-examination, the Mother denied that she had agreed not to have contact with the Father, but rather that the children not have contact with the Father. Paragraph 6 of Exhibit 18 clearly indicates the opposite of the Mother’s understanding.

[98] A more recent example of the Mother’s inability to set boundaries is her most recent decision of revoking a no contact order with the Father. She said that she revoked this no contact order for the purposes of being able to communicate with him regarding this trial. I do not accept this explanation. The Mother and Father are both represented in these proceedings and any communication that was needed in preparation for the trial could have been done through counsel. In my view, this revocation of the no contact order is further evidence of the Mother’s inability to prioritize the safety and well-being of her children.

[99] The Mother argues that, at any time, she could remove her consent to see the Father because it is a revocable consent. Based on the evidence that I have heard, I do not have confidence that the Mother would trigger the no contact order.

[100] The evidence establishes that, throughout the years, the Mother and Father have been unable to abide by the conditions of no contact. These conditions were put in place for the benefit of the children and their safety. The Mother has acknowledged that she is a victim of domestic violence and she has received some counselling. I commend the Mother in taking these steps, but as previously indicated, I do not believe that it is sufficient. I am concerned that the cycle of abuse will continue, and that history will repeat itself.

[101] The Mother testified that in or around May 2019, she did not fear for her safety or that of her children. Then, one year later, in May 2020, she reported to the police that she did fear for her safety and what could happen in front of the children. The Mother’s fear is legitimate and the children’s exposure to domestic violence has occurred. Based on the Mother’s conduct and her desire that the children maintain a relationship with the Father, the children could be exposed to domestic violence in the future.

[102] I acknowledge that there have not been any recent reported incidences of domestic violence between the Father and the Mother. Yet, it is noteworthy that the Father has been incarcerated for many months during this past year, not having had the opportunity to see the Mother and children. Also, I am cognizant that the Father has taken some anger management courses and claims to recognize that his past conduct was inappropriate. This is a step in the right direction, but I am not comforted by these minor changes.

[103] The Mother submits that she has separated herself from the Father. I do not accept this submission, and the evidence says otherwise. The Mother’s history with the Father is deep rooted and she is unable to break the relationship with the Father. She has a desire to maintain the relationship with the Father, which I find unfortunate. I am seriously troubled by the Mother’s lack of insight into the risk of exposing the children to domestic violence. The Mother does not see the risk. She is prepared to impose upon the children a relationship with the Father, despite the history, the fears, and the emotional impact that it has had on the children.

[104] I find that the children have been exposed to levels of domestic violence and conflict while in the Mother’s care. I believe that the domestic disputes between the Mother and Father has impacted the children, such that KDWD is very protective of his Mother and he fears his Father. The children are at continued risk of physical and emotional harm. I find that the Mother’s actions have demonstrated her true feelings regarding the Father and again, this is a typical response for victims of domestic violence. I do not believe that the Mother can disengage from contact or communication with the Father. It is reasonable to expect that the Mother and Father will have contact with one another, putting the children at risk. I am satisfied that the children are in continued need of protection.

Inability to meet the children’s basic needs

[105] The Society submits that the there is both a risk of physical and emotional harm due to the Mother’s inability to meet the children’s basic needs, those being educational, physical, medical, emotional, and dental. The Society raises the issues of chronic absenteeism in school for KDWD, insufficient food, untreated dental and medical needs that have directly impacted the well-being of the children.

[106] The Mother submits that the children’s needs have been met while they were in her care. She argues that the children interact well with others, they are able to engage in positive ways and they are able to function well in the community.

School and meals

[107] Dealing first with the educational needs, I find that the evidence overwhelmingly shows that the Mother did not adequately provide for the children’s needs in this area.

[108] KDWD’s report cards were filed as exhibits. They include those dated June 21, 2017, November 14, 2017, June 19, 2019, October 23, 2019, January 27, 2020, June 5, 2020, and November 13, 2020. These report cards are quite telling:

a. In pre-kindergarten, KDWD’s cumulative absences were 58 days and he was late 8 times.

b. During the first half of kindergarten, KDWD was absent 23 days and late 11 times.

c. In contrast, when KDWD was in the care of his Foster Parents from July 25, 2018 until September 2019, he had eight absences and zero cumulative lates.

d. KDWD was returned to his Mother in September 2019. His grade 1 report card dated October 28, 2019 notes that in the two months that he had been returned to his Mother’s care, KDWD had 15 absences and he was late 12 times.

e. KDWD’s grade 2 report card dated June 5, 2020, notes his cumulative absences were 47 and his cumulative lates were 21.

f. While in foster care for a second time, his grade 3 report card dated November 12, 2020 indicates four absences and he was late once.

[109] KDWD’s report cards demonstrate that when he is under his Mother’s care, his work habits need improvement. Comparatively, while in the care of the Foster Parents, the results were excellent, even during the online learning imposed by COVID-19. In my view, the differences are glaring.

[110] Ms. Cote would receive regular updates from the school. She discussed the concerns that had been noted by the school with the Mother. Many excuses were given for KDWD’s absenteeism, including that he was often sick. In passing, JG (described by the Mother as her uncle) also claimed that KDWD was always sick, but it was not concerning to him and he did not find it necessary to report it to the school. He said, “when you are sick, you are sick”. The Mother also blamed KDWD’s absences on the transportation and that she could not always rely on JG. She also said that it was difficult to wake up KDWD in the morning.

[111] Ms. Pilote-Cloutier, a resource teacher at KDWD’s school, explained that the school tried to assist the Mother with school transportation, but it would not work because the Mother would not bring KDWD to the bus stop in time.

[112] Despite the assistance being provided by the school, I find that the Mother was unable to ensure KDWD’s presence. Whether it was because KDWD was not sleeping well or any other excuse, the Mother is the responsible parent and any shortcomings are not the fault of the school or the Society. I find it important to mention that the Mother is the person who chose a school that was outside of the catchment area of her residence. This choice caused significant problems with regards to transportation. That is the Mother’s doing and nobody else’s.

[113] After the pandemic was declared, KDWD never completed any work online. Ms. Pilote-Cloutier said that a computer was available at school, but the Mother did not pick one up.

[114] The Mother was not concerned with KDWD falling behind if he does not attend school frequently. She testified that the school told her that KDWD could not fall behind because he was not in high school. I do not find this plausible. The Mother is not taking responsibility for KDWD’s significant absenteeism and I believe that she is attempting to deflect responsibility to the Society for not providing the appropriate transportation.

[115] I find that given KDWD’s high rates of absenteeism and late attendances at school while in the Mother’s care, he is in need of protection. The Mother’s inability to ensure that KDWD’s educational needs are being met puts him at risk of emotional harm and developmental delay.

[116] In addition to the school attendance issues, the evidence shows that the Mother has also struggled in ensuring that KDWD had sufficient food and was well rested before attending school.

[117] Ms. Pilote-Cloutier was a resource teacher at KDWD’s school from September 2019 to March 2020. She observed the following regarding KDWD’s behaviour:

a. He was sad at the beginning of the school year.

b. He was always tired, to the point where the school let him sleep during a part of the morning.

c. He cried a lot. He would ask to see his Mother, claiming that he had a stomach ache.

d. He would often arrive late at school.

e. He would not have a full lunch, only some snacks.

[118] Ms. Pilote-Cloutier tried to address the concerns with the Mother, including KDWD’s absences, his fatigue and emotional state. She had a lot of difficulty reaching the Mother. At times, the Mother did not return her messages. When Ms. Pilote-Couthier did finally speak to the Mother (usually at school when the Mother dropped off KDWD), the Mother was very receptive to the concerns in that she wanted to help, but things continued to be the same.

[119] The Mother testified that there was an arrangement with the school that they would provide lunches. Ms. Pilote-Cloutier was not aware of this agreement with the school. She found it surprising that she would not have been told, but more importantly, in her experience, she has never heard of such an arrangement ever being made with a parent. She was clear that feeding a child is the parent’s responsibility but that said, the school would always feed a child that was hungry.

[120] I cannot accept the Mother’s evidence that she had an arrangement with the school to feed KDWD. I find that if such an agreement did exist, the resource teacher would most definitely had been told. The Mother was not providing KDWD with a proper lunch.

[121] Although the Mother has received food vouchers and assistance from her supports, there have been a few documented instances where the Mother had some challenges having sufficient food in the home. Some examples include that during the reintegration in August 2019 with the Mother it was discovered that the food was perished, or in the early part of 2020, during a visit at the Mother’s home, KDWD was complaining that there was no food in the home.

[122] The evidence overwhelmingly convinces me that the educational needs of KDWD have not been met. KDWD’s report cards strikingly demonstrate that there is a direct link between regular school attendance and academic success. There was a dramatic improvement in KDWD’s academic performance while under foster care. Also, the Mother has continuously struggled with ensuring that KDWD was properly rested and fed, which had a significant impact at school.

[123] Regarding IYD, she had not yet started school while in the Mother’s care. IYD was to start pre-kindergarten in September 2020, however, at the time of the apprehension in August 2020, the Mother had not yet registered IYD for school. In my view, this is another example of the Mother not prioritizing the educational needs of her children. When IYD was placed with the Foster Parents, they noticed that she had an aggressive behaviour and foul language. The Foster Parents addressed the IYD’s conduct. IYD was eventually registered at school with the assistance of the Society. According to IYD’s report card dated November 17, 2020, IYD was adapting very well at school, she had an excellent start to the school year and there were no reports of inappropriate behaviour.

[124] With IYD in school, I believe that the Mother’s difficulties would be increased. I find that the degree of risk is too high for the children to be returned to the Mother’s care. I have serious concerns that if the children did return, their educational needs would not be met, in the same manner that has clearly been shown in the past.

Lack of supervision

[125] Valoris and the Society both have justifiable concerns regarding the Mother’s lack of supervision. Historically speaking, AD and MD were apprehended because of serious concerns regarding the lack of supervision. It has continued with the children.

[126] Ms. Parisien-Fisher testified that during a visit with the Mother in October 2017, she acknowledged leaving the children unattended for a period of six hours. The Mother claimed that her phone had died, her vehicle had overheated, and she was stranded in Ottawa.

[127] In a meeting that took place on May 9, 2018, the Mother agreed that leaving the children unattended at a park, several kilometers away, put the them at risk. Moreover, the Mother accepted that not greeting KDWD at the bus stop when he returned home from school, placed him at risk.

[128] Ms. Parisien-Fisher said that the Mother has expressed, on a few occasions, that she was struggling in staying awake during the day. Also, during a meeting on July 24, 2018, the Mother understood that she was delegating too many responsibilities to AD, such as ensuring that the children were on the bus and that lunches had been prepared.

[129] On December 2, 2019, the Mother left the children (three and seven years old at the time) with JG. The children were left unattended by JG in the hallway. The children left JG’s building and wandered to the St-Laurent arena, with no supervision. The police were called.

[130] In May 2020, during an unannounced visit, Ms. Cote attended at the Mother’s home. KDWD answered the door, while the Mother was sleeping. The Mother refused to come to the door and Ms. Cote overheard the Mother calling KDWD a “fucking idiot” and yelling at him.

[131] There were also a few reported instances of lack of supervision during the Mother’s visits. The first incident involved leaving IYD (three years old at the time) in a room at the Society while the Mother tended to KDWD at the toilet. The Mother says that there were no safety issues because she was in the hallway for a few moments. The second incident was at the park where KDWD ran away and the Mother left IYD at the park alone. The Mother claims that IYD was only five to ten meters away and not at risk.

Medical

[132] In August 2019, Ms. Parisien-Fisher sent an email to the Mother, reminding her of a dentist appointment for KDWD because he had a cavity, as well as an optometrist examination for IYD that needed to take place before February 2020.

[133] The Mother took KDWD to see an Ottawa public health dentist in September 2019 who found no cavities.

[134] The Mother did not make an appointment for IYD’s eye examination.

[135] When the children were placed in foster care in August 2020, there were some medical issues with KDWD and IYD, namely:

a. Both children had lice.

b. KDWD was wheezing a lot. He had previously been diagnosed with asthma and required medication. KDWD was taken to see Dr. Samson who found that KDWD’s lungs were quite wheezy. He opined that KDWD’s asthma was not well controlled. He re-prescribed him a puffer and nasal spray.

c. IYD’s four-year immunizations were missed.

[136] KDWD’s wheezing resolved within a couple of weeks because the Foster Parents took the appropriate steps to deal with this health issue.

[137] KDWD was complaining of tooth ache to the Foster Parents. They took him to the dentist. It was determined that he had two cavities, exposed nerve, tooth decay and the teeth had been grinded.

[138] In July 2021, the children were seen by Dr. Samson who opined that there were no concerns regarding their physical health.

[139] KDWD suffers from anxiety. He had a great deal of anxiety when the issue of paternity was put into question. He was struggling in not knowing with certainty his father’s identity. The Father’s refusal to get tested increased KDWD’s anxiety. The Mother acknowledged that KDWD was anxious, and he was dealing with a lot of emotions. I have not heard evidence that the Mother addressed KDWD’s anxiety by way of consulting with a therapist. Rather, it is the Foster Mother that inquired with Dr. Samson in April 2021. Dr. Samson made a referral. KDWD is to start some form of counseling in the Fall of 2021.

[140] The Mother argues that because she is poor, there are deficiencies in the care that she receives. She says that the dentist that KDWD saw through the Ottawa public health was not as good as someone who was paid more fees. She further submits that the children should not be put into extended care because they are poor.

[141] Poverty is not the reason for the interventions. In my opinion, the interventions are due to the Mother’s inability to meet the children’s needs and ensure their safety.

[142] Even if I accept the Mother’s argument that the dentist was not as good, which I don’t because there is no evidence to support this contention, KDWD’s dental condition worsened significantly during the year that he was in the Mother’s care. Nothing was done to address KDWD’s important dental issues.

[143] The Mother did not prioritize the children’s medical needs to ensure that they were receiving the minimum check ups and immunization. Luckily, the children’s health issues were minor. Once the Foster Parents tended to the children’s health by having them treated by the appropriate medical professionals, their health issues were resolved.

[144] The evidence convinces me that the Mother was not proactively addressing the children’s medical needs, despite having been prompted by Valoris and the Society.

Housing instability

[145] The Mother has struggled in keeping stable housing for many years.

[146] In December 2017, the Mother was evicted from her home. She did not find a stable home until April 2019. In between, the Mother was couch surfing, residing with friends or family.

[147] On July 27, 2018, a TCA was signed by the Mother, where she agreed to temporarily place the children in the Society’s care, partially because she needed to find stable housing.

[148] Most recently, the Mother was evicted from her home and is currently living in a City of Ottawa shelter, at a motel in the east end. She was not forthcoming with Ms. Cote regarding her new living arrangement. Ms. Cote was told by a worker at the City of Ottawa.

[149] The Mother admitted that during the past five years, she has moved five times.

[150] The Mother has been living in a motel since July 2021. At the time of the trial, she was still residing at this motel with AD and MD. She testified that she was going to apply for a housing allowance (it had not yet been done at the time of her testimony), where the rent would be paid directly to the landlord.

[151] The Mother remained optimistic about renting a home for the four kids. However, if she is not successful, the Mother said that she would get upgraded to a two-bedroom suite in the motel. There was no evidence confirming that such an occurrence would take place.

[152] By the end of the trial, the Mother had not yet secured permanent housing for her family.

[153] The Mother has had, throughout the years, a difficulty in maintaining stable housing. Her current situation is concerning, not only because it provides an uncertain future, but more importantly, I am not convinced that she is prioritizing this issue. I would have expected to hear that the Mother was doing more than she has been to secure stable housing. I am not satisfied with the Mother’s housing plan. The children remain at risk of harm.

Mother’s intermittent drug use

[154] I do not accept the Society’s submission that there is both a risk of physical and emotional harm to the children due to the Mother’s intermittent drug use and its impact on her ability to meet the children’s needs. While there were most definitely some historical concerns in the past regarding the Mother’s use of Percocet, there is insufficient evidence before me to suggest that the Mother is continuing to abuse drugs.

Summary

[155] In sum, for the reasons outlined above, I am satisfied that there is sufficient evidence to find that the children’s basic needs were not met while in the Mother’s care. The Society’s evidence confirms that there is both a risk of physical and emotional harm to the children as a result of chronic absenteeism in school, lack of food and supervision, untreated medical needs and unstable housing.

Disposition on Issue #1

[156] The Society has met its burden demonstrating that the children are in need of protection.

[157] I would however like to address the issue raised by the Mother regarding the August 2020 apprehension and more specifically that the children were apprehended on false information. The Mother submits that, because of AD’s testimony, we now know that the information provided by AD to the Society was inaccurate. I disagree.

[158] AD was asked to testify a few days before her testimony. At age 14, this could not have been easy for her and she was visibly nervous.

[159] I am left with the impression that AD’s testimony is tainted with the sense of regret in calling the Society in August 2020 and wanting to make a right by retracting much of what she said to Ms. Cote. AD has been put in a very difficult situation. AD’s Mother is her best friend and she loves her very much. She is very protective of her Mother.

[160] Other than the drug use that has not been proven by the Society, much of what AD reported to Ms. Cote is consistent with the evidence that has been heard in this trial, including the Father’s violence, the Mother’s pattern of sleeping and leaving the children unsupervised, the siblings taking care of the children, and the lack of food in the home.

[161] AD met with Ms. Cote in early 2021 and she did not provide a retraction of what she said in August 2020. Also, there were times during the cross-examination where she did not recall certain events. Understandably, AD has seen things that are difficult for a young person to process.

[162] I do not believe that the August 2020 apprehension was based on false information. In my view, considering the totality of the evidence presented by the Society, the apprehension was justified to prevent physical and emotional harm to the children.

[163] There were valid concerns regarding the care that the Mother was providing before the apprehension and there are ongoing concerns that put the children at risk.

Issue two: If the children are in need of protection, what Court order is required for their protection and in their best interest?

[164] The Society seeks that the children be placed under Extended Society Care.

[165] The Mother’s plan is that the children remain in her care and that this is in their best interest. She argues that her plan can work, has worked in the past and is working with AD and MD. The Mother submits that there is no reason why her plan will not work in the future.

[166] The evidence before me supports the conclusion that it is in the children’s best interest that they be placed under Extended Society Care. As explained below, Valoris and the Society have made numerous attempts to assist the Mother, but despite these efforts, the Mother has been inconsistent in her ability to protect the children and meet their needs. The Mother has demonstrated an inability to abide by supervision orders, she has failed to maintain proper communication with Valoris and the Society and she has not been fully cooperative. Unfortunately, it is my view that there are no other less disruptive options.

[167] Regarding the Mother’s argument that her plan should work with KDWD and IYD because she has demonstrated that it works with AD and MD, I do not believe that this is an appropriate measure. AD and MD are 14 and 15 years old, respectively. Their needs cannot be compared to the needs of a 5 and 9 year old child. There is a significant age difference which would affect the day to day routine. In my view, KDWD and IYD require a lot more support because of their age, their unique traits, and their needs that differ from one another.

Legal principles

[168] Once the Court finds that the children are in need of protection and it is satisfied that intervention through a Court order is necessary to protect the children in the future, then the Court must make an order under ss. 101 or 102 of the CYFSA.

[169] Pursuant to s. 101(1) of the CYFSA, the following orders may be made, in the children’s best interest: (i) a supervision order placing the children in the care and custody of a parent or another person for 3 to 12 months; (ii) interim society care for a specified period not exceeding 12 months; (iii) extended society care; and (iv) a consecutive order placing the child in the interim society care followed by a supervision order.

[170] In determining an order to make under s. 101(1) of the CYFSA, ss. 101(2)(3) and (4) of the CYFSA provide that the Court shall inquire regarding the society’s efforts in assisting the child before intervention, consider less disruptive alternatives and community placements.

[171] The children’s best interest must be considered in determining which order to make under s. 101(1) of the CYFSA. The relevant factors to consider are set out in s. 74(3) of the CYFSA, including, amongst other things, the children’s wishes and views, their physical, mental and emotional needs/development, the children’s relationships and emotional ties to a parent, sibling or other relatives, and the risk that the children may suffer harm through being removed.

[172] Section 122(1) of the CYFSA provides that the Court shall not make an order for interim society care resulting in a child being in the care and custody of a society for a period exceeding 12 months (if the child is younger than 6 years old) or 24 months (if the child is older than 6 years old).

[173] When a child is found to be in need of protection, the length of time that children are in care is a relevant consideration in the determination of the placement: see Children’s Aid Society of Toronto v. D.S., 2009 CanLII 60090 (Ont. S.C.), at para. 70.

[174] In determining whether a Court order is considered necessary to protect the children 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, at paras. 24-26.

[175] Child protection matters are time sensitive. By using a child-centred approach, good intentions are not enough. The parent’s chance to correct parenting inadequacies must be balanced with the child’s right to appropriate development: see Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557, at paras. 95-96.

[176] The society is obligated to assist a child prior to intervention. Also, there is a reciprocal obligation on the parent to obtain services and take advantage of the opportunities given to them: see C.A.S. Toronto v. L.G., 2015 ONSC 3706, at paras. 8-10, 34.

[177] The best predicator of a future behaviour is a past behaviour: see C.A.S. v. C.T., 2015 ONSC 32, at para. 54.

[178] There must be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety: see Children’s Aid Society of Brockville, Leeds and Grenville v. C., [2001] O.J. No. 1579, at para. 56.

Analysis

The Plans

The Society

[179] The Society’s plan is that the children be placed in the Extended Care of the Society with access to the parents. The plan includes that the children remain together in their present foster placement for the purposes of adoption.

[180] The Society submits that the children’s current foster placement is going well. The children’s educational, physical, and emotional needs are being met and they are thriving in the structured and stable environment. I agree.

[181] The Foster Mother testified. I was very impressed with her testimony. She struck me as a kind, loving and devoted individual who places the children’s interest first. The evidence overwhelmingly supports the conclusion that all the children’s needs are being met. Under the Foster Parents’ care, the children are excelling at school and their physical health is good. The home environment is properly structured with an appropriate routine that is being followed by the children. Emotionally speaking, the Foster Parents are making sure that KDWD obtains the necessary counselling assistance to help him with his emotional issues, such as anxiety.

[182] The Society workers (Ms. Parisien-Fisher, Ms. Cote, Ms. Jacques, Ms. Rochon) had the opportunity to observe the children with the Foster Parents. They all confirm that the children have a good relationship with the Foster Parents. The children are comfortable with the Foster Parents.

The Mother’s Plan

[183] In the Mother’s plan dated September 14, 2020, she wrote that the children should be cared for by the Mother. The children were healthy, safe, and happy and that there was no reason to interfere in the care of her children. At trial, the Mother submits that the children should be returned to her care and that a supervision order is required in the circumstances. Alternatively, if the Court was to find that a supervision order was necessary, the Mother argues that she has gone through a supervision order and she has demonstrated what needs to be done.

Support Network

[184] The Mother testified that she has a support network to assist her. The people that will assist her are: ID, AW, CDM, and JG.

[185] In the Mother’s original plan, she had noted YD as an individual that would support the plan. Ms. Cote testified that she has not had any contact with YD.

[186] The Mother did not mention in her testimony that YD would be a support to her. There is no evidence regarding the reason that YD is no longer supporting the Mother’s plan.

[187] The Mother’s first support is her sister, ID. The Mother said that her relationship with ID broke down after the death of the maternal grandmother. During the past two months, the relationship is growing stronger. The Mother says that they see each other approximately five times per week. The Mother testified that ID would be able to assist her financially and emotionally.

[188] The Mother’s second support is her friend, AW. She met AW approximately four or five years ago. AW has two children, one of whom is best friends with KDWD. AW has assisted the Mother financially as well as being an emotional friend. The Mother describes AW as a person that has good resources to assist her.

[189] The Mother’s third support is from another friend named CDM. CDM assisted the Mother by providing transportation and access to a vehicle. The Mother said that CDM has been a great help because she has taken the children to school and appointments.

[190] The Mother’s fourth support is JG. She is very close to JG. The Mother has stayed at JG’s home on a few occasions. JG takes the children to school and provides food for the family.

[191] In my opinion, the Mother requires a lot of support to properly parent the children independently. Regrettably, her proposed support network is not sufficient to ensure that the children remain safe and all their needs are met.

[192] The Mother’s sister, ID, did not testify, and I question whether ID is willing to act as a support. Even if ID is a willing participant, I do not have any confidence that ID can support the Mother or that she has the capacity for doing so. ID has 5 children of her own, she is unemployed and has financial difficulties. Further, the Mother and ID have only recently reconciled, after being distant for several years. In the absence of evidence from ID, I am not convinced that the relationship between the Mother and ID is stable to the point of ID being able to offer the support that is needed by the Mother.

[193] AW testified at the trial. AW is unemployed, and it is questionable that she could assist the Mother financially. AW was candid regarding her own involvement with the Society and her two kids. AW confirmed that the file with the Society remains open and that she has restrictions on contact with her kids. Until recently, access was supervised. AW had some struggles with a cocaine addiction. She claimed that she has been sober since October 2019, yet the Father testified that she relapsed a few months ago. Speaking of the Father, AW and the Father are close friends. He has resided at her apartment on a few occasions. Despite her best intentions, AW’s close relationship with the Father leads me to conclude that she would not be an appropriate support to ensure that the children are safe.

[194] The evidence regarding CDM is that she has or will be moving to Brockville. CDM’s ability of assisting with transportation, as suggested by the Mother, has greatly diminished.

[195] The last support is JG and he appears to be the person that helps her the most. He testified at trial. I found his evidence to be unreliable and I would not qualify him as a good support for the Mother and children. JG testified that he did not view KDWD’s absenteeism from school as a concern. JG was responsible for bringing the kids to school 2-3 times per week.

[196] JG was the responsible adult that permitted the children to wander off to St. Laurent arena, without any supervision, in early December 2019. This incident did not appear to be concerning to JG. He minimized the risk to the children, stating that “nothing happened”.

[197] Then, what I find even more unbelievable is what occurred after the children were found. The police officers and JG returned to the Mother’s home with the children. It was determined that the Mother could not care for the children that evening because she was ill and she had to be transported to the hospital. According to the police occurrence report, the police officer asked JG if they could return with him, to which he responded: “no way I’m done with trying to help you and your kids figure it out”, referring to the Mother and the children. JG denies saying this. JG claims that the police officer would have told him to go home. I find JG’s evidence incredible.

[198] JG claims that he does not know the Father, which I also find unbelievable, given that JG has been involved with the Mother most of her life, seeing her on an almost daily basis.

[199] JG also testified that he would not report any concerns to the Society, unless something is “real bad” and then he would call the police. I agree with the Society’s submissions that JG’s response does not provide any reassurance that he would report a concern or even be able to identify a concern if one exists.

[200] I find that JG has exercised poor judgment and he lacks insight into what is in the best interest of the children, making him an unsuitable support for the Mother.

[201] The Mother suggests that AD and MD could help the Mother. Although the suggestion is not parentification, I fear that, based on the Mother’s history, this may very well be the outcome. This additional strain on AD and MD would not be healthy for them, and in any event, it would be grossly insufficient for the children.

Housing

[202] I have previously commented on the Mother’s plan for housing, in that, the Mother does not have suitable housing to accommodate the children.

Supervision orders

[203] The Society says that supervision orders have previously been attempted with the family. The most recent supervision order was in place from September 2019 until August 2020. The Society claims that the conditions were not followed, and it was difficult for the Society to continue to assess the children while in the Mother’s care.

[204] Conversely, the Mother says that the history demonstrates that the return of the children through a supervision order was successful. Also, the Mother submits that the terms of the important aspect of the supervision order were being followed.

[205] On September 19, 2019, Charbonneau J. ordered that the children be placed in the care and custody of the Mother, subject to supervision by Valoris and the Society, on the following conditions:

a. The Society will have access to the respective residences of the parents, with or without prior notice.

b. The Society will have access to the children at all times, with or without prior notice. The Society can also meet the children in private.

c. The parents must cooperate with the Society, meet the worker and answer his/her calls.

d. The Mother will ensure the children’s basic, medical, and schooling needs are met.

e. The Mother will properly supervise her children at all times.

f. The Mother will ensure that the children attend school on a regular basis and consistently throughout the school year.

g. The Mother will prepare nutritious meals and snacks for the children, and ensure that they always have enough food.

h. The Mother will improve her parenting skills.

i. The Mother will offer a consistent and structured routine to the children.

j. The Mother will receive therapeutic assistance to help her deal with past trauma and current stressors.

k. The Mother will not use any drugs or consume excessive alcohol.

l. The Mother will not expose the children to persons with criminal involvement or drug users.

m. The Mother will not allow any contacts between the children and the Father unless pre-approved by the Society.

n. The parents will prioritize their relationship with the children, and must not expose them to their conflicts or domestic violence.

o. The mother will offer a clean and safe home. She will also ensure residential stability.

p. The parents will allow the Society to contact the professionals involved with the family, including the children’s teachers, and will allow these professionals to contact the Society.

[206] The Society is correct in saying that the Mother has breached the conditions of the supervision order. Perhaps not all the conditions, but the majority. Using the same paragraph indicators as found in the supervision order, the following is a summary of the breaches:

a. Ms. Cote was not always able to access the Mother’s home because of the Mother’s refusal to enter.

b. When the Mother refused access to her home, Ms. Cote was unable to meet with the children.

c. Both Ms. Cote and Ms. Parisien-Fisher testified at length regarding the difficulties they experienced in reaching the Mother. It was a recurring theme. Both workers provided telephones to the Mother. The Mother claims that the telephones were either not functioning or she did not have a data plan, making it difficult to communicate with the Mother. I cannot accept the Mother’s evidence, especially in light of the evidence given by JG and AW who both testified that they would communicate with the Mother on a daily basis and never had a problem reaching her. I find that the Mother chose to limit the communication with Valoris and the Society.

d. The Mother did not ensure that the children’s basic, medical, and educational needs were met. The details have already been described earlier in this decision.

e. The Mother did not properly supervise the children, as explained earlier.

f. KDWD missed almost 50 days of school. He did not attend school virtually in 2020, despite the school’s willingness to help the Mother.

g. The Mother did not properly feed her children. The school was forced to provide lunches to KDWD on several occasions because he did not have sufficient food.

h. This is a difficult condition to assess but likely a breach. The Mother refused parenting courses or was not open to suggestions for support. Based upon the struggles that the children were having, it appears that the Mother did not improve her parenting skills.

i. A consistent and structured routine was not available to the children. KDWD would have difficulty waking in the morning or staying awake at school.

j. The Mother has completed a program for domestic violence. It was however challenging for the Mother to access the services being offered to her.

k. There is insufficient evidence to conclude that the Mother was consuming drugs and/or alcohol.

l. The children were exposed to the Father, who had a significant criminal record.

m. Although denied by the Mother, the Father previously told Ms. Cote that he resided with the Mother in March and April 2020. During his testimony, he said that he does not remember saying that to Ms. Cote, although he did admit to staying with the Mother a few times.

n. There were a few instances where the children were exposed to the conflict between the Father and the Mother.

o. The Mother’s residential stability occurred in or around April 2019.

p. The Society was provided the appropriate consents to contact the professionals.

[207] The Society amended its Plan of Care in August 2020. In reviewing the conditions that are set out in this plan, some of the same breaches persisted. For example, the Mother continued to refuse the Society access to her home. The Mother failed to advise the Society that she had been evicted from her apartment and living at a motel. Housing is unstable. The Mother refused to have a support network meeting during the summer of 2021, saying that one was not required. The Mother was not cooperating consistently with the Society. The Mother lifted the no contact order with the Father.

[208] The Mother denied that following the conditions was difficult. But clearly, it was difficult for her because she breached many of the conditions.

[209] When asked to describe the biggest challenge in following the conditions, she responded as follows: (a) keeping the Father away; (b) getting KDWD to school; and (c) staying in contact with the Society.

[210] The Mother said that she would do things differently to address these challenges. First, the Father’s access to the children would have to be through the Society. Second, she would make sure to live in the catchment area of the school to make sure that transportation is provided and ensure that the children get there on time. Third, she now has a phone number that she has kept for over one year. Even if she does not have sufficient data, she could access wifi to access the phone.

[211] The Father said that if the children are returned to the Mother’s care, he would help her financially.

[212] The Society submits that these proposed changes are insufficient. I agree. The Mother has lifted the no contact order with the Father. By removing this condition, I find that she is facilitating the contact with the Father. She is not properly addressing her first challenge.

[213] Regarding the school attendances, the problems go far beyond the transportation. The Mother has previously resided close to the school and KDWD’s absenteeism remained. The problem is the Mother’s incapability of establishing a routine and structure for the children.

[214] With the Mother’s new part-time employment as a painter where she must leave around 6:30 a.m. (her boss picks her up), if the children are returned to her care, they will be left on their own with AD and MD, to prepare for school. The lack of routine and structure will, in my view, be higher. The Mother claims that she will change her shift to 8:00 a.m. but there was no evidence corroborating that the Mother’s boss would also change his hours to pick up the Mother.

[215] In terms of the enhanced communication that the Mother proposes, I do not believe that the Mother’s suggested changes addresses the problem, namely that the Mother was deliberately avoiding Valoris and the Society. The Mother’s difficulties in communicating with Valoris and the Society was not due to her limited means of communication. The Mother’s evidence regarding her new phone number will not, in my view, alter her habits.

[216] The Father testified that, in support of the Mother’s plan, he would also make changes.

[217] The Father said that he would provide financial assistance to the Mother. His commitment of helping the Mother financially is not credible. During the past nine years, his contributions have been minimal. Also, it is unknown as to when the Father will be released from jail. During the trial, it was determined that the Father had been charged in or around the latter part of August 2021, with four counts of trafficking in cocaine and one count of proceeds of crime. The Father claims that he was not aware of these charges, which is also incredible.

[218] In any event, the concerns regarding the Mother’s inability to meet the children’s needs go beyond her financial situation.

[219] The Father justified his previous behaviour towards the Mother by saying that he thought she was withholding the children from him. He denies having been served with the Court documents regarding the supervision order. He denies having seen the conditions on access. He claims that he now knows that the Society was imposing the restrictions of no contact, not the Mother. He said that if he is required to go through the Society to see his children, he will follow those conditions. He stated during his testimony that he would no longer impose himself upon the Mother. He would not attend the Mother’s home any time he wants.

[220] Ms. Cote testified that she met with the Father in April 2020 and provided him with a copy of the documents showing that access to the children had to go through the Society. I accept her evidence in this regard. The Father was aware of these conditions, yet he chose to ignore them.

[221] Although the Father has completed some courses on parenting and anger management, I am not convinced that his commitment to change is reliable. Time and time again, he has demonstrated a disregard of the Mother’s wishes. He admitted that he had difficulties in following conditions. The Father’s inappropriate behaviours are long standing, and his testimony has not satisfied me that his conduct will substantially change. Considering the history between the Mother and Father, I find it worrisome for the children that they have now resumed contact.

[222] Having regard to the evidence before me, I believe that the Mother’s past behaviour is a good predictor of the future. The Mother’s plan is not in the best interest of the children.

Placement with a community member

[223] The Society worked with the Mother and Father to identify kinship options. CDM was suggested and an assessment was completed in March 2021. CDM was not approved.

[224] In July 2021, Ms. Cote asked the Mother if she wished to put forward another kinship plan. The Mother did not present a kinship plan.

[225] Ms. Cote attempted to reach out to the Father to discuss the same thing, but she was unable to meet with him.

Society’s efforts

[226] The Society argues that there have been numerous attempts made by Valoris and the Society over several years to assist the Mother with the parenting of MD, AD, KDWD and IYD. Despite this assistance, protection concerns remain regarding the lack of supervision, the Mother’s ability to meet the children’s needs, and the Mother’s ability to protect the children from exposure to domestic violence.

[227] The Mother acknowledges that Valoris provided her with assistance. When it comes to the Society’s efforts, the Mother is highly critical and has stated several times during argument that the Society, and more particularly Ms. Cote, did not provide her with the appropriate assistance.

[228] The Mother says that the reason why she finds herself in this situation is because she is poor. She had inadequate funds and inadequate resources to obtain funds. The Mother claims that the Society should have helped the Mother in getting money, support for welfare, the child tax benefit, or even direct the Mother to get child support from the Father and JA. During argument, the Mother goes as far to say that the Society complained that the Mother was poor.

[229] I disagree with the Mother’s position. Although the Mother faced many struggles, including the lack of finances, the Mother nonetheless had the responsibility as a parent to ensure that she meets all the children’s needs. Valoris and the Society tried to support the Mother. On several occasions, they went beyond what their role and it was still insufficient for the Mother to be able to meet the children’s needs. In my view, the evidence clearly reveals that Valoris and the Society provided adequate assistance to the Mother and they diligently carried out their statutory mandate.

[230] The TCA that was signed by the Mother and Father on July 27, 2018 stated that they were unable to care adequately for their children, for the following reasons: “At this time, there is a risk for the children’s safety and well-being in the care of their parents. The children are young and vulnerable. Despite efforts, Kinship care is not a possibility at this time. [The Mother] agrees to temporarily place the children in the Society’s care in order to seek services to address her drug addiction and take the necessary steps to find housing and provide a safe and structured environment for her children.”

[231] Three TCA extensions were signed by the Mother, the last being on June 12, 2019. The Mother acknowledged that she signed the TCA extensions but claims that she did not read them. She denies that the issues outlined in the first TCA, such as her drug addiction or the instable housing, were still in existence when she executed the last TCA extension.

[232] Ms. Parisien-Fisher first got involved in or around 2017 because of a referral regarding MD missing a lot of school and that there was conflict within the home. During the initial visit, Ms. Parisien-Fisher observed that the Mother had many challenges, including the maternal grandmother’s health issues, difficulty staying awake during the day, maintaining morning and evening routines, home eviction, and the elder siblings taking care of the children.

[233] Ms. Parisien-Fisher testified that when the first TCA was signed, she wanted to set up the Mother for success. During the meetings, they would work on the goals of finding stable housing, improving her parenting skills, establish a structured routine and work on the Mother’s sobriety.

[234] Ms. Cote’s involvement commenced in the Fall of 2019. She wanted to work cooperatively with the family and not take an authoritative approach with the intervention. Like Ms. Parisien-Fisher, Ms. Cote focused on the goals that had been previously established, with a view of returning and keeping the children to the Mother’s care.

[235] In my view, the efforts made by Valoris and the Society were significant. They took efforts to preserve the children’s placement with the Mother. Both organizations would attempt to reach out to the Mother regularly but contact and communication with the Mother was difficult. The efforts included the following:

Valoris

a. Provided parenting-skills support prior to the Mother’s access to work on structure and routine during her visits.

b. Assisted the Mother with registering the children for school transportation and completing the online applications for the Mother.

c. Provided food vouchers, assisted with obtaining warm clothing for the children, assisted the mother in applying for subsidized daycare. Ms. Parisien-Fisher would frequently remind the Mother when to place her food bank order and remind the Mother of the children’s activities at school.

d. Offered the Mother resources for drug abuse treatment.

e. Referred the Mother to bereavement services.

f. Referred the Mother and Father to couples counselling in or around September 2018, but they did not follow through.

g. Engaged the Mother in services and safety planning for herself following the domestic violence allegations, but the Mother was not interested.

h. Assisted the Mother in developing a safety plan for the children, in that the Mother was not to leave the children unsupervised.

i. Assisted with organizing a Family Group Conference in May 2018.

j. Advocated, through Ms. Parisien-Fisher, for the Mother with her Ontario Works worker.

k. Recommended family group counselling.

l. Assisted the Mother with the application for subsidized housing, however the Mother would not apply. Also prepared a letter for the Mother in December 2018.

m. Organized a Family conference meeting in May 2019 to develop a reintegration plan.

n. Provided the Mother with a telephone as well as a replacement telephone.

o. Reminded the Mother of the children’s medical appointments.

p. Engaged the parents in permanency planning meetings but not all of them were attended by the parents.

q. Registered the children for school and daycare.

The Society

a. Recommended parenting programs. Ms. Cote recommended these programs, but the Mother responded that she did not need it.

b. Provided recommendations to the Mother regarding food banks.

c. Encouraged the Mother repeatedly to complete counselling for victims of abused women but the Mother advised that she did not want group counselling, only one on one counselling. It is noted that the Mother’s individual counselling will only start in the Fall of 2021.

d. Developed, tweaked, and reviewed the Mother’s safety plan repeatedly because it was not working for the Mother. The Father was attending at the Mother’s home.

e. Attempted to problem solve with the Mother regarding KDWD’s problematic and chronic absenteeism at school, including seeking assistance from the Mother’s supports, such as JG.

f. Meeting with the Mother monthly to discuss the Society concerns.

g. Reminded the Mother of upcoming appointments.

h. Assisted the Mother with the Canadian Revenue Agency regarding the child tax benefit.

i. Organized a Support Network Meeting in March 2020 to develop a safety plan and address KDWD’s attendance issues at school.

j. Offered further Support Network Meetings in July 2021 but these were declined by the Mother.

k. Repeatedly attempted to reach out to the Mother, either by telephone or in person, to provide support to the Mother.

[236] I find that both Valoris and the Society were constantly reaching out to the Mother to support her and connect her with the appropriate services. Although Ms. Parisien-Fisher may have provided different services than Ms. Cote, I believe that both these organizations made significant efforts to assist the Mother and the children before the interventions.

[237] I cannot accept the Mother’s submissions that the Society should have provided more assistance to the Mother. The evidence is that the Mother was not engaging with the Society, she was not following through and she was less cooperative. As recently as this past summer, the Mother withheld information from Ms. Cote regarding her housing arrangements. More importantly, after having been located at the motel, the Mother insisted that she still had her apartment in Vanier, when that was not the case. It is one example, amongst many, where the Mother has not been entirely transparent with the Society.

Best interest of the children

[238] In making the appropriate disposition, I am required to consider the factors set out in s. 74(3) of the CYFSA.

Child’s views and wishes

[239] A child’s views and preferences are at the forefront of the best interest analysis. Due weight is to be given based upon the age and maturity of the child.

[240] The Mother says that KDWD’s views are unequivocal. She argues that the child’s views and preferences have been given additional weight under the 2017 CYFSA amendments.

[241] KDWD wants to return to the Mother’s care. KDWD is very attached to his Mother, he is protective of her and he loves her. He has expressed worry about her. He has been consistent in his views.

[242] KDWD is nine years old. Justifiably, he did not testify. That makes it more difficult to give “due weight” to KDWD’s views and wishes. Although I heard that KDWD is smart and he asks a lot of questions regarding “adult” issues, there is not a lot of evidence before me that speaks to KDWD’s level of maturity. KDWD suffers from anxiety as well. A lot of things make him anxious, which is understandable given his past experiences. All of this makes it difficult to determine with any precision the level of weight that should be given to KDWD’s views. I have nonetheless considered KDWD’s views in my determination of the issues in this case.

[243] That said, I must weigh KDWD’s preference with the history that has been demonstrated where there have been some significant issues regarding the Mother’s inability to meet KDWD’s educational, emotional and physical needs. It is true that one cannot compare the family bond that may exist with a family to a foster care placement, however, here, there is an immediate need for permanency.

Child’s physical, mental and emotional needs and level of development

[244] The Mother submits that she had no difficulty ensuring the physical, mental, and emotional needs of the children and they have developed in a way that is within the norm.

[245] While the children appear to properly be developing, it is to be noted that they have been in foster care since August 2020. The Foster Parents have ensured that they regularly attend school, are engaged in appropriate activities, and are checked by medical professionals.

[246] When the children were in care with the Mother, the evidence shows that the children’s needs were not all being met and that the Mother’s supports were insufficient to ensure that the children were not at risk. The children require close and regular supervision, which is not something that could be provided by the Mother.

Cultural heritage and background

[247] I do not find this factor to be of any significance. The Mother and Foster Parents are both bilingual. The children have always attended French school and continue to do so. There are no real differing traditions or cultural issues that need to be considered.

Parental relationship and emotional ties

[248] It is unquestionable that having a positive relationship with a parent is important in the development of a child. I recognize the impact that a foster placement may have on the emotional development of a child. Likewise, if the needs of a child are not being met, his/her emotional development can also be impacted.

[249] I do not doubt that KDWD and IYD have emotional ties to the Mother and the siblings. However, I do not believe that the Mother is able to offer a secure and safe environment to these children. In my view, if the children are returned to the Mother, they risk emotional harm, and in turn, I believe that it would impact their emotional development. The Foster Parents can offer a safe and loving environment to the children, free from the chaotic lifestyle and domestic violence.

[250] The children can maintain and preserve family relationships through access orders. The Foster Parents have clearly demonstrated a willingness to continue the children’s relationship with their family members.

Continuity in the child’s care

[251] The children’s lives have been significantly disrupted.

[252] I disagree with the Mother’s suggestion that the disruption would default to the Society. The disruption is entirely due to the Mother’s inability to ensure the children’s safety, to ensure that they have a stable and structured routine, and to ensure that all their needs have been met.

[253] I also disagree with the Mother’s argument that it would be speculative that there would be a disruption if the children were returned home. To reiterate, the past is a good indicator of the future.

[254] The children require safety and stability. Returning them to their Mother would be a further disruption that would adversely affect the children’s development.

Merits of the plans

[255] The Mother’s plan is, with regret, not a viable plan for these children. The issues and concerns that have previously been identified by Valoris and the Society continue. Her plan does not offer a safe and stable environment for the children.

[256] I am concerned with the Mother’s current situation and her ability to manage the demands of caring for herself, the children, AD and MD.

[257] The plan proposed by the Society is meritorious. Not only are the children doing well in the care of the Foster Parents but, it is the plan of care that is best suited to meet all the children’s physical, mental, educational, and emotional needs. This plan recognizes the importance of stability and permanency.

[258] The Foster Parents have expressed that they would like to adopt the children. The children appear to have developed a bond with the Foster Parents. The evidence confirms that this foster placement is going well and that the children’s needs would be met.

[259] I find that the Society’s plan will address many of the risks that justified the finding that the children remain in need of protection.

The effects of delay

[260] None of the parties wish to delay the disposition. The children, and more particularly KDWD, are anxiously awaiting the outcome of this trial.

[261] The children require and deserve permanency.

Risk of harm

[262] The Mother argues that, if the children are returned to her care, the risk of harm is low.

[263] In my view, there is real and substantial risk of harm if the children are returned to the care of the Mother. She has inadequately addressed the protection concerns and I am not satisfied that the Mother is able to bring the necessary changes to address these concerns.

[264] I am not convinced that the Mother recognizes the significant risk that domestic violence can pose to the children. The evidence shows that the Mother cannot follow through on avoiding the risk. Any commitments that the Mother would make to avoid this risk, is not, regrettably, credible. The Mother has a very strong bond with the Father that she simply cannot break, and she wishes to continue and maintain the relationship with him. Without a change in this relationship with the Father, I believe that the children remain at risk while they are in the Mother’s care and control.

[265] In addition, I find that the risk would remain even if the children were returned under a supervision order. The evidence has established the Mother’s inability to follow conditions.

[266] The degree of risk remains high. The Mother has shown that she is not overly cooperative with the various professional institutions such as Valoris, the Society, and the educational professionals. The lack of communication and cooperation makes it difficult to continuously assess the risk posed to the children.

Disposition on Issue #2

[267] It is with great regret that I must find that the only decision that is in the best interest of the children is that they be placed in Extended Society Care.

Issue three: If the children are placed in the Extended Society Care, is access between the children and Mother, Father, and siblings meaningful and beneficial?

[268] It is not disputed that the children have a strong attachment to the Mother and the siblings. All parties acknowledge that some form of access with the Mother and the siblings is in the best interest of KDWD and IYD. The question is one of frequency.

Legal principles

[269] Once an order for Extended Society Care is made, s. 105(5) of the CYFSA provides that the Court cannot make an access order unless it is in the best interest of the children.

[270] In addition to the best interest factors set out in s. 74(3) of the CYFSA, the Court shall consider two additional criteria found at s. 105(6) of the CYFSA: (i) whether the relationship is beneficial and meaningful to the child, and (ii) whether the ordered access will impair the child’s future opportunities for adoption.

[271] Section 105(7) of the CYFSA requires the Court to specify who is an access holder and who is an access recipient.

[272] An access order made after Extended Society Care is different than an access order that was made before: see Children’s Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347, 35 R.F.L. (7th) 482, at para. 90.

[273] A fine balance needs to be struck when ordering access following an Extended Society Care order, to allow mental/emotional transition towards permanency by the child in the new adoptive home: see Children’s Aid Society of Ottawa v. J.B., 2017 ONSC 1194, at para. 439.

Analysis

Access with the Mother

[274] The Society proposes that the Mother’s access be limited to six (6) times per year and that the access be supervised by the Society or an agreed-upon third party, unless otherwise agreed by the Society and the Mother.

[275] The Mother argues that six (6) visits per year is inadequate. She proposes 12 visits per year.

[276] The Society led evidence demonstrating that the structure of the visits with the children was a challenge. The Society is concerned that the lack of appropriate structure could translate into the home.

[277] Mr. Provonost testified that the Mother participated well in the visits. He observed that she was caring towards the children, she was a good listener, she attended consistently, and she engaged in the parental work that was needed to be done. Mr. Provonost suggested that the Mother needed support in organizing her visits and, at times, he was required to intervene.

[278] Ms. Jacques observed that when the Mother did not have structure in the activity that was organized for the visit, it did not go as well, such that there were more arguments between the children. Ms. Jacques said that the Mother struggled with consistently applying consequences for the children’s inappropriate behaviours.

[279] The Society says that attendance at the visits has been challenging for the Mother. From September 1, 2020 to September 2, 2021, Ms. Jacques supervised 83 visits with the Mother. The Mother cancelled 14 visits.

[280] The Mother disagrees with the workers’ interpretation of the visits. She says that the interactions with the children were good and that there were no concerning behaviours. She argues that Valoris and the Society are nit picking, trying to find fault with the Mother.

[281] I find that some of concerns addressed by the Society are valid. The lack of routine and structure is not new to the Mother. She has struggled with these issues for years. Regarding applying the required consequence during visits, while there is some merit in the workers’ observations, I can certainly appreciate that it is difficult to carry out the consequences when her time is limited. Overall, while the Mother needs to continue improving her parenting skills, I am of the opinion that the Mother’s visits were acceptable and positive for the children.

[282] I believe that maintaining a Mother-child relationship is in the best interest of the children, including those criteria set out in s. 105(6) of the CYFSA. The Foster Parents have been supportive of the visits and I believe that they would be willing to facilitate contact if required. In the circumstances, I find that the Mother’s proposal of 12 visits per year is in the children’s best interest. The children and Mother shall be the access holders.

Access with the siblings

[283] I accept the evidence that the siblings and children are close to one another. I find that it is very important that this bond continue and not be broken. The siblings and children should have continuing access to one another.

[284] The Society suggest that the siblings can attend the visits with the Mother. In addition, the Society proposes that there be an order for telephone access.

[285] The Mother proposes that the siblings and children see each other every two weeks, along with telephone contact, at their discretion.

[286] In my view, telephone and electronic contact along with accompanying their Mother to the monthly visit, will ensure that the siblings and the children continue to maintain their existing relationship and build upon it.

[287] The children and the siblings shall be the access holders.

Access with the Father

[288] The Society seeks an order for the Father to be a minimum of two (2) times per year. The access shall be supervised by the Society or an agreed-upon third party unless otherwise agreed by the Society and the Father.

[289] The Father submits that once he is released from jail, his access should be once per week, and that the length and supervision can be determined by the Society.

[290] Mr. Provonost was involved with the family between August 2018 and July 2019. During this time, the Father attended 8 of 17 possible visits. Mr. Provonost confirmed that during the visits, he was loving and attentive to the children.

[291] Ms. Jacques testified that from September 1, 2020 to September 2, 2021, 40 visits had been scheduled with the Father, 12 of which were missed. He was incarcerated between April and July 2021.

[292] On March 23, 2021, the Father completed a parenting course called “Just for Dads….the nuts and bolts of parenting”. He explained that this course has taught him a lot, especially when the children are behaving a certain way. He has also successfully completed the anger management course through the John Howard Society.

[293] The Father said that he did not have enough access with the children. When he did see the children, they were happy to see him. IYD wanted to leave with the Father. In terms of KDWD, at first, he was not happy but that changed over time. KDWD started to be happy with him. The Father does not have the impression that KDWD is afraid of him.

[294] It concerns me that the Father does not acknowledge that KDWD fears him. Despite KDWD’s expression that he does not want to visit with the Father, he nonetheless asks to see the children once per week. I find that there is a disconnect.

[295] In my view, the Father will need to make demonstrably real effort to rebuild the relationship that is broken between the Father and KDWD. Regarding IYD, her memory of her Father is associated with his violent behaviour. As recent as April 29, 2021, she recalls an incident of domestic violence when the Father aggressively attempted to take the Mother’s purse. In these circumstances, permitting the level of visits that is requested by the Father is not in line with the evidence that has been presented at trial.

[296] I believe that the Society’s request for a minimum of two (2) visits per year is in the best interest of the children. The children and the Father shall be the access holders.

Disposition on issue #3

[297] I find that it is in the best interest of the children that they maintain a relationship with the Mother and the siblings. The Mother and siblings shall visit the children 12 times per year. The siblings shall have telephone and electronic access to the children. The Father is aware that his conduct needs to change, and I hope that he will do so, in the interest of his children. The Father shall visit the children at a minimum of twice per year.

Conclusion

[298] For the reasons set out in this decision, I make the following orders:

a. KDWD and IYD continue to be in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii) and 74(2)(h).

b. KDWD and IYD shall be placed in Extended Society Care.

c. The Mother shall have access 12 times per year. The time duration of these visits shall be two (2) hours. The access shall be supervised by the Society or an agreed-upon third party unless otherwise agreed by the Society and the Mother. KDWD, IYD and the Mother shall be the access holders.

d. AD and MD may attend the visits with their Mother and shall have telephone and electronic access, as per the children’s wishes. KDWD, IYD, AD and MD shall be the access holders.

e. The Father shall have access at a minimum of two (2) times per year. The time duration of these visits shall be two (2) hours. The access shall be supervised by the Society or an agreed-upon third party unless otherwise agreed by the Society and the Father. KDWD, IYD and the Father shall be the access holders.

M. Smith J

Released: November 1, 2021

COURT FILE NO.: FC-06-232-6

DATE: 2021/11/01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of Ottawa Applicant

– and –

K.D. Respondent

A.D. Respondent

REASONS FOR JUDGMENT

M. Smith J

Released: November 1, 2021