COURT FILE NO.: FC-21-00000026-0000

DATE: 2022-05-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Children’s Aid Society of Haldimand and Norfolk

Applicant

• and -

B.S.R., N.A.P., G.E., C.S. and D.S.

Respondents

Counsel: Darryl Clarke, Counsel for the Applicant Edward Kiernan, for the Respondent B.S.R. Justine Lyons, for the Respondent N.A.P. Drew Bowyer, for the Respondents C.S. and D.S.

HEARD: March 15, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, and April 1, 4, 5, 2022.

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

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

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

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

The Honourable Justice M. Kril

REASONS FOR JUDGMENT

INTRODUCTION

[1] This is a protection application brought by the Children’s Aid Society of Haldimand and Norfolk (“the Society”). The 14-day trial dealt with the issues of disposition and access. More specifically, it dealt with the issues of whether the children’s interests were best served by placing the children with their father or with their paternal grandparents, and whether by way of a supervision order or a custody order.

[2] The children are C.E.R. born (redacted) (now 11 years old) (“C.E.R.”), and M.M.P. born (redacted) (now 8 years old) (“M.M.P.”).

[3] B.S.R. (“Ms. R.” or “the mother”) is the biological mother of both girls. The mother has a final Children’s Law Reform Act order granting her legal decision-making authority over C.E.R. Outside of this proceeding, there are no orders dealing with the parenting of M.M.P.

[4] N.A.P. (“Mr. P.” or “the father”) is the biological father of M.M.P. and stepfather to C.E.R.

[5] G.E. (“Mr. E.”) is C.E.R.’s biological father. Mr. E. did not participate in these proceedings and was noted in default on April 14, 2021.

[6] C.S. and D.S. (“the Ss.”) are the paternal grandparents.

STATUTORY FINDINGS

[7] This court finds that the children are M.M.P. born (redacted), and C.E.R. born (redacted).

[8] Neither of the children identify as First Nations, Inuit or Métis.

FINDING IN NEED OF PROTECTION

[9] Prior to the commencement of the trial, all of the parties to the proceeding signed a Statement of Agreed Facts which is dated March 14, 2022, and which has been filed with the court. The following facts support a finding that the children are in need of protection.

[10] The parents separated in April of 2020 following a physical altercation. C.E.R. was a witness to the adult conflict.

[11] After separation, the children resided primarily with their mother. They generally spent alternate weekends in the care of their father, but their arrangement was flexible.

[12] After separation, the mother entered into a new romantic relationship with A.M. (“Mr. M.”). In August of 2020, C.E.R. disclosed to her mother and others that she had been sexually assaulted on several occasions by her mother’s new boyfriend. The mother did not report the disclosure to the police.

[13] Once C.E.R.’s disclosure came to the father’s attention, he did report it to the police. The mother agreed not to have the children in her care while the investigation was ongoing.

[14] The father retrieved the children but did not have appropriate accommodation for them. He delivered them to the temporary care of his parents, C.S. and D.S. The children have remained in their care since August 9, 2020.

[15] A joint investigation by the police and CAS followed C.E.R.’s report. The Society verified the child’s disclosure. The police charged the mother’s boyfriend, Mr. M., with two counts of sexual interference and two counts of sexual assault.

[16] It was determined after the preliminary hearing that it was not in the public interest to put C.E.R. through the ordeal of a trial. Mr. M. entered into a peace bond which precludes him from having any contact with either C.E.R. or M.M.P. for five years.

[17] The mother does not accept that Mr. M. was C.E.R.’s abuser. The mother continues to be in a relationship with Mr. M., and they have recently become engaged. They are currently cohabiting.

[18] C.E.R. continues to receive ongoing counselling to deal with the trauma that she has experienced as well as with respect to other issues. She has been steadfast in maintaining that Mr. M. sexually offended against her.

[19] This court finds that C.E.R. and M.M.P. are in need of protection pursuant to ss. 74(2)(a)(i), 74(2)(b)(i), 74(2)(d), 74(2)(f) and 74(2)(h) of the Child, Youth and Family Services Act (“CYFSA”) for the following reasons:

a. C.E.R. has suffered physical harm caused by the failure of the person having charge of her to care for, provide for, supervise, or protect C.E.R. adequately;

b. There is a risk that C.E.R. and M.M.P. are likely to be sexually abused by a person where the person having charge knows or should know of the possibility of sexual abuse and fails to protect the children;

c. C.E.R. has suffered emotional harm, demonstrated by serious anxiety or delayed development, and there are reasonable grounds to believe that the emotional harm suffered by her results from the actions or failure to act on the part of the child’s parent; and,

d. There is a risk that C.E.R. and M.M.P. are likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, or delayed development, resulting from the actions or failure to act on the part of the child’s parent.

[20] In summary, C.E.R. suffered physical and emotional harm as a result of the mother’s failure to protect her from sexual abuse and from failing to support her following her disclosure. It is a virtual certainty that returning C.E.R. to her mother’s care, given that she is now engaged to and residing with the accused, will cause emotional harm to C.E.R. There is a risk that either or both C.E.R. and M.M.P. are likely to be sexually abused if returned to their mother’s care while she and Mr. M. share a residence.

[21] The finding that the children are in need of protection was not disputed. It is beyond dispute.

[22] It is clear that the children cannot be returned to the mother’s care, and that a court order is necessary to protect the children in the future. As such, I turn to the issue of disposition.

DISPOSITION

Position of the Parties

[23] The Society proposes that the court make a six-month supervision order placing the children with the paternal grandparents with access to both parents on terms and conditions. In the alternative, the Society also supports a custody order in favour of the paternal grandparents with specified provisions for access to the parents.

[24] The Children’s Lawyer supports the position taken by the Society.

[25] The father seeks an order placing both children in his custody with supervised access to the mother. In the alternative, he seeks a six-month supervision order placing the children with him. In either event, he intends to remain in the relationship with his current partner and reside in Sarnia. He proposes that their families be blended.

[26] The mother acknowledges that she is not in the position to put forward a plan of care at this time. She supports a supervision order placing the children with the paternal grandparents. She is agreeable to the terms and conditions proposed by the Society for her supervised access. She proposes that her supervised access be increased gradually to include overnights and alternating weekends and that it take place at her sister’s home or the family farm.

[27] The paternal grandparents seek an order granting them custody of the children. They propose that access to the parents be in their discretion subject to specified terms and a three-weekend rotation schedule. They further propose that the parents’ access be subject to the direction of the Society.

THE ISSUES

(1) Are the children’s interests best served by placing them in the care of their father, or in the care of their paternal grandparents?

(2) Are the children’s interests best served by a supervision order pursuant to s.101(1) of the Child Youth and Family Services Act (“CYFSA”) or a custody order pursuant to s.102?

(3) What provisions with respect to access are in the children’s best interest?

THE FACTS

Family Background

[28] Ms. R. and Mr. P. have known one another since high school where they dated briefly. They rekindled their relationship in early 2013, and Ms. R. was soon expecting M.M.P.

[29] Each party already had a child from a previous relationship at that time. C.E.R. was just two years old and lived with Ms. R. She had had no contact with her biological father for over a year. C.E.R. and Ms. R. were living with her parents (“the maternal grandparents”) on their farm near Langdon.

[30] Mr. P.’s son D. was going on seven years of age at that time. D. lived with his mother and visited with Mr. P.

[31] In October of 2013, the mother, father, C.E.R. and M.M.P. moved to a rental home not far from the farm. The family moved a couple of times after that, but always remained in the Langdon area. From 2015 to their separation in 2020, the family lived at the farm with the maternal grandparents.

[32] The parties both described a fairly traditional division of labour between them during the relationship. Ms. R. described herself as the primary caregiver for the children. Over the years, she held a number of part-time positions mixed together with periods of unemployment. She has not been employed since October of 2020.

[33] Mr. P. worked primarily as an ironworker. That required him to put in long days. Sometimes the work took him out of town and even out of province. On those occasions, he would be away from the home for the entire week, returning on the weekend. Mr. P. assumed a parental role with respect to both girls. He described his role primarily as that of protector and “disciplinarian”.

[34] M.M.P. has described the relationship between her parents during their cohabitation as “nasty”. Both children described witnessing adult conflict. They described an incident where they saw their father punch their mother’s cigarette out of her mouth. The mother described the relationship as “rocky”. She described an incident where the father smashed her head into a truck while he was intoxicated.

[35] The maternal grandmother and aunt both confirmed that the children were subjected to inappropriate discipline by both parents at the farm. Both parents yelled and screamed at the children and often placed them in extended “time outs”. The maternal grandmother gave evidence that, between the two parents, the father’s behaviour in this respect was worse.

[36] The Society first became involved with the family in February 2020 as a result of a report that the parents were using drugs in the children’s presence. There was initially some evidence of drug use by the father, but the concern was short lived. During the Society’s investigation, C.E.R. reported having “big feelings” and expressed a desire for counselling. In response, the Society facilitated getting C.E.R. into counselling and then remained involved with the family afterwards in a supportive and monitoring capacity.

[37] At the end of April of 2020, the parties separated following an argument and physical altercation. The incident took place in the farmhouse. C.E.R. was present for it and, in fact, it was her computer that the father smashed. The mother’s evidence was that in the course of the argument the father pushed her and she fell backwards over a hope chest. The father’s evidence was that the mother had started a fight with him. He acknowledged however that he did raise his voice, that he was angry, that he did break C.E.R.’s laptop and that he did shove the mother out of the way as he left.

[38] The maternal grandmother was in the home during the argument. It was her evidence that she ran upstairs and saw the father throwing the mother around and that C.E.R. was present. She intervened and told the father to leave her home. Both parties agree that this event marked the end of their living together.

Events Following Separation

[39] The mother and the children continued to live at the farm following the separation. The father took up residence in his trailer which was parked nearby on a friend’s property. The parties cooperated with respect to parenting arrangements.

[40] Although the arrangement was flexible, the children were generally spending alternate weekends with the father at his trailer. The Society worker described this as a “camping” experience that the children enjoyed. The parents were able to communicate amicably after separation and to make reasonable arrangements with respect to the children.

[41] Both parties entered into new romantic relationships very shortly after their separation.

[42] The father partnered with a woman that lived in a house located on the property where he had parked his trailer. The mother began dating Mr. M.

[43] Mr. M. had been a longtime good friend of the father. He stayed overnight at the farmhouse, where the mother and children resided, at least three times in June and July of 2020. The mother also took the children with her to visit Mr. M. overnight at his residence in Belle River on numerous occasions.

[44] On August 7, 2020, C.E.R. disclosed to her maternal grandmother, S.R., that Mr. M. had been sexually abusing her. C.E.R. repeated her disclosure to her mother when she arrived home. Ms. S.R. told her daughter to call the police. The mother said that she would take care of it. Instead, she went to confront Mr. M. directly.

[45] It is the mother’s evidence that he denied the allegations. C.E.R. made further disclosures to the mother when she returned home the next day. Once again, the mother did not report them to the police but went instead to confront Mr. M. in person a second time.

[46] The mother’s evidence was that, despite Mr. M. again denying the allegations, she ended their relationship following that second visit. Nonetheless, at no time did the mother report the sexual abuse allegations C.E.R. had made to her to the police.

[47] By this time, C.E.R. had disclosed to two family friends, one of whom had then advised the father. The father retrieved the girls and reported the matter to the police. The police contacted the mother and advised her that she was not to pick the children up pending their investigation.

[48] At this time, the father was still residing in a trailer. After reporting the allegations, he took the girls to his parents’ home and asked his mother to look after them until he could locate more suitable accommodations. The Ss. agreed and the children have resided with them since August 9, 2020.

[49] The police interviewed both C.E.R. and M.M.P. They concluded that C.E.R. had indeed been sexually abused. Mr. K.R. advised the police that he had once seen Mr. M. leaving C.E.R.’s bedroom at night.

[50] The father gave evidence that Mr. M. had telephoned him and, while denying the sexual assault, attempted to explain C.E.R.’s allegation by saying that he had “accidentally fallen” on her. Near the end of August 2020, charges were laid against Mr. M. for two counts of sexual interference and two counts of sexual assault.

[51] A preliminary hearing was held on August 12, 2021, and C.E.R. gave her evidence. Following the hearing, the Crown determined that it was not in the interests of justice for C.E.R. to have to give evidence at a Superior Court trial. Mr. M. entered into a peace bond which prohibits him from having any contact with C.E.R. or M.M.P. for five years.

Mother’s Contact Post-disclosure

[52] The maternal grandmother, Ms. S.R., gave evidence that she believes that Mr. M. sexually abused her granddaughter. It was her evidence that she told her daughter to contact the police. Ms. S.R. does not support her daughter’s decision to maintain a relationship with Mr. M. She asked her daughter to leave the farm at the end of August 2020.

[53] The mother’s evidence was that, after she was asked to leave the farm by the maternal grandmother, she couch-surfed for a few months. In October, her cousin in Windsor let her stay with her. She remained there until she began cohabiting with a Mr. R. in July of 2021. That relationship ended when she resumed her relationship with Mr. M. in October of 2021.

[54] As indicated above, Ms. R. and Mr. M. are cohabiting just outside of Windsor. They are engaged to be married. Neither C.E.R. nor M.M.P. is aware that their mother remains in a relationship with Mr. M.

[55] The mother had virtually no contact with the children between August 2020 and March 2021. It was her evidence that the father had refused her requests for contact. There was little evidence that the mother had requested contact from the father prior to January of 2021. She did not maintain contact with the Society despite their efforts to contact her.

[56] The mother began to see the children on a regular basis again after the Society commenced the within protection application in February 2021. In March of 2021, the mother began visiting with the children at the Society office on a once per week basis between 4:00 p.m. and 7:00 p.m. on Monday evenings. Her access was increased over the summer months and returned to the original schedule with the return to school. In November, the Society offered an additional midweek visit, but the mother did not accept the offer.

[57] At one time, the mother’s communication with the Society was inappropriate. She would yell and scream at the Society workers. She was critical of the care being provided to the children by the Ss. The Society’s follow ups showed no basis for her complaints. There was evidence that the mother attempted to influence the children’s preferences as to their choice of residence so that they would prefer the maternal side. This pressure created conflict for the children, especially C.E.R.

[58] As of February 2022, the mother is visiting with the children at her sister M.’s house in Norwich. The Society has been providing a clinical supervisor to monitor the access.

[59] By all accounts, the mother’s visits with the children have been positive. She is regular in attending visits and comes prepared with snacks and activities.

Mother’s Current Circumstances

[60] Ms. R. advises that she is currently suffering from depression for which she takes prescribed medication. She was diagnosed some two years ago. She also takes Percocet for which she also has a prescription. The Percocet is advised to be for back pain and arthritis. She has issues with sleep and takes prescription medication for that. She denies any nonprescription drug use other than CBD for pain. It was her evidence that she provides urine tests to her doctor routinely in order to maintain her eligibility for a narcotic prescription. No urine screens were in evidence before the court in this proceeding.

[61] The mother is not employed and has no independent source of income at this time. She indicated that she intends to make application for ODSP.

[62] The mother advised that she hopes to return to reside in the Woodstock area at some point, as it is closer to her sister’s family and the family farm.

[63] The Society had advised the mother that in order to address protection concerns that she needed to address her mental health issues, to participate in a supportive mothering program as well as a parenting program, to participate in counselling and to provide consistently clean urine screens.

[64] To date, the mother has not engaged in counselling or participated in either a supportive mother or parenting program. The only urine test she provided in October of 2021 was positive for cocaine. As indicated above, the mother has resumed her relationship with Mr. M., is cohabiting with him and they are engaged to be married.

[65] Both children continue to visit with their mother at their Aunt M.’s home in Norwich on Wednesdays for three hours with a clinical access supervisor from the Society present.

Father’s Contact Post-disclosure

[66] In August of 2020, the girls were living with the paternal grandparents and the father’s access time with the girls was unrestricted. Although he was working, he was otherwise able to see the children at any time. Initially, he spent time with the girls during the week and on weekends. The father had a positive relationship with the Ss. at that time.

[67] In November of 2020, the Society learned from the children that the father was taking them on weekends to stay in Sarnia. The father had not informed the Society that he had entered into a new romantic relationship with a former family friend, R.W.

[68] As it turned out, the father had not only entered into a new relationship sometime in October of 2020, but he had moved in with his new partner in November of 2020. They were living in Florence, which is near Sarnia. The travel time between the Ss.’ residence in St. Williams and Ms. R.W.’s residence in Florence is approximately 2 hours each way.

[69] M.M.P. told the Society worker that they were going to the new partner’s house near Sarnia. She also shared that her father’s new partner had told her that her ex-husband had tried to kill her and her children with a screwdriver. The Society subsequently learned that Ms. R.W. was involved in a protection application. At that time, only one of her seven children was residing with her. The rest remained in care.

[70] Mr. P. was advised by the Society worker that his access was to be exercised only in Haldimand Norfolk until further inquiries could be made.

Father’s Access Following Disclosure

[71] A number of notable incidents occurred with the father’s access to C.E.R. and M.M.P. after December of 2020. Some of these incidents led to restrictions being placed on the father’s access.

[72] On one occasion, the father was scheduled to visit with M.M.P. and C.E.R. at the Ss.’ residence. The father brought his son D., Ms. R.W. and two of her children with him. M.M.P. was set up in the kitchen for virtual school. She had worked on a puppet show and had told her teacher that her father would be assisting her with her presentation. M.M.P. had to compete with Ms. R.W.’s children for her father’s attention. C.S. attempted to redirect her son and advised him that this was supposed to be his time to spend with C.E.R. and M.M.P. The father became angry and told her that he was not superman and that he could not be in 50 places at one time. As a result, Ms. C.S. helped M.M.P. with her puppet show presentation, but the child was disappointed, as she had planned on her father being there for her.

[73] Another incident occurred in March of 2021 during an access visit. The father had both M.M.P. and C.E.R. in the car along with Ms. R.W. and one of her children. He became angry with his son D. who was, at the time, at the home of his mother. He determined that he would immediately drive over to D.’s residence to set him straight. The evidence is that he was extremely angry, swearing and driving erratically to the point that Ms. R.W. felt the need to give him a verbal reminder that there were children in the car. It was clear that there was a lot of yelling at the scene and that some of the adults present threatened to call the police. C.E.R. began crying and had what the father described as a “meltdown”. M.M.P. described her father as driving away fast. In his evidence, the father described the incident as his having had an “explosion” with D. and acknowledged that he had threatened him.

[74] On returning to the Ss.’ home, M.M.P. ran to her grandmother to describe the recent incident to her. The evidence is that the father told the child, “to keep her nose out of other people’s business or it would get broke”. M.M.P. then began to cry and ran upstairs to her room.

[75] Once the Society learned of these events from the children, they advised the father that his access would be supervised.

[76] The next notable incident took place in July of 2021. At that point, the father was exercising his access at the Ss.’ home with a clinical supervisor provided by the Society. The children were preparing to take a swim in the Ss.’ pool. M.M.P. took a pool skimmer and prepared to clean the pool. The father told M.M.P. to put it down and get in the pool. M.M.P. responded that it was a house rule that the pool needed to be skimmed after the cover was removed and went to pick up a second skimmer. The father became extremely angry and loud and was yelling. C.E.R. began to cry. The father sent her to her room. C.E.R. was still upset when the visit ended and the father left.

[77] The father had a telephone call with the children later that day. During the call, the father said that C.E.R. should have “had her ass tanned” for her behaviour earlier that day. The father’s evidence was that he was unaware that the children had heard his remark. They had.

[78] As a result of this incident, the Society advised the father that his access would take place at the Society building. C.E.R. refused to attend the next two access visits and did not participate in telephone calls with the father.

[79] C.E.R. did accompany her grandmother to the Society building when she delivered M.M.P. for access. C.E.R. was to give her evidence at the preliminary inquiry with respect to the pending sexual assault charges the next day. The father approached the vehicle and wanted to speak with C.E.R. She willingly hugged him and accepted his words of support in encouraging her with respect to her giving evidence at the upcoming preliminary hearing.

[80] C.E.R. attended the next access visit at the Society offices in August. The father’s evidence was that the visit went well. He was surprised when C.E.R. would not speak with him during the nightly telephone call later that day.

[81] On August 30, C.E.R. ran away from the Ss.’ home. After everyone had gone to bed, C.E.R. jumped to the ground from her second story bedroom window. She had planned in advance with her friend and bicycled to her house. From there, she called her mother. The evidence varied as to the reasons for C.E.R.’s running away from the Ss.’. She told her counsellor that her sister was driving her crazy, she told her mother that she missed her and did not like the rules at the Ss.’. She said that she did not feel like part of the Ss.’ family because she was not their biological grandchild. C.E.R. spent the night at a foster home. The next day she advised that she was ready to return to the Ss.’.

[82] C.E.R. planned on attending the next scheduled visit with the father. The father approached C.E.R. when she arrived at the access center. The evidence is that the father’s body language reflected that he was agitated and upset. He said to C.E.R. that “they needed to have a talk about what happened”. C.E.R. responded that she had not been hurt. The father insisted that they needed to have “a talk”. C.E.R. began to cry and refused to attend the visit. She returned to the car and locked the door. C.E.R. has not attended any access visits since that day. The father has continued to insist, despite C.E.R.’s protestations, that it is vitally important to him that this conversation take place. In turn, C.E.R. has refused to have contact with him.

[83] M.M.P. has continued to see her father every other weekend. Initially the visits continued to be supervised at the Society offices. Since October of 2021, the father’s parenting time with M.M.P. has been unsupervised.

[84] In December, the father approached the Society with a request that M.M.P. be permitted to attend a Christmas party that was being held by a family friend outside of the jurisdiction and to remain overnight. C.S. asked C.E.R. whether she would like to attend the party as well and C.E.R. said yes. The father subsequently decided that C.E.R. should not be permitted to attend the party. He advised the Society worker that C.E.R. did not deserve to attend the party because of the way that she had been treating him. He also maintained that it would not be possible for him to advise the other people attending the party to respect C.E.R.’s wish not to discuss the events of August 30 with anyone.

[85] M.M.P. did attend the party and thereafter the Society approved M.M.P. to have overnights at the house in Florence. By February, M.M.P. was approved to spend alternate weekends from Friday at 4:00 p.m. to Sunday at 7:00 p.m. in her father’s care. She is picked up by the father at the Ss.’ on Friday after school and returned to the Ss.’ on Sunday evening. The father also has daily telephone calls with M.M.P. C.E.R. has not participated in these calls.

Circumstances of Sarnia Household

[86] Ms. R.W. is separated from her longtime partner and the biological father of all of her children (referred to as “Mr. K”.). The seven children in her care range between the ages of two and ten. The lease to the residence in Florence is in Ms. R.W.’s name alone. She and her children resided there prior to the children being taken into care. The housing is made available to Ms. R.W. through the Native Housing Centre as she is eligible for membership with the Mohawks of Quinte First Nation. The property is a five-bedroom, two-bathroom farmhouse. Ms. R.W. is not employed.

[87] The evidence is that Ms. R.W.’s partner was extremely abusive of her and the children. The family experienced extensive abuse in the home and witnessed severe abuse of each other in the home. There were issues with lack of food. The eldest child was enlisted by her father to physically discipline the younger ones and is described as “parentified”. The children described seeing their father attempt to hang himself in the family home. The abuse was such that the father had convinced the children that they were not real but were just blow-up dolls. Ms. R.W.’s worker gave evidence that Ms. R.W. was part of that abuse. The mother describes the father threatening to slit a child’s throat in front of her. He threatened to drive his van into the Niagara River and kill them all. These are just some of the tragic facts which emerged with respect to this family. The worker identified these as major incidents but indicated that the abuse had been ongoing throughout the relationship. She described it as a constant barrage of assaults on all of the children.

[88] This history of abuse culminated in the father’s arrest on September 4, 2020. The evidence is that in a motel room in Niagara Falls the father attempted to stab one of the children with a screwdriver. The oldest child stepped in front of the younger in an effort to save her brother. Mr. K. was arrested for uttering death threats to Ms. R.W. and the children, assault with a weapon on the children and forcible confinement.

[89] Ms. R.W. gave evidence that her former partner had been diagnosed as bi-polar and schizophrenic. He pled guilty to four of seven charges in November of 2020. He has since been released from custody and his three-year probation order will end on November 23, 2023.

[90] All seven children were removed from Ms. R.W.’s care in September of 2020. The children have been returned to her care, one by one, over fifteen months with the last child being returned in December 2021.

[91] All seven of the children have been diagnosed with post-traumatic stress disorder (“PTSD”), as has Ms. R.W. Two of the children have been diagnosed with attention deficit hyperactivity disorder (“ADHD”). One has both ADHD and oppositional defiance disorder. One child has displayed sexually inappropriate behaviour since returning home. He spoke at school of putting his penis into girls and of slapping them on their butts. There was a concern that he was standing over C.E.R. and M.M.P. one night watching them sleep. The parents responded by moving the girls to one floor and the boys to another and installing video cameras to monitor movement at night.

[92] The children were able to participate in art therapy after being returned to the care of their mother. Unfortunately, art therapy has been discontinued because the Society ran out of funding for it. Additional counselling has been recommended for all of the children. The therapy that Ms. R.W. has received to date has not been sufficient to deal with the trauma that she has experienced. The family is waiting to hear from community resources.

[93] Ms. R.W.’s worker stated that randomly, at different places and times, the children are triggered to worry about horrific things that have happened to them previously.

[94] Ms. R.W.’s worker gave evidence that the abuse sustained by Ms. R.W. has affected her memory and deteriorated her sense of the timelines of events. This was evident in her testimony. Ms. R.W.’s evidence directly contradicted that of the Society worker and did not accord with the Statement of Agreed Facts that she had signed. Her evidence was internally contradictory. Her description of some events simply made no sense.

[95] Ms. R.W.’s worker gave evidence that the household has “layers of issues”. She described that it was a big transition every time a new child came back into the home. She explained that the dynamics of the home shifted greatly with the reintroduction of each child.

[96] The worker identified both Ms. R.W. and Mr. P. as being “old style parents”. She described working with both parties to educate them that yelling and screaming were inappropriate and to encourage more appropriate forms of discipline. As late as August of 2021, Mr. P. still struggled to understand that spanking children was not appropriate. She gave evidence that she has seen an improvement in Mr. P.’s anger management issues but has concerns that, under stress, he could revert to his old behaviours. She has encouraged him to get more help to ensure long term success and recommended anger management services. She indicated that the process of transitioning the parents from one behaviour to the other would take time.

[97] The worker for Ms. R.W. understands that Mr. P. is proposing to add C.E.R. and M.M.P. as full-time residents to their home. She advised them that the house was not big enough for two more children. The wait list for housing in Sarnia is at least one to two years.

Father’s Current Circumstances

[98] The father remains in a relationship with Ms. R.W. His relationship to her children is described as that of a co-parent or equal parent. Mr. P. has taken an active role with respect to the care of Ms. R.W.’s children. Ms. R.W. does not drive, and the children needed to attend numerous appointments, especially for counselling. Mr. P. provided the transportation and gave evidence that he sometimes sat in on the sessions of art therapy.

[99] The demands on Mr. P.’s time by virtue of his new family responsibilities have been significant. So much so, he gave evidence that he left his employment in January of 2020 in order to spend more time meeting the family’s needs. He has not returned to employment.

[100] During the trial of this matter, the school called to report that one of Ms. R.W.’s children was ill and needed to be picked up. It was Mr. P. who jumped into the car and went to retrieve the child. Again, Ms. R.W. does not drive.

[101] Mr. P. gave his responsibilities with respect to Ms. R.W.’s children as the reason that he could not participate in counselling with C.E.R. The Society had proposed that he and C.E.R. participate in reconciliation counselling. The father advised that he was too busy with Ms. R.W.’s children in order to participate.

[102] Mr. P. gave evidence that it is his intention to return to work once his circumstances settle down. His definition of matters being settled was when C.E.R. and M.M.P. came to live with him. He indicated that it was likely that he would return to work as an ironworker when that time came.

[103] The Society has raised issues with M.M.P.’s recent access visit with her father.

[104] The father became angry at one of Ms. R.W.’s children. M.M.P. advised the Society worker that her father punched the table in anger and yelled. The father denies punching the table but acknowledges that he somehow hit it when getting up, making it shake. He denies becoming angry but acknowledges that he and Ms. R.W.’s child had a disagreement. His evidence was that he left the house in order to avoid saying something that he would regret. He states that he returned calmly and apologized. M.M.P. told the worker that she felt scared at the time.

[105] M.M.P. also told the worker that her father told her that he wanted to smash a photograph of her mother that was in his home. The father did not deny making the statement. Rather, his evidence was that he made the statement in the heat of the moment in an effort to explain to the child his feelings of disappointment over the poor choices the mother was making.

[106] M.M.P. reported to the worker that on a visit the father told her that he needed to be left alone to read 150 pages of documents for court. The Society advised the father that court is an adult matter that should not be shared with children.

[107] The father confirmed having told M.M.P. that everything that she tells the Society comes back to him. M.M.P. made a point of telling the worker that she did not complain about the father smoking in the car while she was in it. Rather, she wanted the worker to make a note that she had no issue with his smoking in the car and that “it made him less grouchy”.

[108] M.M.P. also reported to the worker that he told the child that she would soon be living with him and R.W.

[109] When the worker called to share these concerns with the father, he hung up on her.

Father and Anger Management

[110] There was evidence from at least two Society workers that the father engaged in yelling at them, swearing at them and hanging up on them during telephone discussions. This behaviour has continued despite the father having completed anger management programs.

[111] One of the access supervisors gave evidence that the father reacted with anger to being told to wear a mask on a visit.

[112] C.S. gave evidence that the father’s anger flares in a split second and that, when he is angry, he is prone to say very hurtful things.

[113] It appears that the father has taken anger and stress management programs three times, most recently between October and December of 2021.

C.E.R. and M.M.P.

[114] The evidence is that the children are doing well at the paternal grandparents’ home. Their medical and dental needs are attended to, and C.E.R. participates in counselling. The Ss. have established a routine for the children that includes appropriate limitations. They encourage them to take responsibility for simple chores. They are attentive to the girls’ education. M.M.P.’s ability and attitude towards reading has improved markedly. She asked to and now attends a bible study class as an extracurricular activity. C.E.R. has earned a B in French and is actively involved in a theatre group. Both girls have friends. C.E.R. says that she plays with 23 out of 25 kids in her class. Both girls expressed being happy in their current school.

[115] C.E.R. had bladder control issues which predated her parent’s separation and the sexual abuse. It was unclear whether the problem was related to emotional issues at that time. It is clearly related to emotional issues now. C.E.R. has shared with her counsellor that situations that cause her stress, such as exposure to conflict, will exacerbate the issue. She will continue to require support to learn to manage the problem.

[116] C.E.R. will continue to require counselling and support to deal with the trauma of the sexual abuse. Also, at this time, C.E.R. has no knowledge of her mother’s ongoing relationship with her abuser. She will also require support to deal with what has been described as that “bombshell” of information.

[117] C.E.R.’s biological father expressed an interest in a relationship with C.E.R. after being served with the protection application. C.E.R. wanted to speak with him, and they engaged in a positive video meeting. After the meeting, C.E.R. said that she not only wanted to continue the relationship but that she looked forward to meeting her half siblings. C.E.R.’s biological father pulled back from the relationship after the meeting. C.E.R. is unlikely to have a relationship with her biological father or half siblings and was made aware of his decision. She will require ongoing support to deal with this as well.

[118] Evidence with respect to the children’s views and preferences came from various sources. A clinician was appointed by the Office of the Children’s Lawyer. Since February of 2021, a kin worker with the Society has met with each of the children privately on a monthly basis. A family services worker has spoken with the children frequently since February 2020. C.E.R. has been seeing a counsellor with REACH since July of 2021 and speaks with her weekly.

[119] C.E.R. has struggled with finding a place where she feels that she truly belongs. She has said that she feels safe and loved at the Ss.’. However, she has also pushed back against the imposition of rules and routine in the Ss.’ home and particularly to being told “no”. Prior to coming to live with the Ss., C.E.R. did not have an enforced bedtime and, in particular, she had unrestricted use of her electronics. This changed when she moved into the Ss.’ home.

[120] C.S. gave evidence that when C.E.R. first came to live with them, she would have what were described as “meltdowns” on an almost daily basis. These have decreased markedly over the time that she has resided with the Ss. C.E.R. has acknowledged to her counsellor that she realizes that the rules are meant to keep her safe. In turn, the paternal grandmother has eased up on the reins somewhat, and C.E.R. is now enjoying a greater level of independence. A better balance has been achieved. C.E.R. has identified her maternal grandmother as her “safe person”.

[121] Recently, C.E.R. has said that she has lived with the Ss. for long enough and now wants to live with her mother. In saying this, C.E.R. is unaware that her mother has reconciled with Mr. M. and plans to marry him.

[122] C.E.R. has also said that she would like to return to live at her maternal grandparents’ farm. She has proposed a week about residence schedule between her maternal and paternal grandparents as well as one in which she would live with her maternal aunt during the week and her mother on weekends.

[123] All sources have indicated that C.E.R. is adamant that she does not want to have contact with Mr. P. Her reasons are various. She says that he does not respect her or listen to her. He does not respect her boundaries. She says that he shows favouritism towards M.M.P. She describes him as “flipping out” on her. She complains about him yelling at her and of inappropriate discipline (long time outs standing with her nose to the wall).

[124] The evidence is that C.E.R.’s relationship with her sister M.M.P. is important to her. Several witnesses described them as having the quintessential sibling relationship; meaning that one minute they are laughing together and the next minute they are not speaking to each other. C.E.R. has said that she loves M.M.P. more than anyone else and also that M.M.P. is the most annoying person that she knows.

[125] M.M.P. has been diagnosed with ADHD. She does not take any medication.

[126] M.M.P. has been described as loving everyone and everything. She wants connection and to be loved by her parents. Her preference would be to live together with her parents and have a family “like everyone else”. She has an understanding that there may not be room for her at her mother’s residence. She also has an understanding that there may be too many children already at her father’s residence. She has proposed a four week about residency schedule; one week with each of her maternal grandparents, paternal grandparents, father and mother. She has also proposed that “everyone live together” at the farm.

[127] She has indicated that she enjoys her weekends with her father and likes to play with the children there. However, she has also said that she finds the situation chaotic and would prefer to have more one-on-one time with her father.

[128] Both children have been consistent that they wish to have more contact with their maternal grandparents and aunt. They want to spend time back on the farm. Their grandparents and the farm property have been constants in their lives since birth and they lived there for many years. Both girls have expressed a loving, affectionate relationship with their maternal grandparents. The attractions of baby goats and llamas also cannot be underestimated.

[129] Both girls have said that they want to spend more time with their mother.

THE LAW

[130] Section 101 of the CYFSA provides that:

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

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.

(2)In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

(3)The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

(4)Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1) consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[131] Section 102 of the CYFSA provides that:

(1)Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child’s best interest, 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.

(2)An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

[132] Section 74(3) of the CYFSA provides that:

(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 place 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.

PARTIES’ PLANS

[133] The mother is unable to put forward a plan at this time. She does not have an appropriate residence for the children. Her counsel describes her as being unwell given that she is suffering from depression. She is without employment and, although she intends to, has not applied for ODSP. Most significantly, she is in a relationship with a man that C.E.R. identifies as having sexually abused her. She has not expressed any intention of ending that relationship. In fact, the mother is cohabiting with and intends to marry Mr. M.

[134] C.E.R. does not know that her mother is in a relationship with Mr. M. She believes that the mother ended that relationship and that she is involved in a relationship with another man.

[135] The Society recommended to the mother that she take a supportive mothering course. This was so that she could assist C.E.R. in dealing with the trauma of sexual abuse. The mother has not taken the course. She has also not taken the parenting course recommended by the Society.

[136] What C.E.R.’s reaction to learning of her mother’s relationship with Mr. M. will be is unknown. It is possible that she may not wish to have any contact with her at all. The mother chose a romantic relationship over her responsibility for supporting her child through a traumatic event. C.E.R. has already suffered a great deal of loss in her life. Her reaction to her mother’s choice may well be severe. Of course, the disclosure should only be made to C.E.R. in a pre-planned therapeutic environment. Nonetheless, it would be unreasonable to suggest that the implications of such weighty disclosure will be resolved quickly.

[137] The mother supports the making of a six-month supervision order in favour of the Ss. as opposed to a s.102 order. However, on cross examination she acknowledged that nothing in her circumstances was likely to change over the next six months. She has no expectation of being in a better position in six months to care for her children than she is now.

[138] She would welcome the continued involvement of the Society in assisting her with a gradual increase in her access. She is concerned that the Ss. might cut off her access unfairly if the Society is not involved.

[139] The gradual increase in mother’s access is in accordance with the children’s wishes. They have made it clear that they want to spend more time with her.

[140] In terms of location, they expressed a preference for their Aunt M.’s home or the farm. The Society has approved their aunt’s home as a safe location. The Society was negotiating terms for unsupervised access to take place at the farm.

[141] The mother is content that her access will continue to be supervised. Her sister, Aunt M., gave evidence at the trial. She was clear and unequivocal in her evidence. She does not support her sister’s decision in maintaining a relationship with Mr. M. She believes and supports C.E.R. She will not permit there to be any contact or communication between Mr. M. and her nieces, or for her sister to speak of or to him in their presence. She does not approve of her sister’s manner of disciplining the children and will not allow it. She was an excellent, straight forward, credible witness and is an appropriate supervisor for the mother’s access.

[142] Ms. S.R. was also clear that she did not approve of her daughter’s relationship with Mr. M., saying that her daughter should have put her children’s interests first. C.E.R. first made her disclosure to her grandmother and that speaks volumes as to the closeness of their relationship and the faith that C.E.R. has in her. She was clear in her evidence that she told her daughter that the abuse needed to be disclosed to the police. She asked her daughter to leave her home once she learned that her daughter had not taken the appropriate steps. She confirmed that she does not approve of yelling at children or banishing them to their rooms frequently with little justification. She will not permit that conduct on her watch. Ms. S.R. clearly understands the protection concerns. She loves her granddaughters and will act protectively towards them. I have no hesitation in finding that Ms. S.R. is also a suitable access supervisor for her daughter.

[143] There was no evidence that the Ss. would act unreasonably in cutting off or limiting the children’s access to their mother. The evidence was that C.S. had acted to facilitate the children’s relationship with both of their parents. As an example, she keeps two bags; one for each parent, in which she places copies of report cards, samples of the children’s work, photographs and the like. C.S. provides the transportation for the mother’s visits.

[144] In contrast, there was evidence that the mother had been highly critical of the placement with the Ss. She did make many complaints to the Society about their care of the girls. None of these had merit. She did attempt to influence the girls’ choice of residence by encouraging them to say they wanted to live with their Aunt M. She did suggest to C.E.R. that her relationship in the Ss. household was somehow lesser than M.M.P.’s because they were not related by birth.

[145] I find that it is in the children’s best interest that they continue to enjoy parenting time with their mother. However, a supervision order is not required for the purpose of implementing or securing the mother’s access. An access order detailing location, terms, naming a supervisor and detailing a schedule of gradually increasing access will be sufficient.

Father’s Plan

[146] The father seeks an order placing the children in his custody pursuant to s.102 of the CYFSA. Alternatively, he proposes that a six-month supervision order placing the children in his care be made.

[147] The father now resides in Sarnia. His evidence is that he intends to remain there. All of the children’s extended family reside in the Langton/Simcoe area. The children have lived in this area all of their lives, as did Mr. P. before his recent move.

[148] Placing the children in his care would require that the children change schools. Both children have indicated that they are happy in their present school. They have friends. They have no friends in Sarnia.

[149] The children are involved in extracurricular activities at present. C.E.R. is thriving in her theatre arts program. It has helped her to build up her self-confidence. M.M.P. is taking Bible studies at her own request. She too is enjoying this activity. When asked about extracurricular activities if the girls were to change residence, Mr. P. acknowledged that he had yet to look into any. Ms. R.W.’s children do not participate in any extracurricular activities at this time.

[150] C.E.R. has an established relationship with a counsellor. A move would require her to terminate this relationship and attempt to locate a new counsellor and re-establish trust.

[151] C.E.R. at present is adamant that she wants no contact with Mr. P. She has not seen him for nearly eight months. She does not speak to him. Making the order requested by Mr. P. would require ordering C.E.R. to live with someone with whom she refuses to have contact. C.E.R.’s decision was not arbitrary. She gives entirely legitimate reasons for not wanting to see her father, let alone live with him. She has seen him be violent towards her mother. She has witnessed his loss of temper and inability to manage his anger. She has been the subject of his inappropriate discipline.

[152] C.E.R. has made at least three efforts at reconciliation which Mr. P. rebuffed. She agreed many months ago to participate in reconciliation counselling. Mr. P. was too busy with his responsibilities relating to his new family.

[153] C.E.R. returned to the access centre after taking an access break after the pool incident. It was her intention to visit with her father. He angrily approached her and told her that they “were going to have a talk”. This was the talk about her having run away from the Ss.’ and one that she had told him that she did not want to have with him. Other people including the Society worker and his own mother had advised him to leave the issue alone. The father fixated on his right to have this talk with C.E.R. whether she wanted it or not. In his evidence, he said that he wanted to tell her that she had scared him nearly to death and that was not ok.

[154] C.S. gave evidence that C.E.R. reached out to Mr. P. by telephone a few months ago. She asked him to just listen to her list of grievances so that he could understand. At the end of the call, Mr. P. said that was all fine but “that they still needed to have that talk”. C.S. compared it to his having hit C.E.R. with the olive branch that she had proffered.

[155] The evidence is that, at this time, C.E.R. is not prepared to engage in reconciliation counselling with Mr. P. That may change in the future, but there are no signs of it happening in the short term. The process would no doubt be lengthy and there is no guarantee, given Mr. P.’s past behaviour, that it would be successful.

[156] C.E.R.’s counsellor gave evidence that she is working with C.E.R. to help her put boundaries in place to keep her emotionally safe and to keep her happy. One of C.E.R.’s main concerns with respect to Mr. P. is that he does not respect her or listen to her. In particular, he does not respect that she does not wish to have contact with him now.

[157] The issue of boundaries is critical to C.E.R. in light of her trauma from sexual abuse. It would not be in C.E.R.’s best interest to disregard the boundaries that she is working on putting in place by ordering her to reside with Mr. P.

[158] In the face of C.E.R.’s views and preferences, Mr. P. proposed splitting up the siblings. He proposed that M.M.P. be ordered to reside with him without C.E.R. The evidence was that the sibling relationship was important to both children. It has, in fact, been the one constant uninterrupted relationship in their lives. It would be detrimental to the children’s stability and security to separate them.

[159] Mr. P. has never been the primary caregiver to a child. During his relationship with Ms. R., he identified his role as that of disciplinarian. He said that his job was to reprimand the children. He did not show any insight into the emotional needs of a child. His approach was not child focused. He often spoke of his hurt, his feelings, his rights as opposed to looking at the situation from the child’s lens.

[160] Mr. P. now resides in a home with seven other children. If M.M.P. and C.E.R. were to join their family unit, that would mean nine children. When his son D. visits on alternate weekends, that would make ten children under one roof.

[161] Each and every one of these children require special attention. All of Ms. R.W.’s children suffer from PTSD. The evidence is that each of them continues in need of counselling. Random events trigger their recollection of past abuse and unpredictable behavioural consequences. Ms. R.W.’s evidence was that the introduction of each child back into the household changed the dynamics.

[162] Mr. P. proposes that he will return to work when things settle down. As an ironworker, Mr. P. was gone at least most of every day and often during the entire week. This would leave Ms. R.W., who is clearly still exhibiting evidence of the trauma she has survived, to manage the care of nine children ranging in age from two years to eleven years of age.

[163] There are issues on a logistical and practical level. The residence in Sarnia is simply too small to accommodate nine children and two adults. The waiting list for housing was estimated by Ms. R.W.’s worker as being one to two years and much longer by Ms. R.W. herself. Ms. R.W. does not drive, and Mr. P. proposes returning to work.

[164] Furthermore, the relationship between Mr. P. and Ms. R.W. is new. The last of her children was only reintroduced to the household in December. They have lived as a family of nine for only a few months. If the relationship does not survive the many stressors upon it, the girls will be destabilized again. The lease to the Sarnia residence is in Ms. R.W.’s name, and Mr. P. is not eligible for the housing. In any event, Mr. P. gave evidence that he had lived in the Langford area for most of his life. He would in all likelihood return to live there if his relationship with Ms. R.W. broke down. After moving away from family and friends and changing schools and counsellors, the girls would be destabilized and have to move again.

[165] The evidence is that C.E.R. especially benefits from calm and quiet. She does not do well with chaos. She does not like loud voices and loud noises. These things aggravate her and cause her stress. Her bladder issues are impacted by stress and conflict. Both children have commented that the environment in Ms. R.W.’s household is overwhelming for them. They have described it as feeling bombarded. M.M.P. has said that there is too much going on and that she would prefer more alone time with her father rather than having to share him.

[166] In his evidence, Mr. P. referred often to “his girls coming home”. The fact however is that the children have never lived in Florence. It is not their home and has never been their home. It is Ms. R.W.’s home and that of her children where horrible, terrible things happened to them and from which they are only now beginning to recover. There were many years of abuse, and it can reasonably be expected that there will be years of recovery during which they will need every minute of time that their caregivers can provide. During that process, it is difficult to see how Mr. P. could possibly provide C.E.R. and M.M.P. with the attention that they also need and deserve.

[167] For all of the above reasons, it is not in the children’s best interest that they be placed with the father. This is true whether that order is for a six-month order of supervision or by way of a s.102 order.

Grandparents’ Plan

[168] The children have been in the care of the Ss. since August of 2020. The evidence is that the girls have done well in their care.

[169] The Ss. have been married for 31 years. Their relationship is stable. They have lived in the same home in St. Williams for most of their marriage. Each girl has her own room in the home.

[170] Ms. C.S. is retired and available to meet the children’s needs. She has a background in early childhood education and has experience as a childcare provider.

[171] Ms. C.S. has worked co-operatively with the Society and called upon them as a resource when necessary. She has shown herself to be open to learning and to trying new methods to support the children.

[172] Both children struggled with different rules and routines at the Ss.’. The evidence was that there was little routine for them previously and that they had more freedoms, particularly in accessing electronics. C.E.R. in particular craved more independence. Some changes have been made on both sides and as indicated earlier a better balance has been reached. C.E.R. and M.M.P. both love their paternal grandparents and recognize that the house rules are in place to keep them safe.

[173] C.E.R. came to the Ss. experiencing “meltdowns” virtually every day. These meltdowns were described as loud crying, screaming, lying down on the floor, kicking and screaming or going away to hide. C.S. sought advice from the Society and worked calmly and patiently with the child. She learned what approaches worked with C.E.R. and what did not. Her evidence is that the episodes have tapered off so that the last one was before Christmas. This is not to say that C.E.R. no longer has any issues. She does. But the Ss. are on top of her needs and make sure that she gets the help necessary.

[174] There was an incident involving C.E.R. and Mr. D.S. shortly after the girls came to live with them. C.E.R. was having a meltdown and Mr. D.S. told her to “stop being such a bitch” or something similarly inappropriate. The Ss. contacted the Society to essentially report the incident and to get some advice. The Society provided a referral. Ms. C.S. took the course, but she reviewed the information she learned with Mr. D.S. in detail. Both parties agreed that the behaviour was inappropriate and that it should never be repeated. Mr. D.S. accepted responsibility and apologized to C.E.R. saying that such words should never have come out of his mouth.

[175] The Ss. have been very attentive to the children’s academic needs. M.M.P. has been diagnosed with ADHD. This was interfering with her progress with reading and as a result she disliked reading very much. C.S. has worked diligently with M.M.P., and she now professes that she loves to read. Her report card reflects her progress. The evidence was that the Ss. worked with M.M.P. on her spelling and posted her weekly words around the house to help her learn.

[176] The Ss.’ home is located a short drive from the maternal grandparents’ farm. The maternal aunt lives in nearby Norwich with the girls’ two cousins. The paternal aunt and uncle live in Woodstock. The Ss. have facilitated the children’s relationship with their extended family. For some time, the maternal grandmother was coming to their home for visits. This changed only when the father advised the Society that the only time that he had available for access was at the same time as the maternal grandmother. The Ss. have provided transportation for the girls to visit their mother.

[177] I assume that the Ss. are not perfect. However, the evidence is that they recognize inappropriate behaviour, are open to learning, are sensitive to the children’s emotional needs, are child focused and are working very hard to provide a warm, stable, loving environment for these two children.

SUPERVISION ORDER VERSUS CUSTODY ORDER

[178] The children deserve permanence.

[179] The mother has already acknowledged that nothing will change in her circumstances that will enable her to put forward a plan in six months’ time.

[180] The father’s circumstances may have been very different had he not chosen to move to Sarnia in the first instance. However, even were that relationship to fail now and the father to return to the jurisdiction there would remain too many obstacles to placing the children in his care. His stability at that point would be a primary concern. The fact that he made the choice in the first place to choose a relationship over his children would be another. All of the other concerns with respect to anger, parenting and lack of insight and child focus are likely to remain in play. Despite having taken three anger management courses, the father is still yelling and swearing at the Society workers when he does not get his way.

[181] C.E.R. is unlikely to be in a different place in six months’ time when she indicates that she is not ready to begin reconciliation counselling now.

[182] On balance, there is no compelling reason to re-run what was a 14-day trial in six months’ time.

[183] Counsel suggested that the value of a supervision order lay in the continued involvement of the Society for a further period of six-months. This was suggested as advisable for two reasons.

[184] One being that the Society could assist in approving a supervisor and implementing a gradually increasing access schedule for the mother. I have already indicated that this can, and will, be accomplished by way of an access order. In addition, I heard evidence from two witnesses and found both suitable to act as supervisors.

[185] The second being the suggestion that the father’s history showed that he found it difficult to be told “no” and that he was not inclined to abide by other people’s rules. This would place the Ss. in the unfortunate position of being access “sheriffs”.

[186] Firstly, I did not hear any evidence that Mr. P. was unlikely to comply with the terms of a court order. In any event, serious remedies exist to remedy such an error in judgment.

[187] Secondly, there is ample evidence that C.S., in particular, is well able to act in the children’s best interest when necessary by ending inappropriate telephone calls or re-directing inappropriate behaviour.

[188] Thirdly, the Society worker gave evidence that the Society would remain involved in a supportive and voluntary capacity for at least three months.

[189] Again, when weighed against a re-run of a 14-day trial in six months’ time, the balance favours the making of a s.102 order.

[190] It was suggested that s.34 of the Children’s Law Reform Act could be relied upon to involve the Society irrespective of the making of a s.102 order. My reading of that section does not support that interpretation. The intention of the section is to permit a court, with the consent of the Society, to name it as an access supervisor. The section is not intended to grant a Society the same powers as a protection order. In any event, as I have indicated, recourse to this section is not necessary.

[191] For the foregoing reasons, this court orders that a s.102 order shall issue granting custody of M.M.P. and C.E.R. to the paternal grandparents, C.S. and D.S.

ACCESS

[192] The paternal grandparents have proposed a three-weekend alternating access pattern whereby they would have the girls for one weekend, the father would have the girls for one weekend and the mother would have the girls for one weekend. Access would be subject to the children’s expressed views and preferences. As such, at least initially, C.E.R. would not visit with her father.

[193] The mother confirmed her agreement with this proposal. Her one proposed amendment was that she would have care of C.E.R. on the father’s weekend if C.E.R. chose not to attend the visit.

[194] I have considered the children’s expressed views and preferences with respect to their special relationship with their maternal grandmother and their love of the family farm and extended family (which may or may not include the baby goats). I have also considered the strained relationship that now exists between the mother and her family.

[195] It was submitted that the children would enjoy time with their maternal grandmother during the mother’s scheduled parenting time. In light of the strained relationship between the mother and her family at present, the relationship that the children have with their maternal grandmother is too important to the children to be left solely in the discretion of their mother.

[196] Based on all of the foregoing considerations, I am ordering a three-weekend rotating schedule on the following terms:

a. Subject to the terms which follow, and which relate to overnight access at the farm, the weekend will be defined as Friday at 4:00 p.m. to Sunday at 7:00 p.m. The schedule shall commence with the paternal grandparents’ weekend on the first weekend following the release of this decision. If that weekend happens to be one on which the paternal grandfather is working (he works every other weekend), the within schedule shall commence with the paternal grandparents’ weekend on the next weekend following. The mother’s weekend shall follow that of the paternal grandparents and the father’s weekend shall follow after that of the mother. The three-weekend rotating schedule shall then repeat.

b. The father’s parenting time with C.E.R. shall be subject to her views and preferences.

c. Except as provided below, the father shall exercise his weekend parenting time within 100 km of (redacted). D. or no more than 2 of Ms. R.W.’s children at a time accompanied by their mother may attend part or all of the father’s access weekend.

d. The father shall exercise at least one out of every four of his weekends with M.M.P. alone (i.e., without D., Ms. R.W. or any of Ms. R.W.’s children) so that she can enjoy his full attention. This latter restriction is not intended to limit the father’s access in the community but to make sure that his attention is focused on M.M.P. and not on any other children to whom he acts as a parent.

e. Three times per year on 30 days advance written notice to the Ss., the father may exercise his weekend parenting time with M.M.P. at his home in Florence. During his parenting weekends, the father shall not delegate M.M.P.’s care to anyone and shall supervise her at all reasonable times.

f. The father shall not discuss Mr. M. or the mother’s relationship with him with either C.E.R. or M.M.P.

g. The mother shall exercise her weekend access at the home of Aunt M. or at the farm, supervised by Aunt M. and/or Ms. S.R. At least one out of every two of the mother’s access weekends shall take place at the farm. This is a minimum requirement, and so long as Aunt M. or Ms. S.R. are present to supervise, all the mother’s visits may take place at the family farm.

h. If the mother’s access takes place at the farm, the mother and the children shall return to Aunt M.’s home before bedtime and remain there overnight. Overnight contact at the farm may commence in six months’ time if it is in accordance with C.E.R.’s views and preferences at that time.

i. Ms. C.S. shall arrange an appointment for C.E.R. with her counsellor, Ms. S.A., within 2 days of C.E.R.’s first visit at the farm.

j. The mother shall not permit Mr. M. to come within 300 meters of the children or any location where they are known to be. She shall not permit Mr. M. to have any contact, direct or indirect with the children. She shall not communicate with Mr. M. in any manner whatsoever while in the presence of the children or at any time that the children are scheduled to be in her care. She shall not discuss Mr. M. or her relationship with him except in the presence of C.E.R.’s counsellor, Ms. S.A., as prearranged in writing between Ms. S.A. and the mother. C.S. shall receive advance written notice of the proposed meeting.

[197] Counsel for the Children’s Aid Society of Haldimand and Norfolk is requested to deliver a copy of this endorsement as well as a copy of the issued and entered order once available to each of Ms. S.R. and Aunt M.

[198] The mother and the father shall pick up and drop off the children for their weekend parenting time at (redacted). The mother shall be accompanied by either or both of Ms. S.R. and Aunt M.

[199] The children may contact their parents or any other member of their extended family when they wish to do so. Each of the mother and the father may call/video call with the children (subject to their views and preferences) once per week. Texting and emailing will be limited to responding to the children’s contacts with them and shall not be initiated by either of the parents.

[200] Physical discipline shall not be used on the children by any of the parties.

[201] Neither the mother nor the father shall discuss changing the children’s residence with them.

[202] None of the parties will smoke in the presence of either M.M.P. or C.E.R. or permit them to otherwise be exposed to secondhand smoke.

[203] None of the parties will be in an intoxicated state while in a caregiving role.

[204] None of the parties shall behave in a verbally or physically threatening or abusive manner towards M.M.P. or C.E.R.

[205] None of the parties shall refer to any of the other parties or their extended family members in a disparaging manner in the presence of or within earshot of the children.

[206] None of the parties shall permit the children to be exposed to adult conflict.

M. Kril, J.

Released: 2022-05-26

COURT FILE NO.: FC-21-00000026-0000

DATE: 2022-05-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Children’s Aid Society of Haldimand and Norfolk

Applicant

• and -

B.S.R., N.A.P., G.E., C.S. and D.S.

Respondents

REASONS FOR JUDGMENT

M. KRIL, J.

Released: 2022-05-26