WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: 119/19 (Kingston)

DATE: 20211220

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT

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

AND IN THE MATTER OF A.E.L.-D. (DOB […], 2018)

BETWEEN:

Family and Children’s Services of Frontenac, Lennox and Addington

Applicant

– and –

E.A.L. and J.K.J.D.

Respondents

Ms. Ayana C. Hutchinson, for the Applicant Children’s Aid Society

Mr. Stephen Zap, for the Respondent E.A.L.

J.K.J.D., Self-Represented

HEARD: November 19, 22, 23, 24, 25 and 26, 2021, at Kingston (by videoconference)

REASONS FOR JUDGMENT

TROUSDALE, J.

[1] This matter was a six day trial to determine whether there should be an order that the almost three year old child should be returned to the care of the mother E.A.L. (herein “the mother”) subject to the supervision of Family and Children’s Services of Frontenac, Lennox and Addington (herein “the Society”) with access to the father J.K.J.D. (herein the “father”) as determined by the Society, and with access to the maternal aunt L.M. and L.M.’s partner B.M., or whether the child should be placed in the custody of the maternal aunt, L.M. and L.M.’s partner B.M. with supervised access to the mother and the father.

BACKGROUND

[2] The child, A.E.L.-D. whom I will refer to as “A” herein, is the biological child of E.A.L. and J.K.J.D. (herein “the parents”). The mother is now 29 years of age. The father is now 21 years of age. “A” was born on […], 2018. “A” is the second child born to the parents, with the older sibling whom I will refer to as “I” herein, being born on […], 2017.

[3] “I” is the subject of a second Status Review Application with the child “I” being placed with the mother with supervision of the Society and with access at the discretion of the Society. The child “I” has been in the care of the mother throughout “I”’s life.

[4] “A” and “I” are First Nations children through the mother, whose family apparently has some First Nations heritage. The maternal grandmother and the mother advised the Society that the maternal grandmother believed her grandparents were Indigenous. The maternal grandmother and the mother do not have any knowledge or information about their Indigenous family history. Neither the maternal grandmother nor the mother has an identified Band or community.

[5] The Society had been involved on a voluntary basis with this family since the summer of 2017 in assisting the parents for planning regarding the expected birth of “I” in […] 2017.

[6] “A” resided with the parents (or at least the mother) and “I” when she was released from the hospital after her birth. They all resided at the maternal grandmother’s home with the grandmother and two of the mother’s sisters. “A”, like “I”, was a small baby at birth. “A” was not gaining sufficient weight during her first few months, just as “I” had had such issues, and there was concern that “A” was failing to thrive. Her weight was trending below the third percentile. The doctor was concerned with the mother not being able to accurately record the feedings. He found some of the logged entries were not reliable because the feeding volumes were implausible and could not be taken by a baby of this age on many of the logged days.

[7] In mid-February 2019, the Society worker asked the father to leave the maternal grandmother’s home as the mother did not want the father there.

[8] On March 3, 2019, “A” was admitted to hospital for eight days regarding her inadequate weight gain and concerns of failure to thrive. The purpose was to observe the mother feeding the child and to determine whether there were any organic causes for “A”’s failure to gain weight. For the first six days, the mother needed frequent cueing about time and length of feeds for “A”. For the last two days the mother was more independent. The doctor determined that there was no organic cause why “A” was not gaining weight. While “A” was in the hospital she gained 176 grams which was an average of 22 grams per day. The doctor indicated in the hospital records that “A” was a three month old girl with failure to thrive secondary to inadequate caloric intake.

[9] The family doctor and the nurse practitioner for “A” at Kingston Community Health Clinic continued to monitor “A”’s weight and they continued to be concerned that “A” was experiencing slow weight gain. The Society was also concerned with:

(a) the poor state of the mother’s living conditions in the maternal grandmother’s home where the accommodations were crowded and dirty including chronic lice and bedbug issues;

(b) the mother’s apparent developmental delays; and

(c) the mother’s ability to meet the needs of both infants, “I” and “A” when the mother was barely able to meet the needs of the infant “I”.

[10] On March 14, 2019, the Society commenced an Application seeking that “I” and “A” be placed in the care of the mother subject to supervision of the Society on terms and conditions for a period of 12 months. The Society’s concerns set out in the Application were poor parenting role models, developmental delays, difficulty advocating for one’s needs, an overcrowded living situation, and generational involvement with the Society which specifically had led to an understandable reluctance and fear of engaging in services.

[11] The Society also asked for an order pursuant to Section 98 of the Child, Youth and Family Services Act, 2017, (S.O. 2017, Chapter 14 Schedule 1) (herein “the CYFSA”) assessing the capacity of the mother and the father to provide safe and appropriate parenting to the children over the long term, either with the children in their care or during periods of access.

[12] On March 21, 2019, a temporary supervision order was granted placing “I” and “A” in the care of the mother subject to terms and conditions, and access at the discretion of the Society.

[13] On April 8, 2019, the mother attended for an appointment with “A” at the Kingston Community Health Clinic to have “A” weighed. The medical personnel there were concerned about “A”’s lack of weight gain and arranged for the Child Development Clinic at one of the local hospitals to meet with the mother and “A” that afternoon even if the hospital Clinic had to stay open a bit later than the 4:00 p.m. closing time so the mother could get there with “A”. A taxi chit was provided to the mother.

[14] The mother and the maternal grandmother and “I” and “A” took a taxi to the hospital Clinic. The mother’s evidence is that there was no one at the desk of the hospital Clinic when they arrived and she thought it was closed. The mother and the maternal grandmother and “I” and “A” went down to the cafeteria to get something to eat. This is where a Society worker (not the regular worker) found them that afternoon. The Society worker was instructed by her manager to apprehend “A” that day without a warrant due to risks to “A” because of her failure to thrive.

[15] On April 10, 2019, the Society amended its Application regarding “A” and a place of safety hearing was held on April 11, 2019. A temporary without prejudice order was made placing “A” in the temporary care and custody of the Society with access at the discretion of the Society. “A” was placed by the Society with a foster family.

[16] L.M., the maternal aunt of the mother, contacted the Society to see if she and her partner B.M. could be considered as a kin home for “A”. L.M. did so with the support of the mother who thought that the placement would be temporary. A home study was carried out on L.M. and B.M. As the foster family had been advised that the Society was looking to place “A” with kin, the foster family did not wish to continue caring for the child.

[17] On December 6, 2019, “A” was placed in the care of L.M. and B.M. where “A” has resided ever since.

[18] On December 12, 2019, an order was made amending the temporary order granted on April 11, 2019 and a temporary supervision order was made placing “A” in the temporary care and custody of the maternal aunt, L.M. with access at the Society’s discretion. That order has continued in effect to the present time.

[19] Initially, after that placement, the mother would have daytime visits with “A” at the home of L.M. and B.M. Tensions were somewhat high between the mother and her maternal aunt so the mother’s visits with “A” were moved out to a more neutral location, being Métis Nation Ontario (“MNO”).

[20] In early 2020, the mother and “I” moved out of the maternal grandmother’s home and went to a women’s shelter. The mother wished to obtain housing for herself and “I” on her own and ultimately for “A” to return home to the mother. After a couple of weeks, the mother and “I” returned to live in the maternal grandmother’s home.

[21] In June 2020, the mother and “I” moved out of the maternal grandmother’s home into Second Stage Housing.

[22] On July 2, 2020, the mother obtained her own three bedroom townhouse into which she and “I” moved. The mother and “I” have resided there since that time. The evidence of the mother and of several Society workers is that the mother maintains her accommodation in a generally neat condition.

[23] Once the mother obtained her own accommodation, the mother’s supervised visits with “A” took place at the mother’s home. For approximately the last five or six months, the mother has had supervised visits with “A” at her home on a two week rotating schedule as follows:

(1) Week 1 - Thursday and Friday from 10:00 a.m. to 4:00 p.m. on each of those days supervised by the paternal grandmother, M.D.

(2) Week 2 – Thursday from 10:00 a.m. to 4:00 p.m. and Friday from 10:00 a.m. to Sunday at 10:00 a.m. supervised by the mother’s younger sister, P.L.

[24] On September 9, 2020, there was an order made on consent that both “I” and “A” were found to be in need of protection pursuant to sections 74(2)(b) and 74(2)(h) of the CYFSA.

[25] The Section 98 parenting capacity assessment was issued by Dr. R. of the Kingston Family Court Clinic on February 21, 2020.

[26] Between December 2020 and June 2021, various Family Group Conferences and Family Centred Conferences took place. However, no final resolution was reached.

[27] In or about March 2021, the father became re-involved in visiting with “A” during the mother’s visits at home. Prior to that time, the father had initially had some separate visits with “A” at the Society’s office and had attended some visits at MNO. The father did not see “A” for quite a period of time in 2020 and the beginning of 2021. At the father’s visits at the mother’s home, the child “I” would also be present if “I” was not in school, as “I” started school in September 2021.

[28] On August 4, 2021, the mother advised the Society worker that she and the father are expecting a third child, a son, who is due on December 1, 2021. That child’s name will be J.M.P.J.D. The mother’s intention is that the new baby will come home from the hospital with her and continue in her care. The father wishes to be approved by the Society to move into the mother’s home.

[29] In October 2021, the Society commenced a 2nd Amended Application seeking:

(1) That L.M. and B.M., the maternal aunt and her partner have custody of “A” subject to supervised access to “A” by the mother for a minimum of at least 6 hours per week with the need for supervision, location, form, frequency and duration of such access to be at the discretion of L.M. and B.M. subject to any public health limitations. Such access shall be subject to the availability of the mother’s support network to facilitate access.

(2) Such other access as L.M. and B.M and the mother may agree to from time to time.

(3) Access by the father to “A” at the discretion of L.M. and B.M., including the discretion with respect to supervision, duration, location, form, participants and frequency.

POSITIONS OF THE PARTIES

Position of the Society

[30] The Society’s position is that it is in the best interests of “A” that there be an order that the maternal aunt L.M. and her partner B.M. have custody of “A”, as “A” has been living in a stable placement with them for two years. The Society argues that to move the child from that stable placement to a potentially unstable placement with the mother would be detrimental to the well-being of the child. The Society’s concerns are that the mother, on the evidence, had difficulties caring for “I” as an infant, and caring for “A” as an infant, to the extent that “A” was removed from the mother’s care. The mother found it very difficult to care for both “I” and “A” on her own without any help.

[31] The mother has re-commenced a relationship with the father despite previously stating the father had been controlling and abusive towards her. The mother will be adding a third child, a new infant, to the home in December 2021 which will take up a lot of the mother’s time, attention and effort. The Society is concerned that the mother was previously unable to handle the care of two young children and on the evidence of the mother’s past parenting, handling three young children, one of whom is a brand new infant, would be beyond her capabilities. The Society relies on the opinions and recommendations in the Family Court Clinic report, as well as on the evidence of past parenting of the mother. The Society continues to have concerns with the mother’s ability to manage her anxiety and regulate her emotions effectively so that she can provide a calm and conflict-free environment for the children.

[32] The Society recognizes that “A” has developed attachments to her current caregivers, L.M. and B.M., as well as particularly with the mother, with her sister, “I”, and more recently with the father. The Society’s position is that the least disruptive option for “A” is to continue to reside with L.M. and B.M. where she has long-term stability, and to continue to have the same access to the mother, the father, and “I” as she has now. This arrangement would also give “A” access to the new baby to be born in December 2021. The Society’s position is that the mother and father’s access to “A” should be supervised, but that supervision and terms of access should be at the discretion of L.M. and B.M. As the mother continues to access appropriate services from MNO, “A” would continue to be exposed to the culture of her First Nations heritage.

Position of the Mother

[33] The mother’s position is that “A” should be returned to her care and custody with supervision for a period of 6 months. The mother seeks that the Society assess the father and approve of the father moving into the mother’s home as a family to participate with the mother in caring for the three children. Since March 2021, the father has shown a recommitment to the children. The mother submits that it is in “A”’s best interest to grow up in the same household as her siblings.

[34] The mother states that she has support and assistance from her sister, P.L. and to a lesser extent from her mother, B. The mother also has support from the paternal grandmother, M.D., and the paternal great-grandparents. The mother has established relationships and support with various community resources. The mother’s position is that her parenting time with “A” does not need to be supervised.

[35] The mother submits that “A” was prematurely removed from her home. She argues that she has proven that she is able to care full-time for “I” since “I”’s birth, and that she can provide full-time care for “A”. The mother has established appropriate accommodation for herself and “I” since July 2020. The mother’s townhouse has sufficient room to accommodate “A” and the new baby, as well as the father. The mother points out that “I” is now in school full-time. “A” will be going to school full-time in September 2022.

[36] The mother submits that the Family Court Clinic report is very dated and that the evidence shows that the mother’s situation has improved substantially since the time that report was prepared.

[37] The mother acknowledges that “A” has an attachment to L.M. and B.M. and the mother would provide access to L.M. and B.M. similar to the access the mother has been receiving. This would allow “A” to continue her relationship with L.M. and B.M.

Position of the Father

[38] The father’s position is that “A” should be returned to the care and custody of the mother. The father submits that the mother has shown that she is able to care for “I” and “A”. The father would like the current Society worker to assess his parenting abilities by watching him with the children in the mother’s home. He wishes to be approved to move into the mother’s home to assist her in caring for the three children.

[39] The father submits that he has been receiving counselling assistance for himself and that he has recommitted himself to the children. He states that he also has the support of his mother and his maternal grandparents for his plan to help care for the children.

[40] The father wants to be involved with the care of all three of the children. He wants to do the best he can for the children.

ISSUES

(1) Should the child “A” be returned to the care and custody of the mother, subject to the supervision of the Society, with access to the father, and subject to access by the maternal aunt and her partner, or should the child “A” be placed in the custody of the maternal aunt and her partner pursuant to section 102 of the Act, subject to access by the mother and by the father?

(2) If an order is made that “A” be placed in the care and custody of the mother subject to the supervision of the Society and subject to terms and conditions, what should those terms and conditions be, including what access should the father have to “A”, and what access should the maternal aunt and her partner have to “A”?

(3) If an order is made that “A” be placed in the custody of the maternal aunt and her partner, what access should the mother and the father have to “A”?

RELEVANT EVIDENCE AT TRIAL

Positive Aspects Concerning the Mother

[41] The Society acknowledges that the mother has made a number of improvements in her situation since “A” was taken to a place of safety. The positive aspects are:

(1) The mother is a loving mother to “I” and “A”. She is affectionate and “I” and “A” return that affection to the mother. They go to her for comfort. The mother is sincerely concerned about the well-being of her children. She is generally able to re-direct the children when they fight over a toy.

(2) The mother has obtained and maintained housing on her own with “I” for almost a year and a half. The mother has greatly improved her organization of her home. The home is consistently clean and free of hazards, with room for the children to play and explore. “I” appears to be meeting her milestones.

(3) The mother has engaged with community supports to address concerns about the growth and development of “I”. “I” is progressing in her growth, and her motor and speech development are on track.

(4) The mother placed “I” with a school readiness program in the summer of 2021 that enhanced “I”’s transition to school in September 2021. There is no evidence that “I” is not doing well in Junior Kindergarten.

(5) The mother provides healthy snacks and meals for “I” and “A”. She does crafts, singing, reading to the children, and other activities with the children. She takes them for walks to the park.

(6) “I” and “A” love each other and generally get along very well.

(7) The mother attends “A”’s medical appointments.

(8) The mother and her family attended monthly meetings to discuss progress and concerns after “A” was taken to a place of safety. They also participated in Family Group Conferences and Family Centred Conferences.

(9) The mother transports “A” on her own on the bus from the home of L.M. and B.M. and back for the access visits at the mother’s home.

(10) The mother has become much more organized. The mother used to frequently miss appointments or turn up for appointments or access on the wrong day or at the wrong time. This has greatly improved.

(11) The mother has a strong commitment to keep her family all together.

(12) The mother is able to ask for help from community resources.

(13) Even after the mother and the father separated, the mother provided access to the children by the father in public places outside the home, so that the children would have a relationship with the father.

Continuing Protection Concerns

(1) The mother suffers from depression and anxiety. She suffered trauma in her childhood for which she is in receipt of ODSP. There is evidence that the mother has difficulty remembering things. She was unable to remember how often and how much “A” was being fed which led to serious repercussions for “A”. She could not remember whether “I” had had the flu shot or her vaccinations.

(2) The mother appears to have a developmental disability which affects some aspects of her parenting. For example, the mother had a great deal of difficulty in accurately calculating the volume and frequency of “A”’s feedings which significantly impacted “A” when she was an infant. The Society workers’ evidence was that the mother did try to do her best. However, it was sometimes difficult for the mother to put into practice the skills that were being taught to her.

(3) The mother has interpersonal conflict with family members and others including professionals, and she is often upset about statements that they make. Some of these appear to be statements that she has misconstrued. These interpersonal issues consume a great deal of the mother’s energy and attention. The Society is concerned that the mother’s focus on these issues may interfere with her focus on providing care for the children. The mother sometimes has difficulty managing her emotions and her anxiety.

(4) If there are other people present when she is caring for the children, the mother sometimes focuses on talking to those persons rather than focusing on watching the children.

(5) There have been a number of disagreements between the mother and L.M. regarding visits and aspects of “A”’s care.

(6) The mother has not always been forthcoming with the Society on issues such as lice in the home, the presence of Covid symptoms, and her current pregnancy.

(7) Based on the mother’s past parenting history, there are significant concerns about the mother’s ability to meet the needs of “A” while continuing to be responsible for the care of “I”, and the additional challenges of a new baby. The mother has difficulty in focusing on a lot of things at once.

(8) On March 13, 2019, when both “I” and “A” were still in the care of the mother, Dr. G. at the Kingston Community Health Centre, who was the family doctor for “A” at that time, expressed concerns in writing to the Society worker B.L. about the mother’s capacity to parent her two young children. She stated that the mother consistently displayed a lack of understanding of their basic needs. Dr. G. stated that even when the mother appears to understand what her children need to be safe and healthy, she appears to be unable to execute an appropriate plan to ensure this. In addition to the serious concerns regarding feeding of “A”, for example, the mother would leave “A” on the exam table unattended. Dr. G went on to say that she was absolutely certain that if there were a third child, the situation at home would become acutely dangerous and there would be no other choice but to apprehend the children. Dr. G. stated that although the mother expressed the desire to only have two children, the mother had a lack of ability to continue consistency on contraception and has not accepted longer term contraception methods. On a positive note, Dr. G. noted that the mother has accepted help and is motivated to parent the children.

(9) On April 20, 2020, Dr. K., the current family physician for “A” at Kingston Community Health Centre similarly expressed concerns to the Society worker about the mother’s ability to care for more than one child.

(10) What role the father will have in the household is unknown. The mother and the father previously had domestic conflicts between them. The father failed to participate in the Family Court Clinic assessment and the current Society worker has not yet been able to assess the father in the home.

The Father’s Involvement

[42] The father is now 21 years old. He is living in housing for youth. He has a one year lease which can be renewed for up to five years. The father is not employed.

[43] The father states that he has been diagnosed with ADHD. His grandmother suggests that the father has PTSD as he was mistreated by his step-father. On the evidence, throughout the Society’s involvement, the father has had difficulty understanding the Society’s protection concerns. The father has short term memory loss and has anxiety, particularly when dealing with authority figures, which makes it difficult for him to process information. For example, the father was asked what was the name of the parenting course he took. The father said he couldn’t remember. Initially, he said he couldn’t remember the specifics of what the course was about. He then remembered that they had talked about discipline.

[44] When “I” was born in […] 2017, the father was living off and on with his grandparents in Kemptville, sometimes with his mother’s partner in Kingston and sometimes with the mother at the paternal grandmother’s home. The Society’s worker at that time, B.L. testified that the father was not involved with the child. He was either sleeping or going to visit a friend.

[45] In October 2017, the mother had gone to pick up some food at 11:00 p.m. The father was at home caring for “I”, who was on the couch on a pillow while he was watching television. He realized “I” was not breathing. He called the mother’s sister P.L., who started CPR and 911 was called. “I” was in the hospital for 8 days. There was some evidence that suggested “I” had had a virus. As there were concerns expressed regarding the father’s deep sleeping, it was agreed with the Society that “I” would not be left in the care of the father at night.

[46] The father did not participate when the Society’s Enhanced Services worker would come to the home to assist with information regarding household management, feeding and child development.

[47] The evidence is that initially after “A” was placed in the care of the Society, the father had not meaningfully participated in any Society meetings or community service planning in respect of the children. The father had been invited to attend a Family Centred Conference in April, 2019 to discuss planning for access visits which would have included planning to ensure that “A” was being fed at regular intervals during visits, but the father failed to attend the meeting.

[48] In October 2019, the father was confrontational, verbally abusive and threatening with the Society worker, A.D., and talked over her without listening to her. When asked to leave the Society office, the father refused to do so. The Society worker did not personally feel threatened by the father but was concerned that the father had difficulty controlling his emotions.

[49] The father did get frustrated at times, but none of the Society workers ever observed the father being verbally abusive to the mother.

[50] Initially, the father declined to have access visits with “A”. The father then had access visits with “A” at the Society’s office. The father attended some visits but the father failed to appear at some of the access visits scheduled for him without notifying the Society he would not be there. On May 31, 2019, the Society worker B.L. advised the Children’s Services Worker K.L. that there were currently no more visits for the father scheduled as he had not attended any of the visits scheduled for him in May 2019.

[51] The father attended with the mother at “A”’s six month check-up and immunizations at the Kingston Community Health Centre. The father began attending some of the mother’s access visits at playgroups.

[52] The father did not file an Answer and Plan of Care to the original Protection Application nor to the Amended Protection Application, such that he was noted in default. He is not in default regarding the 2nd Amended Application which is before the Court. The father attended perhaps only one of the court appearances during the course of this matter prior to the trial. The father did attend every day of the trial and represented himself.

[53] Although the father was ordered to take part in the Family Court Clinic assessment and he acknowledged that he knew there was an order that he was to attend for the assessment, the father did not participate in the assessment. When asked at trial why he did not participate in the assessment, the father said that there were other ways to prove that he is capable, such as through his mother, through P.L. and through the current worker.

[54] On June 15, 2020, the father told the Society worker that he had not been working with the Society because it made him feel anxious. The father said that although he wished to see the children, he did not see himself in a caregiving role at that time as he wished to focus on secure housing and education.

[55] The father subsequently resumed access to “A” by participating in the mother’s access visits at the mother’s home. The father also attended some Family Centred Conferences. The father testified that he plays with the children, cooks for and feeds the children, bathes them, and changes diapers.

[56] S.M., the current Society worker since August 11, 2021, has met the father on two occasions. The father advised S.M. in August 2021 that he did not understand the protection concerns the Society had shared in the past. She observed the mother and the father interacting and arguing on one occasion. The mother was not listening to the father. The father stepped away from the conflict for a few moments to let things calm down. The current worker has had no negative experiences with the father. The mother has told the current worker that the children particularly listen to what the father says.

Relationship between the mother and the father

[57] There was evidence that when the mother and the father previously were together at the home of the maternal grandmother, there was conflict between the mother and the father. On one occasion, the father became frustrated with the mother and pulled her hair, which incident occurred in “L” ’s presence. After the mother and the father separated, the mother told the Society worker that the father was controlling and abusive to her. She also disclosed that the father had broken her cellphone. The Father previously stated to the Society worker that it was hard to get along with the mother.

[58] In February 2019, the mother asked the Society worker at that time, B.L., to ask the father to leave the maternal grandmother’s home as the mother did not want him to live there. There was a lot of arguing going on. The Society worker asked the father to leave the home but he was either deeply sleeping or pretending to be asleep and he did not respond. The Society worker called the police and when they arrived, the father left the home without incident.

[59] In February 2019, when the mother moved into a shelter, the mother reported that the father was harassing her by phone which distracted her from feeding “A”.

[60] In or about January 2021, the mother advised the worker that the father wanted to move in with her but she was not sure she wanted this, although she felt that he would be helpful with the children. When a Society worker asked about the prior conflict between the mother and the father, the mother said this had been an issue when she lived with the maternal grandmother, as the maternal grandmother had problems with relationship issues and did not like the mother to be close to other people.

[61] In or about March 2021, a Family Group Conference was held and it was agreed that the visits would be supervised by family members rather than by the Society. The father was permitted to attend the supervised visits at the mother’s home.

[62] In April 2021, the mother reported that the father was playing with the children and assisting with meals during the visits. The mother said that the father wanted to live with her but that she remained unsure as she felt that he needed to quit smoking and attend counselling first.

[63] The mother’s evidence at trial is that she loves the father and that she wants to have a family with him. The mother states that the father is a good father to the children. He plays with the children, cooks for them, and has never spanked or tapped them.

Mother’s Current Pregnancy

[64] On August 4, 2021, the mother and her counsellor, K.L. from the Kingston Community Health Centre advised the worker, M.P., that the mother was pregnant and was due on December 1, 2021. The mother said the pregnancy had only been recently confirmed although she had been pregnant for a while. K.L. confirmed that the mother had experienced a couple of false negative tests. The mother stated that the father is the father of her expected child.

[65] On August 10, 2021, the mother stated that she and the father have been doing baby classes together since May 2021. They also plan on engaging in couples therapy through MNO.

[66] The current Society worker, S.M. testified that it has been difficult to do planning with the mother regarding the expected baby as the mother has been focused on this court proceeding and on correcting information contained in the Society’s affidavits for this court proceeding, rather than on planning for the new baby. However, the worker indicated that the mother is prepared in the home for the new baby to arrive, with a crib and the other necessary baby items she will need. The mother’s evidence at trial was that none of the three children had been planned.

Family Court Clinic Assessment

[67] In its original Application issued on March 19, 2019, the Society requested that there be a Family Court Clinic assessment in order to better understand the mother and the father’s parenting capacity, and/or the type of support they would benefit from moving forward.

[68] On August 8, 2019, there was an Order for an assessment of the Kingston Family Court Clinic pursuant to Section 98 of the CYFSA. The report was released on February 21, 2020.

[69] Dr. R., (“the assessor”) a registered psychologist, was acknowledged by all parties at trial and confirmed by the court to be an expert to give evidence on parenting capacity assessments. He has been specifically trained in custody/access as well as parenting capacity assessments. He has approximately 12 years of experience in doing such assessments.

[70] The report sets out that attendance and follow-up for the mother was an issue during the course of the assessment. On two occasions she left an interview without setting up another appointment and could not be reached for up to 30 days to set up another appointment. She put off the next appointment for several weeks claiming she was busy with other appointments. On two occasions, the mother showed up on the wrong date and time for an interview. Attempts to schedule an observation with the mother with her two children were unsuccessful. The mother was made aware she needed to contact the clinic but did not do so by the time the report was drafted.

[71] The father was in default of the court proceedings but was ordered to take part in the assessment. Efforts by the Family Court Clinic to contact the father were unsuccessful. The father never contacted the Family Court Clinic to set up an initial interview. Accordingly, the assessor could not comment on the father’s parenting capacity.

[72] The mother told the assessor that she and her two sisters had been physically and sexually abused by their father during their childhood. Her father was criminally convicted of sexually abusing one of her sisters and spent time in jail. Every close family member was identified by the mother as having intellectual disabilities and the mother and the maternal grandmother and the mother’s two sisters are all in receipt of ODSP. It appears that the father was also on ODSP.

[73] During the assessment, cognitive testing of the mother was carried out. The assessor’s evidence is that the mother presents with notable cognitive difficulties, with her overall functioning falling in the Extremely Low range. Her verbal/language difficulties were at the low range of Average. The mother presented with significant difficulties with problem solving and speed of thinking/learning, which both fell into the Extremely Low range. The assessor concluded that the results raise strong suspicions of an Intellectual Disability and it is apparent that the mother presents with areas of substantial cognitive difficulty. The assessor concluded that these cognitive limitations are likely to negatively impact on the mother’s overall parenting capacity and ability to properly care for a child.

[74] At the time of the assessment, the mother and “I” were residing with the maternal grandmother and her two sisters. On the mother’s first appearance at the Family Court Clinic, she was quite disheveled. Her clothes were dirty and odorous. Her hair appeared unwashed for quite some time and she smelled badly from quite a distance. At the second meeting her appearance was even worse than the first meeting.

[75] The assessor states that the mother’s reasoning skills seemed poor and that she was unable to take on any issues with complexities. The mother lacks goal setting and planning skills. She places no importance on plans and has primarily lived on a day-to-day basis.

[76] The assessor was also concerned with the mother’s mental health in that symptoms of anxiety were deemed sufficient at the time of the assessment to substantially and negatively impact on parenting. The assessor stated that the mother’s memory and concentration were poor.

[77] The assessor used the Child Protection and Parenting Case Management Inventory (CPP/CMI), which is a parenting capacity risk management system to assess risk factors that may place a child under the mother’s care at risk for future abuse, neglect and maladaptive influence.

[78] The assessor stated the mother showed a high level of risk on the Static Factors which are factors that are historical in nature and are not changeable.

[79] With respect to Dynamic Factors, the domain of Substance Abuse was the only area assessed as a low need area. Key risk factors were intellectual functioning, inadequate supervision and unsuitable living conditions.

[80] The assessor stated that when all factors are considered, the CPP/CMI indicated that the mother’s two children, “I” and “A” are at high risk for future maltreatment if independently placed under the mother’s care.

[81] The assessor further stated that according to a structured assessment and clinical impressions, placing the two children in the mother’s care should be considered at high risk for abuse, neglect, or future maladaptive behaviours.

[82] On cross-examination at trial, the assessor acknowledged that there were several limitations to his report. Firstly, he never met either child nor was he able to observe the mother with the children in the maternal grandmother’s home where the mother was residing as she did not make herself and the children available for observation. Secondly, the assessor would have liked to interview other supports, which did not take place.

[83] The Society asked the assessor what impact an additional third child would have. The assessor replied that the mother was overwhelmed with two children, what with poverty, her anxiety issues and being socially isolated. In the assessor’s opinion, adding another child would exacerbate the situation and there would be more likely to be maltreatment.

[84] The assessor stated that the Society seemed to feel that the mother had supports, but the assessor stated that the mother looked quite negatively at her family and other supports so she didn’t get any credit in his assessment to use any of those supports.

[85] The assessor said that if it were true that the mother has been able to maintain a clean residence in her new home and was accepting help as put to him by the mother’s counsel on cross-examination, the assessor would accept those as perhaps mitigating risks. However, the assessor would want to know that the house was being continuously maintained and not just when someone was coming. The assessor pointed out that when the mother lived with the maternal grandmother and her sisters, it was the mother’s residence as well, and the mother was responsible as well for the poor condition of that residence.

[86] The assessor stated that many of the supports that the mother has in place now were in place at the time of his assessment. However, the assessor’s opinion was that there needed to be a fundamental shift in whether the mother was using these supports and learning from these things. The assessor stated that there needed to be an individualized approach with the mother as the past approach used had not been working. Persons with intellectual disability can improve and learn skills. However, the assessor’s evidence was that it’s not going to be easy for the mother to change as it hasn’t worked well in the past.

Supports to assist the mother

[87] The mother has the support of the maternal grandmother who was of assistance to the mother in caring for “I” and “A” when the mother lived in the maternal grandmother’s home. However, the condition of the maternal grandmother’s home was very poor. Further, the maternal grandmother is in poor health, and her ability to assist and support the mother is thereby limited. The maternal grandmother’s evidence is that she has only been in the mother’s home twice since the mother moved there in July 2020, the last time being “I”’s birthday party in […] 2021. The lack of visits is apparently due to the pandemic and the maternal grandmother’s health issues.

[88] The mother is counting on the father’s support to assist her in caring for the children. The mother testified that the father helps during their access visits with “A” by playing with the children, cooking and preparing food, and changing diapers. The mother testified that she finds it helpful to have an extra pair of hands when both children are there.

[89] It is unclear, however, whether the father will be living with the mother. Both the mother and the father acknowledge that the father will not be able to live with the mother unless the Society approves of that happening.

[90] P.L., the sister of the mother was a support to the mother in caring for the children when the mother was living with the maternal grandmother. Since the mother moved into her own residence, P.L. has been a big support to the mother. P.L. now lives in Verona which is about 30 minutes from the mother’s home. P.L. supervises the mother’s access with “A” every second week. On Thursday morning she arrives at 8:00 a.m. and supervises the visit from 10:00 a.m. to 4:00 p.m. She supervises the visit with “A” on Friday from 10:00 a.m. to Sunday at 10:00 a.m. P.L. stays at the mother’s home throughout that time. P.L. testified that the visits go very well. The father is there for the visits. P.L. testified that the father is really good with the children. He plays with them, feeds them, and changes diapers. P.L. has no concerns with either the father’s care or with the mother’s care of the children. In her view, “A” should live with the mother and the father. P.L. does, however, recognize that there would have to be a transition for “A” from L.M. and B.M.’s home as “A” has lived with them for two years. P.L. says both “I” and “A” are sometimes upset when it is time for “A” to leave. P.L. does not believe that the mother needs supervision with “A”. P.L. believes that the mother is doing everything for the children and that the mother takes it very seriously.

[91] The mother also has assistance from the father’s mother, M.D.. M.D. has six children and her youngest child is two years old. M.D. lives in Mountain, Ontario, near Kemptville, but has a partner who lives in Kingston. M.D. spends week on/week off in Kingston with her partner. M.D.’s evidence is that the mother and the father have grown a lot over time. M.D. does not think that the mother and the father need to be supervised when with “A”.

[92] The father’s maternal grandparents are also very supportive of the mother and the father and visit them and the children approximately once per month. They live in Kemptville, Ontario.

[93] The mother has community supports to assist her. She has contacts at MNO and goes to parenting classes and play groups. She attends at the Kingston Community Health Clinic where each of the children has a doctor. The mother has also been working with K.L., a family health educator and dietitian at the Kingston Community Health Clinic. The mother is being seen at the Dual Diagnosis Clinic. She will have an Adult Protective Worker beginning in January 2022. The mother is receiving counselling at Resolve Counselling Services. The mother also has counselling at the Sexual Assault Clinic. Only K.L. was called as a witness at trial.

[94] The Society has provided support and assistance to the mother and/or the father including:

(1) Worked a couple of months with the family on a voluntary basis with planning for the arrival of “I” prior to her birth on […], 2017.

(2) Worker drove the maternal grandmother on a number of occasions to her medical appointments in Sharbot Lake so the maternal grandmother would be well enough able to assist the mother with child care.

(3) Provision of an Enhanced Support Services Worker for the family for a considerable period of time.

(4) Purchase of a cell phone for the mother and for the maternal grandmother so more regular reliable contact could be had with the mother.

(5) Purchased snow suits for the children, and winter coats for other family members who were assisting the mother.

(6) Enhanced Support Services Worker provided calendars to record appointments and sheets to record times and amounts of feedings.

(7) Hiring a company to pick up junk from the maternal grandmother’s home so that the home could be better organized.

(8) Purchasing and providing items for “A” and for the home including a crib, angel blanket, crib sheets, 2 diaper bags, toys, furniture, and formula.

(9) Provided ready to feed formula and sterilized nipples for “A” so that the mother would not need to sterilize bottles or measure the formula.

(10) Assisting the mother with a refrigerator and stove and a toddler bed for “I” for the mother’s independent new accommodation and assisting the mother in making an application to a community resource for additional household items.

(11) Paying for the Lice Squad to come in and deal with the lice issue at the mother’s home and in L.M.’s home.

(12) Assisted the mother in completing and filing an application to Developmental Services Ontario. The mother was put on a waiting list, but it appears that she now has an Adult Protective Worker, whom she will be meeting for the first time in January 2022.

(13) Connected the mother to MNO.

(14) Wrote a letter on the mother’s behalf to City of Kingston Housing Registry in support of the mother’s application for independent housing.

(15) Held a number of Family Centred Conferences and Family Group Conferences to discuss progress and to work on solutions for the family.

(16) Arranged for access visits to take place outside the Society’s office as the mother and the father both found visits at the Society to cause them a great deal of anxiety.

Kin placement

[95] “A” has resided with the maternal aunt, L.M. and her partner B.M. since December 6, 2019, being a period of almost two years.

[96] L.M. is a younger sister of the maternal grandmother. She is the mother’s aunt and “A”’s great-aunt. L.M. is 46 years old. Her partner B.M. is 40 years old. They have been together for over 15 years. They have no children as they unfortunately had stillbirths. Both L.M. and B.M. are in receipt of ODSP. L.M. has problems with her back and can’t sit too long. B.M. takes epileptic medication but hasn’t had a seizure in many years.

[97] When L.M. heard from the maternal grandmother that “A” had been taken to a place of safety, L.M. went to see the mother and asked her if she wanted L.M. to try to get “A” placed in L.M.’s care. The mother said L.M. could try. L.M. wanted to do this as she had seen nieces of hers in the past be taken into Society care and the family would never see them again.

[98] L.M. said it was not her intention to have the care of “A” permanently. She thought she would have the care of “A” for a while and then “A” would be returned to the care of the mother. L.M. acknowledged, however that she and B.M. have become attached to “A” and would hate to see her go. They are agreeable to having custody of “A”. L.M. knows that it is up the court to make that decision.

[99] When asked if she had any concerns about the mother (her niece), L.M. said that when the mother gets talking, she doesn’t pay attention. When they were out on Hallowe’en, the mother struggled to watch both children. L.M. states that the mother likes to engage in conversation too much. However, L.M. said that if the mother were alone in her home with the father, she would not be so distracted.

[100] Although L.M. was upset by some mean messages that the father sent to her in 2020, L.M. has observed that the father is kind to “I” and “A”. He usually sits them on his lap.

[101] If granted custody of “A”, L.M. thinks that she would be agreeable to continuing the same access by the mother as the mother has now. L.M. testified that she does not see any actual need for the mother’s access to be supervised. L.M. is agreeable to the father having access to “A” at the mother’s home. L.M. testified that she thinks eventually “A” would go back full-time with the mother but L.M. and B.M. would still like to see “A” if that should occur.

[102] B.M. testified that he smokes, but since “A” came to live with them, he only smokes outside on the patio. B.M. says that the father doesn’t say anything to him when he sees him. He doesn’t know why not. The father was mean and nasty and threatening in messages to L.M in June or July 2020. B.M. and L.M. complained to the Society and the messages stopped.

[103] L.M. and B.M. have never cared for a child before having “A” placed in their care. B.M. says he is attached to “A” and is agreeable to a custody order. He would be agreeable to the mother and the father having access to “A”. If “A” were returned to the mother’s care, B.M. and L.M. would be quite upset about it, but would want to continue to see “A”.

ANALYSIS

[104] “A” has already been found to be a child in need of protection pursuant to sections 74(2)(b) and 74(2)(h) of the CYFSA by an order of this court made on consent on September 9, 2020.

[105] The options available for disposition are:

(a) return “A” to the care and custody of the mother with supervision;

(b) return “A” to the care and custody of the mother without supervision;

(c) place the child in the care and custody of kin, L.M. and B.M. subject to supervision not to exceed 12 months; or

(d) place the child in the care and custody of kin, L.M. and B.M. pursuant to s.102 of the CYFSA.

[106] As “A” is an Indigenous child, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (herein “the Federal Act”) applies. The Federal Act provides in s. 10(1) as follows:

Best interests of Indigenous child

10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

[107] In s. 10(2) the primary consideration is set out as follows:

Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

[108] In s. 10(3) the factors to be considered in determining the best interests of an Indigenous child are set out as follows:

Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[109] I am also to consider Section 16(1) regarding the priority of placement of “A”.

[110] Pursuant to s. 1 of the CYFSA, I am required to consider the paramount purpose of the CYFSA which is to promote the best interests, protection and well-being of children. S. 74(3) of the CYFSA sets out the factors which are to be taken into account in determining the best interests of a child, including s 74(3) (b) regarding a First Nations child of preserving the child’s cultural identity and connection to community in addition to the considerations in s. 74(3)(a) and (c).

[111] Since “I” was born in 2017, the Society has had a number of concerns regarding the mother and the father’s ability to care for one child, let alone two or three children at the same time.

[112] The mother has previously admitted to the Society that she had difficulty being solely responsible for all of the needs of “I” and “A” who both required care and attention at the same time.

[113] The mother had difficulty in keeping track of how often and how much she was feeding “A” in her first few months of life. The mother says she has a poor memory. However, this resulted in “A” failing to thrive and the paediatrician and the family doctor becoming very concerned about “A”’s failure to gain weight as a vulnerable and small infant.

[114] After “A” was removed to a place of safety as she was not gaining weight in the care of the mother, the mother had visits with “A” at the Society. “I” was often at the visits as well. The mother spent a large part of the visit talking with the worker or with the student who was monitoring the visit. The mother would walk around with “A” in her arms while talking with the adult at the visit, and without interacting with “A”. The mother had trouble appropriately supervising “I” while concentrating on feeding or caring for “A”. “I” would get into the cupboards and other things in the room while the mother was focusing on “A” and did not notice “I” doing this. The supervisor would have to intervene.

[115] At visits with “A” at playgroups, the mother again had trouble keeping focused on both “A” and “I”. Other parents complained that “I” was getting into their belongings, eating their food, and walking around with an obviously drooping diaper needing to be changed, while the mother was busy chatting with others, or feeding “A”, and was not able to adequately supervise both children at the same time.

[116] A Society worker testified that during a visit at the mother’s home in 2021, the mother had problems in putting both “I” and “A” down for a nap in the afternoon on her own and needed the assistance of the worker in watching one child while she tried to put the other child down for a nap.

[117] The mother gets distracted by things that people have said to her which she often interprets as being negative even when they were not intended to be so. The mother describes that she has racing thoughts going through her head like a motor running in her head. The mother believes that she has ADHD. She was taking medication for this prior to her most recent pregnancy and she found this medication helped to calm the racing thoughts. She intends to re-start the medication after the birth of her third child.

[118] The mother testified that she does not have a good memory. The mother does seem to have made some improvements in dealing with that issue as she is better able to keep track of appointments than previously.

[119] The child “I” is at school full-time now, but in the mornings before school, in the afternoons after school, in the evenings, and on the weekends and holidays, the mother’s plan would have her responsible for all the care and supervision of three young children at the same time, unless the father was permitted by the Society to move into the home.

[120] As previously set out, Dr. G. and subsequently Dr. K. at the Kingston Community Health Centre and Dr. R. of the Kingston Family Court Clinic had serious concerns about the mother’s capacity to parent her children. Although the mother appears to have done reasonably well in caring for “I” since her birth, Dr. R’s opinion was that with the deficits the mother has, the risks to the children of maltreatment increase, the more children that the mother has the responsibility to care for.

[121] I find that the mother has made some progress in her parenting skills since “A” was removed from her care. I find that the mother is a loving and caring mother. She loves “I” and “A” and they love her. The mother is very sincere and committed in her wish to parent “I” and “A” and the expected new baby on a full-time basis.

[122] On the evidence before me however, I find that the mother does not understand or appreciate the magnitude of the task she would have in caring full-time for three very young children. I find on the evidence that the mother would have a great deal of difficulty caring for three very young children (age four, age three, and newborn) on her own at this time.

[123] If “A” were returned to the care of the mother, both “A” and “I” would most likely have some adjustments to their new familial situation where they would each no longer be the only child in their home, and would have to share parental care and attention with two other children in the household, including a newborn infant who will require lots of time and attention. I find that this would stretch the capabilities of the mother beyond her limits at this time and would put the well-being of all of the children at risk.

[124] The mother submits that she can rely on the support of others to assist her with the care of the children. These people have in the past been of great assistance to the mother, but under different circumstances than now exist. The mother’s sister lives at least thirty minutes away in Verona with a partner. The maternal grandmother has limited ability to assist due to her health issues, and she has only been to the mother’s home on two occasions since July 2, 2020. The paternal grandmother has a two year old daughter of her own to care for and only lives every second week in Kingston with her partner. In the alternate week, the paternal grandmother lives in Mountain, Ontario near Kemptville where the paternal great-grandparents live. This is approximately one hour and 25 minutes away from the mother’s home.

[125] I find that as helpful as these supports have been to the mother in the past, none of these persons proposed as support persons are readily available to assist the mother with the care of the children on a regular daily and consistent basis, due to health issues, or geographic distance or other commitments. I find that these support persons do not sufficiently mitigate the risks to the well-being of the children if the mother had all three very young children in her care.

[126] The mother’s plan also relies on the father living with her so he could assist her in caring for the three children. The mother acknowledged that she and the father have never really lived together. When the mother was living with the maternal grandmother, the father was sometimes living with a friend and sometimes staying at the maternal grandmother’s home. The Society worker, B.L., testified that when she would come to the home, the father would be either sleeping or out at a friend’s place.

[127] The mother and the father have had an up and down relationship as discussed earlier in this decision. There is evidence of at least one incident of physical abuse by the father towards the mother in the presence of “I”. There is also evidence that the mother made previous complaints about the father’s controlling behaviour towards her. Whether there will be long-term stability in their relationship is unknown.

[128] It is uncertain whether the Society will approve of the father moving in with the mother. The capacity of the father to parent three children is unknown as the father failed to participate in the Family Court Clinic assessment even though he knew there was an order of the court that he was to participate. I find the father did not have a satisfactory explanation as to why he did not participate in the assessment. I draw an adverse inference against the father for his failure to participate in the assessment. As a result, the court does not have the benefit of a parenting capacity assessment of the father.

[129] The current worker, S.M., who transitioned into the position of the worker for the family on August 11, 2021 as the result of an administrative decision, testified that she needs to assess the father prior to making a decision as to whether he can move in with the mother. The father appears to be involved in caring for “I” and “A” at the visits. The father is affectionate with the children and they enjoy playing with him. The father and his mother testified that the father has had childcare experience in helping to care for his younger siblings.

[130] If the father is permitted to move in with the mother, it is unknown how the mother and the father will get along when they are living every day with each other and are very busy 24 hours per day, 7 days per week in providing care for the children. Neither the mother nor the father is employed outside the home, although the father says he would like to get a job as a labourer. The highest school grade the father completed was Grade 10. The father enjoys playing online video games with others. While he was testifying, his phone was buzzing a number of times with contacts he says were friends with whom he plays video games.

[131] The father told the court that he has recommitted himself to the children after not being that involved with “I” and particularly with “A” for a period of time, such that when he started coming to visits again, “A” did not know who he was. The father did not keep up regular visits with “A” for a period of time because he found it anxiety-provoking to be supervised by Society workers. I find that the father’s anxiety interfered with his parenting of “A” in that regard.

[132] As the father has not been tested, it is unknown whether the father has an intellectual disability. The father has been diagnosed with ADHD. He does not take medication for this as he testified that he had a mental breakdown in his high school class while taking medication for this. The father testified that he has memory issues and can’t always remember the specifics of things, particularly when he is anxious. There was evidence that the father was physically abused by his step-father when the father was younger and that he may be suffering from PTSD.

[133] The father loves the children and he wants to do the best for them. Since March 2021, he has been much more involved with “I” and with “A” but only for 6 hours two days per week in one week, and for basically 3 days and two nights in the second week. There is no evidence as to how the father would cope with full-time parenting of three young children.

[134] I find that the father shows little insight into the protection concerns that the Society has regarding the mother’s ability to care for three children and regarding his ability to care for three children, based on each of their individual past parenting history. The father is very confident that he and the mother would have no trouble parenting three children. I find that the father is unrealistic in his expressed view that the addition of a third child to the home would not affect things, other than maybe a little at the beginning.

[135] On the evidence before me, and in considering the best interests of “A” in accordance with the factors set out in the Federal Act and the CYFSA, I find that the risks to the physical and emotional safety of “A” are too great to place “A” in the care of the mother and the father at this time, or in the care of either of them individually, even with the supervision of the Society.

[136] On the evidence, I find that the Society and its workers have made substantial efforts to assist the mother and to assist the father in mitigating the protection concerns so that “A” might possibly be returned to the care of the mother or to the care of both the mother and the father. The Society has re-assessed the mother on an ongoing basis. These efforts have significantly contributed to the ability of the mother to continue to have “I” in her full-time care since “I”’s birth. These efforts have also improved the mother’s parenting skills such that the Society counsel indicated that it is a good possibility that the new baby expected in December 2021 will be going home with the mother and that no indication of a removal of that child has been communicated to the parents.

[137] I find that the Society pursuant to s. 101(4) of the CYFSA looked for a kin placement for “A” after she was removed to a place of safety and ultimately placed “A” with close kin, L.M. and B.M., with whom “A” has been living for the last two years. “A” has done very well in that placement. L.M. has exactly the same First Nations heritage as the mother has. The parents of “A” have been having relatively substantial access time with “A” during the last nine months, including overnight access. This has allowed “A” to spend time with her parents and with her sister “A” in the mother’s home, and will allow “A” to spend time with her soon-to-be born brother. The mother is accessing Indigenous cultural resources through MNO which will be of benefit to “A”.

[138] “A” has resided with L.M. and B.M. for two years. They have been the psychological parents of “A” for two-thirds of her life. It is important for the stability and the physical and emotional well-being of “A” that her placement with the kin, L.M. and B.M. become a permanent placement with continuing contact with the mother and the father and “A”’s siblings. I find that considering all of the circumstances and factors, the least disruptive alternative for “A”, and the plan that is in the best interests of “A” is that she be placed in the care and custody of L.M. and B.M. pursuant to s. 102(1) of the CYFSA, which pursuant to s. 102(2) would be deemed to be a Final Order under s. 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 as am..

ORDER

[139] A Final Order shall issue as follows:

(1) L.M. and B.M. shall have custody (decision-making responsibility) for the child “A” born […], 2018.

(2) The mother shall have supervised access (supervised parenting time) with “A”, subject to public health limitations in accordance with the following two week rotating schedule:

(a) Week 1 – Thursday and Friday from 10:00 a.m. to 4:00 p.m. on each of those days;

(b) Week 2 – Thursday from 10:00 a.m. to 4:00 p.m. and Friday from 10:00 a.m. to Sunday at 10:00 a.m.

(3) The mother shall have such further supervised access (supervised parenting time) with “A”, including holiday time, as L.M. and B.M. and the mother mutually agree.

(4) L.M. and B.M. shall have the discretion to determine on an ongoing basis whether there is a need for supervision of the mother’s access with “A”, and the discretion to determine the form, frequency, and duration of such access, with such discretion to be exercised in a reasonable manner.

(5) The father shall have supervised access (supervised parenting time) with “A” with the discretion of L.M. and B.M. to determine on an ongoing basis, the need for supervision of the father’s access with “A” and the discretion to determine the form, frequency, duration, location and participants of such access, with such discretion to be exercised in a reasonable manner and subject to public health limitations.

(6) When “A” commences full-time school, the parties shall discuss what changes need to be made to the regular access schedule and shall agree on a regular schedule at that time.

(7) Neither L.M. nor B.M. shall talk negatively about the mother or about the father to “A”, nor in the hearing of “A”, nor shall they allow anyone else to do so.

(8) Neither the mother nor the father shall talk negatively about L.M. or B.M. to “A”, or to the siblings of “A”, nor in the hearing of “A” or her siblings, nor shall they allow anyone else to do so.

(9) L.M. and B.M. and the mother and the father shall keep each other all fully informed in a timely manner regarding the health, dental, education, religion, extra-curricular activities, and general well-being of “A”.

(10) The mother and the father shall each be entitled to obtain information regarding “A” from her doctors, dentist, teachers, coaches and other professionals involved with “A”, and L.M. and B.M. shall sign directions for release of information if required.

(11) In the event of an emergency concerning “A”’s health, the party who has the care of “A” at that time, shall notify all the other parties as soon as possible and all parties may attend at the hospital.

(12) Each party shall keep all the other parties informed of any change in their address and telephone number, and email address in a timely manner.

(13) L.M. and B.M. shall not change “A”’s legal name formally or informally without the prior written consent of the mother and the father or without the prior order of this court.

(14) Neither L.M. nor B.M. shall move their residence more than 15 kilometres away from their current residence without the prior written consent of the other parties or an order of this court.

(15) In the event that any party brings this matter back before this court to change the custody (decision-making responsibility) or the access (parenting time) regarding “A”, that party shall serve Family and Children’s Services of Frontenac, Lennox and Addington with the Motion to Change and supporting documents and a copy of this order.

Madam Justice A.C. Trousdale

Released: December 20, 2021