Children's Aid Society of the Region of Waterloo v. S. D., B.C., and A.S., 2021 ONSC 990

COURT FILE NO.: FC-17-FO-000862-0000

DATE: 2021/04/26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF THE REGION OF WATERLOO, Applicant

– and –

S. D., Respondent

– and –

B. C., Respondent

– and –

A. S., Respondent

COUNSEL:

Ben McIvor, Counsel for the Applicant

Brent Balmer, Counsel for the Respondent, S.D.

Patrick Brohman, Counsel for the Respondent, B. C.

Self-Represented

HEARD: February 3, 4, 5, 8, 9, 10, 11 & 12, 2021

BEFORE: THE HONOURABLE MR. JUSTICE R. J. HARPER

REASONS FOR JUDGMENT

Issues

[1] There are three issues to be determined in this case:

1. whether an order should be made for custody and access of the child, A.D.- C., born […], 2014, pursuant to s. 102 of the Child Youth and Family Services Act (CYFSA),

a) to the father,

b) to the mother, or

c) jointly, to both parents;

2. whether an order should be made for access to the child that is with or without any supervision, and what the terms of the access should look like; and

3. if it is found that the child remains in need of protection, whether an order should be made for placement with either parent with a further term of supervision.

Relevant Family Constellation

[2] The child and subject of this proceeding, A.D.-C., is presently 7 years of age. Her father is B.C. and her mother is S.D.

[3] The child has a brother, A.D. Jr. His mother is S.D. and his father is A.D. Sr.

[4] The paternal grandmother is F.D.

[5] The maternal grandmother is S.M.

Background

[6] B.C. and S.D are 30 years of age. B.C. is both a partner and worker in a landscaping and construction business. B.C. and S.D. started to live together when S.D. became pregnant with A.D.-C. in or about February 2014. At that time, S.D. had recently separated and had a son, A.D., Jr. The three of them moved into a new home together. B.C. still lives in that home.

[7] B.C. testified their relationship was good for a while. According to him, things started to go bad around the time that his wife, S.D., went back to work. From that point onwards, in the words of S.D., their relationship was a roller coaster. B.C.’s description of their relationship from that same point was similar: it had its ups and downs. Both B.C. and S.D. agreed that the highs were very good, and the lows were very bad.

[8] I will not go through the evidence of many of the multitude of arguments that the mother and father and some of the extended family related in their testimony. I will only highlight some of the more material evidence relating to certain events that resulted in this matter being before the court since December 2017.

The Spiral Down to the Apprehension of A.D.-C.

Rapid Mood Swings of S.D.

[9] S.D. was very close to her brother, T.D. Tragically, T.D. died suddenly in a London Hospital on or about May 13, 2017. His death had an extreme impact on both S.D. and her mother, S.M. Prior to S.D.’s brother’s death, the “highs and lows” in the relationship between S.D. and B.C. was described by these parents in a very different way.

[10] The father, B.C., stated that S.D.’s mood swings were very dramatic between the birth of the child in 2014 and the death of her brother in May of 2017. According to the father, after S.D. went back to work, she had a great deal of difficulty waking up in the morning and even getting out of bed. He stated that the house was always a mess, with her clothing strewn all over the floor around the house. B.C. stated that his wife rarely made dinner for them. He also stated that often he had to pick up their child from the paternal grandmother’s house. According to B.C., his wife was either out with friends after work, or she would be home and simply did not pick up A.D.-C.

[11] The paternal grandmother, F.D., corroborated this evidence of B.C. According to F.D., her grandchild, A.D.-C., was constantly at her home for her to provide childcare. She stated that the child was brought to her when S.D. was not able to care for her due to her mood swings, when she went back to work and after her brother died. F.D. stated that the child, A.D.-C., was at her home every day during the week and often on multiple overnights, which could last as long as one week at a time.

[12] F.D. described S.D. during one of her mood swings as someone who would go from a real high to a real low. When she was on a high, she would talk very fast and say things that did not make any sense. She was also very anxious. When she was on a low, she would present as very sad. F.D. stated that S.D. would stay in bed for long periods of time.

[13] According to F.D., S.D. told her that she did go to the doctor as a result of her mood swings and her doctor gave her some medications: her “crazy pills”.

[14] F.D. testified that S.D. would not even call her house to see how the child was doing when the child was with her for 2 and 3 days at a time.

[15] F.D. described the home that her son and S.D. lived in as a home that was in a constant mess. She also described clothes thrown all around the home.

[16] What was most concerning was F.D.’s description of the house being “a wreck.” She saw holes in the walls, and doors that were broken. She stated that, on one occasion, she asked S.D. how a hole was made in the kitchen wall. S.D. told her that her young son, A.D. Jr., kicked the wall and that caused the hole. F.D. did not believe that explanation since the hole in the wall was much higher than what this little child could create by kicking the wall.

[17] T.L. is B.C.’s sister. She is a schoolteacher and has a son who is only three weeks different in age to A.D.-C. T.L.’s mother, F.D., also provided childcare for T.L.’s son.

[18] T.L. stated that S.D. had constant and severe mood swings right from the time she was first dating her brother, B.C. According to T.L., S.D. would go from a good mood to a bad mood without any warning. She described her as going from a speed of 8 to 80 and this made it hard to be around her.

[19] T.L. stated that she witnessed many of these drastic and rapid mood swings when her brother and S.D. were at family gatherings. These mood swings caused B.C. and S.D to often have verbal arguments. According to T.L., her brother would then stop engaging with S.D. and S.D. would escalate to screaming.

[20] As a result of these mood swings, T.L. stated that her niece, A.D.-C, would spend a lot of time with her paternal grandmother, F.D.

[21] In her direct examination, S.D. did not agree that she had severe mood swings. She stated that she just had a: “bubbly personality” and that she was loud. She also stated that: “like every girl, I am hormonal at times.”

[22] S.D. attended for a mental health assessment by a psychiatrist, Dr. Shahmalak, on October 2, 2018. This attendance was after the child, A.D.-C., was apprehended and placed with the father, B.C. This assessment was recommended by the worker at the Children’s Aid Society (“CAS”) in order for the CAS to be in a better position to assess what services the mother would benefit by.

[23] The report of Dr. Shahmalak was filed as an exhibit on consent of the parties. His report was not helpful. His assessment was almost entirely based on this relatively brief interview and self-report of S.D. That self-report was deficient in material ways.

[24] Dr. Shahmalak’s report concluded that there were no mental health issues that needed to be addressed. However, among other things, S.D.’s self-report did not include the following material facts:

a) S.D. informed Dr. Shahmalak that she was there as a result of her needing a report for the court that was dealing with her divorce. She did not advise him that her daughter had been apprehended as a result of her being charged with assaulting her husband with a weapon and mischief as a result of events during the same incident that led to the assault charge. She misrepresented to Dr. Shahmalak that the only legal proceeding she was involved with was her divorce. No mention was made of this child protection application that was before this court.

b) S.D. denied any mood swings and denied that she had ever seen a psychiatrist. Her family doctor gave her anti-depressants, but she stopped taking them, as she claimed they did not work for her. She neglected to relate that to Dr. Shahmalak. She also neglected to tell him that, between 2013 and 2017, she had attended at a mental health clinic and the following appeared in that clinics notes and records that were also filed as an exhibit on consent:

i. On December 15, 2015, S.D. told Dr. Monkhouse that she was having mood swings and anxiety attacks. She was given medications to try. She stated in her cross examination that they did not work for her, so she did not take them. She was also prescribed Ativan. She stated in her cross examination that she probably did not even pick those dugs up.

ii. The mental health clinic records indicated that she attempted to get an appointment on September 26, 2016, with Dr. Monkouse, and she became very rude and aggressive to them when told that the doctor could not see her immediately. At first, she wanted an appointment for her and her 2 children. However, when told that would be later, she told the clinic staff to “forget about [her] two children, then, and book an appointment for [her] alone”. The notes indicate that she was very belligerent to staff.

iii. The records of this clinic also note that, in November 2016, she attended and advised that she was having panic attacks for the last few months and that she had been on meds in the past, but they made her feel funny, so she stopped them. She is noted to have stated that she would wake up during the night with her heart racing. The Doctor noted that he questioned whether she had “anxiety disorder.”

iv. On December 22, 2016, S.D. attended at the clinic with “severe panic attacks”. She told the doctor that the Ativan she was prescribed the last month was not working. Significantly, she told the doctor that there were “no stressors in her life”. Dr. Monkhouse then prescribed a new drug, Serax, to be taken at bedtime.

[25] None of the above noted history was related to the Psychiatrist, Dr. Shahmalak.

Allegations of Substance Abuse

[26] S.D. went back to work approximately 16 months after A.D.-C was born. At that time, she was working at a Hotel front desk. After she went back to work, her son, A. Jr., was taken to his paternal grandmother for childcare during the day. S.D.’s daughter, A.D.-C, was taken to her paternal grandmother’s home for childcare.

[27] During the period between the S.D.’s return to work in 2014 and the death of her brother in 2017, the relationship between S.D. and B.C. was very tumultuous. There were frequent arguments relating to who was supposed to pick up the children and bring them to childcare. There was also constant friction and arguments that related to the state of the home. B.C. claimed that the house was always a mess and S.D. rarely cooked meals for him. This was denied by S.D., who claimed that C.B. was controlling and demanding. She claimed that he was an old-style man, who insisted on his wife being home to cook, clean and care for the children. According to S.D., C.B.’s need to control was part of a broader pattern of abuse.

[28] Both S.D. and C.B. drank alcohol, used marijuana, and, at times, used cocaine and ecstasy. However, the extent and nature of their substance use changed after S.D.’s brother died.

[29] S.D. admitted that after her brother died in May of 2017, she started to drink alcohol a lot. However, I find that she constantly minimized the extent to which she drank throughout her evidence.

[30] After S.D.’s brother died, the maternal grandmother, S.M, came to live with S.D. and B.C. for a period of approximately two months. During this period, many friends and family would stop by the house to express their condolences. They often stayed at the home and drank. According to B.C., he could understand the need for a period of grieving, however, he felt that it went on for far too long. He also felt that no one was sensitive to the fact that he had to go back to work and needed to sleep, as he worked 10 to 12-hour shifts.

[31] The constant visitors and drinking became a source of tension between S.D. and B.C. During this period, there were frequent arguments between them. According to B.C., while his wife’s increase use of alcohol was on the rise, their relationship got “really bad.” In his words, “it took a dive downward.” Prior to the maternal grandmother returning to her own home, there was an incident in July of 2017 that I find to be demonstrative of how bad things started to become.

[32] S.D. went with a friend to a concert in London, Ontario. During that evening, S.D. was under the influence of some intoxicating substance. Her behaviors became difficult to manage and got to the point that the friend, who she was with, could not handle her.

[33] Even though it was very late, S.D. wanted to return home. The maternal grandmother had already taken a sleeping pill and could not drive to pick her daughter up. B.C. was attempting to go to sleep, as he had to work early in the morning. B.C. made arrangements with S.D.’s friend to meet up in Woodstock where he would retrieve his wife.

[34] B.C. used his wife’s deceased brothers’ truck to go to pick his wife up in Woodstock. When he arrived at the agreed upon parking lot at a Holiday Inn, S.D.: “freaked out” when she saw that her husband was driving her deceased brother’s vehicle. According to B.C, S.D. started to yell and scream, and push him. He stated that his wife’s behavior was extreme. B.D. described S.D. as “foaming at the mouth”, and that she ran and hid under a tree near the parking lot.

[35] The police were called. They notified S.D.’s aunt and Uncle to come get her, since B.C. would not put her in his car. He went home instead.

[36] Upon his arrival at his home at approximately 1 or 2 a.m., B.C. was informed by the maternal grandmother that the aunt and uncle were about to drop S.D. off at the home. Upon her arrival, she once again started to yell and scream at her husband. A neighbour came over as a result of there being so much noise. S.D. went to B.C.s truck and ripped at the snowplow wires that allowed the snowplow that he attached to his truck to function. She then attempted to bite B.C. and he pushed her away. B.C. drove away and saw the police arrive at his home. The police took no action.

[37] B.C. went to his mother’s home to stay with his daughter for the remainder of that night. According to B.C., his wife called him the next day and told him that she was sad and that she was going to try and get some help. B.C. returned home, however, S.D. did not go to get any help.

[38] After the above noted event, B.C. stated that he became increasingly worried that his wife was not only drinking alcohol to excess but also taking other drugs like cocaine and OxyContin. He noticed that she was withdrawing a lot of money from their joint bank account. She was often either avoiding him or presented as intoxicated.

[39] The paternal grandmother, F. D., testified that, during this period, she cared for the child, A.D.-B, frequently. The child was with her every day during the week and often on multiple overnights. Frequently the child stayed with her for weeks at a time. She stated that the mother, S.D., was often under the influence of an intoxicant. She further stated that S.D. had swollen eyes and that she could see that S.D.’s eye pupils were dilated.

[40] Upon a review of all of the evidence, I find that S.D. has not overcome her challenges with alcohol. She denies that she has any challenges and has no insight into what she needs to do in order to be consistently available to meet her child’s needs.

Misrepresentation of her use of alcohol during her Mental Health Assessment

[41] Some of the material evidence that allows me to find that S.D. is not credible with respect to her addiction challenges are as follows:

a) When S.D. saw Dr. Shahmalak on October 2, 2018, she told him that she would drink alcohol and that sometimes she drank too much on weekends. She went on to tell the psychiatrist conducting a mental health assessment to be used by S.D. in court that she had not had a drink in about a year. This was clearly a significant misrepresentation by S.D. She neglected to tell Dr. Shahmalak that she had been in a car accident while driving on Lake Shore Boulevard in Toronto and was charged and plead guilty to impaired driving in March of 2018. Not only was her license suspended for a year, but she was also required to use an interlock device in her vehicle in order to get her license back and have the mandatory insurance.

b) Only four days after S.D. told Dr. Shahmalak that she had not had a drink in about one year, S.D. was observed at a bar by a private investigator hired by the father, B.C. That investigator testified that he observed S.D. consume three 20-ounce pints of beer and a one-and-a-half-ounce whiskey within a period of approximately two hours and ten minutes.

c) S.D.’s testimony, at this trial, relating to the impaired driving event and the consequences thereof, was also not credible. She stated that she went to a social event in Toronto with a girlfriend. S.D. stated that, after the event, she did not remember how she got behind the wheel of the car to drive. She went on the state that she was distracted by something while she was driving and that caused her to be in an accident. She knew that she was not supposed to drive. There are only 2 realistic and equally damning possibilities for her driving on that evening: S.D. is either not truthful about her lack of knowledge of how she got behind the wheel of the car or she was too intoxicated to know she was driving the car.

d) S.D. plead guilty to the impaired driving charge. She was fined $1050.00 and she was prohibited from driving a vehicle for one year. At this trial, she stated that she was not aware that she could not drive a vehicle for one year since they gave her license back. I do not believe S.D. Her charges and guilty plea were filed as an exhibit at this trial and the sentence clearly indicates that she could not drive for one year.

e) When the impaired driving charge was laid against her on March 12, 2018, S.D.’s license was immediately suspended for 90 days as a result of the charge. She would have been informed of that as soon as she was charged. She tried to say, at this trial, that she was not aware of this suspension. I do not believe her.

f) On […], 2018, S.D. was allowed by the CAS to have overnight access with her daughter, A.D.-C., for a birthday party. One of the terms of allowing this access was that she not drive a vehicle with the children in it. According to B.C., he did not trust that she would comply with the no driving direction. As result of this lack of trust, he had his sister observe S.D. leaving for the birthday party. His sister took a video on her cell phone of S.D. driving with the child in the car.

g) When S.D. was confronted by a CAS social worker on April 4, 2018, S.D. denied that she was driving on this occasion.

h) On April 6, 2018, S.D. was once again asked by the Society worker if she had driven. She told the worker that she was 150% sure that she did not drive. The Society worker told her that she had seen a video of her driving. S.D. demanded to see the video. Later, S.D. told the CAS worker that she did not remember that she had driven.

i) At this trial, S.D. stated that the day of the birthday was very hectic and she “did not put 2 and 2 together”. She still insisted that she had forgotten that she had driven and that it was simply a mistake.

j) S.D.’s mother, F.D., testified at this trial. I find that her testimony was not credible. On this issue relative to whether S.D. drove with her child in the car, she stated that it was her fault completely. She stated that she had not remembered that her daughter, S.D., got behind the wheel and that she got in the passenger side of the car on this occasion. This testimony came after she also insisted to the Society worker that S.D. did not drive in this occasion.

k) When S.D. was asked in cross examination if her mother would simply lie in order to protect her daughter, S.D. stated “no” and that she felt that her mother was just being a mother. I find that that F.D. did lie about her daughter driving and she was protecting her adult child in preference to protecting her grandchild, as she was charged to do. F.D. had signed an access supervision agreement with the CAS prior to this event. She did not comply, and she eventually admitted that she did not comply. She was removed by the CAS as an access supervisor.

l) On May 5, 2018, S.D. was in court on this matter. At that time, aside from adjourning the matter, Justice Neill made an order that S.D. not consume any alcohol. At trial, S.D. claimed that she did not recall this order and that she did not think that a judge could do that anyway. She stated that, if anything, she may have been ordered not to consume alcohol in the presence of children. The Order is clear and unambiguous: S.D. was not to consume alcohol. She did not appeal the order and, according to her, she did not even remember such an order.

[42] S.D. started a program that was allegedly associated with Alcoholics Anonymous. She states that she only attended 2 sessions and felt that the program was not for her. She stated that she did not feel safe in the program and that others in the program might feel that she was acting as a “princess”.

[43] The social worker assigned to assist the family from August 2018 until the end of March 2020 was Krystyna Kulik. When speaking with S.D., Ms. Kulik identified the following issues of concern that needed to be addressed by S.D.: her addiction problem, her emotional state and her parenting.

[44] Ms. Kulik stated that S.D. did not feel that she needed any programs, as she did not have an alcohol problem and that she was a good parent. Nevertheless, S.D. stated that she would take whatever programs the CAS suggested. She wanted both of her children, A. Jr. and A.D.-C., in her care, as soon as possible.

[45] S.D. only went to two of the sessions with a program called “Back on Track” to deal with her alcohol problem. She also took a computer program that dealt with managing stress and conflict. This was not the program that the CAS had recommended for S.D. to get assistance for managing conflict. S.D. also stated that she “reads a lot” on how to handle stress.

[46] After over one year of working with S.D., Ms. Kulik did not feel that S.D. had made any gains relative to addiction issues. She was also concerned that S.D. was inconsistent in attending scheduled access visits with A.D.-C.

[47] I find that the inconsistencies relating to access were often connected to the addiction issues that the mother has. S.D. would often tell Ms. Kulik that she could not provide a draft of potential access times in advance, as she worked long hours and the hours she worked changed frequently. As a result, everyone else, including the father, B.C., and the paternal grandmother, F.C., needed to make frequent changes to the schedule – and they did.

[48] During the involvement of Ms. Kulik, S.D. would have access on two evenings during the week and for several hours on each Sunday. Both B.C. and the paternal grandmother testified that there were multiple occasions when the Sunday access could not proceed as planned, as it was reported by S.D.’s stepfather that she was in no shape for access: she was sick, vomiting and simply could not get out of bed. On approximately three or four occasions, no one called B.C. in advance and it was only when he arrived to drop of the child for access that he learned that S.D. was in no shape for access.

[49] According to Ms. Kulik, S.D. was inconsistent with her explanations of why she was not available for the Sunday access. Her excuses ranged from having food poisoning from the night before to just being sick.

[50] Ms. Kulik felt that S.D. never addressed her lack of consistency with access, nor her addiction issues or her variable emotional states, during the whole time that she had worked with S.D.

Domestic Violence Issues

[51] S.D. testified that her husband was abusive to her: verbally, emotionally, physically and sexually. She claimed that he constantly hit her, kicked her, threw things at her and forced her to have sexual relations. She also stated that he would control her financially and socially.

[52] B.C. denied that he was ever abusive to his wife, S.D. According to him, throughout their cohabitation, S.D. had wild mood swings. When she was on a low, she could not even get out of bed. When she was on a high, she would have many episodes, whereupon she would have uncontrolled rages. She would scream, yell and swear at him in front of the children. She often threw things at him. B.C. stated that these rage events got so bad that, by the time they separated after she had attacked him on December 5, 2017, his house was not habitable. He and his daughter, A.D.-C., had to live at his mothers’ home until he could fix his home from the holes and scrapes in many of the walls and the broken doors.

The allegations of financial control

[53] S.D. claimed that she had to put all her pay into an account that was completely controlled by her husband and that she did not have access to. Her husband, B.C., stated that they had a joint bank account at the Royal Bank of Canada, and she had equal access to that account. He also stated that she would spend money from that account to the point that they were living paycheck to paycheck and that his wife nearly put them into bankruptcy.

[54] B.C. stated that he was aware that, from time to time, his wife complained that she did not have full access to the joint account, and he had no idea why there was a problem. He stated that, in order to stop the complaints and to ease any tension, he went to a lawyer and had a power of attorney for property drawn up and gave his wife power of attorney. His wife, S.D., did not contest that this had happened. Nevertheless, she insisted that he still controlled her by controlling the finances. When confronted with statements from their joint bank account, she claimed that she had never seen them.

[55] I accept B.C.’s testimony regarding the finances. I find that S.D. misrepresented this evidence as part of her overall claim that her husband was controlling and abusive. I find that S.D. had complete and unfettered access to the joint back account. She was given even more control over the finances when B.C. attended at a lawyer’s office and signed a power of attorney for property to his wife, S.D.

The allegations by S.D. that her husband was verbally and emotionally abusive to her

[56] S.D. testified that her husband controlled her to the point that she could not socialize on her own and that she was isolated. B.C. stated that they both socialized with many friends and that he never restricted what S.D. could do. B.C. stated that he only got upset when his wife would go out after work and not pick up the children. When he came home after work, he would often have to go back out and pick up the children from day care.

[57] It is not necessary to make findings of fact with respect to who was the aggressor during the many arguments between S.D. and B.C. that were, unfortunately, put into evidence during the trial. I find that both the husband and wife had multiple arguments that descended into yelling and swearing. These verbal arguments often took place in the presence of – or at least within hearing distance of – both the child, A.D.-C., and her brother, A. Jr. For children to witness such conflict, especially if that conflict is chronic, is emotionally harmful.

[58] Unfortunately, there were also incidents in which the parties descended into physical confrontations that were also witnessed by these children. Witnessing such events involving the two adults has had both short-term and long-term negative effects on A.D.-C. I do not need expert testimony in order to make this finding of fact. As Piccoli J. stated in Family and Children’s Services of Guelph and Wellington County v. A.M.P. and K.D.S., 2020 ONSC 7418, at para. 105:

[105] Sometimes, the evidence of a child’s distressed reactions to parental behaviour is sufficiently clear that a finding can be made without the opinion of an expert: Children's Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 (Ont. S.C.); Catholic Children’s Aid Society of Toronto v. E.S., 2016 ONCJ 279; and Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447. In Jewish Family and Child Services from Greater Toronto v. Ki. Sl., the court found that all of the mother’s lack of insight and her inability or unwillingness to acknowledge her daughter’s feelings of stress, fear and anxiety, revealed to the court that there was an ongoing risk of emotional harm to the child.

[59] An example of the state of mind of the child, A.D-C, was in the evidence of the CAS workers. The child, A.D.-C., told the Society worker, Ms. DeBoer, that she could hear and that she saw her mother yelling, screaming and swearing at her father. She also saw her mother hit her father, which made her feel “sad” and “nervous”. She was keeping this inside of her and she told the worker that it was her “secret”.

[60] The father, B.C., testified that, from October 2020, A.D.-C. has stated on numerous occasions that she did not want to sleep over at her mother’s home. The child told the worker that it was because there are monsters there. Within the last couple of months, the child has been having “accidents” that consist of her soiling herself.

[61] To their credit, both parents have recently consented to having A.D-C. in counselling. This counselling has only recently started. There was no evidence with respect to the goals of the counselling, other than to give the child an independent outlet to deal with her feelings.

[62] In the Agreed Upon Statement of Facts, filed on consent at the trial, at para. 2, the police interviewed the child A. Jr. while they were investigating an incident that allegedly occurred at the home of S.D. and B.C. on December 3, 2017 when both children were present. The agreed facts state as follows:

During the investigation of these incidents, A.D Jr. told the Society worker about him and his sister (A.D.-C.) hiding under the bed and said he knew his mom broke glass, pushed B.C. and she was yelling/swearing at B.C. S.D. states that although there was an altercation and she was yelling/swearing, etc., was due to B.C. refusing to leave the residence and was in self -defence.

[63] The horror and distress to children, ages four and seven at the time, who felt that they had to hide under the bed while this type of parental conflict was going on, is almost unimaginable. Yet it is real, it is frightening for them and it tears at their soul.

[64] The Police investigated the incident of December 3, 2017, without laying any criminal charges. It was noted in their report that it was not possible to ascertain who the main aggressor was on this occasion. The police occurrence report of the incident was filed on consent. The report of December 3, 2017 was authored by Cst. K. Lewis of the Waterloo Regional Police Services (“WRPS”). It was noted that S.D. and her husband, B.C., got into an argument. S.D. claimed that her husband pushed her, and she hit her head. The police report noted that there were no injuries to her head and S.D. could not specify how it happened. It was also noted that there were no signs of injuries or bruising and S.D. declined an ambulance.

[65] Cst. Lewis also related, in this report, B.C.s version of the event. He stated that he and his wife got into an argument over him wanting to go out and get coffees, bring them back and wash his truck. According to B.C., his wife was in the bath and she started to yell at him that she was going to leave him, take the children and take him for everything he had. He stated further that his wife scratched him and, when she did, he pushed her away. She followed him downstairs and started throwing things, such as uncooked pasta and crayons. It was also noted that, when the police arrived, these items, along with broken glass, were observed by the police.

[66] At the trial, S. D’s version of this incident was much more expansive. She stated that she did not want to have her husband arrested, so she toned downed her version of events to the police. In her trial testimony, she stated that, on December 3, 2017, she and her husband did get into an argument while she was in the bathtub. According to her, B.C. “grabbed her” and pushed into the window trim. She claimed that her ear was ringing for three days following this event. It is significant that she could not provide any details to the police of how she got a head injury and they could not observe any signs of injury.

[67] S.D. admitted that she did act in a violent manner, at times. However, like she did with her substance abuse issues, she often minimized her role. She also excused her role as a reaction to the years of abuse that she suffered at the hands of her husband. Other than her own testimony and the testimony of her mother, she did not offer corroborative evidence of such abuse that would allow me to find, on a balance of probabilities, that B.C. was physically abusive to S.D.

[68] S.D. agreed that their home had multiple holes in the walls and broken doors. She only admitted to causing a scrape in one of the walls when she swung a stripper pole and it hit the wall. She also admitted that she may have broken one door.

[69] S.D.’s mother, S.M., I find, was not a credible witness. I have already set out her lack of credibility relative to S.D.s substance issues. I find that her continued misrepresentations and inconsistencies in her evidence was largely driven by her strong conviction that a young female child should be with her mother.

[70] The maternal grandmother was asked by counsel for the mother, S.D., at the very end of her direct examination, if she had anything else that she wished to add. S.M.s response was as follows:

Your Honour, my mom died when I was three. That is the same time A.D.-C. was taken from her mother. I am still crying for my mother today.

[71] S.M went on to state that her daughter, S.D., is being punished for three years for drinking and smoking weed. She claimed that both B.C. and S.D. drank and smoked weed but it is only her daughter, S.M., who is being punished.

[72] Throughout her testimony, S.M. rambled quickly through one allegation after another about how bad B.C. was. She was rarely even asked a question. She just went on telling one story after another, with hardly any break for a breath. I had to caution her during her testimony to please listen to a question and only answer the question. Her testimony was hard to follow and not believable.

[73] The maternal grandmother, S.M. was only witness called by the mother in order to corroborate her testimony and to demonstrate that she was an effective support to her daughter. However, I find that S.M.’s lack of credibility does not permit me to find her testimony was corroborative of many of the material issues. I find that S.M. chose to protect her daughter rather than be protective of her grandchild.

[74] S.M. felt that S.D. did not have custody of her child because S.D. was being punished for a mistake. I find that much of her evidence must be looked upon within this unfortunate context and I give her testimony very little weight.

[75] Despite the mother’s allegations that her husband was physically abusive to her throughout their cohabitation, she never called the police. Nor did the S.D. attempt to go to a shelter or create a safety plan for her and her children. This alone is not an indicator that abuse did not happen. All too often, victims of abuse do not report their abuse for a myriad of legitimate reasons. However, I must consider that evidence as a whole and I find that there are many inconsistencies in the mother’s statements and her actions, which allows me to conclude that she was the main aggressor in this tumultuous relationship between her and B.C.

Dr. Shahmalak

[76] As alluded to earlier in these reasons, S.D. went for a mental health assessment on October 2, 2018, with a psychiatrist, Dr. Shahmalak. She told the doctor that she needed the assessment for her divorce proceeding, since her husband alleged that she was bipolar without any evidence to back it up. She also told the doctor that her husband was physically and emotionally abusive to her and that it went on for a long time. She gave no details of such allegations. She told him that she and her husband separated after there was a physical altercation where she allegedly reported that she was beaten by her husband. She told the doctor that her husband alleged that she attacked him, and she was the one who got arrested. She told him that no charges were laid.

[77] She misrepresented to the doctor that no charges were laid. She was charged with, among other things, assault with a weapon after the police investigated this altercation on December 5, 2017. She was later placed on a one-year peace bond with terms that she does not communicate with her husband, except for access issues, and not attend within 100 meters of any place that she should have reasonable knowledge that he would be.

[78] She also misrepresented to the doctor that she was only going through a separation and divorce. She did not tell the doctor that her children were apprehended by the CAS and that they were placed with their fathers with only supervised access to her.

Statements to Health Care Professionals between 2013 and July 2017

[79] Between 2013 and mid July 2017, there are no notations in any of the health records of S.D. that were filed in these proceedings that reflected any complaints about physical or sexual violence perpetrated on S.D. by B.C. In addition, for that same time period, there are no records of any physical findings that would corroborate the allegations of S.D. that she was subjected to physical and emotional abuse over many years.

[80] The only notations in her health records related to a long-standing anxiety disorder, mood swings, depression and panic attacks. On one occasion, on December 22, 2016, it is noted at the Grand River Hospital that she told the health professional who was attending with her that she had was having panic attacks and anxiety, but she reported that there were no stressors in her life.

S.D.’s allegations of Sexual Assault by B.C.

[81] S.D. was not consistent with allegations that B.C. forced sexual activity on her on many occasions over the years. Shortly after being arrested, on December 5, 2017, she was taken to the Grand River Hospital. On this occasion she told the hospital staff that, earlier that night, her husband was trying to force having sex with her. She told them that he does this all the time, however, she was resisting him that day. According to her, he slightly penetrated her. She also added, “as he usually does during these events. She told hospital staff that the fighting lasted three hours and it consisted of both verbal and physical in the form of yelling, swearing and hitting.

[82] The hospital staff noted that the story from the police was different and it was S.D. who was arrested after they were called by B.C., who was hiding from S.D. in the bathroom with his daughter.

[83] On December 7, 2017, the CAS worker, Lauren Buckley, and Detective Constable Robson interviewed S.D. S.D. told them that B.C. was an abusive controlling man and she was “obsessed” with him. She told Ms. Buckley on this occasion that the conflict over December 4–5 of 2017 was caused by B.C. forcing her to have sex with him. She stated that he wanted oral sex, however, the worker noted that she did not describe being forced to perform those acts.

[84] S.D. later told the same interviewers that the conflict during that time period between December 4 and December 5, 2017 started because she wanted to prove to B.C. that she did not steal money from him that he was accusing her of doing. In order to do this, she needed his wallet that was in his truck. She denied throwing a hammer or drill at him. She did not make any mention of her attempting to get into his truck by using a hacksaw on the door.

[85] B.C. denied that he ever had sexual relations with S.D. that were not consensual. He stated that she would often perform oral sex on him. This occurred frequently even after the separation. S.D. admitted that they both had sexual relations that included intercourse on multiple occasions even after separation. She stated that she felt that, if she had sex with him, he would give her more time with her child.

[86] B.C. denied that he would give more access if she gave him sex. He insisted that all sexual encounters that he had with S.D. were consensual. He also pointed that, until S.D. moved to Woodstock in or her access was scheduled by the CAS and not him. It was not until April 2020 that the CAS approved an overnight access.

[87] S.D. stated that she had unprotected sexual intercourse with B.C. exactly 17 times from January 1, 2020, until December 31, 2020. She stated that she knew the exact number of times they had intercourse as she marked it on an app that she used to monitor her menstrual cycle. She did not make any entries of forced sexual intercourse. She marked the intercourse she allegedly had with B.C. on this calendar app with a figure of a heart.

[88] The Oxford Child and Family Services was asked to assist the Waterloo Child and Family Services with assessing S.D.’s new home in Woodstock and to assist with providing any services to the mother. Oxford assigned social worker Sarah Humphrey to perform this task.

[89] Ms. Humphrey stated that she was advised that S.D had moved to Woodstock in or about July 2020. Her first interview with S.D. occurred on August 17, 2020. S.D. told Ms. Humphry that, when she moved to Woodstock, she felt that her child, A.D.-C., was being used as a pawn. She stated that she would placate B.C. by having sex with him in order to be able to have better access with her daughter. However, she did not tell Ms. Humphrey that the sex she had was forced on her. She told Sarah Humphrey that the sex was consensual.

[90] S.D. never reported to any of the Society workers assigned to the family from December 2017 onward that the father, B.C., had sexually assaulted her, nor did she allege that the father used access to the child as a leverage for sex.

The Charges of Assault, Assault with a Weapon and Mischief under $5,000.00 against S.D.

[91] On December 5 2017, an incident occurred that resulted in charges being brought against S.D. for assault, assault with a weapon and mischief under $5,000.00. This same event precipitated the apprehension of both children, A. Jr. and A.D.-C.

[92] The police were called to the home of S.D. and B.C. on December 5, 2017. According to B.C., his wife started to accuse him of cheating on her with hookers. He tried to go upstairs to get away from her and she chased him with knives. When she went outside, he went downstairs and saw her with a hacksaw. She was trying to cut open a door to his truck. B.C. stated that he continued to try and get away from her, and that, during this time, she was throwing things at him, such as knives, a hammer, a drill, and candles.

[93] B.C. stated that he called 911 and then hung up. When they called right back, he started to say everything was ok and then, when she continued to scream and throw things at him, he told the police to “come quick… the bitch is crazy”.

[94] B.C. stated that he got his daughter, went into the bathroom, and locked himself and his daughter in the bathroom. When the police arrived, B.C. came out of the bathroom with his daughter. His shirt was ripped from the altercations with his wife. The police had to search for S.D. They found her hiding in the garage under a table behind a Christmas tree.

[95] B.C. described the state of their home at the time the police arrived. He stated that there were clothes scattered all over the house and broken glass everywhere from the candles that she had thrown at him. He further stated that there were holes in many of the walls in the home. The bathroom door to the on-suit bathroom, as well as the doors to the walk-in closet and laundry room, were all broken. The holes in the walls were approximately five inches wide.

[96] B.C. denied that he made any of the above noted damages. He often heard his wife while in a rage causing the damage and he saw the results firsthand.

[97] S.D. gave a different version of the events of December 5, 2017, to many different people. After she was arrested and while she was in jail, she claimed that she had vaginal bleeding and it was probably due to her being pregnant. The police escorted her to the hospital. She told hospital staff that she had been involved with a very abusive partner for about 7 years. She related that she was assaulted by B.C. earlier that day. She told them that she was assaulted because she had refused to be forced to have sex with him.

[98] The Society’s application for a finding of the child in need of protection outlined the police version of the events of the early morning hours of December 5, 2017. Society worker, Lauren Buckley reviewed the crown brief synopsis. It indicated that, shortly after midnight on December 5, 2017, S.D. and B.C. got into an argument over money. S.D. told the police that she wanted to gain entry into B.C.s truck in order to show him that the money he was accusing her of stealing was in his wallet in the truck. There was no mention by S.D. of forced sex.

[99] S.D. got a hacksaw and began to saw on the door to the truck. She then returned to the residence and proceeded to slap, hit and scratch B.C. She threw glasses, one of which struck him in the leg. B.C. attempted to go into the garage area of the home and S.D. kept throwing things at him. The items being thrown included a hammer and a drill. He called 911 for help and hid in a locked bathroom with his daughter.

[100] B.C. showed the police his scratched neck and the damage done to the truck and door handle, as well as the broken glass and Christmas ornaments. The Police found S.D, who was hiding under a table in the garage that was behind a Christmas tree. The police arrested her and charged her with the above noted charges.

[101] In her trial testimony, S.D. stated that she felt that the whole series of events on December 5, 2017 was a set up by B.C. as payback for her calling the police on December 3. She claimed that she the only reason she hid behind that Christmas tree was because she was scared, as she heard B.C. on the phone talking to the police while he was in the bathroom with S.D.-C. shouting “stop hitting the child”. I do not believe her.

[102] Her incredible version of the December 5th incident went even further in her direct examination. She stated that, when the police found her hiding, they grabbed her and threw her onto the driveway, where she landed on her side. However, when she went to the hospital shortly after being arrested, she made no mention of the police doing this.

[103] Instead, S.D. told the health care providers at the hospital that her husband caused the bruise on the side of her buttocks when he pushed her. I find that her version of various alleged assaults was inconsistent depending on who was asking her about the events.

[104] Society worker Lauren Buckley attended at the home of S.D. and B.C. on December 7, 2017. She observed the garage door to have dents in it that B.C. stated were caused by S.D. throwing a hammer at him. She also observed the dents in the wall going upstairs in the home and holes in A.D. Jr. s bedroom, the master bedroom and linear holes in the bedroom, which B.C. stated were was caused by S.D. swinging a stripper pole at the wall. Ms. Buckley also observed the broken glass and Christmas ornaments.

[105] S.D. admitted at this trial that she did cause a couple of holes in the walls. She admitted that she threw a glass bowl at the sliding door and broke the door. She also admitted to swinging the stripper pole causing scrapes on the walls. She stated that she did all of that out of frustration due to the years of physical, sexual and emotional abuse her husband perpetrated on her.

[106] On December 7, 2017, Ms. Buckley attempted to interview A.D.-B. The child refused to talk about anything. She only played with her Barbie dolls.

[107] However, A.D.-B’s brother, A. Jr., did talk to the worker on December 7, 2017. As I referred to earlier in these reasons, the statements of the children to the worker are not for proof of the facts contained in the statement. They are received as part of my consideration of the children’s’ state of mind during this period of turmoil within the family relationships. A.D. Jr. talked about when his “poppa” (his stepdad, B.C.) called the cops on his mom. He said that his mom did not want to be seen and that she told him “all of this”. A. D. Jr. told the society worker that this was “payback for mama calling the cops. He went on to state that he was not scared when his mom called the cops on poppa, but he was scared when poppa called the cops on his mom. He also stated that he does not like it when his mom yells and “calls poppa bad names”. He also stated that she broke the things such as glass items and she through food such as uncooked noodles all over the floor. A.D. Jr. then told the worker that he heard his mom yell “if you don’t get out of the house, I’m going to call the fucking cops.” A.D. Jr. also stated that he heard poppa say “stop pushing me”. All of the above happened, while A.D. Jr. and his sister A.D.-C. were hiding under the bed. The events that A.D. Jr related to the Society worker on this occasion related to the incidents that occurred in S.D. and B.C.’s home from December 3 through December 5, 2017. At that time, A.D.-B was six years old and his sister, A.D.-C, was only three years old.

[108] To hear this while hiding under a bed at this age can only be described as children living a horror in their own home. This is a place where they should feel safe, happy and loved. Instead, it was the opposite of what it should be: these children were living in a place where their own parents were making them feel not safe, sad and surrounded by feelings of hate and not love.

S.D.s lack of compliance with rules and Orders.

Her Driving Record

[109] S.D.s driving record includes the following:

a) 2012 – speeding;

b) 2014 – smoking marijuana while driving;

c) 2015 – speeding;

d) 2016 – careless driving;

e) 2016 – speeding while going 30 kilometers over the posted speed limit (she claimed she had severe back pain and needed to go to the hospital);

f) 2017 – driving while holding a handheld device;

g) 2018 – Criminal Code offence – impaired driving;

h) 2020 – driving without a working interlock device; and

i) 2021 – presently being investigated for driving without a working interlock device;

[110] When S.D. was confronted with this record and asked if she agreed that the rules of road do not mean much to her, she replied, “no… everyone is human, and everyone will get something in their lifetime.”

Her Lack of Compliance with the Court Orders not to drive

[111] S.D.s impaired driving charge resulted in an automatic 90-day licence suspension. This occurred on March 7, 2018. Despite this, she drove her daughter to a birthday party in contravention of this suspension and the specific direction of the CAS that she was not to drive the child. I find that she lied about her driving the child and, when finally confronted with a video of her driving, she only replied that, “oh, I forgot, and it was a very busy day.”

[112] S.D. also drove a vehicle after the above incident without having a working interlock device in the vehicle and while her licence was suspended. She stated that she did not realize that her licence was still suspended. I do not believe her. I find that she was aware that her licence was suspended and that she did not care. She lied to the CAS worker, Ms. Kulik, telling her on April 4, 2018, that she was going to renew her driver’s licence, as it had expired. She did not tell her that it was suspended as a result of an impaired driving conviction in March of 2018.

S.D.’s lack of compliance with the terms of the Peace Bond

[113] As part of the resolution of the assault charged against her, S.D. entered into a peace bond that set certain terms that she had to abide by for a period of one year. The relevant portions are as follows:

a) she was to be of good behavior and keep the peace;

b) she was not to communicate with her husband, B.C., unless the communication was for the purpose of arranging access and it was through their lawyers;

c) and she was not to attend within 100 meters of any place that S.D. would reasonably be aware that B.C. would be present, unless there was consent in writing.

[114] The peace bond was entered into on March 5, 2018. When the April 2018 access schedule was being worked out by the CAS, there was no agreement reached relative to whether S.D. could attend the child, A.D.-C’s, Thursday evening swimming lessons. The Society worker, Ms. Kulik, advised the mother, S.D., not to attend the swimming lessons. S.D. was subject to the above noted peace bond that had only been entered into one month before. Without an agreement in writing, she could not be present at the swimming lessons.

[115] The court prohibition that she had agreed to only one month earlier did not seem to matter to S.D. Nor did it matter that she was also ordered to comply with the CAS’s directions regarding access. She attended at the swimming lessons on approximately six occasions, despite the orders and directions not to. S.D. told Ms. Kulik that she would attend the swimming lessons regardless, as she felt it was her right to do so as the child’s mother.

[116] Consistent with her pattern of conduct, S.D. gave an explanation that demonstrated a complete lack of reasoning and a reckless disregard for court orders. She testified at this trial that she thought her peace bond was put into place for her protection. She held this view despite her agreeing to the suggestions of counsel that she was the only one charged with an offence. She also stated that the charges were withdrawn and she is the one who signed the peace bond, which clearly indicates that the factual underpinnings for the charge were substantially correct and that the victim had reasonable cause to suspect that, if the peace bond was not entered into, there was a real risk to his physical safety.

[117] S.D. stated that she did not read the peace bond before she signed it.

[118] The presenting concerns of the CAS from December 2017 have been

a) the mother’s substance abuse issues;

b) the mother’s emotional volatility and mental health; and

c) the child’s chronic exposure to parental violence;

[119] Upon considering all of the evidence, I do not find that the mother is a credible witness, as it relates to all of the above material issues of concern. I find that she has lied to authorities, CAS workers and police with respect to her consumption of alcohol and her driving when she was prohibited from doing so.

[120] I find that S.D. was the main aggressor in most of the incidents of domestic violence that the child has been exposed to. It is concerning that both S.D. and B.C. have continued to have sexual relations. I do not accept S.D.’s assertions that the sex between her and B.C. was forced sex. Nevertheless, this activity does not advance either parents’ need to disengage from each other. The often referred to expression of “they had real chemistry together” takes on a different meaning with S.D. and B.C: their chemistry is combustible and, too often, their explosions impact their children in very negative ways.

[121] I find that S.D. has not followed through with any programs that would allow me to find that she is dealing with this serious issue. I find that she is in denial of her addiction issue and, as a result, she has no insight into the problems that she could cause her child when she is not available to her as a result of intoxication. Her driving while prohibited is recent and that poses a real risk of physical harm to the child.

The Involvement of the Oxford CAS

[122] Sarah Humphrey had scheduled meetings with S.D. once per month. Ms. Humphrey did not observe anything of concern and stated that the home was kept “immaculate”. In or about the end of September 2020, S.D. told Ms. Humphrey that she got her licence back and wanted to know if she could drive with the children. Ms. Humphrey told her that she needed to clear that through Waterloo CAS. However, Ms. Humphrey added that she was aware the S.D. has driven the children and she “assumed” that was okay.

[123] During the months of October, November and December, the only issue of concern that was expressed was the fact that A.D.-C. was having “accidents” with respect to toileting and S.D. was insisting that B.C. was holding back on providing her with a special Portuguese cream that works for the child’s rash. The Waterloo CAS worker testified that this should not have been a problem, as any diaper rash type of cream would have worked.

[124] In January 2021, the month immediately before the commencement of this trial, concerns did present themselves relative to the issue of S.D.s driving while she was prohibited from doing so. S.D. told Ms. Humphrey that, on January 24, 2021, she was driving with A.D.-C in the car. She was on the highway and she “thought that someone was following her”. She was then pulled over by the police. She was driving her vehicle with an interlock device that did not work. She apparently told the police officer that someone had tampered with it. He let her drive on. Shortly thereafter, the private investigator who was following her, approached the police officer and asked him if he was aware that S.D. had been charged as recently as September 2020 for driving a vehicle without a working interlock device in contravention of her licence requirements.

[125] As a result of that new information, the police officer went to where he learned S.D. was going with the children in the car and stopped her again. It was determined that someone had tampered with the wires on the interlock device. S.D. was not detained and was allowed to go as a relative came to drive her and it was determined that she was no longer going to be driving the vehicle. This event is still under investigation.

[126] Ms. Humphrey did not express any concern that S.D. was, once again, not complying with rules and orders that were put in place because of her problem with alcohol. Her only concern was that the father had hired a private investigator who caused S.D.s car to be stopped twice in a short period of time. The Oxford CAS then opened an investigation on whether the conduct of the father, B.C., was abusive toward the children.

[127] Ms. Humphrey stated that she was assigned to do the investigation. She testified that, before she could talk to anyone, she felt that she, too, was followed on certain specified days. She testified that she was very concerned about this. She contacted the mother, S.D., to ask her to describe the car that had followed her, as she was concerned that the same car had followed her for two days in a row. S.D. described that car as a black Acura. When Ms. Humphrey told her that the car that was following her was a Chrysler and that the private investigator had been driving a black Chrysler, S.D. told her that the car that was following her was probably a Chrysler.

[128] Ms. Humphrey’s testimony was very concerning. Not only did she not recognize that there may be a real problem that S.D. was not complying with the rules and orders that had been put into place because of her misuse of alcohol, her main focus was her view that the problem was that the father, B.C., was causing harm to the children by causing the police to investigate and stop the mother with 2 successive vehicle stops while the children were in the vehicle.

[129] In my view, the worker’s conduct became even more concerning when she testified that she felt that she was being followed by the same vehicle that had followed the mother. As a result, the Oxford CAS initiated an investigation and assigned that same worker to conduct the investigation. When I expressed to her that I found it concerning that she was the investigator that was now too close to the issue, she stated “you may have a point”.

[130] Ms. Humphrey confirmed that her concern was her perception that the private investigator that was hired by the father, was following her in the same manner as he was following S.D. The private investigator testified that he was out of the country during the period in which Ms. Humphrey claimed that she was being followed. I accept his testimony that neither her, nor anyone who works for him, was following Ms. Humphrey.

[131] Police Constable O’Neill was the officer who made the stop on the highway and later at the child drop off location. He testified that there were children in the car. The children were not upset. He stated that he is sensitive to children being present and he conducts himself in a manner that would lesson any issues for the children.

[132] Constable O’Neill stated that he had “significant concerns” that the interlock device was never installed. According to Constable O’Neill, although S.D. stated that she was going to go to the program service provider on Tuesday, following that weekend, to have the device “repaired”, she could not show him how the car could have started with a non-working device. Constable O’Neill stated that he was continuing to investigate the matter.

[133] The private investigator, Chris Williams, also testified. He has been a licensed private investigator in Ontario for 25 years. He stated that, on January 24, 2021, he was engaged by the father, B.C., to conduct surveillance on the mother, S.D. B.C. expressed concern that the mother was not operating her vehicle with a working interlock device, as she was required to do.

[134] Mr. Williams stated that he observed S.D. exit her home in Woodstock with two children. Once the children were placed in the car, S.D. started her vehicle without the use of an interlock device. Mr. Williams learned from the Woodstock police that S.D. had been charged in September with driving a vehicle without a properly operating interlock device. Shortly thereafter, he saw a police constable with the Waterloo Regional Police, and he flagged him down. He told Constable O’Neill about S.D driving without an operating interlock device. He observed Constable O’Neill stop S.D. and, shortly after the stop, Constable O’Neill let S.D. drive away.

[135] Mr. Williams stated that he felt that this was a public safety issue and he approached Constable O’Neill, once again, and asked him if he knew that S.D. had been charged in September with driving without an operating interlock device. Constable O’Neill stated that he did not, and then followed S.D. to the residence that she was going to be dropping the children off at, and made further inquiries. S.D. did not drive the children any further and her father-in-law took over the driving from that point. Constable O’Neill did not take any further action at that time.

[136] When Constable O’Neill was being examined by counsel for the CAS and counsel for S.D., both emphasized in their questioning that any noncompliance with operating a vehicle would only result in a fine under the Highway Traffic Act. Constable O’Neill agreed with that suggestion. I find that both the questions and the answer are misguided and wrong. The attitude that noncompliance with having to drive with a proper operating interlock device is a matter of public safety. It is not to be minimized in its implications. It is serious and it can result in a further Criminal Code charge pursuant to section 259(4) of the Criminal Code of Canada, which reads as follows:

Operation while prohibited 320.18 (1) Everyone commits an offence who operates a conveyance while prohibited from doing so (a) by an order made under this Act; or (b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730. Exception (2) No person commits an offence under subsection (1) arising out of the operation of a motor vehicle if they are registered in an alcohol ignition interlock device program established under the law of the province in which they reside and they comply with the conditions of the program [emphasis added].

[137] A Conveyance is defined in the Criminal Code as including “a motor vehicle”.

[138] It is also important to consider the section of the Criminal Code that introduces the offences relating to driving and the consumption of intoxicants. The fact that parliament has chosen to put in a “Declaration of Principles” is a reflection of how significant the offences and overall scheme is to ensure public safety. This part starts out with a declaration of various principles, prior to outlining the offences relating to impaired operation of conveyances. Section 320.12(a)(b) reads as follows:

Recognition and declaration 320.12 It is recognized and declared that (a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety; (b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians;

[139] What seemed to have been lost by the Oxford CAS and the Waterloo Police Constable is the above noted importance that is set out in the law with respect to the safety and health of children and Canadians in general. This is especially significant when children are put at risk by an adult who is responsible for them. I find that S.D. does not feel that that the law, rules and regulations carefully crafted by the legislators to protect the public from individuals who drink to excess and drive pertain to her. She cannot be trusted to drive a vehicle with children in that vehicle.

[140] I have the benefit of considering all of the evidence. Upon a review of the evidence, S.D., as recently as 2 weeks prior to this trial, put at risk the health and safety of the public and the health and safety of the two children that she had in her car.

[141] Someone who is subject to the requirement of having a valid licence only when they have an operable interlock device must ensure that, always, when they are driving a vehicle, that device is in working order. They must take the device into the service provider that they have contracted with in order to allow for them to download the information on that device as a further check on how the device is working and whether it is being used properly.

[142] In this case, I find that S.D. knew that her device was not working. She did not bring the device in for repair. She only brought the device into her service provider, Alcolock, after the police stop on January 21, 2021. A copy of her invoice dated January 26, 2021, was filed as an exhibit. This invoice demonstrates that she was entering into a contract with Alcolock on that date for a “re-installation fee and a monitoring fee’.

[143] It is clearly noted on the Alcolock invoice that the client acknowledges and understands the operation of the approved interlock device and that he or she is responsible for ensuring that the ignition interlock is properly operated and maintained, and that it is not tampered with by any person.

[144] It is also necessary to emphasize that one of the directions given to S.D. by the CAS was that she attend a program that would assist her in dealing with her alcohol addiction issues. Ms. Kulik was told by S.D. in an October 12, 2018, meeting that she that she did not have a problem with alcohol, but nevertheless would attend a program that was offered by Alcoholics Anonymous called “Back on Track”.

[145] S.D. acknowledged that she attended two sessions of that program. However, she did not feel that she fit in and she did not want to be considered as a “Princess”. She did not complete that program.

[146] The Ministry of Transportation Ontario (MTO) website outlines a number of rules and regulations that are mandatory with respect to the Ignition Interlock program. It is significant to note that S.D.’s representation to Ms. Kulik with respect to the “Back on Track” program – which S.D. indicated was an AA run program that she tried but was not suited to her – is not what she represented it to be. This program is mandatory when someone is convicted of impaired driving. Not only did S.D. not inform Ms. Kulik that she was convicted of impaired driving, she misrepresented to her what the Back on Track program was all about. S.D. did not have a choice. She had to complete this program, or she was not able to get a valid licence to drive.

[147] The applicable MTO rule is as follows:

Criminal Code conviction Ignition interlock condition If you have been convicted of an impaired driving-related offence under the Criminal Code, you will be eligible to have your driver's licence reinstated after you serve all the provincial sanctions, including serving a licence suspension, paying the reinstatement fee or administrative monetary penalty and completing the Back on Track remedial program. You will have an ignition interlock condition (“I”) placed on your driver's licence for a period of: • First-time offenders: minimum of 1 year • Second-time offenders: minimum of 3 years • Third-time offenders: minimum of 6 years, if licence is reinstated after a minimum 10-year suspension The program does not apply to fourth-time offenders, as their licence is suspended for life and will never be reinstated.

[148] I find that S.D.’s multiple misrepresentations and material omissions to the relevant authorities allows me to draw the reasonable inference that she is not obeying the court orders and the mandatory rules relative to her drinking and driving because she feels that those orders and rules do not apply to her. She feels they do not apply to her because she has no insight into her problem. I find that she will drink and drive when she wants to and there is a real risk that any child who is with her is at serious risk of physical harm.

[149] This matter came before Justice Breithaup-Smith on October 22, 2020. At that time, upon reading an agreed statement of facts file by the parties and hearing submissions of all counsel, she made the following order:

The court makes the following findings: a) the names and dates of birth of the children are: A. C.D. (referred to in my reasons as A. Jr,), born […], 2011, and A.D-.C., born […], 2014; b) the children are not First Nations, Inuk or Metis children; c) the location form which the children were removed is the Waterloo region; [and] d) the children are in need of protection pursuant to section 74 (2) (h) of the Child Youth and Family Services Act.

[150] Justice Breithaup-Smith went on to grant an order pursuant to s. 102 of the CYFSA for joint custody of the child A.C.D-S. to S.D. and the father of that child, A.S. who was also granted access to the child that was set out in that Order.

[151] Accordingly, the issues before me are

a) whether the child A.D-C. remains a child in need or protection;

b) if so, what subsection of s. 74 of the CYFSA applies; and .

c) what should be the disposition that would be in the best interest of the child.

The Law and Analysis

Child in Need of Protection

[152] This application has been before this court for far too long. The original application for protection was brought on December 12, 2017. At that time, the CAS sought a finding of the child to be in need of protection pursuant to ss. 37(2)(b-i)(b-ii) and (g) of the Child and Family Services Act. The Act has since been replaced. It is now the CYFSA. The equivalent sections in the new CYFSA are ss. 74(2)(a)(i)(ii), (b)(i)(ii) and (h).

[153] The finding of the child in need of protection pursuant to s. 74(2)(h) by Breithaup-Smith J. is a finding that

a) there is a risk that the child is likely to suffer emotional harm of the kind described in subclauses (f), (i),(ii),(iii),(iv) or (v); and

b) that the child’s parent or the person having charge of the child does not provide services or treatment or access to treatment or where the child is incapable of consenting to treatment under the Health Care Consent Act 1996, refuses or is unavailable or unable e to consent to treatment to prevent the harm.

[154] The finding made by Breithaup-Smith J. dated October 22, 2020, was made pursuant to an agreed statement of facts signed by all of the parties effective September 30, 2020. The original application by the CAS was never amended. A finding pursuant to the risk of physical harm to the child, at present, is still a consideration that I must look at, along with whether the child is at risk of emotional harm as of the date of this trial: see Children’s Aid Society of Hamilton-Wentworth v. R. (K.), [2001] O.J. No. 5754 (Ont. Sup. Ct.); Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, 325 O.A.C. 94; N.V.C v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796.

[155] The CAS is seeking a finding that the child, A.D.-C, is in need of protection pursuant to CYFSA within section 74(2)(b-i)(bii) and (h). The relevant subsections reads as follows:

Child in need of protection (2) A child is in need of protection where, (b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; (f) the child has suffered emotional harm, demonstrated by serious, (i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child; [or] (h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

[156] I find that A.D.-C. is a child who is in need of protection pursuant to all of the above sections of the CYFSA. This 7-year-old girl has lived in the shadow of her parent’s chaos and conflict for much of her life.

[157] A.D.-C. lived in a home that gave her a constant reminder of her parent’s battles. The holes, the scrapes in the walls, the broken doors and dented garage doors were daily reminders of the chaos this child witnessed.

[158] I find that most of the violence in the home was as a result of the mother, S.D.’s rages. As I reviewed the details of many of the parental conflicts earlier in these reasons, I found that S.D. was not a credible witness. She projected blame onto others when the evidence established that she was the cause of the violent events. The incidents between December 3 and 5 of 2017 are prime examples of such projection. She claimed that her husband had assaulted her. However, the police investigation resulted in criminal charges of assault against her.

[159] I find that S.D. continuously misrepresented and made false allegations of assaults and sexual assaults by B.C. The only corroboration to any of these allegations in S.D.’s case was her mother, S.M. S.M. was also not a credible witness.

[160] I do not believe S.D. when she asserts that her husband forced her to have sexual relations, even as recent as early January 2021. S.D. was inconsistent with the allegations of forced sex. An example of this inconsistency is her testimony that her husband would use sex with her in order to, in effect, trade sex for increased access. She later stated that she is the one who would have sex with him in order to get her husband to allow her more contact with her daughter.

[161] What is not contested between these parents is that they continued to have consensual sexual relations right up to, at least, the end of November 2020. B.C. stated that he was too embarrassed to tell anyone. S.D. told CAS workers, Ms. Humphrey and Ms. DeBoer, that her husband came to pick up A.D.-C early one day and kicked her door in and yelled at the child to get her things. S.D. also stated that he would force her to preform oral sex and intercourse and, on this occasion, he inappropriately told her that she needed to get laid.

[162] B.C. denied that he ever forced his way into S.D.s home and he never forced her to have sex. On the occasion S.D. stated that he came to her house early, B.C. stated that he did not come early, and that S.D. was demanding that she keep the child longer. He also stated that he was invited into the house by S.D. for him to fix something on her computer. I do not believe S.D.s allegations of assault or sexual assault by B.C.

[163] S.D.s lack of credibility is highlighted by her continued use of alcohol and her denials about her alcohol use. I have detailed the many inconsistencies and misrepresentations earlier in these reasons. I find that she has not dealt with this very significant issue. She denies she has a problem. She has never followed through with treatment for this addiction and therefore she has no insight to how this addiction is a risk to her child’s safety and wellbeing.

[164] S.D. has gone so far as to disobey court orders that she not drink. She has been charged with not having a workable interlock device in her vehicle and she is under investigation for further noncompliance with this mandatory requirement.

[165] I find that A.D.-C. remains a present risk of both physical and emotional harm to her child. S.D. has not shown that she is willing and/or able to comply with orders of the court, and directions of the CAS. She has not made enough gains in order to deal with her wide emotional mood swings that precipitate her rages. She has not dealt with her addiction issues. Until she can demonstrate that she has sight into her problems and that she is effectively dealing with them in order to be in a position to eliminate the real risk of harm that she posses to her child, her child remains a child in need of protection.

[166] Upon making a finding that a child is in need or protection, the court must then decide what disposition should be ordered that is in the best interest of the child. Section 72 of the CYFSA reads as follows:

Best interests of child 72 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

Order where child in need of protection

[167] Pursuant to s. 101 (1) of the CYFSA, where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, or an order under section 102, in the child’s best interests:

101(1) Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. Interim Society care
2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months. Extended Society Care
3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123. Consecutive orders or interim society care and supervision
4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

[168] Pursuant to ss. 102 (1) and (2) of the CYFSA, if the court finds that an order under section 102 instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[169] An order made under s. 102 and any access order made under s. 104 that is made at the same time as the custody order is deemed to be made under section 28 of the Children’s Law Reform Act (“CLRA”) and the court,

(a) may make any order under s. 102 that the court may make under section 28 of the CLRA; and

(b) may give any directions that it may give under s. 34 of the CLRA.

[170] Subsection 101(3) of the CYFSA requires the court to look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Subsection 101(4) of the CYFSA requires the court to look at community placements, including family members, before deciding to place a child in care.

[171] Paragraph 2 of s. 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[172] In determining the appropriate disposition, the court must decide what is in the child’s best interests. The court is to consider the criteria set out in s. 74(3) of the CYFSA in making this determination. The views of a child must be considered if they can be reasonably ascertained.

[173] Subsection 93(1) of the CYFSA stipulates that, despite anything in the Evidence Act, in any proceeding under Part V of the CYFSA, the court may consider the past conduct of a person toward any child of that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

Status Quo and the Continued Relationships with Extended Family and Community

[174] I find that the child, A.D.-C., has been in the primary care of her father, B.C., since December 5, 2017. The child’s paternal grandmother, F.C., has played a significant role in assisting the father with childcare. I accept F.C.s evidence that she will continue to play a significant role in caring for this child. F.C. was a designated supervisor for S.D.’s access between the child and her mother for a lengthy period of time. I find that, in spite of her knowledge of S.D.s addiction problems and severe mood swings, F.C. has conducted herself in a manner that the court does have confidence that she is able to protect the children and act a resource to S.D. in order to S.D. to deal with the issues she needs to deal with in order to provide a safe and secure environment for the subject child.

[175] I was positively impressed with the paternal aunt’s testimony. T.L. is B.C.’s sister. She is an elementary school teacher. She teaches grade 5. She has been a teacher for over 10 years. She also has 3 children. One of her children, A. L., is very close to the child A.D.-C. they were born only 3 weeks apart. The paternal grandmother, F.C., also provides childcare for the child, A. L. I find that the extended family of B.C. is a positive resource for both B.C. and the child. The child is close with her paternal grandmother, her aunt and her cousins.

[176] The child, A.D.-C., is doing well in school. She has friends in her neighborhood and in school. She also attends swimming lessons within her community. She likes these lessons and she receives benefits from these activities. She is good at swimming. She has developed friendships. This represents a connection within this community that should not be disturbed.

[177] The child’s health care professionals are also within the community that the father resides.

[178] I find that the father is the one who most likely will support the continued involvement of the mother with the child. He has done this since the child was placed in his care on December 5, 2017. He has been the only one who has provided all of the transportation of the child to and from access to the mother. This transportation takes approximately 40 minutes each way from the Cambridge area to Woodstock.

[179] Although the mother verbalizes that she would also promote the father’s relationship with the child, I do not have confidence that she will. She admitted that she told the CAS worker that, once she gets custody, he will be made to feel the pain that she has felt over the years. At trial she stated that she no longer feels that way.

[180] S.D. moved to a new residence from the Waterloo Region area to Woodstock Ontario. This new residence was inspected by the Oxford CAS, since the home was located in their jurisdiction. The home is a 3-bedroom house. There is one tenant who has a separate entrance.

[181] S.D. has extended family living in Woodstock. Although her mother, F.D, resides in the Cambridge area her father lives in Woodstock. S.D. did not disclose to the CAS that her father owns the house that she lives in now. He is her landlord. I find this lack of disclosure on the part of the mother to be concerning. S.D had disclosed to the CAS and other health professionals that she was sexually abused by her father when she was five years old, and sexually abused by a cousin when she was approximately seven years old. There are multiple references in the health records filed by parties on consent that reflect that the mother may have stress related issues to the trauma of being sexually abused by her father and her cousin.

[182] There is no evidence that the mother has successfully dealt with this childhood trauma. I also find that there is no evidence that there have been any restrictions on the mother’s father that would reduce any risk of harm to A.D.-C. Any order that I make will include a requirement that the mother., S.D., does not allow her child to be left alone with her father.

The Position of the Society

[183] The CAS takes the position that they are not able to provide any more assistance to this family. They have been involved since the beginning of December 2017. They have given direction to both parents on the programs they need to take. It is their submission that the father has successfully completed what he needs to do. The CAS has never had any protection concerns about the father in the three years and almost three months they have been involved with the family.

[184] The CAS points out that it has been the father who has supported access to the mother, and he is the one who has done all of the transportation of the child to and from access ever since the mother moved to Woodstock.

[185] The CAS submits that there has been a long-standing status quo in which the child has been in the care of the father and this status quo should not be changed dramatically. The CAS has never expressed any concerns about the parenting of the father. They support a custody order pursuant to s. 102 of the CYFSA and access to the mother alternating weekends from Fridays until Sunday and one evening per week. They also support holiday times with the mother as considered appropriate by the court.

The Position of the Father, B.C.

[186] The father seeks an order for custody. He does not feel that he and S.D. are able to communicate to the degree necessary to allow for joint decision-making. However, he does agree that he would share relevant information about the child and consult with the mother on all significant decisions. He submits that access to the mother should be as it has been since the mother has moved to Woodstock. In addition, he is prepared to allow for equal sharing of all holidays. He also suggests that, when the child is with the other parent, FaceTime calls should be allowed. However, there should be a set time for such calls.

The Position of the Mother, S.D.

[187] The mother wants custody of the child. She argues that an order for joint custody would also be appropriate, as long as primary residence is given to her. She submits that an order of custody to the father would result in his ability to “control her as he has always done”. She argues that joint custody would be a check on that control.

Conclusion and Order

[188] I do not agree with the CAS that little more can be achieved by continuing with their involvement, at this stage. I am not confident that the mother, S.D. will be able and willing to comply with the detailed order that I feel is necessary and in the best interest of the child. Nor do I feel that the father can or should be put in the position of having to continuously monitor S.D. in order to ensure the safety of the child, from afar.

[189] The CAS is the only one with the statutory authority to apply and ensure that the terms of an order for supervision are followed. There needs to be an order that clearly defines terms and conditions that the CAS can and will attend at the mother’s home unannounced in order to determine the safety risks to the child from time to time.

[190] There also needs to be an order in which the court sets expectations for both parents that can be achieved by compliance with directions for counseling and other programs.

[191] In my view, none of the above can be achieved by an order outside of the confines of the CYFSA. That is exactly what an order under s. 102 would provide. It would become an order under the civil statute, the CLRA. It would be subject to review only by a moving party establishing a material change in the circumstances from the complicated fact base that exists today. This would be a cumbersome and lengthy process.

[192] Under the CYFSA the matter would return to court within the time prescribed in the order. The evidentiary base would also be more readily before the court. A clear measure of the gains or lack thereof can be assessed within this context.

[193] Most importantly, adequate supervision that considers all of the findings of facts that I have made will inform the CAS workers of the graveness of the risks of harm and what it will take to ameliorate that risk.

[194] I do not feel that joint custody is even close to being an option in this case. Joint custody requires an ability to communicate and share decision making that would be in the best interest of the child. The ability to sufficiently communicate cannot be based on a mere hope. It must be realistic and evidentiary based: see Kaplanis v. Kaplanis (205), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.). I also adopt the words of Hambly J. in Facchini v. Bourre, 2015 ONSC 763, at para. 43:

The arguments in favour of increased authority over the child by the access parent are closely related to those which support a presumption in favour of joint custody... They rest on the premise that the relationship of authority and obligation that existed between each of the parents and the child during the marriage should and can continue, despite the fact that the parents may no longer be willing or able to cooperate on its exercise. While joint custody may remain an ideal solution in proper cases, particularly when parents are willing and able to cooperate, such premises are often based on illusion rather than reality and may, in the words of Thorson J.A., amount to “a triumph of optimism over prudence” (Kruger v. Kruger, supra, at p. 681).

[195] There is no such evidence in this case. To the contrary, most of the communication between the parents has erupted in conflict and turmoil, which has exploded all around the child. This cannot continue.

[196] I find that S.D.’s conduct over many years is demonstrative of someone who has little to no regard for authority, rules and court orders. This complicates and limits the flexibility the court might have had to allow for a parenting regime that is controlled by each parent in a responsible manner. I have no confidence that S.D. is able to put her own self-interests behind that of her child’s needs and her best interest. She has demonstrated on multiple occasions that she has put her children at risk of harm as a result of her lack of insight into her problematic behavior, which I find to include the following:

a) her denial of her alcohol problem and resulting lack of insight into this very significant limitation on her ability to parent;

b) her cavalier attitude to any risk to her children when she is speeding on the highway. I accept the testimony of Chris Williams that approximately a few weeks of this trial starting, S.D. she was driving with her children in the car at speeds between 125 and 144 kilometers per hour placing them at risk of harm;

c) S.D. frequently projection onto her husband, B.C. conduct that she was the main perpetrator. I find that it was S.D. who was the main instigator of many of the incidents of domestic violence between the two of them that took place within the hearing and sight of the children. She has never satisfactorily dealt with her severe mood swings her rages and her anxiety issues.

d) As a result of my analysis and findings of fact, I make the following order:

i. The child, A.D.-C., born […], 2014, is in need of protection pursuant to s. 74(2)(i)(ii)(h) the CYFSA.

ii. The child is not First Nations, Inuit, or Metis.

iii. The child was removed in the Waterloo Region.

iv. The child, A.D.-C., born […], 2014, shall continue to be placed in with the father.

v. The child shall be placed with the father, B.C., for a period of six (6) months under the supervision of the CAS.

vi. The mother, S.D., shall have access to the child, such access to be supervised by the CAS.

vii. The mother, S.D. shall permit the Society workers to enter her home without prior notice to her. She shall cooperate with the CAS works in allowing them full access to her home as requested by the CAS from time to time.

viii. The times in which the access to the mother shall take place are as follows:

Weekends and Weekdays

1. alternating weekends from Fridays at 7 p.m. until Sundays at 7 p.m.; and
2. every Wednesday evening from 6 p.m. until 8 p.m.

Holiday periods 3. The mother, S.D. shall have the child on alternating school March breaks from 6 p.m. on the day of the start of the March school break until the Sunday at 7 p.m. immediately prior to the recommencement of school.

ix. The mother shall have the child on the following times over each Christmas school break:

1. December 24, from 6 p.m. until December 25, from noon until noon on December 26.

x. Easter school break shall be alternated between the parents, with the mother having the child for the Easter break 2021 from 6 p.m. the Thursday before Good Friday until 7 p.m. on Easter Monday;

xi. The Mother shall have the child on Mother’s Day from 9 a.m. until 7 p.m. on the weekends that she does not have her regular access.

xii. The Father shall have the child on Father’s Day from 9 a.m. until 7 p.m. on the weekends that he does not have the child.

xiii. For the summer months, the mother shall have the child for an uninterrupted period of one week in July and one week in August, commencing on a Sunday at 7 p.m. until the following Sunday at 7 p.m.

xiv. For the one-week access, the mother shall provide the father with written notice of the week she wants to exercise this access no later than June 1 in each year.

xv. If the mother has not provided the notice as set out in para. m above, the father shall provide to the mother a written notice of the weeks that he chooses to have the mother exercise such access.

xvi. For the remainder of the summer months, the regular access schedule applies.

e) The mother shall not take the child out of an area of more than 50 kilometers from her home in Woodstock without the prior written consent of the father and the CAS.

Transportation to and from access

f) The parents shall share equally the transportation of the child to and from access to the mother.

g) On the alternating weekend access, the mother shall pick the child up at the father’s home at the assigned time. The mother shall arrange for suitable transportation during the period that she is still prohibited from driving. She may only drive the child when she has provided proof to the father that she can drive a motor vehicle without any licence restrictions, or when she has a fully operating interlock device installed in the car that she is driving with the child.

h) The father shall pick up the child at the assigned time at the Sunday return time.

i) The mother shall attend for the access time during the week in the city where the father and the child reside. She shall arrange for the transportation of the child. This access shall take place in the city where the child resides with the father. The same restrictions with respect to driving for weekend access applies to the weekday access.

j) For all holiday access, the mother shall pick up the child form the father’s residence and the father shall pick up the child from the mother’s residence when access is completed in accordance with the above noted assigned times.

k) The mother shall not consume any alcohol or other non-prescription drugs for a period of 12 hours before access to the child and at all times while the child is with her for access.

l) Both the mother and the father shall only communicate through the internet site “Our Family Wizard”. Each of the parents shall be equally responsible for the costs.

Telephone/FaceTime access

m) The child shall be allowed to FaceTime with the other parent for a period of one hour at 7 p.m. on each day that the parent does not have the child in his or her care.

Positive Covenants

n) S.D. and B.C. shall promote the other parent in a positive manner, as parent to the child, at all times.

o) The father, B.C., shall send a written note to all relevant health care providers, and educators to give permission on his behalf to allow the mother, S.D., to receive any records notes and reports relevant to the child’s health care and education.

p) Prior to making any decisions relating to the health and welfare of the child, except in the case of an emergency, the father shall consult with the mother about that decision.

q) Prior to making any decisions for the child’s education, the father shall consult with the mother.

r) If the parents are not able to agree on a decision dealing with the health, welfare and education of the child, the father shall make the final decision.

s) The parents shall ensure that the child has counseling available to her in order to be the child’s outlet and to deal with any emotional issues that the child may have from time to time.

t) The mother, S.D., shall follow the direction of the CAS relative to which programs and counseling she needs to complete in order to deal with her emotions, mental health issues and her challenges with alcohol.

R. J. Harper, J.

Released: April 26, 2021