COURT FILE NO.: C1394/17-2 DATE: March 23, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

BETWEEN:

Children’s Aid Society of London and Middlesex Applicant

- and -

M.F.G.W., C.S., T.J.H., L.M.B and Q.B. Respondents

Counsel: Catherine Dyck, for the Society M.F.G.W. in person C.S. and T.J.H. not appearing Eric M. Vallillee for L.M.B and Q.B.

HEARD: February 24, 25 and March 1, 2, 3, 2022

SAH J.

Overview

[1] This Status Review Application was initiated by the Children’s Aid Society of London and Middlesex (the “Society”).

[2] It pertains to the children S.S-W (“S.W.”), 17-years-old, and S.H., 6-years-old.

[3] M.F.G.W. (the “mother”) is the mother of both children. C.S. is the father of S.W., and T.J.H. is the father of S.H. (“T.H.” and/or “S.H.’s father”).

[4] The final order granted by Korpan J. on August 30, 2018 placed the children in the care of the mother under a six-month supervision order (the “Korpan J. order”).

[5] Since the making of the Korpan J. order, the Society commenced a Status Review Application seeking the termination of the order regarding S.W. The Society initially sought a further supervision order for S.H. As time progressed, the Society amended their Status Review Application, first seeking a six-month interim society care order, and finally, seeking an extended society care order.

[6] On August 11, 2020, Mitrow J. placed S.H. in the care of L.B. and Q.B. (sometimes collectively referred to as the “B family”), where she remains to date (the “Mitrow J. order”).

[7] L.B. and Q.B. subsequently filed Answers and Plans of Care seeking custody of S.H. The Society supports their requests.

[8] The mother filed an Answer and Plan of Care and was represented by counsel. She was self-represented at the time of trial.

[9] S.H.’s father (T.H.) also filed an Answer and Plan of Care when represented by counsel. He was self-represented at the time of trial.

[10] S.W.’s father (C.S.) did not file an Answer and Plan of Care. He had not participated in the proceedings at any stage.

Evidence

[11] The Society called seven witnesses, including: Lauren Pope, Fanaye Abera, Julie Lounsbury, Myrthe Denijs, Catherine Hatfield, M.H. (S.H.’s paternal grandmother), Jodi Silverstein, Tara-Lynn Pelletier and Dr. Louise Sas. Some witnesses provided their in-chief evidence orally and through affidavits.

[12] L.B. and Q.B. both testified.

[13] In these reasons, I will not review the evidence of every witness. I will refer to certain aspects of the evidence I accept in my analysis of the issues before me.

[14] Before the start of trial, Ms. Denijs emailed both parents at their last known email addresses, called the mother at her last known number, and left a voicemail providing information regarding the trial.

[15] Further, Ms. Denijs attended the mother’s last known address and left a letter for the mother to advise her that the trial was scheduled to commence.

[16] Further, Ms. Denijs asked the kin caregivers, the B family, to send a Facebook message to the mother to advise her that the trial was proceeding. Ms. Denijs understands that a response to the Facebook message was received from the mother, who indicated that would attend. She did not attend on the first day of trial.

[17] The mother’s only attendance was by telephone for approximately 30 minutes on the third day of trial. The mother informed the court she was attending to observe and that she would not participate with questioning of her own. She disconnected from the virtual courtroom after approximately 30 minutes and did not reconnect or reattend.

[18] S.H.’s father did not attend trial.

[19] S.W.’s father did not attend trial.

Issues for Determination

Issue #1: Do S.W. and S.H. remain in continued need of protection?

Issue #2: If the children are found to be in need of protection, what disposition orders are in their best interests?

Issue #3: What, if any, access order is in S.W. and S.H.’s best interests?

[20] For reasons set out below, I find that S.W. and S.H. continue to be in need protection. It is in S.W.’s best interests for the existing order to terminate. It is in S.H.’s best interests to be placed in the custody of L.B. and Q.B. with incidental orders relating to custody and access.

Issue #1: Do S.W. and S.H. remain in need of protection?

[21] In the Korpan J. order, S.W. and S.H. were both found to be in need of protection under s. 74(2)(b)(i) – risk of physical harm of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA).

Position of the Parties

[22] The Society submits that both children remain in need of protection as there has been no improvement to the mother’s circumstances since the making of the Korpan J. order. Specifically, the mother has been evicted, arrested, continues to struggle with her mental health, and remains unstable and transient.

[23] In addition, since the making of the Korpan J. order, S.H.’s father has been incarcerated, charged with robbery, and continues to struggle with his mental health.

[24] Although the mother did not present any evidence, her Answer and Plan of Care suggests that she can continue to meet the children’s physical, mental, emotional, social, educational, and recreational needs. The mother maintained in her pleadings she has no ongoing health issues and therefore has not been assessed for mental health treatments. She maintains that she is ready, able, and willing to resume care of the children.

[25] Although T.H. did not attend trial, his Answer and Plan of Care sets out his desire to have S.H. placed in his care or in the care of the mother subject to Society supervision.

[26] L.B. and Q.B. support the Society’s request for a finding that S.H. remains in need of protection.

Legislative Framework and Legal Principles

[27] To begin, the court must consider the paramount purpose of the CYFSA.

[28] Section 1(1) provides that the CYFSA is to promote the best interests, protection and wellbeing of children.

[29] Another purpose of the CYFSA, so long as it is consistent with the paramount purpose, is designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available: Children’s Aid Society of Toronto v. H.F., 2020 ONCJ 526.

[30] The Society initiated this Status Review Application under s. 113 of the CYFSA.

[31] Section 113(2) sets out one permissive circumstance and two mandatory circumstances wherein a society may seek a Status Review.

[32] The predecessor to the CYFSA, being the Child and Family Services Act, R.S.O. 1990, c. C.11, was considered by the Supreme Court of Canada in the context of a Status Review Application in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 SCR 165 (“M.(C.)”). Although the legislation has changed since the Supreme Court of Canada decision, the principles remain relevant and continue to apply.

[33] At para. 35 of the M.(C.) decision, the court stated:

[35] It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken into protection by the respondent Society. The question to be evaluated by courts on status review is whether there is a need for a continued order for protection. … [emphasis in original]

[34] The Supreme Court of Canada in M.(C.) set out how the court is to determine whether there is a continued need of protection and it states, at para. 37:

[37] The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. … [emphasis in original]

[35] The test articulated by the Supreme Court of Canada was applied by the Ontario Court of Appeal in Children's Aid Society of Oxford County v. W.T.C., 2013 ONCA 491, [2013] O.J. No. 3438 (“W.T.C.”). The Court of Appeal stated that, although a determination that a child continued to be in need of protection was a requirement for a further protection order, the determination did not need to be based on the “need of protection” as the term is defined in the legislation (currently s. 74(2) of the CYFSA, previously s. 37(2) of the Child and Family Services Act): W.T.C., at para. 32.

Evidence and Analysis

Mother

[36] Ms. Pope was the ongoing child protection worker from late 2017 to April 2019. She deposed that the family situation deteriorated after the Korpan J. order was granted.

[37] The mother continued to experience issues with housing. She took her landlord to a tribunal hearing. Further, she reported that it was too difficult for her to manage rent at her residence.

[38] A month after the Korpan J. order was granted, the mother still had not registered S.H. in daycare. Ms. Pope directed her to contact Merrymount to see if they could assist and she agreed to do so.

[39] The Society consistently provided the mother with bus tickets to allow S.W. to attend school. Notwithstanding this, once, approximately two months after the Korpan J. order was made, S.W. still had not gone to school due to the lack of bus fares.

[40] On October 5, 2018, Ms. Pope described the mother to have difficulty focusing and remained fixated on ramblings regarding how the system has failed her and her children.

[41] Ms. Pope was scheduled to meet with the mother on October 25, 2018, but the mother cancelled.

[42] Ms. Pope attended the mother’s home for a scheduled appointment on October 29, 2018. A male who identified himself as N.C. was present. The hydro had been cut off. The mother presented as scattered and frustrated.

[43] On October 29, 2018, S.W. was not in school. The mother indicated that he needed a mental health day but when asked, S.W. confirmed he required bus tickets. Ms. Pope returned to the Society office and returned with ten bus tickets for him.

[44] On November 8, 2018, approximately three months following the making of the Korpan J. order, two women attended the Society unannounced to speak with Ms. Pope.

[45] Reports were made that S.W. had been in the care of one woman, as he was friends with her son. It was reported that she had been caring for S.W. for almost two weeks, however, could no longer continue to do so. Reports were made that the mother and N.C. appeared under the influence of drugs.

[46] The woman caring for S.W. indicated that she had been in touch with S.W.’s father and stepmother in New Brunswick, who were concerned about him and would have him stay with them.

[47] On November 8, 2018, Ms. Pope attended the mother’s home unannounced. She observed the screen door to be propped open by a planter, there was no glass in the screen door, but a large piece of glass was observed outside. Ms. Pope observed the door itself to have several holes in it and appeared to be almost broken in half down the middle. Despite multiple attempts to ring the doorbell and knock, there was no response.

[48] Ms. Pope deposed that eventually a male exited the mother’s home and asked who she was looking for. Ms. Pope was advised that the mother had been evicted but was staying with someone nearby. Ms. Pope attended the location of where the mother was said to be staying and found the residence derelict and rundown.

[49] The mother did contact Ms. Pope that same day to advise that she had not been staying in her residence for security and she confirmed that S.H. was with her, but S.W. was still with a friend.

[50] On November 22, 2018, Ms. Pope attended the mother’s residence. After several attempts of knocking on the door, the mother eventually came to the door, denying any recollection of an appointment and she refused to meet with Ms. Pope.

[51] Then the police reported that the mother and S.H. were in the residence of N.C.

[52] The Society was advised that N.C. had been arrested on breach of his conditions. It was reported that the mother had remained at N.C.’s residence but had planned to return to G.F.’s (an acquaintance of the mother) residence in the morning.

[53] Ms. Pope attended at the residences of N.C. and G.F. to locate S.H. and remove her from her mother’s care.

[54] N.C. reported that the mother had stolen his vehicle, his phone, and approximately $10,000 worth of jewelry.

[55] Ms. Pope then attended the home of G.F. He admitted to seeing the mother in the morning but denied knowing where she was or when she would be returning.

[56] London Police Services advised Ms. Pope that if the mother was located, she would be arrested and the Society would be contacted.

[57] On January 26, 2019, Ms. Abera, the emergency duty worker on-call for the Society, received the call from London Police Services reporting that the mother had been arrested and remained in custody. S.H. was at G.F.’s residence.

[58] When Ms. Abera attended G.F.’s home, he was not cooperative and refused to open the door. Police entered through the backdoor and located S.H. in the residence.

[59] Ms. Abera described the home to be cold, dirty, and scattered. She found S.H. sitting on a couch drinking milk out of a bottle. She observed S.H. to be dirty and unkept, with tangled hair.

[60] On January 29, 2019, S.H. was diagnosed with vaginitis, which was likely the result of poor hygiene. She was also determined to be constipated, which may have resulted from undernourishment.

[61] Ms. Denijs was the primary child protection worker since March 2019. She remains the child protection worker. She deposed that the mother failed to attend various scheduled meetings notwithstanding being advised of the date and time such meetings were to take place. Her evidence suggests that the mother frequently confused the dates and times at various attendances, including court attendances, and repeatedly indicated that her emails were being hacked.

[62] Ms. Denijs deposed that the mother randomly made various inconsistent statements. Several examples were provided in her affidavit. She requested that the mother connect with Canadian Mental Health Association (“CMHA”) and obtain a referral for a psychiatrist. The mother did not follow-through with the request.

[63] Once, Ms. Denijs was present in the home when S.H. was brought for a visit. The mother cleaned up the apartment, indicating there was an issue with G.F. She then suggested that someone had beat her up with a bat and held a gun to her chest. She denied the individual resided in the home or attended the residence often.

[64] By July 2019, there were concerns about the mother’s drug use. The concerns stemmed from Ms. Denijs’ colleague’s observations of the mother and S.H. being in a home containing drug paraphernalia. The mother took the child to the home of this individual, who was not approved.

[65] The mother did not deny that she was at this individual’s home, and she failed to recognize that the environment she took S.H. was not a healthy place.

[66] During the July 2, 2019 meeting, the mother answered questions evasively, rambled from topic to topic and had difficulty focusing or understanding.

[67] She did not understand the Society’s expectation that she notify them before about people with whom she plans to spend time with when visiting with S.H. She failed to understand that she must ensure S.H.’s safety and that exposing her to multiple unapproved individuals was not appropriate.

[68] Ms. Denijs deposed that she received emails from the mother claiming that the Society was not following court orders.

[69] The mother failed to attend a scheduled meeting on November 6, 2019 and failed to attend a rescheduled meeting on November 19, 2019. She misunderstood that the meeting was scheduled for noon.

[70] While S.H. was placed in foster care, the mother continuously alleged that she was abused.

[71] Ms. Lounsbury was the child protection supervisor involved with this family from January 2018 to the end of March 2019. She deposed that she interacted with the mother on March 11, 2019, at which point the mother was pointing out a mark on S.H.’s stomach, claiming that she had been abused in the foster home.

[72] According to Ms. Lounsbury, the mother claimed to have observed bruises on S.H.’s cheek.

[73] Ms. Lounsbury testified that the abuse allegations were never confirmed or verified and deposed that she has no information to suggest that S.H was being abused in her placement. When this was communicated to the mother, she claimed the Society had falsified information in their court documents.

[74] Notwithstanding the mother’s claims, the Society continued to set up an access schedule for her as promptly as possible. Meanwhile, the mother contacted the police, alleging that the child had been abused in her foster home. This resulted in the police attending the mother’s home to obtain a statement, however, the mother was not home when the police arrived.

[75] A meeting between the London Police, the mother and Ms. Lounsbury occurred on March 12, 2019, at which time discussions took place regarding a toonie-size mark on S.H.’s left hip bone. No disclosure was provided.

[76] Another appointment was scheduled for March 13, 2019, however, the mother failed to attend the appointment.

[77] Ms. Hatfield was the child in care worker responsible for S.H. from May 2019 to August 2020. As a child in care worker, Ms. Hatfield had to attend the foster home every 30 days. S.H. was with the same foster home from her admission into Society until July 2020 when she resided with L.B. and Q.B., in New Brunswick. S.H. settled into her foster placement without issue.

[78] The mother had reported several issues with foster care. The mother claimed:

• S.H. was being mistreated in the foster home,
• the foster mother was an alcoholic,
• S.H. was exposed to adult conflict, and
• the foster parents were close to a friend accused of stalking the mother and this was a conflict of interest.

[79] All these reported concerns were unverified, and Ms. Hatfield found none of the concerns to be legitimate.

[80] Ms. Hatfield testified that S.H.’s foster placement was of the highest quality. She testified that S.H. was always dressed appropriately, and that she never questioned the care she was receiving.

T.H. - S.H.’s father

[81] On February 9, 2019, Ms. Pope received an email from the Society court liaison worker, who reported that S.H.’s father remained in custody and had not been released on bail.

[82] On April 18, 2019, Ms. Pope spoke with S.H.’s father, who continued to be incarcerated. When asked about his arrest, he stated that he was still dealing with previous charges. He was unsure where he would go if he was released.

[83] Ms. Pope testified that she interacted with T.H. following his release from jail. She understands that he was released in April 2018.

[84] Ms. Pope requested that T.H. get support from CMHA. He did contact them once but did not follow-through.

[85] The father did not have access to S.H. while incarcerated.

[86] T.H.’s charges included unlawful possession, escape lawful custody on January 30, 2019, failure to comply, failure to attend court, and committing indecent acts on January 30, 2019, in Huron County. He also had charges for possession, uttering forged documents and fraud over $5,000 on February 1, 2019, in St. Thomas.

[87] In late November 2019, the father was renting a room from an older male, who was a member of his church. He reluctantly provided consent to allow the Society to speak with his probation officer.

[88] The father reported having a rough couple of years with his father passing away and reported having problems with addiction, which resulted in his charges. While he was on bail, the father reported that he incurred more charges. He admitted that his most recent charge had been accessory after the fact to an armed robbery. He claimed to be a victim of circumstance, indicating that he was not aware of the fact and did not commit it.

[89] He disclosed that he had been diagnosed with Post-Traumatic Stress Disorder and Attention-Deficit Disorder. He claims to be bipolar at one time but stated that he had good control over his mental health and could get balanced on his own.

[90] The father had been on multiple medications while incarcerated but, since his release, was self-medicating with marijuana.

[91] T.H.’s mother, M.H., testified. She described her son to be loyal to a fault. She described him as sensitive and someone who struggles with emotions and addictions. She claims he has been traumatized and that he is in a cycle of addiction and trauma.

[92] M.H. testified that she last saw T.H. in January 2022 when he asked her to mail gifts to S.H. At the time, he was living at the Men’s Mission in London.

[93] Before that, she saw him just before Christmas 2021. She testified that T.H. had Covid and was in a motel. He asked her to drop certain items off as he was in quarantine.

[94] The actions and, in some cases, inactions, of the mother and T.H. since the making of the Korpan J. order support my conclusion that the children continue to need protection. The mother and father’s circumstances, which triggered the first order for protection, persist.

[95] In support of my finding, I also rely on the opinion of Dr. Sas, which I accept and detail below. Dr. Sas opined that S.H. could not depend on her mother to be there physically and emotionally and the mother lacks the ability to understand the needs of S.H. According to Dr. Sas, the mother’s interpretation of events contradicts reality.

[96] Of great significance is the mother’s mental health. The evidence suggests that she continues to have a disorganized thought pattern and has difficulty maintaining linear conversations. Several emails between the mother and Ms. Denijs were entered into as an exhibit. These emails are incoherent and support my finding that the mother has a disorganized thought pattern.

[97] Further, T.H.’s ongoing mental health issues support a finding that S.H. continues to need protection. His residency is unknown, and his mother testified about two locations/residences within a two-month span.

[98] S.W.’s circumstances have changed significantly since the making of the Korpan J. order. He moved to New Brunswick and resides with his paternal family. Three years have passed and the Society has had no direct involvement with S.W.

[99] Ms. Denijs has had contact with S.W. and she testified that he is doing well in New Brunswick with his extended family. He is in grade 12 and is focused on his education. He is supported through the Youth Engagement Service Program in New Brunswick, where he is residing with his aunt and uncle.

[100] While he may not be at immediate risk of physical harm, his mother’s circumstances have not improved. He remains in need of protection from her.

[101] S.W.’s risk of physical harm is remote given his geographic location in relation to his mother. However, from the assumption that the order on the Protection Application was correct, the court on the Status Review must determine whether the party’s circumstances have changed such that a different outcome is now warranted in the best interests of the child.

[102] Here, the mother’s circumstances have not changed such that a different outcome is now warranted.

[103] I am not satisfied that the parties’ circumstances have changed such that a different outcome is now warranted, notwithstanding the changes in S.W.’s circumstance.

[104] Both children are in continued need of protection.

Issue #2: If the children are found to be in need of protection, what disposition orders are in S.W. and S.H.’s best interests?

Position of the Parties

[105] Notwithstanding what is plead in the Society’s Amended Amended Status Review Application, the Society submitted that they seek an order that S.H. be placed in the custody of the B family under s. 102 of the CYFSA.

[106] L.B. and Q.B. support the Society’s position and seek incidental orders relating to custody under s. 28 (b) and (c) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA).

[107] In their pleadings, the parents each seek the return of their child.

[108] In the alternative, the mother plead that the children be placed in her care under terms of supervision. In the alternative, T.H. plead that S.H. be placed with the mother under terms of supervision.

Legislative Framework and Legal Principles

[109] The orders that a court may make on a Status Review Application are set out in s. 114 of the CYFSA.

[110] Such options include a variation or termination of an order made under s. 101(1), further order(s) under s. 101, or an order under s. 102. The court may also order that the original order terminate on a specific date: s. 114 (a), (b), (c) and (d) of the CYFSA.

[111] In determining which order to make under s. 101(1), the court must ask the parties what efforts the society or another person or entity has made to assist the child before intervention: s. 101(2) of the CYFSA.

[112] Before making an order in a Status Review Application, the court must obtain and consider a plan for the child’s care prepared by the society. The Plan of Care must specify specific information as set out in s. 100 of the CYFSA.

[113] After a court determines that a child is in need of protection, the court must apply s. 101 of the CYFSA, which outlines the orders that can be made. These include a supervision order, an interim society care order, an extended care order, or consecutive orders of interim society care and supervision. An order can also be made under s. 102, if appropriate.

[114] Section 101(2) requires that the court ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part [i.e., Part V: Child Protection].

[115] Section 74(3) outlines factors to be considered in determining the best interest of a child.

[116] 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: s. 102(1) of the CYFSA.

[117] Any order made under s. 102(1) of the CYFSA, and any access ordered under s. 104 of the CYFSA made with the s. 102(1) of the CYFSA order, is deemed to be a parenting or contact order made under s. 28 in the CLRA: s. 102(2) of the CYFSA.

Evidence and Analysis

S.H.

[118] On February 3, 2020, Ms. Denijs was contacted by L.B., who presented a kinship option for S.H. L.B. and Q.B. reside in New Brunswick. They would be in the Province of Ontario in March 2020 and wanted to arrange for a visit.

[119] At first, the mother did not approve of the kin placement, suggesting that she would be visiting the kin caregivers as no one could stop her.

[120] On March 9, 2020, Ms. Denijs met with the paternal grandmother, M.H., who attended to support an access visit between S.H. and the potential kinship caregivers, L.B. and Q.B. The meeting went well. S.H. initially presented as shy and quiet.

[121] During this meeting, L.B. and Q.B behaved appropriately and in a child-focused manner showing S.H. pictures of their family and pets. Positive interactions were noted.

[122] An order was made for S.H. to attend an extended access visit with L.B. and Q.B. for five weeks during the summer. The Mitrow J. order followed, placing S.H. in the temporary care and custody of the B family.

[123] S.H. departed for New Brunswick on July 1, 2020, accompanied by a Society worker and M.H., the paternal grandmother. The mother continued to report that the Society was acting contrary to the law.

[124] In the months that followed, the Society tried to contact the mother and S.H.’s father. S.H.’s father’s phone number was off, and a recording was received that the customer was unavailable. The mother’s voicemail was full and a message could not be left.

[125] A family meeting was scheduled for September 28, 2020 and the parents failed to attend.

[126] Another family meeting was scheduled for October 26, 2020. S.H.’s father did not attend. The mother attended but was observed to be disorganized in thought, jumping from topic to topic.

[127] Neither of S.H.’s parents attended a virtual family meeting scheduled for December 4, 2020.

[128] A family meeting was scheduled for January 8, 2021. At that meeting, the Society discussed with the parents that they could attend New Brunswick to visit with S.H. in person. They were reminded that they would need to quarantine for two weeks before visiting S.H., but the Society had agreed to fund their hotel, flight, and food for the trip. Due to the lockdown, the parents had to register and apply to enter New Brunswick. The mother suggested that she would do so promptly.

[129] By the summer of 2021, the Society had not heard of the parents’ plans to attend New Brunswick, nor did they have information as to whether they were granted permission to visit the Province. L.B. and Q.B. advised that they would be visiting Ontario with the child in August 2021. Attempts were made to secure in-person visits with the parents and S.H.

[130] A child welfare worker in New Brunswick, Tara-Lynn Pelletier, testified as a witness for the Society. Ms. Pelletier conducted follow-up check-ins with L.B. and Q.B. after S.H. was placed in their care on a temporary basis.

[131] She visited L.B. and Q.B.’s home once a month, at minimum, from September 2020 to June 2021. She saw them nine times, eight in-person and once virtually.

[132] She observed L.B. and Q.B. to be hands-on, involved with their children and all interactions were noted to be positive. S.H. was not hesitant to go to L.B. or Q.B. for affection or anything that she needed.

[133] She testified that L.B. and Q.B.’s family was very routine-oriented and that it was nice to see the children participate in chores. They did not mind participating in chores and looked forward to doing so.

[134] Ms. Pelletier testified that the B family have a good relationship with teachers and that they were taking S.H. to medical appointments.

[135] In the B family home, S.H. has her own room, adjacent to the master bedroom, with her own bed, pictures on the wall, with furniture and clothing. She had no concerns regarding the home, S.H.’s space, or the environment. She was very impressed with how clean the home was and found everything to be safe.

[136] The B family was established in 2013, when L.B. and Q.B. married.

[137] Their family unit consists of five children, including S.H. Those five children range from an almost 1-year-old to a 15-year-old. L.B. is a stay-at-home mom and Q.B. is employed at the Department of National Defence.

[138] When S.H. went to live with the B family for an extended summer visit, L.B. undertook to call a dance studio to ask if S.H. could join dance classes and requested an assessment.

[139] The B family has an appropriate outlook on discipline and give evidence they often redirect the children when issues arise. The B family home was described to be child friendly. They have two pets. They attempt to create an atmosphere in the home that is fun and filled with play.

[140] The B family routine involves the children going to school Monday through Thursday from 8:00 a.m. to approximately 3:00 p.m. On Fridays, they have school for half a day. S.H. is enrolled in dance classes every Tuesday night.

[141] Q.B. testified that he and L.B. are supportive of a permanent placement and to obtain custody of S.H. They want her to be placed in their care and want equal rights to that of a biological parent.

[142] Since S.H. was placed with the B family, her parents have not asked about the names of her doctors, teachers, and have never asked that she be returned to Ontario for a visit. I am satisfied that the B family loves S.H. and want to look after her.

[143] L.B. is attentive to S.H.’s needs. She has observed that S.H. loves the water and the family attends the beach and swimming lessons regularly. She also noticed that S.H. lacked coordination. When she arrived, S.H. did not know how to skip or somersault. L.B. enrolled her in a tumbling class once per week.

[144] L.B. describes S.H. as a sweet, funny kid, who is witty and a thinker. She can tell when S.H. is processing information.

[145] S.H. loves her school and her teachers, and she has recognized the different personalities of kids in her class. Her literacy was lagging when she first arrived at the B family, however, she has been moving closer to the average.

[146] L.B. and Q.B. cannot obtain a New Brunswick health card for S.H. Historically, there was a concern regarding S.H.’s heart but no intervention or treatment was needed. They are requesting the court to grant an order permitting them to obtain government identification without the consent of the parents.

[147] L.B. is asking for rights to obtain a passport and give her an identification because she is concerned that they may have a hard time contacting the parents for such documents. Further, she does not wish for S.H. to be treated any differently than her own biological children.

[148] I am satisfied S.H. has found a home with the B family. S.H. has been welcomed, loved, cared for, and provided with the security and stability she lacked.

[149] It would be unfair to L.B. and Q.B., but, most importantly, unfair to S.H., if continued cooperation was required from the mother and T.H.

[150] The past pattern of failing to show up for family meetings, access visits, and trial, suggest the likelihood they will not cooperate should the need for their consent, authorization or signature be required. S.H. should not be prevented from engaging in opportunities or obtain necessary resources.

[151] The evidence of M.H., S.H.’s maternal grandmother and T.H.’s mother, supports the B family having custody of S.H.

[152] She also testified of concerns of wanting to protect the B family and to ensure nobody, including S.H.’s mother or father, would disrupt the placement.

[153] According to M.H., S.H. needs to be somewhere stable and predictable that could offer her support. She needs a placement free of chaos, turmoil and inconsistency.

[154] S.H. has been placed with the B family for over a quarter of her entire life. It is important for S.H. to have continuity of care and a s. 102 CYFSA custody order will allow that. S.H. can continue living with L.B. and Q.B. into the foreseeable future. This will provide her with stability and security, and will insulate her from further disruptions.

[155] It is in S.H.’s best interests for a custody order to be made in favour of L.B. and Q.B.

[156] She loves where she is, and she is loved. The incidental custody orders sought by the B family are appropriate in the circumstance and shall be ordered.

[157] In coming to my conclusion, I have also considered the evidence of Dr. Sas, who completed a s. 98 Parenting Capacity Assessment.

[158] She was qualified as an expert about parenting capacity of the parent, needs of the child and the ability of the parent to meet the needs of the child.

[159] Dr. Sas interviewed the mother once in her office, once in the mother’s home and three times with the child.

[160] The mother/child interviews and observations took place: twice in the Society office and once in Dr. Sas’ office. Dr. Sas also conducted a Personality Assessment interview.

[161] She reviewed the Continuing Record and a referral letter, and consulted with two access supervisors, Ms. Silverstein and Ms. Fisher. She also consulted with Ms. Hatfield and Ms. Denijs.

[162] Dr. Sas testified that her interactions with the mother varied and that she often did not show up for meetings or interviews.

[163] Dr. Sas testified that the mother felt systemic bias by the Society. She claimed that her mental health and drug use was not founded and was an excuse to illegally apprehend her daughter.

[164] According to Dr. Sas, the mother had minimal insight into her paranoia and her paranoid ideation. The mother often felt misunderstood.

[165] Dr. Sas testified that the mother believed in various conspiracies. She believed a biker gang was stalking her; S.H. had “zygotes” in her hair that might penetrate into her brain; and the mother was concerned there were others that were out to get her and that she did not feel safe.

[166] Dr. Sas reported that the mother had difficulty with time management and days would pass and she would be unaware of what day it was. This led to her missing several appointments.

[167] During one interview, which took place in the mother’s home, the mother became upset. She became highly agitated and dysregulated. The mother spoke so loud that the father appeared from a room in the home. Dr. Sas was unaware that the father was present. As soon as the father appeared, the mother’s personality changed and became meek and mild. Dr. Sas testified there was great variability in how the mother presented herself.

[168] The mother claimed to not know times of access, despite structure and regularity with the access visits. The mother had no issues with comprehension.

[169] As set out in Dr. Sas’ report, the mother obtained significant elevation on the Paranoia Scale, with evidence of heightened hyper vigilance and paranoid ideations. The mother also had an elevation on the Personality Assessment Inventory Life Stress Scale and on Depression Subscale measuring physical symptoms consistent with clinical depression.

[170] The mother did evidence interpersonal difficulties in her real life, estrangement from family, feeling of betrayal by others and conflictual relationships, which Dr. Sas attributes to her paranoia and how she perceives others’ intentions and actions.

[171] According to Dr. Sas, little to no insight was presented regarding her paranoia. As the results were shared with the mother, she seemed surprised. Dr. Sas attributes this to her under-reporting symptomology or a lack of insight.

[172] Dr. Sas opined that it was difficult to make a firm diagnosis, as the mother did not provide sufficient information about symptomology, but she suffers from paranoia and this compromises her judgment about situations and people's intentions and affects her view of how her daughter is faring.

[173] Dr. Sas recommended permanency planning be carried out immediately. She opined that the child should not be returned to the mother and that placing the child with a kin caregiver opens up the possibility of informal contact between the child and the mother.

[174] Dr. Sas opined that the mother had no insight into her mental health issues and deny they were present. She opined that the mother’s prognosis is not good and there were serious concerns reported regarding her mental health years ago in New Brunswick. This leads to the conclusion that the issues are not situational or new, but an ongoing pattern associated with those with trauma in their life. According to Dr. Sas, the mother was not open to treatment because she did not see herself as having any difficulties.

[175] Dr. Sas opined that the mother was not capable of parenting S.H. long-term, providing her with a secure home, or nurturing her and meeting her developmental milestones.

S.W.

[176] Ms. Denijs has had no contact with S.W.’s father. S.W. randomly contacts his mother but finds it hard because she is constantly changing her phone number or email account. He waits for her to contact him.

[177] S.W. is 17, turning 18 in November. Ms. Denijs testified that she spoke to him two or three weeks before trial and that he was living with his paternal aunt and uncle. She described him to be bright and focused on high school. He explained that he has a social worker assigned to him, who he sees once a month. He indicated that he had not seen S.H. in a while but that was due to his schedule and had nothing to do with L.B. and Q.B.

[178] Ms. Pope described S.W. to be a bright, articulate, and talkative boy. Once, he informed his mother that S.H. should be in daycare and was encouraging his mother to enroll her in same.

[179] Ms. Pope assisted the mother by having her connect with Ontario Works to assist her with securing childcare for S.H. She attempted to connect the mother with a family support worker to get her extra support and assistance, and she gave S.W. bus tickets to get to and from school. Further, Ms. Pope had the mother sign consent to assist her in a more fulsome manner.

[180] The evidence supports that the mother’s focus rests mainly with S.H., as compared to S.W.

[181] According to Dr. Sas, the mother presented differently when speaking of S.W. Her affect was different when she spoke of S.H.

[182] L.B. testified that she keeps in touch with S.H.’s half-brother, S.W., on Facebook Messenger. She took S.H. to see her brother and both had a wonderful time. S.W. was telling S.H. stories as he pushed her on his swing.

[183] Having found that S.W. is in continued need of protection owing to his mother’s circumstances and his father’s failure to respond to the Status Review Application, the plan developed by the Society to relocate S.W. to New Brunswick has proven to serve him well.

[184] The evidence supports that he has been doing well, he is supported in New Brunswick, and that termination is the most appropriate order, particularly because of his age. S.W. will be 18 in approximately eight months.

Issue #3: What, if any, access is in S.W. and S.H.’s best interests?

Position of the Parties

[185] The Society supports ongoing access between S.H. and both of her parents under s. 104 of the CYFSA. The Society also supports the access orders sought by the B family under the CLRA.

[186] The B family asks that the court grant them discretion as to whether the mother and T.H.’s access to S.H. be supervised when they attend. They are prepared to facilitate ongoing access, however, relies on the evidence tendered in a request that supervision may be necessary.

Legislative Framework and Legal Principles

[187] The court may make a final order relating to access to accompany a final disposition.

[188] Sections 104 and 105(1) of the CYFSA govern the making of such an order. The relevant part of those sections read as follow:

104(1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2), make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

105(1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child’s best interests.

[189] A child’s best interests are not static. The language of s. 74(3) demands that the court consider a child’s best interests through time. There is nothing in the section to suggest that access should be decided without reference to the future: Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, 151 O.R. (3d) 320, at paras. 50-51.

[190] A child’s best interests in connection with future access involves a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies: J.G., at para. 63.

[191] Section 34(2) of the CLRA provides that “A court shall not direct a person, a children’s aid society or other body to supervise the exercise of decision-making responsibility, parenting time or contact under subsection (1) unless the person, society or body has consented to act as supervisor.”

[192] After the s. 102 order issued, the Society is no longer party to the proceedings because a s. 102 order is deemed to be a “domestic family court custody order made under the CLRA.” Supervision of access can no longer rest with the Society: The Children’s Aid Society of the Regional Municipality of Waterloo v. C.F., 2022 ONSC 614.

Evidence and Analysis

[193] In March 2019, the mother secured an order for expanded access. She was granted five visits per week – two unsupervised in the home and three with supervised exchanges at the Society.

[194] The Society had ongoing concerns regarding the mother’s failure to be back on time by the end of her access visits. There were also concerns in regard to the people S.H. was exposed to during these visits.

[195] The concerns escalated to where, by July 2019, the Society moved to vary the access order. Eventually, access was ordered to be supervised at the discretion of the Society. Visits were decreased to three times per week supervised by the Society, with the mother permitted to visit in the back lobby area and the play yard with minimal supervision.

[196] By September 2019, the mother succeeded in varying her access such that an order was granted providing her with three visits, one of which was to remain at the Society office and the other two to occur in the community. There was a stipulation that community visits occur in a public place and not in someone’s home. There continued to be issues with the mother failing to arrive on time, both at the beginning and at the end of the access visit.

[197] In December 2019, the mother attended a visit with the father, despite being aware that he could not be at her access. She demonstrated ongoing reluctance to comply with the expectations provided to her.

[198] Ms. Silverstein was the visiting program case manager assigned to the file from March 2019 to December 2020.

[199] According to Ms. Silverstein, the mother was 30 minutes late for an access visit on March 14, 2019. On April 9, 2019, the mother was 30 minutes late dropping off S.H. On April 11, 2019, the mother was late returning S.H. She did not attend her August 7, 2019 visit and did not give notice of her absence.

[200] During the September 10, 2019 visit, the mother advised that she would take S.H. to Gino’s pizza. At the end of the visit, S.H.’s hair was wet, and Ms. Silverstein was informed that the mother washed her hair, arms, legs, and face.

[201] On September 20, 2019, the mother was late to return to the Society at the end of the visit. On December 30, 2019, the mother was late arriving for her visit and was 25 minutes late returning S.H. at the end of the visit. On January 17, 2020, the mother arrived late for her visit.

[202] For the following month, the mother attended access consistently and on time. She remained in the Society building and the visits ended with no concerns.

[203] All in-person access visits were cancelled due to the Covid-19 pandemic as of March 2020.

[204] In May 2020, both mother and father were having virtual visits with S.H. Initially, this occurred directly with the foster parents; however, there continued to be concerns, with the parents making allegations about the foster parents and those visits were supervised for the majority of the visits in June 2020.

[205] Throughout the month of June 2020, on a few occasions, there were technical difficulties with the virtual visits.

[206] Despite attempts to contact the parents through video calls, they did not answer and did not participate in the scheduled supervised virtual visits on June 29, 2020 and July 8 and 13, 2020.

[207] The parents attended virtual access by the end of July 2020 when S.H. was with L.B. and Q.B. There were concerns regarding their connection issues and their attendance at the scheduled visits.

[208] The visits remained sporadic, and a decision was made to reduce the access visits to once per week until the parents demonstrated a consistent ability to attend. Despite the reduction, the parents continued to attend inconsistently.

[209] Since moving to New Brunswick, S.H. has attended sibling access with S.W. L.B. and Q.B. have continued indicating a willingness to ensure ongoing sibling contact.

[210] In-person access between S.H. and the parents occurred on a supervised basis on August 24, 25 and 26, 2021 for three hours each visit. No significant concerns regarding the parents’ interactions with the child was observed.

[211] After S.H. was placed with L.B. and Q.B. in New Brunswick, Ms. Silverstein supervised the majority of virtual access visits, scheduled to occur three times per week.

[212] During these virtual access visits, the parents’ behaviour was inconsistent. Once, the mother’s eyelids were heavy and have closed and, on another occasion, she presented as hyper and talking at a fast pace, with animated body language.

[213] During some virtual visits, the parents appeared to have a flat facial affect and did not engage with S.H.

[214] The parents had an in-person visit in October 2020 when L.B. and Q.B. travelled to Ontario with S.H. Ms. Silverstein supervised the in-person access visit on October 7, 2020. During this visit, the mother was resistant to following Covid safety protocols. She was not wearing a mask. Her behaviour escalated throughout the visit and she began raising her voice. At the end of the visit, the mother screamed vulgar profanities to Ms. Silverstein and was rambling non-sensical comments, talking about different languages and different countries. She indicated that she would bring 300 people to the next visit. This occurred in front of S.H.

[215] Six virtual visits were to follow the in-person. The mother only connected for two of those six visits and T.H. only connected for one.

[216] The parents would participate in the virtual visits with S.H. on November 4, 9, 11 and 13, 2020. Both parents missed two visits on November 16 and 18, 2020. On November 20, 2020, only T.H. participated in the virtual visit.

[217] Q.B. testified that during one of T.H.’s virtual visits with S.H., he raised his voice and there was swearing in the background. A decision was made to terminate the call. Q.B. suggested that they would follow similar protocols if the same were to occur during virtual access visits if the Society was not involved.

[218] Q.B. gave evidence he would follow the same protocol the Society has established for ongoing access if the court orders that access be in his discretion. Specifically, Q.B. testified that he would wait 15 minutes before cancelling a visit and he expressed a willingness to be flexible to work out a schedule if he or L.B. can adhere to the schedule.

[219] The parents’ behaviour during several access visits is equally troubling, particularly when the evidence suggests that S.H. is confused or uncomfortable with certain interactions.

[220] I am satisfied by the evidence provided by Q.B. and L.B. They have an ability to communicate with the mother and T.H. by text message or Facebook Messenger, and I am satisfied that they will continue to do so to arrange in-person and video access.

[221] L.B. has proactively spoken to the child welfare authorities in New Brunswick and has determined there is a safe public space available for access to occur if the parents travel to New Brunswick for in-person access.

[222] I am also satisfied by the evidence provided by L.B. and Q.B. of their intention to return to Ontario frequently and to secure access during those trips.

[223] Dr. Sas opined that the mother loves S.H. and wants to parent her but she minimizes the negative effect that her lifestyle and symptoms have on S.H.

[224] According to Dr. Sas, S.H. sees a separation between her and her mother. Dr. Sas opined the mother to be kind and loving to the child and observed positive interactions; however, Dr. Sas also opined there is an intensity that the mother brings to each visit and, at the end of each visit, the farewell was hard for the mother as she held to S.H., but the same could not be said for S.H.

[225] Further, Dr. Sas opined that during an observed visit, the mother was not engaged, she continued to check S.H.’s hair and presented as “spaced out.”

[226] Dr. Sas opined that the mother’s interpretation of events is not always consistent with reality and while she will not harm the child, she lacks the ability to understand the needs of the child. Because of this, ongoing supervision is required.

[227] Given the geographic distance between the child and her parents, video access once per week for at least 15 minutes is reasonable.

[228] The B family’s proposal to have at least one in-person visit every four months, as arranged in advance and in writing, is appropriate and can include the opportunity for the parents to visit in New Brunswick and for the B family to bring S.H. to Ontario.

[229] Based on the evidence before me, L.B. and Q.B. have consented to supervised access and it is appropriate that they have discretion as to whether the mother and T.H.’s visits are supervised and, if so, to determine the level and the manner of supervision.

[230] Q.B. and L.B. have S.H.’s best interests at the forefront of every decision they make and I have no reason to believe that they will disrupt or deny ongoing access.

Conclusion

[231] The statutory findings relating to S.H. as set out on page 2 of the Korpan J. order does not include S.H.’s full legal name.

[232] The statutory findings set out in the Korpan J. order shall be amended regarding S.H. such that her full legal name, S.R.M.H., as set out on her birth certificate and Statement of Live Birth filed in the Trial Record will be reflected.

[233] The custody order in favour of L.B. and Q.B. is the only realistic plan before the court. It will protect S.H. and there is no less intrusive options available for the court to consider. A s. 102 custody order will provide S.H. with permanency and stability.

[234] An order shall issue as follows.

[235] On the finding that S.W. and S.H. remain in need of protection under s. 74(2)(b)(i) of the Child, Youth and Family Services Act, 2017, this court orders that:

1. The order of Korpan J. dated August 30, 2018, as it relates to S.W., born in 2004, shall hereby be terminated.
2. S.H., born in 2015, shall be placed in the custody of L.B. and Q.B, under s. 102 of the CYFSA.
3. The mother and/or T.H. shall have access with S.H., born in 2015, as follows: a) Each parent shall have at least one video access visit with S.H., born in 2015 per week for at least 15 minutes per visit, with additional video calls as arranged by L.B. and Q.B. b) Each parent shall have at least one in-person visit with S.H., born in 2015, every four months, as arranged in advance and in writing with L.B. and Q.B, which may include times that L.B. and Q.B. bring S.H. to Ontario and/or times when the parents can visit New Brunswick. When the parents are making requests for in-person visits, they shall do so in writing and at least 21 days in advance, and if L.B. and Q.B. are intending to visit a location within three hours driving of London, Ontario, they shall inform the parents as far in advance as reasonably possible and provide an opportunity to the parents to have an access visit with S.H. c) L.B. and/or Q.B. shall have discretion as to whether the parents’ visit is supervised, and, if so, the level and manner of supervision.
4. L.B. and/or Q.B. shall be permitted to travel internationally with S.H., born in 2015, without authorization of the mother and/or T.H.
5. L.B. and/or Q.B. shall be permitted to obtain and review all government identification, including a passport for S.H., born in 2015, without signature, authorization, or involvement of the mother and/or T.H.
6. This order is deemed to be made pursuant to s. 28 of the Children's Law Reform Act. A second copy of this order made under that Act shall issue showing L.B. and Q.B. as applicants and the mother and T.H. as respondents, and replacing the term “access” with “parenting time” as may apply, and any further variation proceeding shall reference that version of the order. Approval of that order shall be waived.
7. There shall be no order as to costs.

[236] For greater clarity, the separate order shall state:

1. The applicants, L.B. and Q.B., shall have sole decision-making responsibility for the child, S.H., born in 2015.
2. S.H., born in 2015, shall reside in the primary care of the applicants, L.B. and Q.B.
3. The mother and/or T.H. shall have parenting time with the child: a) Each parent shall have at least one video parenting time visit with S.H., born in 2015, per week for at least 15 minutes per visit, with additional video calls as arranged by L.B. and Q.B. b) Each parent shall have at least one in-person visit with S.H. every four months, as arranged in advance and in writing with L.B. and Q.B, which may include times that L.B. and Q.B. bring S.H. to Ontario and/or times when the parents can visit New Brunswick. When the parents are making requests for in-person visits, they shall do so in writing and at least 21 days in advance, and if L.B. and Q.B. are intending to visit a location within three hours driving of London, Ontario, they shall inform the parents as far in advance as reasonably possible and provide an opportunity to the parents to have a parenting time visit with S.H. c) L.B. and/or Q.B. shall have discretion as to whether the parents’ visit is supervised, and, if so, the level and manner of supervision.
4. L.B. and Q.B. shall be permitted to travel internationally with the child, S.H., born in 2015, without authorization of the mother and/or T.H.
5. L.B. and Q.B. shall be permitted to obtain and review all government identification, including a passport for S.H., born in 2015, without signature, authorization, or involvement of the mother and/or T.H.
6. This order is made under the Children's Law Reform Act.
7. There shall be no order as to costs.

Justice Kiran Sah Released: March 23, 2022

COURT FILE NO.: 1394/17-2 DATE: March 23, 2022

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN: Children’s Aid Society of London and Middlesex Applicant

- and - M.F.G.W., C.S., T.J.H., L.M.B. and Q.B. Respondents

REASONS FOR JUDGMENT SAH J.

Released: March 23, 2022