WARNING

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

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

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

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

COURT FILE NO.: 284/19

DATE: 20220516

SUPERIOR COURT OF JUSTICE

ONTARIO

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

IN THE MATTER OF THE CHILD, YOUTH and FAMILY SERVICES ACT, S.O. 2017

and in the matter of

RE: Valoris for Children & Adults of Prescott-Russell, Applicant

AND:

J.W., C.R., and Muskeg Lake Cree Nation, Respondents

BEFORE: Madam Justice Hélène C. Desormeau

COUNSEL: Emily Gallagher, Counsel for the Applicant

Kimberley A. Pegg, Counsel for the Defendant father J.W.

Cedric Nahum, Counsel for the Defendant mother C.R.

Kerri Crowe, representative for Muskeg Lake Cree Nation

Robert Julien, OCL

HEARD: November 1, 2, 3, 4, 5, 8, 9, 10, 12, 29, December 1, 2, 3, 14, 17, 2021, January 4, 5, 6, 19, 21, 2022, February 28, 2022, March 2, 3, 2022

reasons for judgment

Justice Hélène C. Desormeau

Background

[1] On December 13, 2019, the lives of N and A were irrevocably changed. On that date, the children, N.C.L.W. (“N”) and A.G.W. (“A”), then aged 9 and 5 respectively, were removed from their father’s (“J.W.” or “the father”) care and placed into foster care. At that time, the mother (“C.R.” or “the mother”) was residing in Edmonton, Alberta.

[2] From the Society’s perspective, the removal was based on a series of disclosures from the children regarding allegations of inappropriate sexual touching.

[3] On December 18, 2019, a temporary without prejudice order was made by Justice Pelletier placing the children in the care of the Society in accordance with section 94(2)(d) of the Child, Youth and Family Services Act (“CYFSA”). At the motion, Valoris for Children & Adults of Prescott-Russell (“Valoris” or “the Society”) initially sought an order that the father not be granted any visits with his daughters until the criminal investigation was complete, and thereafter, provided the criminal court did not impose any no-contact conditions regarding the children, the visits would be at the Society’s discretion regarding the supervision, length, and frequency. Ultimately, Justice Pelletier declined to make that order, and instead ordered the father’s and mother’s access to the children was to be at the Society’s discretion.

[4] The Society’s Application dated December 17, 2019, requested the children be placed in Society care for three months. The father was served shortly after the children were taken to a place of safety. The mother was served January 6, 2020. The Society’s Amended Application dated November 26, 2020, was amended to include the band, the Muskeg Lake Cree Nation, as a party, and identified the children as First Nations. The band was served the Amended Application and all pleadings on December 1, 2020. The Society’s second Amended Application dated February 5, 2021, sought an order that the children be placed in extended society care, with no access to either parent.

[5] The mother’s Answer and Plan of Care dated February 25, 2020, sought the placement of the children in her care, or alternatively, to have frequent and liberal access with the children. At trial, the mother maintained her position, seeking the placement of the children in her care, and plead alternatively that she have access with the children a minimum of twice per month.

[6] The father’s Answer and Plan of Care dated January 23, 2020, sought the return of the children to his care under a three-month supervision order. That plan of care was amended October 25, 2021, asking that the children be placed in his and the paternal grandmother’s custody pursuant to section 102 CYFSA, or alternatively, that the children be placed in his and the paternal grandmother’s care pursuant to a supervision order.

[7] During the Society’s evidence, the paternal grandmother (“L.B.”), who participated at trial as a self-represented participant party, chose to not go forward with her plan, and stopped participating. She called no evidence at trial.

[8] At the close of the Society’s case, following the court’s ruling on the children’s hearsay statements, the father signed a Statement of Agreed Facts (“SAF”), resolving his interests in the case, subject to the court’s ultimate ruling on finding and disposition. The SAF was signed January 18, 2022, by Child Protection Worker (“CPW”) Carolynn Seguin of Valoris and on January 21, 2022, by J.W. (Exhibit E). The SAF was amended on consent, on the record, to reflect the proper date when the children were taken to a place of safety: December 13, 2019.

[9] The father consented to a finding being made that the children are in need of protection, subject to this court’s determination, pursuant to s.74(2)(h) CYFSA, that there is a risk that the children are likely to suffer emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviours, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the children’s parent or the person having charge of the children.

[10] In the SAF, the father indicated that he and the Society did not completely agree on the facts. However, the father and the Society agreed to rely on the evidence that the court deemed credibly and trustworthy that was presented during the trial.

[11] As to ultimate disposition, the father and the Society agreed to orders regarding access; in the case of an order for extended care of the children or in the case of a placement with the mother, subject to the mother’s submissions and this court’s determination.

[12] In submissions, the mother consented to a finding being made based on the risk of physical harm, pursuant to s. 74(2)(e) CYFSA given that the father was not providing the proper care for the children’s medical issues.

Issues

[13] The court has been asked to determine the following issues:

a. The children’s statutory findings;

b. A finding regarding whether or not the children are in need of protection; and

c. The applicable disposition.

Ruling on the children’s statements

[14] Throughout the trial, the court heard 45 utterances made by the children proffered for various purposes by Society witnesses, upon which the Society wishes to rely. At the close of the Society’s case, the court heard arguments regarding the necessity, reliability and relevance of the hearsay statements, and the purpose for which they were tendered.

[15] Prior to the parents calling any evidence, the court ruled on which statements were admitted as evidence. The statements admitted into evidence form but one part of the evidence at trial and are subject to the issue of ultimate reliability and the proper weight to accord to each individual statement.

[16] Anything upon which I intend to give any weight is addressed when referencing such statement. Anything not directly referenced in this decision has been given no weight.

Credibility

[17] As in all cases, the credibility and reliability of witnesses are important considerations, particularly where there are different versions of events advanced by the parties.

[18] In assessing credibility, the court is concerned with the witnesses’ truthfulness: R. v. C. (H.), 2009 ONCA 56 at para. 41. Reliability involves consideration of the accuracy of the witnesses’ testimony, considering their ability to accurately observe, recall and recount events in issue: R. v. C. (H.), ibid. A credible witness may provide unreliable evidence, as it is possible that the witness has misperceived events, has a poor memory or could simply be wrong. Ultimately, the court must assess not merely the witnesses’ truthfulness, but also the accuracy of their evidence.

[19] As stated by the Supreme court of Canada in R. v. R.E.M., 2008 SCC 51 at para. 49: “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”

[20] Justice Nicholson, in Christakos v. De Caires, 2016 ONSC 702, citing with approval Novak Estate, Re, referenced the following:

In assessing credibility in the face of conflicting evidence, MacDonald, J. adopted the outline set out in Novak Estate, Re, 2008 NSSC 283, 269 N.S.R. (2d) 84 (N.S. S.C.), at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C. C.A.), it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 (N.S. C.A.) [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. (R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part, or all a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.) at [para.] 93 and R. v. Howe supra). [Emphasis in original.]: Christakos v. De Caires, 2016 ONSC 702 at para. 10.

[21] The Ontario court of Appeal in R. v. Williams stated the following about inconsistencies:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)(1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31: R. v. Williams, 2018 ONCA 138, at para. 33, citing with approval R. v. M. (A.), 2014 ONCA 769, at paras. 12 to 14.

The Society’s witnesses

[22] The Society called 18 witnesses at trial, including some of their workers, several professionals involved in the children’s lives, the band representative, as well as the children’s maternal grandmother, N.A.

[23] The Society’s workers included Carolynn Seguin, Emmanuelle Sabourin, Carole Lafontaine. Generally speaking, their evidence was straightforward, unambiguous, and consistent.

[24] Ms. Sabourin was the mother’s child protection worker from January 2021 onward. I found Ms. Sabourin evidence to be fair and balanced. I found her to be a credible witness and her evidence to be reliable.

[25] Ms. Lafontaine, an interpersonal collaborator through Valoris, worked with the children and was supervising the visits between the children and their parents. She presented as very balanced and forthcoming. I found her to be a credible witness and her evidence to be reliable.

[26] I found Ms. Seguin to be credible in some but not all aspects. She has been the worker on the file since the beginning. She had a great deal of experience with the Ottawa CAS. She was generally forthright in her evidence. However, I found her to be tenacious in wanting to elicit utterances from the children regarding sexual abuse, leading the children to be over-interviewed. Despite the numerous police interviews, despite their decision not to charge the father and the police charging M, Ms. Seguin felt the children’s voices were not being heard. Ms. Seguin was told by police to stop questioning the children and was told that children should only be questioned a certain number of times. In this regard, I found Ms. Seguin was less concerned about her professional mandate than she was about obtaining disclosures from the children to ensure the father faced criminal charges.

[27] Ms. Seguin’s evidence was also marred by her inability to make concessions as to her evidence. For instance, it was clear that the father’s plan to have the children placed with L.B. was assessed and found appropriate by another child protection agency. However, it was not deemed acceptable to Valoris. In direct examination, it seemed that L.B. had not accessed or turned her mind to the services required for the girls. However, in cross-examination, it became clear that L.B. had taken the available steps to support her plan given the children were not in her care. Further, rather than answering if the children were told about the possibility of them being separated should the Society obtain an order for extended society care, she avoided the question and said that it is a Valoris policy that they do not separate children. When asked about her evidence of N being parentified, it was based on N being a bossy older sister and N allegedly making toast for A. In my view, this is not sufficient evidence to establish parentification.

[28] Ms. Seguin’s evidence was also questionable based on her to unequivocal statements. For instance, she testified the mother never signed consents for the society to speak to her service providers. In cross-examination, after being cornered in her answers, she admitted that in fact the mother was not asked by her to sign any consents.

[29] Ultimately, I found parts of Ms. Seguin’s evidence to be unreliable.

[30] E.F, a psychological associate, testified regarding her assessment and report of N. Unfortunately, while E.F. was clearly experienced in her realm of expertise, as set out in greater detail below, she was regrettably naïve in accepting the Society’s instructions and evidence without question, which led to a flawed report. As such, though I found her credible, I am unable to find her conclusions as contained in her report to be reliable.

[31] Dr. J.N., psychologist, testified regarding the psychological assessment and report regarding A, diagnosing her with Disinhibited Society Engagement Disorder. Dr. J.N. was credible and her evidence reliable. I accept her report as filed.

[32] K.I. was A’s kindergarten teacher when she was brought into care. K.I. had a clear recollection of the events, was consistent, and her evidence was balanced. I found her to be credible and her evidence reliable.

[33] M.T., the foster mother’s mother, was primarily for the purpose of introducing an utterance made by N. I found her to be credible, and her evidence to be straightforward, unembellished, and reliable.

[34] Tari McGee was the intake child protection worker from Children and Family Services in Edmonton, Alberta. I found her evidence to be uncomplicated and unchallenged. I accept her evidence.

[35] Kerri Crowe, the band representative for Muskeg Lake Cree Nation, testified in a neutral and thoughtful manner. She provided insight as the band’s perspective. Her evidence was generally unchallenged. I found Ms. Crowe to be credible and her evidence reliable.

[36] M.B., the children’s speech language therapist, testified as a participant expert. She was balanced, fair and neutral. I accept her evidence.

[37] C.M., the children’s trauma counsellor from the Children’s Hospital of Eastern Ontario, testified as a participant expert. She testified as to her involvement with both children and the counselling session she had with the children. Her evidence was straightforward and neutral, and I accept her evidence.

[38] L.P., was an occupational therapist who worked with both children, testified as a participant expert. I found L.P. to be sincere in her evidence, wanting to convey her views as neutrally as possible. I found her credible and her evidence to be reliable.

[39] A.K. was the social worker who assisted the foster family and children regarding attachment and trauma-based parenting support presented as straightforward and neutral. I found her credible and her evidence to be reliable.

[40] M.M. was the principal of the school in Burlington where the girls attended. Her evidence was generally unchallenged, balanced. I found her to be a credible witness and her evidence to be reliable.

[41] W.P. was the vice principal of a local public school where the girls attended when they were brought into care. His evidence was generally unchallenged and straightforward. I found him to be a credible witness and his evidence reliable.

[42] L.T. was the children’s foster mother throughout the time the children have been in care. I found her evidence generally to be credible. However, she occasionally moved from being a witness to an advocate for the children, where I found her evidence to be externally inconsistent to that of other witnesses. A prime example of same is when she admitted to seeking help from two professionals due to the children’s “misrepresentations” to her. She was unable, or unwilling, to admit that the children occasionally lied. She was so focused on ensuring the children were not painted as “liars” that when fair questions were put to her, she became evasive. This affected the reliability to parts, but not all, of her evidence.

[43] Ifeoluwa Kolade was a case worker with Children’s Services in Edmonton. Her evidence was balanced and straightforward. I found her to be a credible witness and her evidence to be reliable.

[44] N.A., the children’s maternal grandmother, was called by the Society after there was a falling out between N.A. and the mother. Her evidence was at times at odds with the mothers’. Despite suggestions to the contrary by the mother, I generally found N.A. to be credible, and parts of her evidence to be reliable, while other parts were unreliable. For instance, when N.A. testified as to the mother’s upbringing, where the mother did not offend the rule of Browne v. Dunn, (1894), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) I preferred the mother’s evidence. However, when she discussed concerns about the mother’s current plan and addiction issues, it was externally consistent with that of other witnesses, heightening its reliability.

The mother’s witnesses

[45] The mother and her partner R.T. testified in support of the mother’s plan.

[46] The mother presented as well-intentioned and hopeful. She has suffered great tragedy in her life and is commended for being a fighter and a survivor. It was clear that hearing the evidence, and testifying, was yet another traumatic event for the mother. This trauma resulted in numerous delays due to the mother’s late or non-attendance at trial, particularly after a recess. For instance, when the mother was in the middle of her re-examination, she disconnected and did not return after the 3:12 recess. Her partner, R.T. attempted to wake her without success. Despite these delays however, the court is very sensitive to the trauma the mother has already suffered, and the delays and failure to return have not been held against her.

[47] The mother’s evidence was at times forthright and other times evasive. There were instances where there were peripheral inconsistencies in the mother’s evidence, such as what services were obtained several years ago and the specific dates for historical events, which could be explained by the assault suffered by the mother coupled with the passage of time. While it was occasionally difficult to follow her storyline, these inconsistencies were not, in my view, determinative.

[48] However, the mother’s evidence was sometimes internally and externally inconsistent with the evidence at trial. For instance, the mother provided numerous different answers regarding when she and R.T. resided together to best fit her narrative. These answers were contradicted by R.T. and N.A. Inconsistencies such as this undermined the reliability of the mother’s evidence.

[49] Ultimately, though the mother appeared to be sincere, I am unable to place any significant weight on the reliability of much of her evidence. Where her evidence was contradicted by Ms. Sabourin or Ms. Lafontaine, I prefer their evidence. Where her evidence was contracted by N.A. as to her current plan and addictions issues, I prefer that of N.A. However, where the mother’s evidence regarding her upbringing contradicted that of N.A., and where it did not offend the rule of Browne v. Dunn, supra, I prefer the mother’s evidence.

[50] R.T. presented as a great support for the mother, willing to assist her however he could. He appeared to be forthcoming on some issues, such as when he and the mother started to reside together.

[51] I found R.T. evasive on other issues, such as providing concrete details about how he was supporting the mother’s plan.

[52] R.T.’s evidence regarding the frequency and quantum of the mother’s alcohol consumption was externally inconsistent with the evidence heard at trial, including that of N.A., who had the opportunity to personally witness same.

[53] While R.T. was somewhat credible, I am left with doubt as to the reliability regarding parts of his evidence.

Chronology of events

[54] The following is a chronology of relevant events that the court accepts as salient and relevant facts to these proceedings. While the evidence is set out in its entirety at the first part of this decision, that was simply for ease of reference and to avoid duplication. In accordance with s. 93(2) CYFSA, evidence relating only to disposition was not considered by this court in determining if the children are in need of protection. As required, in the analysis section of this decision, I first turned my mind to the finding, without consideration of any evidence relating to disposition, recognizing these are two very separate and independent determinations.

[55] The parties had three children together, two daughters and a son. The two daughters, N and A, are the subject of this proceeding.

[56] In September 2018, while residing together in the Ottawa/Gatineau area, a tornado tore off the entire roof and some walls to their apartment. Within approximately three weeks, their three-month-old son, “Au” died, in the presence of the girls. Au’s death was ruled an accident.

[57] The tornado and Au’s death were very traumatic for the entire family. The family moved back to Edmonton in October 2018, shortly after picking up their son’s ashes. Thereafter, in 2019, the family was together in the Toronto area, close to the father’s family. In or around October 2019, the father and children moved back to the Ottawa area. The mother did not return to Ottawa at that time. The father was residing with N.D., who had three of her own children, including M.

[58] Valoris became involved with the father on or about November 13, 2019, due to an allegation of physical discipline, which were not verified by the Society as being true.

[59] Later in November 2019, the Society received another referral which stemmed from an utterance made by A to her teacher K.I. Five-year-old A told K.I., “Daddy touched my peepee and (or) my bum, and I didn’t like it” and then said, “N.D. and daddy touched my peepee and (or) bum and I didn’t like it.” The utterances made by A worried K.I., who testified that A kept repeating the words, touching, grabbing, and looking at K.I.’s face. K.I. admittedly did not keep notes of these utterances but had a distinct and clear recollection of the events. Though she was unable to confirm if A stated “peepee” or “bum” she was certain she said one or the other. K.I. went on to describe that A could not sit still, she kept pointing to her vagina and bum. Valoris attended, and A repeated essentially the same utterances.

[60] The Society met with the father following A’s first disclosure. At first, Ms. Seguin found the father to be very forthcoming discussing his situation. He told the worker of A’s special needs, and that he was struggling with her hygiene. He shared that he had only been in Prescott-Russell for approximately a month, having previously resided in the Toronto area. Ms. Seguin saw a single father who was struggling but who wanted to work with the Society. The first visit was positive. The father told the worker he would bring A to be assessed by a doctor. However, due to a long line-up at the clinic, the father did not attend to have A treated. Despite same, he sent the worker a text message advising he took A to a walk-in clinic, where she apparently had an irritation, and was told to use penaten cream. Ms. Seguin was told that N.D. was helping the father in treating A.

[61] A’s utterances included allegations that the father’s female friend, N.D. and her 14-year-old son, M, had touched her inappropriately. As a result, on or about December 5, 2019, the children and their father went to the police station for the children to give their statements [Exhibit 15]. A did not make any salient disclosures, whereas N, aged 9, disclosed that “M touched my peepee”. At that time, neither child made any disclosures regarding their father. The father was interviewed and denied any inappropriate activity. Following these interviews, the father and children left together to go home. Ms. Seguin was present for A and N’s interviews with police. Prior to that interview, she had spoken to the children three times, though she admitted the children were not very communicative.

[62] On December 11, 2019, the police were called to the father’s home due to domestic conflict. No charges were laid regarding the conflict, but the children were in the home. The police transported the father and the two girls to a motel for the night.

[63] After the first utterances, A was absent from school. Upon her return, she made similar utterances to those above to K.I., this time showing her teacher with her hands, grabbing K.I.’s face. The teacher took the child to the principal’s office, where again the statements were repeated. This caused the teacher and the principal, W.P., to report their concerns to Valoris.

[64] K.I. agreed that she could not ascertain if A was having discomfort or if she was trying to show K.I. where she had been touched. A's statement did not sit well with this experienced teacher, which was why she called Valoris. K.I. agreed that A’s description was consistent with a parent cleaning a child, but the way the child was repeating the statement was unsettling to her, she felt A was trying to tell her something important. K.I. did not follow-up by calling the father or N.D.

[65] On December 13, 2019, Ms. Seguin met with the children following disclosures made to K.I. A told Ms. Seguin “my peepee hurts”, and “daddy touched my peepee”, and “M touched my peepee”. A kept moving, grabbing herself, repeatedly stating “it hurts, it hurts.” On that day, the worker did not inquire if the father had put ointment on A, which was the father’s explanation for any alleged touching – that it was non-sexual.

[66] As a result of the December 13, 2019, utterances, it was determined that the children would be taken to a place of safety. They were brought straight away to the Children’s Hospital of Eastern Ontario (“CHEO”). CHEO could not verify whether anything sexual happened to the girls.

[67] The father was immediately advised that the children were being taken to a place of safety. Ms. Seguin inquired about him signing a temporary care agreement. He declined. He did not provide names of any kin or family that would be able to care for the children and had no contact information for the mother. Despite the children having the appearance of being from First Nations heritage, the father allegedly advised Ms. Seguin that they were not. Ms. Seguin agreed it was possible that the father did not properly understand the question. Nevertheless, the worker chose not to delve any further into those specific and important inquiries at that time as she did not want to be offensive.

[68] The mother was not immediately advised that the children were brought to a place of safety despite the mandated importance of doing so, and in the face of the maternal grandmother, N.A., almost immediately reaching out to the worker. Ms. Seguin’s sole efforts to serve the mother was to ask the father where/ how to find her. The Society took no active steps to reach out to the mother until she herself reached out to Valoris on December 23, 2019. This delay was inacceptable from this court’s perspective.

[69] The children were placed in L.T.’s foster home on December 13, 2019. A was calling Ms. Seguin as “mom”, was clingy, wanting to be held, and was overly comfortable with her. N was quiet, more distant, would answer questions with head movements.

[70] On December 17, 2019, both children are brought to the police station where they are interviewed, but no disclosures are made regarding the father.

[71] Following the police interview with the children, Ms. Seguin interviewed A, who indicated “all the peoples touch my peepee”. Upon further questioning, A stated “daddy touched my peepee”, and “I took a shower and daddy touched my peepee.” Ms. Seguin admitted that she and the police had difficulty comprehending the girls.

[72] The evidence from most of the witnesses who spoke of, or to, A, including Ms. Seguin, and K.I., was that A was very hard to understand. Ms. Seguin testified that A had difficulty with numbers and time. A also had difficulty remembering faces and/or people. Her evidence was that at the beginning, following A being taken to a place of safety, she relied on the foster mother to interpret what A was saying.

[73] Ms. Seguin suggested that at the time of the children’s disclosures, she was attuned to the different possible explanations, including the father toileting the children. She confirmed that in total, there have been approximately six complaints or referrals to the OPP based on the children’s disclosures.

[74] On December 18, 2019, a temporary without prejudice order was made by Justice Pelletier placing the children in the care of the Society in accordance with section 94(2)(d) of the Child, Youth and Family Services Act (“CYFSA”). Justice Pelletier ordered the father’s and mother’s access to the children was to be at the Society’s discretion.

[75] Ms. Seguin received a call from the mother on or about December 23, 2019. During that call, the mother advised the worker that she was Indigenous, and practiced the traditions, culture and beliefs of the Muskeg Lake Cree Nation, though not registered with the band.

[76] Meanwhile, Ms. Crowe, a Family Service Support Worker at Muskeg Lake Cree Nation, received a call from N.A., and was in communications with both N.A. and the mother in December 2019.

[77] From December 13, 2019, until June 2020, the Society did not permit the father any contact with the children. Ms. Seguin’s evidence was that this was due primarily to the criminal investigation into the father from the children’s disclosures. Ms. Seguin admitted in cross-examination that the girls wanted to see their father during this time, and he wanted to see them. It was unclear what, if anything, was said to the girls about not being able to see their father.

[78] Despite the Society strongly believing that something nefarious occurred between the father and the children, he was never criminally charged. The court is of the view that the Society should have been more proactive in allowing the father supervised visits prior to June 2020, particularly given that their request at the first motion to prohibit contact was denied by Justice Pelletier.

[79] On a few occasions, such as on or about June 25, 2021, the children made utterances to Ms. Seguin that the father used a finger or fingers when he touched them. The children also disclosed that N.D. put her finger in their vaginas. When it was suggested to Ms. Seguin that these actions were consistent with cleaning the girls after toileting and/or putting salve on them, Ms. Seguin felt that based on numerous disclosures, the girls needed to be protected. Thus, the investigation continued. She admitted in cross-examination that apart from naming different locations, the children’s disclosures were never more specific than “daddy [or N.D., or M.] touched my peepee [and/or bum]”. Ms. Seguin acknowledged that the CHEO reports could not establish that any actions of a sexual nature happened to either child.

[80] A Temporary Care and Custody Hearing was held on June 19, 2020, whereby Justice Charbonneau confirmed the children’s placement on a temporary basis. Justice Charbonneau also ordered that the father was to have weekly supervised access with the children.

[81] On December 18, 2020, the father brought a motion to change the children’s placement, asking that they be placed in the interim care of the paternal grandmother, L.B., in Burlington, Ontario. The mother requested the children be placed with her cousin, N in Edmonton, Alta. The Muskeg Lake Cree Nation supported the mother’s motion. The motion was opposed by Valoris and the OCL, who at the time only advocated on behalf of N. Both motions were dismissed by Justice Doyle. The children remained in foster care and continue to reside in the same foster home.

The girls’ special needs

[82] N was described by Ms. Seguin as being parentified and bossy toward A when she first came into care. She was closed off, not wishing to interact with Ms. Seguin or other adults, avoided speaking of her feelings, likes or dislikes. She was very difficult to understand due to her speech impediments. Ms. Seguin described N as being defiant. For instance, if N was told to sit somewhere, she would outright refuse.

[83] A was described by Ms. Seguin as very active, tiny, and fragile. She was extremely friendly, curious, and busy. Ms. Seguin had a hard time understanding what A had to say due to A’s speech delays. A was frequently asked to repeat her statements to be understood.

[84] At the outset, the father had made mention to the worker that it was possible that N had autism spectrum disorder.

[85] As a result of the children’s speech and behavioural issues, Valoris determined they would have the girls assessed to specifically ascertain their special needs and how best to help them.

[86] As a result of the assessments and evidence outlined below, I find both girls have special needs. In order to assist the girls, they received the following services:

a. N was receiving speech therapy, occupational therapy, trauma therapy, and attachment therapy, and has a special education teacher.

b. A was receiving speech therapy, occupational therapy, attachment therapy, trauma therapy, and Parent-Child Interaction Therapy (PCIT).

[87] Ms. Lafontaine from Valoris was involved in putting in place the recommendations from the speech therapist for both girls, as well as working with the girls on their social skills.

[88] The evidence suggested that since the children have been in care and regularly accessing the above services, they have made a lot of progress, particularly regarding their educational. N’s vocabulary has improved, as her understanding of language. A is now better to express herself and recognize some of her feelings.

[89] Since the start of Covid in March 2020, the children were home-schooled. As of September 2021, they have been attending school on a regular basis.

E.F., Psychological Associate

[90] E.F., Psychological Associate, conducted a psychological assessment report for N, written in the summer of 2020, and completed August 18, 2020. All parties consented to E.F. being an expert witness regarding the psychological assessment conducted on N. The assessment was requested to address concerns regarding N’s language delays, behavioural issues, emotional lability, poor academic performance, and a tendency to keep to herself.

[91] E.F. confirmed that N had previously been assessed by a multidisciplinary team at Alberta Health Services at age 5, where a diagnosis of autism spectrum disorder (ASD) was formulated. This diagnosis appeared to be accepted by both parents.

[92] E.F. obtained her information regarding N from her legal guardian, Valoris, despite the child being in the care of her parents for all her life except for six months prior to the assessment. E.F. did not question what Valoris had told her, that the girls had been removed from the care of their father with urgency and wanted to “trust the legal system did their job”. She was told that though the placement was supposed to be short term. However, due to the influx of information following the children’s removal, E.F. was advised “the court determined the girls would stay in the foster home/ placement.”

[93] E.F. made personal observations and relevant inquiries not limited only to Valoris workers, such as inquiries from teachers and information from AHS to substantiate her report.

[94] E.F.’s evidence was she had completed over 100 psychological assessments.

[95] While I have no doubt of the assessor’s good intentions, this was the first assessment done by her for Valoris. She placed blind faith in what Valoris told her about the court file, without turning her mind the other side of the equation – the parents’ side. E.F. relied on faulty information, such as where she indicated at page 2 of the report that “Valoris found out just very recently that the mother was in Ottawa and abruptly left without making contact arrangements.” In fact, the evidence as I find it shows the mother was in Ottawa for six months and saw the girls approximately four times. Importantly, the mother was in Ottawa during the time the report was being written. The father also exercised an in-person visit with N on June 25, 2020.

[96] E.F. was given no information about the parent’s involvement in the court matter and maintained that she only obtained information from the children’s legal guardian. She was of the view there was no requirement of her to contact the parents. She agreed that some of the evidence upon which she relied was hearsay. However, she defended that the history upon which she relied was taken from several sources, including Alberta Health Services (AHS).

[97] E.F. was well-versed on how to intervene with a child with ASD as this was one of her specialties. E.F. ruled out N’s diagnosis of ASD as N did not exhibit typical ASD behaviours, such as restrictive interests, repetitive behaviours, issues with change, difficulty engaging with other children and animals in the foster home and N was not hyper-sensitive. N was observed to have a flat affect and limited eye contact unless spoken to. Having ruled out ASD, E.F. concluded that N had reactive attachment disorder.

[98] E.F.’s evidence was that if N was treated for ASD from 2015 to 2019, it could be detrimental to her development if she did not have ASD. E.F. was advised by Valoris that the necessary information from 2015 to 2019 was not available. However, as mentioned above, it was available, through the parents.

[99] E.F. wanted to trust what Valoris, the child’s legal guardian, had told her, as otherwise the testing “would not be valid at all”.

[100] E.F. admittedly did not have any expertise regarding Indigenous children. Though she was able to assess the impact of N frequently relocating, E.F. was unable to assess the impact of N’s displacement in the context of her Indigenous heritage. She was unable to comment whether a removal from the child’s cultural community would impact N. She was unable to ascertain if the way N interacted may have been impacted by her cultural background. E.F. was not asked by Valoris to consider any culturally significant issues regarding N, only her learning needs, delays, and emotional presentation. E.F. acknowledged that her assessment was limited by her lack of understanding of the cultural issues.

[101] The fact that the assessor was not asked to consider the child’s culture in the context of a psychological assessment undermines the weight this court can afford such a report. E.F. admittedly indicated that she has previously ruled out assessing some children as she did not have the cultural expertise to evaluate them. Had Valoris used their due diligence in ensuring the assessor had all the relevant information, including the child’s cultural background, the contact information for the parents and/or their counsel, as well as relevant pleadings from all parties, this assessment would have held greater weight.

[102] Ultimately, I am of the view that the foundation of E.F.’s report has serious flaws, and as such, I can give her report little to no weight. This determination does not take away from E.F.’s qualifications as a Psychological Associate and her expertise in her field. It also does not take away from E.F.’s personal observations. However, given the issues outlined above, in these circumstances, I cannot find the conclusions of this report to be valid.

[103] Despite that, as I will address below, there is no question that N has special needs, regardless if she has ASD or reactive attachment disorder.

Dr. J.N., Clinical Psychologist

[104] Dr. J.N. is a Clinical Psychologist who has been preparing psychological evaluations since 2012, having completed approximately 200 such evaluations. She was introduced as an expert on consent of all parties, having prepared a report regarding A, finalized in June 2021. The assessment was due to concerns related to A’s cognitive abilities, learning skills, and social-emotional functioning.

[105] Dr. J.N.’s evidence was that the report was limited to the information provided to her and which she collected at the time. Should there be new information, she would need to re-evaluate her conclusions.

[106] Like E.F.’s information, Dr. J.N. was not aware that A was Indigenous or that she was separated from her Indigenous family and community. She had no specific training for working with Indigenous children. She testified that had she been advised the child was Indigenous, she may have consulted with colleagues who were trained to work with Indigenous children prior to seeing A.

[107] Dr. J.N. however was trying to assess and support A in the situation and/or environment in which she found herself at the time: residing in the foster home. As such, her knowledge regarding A’s family history and developmental history was not salient to this assessment.

[108] Dr. J.N. described A as being bright, friendly, very talkative, and an energetic six-year-old girl. A had speech language issues and difficulty communicating. A was found to exhibit persistent difficulty in language, that which is substantially below a child of her age and interfered with her day-to-day functioning. Socially, A presented as uninhibited and overly friendly with almost everyone she met. For instance, though A was with Dr. J.N. for only two testing sessions, on a few occasions she told Dr. J.N. that she loved her.

[109] Dr. J.N. found that A’s functioning was significantly below the average range in most areas requiring verbal or language processing, including verbal reasoning and comprehension, vocabular, phonological processing and verbal working memory. Dr. J.N. found that A’s overall presentation was consistent with a diagnosis of Language Disorder. She reasoned that “[c]hildren with weaker verbal abilities often have difficulty communicating their thoughts, needs, and wants, explaining their ideas, organizing their thoughts and ideas, understanding instructions and conversations, interpreting incoming information in social settings, and paying attention to verbal information. Reduced language skills may contribute to some of [A]’s social difficulties … and emotional regulation challenges…”

[110] I accept Dr. J.N.’s diagnosis of A to have Disinhibited Social Engagement Disorder (DSED). In her report, she stated “[t]his diagnosis is used to designate an overall pattern of inappropriate, overly familiar social behavior with relative strangers that is believed to be related to a pattern of insufficient care at a young age…. While a diagnosis of Post-Traumatic Stress Disorder (PTSD) is not being made at the time of this assessment, PTSD can present and be diagnosed long after exposure to a traumatic experience.”

[111] At trial Dr. J.N.’s evidence was that a series of traumatic events, despite the caregivers, could cause DSED if those events were sufficiently significant. She testified that sometimes the conditions that lead to the development of DSED, such as an inconsistent caregiver, can also lead to symptoms of PTSD. An issue that takes away a parent’s ability to meet a child’s needs may be a traumatic event for a child.

[112] Dr. J.N.’s report concluded with a list of recommendations and strategies to be implemented at home and at school to best support A, such as continued work with a speech-language pathologist; working with a clinician who specializes in attachment; and creating predictable routines.

[113] I accept Dr. J.N.’s expert report and the findings contained therein.

Carole Lafontaine

[114] Ms. Lafontaine met with the girls to work with implementing the services due to their special needs. She met with A to assist with the speech pathologist recommendations, but her file has since been closed as A is doing very well with same. A continues to have some speech delays, but if she is given sufficient time, she expresses herself well to ensure she is understood.

[115] Ms. Lafontaine was still working with N to assist addressing her pre-teen body changes. N has made great progress with her speech delays.

[116] Ms. Lafontaine described N as initially being very shy, cautious with people she did not know such that she did not approach them. More recently, N presented as a happy child who smiles and has a glow in her eyes. She has friends, and N enjoys the animals at the foster home and being outdoors surrounded by animals. She has matured since their first meeting, has a good routine, is learning and socializing.

[117] While A was described as shy, she is very bubbly, very sociable, and has no boundaries. They were working on establishing boundaries and how to approach strangers, as well as eye contact. A continues to be outgoing, always happy and smiling, playing, jumping, ultimately a very content child.

M.B.

[118] M.B., was the children’s speech language therapist. On consent of all parties, she testified as a participant expert. She worked with the children from January 2020 until approximately August 2021, for a total of 5 in-person meetings and 60 virtual meetings. Generally, subject to other commitments, M.B. saw the children weekly. Her work commenced with a speech and language assessment.

[119] M.B. described N’s speech language skills very weak for her age (aged 9 at the beginning). It was difficult for N to participate in conversations, she did not understand direction, she was unable to complete sentences, she used her pronouns differently and her speech was difficult to understand. M.B. described that N did not use verb tenses properly, such as past or future, and if she did not understand a question she would not respond properly.

[120] In testing, N was close to the first percentile, whereas to fall in the average range she would have to be in the 25th percentile. Since M.B.’s involvement, N has greatly improved her speech and language skills. Though she still experiences some delays for her age, she is more able to participate in conversations. Regardless of any delays however, M.B. described N as lovely to work with, and toward the end of her involvement N showed more feeling and affect, seemed proud and happy about her accomplishments. By March 2021, N tested in the 5th to 10th percentile. While still weak for her age, she has nevertheless improved.

[121] M.B. recommended N continue with speech and language skills.

[122] M.B. saw A approximately 5 times in-person, and 60 times virtually, for 30-minute virtual sessions rather than 60 minutes given A’s reduced attention span. A was five years old when she first met M.B. The biggest issue was understanding A’s speech. A used very short sentences, with imprecise vocabulary. She did not know the name of many objects and her comprehension was quite weak. She was often not able to answer a question or give an appropriate answer. For instance, she was not able to identify a car or train, instead using the word “go”. Despite this, A scored around the 10th percentile.

[123] M.B. described A’s improvement, which included being much easier to understand. As of March 2021, A’s verbal skills were within the average limits, which demonstrated great progress. Her vocabulary skills are still weak for her age, and she would greatly benefit from continued speech language therapy. M.B. described A from the first meeting to the last, as eager to participate in any activities and a very happy little girl.

[124] While M.B. admitted that without the background information about the girls, she could not identify why they had speech language delays. However, by meeting with them and performing functional assessments, she was nevertheless able to help improve their skills. She noted however despite N’s earlier diagnosis of ASD, the approaches she used for N were not those typically used for people with ASD. N did not have rigid expectations or require advance warning or rewards. N was willing to participate and to change the order of an activity without any fuss. She stated it was nice to have the background information, but did not believe it changed how she interacted with N. Additionally, M.B. received some information from the mother and N.A. in the summer of 2021, however, that did not impact the children’s treatment plan.

[125] M.B. agreed that being surrounded by other children, going to school, and growing older influenced the girl’s speech language skills, remarking that all children will improve their speech and language skills whether or not they receive therapy as they grow older. She also agreed it was possible that A could have emulated N’s speech if they spent a lot of time together, copying her patterns.

[126] It was explained that both girls used incorrect pronouns such as using him or her instead of he or she, but if they knew the person, they were able to use their name.

[127] M.B. believed that N had previously obtained speech therapy prior to using her services. She indicated that all research shows that the earlier the intervention starts, the better the outcome for the child, as language skills impact on other parts of their lives.

C.M.

[128] C.M. was a trauma counsellor from the Children’s Hospital of Eastern Ontario, who with consent of all parties testified as a participant expert. She was the children’s social worker from December 2020 until March 2021. She provided seven sessions with N, and 6 sessions with A for trauma counselling for sexual abuse. The counselling focused on what was said in session, as opposed to what was contained in the CHEO notes. C.M. followed the lead of the children, and did not direct the conversation, providing them an outlet to discuss their feelings.

[129] Counselling ended when C.M. left for sick leave and did not return to CHEO.

[130] C.M. described N as being quiet, cautious, and well mannered. C.M. recalled being told by the foster mother that N had been regressing. She explored with N why she did not wish to speak to either of her parents by telephone. On or about December 18, 2020, N made an utterance to C.M. that her father and N.D. spanked her bum and touched her vagina. The comments were repeated by N in approximately five of the seven sessions with C.M. N did not make allegations about anyone else when speaking with C.M. C.M. testified that N had made progress during their sessions together, becoming more open and talkative with her.

[131] C.M. described A as well-mannered and well-behaved, but shy throughout the first session. The foster mother had expressed concerns to C.M. about A regressing in her behaviours and smearing feces on her face. When C.M. explored why A was behaving in such a manner, she talked a lot about missing her mother and father and being sad because she missed them, that seeing her parents made her happy.

[132] C.M. remarked that A became more comfortable and talkative as the sessions went on, and felt that if the sessions had continued A would have made more progress.

L.P.

[133] L.P. was the children’s occupational therapist. She testified as a participant expert with consent of all parties. She started seeing N in January 2020 and had since been working with her. They were on their 26th session together. She started working with A in February 2021, for approximately nine sessions to date.

[134] L.P. worked with N first as she showed more challenges regarding functioning for daily activity, such as self-care abilities and self-regulation. With A, L.P. worked on self-regulation and self-awareness.

[135] In 2020, L.P.’s main concern was N’s hygiene issues, working on N being able to shower and wash independently. L.P. described N was unable to demonstrate what steps were required to shower, how to wash your hair, etc. As for self-regulation, N liked to please people, but it was reported by the foster mother that occasionally N would throw things at the other kids when she felt frustrated. Together they found strategies to work through the frustrations, though these behaviours were never observed by L.P., who never saw N misbehaving or acting impulsively at the sessions.

[136] L.P. testified that N’s language skills were very limited when they first met, but in the past two years she has seen tremendous changes. Initially, N was unable to name many emotions except for sad, happy, and mad. N’s demeanor has changed, and she is also more secure in her body language.

[137] L.P. observed that N was willing to put up with anything because she wanted approval and wanted people to like her. They worked on N being able to ask for things she needed and ask for clarification. N has progressed with her own self-care, showering on her own without prompting, following routines such as washing hands and bathroom routines.

[138] N was very private and did not share anything personal with L.P. However, L.P. noted that N would not want L.P. to be unhappy with her, so she would not necessarily reveal the truth regarding some routine childhood issues.

[139] Cross-examination revealed that the foster mother wished L.P. to work with N on her issue with telling lies. The foster mother reported to L.P. that N lied to avoid getting into trouble, and N would lie to anyone to say what she thinks that person wants to hear or to please the adults. L.P. had also experienced this behaviour with N.

[140] L.P. confirmed that N experienced significant language difficulties when they first met. L.P. worked on trying to use different words and reformulate questions to see ascertain form where the lies stemmed. She tried to determine if what N was saying was based on her not understanding the question put to her. Ultimately, L.P. agreed that N was lying, but was not able to determine the root or reason for her lies.

[141] When L.P. met A in January 2020, she was a happy-go-lucky type of child who would do anything asked of her. She did not have the same fine and gross motor skills issues as N.

[142] In March 2020, L.P. arrived at the foster home to find A sad, needing nurturing from the foster mother, following a virtual visit with her mother.

[143] As time went by, the foster mother reported to L.P. that A was not able to play on her own, was always following someone around, and she was very impulsive. A had difficulty with her own cognitive awareness, described as being unable to answer questions such as “what I am, what I like”. Together they worked on identifying what A liked to do, her favourite colour or activity, and worked on A initiating activities. L.P.’s evidence was that in the last two weeks, A was starting to develop a true sense of self.

A.K.

[144] A.K. was a pediatric mental health social worker who testified as a participant expert with the consent of all parties. A.K. provided trauma and attachment therapy to N and A, mainly through the foster mother, with occasional interactions with the children. She became involved with the children in September 2020, following the transfer of the file from another worker. She was involved with Parent-Child Interaction Therapy (PCIT) and Dyadic Developmental Ppsychotherapy (DDP). Prior to her interventions, A.K. performed a psychosocial assessment for both children to assess them and their environment.

[145] A.K. first met N on July 2, 2020, meeting her twice, and A on August 14, 2020, working with her approximately eight to ten times. A.K. described when she first met N, she observed N had social and emotional needs, a poor sense of self, and difficulties with herself and siblings. She had an insatiable need for food and thus was overeating. She shied away from social interactions. Through the foster mother, they worked on N’s ability to share and praising social skills.

[146] A.K. testified she would typically see the foster mother every two weeks. The PCIT is direction related to trauma, for children who have been going through trauma and struggling in their current environment. The PCIT interventions were for A, which were conducted by weekly session. The PCIT was described as direct coaching intervention between parents (or here, foster parents) and children. The goal was to promote positive behaviour, attachment, and a positive sense of self. The first part was teaching the caregiver the play therapy skills. Here, the foster mother had a listening device in her ear with A.K. directing her. The second phase was parent intervention, where the focus was on providing structure, follow through, and safety development. For this, the caregiver used the skills learned in the first part, with limit setting and follow through. The interventions assist children to feel secure in relationships and to feel seen. A showed progress in the interventions, on learning how to play, communicating, deciding what she wanted, and taking the lead. These were positive interventions.

[147] A.K. described that at one point the foster mother expressed concern with the impact of the visits on A, prompting A.K. to meet with A as she wanted to hear for herself what A was going through. On the March 1st, 2021 meeting, A expressed feeling sad.

[148] A.K. spoke of having one session with the mother, C.R. on March 30, 2021. The session was to explain the nature of the attachment disorders and how to assist the mother and kin to have more attachment during virtual visits with A. A.K. explained how attachment worked, and the impact of early childhood difficulties when there are attachment issues. That meeting ended abruptly as the mother hung up the telephone. The mother was not receptive to the information provided by A.K.

[149] In cross-examination, A.K. agreed she had not spoken to the father and indicated that the goal was to help A and N adapt to their current environment, which was in foster care. When she met with the mother, it was to improve visits between her and A. As A.K. clarified, her role was not to provide an assessment of what had or had not happened, but really to look at how the children were functioning and the children’s perception of what had happened. Admittedly, most of the information came from the foster mother, such as prior trauma and the number of schools the girls attended. However, A.K. testified that she took all statements with a grain of salt, knowing there could be perceptual differences.

[150] A.K. also testified that the foster mother asked for help dealing with A telling lies, which reportedly had been a problem early on during her intervention. A.K. was alerted to the issue in August 2020, and on June 16, 2021, lying continued to be a problem with A. A.K. collaborated with the foster mother to help the child feel safe to tell the truth. She testified that lying is something that frequently persists for years, particularly in children who have experienced early difficulties, such as living through a tornado.

[151] While A.K. had no training for working with Indigenous children, she testified that as a social worker she received training to understand systemic oppression in general, which she considers when working with families within marginalized communities. A.K. acknowledged that the children and the mother are Indigenous and recognized that it could be difficult on the mother to talk about trauma when she herself had suffered through trauma.

M.M.

[152] On the topic of the children’s schooling, the court heard from M.M., the principal from the school the girls attended from April 2019 to October 2019. That school was in the Burlington area, and both parents were present to register the girls. At that time, the parents shared that N had a diagnosis of ASD, and A had experienced difficulties with speech and language while attending school in Ottawa. The parents shared with M.M. their story about the tornado following which they had moved out west.

[153] M.M. personally observed A to have significant speech problems, and described A as being a flight risk given as she would run toward something if she saw it. Due to her autism diagnosis, N needed visual supports to help her learn. N did not speak very much.

[154] As a result of their special needs, A, who was in kindergarten, had educational support, mostly to keep eyes on her. In September 2019, the school was moving toward a school-based speech and language referral for A. The school attempted on several occasions to contact the family to arrange a meeting to organise speech language therapy. However, when the school finally got a hold of the father, they were advised the family was moving to Ottawa. As such, the referral was halted.

[155] As for N, the school developed an IEP for her, which provided modifications and/or accommodations to the usual curriculum. The school had an occupational therapist to address N’s needs and provide sensory support.

[156] Additionally, the school provided the children with specialized transportation to and from their home. M.M. explained that the reason for same was due to past issues with the girls not being retrieved from school on time, which caused the girls significant stress and anxiety. These supports were created knowing that the grandmother was home if the parents were unavailable.

[157] M.M. indicated that communication with the parents was challenging, particularly during the daytime. The school often resorted to calling the paternal grandmother, with whom the family was residing, and she was thereafter successful in reaching the parents.

[158] M.M. noted that A was absent 11 days, and N absent 13 days from school during their time there. However, in M.M.’s view, absences only became a concern when there were 15 absences in a three month period, which was not the case.

W.P.

[159] W.P. was the vice principal at the children’s school in Prescott-Russell. He started at the children’s school shortly after they were enrolled by the father. As such, he had not reviewed the children’s registration forms. He knew both N and A through his work as a teacher and/or visiting the classrooms as the vice principal. He was aware the girls had special needs, N’s having been immediately brought to his attention as she was almost non-verbal, and A’s needs later coming to his attention.

[160] The children’s Ontario School Records (OSR) arrived following his start date. He recalled they contained prior report cards and assessments. As he explained, typically the OSR’s contain only Ontario documents, but N’s OSR included a prior assessment completed outside of Ontario, identifying her special needs. W.P. did not recall if the registration form denoted the girls having special needs. In fairness though, the form was not before him during his evidence, and his last review of same would have been two years prior.

[161] Given the children’s special needs, a formal Identification, Placement and Review Committee (IRPC) meeting was convened to properly identifying same. An IEP was completed to address the needs of the children. W.P. did not recall the father participating in the meeting. However, he recalled that the mother was not involved in the children’s lives at that time and he did not have her contact information.

[162] W.P. recollected frequently meeting A. Though she was difficult to understand, he believed she understood what he would tell her. A’s manner of annunciating words impaired his ability to understand her. Both N and A’s teachers approached him with concerns regarding their delays.

[163] W.P. recalled K.I. shared with him utterances made by A in the classroom. However, he did not have a clear recollection of the utterances. He remembered calling Valoris with K.I. He was also aware of the children’s change of residence after the 2019 Christmas holidays and the children being placed in a foster home.

[164] In reviewing N’s daily attendance record from October 22, 2019, to January 24, 2020, N was absent for 14 full or part days, and late five times. N was absent from November 27 to December 11, 2019. These frequent absences did not reoccur following the children’s change of residence. However, in-school attendance stopped in March 2020 until the end of the school year due to the Covid pandemic. In-school attendance was available from September 2020 to June 2021, as well as synchronous, a-synchronous, and package pick-up.

[165] W.P. recalled following their placement in foster care, the foster mother was very involved, including attending the school to review previously completed assessments.

L.T.

[166] L.T. was the children’s foster mother from the time they were taken to a place of safety on December 13, 2019, to present. The foster family is not presenting a permanent plan for the care of the children.

[167] When N and A arrived on their doorstep, they were 9 and 5 years old, respectively.

[168] L.T. described that her relationship with N has grown over the past two years. N was initially very reluctant to let L.T. in, whereas N now feels comfortable with L.T., seeks out affection from her, and they frequently talk.

[169] A meanwhile attached very quickly to L.T., regularly seeking her out as a source of comfort or an authority figure to give A the answers and/or the emotional support she seeks.

[170] L.T. described that while N was able to communicate, both N and A’s speech was very difficult to understand. A was extremely difficult to comprehend, so much so that she was described at non-verbal prior to arriving at the foster home. A would start staying a word where some syllables were recognizable, but the word itself undecipherable. Both children had speech delays, but they shared their own language. While L.T. testified as to having to translate what A was saying for months for the benefit of the family. It also that took months for L.T. and her husband to understand A. A is now understandable 50 to 70 percent of the time.

[171] L.T. described the girls being very confused about sitting at the dinner table and eating meals together. They allegedly told her that in the past they did not sit at a table to eat supper together. The children were resistant to eating vegetables, apparently unsure what was a cucumber or broccoli. A was drawn to the starchy white foods such as potatoes, rice, and pasta, but not as drawn to such foods as carrots. In cross-examination however, L.T. admitted she knew the girls liked to eat raw carrots. Seemingly, neither girl chewed their food completely, with N inhaling anything she was served.

[172] It was difficult for each child to follow routines and independently get ready, be it before school or bed, washing their hands before meals, etc. L.T. lamented about teaching the girls how to properly wash their hands and how to brush their teeth. N thrived on routines, whereas A needed to be watched to ensure compliance, otherwise she would lie about properly following the routine. In cross-examination, L.T. acknowledged she did not know how competent N regarding her own self-care was prior to residing in her home. She agreed that the girls preferred to bathe than to stand in the shower. Neither child was used to showering.

[173] N was unable to shower independently. Based on N’s age, L.T. had the expectation that N be able to shower independently. L.T. indicated it took almost two years for N to gain those skills, and only after receiving help form the occupational therapist. A is still unable to shower independently.

[174] Initially, N was withdrawn from the other children, did not share, was not at the same academic level as her peers. L.T. described N has grown tremendously, able to smile for pictures, being happy and having friends at school, has learned to share, and she is reading. Work continues regarding N’s self-advocacy skills as she will not ask for or admit needing help. N is eager to please, eager to listen, and now thrives on routine. N’s intellectual deficits are significant, but they are striving to get her to grade level. She has a special education teacher, speech therapy, occupational therapy, trauma therapy, and attachment therapy. Some services are on hold now, such as tutoring, for various reasons. N has several services which occur weekly.

[175] N’s interests include a love for animals, arts and crafts, video games and Lego. N’s relationship with A is often strained and there is very little affection shown toward one another.

[176] A was described by L.T. as a ball of energy, extremely friendly from the first moment, and overly affectionate with everyone. She immediately referred to L.T. as “mom” (while calling her biological mother C.R. by “mummy”). L.T. actively but unsuccessfully tried to stop A referring to her as mom. A thrived-on attention from grown-ups, actively seeking them out. A did not appear to understand different emotions, which is being addressed through occupational therapy. In the summer of 2020, A became more resistant to instructions and unwilling to take accountability and responsibility for what was in her circle of influence, such as her words, thoughts, and actions.

[177] A has developed into a more complex girl who is full of emotions. She loves feeling special, loves attention and is playful. She however does not yet know who she is, what her likes and dislikes are, and it is very difficult for her to assert herself. The foster family is working on A to show empathy toward others. A’s desire to have friends, to be social and have peers was described as secondary to her own feelings.

[178] Like N, A’s weekly services include speech therapy, occupational therapy, attachment therapy and trauma therapy, with some of the services currently on hold for various reasons. She is also receiving PCIT therapy. A also suffers from some bowel issues.

[179] When asked to describe her interests, L.T. indicated that A struggles with her sense of self-identity. However, she loves dancing and swimming. A sees herself as an extension of N, with N’s needs paramount to her own. However, the feeling is not reciprocal. N acts like a big sister toward A, in what L.T. described as in an authoritarian manner.

[180] In cross-examination, L.T. confirmed seeing a doctor’s report in N’s OSR that she was on the autism spectrum. L.T. believed the October 2015 report had insufficient information to make the diagnosis, and some necessary data did not make its way into the OSR. Though the court does not accept the report and/or diagnosis by E.F., L.T. testified as to N’s most recent diagnosis as being reactive attachment disorder.

[181] L.T. described that A looked forward to the visits with both her parents, particularly the in-person visits with the parents during the summer. However, she presented as “disorganized” following visits: seeking out comfort, needing affirmation and attention. She described A being more disorganized when access was inconsistent. L.T. indicated that though visits are stressful to A, she wants the visits to continue. Meanwhile, N has consistently, and without emotion, refused visits with her parents.

[182] The children rarely spoke to L.T. of their parents apart from the occasional memory or factual observation (i.e. my mother has brown hair and I have brown hair). They did however speak of the brother they lost, and their older sister. They have occasionally spoken of their paternal grandmother, L.B. and spoke of previously residing with her. They did not ask to see or speak to their parents, nor did they express missing their parents to her. Conversely, L.T. admitted that Valoris was aware of the children’s desire to speak to their parents.

[183] L.T. was asked about the evidence of L.P. and A.K., who both testified that she went to them for help with the children lying. L.T. responded that she would not characterize the children’s behavior as lying, that the children simply misrepresent themselves, then they always recanted when what they said was not true. She did not dispute speaking to L.P. several times for assistance in helping N regarding not telling the truth. She explained the lies by N were about washing her hair, brushing her teeth, or hiding documents from the school to avoid getting into trouble. She believed N lies when she feels she did something wrong.

[184] It was suggested to L.T. that N also lies when she wants to make an adult happy. L.T. corrected that it was not to make an adult happy, that was a misrepresentation, the issue was that N tries to give the adult the answer she thinks the adult wants to hear, which has a lot to do with not understanding the question.

[185] Regarding A lying, L.T. indicated it stemmed from A’s language delays. A does not understand the questions, and they must be repositioned. When discussing this issue with A.K., it was decided that there needed to be emphasis on A not getting into trouble for lying but needed to be responsible for her words and actions. A needed to stop trying to make people happy if the answers were untrue. Such examples included A saying she brushed her teeth but failed to use toothpaste. L.T. went on to state that A’s instinct was toward falsehoods.

[186] L.T. agreed that her explanation for the underlying root of the lying was her hypothesizing based on what she had observed. She agreed that she did not actually know why the children were giving misinformation. Despite the need to consult two different experts, L.T. maintained that the lies were all about minor issues. She denied the children ever lied about serious issues, indicating she knows them to have very distinct behaviors when they lie. She then clarified that the children have not lied, they have simply misrepresented their actions. It was suggested that L.T. would have no idea if what the children said about when they used to live with their parents was true or not. L.T. indicated that truth or lies were irrelevant, as the children have not given her any reason not to trust them. She felt all the misrepresentations were focused on her (L.T.), which is why she sought help.

[187] L.T. did not deny that she was told not to talk to the children about private parts, family members and being touched. She did not deny telling the children that their father needed help. It did not occur to her that the children would make bald statements to get her attention.

[188] I found L.T.’s evidence about the reason the children were lying to be unreliable. She was evasive in her answers, and in my view, was trying to explain away the issues rather than being forthcoming with the court.

The maternal grandmother, N.A.

[189] The court heard evidence from N.A., who wished to present a plan to care for the girls. That plan was sometimes supported by the mother, and other times not.

[190] During the first half of the trial and until Christmas, N.A. was part of the mother’s plan. However, over the course of the Christmas holidays, there was a breakdown in their relationship. N.A. was called as a witness by the Society. During this time, there was clear animus between N.A. and the mother, principally exhibited by the mother.

[191] As an aside, it was difficult for the mother to hear N.A. testifying. As such, despite being in closed proceedings (virtually), the mother was permitted to have a support person in the room with her. On the second day of N.A.’s evidence, the mother chose not to participate. This was permitted given she was represented by counsel. By the time the mother testified on her own behalf, she and N.A. appeared to have repaired their relationship.

[192] At the time of her evidence, N.A. was 59 years old, residing in Edmonton, having previously resided in Saskatchewan. She is a band member of the Muskeg Lake Cree Nation. In the past two years, she resided on and off with the mother, between six and seven times. She is in receipt of social assistance.

[193] Historically speaking, N.A. grew up in an Indigenous community. She was born in Shellbrook Saskatchewan/ Muskeg Lake Cree Nation. She is of Cree heritage. Her mother was in the Indian Days school, and her father went to residential school. Her father was severely abused in residential school, physically, emotionally, and sexually. This impacted N.A.’s own life regarding his ability to be there for her. Her father fought in two wars. When he returned from the wars, he consumed alcohol and was abusive to her mother. This led N.A. and her 13 siblings to raise themselves. When she got older, she learned of her native ancestry, and passed that along to her children by telling stories. N.A. smudges daily, she goes to sweats, powwows, sun dances, believes in traditional healing. This was all passed along to her own children, as it is important to her.

[194] N.A.’s first husband, C.R. (the mother’s) father, consumed drugs and alcohol, and was physically abusive toward N.A. N.A. also ended up consuming substances toward the end of their 30-year relationship, though sporadically. She denied drinking regularly when raising C.R. but then stated that C.R. was “a spoiled brat”. She denied C.R.’s father abusing C.R., indicating that N.A. left him when the mother was just a newborn. She denied not being there for the mother and denied going from one abusive relationship with an alcoholic to another, though admittedly he was an alcoholic when she left the relationship. N.A. denied anyone being abusive toward the mother except when she moved to Ontario with J.W.

[195] N.A. has never been involved with child protection services, but she helped her husband get his children, her stepchildren, out of care.

[196] The last time N.A. saw N or A was in January or February 2019, in Edmonton. She has seen A virtually since then, but not N. She described her visits with A as positive.

[197] When asked if the mother’s virtual visits with A were positive, N.A. agreed that for the most part, they were. She however felt the mother was occasionally overwhelmed and got upset with the workers when they intervened and told A what to say.

[198] N.A. testified that C.R. consumed alcohol during her virtual visits. She believed that the mother was not trying to sober up. She had concerns about the mother’s home, including that R.T. was living in the same unit, and they both drank. At this point of the evidence, the mother intervened, and called N.A. a “lying bitch”, angrily asserting that she, C.R., does not have a mother.

[199] N.A., undaunted, indicated that R.T. was the homeowner. He was supposed to be living in the basement but when she resided in the home, he did as well, upstairs with her and C.R.

[200] N.A. was no longer prepared to support the mother’s plan, stating that none of the family would support C.R. if she were drinking.

[201] Despite naming alcohol as the mother’s weakness, N.A. went on to describe the mother’s strengths, indicating that when she was sober, she was a beautiful and good mother, who always took care of the children. But when C.R. drank, she has no time for the children.

[202] N.A. felt the mother was drinking too much, recently drinking daily. Her view of “too much” was when the mother was drunk and could not even walk, passing out anywhere. The mother’s drink of choice was vodka, and she was drinking a 26 oz bottle per day, every day. When she drinks, the mother is rude, aggressive, violent, so sick that she has panic attacks and severely suffers with her mental health. She was however a completely different person when she was not drinking. N.A. said she had tried for years to help the mother get assistance for her addiction issues, as have other people and organizations, such as the band.

[203] R.T. drinks beer, some vodka, smokes weed and told them he does cocaine, though admittedly N.A. never saw him use cocaine.

[204] N.A. advised that she moved in with the mother in November 2021 and left on or about December 29, 2021. Initially the mother was able to control her alcohol consumption. Then it became increasingly worse, with the mother drinking all day long.

[205] The argument that led to N.A. leaving was due to R.T. putting down the mother, and N.A defended her. The mother thought N.A. was siding with R.T., so C.R. pushed N.A. N.A. said she would leave, but then R.T. threw her into a wall. N.A. locked herself into the bedroom and called the police. Afterward, she went to her son’s house. Nobody was charged as the police called it a family dispute. N.A. said C.R. had attacked her numerous times in the past and she had never charged her. N.A. did not deny that she has been violent with C.R., but explained that C.R. got violent with her, and she just defended herself. She denied being the aggressor in the above incident and denied being asked to have the apartment due to her own drinking.

[206] N.A. testified that when Ms. Kolade attended, R.T.’s belongings were all in the apartment, in a bag in the closet as he did not own much. N.A. agreed that she did not tell Ms. Koloade that R.T. was residing in the home she shared with C.R., indicating that he was supposed to move to the basement but that did not occur.

[207] N.A. also described that the mother was admitted to the hospital on or about December 17, 2021, as she was having sever hallucinations. C.R.’s blood pressure was so low that she was kept for four days.

[208] N.A. confirmed that the plan had been to get the girls returned to their care, then the mother would go to treatment. When asked if there was any concern with the girls being placed in the mother’s care alone, N.A. indicated that things would end in the same way, with the mother going back to J.W., and the children would be in the same situation as they are now. She felt the girls did not need that type of life.

[209] Admittedly N.A. supported the mother in the past, but she felt she could not lie about C.R. anymore. She testified that C.R. and J.W. had moved approximately 20 times in the past 10 years, running away from child services. N.A. had even called child services on the couple in the past.

[210] N.A. shared she had concerns about C.R.’s health, sobriety, and mental health. She felt that the mother would not be able to maintain or take care of the girls due to her mental health until she got herself better.

[211] She testified that the mother and father spoke almost daily, despite the allegations against J.W.

[212] N.A. also expressed concerns about the father having care of the girls. She believed that neither parent should have care of the children. In the past, when C.R. got drunk, she would leave the home, giving the father free access to the girls all the time.

[213] N.A. maintained in cross-examination that the mother was not sober while they are residing together, including when Ms. Kolade attended.

[214] She denied being angry with the mother and testifying in retaliation.

[215] N.A. advised that she was presently living with one of her older daughters, R, which was a short-term plan, though there were rooms for the girls at R’s home. She was about 10 to 15 kilometres away from the mother. She was getting her own place for February 1, 2022, and would get an assessment of that place to continue to present her plan for the girls. While N.A. had a plan for the services required to meet the girls needs, those were not yet set up as the children were not in her care. She indicated however that she had the support of her five other daughters and the remainder of her family to meet the children’s needs. She planned to expose the children to their family and culture and do what was necessary to strengthen them. She wanted the girls to be in safe hands and do the right thing for them.

[216] While the OCL suggested to N.A. that it would be challenging to raise N and A with their special needs, N.A. was of the view it would not be a challenge as she has raised eight children and other kids. She raised one boy who, like N, had special needs, and spoke of taking the time to sit with them and explain things with them. She has a good relationship with N and A. Admittedly though she had not spoken to N in almost 3 years, since early 2019. As for her interactions with A, she acknowledged they were virtual, and she shared the conversations with the mother.

[217] N.A. was not around when C.R. was pregnant with N. Due to her work, N.A. was sporadically around when C.R. was pregnant with A. At the time, C.R. had been raising N alone and consuming too much alcohol while pregnant, which resulted in N.A. taking C.R. to the hospital. She acknowledged that the mother has previously attended for treatment in Quebec on two occasions.

[218] N.A. testified her plan was in the girl’s best interest as she would be stable, she had been sober for one year and one month, she would give them a good home and they would get to know their cousins, aunties, and family. She had been working with the band, who would help get her a home and would assist financially if she really needed additional support.

[219] In cross-examination, N.A. admitted to drug addiction, but denied any issue with alcohol, particularly when raising her children. She denied binge drinking beer. She admitted that two years prior she smoked crack cocaine. N.A. admitted that two years ago, when the girls first went into care, she was not stable, nor was C.R. All last year, she was trying to get a home in Saskatchewan, but when she finally did get a home, children were not permitted to be placed with her.

[220] N.A. testified that in 2012, she resided in the Ottawa area with C.R. and J.W. At that time, the father called the police to get N.A. removed from their home.

[221] It was N.A.’s evidence that when they all lived together, N would have to take off her clothing and walk around in her panties in the home. She did not raise her children to walk around half-clothed all day. It was her evidence that N was 8 at the time, and she was already developing. She admittedly never heard the father telling N to walk around in only panties. She testified she called child welfare three times, due to the drinking, but never received a response before they moved.

[222] N.A. spoke of C.R. passing along their traditions to the children, the connection to the community, and showing the girls how to smudge.

[223] N.A.’s evidence was that in 2020, when she was in her own home and the mother was residing with her, she contacted Edmonton Child Protection Services to be assessed, but nobody returned their call. Her other daughter R also expressed interest in presenting a plan for the girls, as are her other five daughters. However, they do not support the mother until she receives treatment.

The Society’s plan

[224] The Society developed a plan of care which identified areas of weakness within the family and goals to achieve. The Society was to meet the family once per month to check in and obtain updates on steps taken by them to address their goals.

[225] Amongst their objectives for the mother was that she not consume alcohol and/or drugs, attend for random screening, complete a parenting course, address her mental health, and not expose the children to adult or court related matters. The goals for both the mother and father, given their frequent moves, included maintaining proper housing and remain stable for a minimum of three months. For the mother, her places of residence ranged from living in Alberta, then to the Ottawa region, then back to Alberta. She has resided with her mother, friends, relatives and now her partner, R.T.

[226] The evidence was that the mother would frequently change her telephone number, or the telephone was often not in service.

[227] Both the mother and the maternal grandmother wished to present plans for the girls. The mother’s plan kept vacillating, including who in her family she supported regarding for kin plans. Even during the trial, the mother’s plan changed. Initially, it was with N.A.’s support. However, mid-trial, there was a falling out between the mother and N.A. During N.A.’s testimony, the mother presented as extremely upset, emotional, angry, and made derogatory comments to N.A. However, as noted above, shortly thereafter they reconciled their differences.

[228] In January 2020, Ms. Seguin was of the view that the address provided by the mother was not her fixed address, and therefor her plan could not yet be assessed. Ms. Seguin also testified that the mother’s plan was lacking “specific criteria and information” to be able to call for a referral to have her plan assessed in Alberta.

[229] Though Valoris had not be involved with the family prior to November 2019, the evidence established that child protection services were previously involved with the family from approximately 2013 onward. There was no evidence that the children have been previously removed from the care of either parent.

[230] The children were however removed from the father’s care on December 13, 2019 and brought to a place a safety. They were placed in the foster care home of L.T. and have since remained.

[231] At the time the children were removed from the father’s care, the children had special needs, and were non-verbal. The father did not have the children’s health cards, which were required for food banks and medical appointments.

[232] The Society’s plan of care included a request for the parents to complete a Triple P parenting course and apply the techniques. The father completed the course and was observed applying the techniques. The evidence showed the mother was also taking parenting instruction.

[233] At trial, the Society’s position was that the children should be placed in extended society care. They wish to find a family to meet the children’s needs, with the most important aspect being a family who is Cree or First Nations. Apparently, the Society had not been able to explore that issue due to the children’s temporary legal status. There was no evidence as to the availability of any Cree or First Nations home being available to the girls. There was also no evidence from any adoption worker presented at trial.

The father’s parenting time and plan

[234] As mentioned above, the Society did not permit the father (J.W.) any contact with the girls between December 13, 2019, until June 25, 2020.

[235] However, on or about January 10, 2020, when asked by Ms. Seguin, N was open to the idea of a short visit with her father. At that time, A did not want to see her father.

[236] L.T. described that there was a mix of emotions surrounding the first visit between the children and their father, which took place on or about June 25, 2020. A was excited and a little apprehensive. N was very apprehensive and had to be convinced to attend the visit as she did not want to attend or see her father. Ms. Seguin observed the father’s first visit with the girls. She too described A as excited to see her father, and she was very much looking forward to seeing him. A appeared comfortable throughout the visit, she was calm and happy to see her father.

[237] That first visit was the only visit in which N participated. Ms. Seguin described N showing signs of distress, though she was encouraged to participate. N presented as not wanting to see, and/or being scared to see her father. During the visit, N made minimal conversational statements to the father, and then asked to leave the visit approximately 10 to 15 minutes after it started.

[238] The Society’s evidence was they tried to encourage N to see her father and supported them having contact. N would frequently answer their offers to see or speak to her father with “no thank you”. L.T. also testified that she tried to encourage N to attend visits. L.T. told N that she understood her decision not to see her father, but really wanted her to try to see him. N made a statement to L.T. on July 9, 2020, that “I don’t want to see daddy, I don’t like daddy”. Despite this, to continue to encourage N to participate, L.T. would bring N with her for A’s visits with her father.

[239] Occasionally the father brought his mother, known to the children as “Babcia” (L.B.) to the visits. As evidenced by L.T., seeing Babcia caused N some distress, bringing about statements about wanting to stay with the foster family and not go to the paternal grandmother’s home. This would have occurred in July or August 2020. Around that same time, A also indicated she liked the foster mother and the foster home.

[240] Nevertheless, N briefly participated in a telephone call with L.B. on November 26, 2020, though she expressed not wishing to speak to her. L.T. did not understand why N said that to her paternal grandmother. L.T. testified she tried several times leading up to the contact to encourage her to speak to her paternal grandmother, but N was adamant she did not want to, and did not like to speak to her.

[241] A however was open and comfortable with both seeing and speaking to L.B. In December 2020, A saw her grandmother L.B. for the first time since she went into care. That visit was described by Ms. Lafontaine as very positive, with both the grandmother and child spending good quality time together. L.B. was playing with A’s hair, A was sitting on L.B.’s lap and giving her kisses. During that visit, A told her father that she loved him, to which he responded in kind. A also had very good eye contact with her father.

[242] It was L.T.’s evidence that in November and December 2020, she truly thought that the children were going to be placed with family or with Muskeg Lake Cree Nation. She was concerned about the level of detachment exhibited by N, which is why she pushed her so hard to connect with her parents and her extended family. She manipulated N to speak to her father on December 3rd, 2020, thinking she was doing the right thing. On that day, A spoke to her father first, and then N approached. N was encouraged to say anything to her father. The father took the cue and was so happy to speak to N. He started asking about school, Christmas, etc. N became overwhelmed and told her father “I feel like I don’t want to talk to you”, expressing feeling scared, and having hurt feelings by him. The father told N that he was not angry with her, that he loved her and missed her.

[243] N was never forced to see either of her parents or extended family. The evidence was that workers would speak to her, encourage her to attend, but N chose not to participate. The Society followed her lead. Ms. Seguin’s evidence was that she and her colleagues encouraged N to talk about her feelings, her parents, and to try to explain what was going on. They have encouraged her to take part in the visits and told her she could change her mind if she wanted to participate. Despite this, N has not seen her father since July 2020.

[244] The visits between A and the father were described by Ms. Seguin as positive. A greatly enjoys seeing her father. Ms. Seguin described A as happy, affectionate, looking for attention and very playful during her visits with her father.

[245] A occasionally expressed worry about her father not attending or showing up late to her visits, whether they are in-person or virtual. Throughout the Society’s involvement, A expressed missing her father (August 17, 2021); being sad when he did not visit (March 2021); having “big feelings” about her father (July 2021); being angry at her father (August 2021) and occasionally not wanting to see him (January 2020). In the past, A has told her father that she did not want to talk to him. These feelings and/or statements occurred following a missed visit, or something similar that would lead to any child being disappointed -regardless if a reasonable explanation was offered by the father, such as being ill (or having Covid), injured, hospitalized, or the distance between his home and A’s foster home did not permit in-person visits.

[246] There were times when A was angry with one parent, and refused to talk to the other parent, lumping them together in her feelings.

[247] The father planned fun activities for A, such as going to the splash pad, and engaged with A during the visits. He played along with A, assisted her in practicing her letters, and looked at family pictures reminiscing of happy memories. He was open to suggestions from workers for community activities, such as strawberry picking. Ms. Seguin never had to intervene in the father’s visits. The father was also capable of redirecting A during visits, and she complied with his redirection.

[248] Ms. Sabourin confirmed that the father had positive visits with A, and that A was excited and happy to see her father. Evidence of this included the visit of February 18, 2021, when A was so happy to see her father that she ran to him.

[249] Ms. Lafontaine did not observe any concerns regarding the visits between the father and A. She described A enjoyed spending time with her father, that she has unconditional love for her father. A has no fear of her father and loves to be close to him. A was a happy child whenever she saw either of her parents and loves her parents dearly.

[250] Ms. Lafontaine supervised some of the father’s visits with A, including in-person visits. N only briefly participated in one visit in the summer of 2020. There appeared to have been one telephone call in August 2021 between N and her father, where she told him she did not want to speak to him. Afterward, N refused to participate in visits with her father, despite the workers asking her if she wished to partake.

[251] Some time in or about October 2020, the father moved to the Toronto area, necessitating the change from regular in-person visits to primarily virtual visits. According to L.T., these changes to the routine, including the occasional missed visit by the father, was emotionally hard on A, who thrives on routine. A could not understand why her father could not attend visits, despite him no longer residing in Eastern Ontario.

[252] It took approximately one year for the father’s access to increase. His visits with A commenced with a two-hour visit at the Society’s office, supervised. In the summer of 2021, he was offered four-hour visits twice per week, though this was impossible due to his residence being near Toronto. He accepted one four-hour supervised in-person visit in the community, and one virtual, either by telephone or teams, per week. The father would occasionally bring his sister or his mother to his visits with A. The Society wished to provide the father an opportunity to put into practice the Triple P skills he was learning. The level of supervision however was never decreased, which according to Ms. Sequin was due to concerns they had because of the children’s allegations.

[253] There were occasions when the father needed to cancel visits due to his work schedule and distance between the children and Toronto. Ms. Seguin indicated the father’s work schedule also affected his ability to return her telephone calls. There was a three-month period from November 2020 to January 2021 when the father had very limited in-person visits with the girls, and minimal contact with Ms. Seguin. From her perspective, maintaining contact with both the parents was difficult.

[254] Some visits were cancelled due to Covid, such as an outbreak at Valoris or if anyone had Covid symptoms.

[255] Throughout the Society’s involvement, A was open to receiving gifts from her parents. However, generally N refused to open gifts from any family, including her parents. Any gifts sent to N remain unopened by her.

[256] Initially, the father’s plan was to have the children returned to his care. Thereafter, he proposed his mother as part of the plan. Neither plan was accepted by the Society.

[257] L.B.’s assessment was initially completed in the fall of 2020. However, according to Ms. Seguin, despite L.B. passing the assessment, the Society did not accept the plan as they were concerned L.B. did not appreciate the allegations against the father and were concerned she did not agree with the diagnoses from various professionals. There were concerns ultimately that L.B. would not be comfortable alerting the authorities should something occur. L.B.’s plan was again evaluated in October 2021, by Ms. Seguin and Ms. Sabourin. The children’s needs were not validated by L.B., and therefore the Society’s worries persisted, particularly regarding the children’s needs being met given that services had not been contacted by L.B. However, the evidence showed that L.B. had explored which services could be put in place for the children in December 2020 when her plan was first presented. This was dismissed by Ms. Seguin, who wanted to know whether these services were currently in place.

[258] Though L.B. withdrew her plan mid-trial, there were positive aspects to the plan, such as the familial connection, familiar environment, and connection between A and L.B.

[259] The evidence showed that in September 2021, the father provided Ms. Seguin his home address to have his plan assessed. Prior to then, since his move to the Toronto area, there was no concrete address to complete an assessment. The father ultimately withdrew his plan mid-trial.

The mother’s parenting time and plan

[260] The mother (C.R.) is 33 years old, and currently resides with her partner R.T. in the upstairs apartment of a home. She is asking that the children be placed in her care, or alternatively to have frequent and liberal access to them.

[261] The mother is the second youngest of 8, including her stepsiblings. She described her mother, N.A., leaving her father around the time of her birth.

[262] Her father is Metis, of the Buffalo Narrows in northern Saskatchewan. However, at the time C.R. testified, he had yet to register for status to be able to pass that down to N and A. The mother was unaware if her father had any child welfare history or attended residential school.

[263] The maternal grandmother, N.A., is from the Muskeg Lake Cree Nation, which is the community with which the mother identifies. The mother has First Nations status from her mother. The mother grew up in Edmonton, Alberta but visited the Muskeg Lake Cree Nation. During the mother’s youth, N.A. did not follow cultural practices.

[264] The mother was raised by N.A. and stepfather J.C., with whom she continues to have a good relationship despite the couple being separated. She described her childhood as sometimes good, sometimes bad. N.A. and J.C. worked a lot and were never home. Though the parents financially supported the children, it was not a loving relationship. Times were bad when they consumed alcohol and drugs, recalling a memory that in retrospect she understood them to be using cocaine. She recalled N.A. drinking every night, typically Labatt Blue beer. This impacted the mother as from the age of 8 onward, N.A. would wake up C.R. every weeknight to sit at the table at three o’clock in the morning. At that time, N.A. would talk about her issues, as if C.R. were her counsellor. These nightly sessions caused the mother to be late for school the next morning, and occasionally she would fake sick notes because she was so tired. One topic N.A. would discuss late at night with C.R. was the abuse she suffered from C.R.’s biological father. Due to these experiences, the mother swore to herself that she would not touch alcohol.

[265] The mother described growing up with seeing her mother being choked by her stepfather. The mother was also physically, mentally, and spiritually abused. She indicated she and her siblings were slapped so often that the bruises no longer showed. They were forced to eat spicy chili for not doing their chores. They were kept in the dark about their own heritage.

[266] The mother moved toward a more spiritual or cultural lifestyle in grade 9, when she decided to attend an aboriginal school in Edmonton. At that school, the mother was able to learn about her culture and background, and until then, she did not even know she was Indigenous. The school opened her eyes to what her ancestors had gone through. As a result of knowing her own heritage, the mother smudges every morning when she wakes up.

[267] The mother did not finish high school as N.A. did not let her, having taken her out of school in the middle of grade 10, taking her to Quebec to see her stepfather J.C. The mother became pregnant at 16 years of age, resulting in her having her first daughter, E. The mother was left behind, in Quebec, by N.A. due to being pregnant. The birth went smoothly, and the child, E, was perfectly healthy. There was no involvement with child protection agencies.

[268] Initially, the mother stayed in Quebec. Then, a couple of years later, the family moved to Edmonton. There, the couple separated, and E stayed C.R. until she was about five years old. E went to live with her father due to an altercation between the mother and J.W. E eventually returned to the mother’s care, but after getting joint custody she felt E needed stability with her father. The mother meanwhile was, in her own words, busy chasing J.W. The timeline for these events were not consistent in the evidence, but regardless were peripheral to this case.

[269] The mother described first meeting J.W. when N.A. brought him to her home. She was about 18 years old at the time. J.W. was living in Edmonton, possibly selling drugs, which the mother believed was how he met N.A. A few weeks later the mother and J.W. started dating, and things were good. It was “blissful” until they moved to Ottawa, Ontario in January 2009. There, they resided with L.B. and her husband, while J.W. worked as a landscaper.

[270] In early 2009, the mother and J.W. were involved in a domestic dispute. The mother recalled it occurred in the kitchen, when she was pinned in the corner, and J.W. held her with both his arms. He weighed 350 pounds, and she weighed 130 pounds. Everyone else, including E, was upstairs sleeping. She reacted to be pinned. J.W. pulled out a knife and put it to his throat, which she pulled away, resulting in a cut to his throat. The mother went to jail for the night, while J.W. went to the hospital. They were both under the influence at the time of the incident, the mother having consumed alcohol. Eventually, the mother was found not guilty at trial, indicating the charges were “thrown out”. The mother described at that time she was drinking beer every second day after E had gone to bed. She had tried to maintain her sobriety for E. Following this incident with J.W., the mother’s visits with E were arranged through E’s father.

[271] In May 2009, the mother became pregnant with N. There were no difficulties with the pregnancy, but the mother recalled getting the H1N1 vaccine when she was pregnant. N was perfectly healthy at birth. However, N did not start talking until the was 5 years old and was in diapers until she was 6 years old.

[272] When N was born, the mother and J.W. resided in their own home in the Bayshore area, where they stayed for about 14 months. Thereafter, when N was five months old, due to a neighbour having a grease-fire, they moved to a condo in Etobicoke, where J.W.’s deceased grandparents used to reside. After a few months, in about 2010, they moved to Mississauga, the mother and now N always following J.W. Thereafter, they moved to Edmonton because the mother missed her family. During this time, N and the mother stayed at home alone. Initially they resided with the mother’s sister, D.A., where N interacted with her cousins. The couple moved frequently due to non-payment of bills, though J.W. was supposed to be the financial provider for the family.

[273] The mother described J.W. as always being absent. She described drinking occasionally when the father brought home alcohol as she had no money. She would consume the alcohol in the evening after J.W. got home from work.

[274] At that time, the mother and N.A. would consume together, outside the home, approximately once per month. They would consume for about 7 to 8 days. The mother would drink Bacardi, and N.A. would drink beer and consume crack cocaine. During her absences, the father would care for N.

[275] While living in Edmonton, the mother became pregnant with A. The mother was consuming alcohol and cigarettes on and off, including drinking daily for the first three to 4.5 months of her pregnancy. At one point, the father went to Cuba for a wedding and was gone somewhere between 7 to 14 days. When the mother was five months pregnant for A, she was hospitalized, for either depression or because she could not stop vomiting (the evidence was inconsistent on this issue). She was given Diclectin. The mother then stopped drinking.

[276] When A was born, the couple resided in Westmount, Edmonton. A had the umbilical cord wrapped around her neck at birth. Despite that, A was a healthy child, who started talking when she was 2.5 years old. Following A coming home, N interacted with her only when she felt like it.

[277] While in Edmonton, following a two-day assessment, N was diagnosed with autism spectrum disorder (ASD). She had been attending kindergarten at the time. The mother denied that there was supposed to be a six-month follow up to the assessment for autism.

[278] When in school, N had the services of a speech therapist, occupational therapist, and another therapist for her fine motor skills. There were services that also went to the home, including occupational therapy and speech therapy. There was homework assigned by the service providers which the parents assisted N in completing. As a result of the services, the mother observed N progressing. These services continued following N’s diagnosis.

[279] Following A’s birth, the mother maintained her sobriety for approximately six months. Thereafter, the mother and J.W. were consuming alcohol together. The mother was consuming due to depression and feeling alone. Initially, the mother was consuming about every third day, and the father drinking more frequently. Toward the end of their relationship, they were both consuming daily or every second day. The mother’s alcohol consumption never surpassed that of the father, but she caught up to his drinking habits by October 2018. The only drug consumption at that time was marijuana.

[280] When the couple moved to Ottawa, they were running away from their financial situation. At first, they lived with J.W.’s mother, L.B., and stepfather, then they secured their own place.

[281] The mother agreed that the L.B. frequently had her, J.W. and the children over at their home when they resided in Orleans, and both girls loved the pool, N in particular.

[282] In or around 2014, while residing in Ottawa, the mother recognized she had a problem with alcohol, and completed a 21-day Withdrawal Management course. She found the program helpful.

[283] While in Ontario, the mother connected with Wabano centre in Ottawa. In the other Ontario locations, she reached out to similar centres, but did not stay long enough to get through the programs. She was looking for mental health support, addictions services, and to continue learning of her culture to bring it into the children’s lives. She testified that she went to Sisters in Recovery, an addiction services group for Indigenous women. She was in this course for about six or seven months.

[284] When N was going to school in Orleans, due to the mother not having a driver’s licence, the father was responsible for ensuring N got to school. It was the mother’s responsibility to have the children dressed and ready to go.

[285] Eventually, the couple moved to Gatineau. The children did not attend school in Gatineau, they took the bus to Ottawa. Apparently, the children needed to be residents of Quebec prior to being able to attend a school in that province. In cross-examination, the mother testified the children attended school in Ottawa during this time, and J.W. drove them.

[286] In the summer of 2018, Au was born at the Ottawa General hospital. At that time, the family was residing in Gatineau. Au was a perfect, beautiful baby boy.

[287] When the tornado hit Gatineau in September 2018, the mother was in their apartment, sleeping with Au. J.W. had gone to pick up the girls. N went into the room, shook her mother, and complained about the wind. The tornado ripped through their apartment, causing the family to duck down while their whole roof and side walls were taken off. The mother had just enough time to grab N and Au, thankful that the wind did not take off with A. A was hurt by a piece of drywall hitting her in the back, causing only minor bruising.

[288] After the tornado, from approximately September 21, 2018, until October 18, 2018, the family resided in a cottage in Wakefield. Thereafter, the family and L.B., went to the Best Western Plus in Ottawa, where Au died. The mother testified she was next to Au when he passed away. N and A were in the bed next to him, while J.W. was outside smoking a cigarette. N woke up the mother, telling her Au was choking. The mother tried to resuscitate Au, without success. She called 911 for an ambulance. By the time the ambulance and fire department attended, Au had died. The mother was told by the coroner the cause of death was due to heart complications. She recounted that a couple of months prior Au had gone for a heart test, and he had an open heart valve, which was not diagnosed at birth.

[289] In cross-examination, the mother admitted that on the day that Au died, she had been drinking in the hotel bar with J.W., and the girls were alone in the room with Au. Eight-year-old N had been left in charge, despite her prior diagnosis of autism. The mother said she only left the children for a couple of minutes and then went back but agreed that they were playing pool and was actually gone for about 15 minutes. She insisted she was asleep beside Au, and denied falling asleep on top of Au, causing him to suffocate. The mother then alleged that the father was outside smoking “crack”, or possibly marijuana when Au died. She then offered that the father smoked marijuana and crack daily as well as being an alcoholic. She was unable to recall if J.W. tried to assist Au, but remembered he blamed her for the child’s death.

[290] Au died October 15, 2018. N.A. had flown to Ottawa to be with the family. On October 21, 2019, following his cremation, the family, including N.A., returned to Edmonton, Alberta. The mother denied any knowledge of any ongoing child protection investigation at that time. The return to Edmonton was to get support and to help with the mother’s mental health.

[291] In terms of her addictions, thanks to the familial support, the mother did not consume until about a month after Au passed. She explained she consumed because she is an alcoholic and would always be one. She was not happy, and alcohol was available on every street corner. When she was consuming, she would leave the children at home with J.W., who consumed in moderation.

[292] On or about February 20, 2019, J.W. left Edmonton with the children and Au’s urn, and went to his mother’s home in Burlington, Ontario. There was no legal custody order in favour of either parent. The mother repeatedly tried to reach the father to ascertain why he left. She reached him on one occasion and found him to be elusive. Thereafter, and for the following three or four months, the father did not answer his phone.

[293] The mother joined the father and children in Burlington in or around June 2019.

[294] The mother described that a typical day with the girls at this time involved gently waking up the girls by playing with their hair. The mother would already have had her coffee and cigarettes, and when the girls were up, she would dress them and take them to the bus for school. The mother maintained that the children attended school regularly when she and J.W. were still a couple, despite evidence to the contrary. She also testified that N was accessing services while they were together

[295] After about three months, she left J.W. and returned home to Edmonton.

[296] The mother’s evidence was that N was receiving special services when they resided together as a family, but not following their separation.

[297] Thereafter, the father moved to Rockland. He contacted the mother via Facebook, where she learned of N.D. and the child M, who resided with them. The mother did not know N.D. prior to the father moving in with her. However, N.D. was occasionally on the camera when the mother spoke to the girls.

[298] She had contact with the girls less than a handful of occasions during this time, following which she believed A cried after speaking to her mother.

[299] To get the girls back in her care, the mother reached out to her previous family lawyer, but nothing came of this.

[300] From their final separation until the children were taken into care by Valoris in December 2019, the mother had no in-person visits with the children.

[301] The mother credits her maternal intuition for knowing that the children were in trouble. On or about December 6, 2019, her stomach was hurting, and she called J.W.’s phone. He did not answer, but she knew his voicemail password, and used it – alerting her to the involvement of the OPP and Valoris.

[302] As a result of that information regarding their involvement, the mother immediately contacted Valoris and spoke to Carolyn Seguin. Due to Covid and a lack of identification, it took her a couple of months, but she managed to go to Rockland for visits with the girls.

[303] She arrived on February 9, 2020, and was able to meet with Caroline Seguin at the Wabano centre. At first, the mother stayed with J.W. She was not able to see the children until June 2020.

Place of safety and access

[304] The mother’s first contact with the girls following their being taken to a place of safety on December 13, 2019, was March 24, 2020, for a telephone call, supervised by L.T. The mother spoke to both girls, who were very excited. A was very talkative and kept changing subjects, making it difficult for the mother to follow the conversation. L.T. gave pointers to the mother but did not have to intervene in the conversation. Initially, the mother was upset with the pointers, but then indicated it was hard to know what to say due to the girls being in care. L.T. described that the conversation went well for the most part.

[305] After this, there was no further telephone or in-person access between the mother and children until approximately June 30th, 2020, following the mother scheduling a motion for access to be heard in July 2020. This was despite her residing in the Ottawa area since February 2020 and the mother having a consistent email address (though inconsistent telephone numbers).

[306] Ms. Seguin admitted that rather than providing supervised access, the children did not have any meaningful access with their mother for four months. Ms. Seguin’s evidence regarding the delay in visits was due to her assessing the suitability of the mother’s access because of alleged concerns from Halton CAS. There was however never any order prohibiting the mother from seeing the girls. Ms. Seguin testified that there was a decision that until the mother’s parental capacities could be assessed due to concerns with her mental health and addiction issues, all access be supervised – yet none was offered.

[307] The mother’s in-person visits commenced in June / July 2020.

[308] On July 21st, 2020, on consent of the parties, the mother’s access was varied such that she was to have at least one weekly visit with the children, with the Society to have discretion over the length and level of supervision.

[309] At the first two visits, due to Covid, the mother was not allowed to give the girls gifts, but she was permitted to bring colouring activities. The girls and their mother coloured, talked, and reminisced about old times. They had a good time. The visit went on for three hours instead of the scheduled two hours. Every in-person visit was supposed to be two hours, but they went longer. According to the mother, all four in-person visits were great.

[310] The visits were principally supervised by Carole Lafontaine, who described the in-person visits went very well. The mother and children were all engaged. The mother was emotional, which was natural as she had not seen the children in quite some time. The mother had good eye contact with the children, and everyone was happy to see each other. They reminisced about good times. The second visit was equally positive, with the mother bringing colouring books for the children.

[311] Ms. Lafontaine did not have to intervene when the mother was having in-person visits. Ms. Lafontaine confirmed that N attended the visits and she enjoyed them just as much as A did.

[312] Ms. Seguin agreed that the mother exercised four weeks of positive in-person visits with the girls. She was appropriate, engaged, and both girls seemed to be enjoying the visits.

[313] On or about August 18, 2020, the in-person visits stopped. The mother testified at that time, J.W. attempted to kill her by suffocation and/or choking, so she fled the province. She described the father took her phone away, sat on top of her and tried to choke her to death. When she recovered her phone, she ran out the door. Her stepfather picked her up. She left with just the clothes on her back, her purse and phone. She feared for her life but did not call the police during the incident because J.W. had withheld her phone. The mother indicated she could not stay in the Ottawa area as she would have been homeless, on drugs and alcohol. She returned to Alberta to have the support of her family. She went to reside with her mother, brother, and sister-in-law.

[314] The mother explained that though there were many altercations between she and father, she had stayed with him in the past because she loved and cared for him.

[315] Ms. Seguin testified that the children were told that the mother wanted to stay in Ottawa but had to leave due to Covid, and the mother promised to return to Ottawa when she could, when she secured personal identification.

[316] The mother testified that when she was at her fourth in-person visit with the girls, she told them that she was not going to leave them. She told them she was going to stay there until she got them out of foster care, and they went home with her. However, due to J.W.’s assault on her, she felt she had no choice but to leave. As a result of her broken promise, N refused to speak to her. The last time the mother spoke to N was some time after September 2020.

[317] However, the mother described that last in-person visit with N went very well, and N had really missed her. They were unable to hug due to the pandemic, but it was a great visit.

[318] Since here return to Edmonton, the mother has had no in-person visits with the girls. Though she advanced she did not have the proper identification to return to the Ottawa area to see the girls, she had in the past taken the train without the necessity of proper identification. Nevertheless, she explained that she thought it would break N’s heart if she returned to do in-person visits and then had to leave again.

[319] The mother was scheduled to have telephone visits with the girls once per week. Ms. Seguin supervised approximately ten telephone visits. She expressed that the mother’s visits were not consistent as she would frequently not confirm or change telephone numbers. Though the mother agreed she frequently changed her phone number, she would nevertheless confirm on Mondays for her Tuesday visits, providing a telephone number at that time.

[320] Ms. Seguin described the telephone visits as “difficult” for all the participants. The mother would become emotional while talking to the child, often crying. Ms. Seguin felt the need to frequently intervene, advising the mother “can we listen to what A wants to talk about”, or interpreting for the mother what A was trying to express. The mother was encouraged to speak about her culture, traditions, and positive things with A. There were times when the mother disconnected the phone call, occasionally because of the worker’s unnecessary interventions, or out of frustration, and occasionally due to difficulties with her telephone line.

[321] L.T. was also present in the background when the mother had virtual visits. Occasionally L.T. would prompt A to add details to her story, or correct her vocabulary, and the mother would become upset due to the unnecessary interventions.

[322] Sometimes the maternal grandmother, N.A., and other family members participated in the telephone visits. While this was the mother’s way to ensure A was connected with her extended family, the Society believed this to be confusing to the child. It was important for A to be part of her extended community and family, and at the mother’s insistence, the calls were by video after Ms. Seguin was removed as her worker in 2021.

[323] Ms. Seguin testified that “there were some positive calls, or positive aspects of the calls.” For instance, sometimes the mother was engaged with A. Other calls demonstrated N.A. calming down the mother, while some showed the conflict between the mother and N.A.

[324] Ms. Seguin observed the mother to occasionally be disoriented, aggressive, and slurring her words. Ms. Seguin suggested the mother’s behaviour was consistent with her being intoxicated. The mother’s explanation regarding her speech was due to the medication she was taking to manage alcohol withdrawal.

[325] When asked if there was ever any discussion to increase the mother’s visits, Ms. Seguin testified that the virtual access was not increased as it was neither positive nor consistent. To address the consistency, the mother needed to call ahead of the visit to confirm it would be occurring. This did not always occur. It was established that the mother missed approximately ten visits during the time Ms. Seguin was the mother’s worker.

[326] Ms. Seguin was of the view that the visits were not beneficial to A given the mother’s inappropriate conversations or disconnections. The mother however argued that she would never hang up the telephone when having an access visit with her daughter, despite what other witnesses have testified. It was her evidence that the phone call would drop, and that happened frequently on Valoris.

[327] As of January 2021, at the mother’s request, she was given a new primary case worker, Emmanuelle Sabourin. Ms. Sabourin also supervised some access visits, as did Ms. Lafontaine.

[328] Like Ms. Seguin, Ms. Sabourin expressed that the mother had to have four positive visits with the children before increasing access.

[329] Ms. Sabourin spoke to the mother approximately once per week, though there were occasions when they would go for a week or two without any contact, and other times when there was contact twice in one week. Though there were occasional difficulties in contacting the mother, contrary to Ms. Seguin, this worker would email the mother to reach her if nothing else was available, to which the mother sometimes responded. The contacts with N.A. were equally inconsistent. However, the worker was aware of two occasions when the mother and maternal grandmother had fall-outs, once in February 2021 and once at the end of April 2021.

[330] From January 19, 2021, Ms. Sabourin supervised approximately ten visits. Initially, the visits between the mother and children were by telephone. Though there was at first some resistance by the mother to have virtual visits, she later agreed. According to Ms. Sabourin, the visits were not consistent, and the reasons proffered by the mother for her non-attendance included being sick, her phone being stolen or lost, and no minutes on her phone. There were some visits which did not occur as the children refused to participate in same with their mother. N however never attended a single visit Ms. Sabourin supervised. According to Ms. Sabourin, A refused to participate in approximately six or seven visits. Ms. Sabourin tried to coax N to attend visits, and conveyed the mother’s messages to her, but she was unsuccessful in having N participate.

[331] N generally refused to participate in any telephone calls with her mother, despite numerous offers and opportunities to partake, politely declining with “no thank you, I don’t want to”. The phone calls took place near N, where she could overhear, with the hopes of igniting a desire in her to participate. N never provided to the workers any reason for her non-participation.

[332] The mother acknowledged that N did not wish to participate in virtual visits. The mother wanted the Society to prepare N to participate, including preparing her the night before – but the Society said they could not. The mother agreed that the Society suggested she prepare videos for N, which she was not comfortable doing, but was open to sending pictures.

[333] Ms. Seguin, Ms. Sabourin and L.T. provided evidence of A being upset or sad after speaking to her mother due to the nature of the conversation between them. For instance, on February 24, 2021, A called Ms. Sabourin to express sadness that her mother only wanted to talk about N. A would have wanted her mother to focus on her, rather than asking about N. On another occasion, in April 2021, both N and A refused to participate in a visit with their mother or maternal grandmother due to their feelings having been hurt by her. In June 2021, A expressed happiness, sadness and worry about an upcoming visit with her mother.

[334] While it was brought to the mother’s attention that occasionally A would be upset with her due to the mother asking about N, A never complained to her directly. The mother acknowledged that A being upset. The mother expressed frustration about being unable to talk about N because to her, the girls are inseparable. Prior to going into care, the girls shared the same room, they would play with barbies, dinosaurs, and rocks together. N was obsessed with rocks, lining them up and playing with them on the kitchen table. Whenever N gave her permission, A was allowed to participate. N was closed off, according to the mother, due to her autism, but she was very protective of her little sister.

[335] The mother admitted to being told to stop calling A by her nickname as A did not like it anymore.

[336] The mother testified she holds schooling in high regard and did not recall interrupting A when she was telling her about school. She was not trying to stop discussions but wanted to build her bond with the children after being without them for almost three years.

[337] At one point in time, the mother had a telephone conversation with A where she spoke of sending her some gifts for her birthday. The mother and N.A. went to get the gifts, put them together, and sent them through Canada Post to A, but somehow, they ended up in Windsor. A only received the gifts at Christmas, along with Christmas gifts and cards for both girls. The mother denied promising A she would attend in person for her birthday but admitted said she would be “present” for that special occasion, despite knowing she could not get out there.

[338] The mother was supposed to have a virtual Christmas visit with A to watch her open her gifts, but she was unable to get into the link. When she called the emergency worker at Valoris, they were unable to assist. The missed visit was a great disappointment to the girls, so they did not participate in the following visit. The mother did not deny that she only called Valoris two hours after the visit was scheduled to attend, indicating she had been trying to call.

[339] The mother agreed that her visits were to occur weekly, and she was to confirm the day prior. During the trial, two weeks prior to her cross-examination, the mother confirmed she would attend the visit but failed to do so. She explained she was unable to get into the link and tried on three different devices. When asked about her missed visit the week prior, she believed she called to confirm her attendance, but A did not want a visit. The week of her testimony, the mother agreed she did not confirm her visit at 3:00 p.m. because she was in trial. She did not call prior to the trial as she did not have time.

[340] The mother agreed she promised to go visit A once she obtained proof of identification. However, she denied ever giving A a time frame for her visit and denied promising to attend for A’s birthday. Here evidence was she had not had proper identification since December 2019.

Mental health and addictions

[341] Based on conversations with the mother, workers noted concerns about the mother slurring her words, or her exhibiting several fluctuating emotions such as anger and sadness, yet able to stay calm at other times. At first, Ms. Sabourin suspected the mother was intoxicated, though again the mother explained her behaviour was due to her anxiety medication.

[342] The mother testified to taking new pills which provide pain relief and controls alcohol cravings. She said she was doing very well, and the last time she consumed was around New Year’s Eve, which reflected 19 days of sobriety. She started taking the new mediation when she was in the hospital, around December 9, 2021. She explained that the hospitalization was due to lacking magnesium and other vitamins in her body. She denied being hospitalized over Christmas and denied receiving a consent form to release said information to the Society.

[343] The mother testified that she had suffered from depression prior to meeting J.W., but it got worst over the last few years. She admitted in cross-examination that she was once suicidal. She testified she had been taking anxiety medication since approximately October 2018, after Au died.

[344] Ms. Sabourin was asked if it was possible that the mother’s slurred speech or emotional behaviour could be a result of her anxiety medication rather than alcohol addiction. Ms. Sabourin was aware the mother was taking medication but did not have signed consents to speak to her family doctor as she was between doctors, and the mother did not provide a list of her medication, as requested. However, she testified that the mother’s medications frequently changed throughout her involvement, suggesting that it was unlikely the medication alone was the cause for the mother’s slurred speech and/or emotional behaviour.

[345] The worker was nevertheless aware that the mother has been through trauma, and acknowledged that working with the Society, and her children being in care, could exacerbate trauma and provide an emotional response.

[346] The mother was regularly seeing her psychologist, Dr. Mitchell Loepp, since August 2019 regarding all her issues, including her mental health, addictions and grief counselling. This was through NHIB: Non-Indigenous Health Benefits, as she awaits a status card. She felt her work with Dr. Loepp has been a huge help, providing her support during the trial. Usually, the mother spoke to her psychologist about once per week, though recently it had become more sporadic. Her evidence was that she had signed the necessary consent form for Valoris to communicate with Dr. Loepp.

[347] Dr. Loepp helped the mother with the paperwork for her to attend the Poundmaker’s Lodge Treatment Centre either in October 2022. She did not initially reach out for the services, but by the time she testified she was told there were fifteen women ahead of her for the services. As such, she was working with other resources for assistance. She testified that she previously received a call from a treatment center in Calgary, which she declined to attend because her plan was to get a place first, then go to treatment. She would not be declining any further treatment. The mother’s evidence in cross-examination was that the Society workers never suggested she attend treatment for alcohol abuse.

Plan

[348] Ms. Seguin acknowledged she was aware both the mother and maternal grandmother wished to present a plan for the girls from the very beginning. N.A.’s plan was first presented to her on February 11, 2020. She blamed some of the delays on Covid but agreed she could have been more proactive.

[349] Upon her return to the Edmonton area, the mother modified her plan and waited for Child and Family Services (“CFS”) to evaluate it. She has a room for the girls, and a woman by the name of Roxy was supposed to do a home assessment in August 2020, but nothing came of it. In cross-examination, the mother denied telling Ms. Seguin not to evaluate her home as she was not ready. She also denied that Roxy was to evaluate anyone but herself.

[350] The mother and N.A. ended up moving out of the first place and went to the mother’s cousin’s home. That plan was presented to CFS, who attended the home, and Valoris was advised of same. The home was assessed twice, but the mother’s cousin was also applying to have her niece in her care and was successful. As such, the mother moved out.

[351] Together, the mother and the N.A. decided that the mother would try to get custody of the girls, and N.A. would put forward a kinship application. They moved to a basement apartment in Edmonton, but there was an issue with carbon monoxide, so they moved out within six months.

[352] On October 8, 2020, a request to evaluate one of the mother’s plans was made to Alberta Child Services. Tari McGee from Alberta Children’s Services in Southeast Edmonton testified as to the receipt of the inter-provincial request on or about December 16, 2020, to connect with the mother and do an assessment. She connected with the mother twice, on December 17th, 2020, and January 6, 2021. At the first meeting, the mother said she had been sober for four months, and she was speaking to a psychologist by telephone. At the second meeting, the mother provided consent for Ms. McGee to speak to her doctor about treatment and to her psychologist. The worker spoke to the psychologist, who confirmed the mother was meeting him regularly to address a variety of issues, including her trauma and anger. Unfortunately, between December and January 6, 2021, the mother moved outside of the geographical boundaries prior to the assessment being completed, necessitating another office to take over the assessment. For another office to take over however, a new referral request was required by Valoris to that other agency office. That referral would be based on the mother’s new address, which Ms. McGee testified that the mother asked her not to tell the worker in Ontario (Valoris) of her new address. Ultimately, the assessment was not completed. Ms. McGee testified that there were prior file openings with the mother in December 2013, January 2014, August 2014, January 2017, and November 2018.

[353] The mother and N.A. moved to Muskeg Lake Cree Nation and stayed with the mother’s uncle on the Reserve. The mother only stayed about six months, but N.A. stayed there longer.

[354] Around that time, the mother informed the worker she was residing with N.A. and wanted to ensure the children were enrolled to be part of her Indigenous community with status in her community.

[355] Subsequently, the mother left for Saskatoon and stayed with random people.

[356] Ms. Sabourin, on behalf of the Society, was concerned with the mother’s lack of stable housing, her addiction issues and mental health. Since being the worker, the mother had moved four times. These concerns were set out in the plan of care presented to the mother on March 25, 2021 addressing the service plan for her and the steps required. The mother signed consents to permit Ms. Sabourin to speak with her psychologist. Ms. Sabourin testified that there were times when the mother agreed to adhere to the Society’s objectives. For instance, she acknowledged to the Society wanted her to demonstrate three months of stable housing and attendance at addictions services.

[357] Ms. Sabourin described the mother sometimes being very open and sharing information with her. There were other times when the mother was angry, though at trial, Ms. Sabourin agreed the angry outbursts had lessened in the past three months.

[358] The mother spoke to the worker about addictions services she attended, and her desire to attend out-patient treatment. She was open about her struggles with maintaining sobriety, the history of domestic violence with the father, and the occasional arguments with her mother. She told Ms. Sabourin that in the past, when she was using, she would leave the children in the care of a responsible adult.

[359] It was Ms. Sabourin’s evidence that the mother did not accept that the children’s diagnosis except for the requirement for speech therapy. When speaking with Ms. Sabourin, the mother never presented a plan on how to deal with the children’s special needs.

[360] In March 2021, the mother returned to Edmonton, to reside on 79th Street. She first lived in the basement, then on September 15, 2021, she moved to the main floor. She set aside a room for the girls to share.

[361] Ms. Sabourin agreed that since the mother secured stable housing in September 2021, her attendance at access improved, as did the mother’s cooperation, such as signing consents for her psychologist and consenting to complete an assessment.

[362] Ms. Sabourin agreed that the visits between the mother and children had improved over time, and the worker had not had to intervene in the visits.

[363] Child and Family Services sent a worker, Ms. Kolade, to provide an assessment. Ms. Kolade observed two single beds, a nightstand, and “girly” touches in their room. As discussed further, below, the house passed Ms. Kolade’s assessment.

[364] In cross-examination, the mother agreed that this plan was the first official time she had a home ready to be assessed. She also agreed that though she and her mother were each presenting separate plans, they told Ms. Kolade that they were presenting a joint plan. She was certain that either she or N.A. would be capable to independently care for the girls.

[365] The mother continues to reside with R.T. on 79th Street, Edmonton. However, the mother was inconsistent as to her answers of when she and R.T. started to reside together. Initially she stated some time around November 2021, then corrected herself to indicate he moved upstairs after Christmas. She described that they first met in March 2021. Initially, she lived downstairs and R.T. lived upstairs, but after his other roommates moved out, she moved upstairs. She testified their relationship was off and on, but they had reconciled about a week prior to her testimony. The mother described that the couple only took time apart because when she consumes, she leaves the home.

[366] Ms. Lafontaine took over the mother’s virtual visits with A in September 2021. Ms. Lafontaine testified that it was very evident that the mother and A love one another. The visits were very positive, and affection was quickly displayed. N however chose not to participate in the visits. The worker had to redirect the mother during the virtual visits as she was speaking to A about Au or talking about the children coming home. The mother had no issue with being redirected. One visit was terminated as the mother presented as very tried and had her eyes closed. This visit occurred at 3:00 p.m. mountain time.

[367] From Ms. Lafontaine’s perspective, the mother’s visits with A were generally very good. After the last visit in fact, A told the worker that the visit had been awesome. That visit could have gone on longer, but the mother respected the scheduled time allotment. Though she was occasionally late for the visit, the worker acknowledged that the mother had problems with her telephone and/or internet. The mother missed a visit, allegedly due to not being able to connect through Teams but did not reach out to get a new link or advise of the issue as it occurred. In fairness to the mother, Ms. Lafontaine agreed that if there were internet issues, an email could not be sent by the mother.

[368] A has expressed concern to Ms. Lafontaine about the mother not attending visits, and at one point concerned about her mother not being nice to the worker. This did not change Ms. Lafontaine’s view that A has unconditional love for her mother.

[369] Ms. Lafontaine recalled that occasionally A did not want to have visits with her mother but provided no reason apart from just not feeling like speaking to her.

[370] Ms. Lafontaine had no concerns regarding the mother’s visits with A. The mother is engaged, and A enjoys her visits. A loves both her parents dearly.

[371] Ms. Crowe, the band representative for Muskeg Lake Cree Nation encouraged the mother to build her network, get a lawyer and an addictions wellness worker, take parenting classes, get counselling, and secure stable housing. It was difficult for Ms. Crowe to assist the mother as the band is in about 100 kilometres from Saskatoon, Saskatchewan whereas the mother was mostly in Edmonton, Alberta. The mother initially denied having any addictions issues, though she connected with a psychologist and a wellness worker at Muskeg Lake.

[372] On the issue of housing, Ms. Crowe testified that in Saskatchewan and in Alberta, it is very difficult for parents to secure housing due to receiving less money from social service agencies, particularly when their dependants are not in their care.

[373] Ms. Crowe did not have any concerns with the future of the mother’s plan, but she believed the mother still had work to do. If the children were to be immediately returned, Ms. Crowe expressed concern about the mother needing supports for her substance abuse issues, her housing stability, and her need to reach out to the support workers who would benefit both the mother and children.

[374] However, Ms. Crowe believed in the mother, and felt the mother demonstrated determination, resiliency and with good supports, she could do anything. She also testified that intergenerational trauma is very deep within their First Nations people, and denial of same was a big part of it. Nevertheless, it goes back to the parents to do the work that is needed to provide the quality of care for the children. The mother has not yet finished the work required. Ms. Crowe’s goal was to support reunification of the family.

[375] Ms. Crowe testified with the mother residing in Edmonton, the band can only provide very limited guidance in assisting her to access services. Despite her concerns, she was hopeful that the family could have the children placed in their care and believed that any concerns regarding the mother could be addressed by conditions or rules imposed by the court.

[376] The mother felt Muskeg Lake Cree Nation was very supportive of her. She does not know a lot about her band, but Ms. Crowe was very helpful. In the past, a different band had helped her financially to attend treatment and provided her some Covid money. She acknowledged it was a long process to get financial aid from the band.

[377] At the time of her evidence, the girls were unable to register for status as J.W. was not Indigenous. As such, they do not qualify for Jordan’s Principles, though the mother was working on getting her father to register, as this would permit the girls to be properly registered.

[378] The mother acknowledged Ms. Crowe’s offer to put her in touch with native counselling services, but the mother did not follow up with same.

[379] Ifeoluwa Kolade, a case worker with Children’s Services in Edmonton, was asked to do a home safety check on the mother. She was assigned November 1, 2021 and met the mother on two occasions. After numerous attempts to reach the mother, the first meeting took place November 23, 2021. At that time, Ms. Kolade was told that the mother and N.A. were presenting a joint plan for the girls. The mother and N.A. were to share a room, and the girls were to share a room in their two-bedroom apartment. Ms. Kolade was advised that nobody else resided with them, and that the mother did not know who resided in the basement apartment.

[380] The mother told Ms. Kolade she had been sober for three months, she had the support of her family, and was seeing a psychologist. She had commenced a parenting class that was necessarily put on hold due to the trial. She was planning to go into addictions treatment. The mother was aware of the children’s needs and had a plan to get the children therapy through the Ben Calf Society. Other than the thick smell of smoke, which the mother blamed on prior tenants, there were no concerns noted of the home. She spoke of N.A. helping to support her and the girls financially.

[381] The mother explained to the worker that her mother was her greatest support, that the trial was taking a toll on her, and she usually debriefed with her mother thereafter. The mother’s plan was if there were conflict between her and N.A., then N.A. would go to her sister’s place. There was to be no arguing or fighting when the children were in her care.

[382] Ms. Kolade’s second visit with the mother was an unannounced home visit on December 1, 2021, as. Ms. Kolade went to that visit with a colleague, as was the protocol. There was then a more intense smell of smoke in the home than the prior occasion. N.A. volunteered that they were burning sage. N.A. mentioned the landlord lived downstairs, which was concerning to the worker as the mother denied knowledge in the past of who resided there.

[383] Ms. Kolade recalled the mother was jittery and her hands shook. The mother had explained her Ativan caused her to present in such a state. The mother disclosed she had a relapse three weeks prior but was otherwise maintaining her sobriety. The mother shared she attended an A.A. meeting to prevent spiraling out of control during her last relapse. However, during the conversation, N.A. indicated that they were still trying to find A.A. meetings they could attend.

[384] The mother’s plan for the children was to enrol them in the Ben Calf Society, who have been contacted and were aware of the mother’s situation. Through Jordan’s Principles, she would be able to access any other necessary services. She only required the children’s birth certificates to take the next steps.

[385] Though the scope of the evaluation requested was an environmental assessment, Ms. Kolade felt that a proper home study would have been better suited to assess the mother’s plan, but her office does not perform such assessments. Ultimately, Ms. Kolade found the home to be safe.

[386] Ms. Kolade believed the mother was sober when she met her and had understood the questions the worker had asked. She agreed that the Ben Calf Society was appropriate for the children’s needs, and additional resources were available in the community.

[387] The mother’s evidence regarding R.T. was that he was a great support to the mother, financially, emotionally, and mentally. He works full time, but he could take time off to bring the mother to appointments.

[388] The mother receives Alberta Works, living on approximately $833.00 per month. However, she only must pay for groceries as she resides with R.T.

[389] The mother also has the support of her brother, T.R., though he did not testify.

[390] The mother agreed there had been a recent falling-out with her mother. She described that N.A. attended the apartment with a stepsister, R, and that sister’s husband. The mother did not want them there. N.A. went and took her clothing and slapped the mother in the head. The mother’s nose started bleeding, so she shoved N.A. out of the home. The police attended. N.A. left. All had since been forgiven. Nevertheless, that was the last time she saw N.A.

[391] Later, in cross-examination, the mother denied getting into a physical altercation with N.A. over the holidays, just a verbal one. She said her mother ended up leaving because they were not getting along.

[392] In cross-examination, the mother recalled making accusations of that N.A. had been abusive toward her when she was younger. The mother’s evidence, after the reconciliation, was N.A. was abusive “in her own way”, but if the girls were placed with the mother, N.A. would be allowed around them. She said “I completely trust her with my kids. She’s the best mother ever. We had our fallouts. Nobody is perfect in this world.”

[393] The mother admitted that at the time of her testimony, she did not really speak to the rest of her family except her brother and mother, her psychologist, and workers. She was however working with the John Howard Society and the Edmonton Police Services, as a victim of crime.

[394] At the end of her evidence, through sobs, the mother testified she misses the mornings she had the children. Before they were taken into care, she made sure their hygiene was always met, they were taken care of, and she was with them morning to night. She was a stay-at-home mother, ensuring the children were okay and safe. When she left the father, other people came into his life and ruined things, taking advantage of the situation. She is a really good mom and cannot stand what happened to the children.

[395] In cross-examination, the mother acknowledged having a black eye on the first day of her testimony. She explained she was the victim of a random act of violence, having been beaten up by a bunch of people. She believed one of those people may have been a friend of hers, S. She spent two nights in hospital because of the attack. She also went to the hospital after her testimony as she was scared.

[396] Later, when discussing her injuries, the mother recalled being in court in the new year with her head hurting. She suffered short term memory issues because of same. She indicated that she had new head injuries, but her prior head injuries were from being thrown down the stairs because she was in the wrong house, breaking the drywall with her head, resulting in a hospitalization. When discussing her friend S, she said she had previously cut him out of her life because of an incident which occurred on October 31, 2019, where he had held her hostage by gunpoint in a bathroom. Despite that, a few weeks prior she let him back into her life, but just as a friend – not a partner. She could not recall that S had grab her head during the trial, pointing it toward the camera.

[397] She admitted to previously having been involved with child protection services (CPS) in Edmonton. The agreement with them in the past was if she was going to consume alcohol, she needed to leave the home. She recalled several incidents of domestic violence but was unable to confirm the suggestion that the CPS was involved in 2013 and 2014. She denied being intoxicated when A was born, in 2014, and denied having conditions of no-contact with J.W. at the time of A’s birth.

[398] She recalled that on New Years in 2017, J.W. fell down the stairs and was hospitalized. That night the children went to the mother’s aunt’s house as she needed them to be in a safe place.

[399] She also remembered a time when she was having access to her daughter E. The child’s father, J.L., called the police on the mother for taking E to Ottawa with J.W. According to the mother, J.W. was not “present”, he was just driving the car. The mother was jailed due to this incident. At the time, she was apparently four months pregnant with N. Three-year-old E had allegedly been begging her mother to go get her in Drummondville, so she did. She did not realise it was prohibited, believing there must have been a typographical error in the court order.

[400] The mother admitted that she had been criminally charged three times, resulting in no-contact conditions with J.W., including the knife incident described above. There was also an occasion when the police attended while the couple resided in Gatineau due to J.W.’s dog biting the mother’s throat. The mother denied this was due to an argument. The mother denied the possibility of the police attending her apartment 14 times, only the one time due to the dog incident. Apparently the mother completed probation and does not have a criminal record. She denied breaching the no-contact conditions.

[401] The mother agreed that there were pending charges against J.W. for him assaulting her, which resulted in the charge of assault cause bodily harm. She however indicated “he beat those charges”.

[402] The mother testified she was not seeking to attend addictions treatment but looking for treatment for her mental health due to depression. The mother went on to name the medications she was taking, including Naltrexone for her addiction’s cravings, diazepam, and lorazepam. The diazepam and lorazepam both make her sleepy. She has been on the diazepam for about three months due to panic attacks, and about 2.5 months for the lorazepam, which she takes for anxiety. She described last seeing her doctor about a month prior because of her recent frequency of attendances at the hospital due to injuries and her “hypochondriacism” because of Covid.

[403] The mother was asked if she had lived at approximately eight different residences since the Society’s involvement. She agreed with at least half of them, whereas other places she was “just visiting”. When it suggested that she lived with R.T. from March 2021 onward, she agreed, but then said she then moved back to her reserve, then with R.T., then the reserve, then R.T. again. She nevertheless disagreed that any delay to assess her housing was due to her moves. She said her plan was perfect, but the worker did not go see her. She was upset with the lack of communication from the Society from the beginning, including the lack of notification that her children were taken to a place of safety.

[404] She agreed that the number of times she and J.W. moved when they had the children in their care had an impact on the children, as did the frequent school changes. However, the children were always content. She felt at some points she had been stable, which was a priority to her with having children. She did not deny that the moves affected the services available for N.

[405] The mother agreed she changed her phone number twice over the last two years, but her mother and R.T. had always been her emergency contacts so she was still reachable.

[406] The mother described R.T. as a tow-truck driver. He is responsible for the rent in the apartment. He is 60 years old. In cross-examination, the mother admitted that they have been living together since September 2021. She admitted she did not tell Ms. Kolade from CFS that were residing together. Then she backtracked and indicated that R.T. was living in the basement until her mother moved out. Then she later said she did not advise the worker as in fact, they were not together at the time she attended, and has not had any contact with Ms. Kolade since approximately December 18th or 19th, 2021. When Ms. Kolade attended, R.T. was not living upstairs.

[407] R.T. has three adult children. He is single. He occasional drinks, having about 2-3 beers per night when he is drinking. He has told the mother he will stop drinking when they have the children in their care. The last time they drank together was about 1.5 months prior.

[408] The mother expressed no concerns about J.W. being around the girls, indicating that he had previously slapped the girls, but never sexually hurt them.

[409] The mother agreed that J.W. used to provide her drugs and alcohol when they were together, and there was a lot of fighting, but that never happened in front of the girls as they would be asleep. While there was some physical abuse, it was mainly mental and verbal abuse she suffered. At the time of her testimony, the mother was speaking to J.W. once or twice per week.

[410] It was the mother’s evidence that when they were together, she was primarily responsible for bathing the girls, though J.W. occasionally bathed them as well. It was suggested that she told the OPP that the father was responsible for bathing the girls as she was mostly out, however, at trial, the mother remained firm that it was N.A. who would have said that. The mother stated that unless she was consuming, she was present to bathe the girls because they had “female parts”.

[411] The mother participated in the original autism assessment but was not invited to participate in the assessment performed on N or A. She was only advised after the assessments had been completed.

[412] Contrary to L.T.’s evidence, the mother indicated N was bathing herself when she was seven years old, and both girls were able to brush their teeth and wipe themselves properly prior to going into care. A was more advanced than N, and at around 3.5 or four years old, she was able to brush her own teeth, and shower or bathe. When N was able to communicate, she was verbal about being proud of her abilities to wash herself.

[413] When asked about falling asleep during the trial, she blamed her medication as it made her sleepy. She also indicated that her medication made her slur some words. She denied consuming alcohol during visits. She took the medication prior to visits, not because the visits make her anxious, but because she did not want to have a panic attack in front of the girls.

[414] She agreed that the timing of the visits coincided with the time the girls would be getting out of school, around 3:00 p.m. mountain time. Her solution to the medication making her sleepy was to stop taking it if the children were with her. She rationalized that the medication was prescribed for her panic attacks and anxiety, and if the children were returned to her care, she would be able to cope without it. She agreed that prior to the children being taken into care, she was on antidepressants due to losing Au, which had also made her sleepy. However, her evidence was that she was coherent from 5:00 a.m. until 8:30 p.m., which was when the children went to bed.

[415] The mother did not believe taking care of two girls with special needs would be stressful.

[416] The mother was questioned about the Society’s plan of care, which she received via email and reviewed verbally with Ms. Sabourin on or about March 25, 2021. The mother did not seem to be aware of the Society’s request, as set out in the plan of care, that she seek treatment for alcohol abuse, or advise of change of family constellation. In fairness to her however, as discovered in re-examination, the plan of care was reviewed with her over the phone, when the mother did not have it in front of her. She believed it had been reviewed another time but could not recall when, but it was not in front of her for any of the reviews. Later in her evidence the mother denied receiving the document altogether.

[417] The mother was asked if she was able to ensure the visits remained positive if the Society was successful in their application. She agreed she would be, as it comes naturally to her as a mother to have positive visits. She would be able to remember there were visits scheduled as she was, in her view, consistent in confirming the visits the day prior.

[418] The mother advised she started a parenting program via zoom and had attended a couple of sessions. She denied previously refusing to complete a parenting course and testified she did not start such a course earlier as she was never asked, except right before court in September 2021 by Ms. Sabourin. The mother again denied seeing the request in the Society’s plan of care, indicating that she completed everything she started, especially when it came to her children.

[419] The mother’s evidence in cross-examination was that her addictions issues were not affecting her daily life.

[420] In cross-examination, the mother explained that she frequently turned off her camera during the zoom trial, despite a direction from the court to keep it on, as she had to go the bathroom. She explained she did not understand she could ask for breaks until later in the trial.

[421] When asked what kind of conditions should be imposed on her should a supervision be granted, the mother was prepared to agree to drug and alcohol screening, random check-in’s, maintaining her stable home, not being intoxicated in the presence of the children, attending an outpatient alcohol treatment program, and implied she would continue to see her psychologist and take her medication.

[422] The Society questioned the mother about their request that she attend four consecutive visits prior to the increasing access. The mother’s evidence was she had attended four consecutive visits with A, but the Society did not give her additionally access, though she was unable to recall when the four visits would have occurred. Between sobs, she apologized for not remembering, and indicated that her mental health would be stable once her babies were returned to her. She experienced a lot of emotions. She indicated her psychologist was aware that all she needed was her children to be returned home, and once that happened, she would get a lot better.

R.T.

[423] The mother’s partner, R.T. testified at trial. He confirmed he resided on 79th street, Northwest, Edmonton Alberta. He has lived at that address for four years and lived in Edmonton for 35 years. He rents out the basement to his adoptive son, and only his name is on the lease.

[424] R.T. is 60 years old. He has a grade 8 level of education but worked all around the world when working in the oil fields. From his perspective, the age difference between he and the mother, C.R. was not an issue.

[425] R.T. and C.R. live alone. They have been residing together since September 15, 2021, on the main floor. Prior to that, the mother and R.T. lived together in the basement, though she went back to Saskatchewan a few times between March and September 2021.

[426] For the past 2.5 years, on and off, R.T. had been running a tow truck- rescue towing. Some days he works late hours, other times he works 12 hours a day, five days a week. He picks up cars where they have been in an accident and takes them to an auction. He generally controls his own schedule but drives an average of 600 kilometres per day. He averages about $8,000.00 monthly. He might be interested in working oversees if jobs were available there, however things are unstable because of the war between Russia and the Ukraine. He testified his intention was to get his own tow truck so he would be able to get the girls to school. He clarified that being a tow truck driver was his secondary job, as he was primarily an oil-field consultant. But for Covid, he was scheduled to be working in “Bombay” [Mumbai]. In the past he worked a great deal oversees, and if the opportunity arose, he would need to talk about it with C.R. as the girls are his priority.

[427] R.T. has three grown children, aged 30, 27 and 26, and four grandchildren, aged between two and six years old. He sees his sons once per week, and his daughter, who is pregnant with her first child, a couple times per week, but speaks to them all daily. C.R. has met two of the children, who like her very much. R.T.’s family was family oriented, and their plan would be to involve his children and grandchildren.

[428] R.T. wished to provide support to the mother’s plan. He wanted to build her with “new energy” and get rid of all her current negative energy. He felt a lot of bad things had happened to her and was prepared to give her positive thoughts to get the girls back in her care, doing whatever he could to help her. He would assist C.R. financially and help with the children’s homework and routine. When the children have appointments, provided he is not working, he could assist the mother and help maintain the schedule so there are no missed appointments.

[429] R.T. was prepared to have the children reside with him. He and the mother agreed that there would be no drinking or smoking in the house should they be placed with them. His role would be financial, and if there was time to play, then they could play. The bus would pick up the children for school right outside his door, and he would help with appointments when he could, as well as if there were emergencies. The mother otherwise has a bus pass to transport them all. He expressed a desire to marry the mother in the future and help her with the children. He had observed the mother with his grandchildren and felt she had the “mommy skills”, though he had only seen her around children about once per week.

[430] In their home, the mother keeps the house clean and pays some rent.

[431] He felt that he successfully raised his own children, with his wife at the time, that he could assist with the mother’s children. Admittedly, R.T. was away oversees during his children’s youth about 300 days per year, but he was a very involved father when he was home. He ensured his children had all they wanted, not only material things, but love too.

[432] R.T. has observed the mother making headway with her issues and has seen her speak to her psychologist and doctor. He frequently provided her transportation. He remarked that the mother has been trying to get into a treatment program and was scheduled to commence a day program in March 2022. He was present when the mother made calls to attend treatment and indicated that the last place that offered her a spot the mother did not attend as it was a co-ed treatment centre. Given she had been beaten very badly not a long time prior, she had a fear of men, so she needed a women’s only treatment centre. R.T. felt that the day program scheduled to commence in March was a big step for the mother. In cross-examination, R.T. clarified the treatment sought was for the mother’s mental health, as opposed to addictions treatment. He was of the view that the mother had really slowed down on the alcohol use.

[433] R.T. met the mother’s psychologist once, and has spoken to him numerous times by telephone, usually when the psychologist was unable to get a hold of the mother. Occasionally, the mother’s phone did not work, and she was usually with R.T.

[434] R.T. was not present when the mother was assaulted in another house on January 9, 2022. He picked her up afterward and took her to the hospital. She had black eyes and bruises all over. C.R. was in the hospital for four days and had to attend this trial with two black eyes, a broken nose, and large bruises on her back. He remarked that “she was lucky he didn’t kill her”. During her convalesce, R.T. assisted her with the domestic chores. He believed there was no issue with her mental capacity following the incident, apart from being traumatized. R.T. testified that one of the mother’s friends, S, was responsible for assaulting her. Apparently, the mother and S had a long history, and when she went over to his place to visit, he went “nuts” and beat her up.

[435] When asked to describe the mother’s alcohol consumption, R.T. indicated she drinks a little now, but had come a long way from when he met her about a year prior. At their first meeting, he indicated that they each had one beer. Now, the mother was not drinking.

[436] The mother was handling her emotions better, but when she was assaulted, she was crying all the time and afraid to go out because the person who assaulted her knew where she lived. She has however gone to her mother’s house and the shopping mall, and takes walks with R.T. C.R. sees her mother weekly. Apart from physical pain, he had not observed the mother’s crying preventing her from doing anything.

[437] When asked to comment about the mother’s alcohol consumption, R.T.’s evidence was she had not drank in two weeks. When she did drink, she had drank “a mickey- a small bottle of liquor, over the day, like everyone else” of vodka. He clarified a mickey was half of a 26 oz bottle. He too was drinking beer that day but did not start drinking until the end of the day and capped his drinks at 2 beers. He usually only drinks Friday nights, though not weekly. He was of the view that he did not have a drinking problem, though he acknowledged a conviction for impaired driving from 2000.

[438] In cross-examination, R.T. indicated he had seen the mother drinking at least ten times in the last six months. He had never seen the mother use drugs, and he did not use drugs.

[439] R.T. discussed the time when he tried to wake up the mother for court. It was his evidence that it did not occur frequently, but she was under stress due to the trial and her injuries.

[440] He knows N.A. and indicated there was no conflict between them. He knows J.W. but does not have a current relationship with him. He would have no difficulty meeting with social workers or them going to his home, and he would be comfortable speaking with the workers regarding any concerns involving the children or the mother.

[441] In cross-examination, R.T. confirmed that he did not have any knowledge of the children’s special needs. He had no concrete experience with children with special needs apart from having a few friends who have children with special needs. He was of the view that children with special needs just need to be loved, and the adults had to adjust to meet their needs. If possible, he would assist financially for the cost of services.

[442] R.T. had not been assessed by Child and Family Services but passed his police clearance.

[443] R.T. indicated that the mother had obtained her “Indigenous identification”, presumable referencing her status card.

[444] R.T. was aware that social workers went to his home when the mother and N.A. were present, but he was working. He was living upstairs with both at the time. When asked, his evidence was N.A. moved out because she wanted her own space, but that was an amicable move. He was never physical with any member of the opposite sex, including N.A. and the mother.

[445] In cross-examination, R.T. testified that the police had not attended his home except for 18 months prior due to a misunderstanding with the previous upstairs tenants, who were eventually evicted. They did not attend during the Christmas holidays. His relationship with N.A. was good, and there was no argument over the holidays. He did however recall a time when ambulance and police attended their home due to the mother hallucinating, where the mother was brought to the Grey Nuns hospital.

[446] The mother and R.T. have argued in the past, but it had never turned violent. He once threatened to kick her out as the mother was angry all the time due to court. On or about December 24th, 2021, the mother got angry and then left for a couple of days. He did not ask the mother to leave on January 21st, 2022. He was not aware of any request by the mother for emergency housing on that date.

Findings

(i) Statutory Findings

[447] Pursuant to section 90 (2) of the CYFSA, the court must make several statutory findings prior to determining whether the children are in need of protection. The court must make findings regarding:

a. The children's names and ages;

b. Whether their children are First Nations, Inuit, or Métis children, and if so, what are the children's bands and/or First Nations, Inuit, or Métis communities, if any.

c. Where the children were brought to a place of safety before the hearing, a finding regarding the location of the place from which the children were removed.

[448] The children's particulars were confirmed by both parents. The father confirmed the children’s particulars in the signed SAF, whereas the mother's trial evidence confirmed their particulars.

[449] Through the SAF and as corrected on the record though counsel, the father confirmed that the children were removed from his care on December 13, 2019 and brought to a place of safety. This removal occurred following a series of disclosures from the children that they had been touched sexually inappropriately.

[450] As noted by Madsen J. in Children’s Aid Society of the Regional Municipality of Waterloo v. N.H., 2021 ONSC 2384, at para. 81(a), “[u]nder the CYFSA, identification of a child as a First Nations, Inuk, or Métis child is not dependent on "status" within the meaning of the Indian Act, R.S.C. 1985, c. I-5, and is much broader than under the predecessor provincial legislation, the Child and Family Services Act, R.S.O. 1990, c. C 11. A child will be a First Nations child in circumstances that include the following: a child or parent identifies the child as a First Nations child; the child is a member of or identifies with one or more First Nations, Inuit, or Métis bands; or, there is information that demonstrates that a relative or sibling of the child identifies as First Nations, Inuit, or Métis; or, there is a connection between the child and a First Nations, Inuit, or Métis community: see O. Reg 155/18, at s. 1.”

[451] The evidence was that the mother and Maternal Grandmother are members of the Muskeg Lake Cree Nation in Saskatchewan and identify as First Nations.

[452] While neither the mother nor the children have “status” with the Muskeg Lake Cree Nation in Saskatchewan, that is not required for a finding under the CYFSA. Here, the children have been identified by both their parents as First Nations children.

[453] This court finds that the children’s particulars are the following: N.C.L.W. was born [omitted] 2010. C.R. and J.W. are her mother and father. In consideration of s.90(2) CYFSA and O.Reg.155/18, the court finds the child is First Nations, and her band is the Muskeg Lake Cree Nation in Saskatchewan.

[454] The child A.G.W. was born [omitted] 2014, C.R. and J.W. are her mother and father. In consideration of s.90(2) CYFSA and O.Reg.155/18, the court finds the child is First Nations, and her band is the Muskeg Lake Cree Nation in Saskatchewan.

[455] Both children were removed from their father’s care, in the Prescott-Russell jurisdiction.

[456] Given that these children are First Nations children, this case engages both the applicable CYFSA and Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (S.C. 2019, c.24) (the “federal legislation”), which was assented to June 21, 2019.

(ii) Finding in Need of Protection

[457] The paramount purpose of the CYFSA as set out in s. 1 is to "promote the best interests, protection and well-being of children". The CYFSA is remedial legislation and should be interpreted broadly with a view to achieving this purpose: Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, at para 17.

[458] The structure of a child protection application under the CYFSA is a two-step process. Prior to turning to disposition, the court must first determine if the child is in need of protection under s. 74(2) of the CYFSA. In accordance with s. 93(2) CYFSA, evidence relating only to disposition shall not be considered in determining if the child is in need of protection.

[459] The Society advances that the children are in need of protection pursuant to section 74(2) (c); 74(2)(d); 74(2)(e); 74(2)(f); and 74(2)(h) of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1:

74(2) A child is in need of protection where:

(c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child;

(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c);

(e) the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment, or, where the child is incapable of consenting to the treatment under the Health Care Consent Act, 1996 and the parent is a substitute decision-maker for the child, the parent refuses or is unavailable or unable to consent to the treatment on the child’s behalf;

(f) the child has suffered emotional harm, demonstrated by serious, (i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[460] In short, the Society sought finds that the children are in need of protection due to the children having been sexually abused or failure to protect them from being sexual abused or risk of same; that there was a failure or refusal to provide or access treatment on behalf of the children; that the children have suffered emotional harm or delayed development as a result of the actions, inactions or pattern of neglect by the parent(s) or a risk thereof.

[461] The Society’s evidence centers around their concerns regarding:

a. Allegations of sexual abuse or risk of sexual abuse;

b. Emotional harm or risk of emotional harm;

c. Failure or refusal to provide treatment to the children, which includes their school attendance and residential instability;

d. The children’s exposure to domestic violence or domestic conflict;

e. Alcohol and/or drug addictions; and

f. The mother’s mental health.

[462] The onus rests on the Society to demonstrate the grounds for the finding(s) that the children are in need of protection, such onus must be proven on a balance of probabilities.

[463] As set out in the SAF, the father conceded to a finding being made that the children are in need of protection, subject to this court’s determination, pursuant to s.74(2)(h) CYFSA, that there is a risk that the children are likely to suffer emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviours, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the children’s parent or the person having charge of the children.

[464] The mother conceded that a finding could be made regarding risk of physical harm pursuant to s. 74(2)(e) CYFSA due to the father’s failure to address their significant medical issues.

[465] For reasons set out below, I am of the view that findings can be made that the children were and are in need of protection pursuant to s.74(2)(e) CYFSA; 74(2)(f) CYFSA; and 74(2)(h) CYFSA. I decline to make a finding on the other grounds raised by the Society as I am of the view that the Society has not met its onus on those other grounds.

Allegations of sexual abuse or risk of being sexually abused

[466] The Society seeks a finding that the children are in need of protection due to the children being sexually abused by their father. To support their claim, they rely on the children’s disclosures coupled with the father lying to Ms. Seguin about bringing A to get medical attention for her discharge.

[467] Both parents dispute the finding being made on these grounds. For reasons upon which I elaborate below, I am not prepared to make a finding in this regard. I will start by reviewing the disclosures, followed by my concerns.

Children’s disclosures

[468] As mentioned above, admitted into the trial as utterances made by the children are statements made by both girls, separately, to the effect of “daddy touched my peepee” and/or “daddy touched my bum”. Though further details were elicited over the passage of time, such as the use of “finger” or “fingers” being inserted in her “peepee”; that N.D. and/or M were occasionally mentioned as being involved or a perpetrator, and/or locations, the utterances were never more precise.

[469] Ms. Seguin’s evidence was that the children used the word “peepee” when referencing their vagina, even after being taught the proper name.

[470] Ms. Seguin’s evidence was she had a duty to report to the police every time there was a disclosure. Ms. Seguin called the police six times regarding disclosures made by A, and five times regarding N’s disclosures. Ms. Seguin testified that generally, but for involving M in the utterances at the beginning, the disclosures were consistent.

[471] The utterances were made not only to Ms. Seguin, but also to a teacher, the foster mother and the foster mother’s mother, M.T.

[472] The statements to the teacher, K.I., led to the children being brought to a place of safety. As noted above, those utterances were by A, where she told K.I. “daddy touched my peepee and (or) my bum, and I didn’t like it” and then said, “N.D. and daddy touched my peepee and (or) bum and I didn’t like it.”

[473] The children also made statements to the foster mother, L.T. regarding inappropriate abuse. On or about February 18th, 2020, both A and N made utterances to the effect that their father and/or N.D. put their finger and/or touched her bum and/or peepee. Both children indicated that it had hurt. A also indicated that both N.D. and her father had hit her. A’s first disclosure was spontaneous, during a bowel movement, in the bathroom, following which she was extremely emotionally fragile, sobbing uncontrollably and clingy. During the initial disclosures, when L.T. was trying to calm A, N occasionally piped up, confirming A’s utterances. A was seen gesticulating, demonstrating with two fingers toward herself.

February 19, 2020, interview

[474] The following day, February 19, 2020, the children were interviewed by Ms. Seguin because the assigned police officer was going away for training. It is not clear why another police officer with the proper experience did not perform this interview, particularly as Ms. Seguin only had basic training from the beginning of her employment regarding interviewing children. The interview took place with the children and foster mother, L.T., in the same room.

[475] Ms. Seguin interviewed A, with the foster mother present to interpret as Ms. Seguin had a hard time understanding the child. Ms. Seguin determined it was appropriate to have N in the same room as A when A was being questioned, having sought permission to do so by her supervisor at Valoris. After interviewing A, Ms. Seguin proceeded to question N, with the foster mother and A still in the room. When asked in cross-examination if she had special training to interview children with special needs, her evidence was that no such training exists in this area – not for Valoris, and not for the police. Ms. Seguin did not ask any clarifying questions to the children to ascertain if the touching could have been related to general hygiene issues.

[476] Ms. Seguin testified the interview was recorded. That recoding was dropped off at the police station in February 2020. The Society was thereafter unable to retrieve the video from their system, and despite attempts to secure same in police disclosure, it was never provided to counsel. However, a typed supplementary occurrent report with the general point-form notes was provided to counsel.

[477] Ms. Seguin admitted that a lot of the words used by the children during the February 19, 2020, interview were incomprehensible, so she did not understand what she was being told by them. According to L.T., she not only translated what the children said to the worker, but also provided translation to the girls as they had difficulty understanding “who/how” questions. L.T. reformulated the questions, such as “what Ms. Carolyn means is…” L.T. also provided the children with suggestive prompts. Though she could not recall what she said, she indicated that when a child would say “all day”, she would rephrase and ask if they meant it happened a lot, or more than once.

[478] Given the missing video recording, the interpretation issues, the prompting, and the leading questions, I am not prepared to give any weight to the February 19, 2020, disclosures.

[479] On November 1, 2020, A disclosed to L.T. that her father used to shower with her when they resided with N.D. No further questions were asked of A. However, when N then went up to shower, L.T. asked N questions to help her understand what A had disclosed. L.T. recalled telling N that A told her their father would shower with her. N responded with “yep”. When L.T. asked further questions, N’s demeanor and body language changed. N told L.T. that she had to shower with daddy, that it made her feel bad, that he had no clothes on and said his vagina was hairy but looked different. She said she did not like the way her father washed her, as he would wash the inside of her vagina with one finger, and it hurt. She said that it happened ‘all days”. In cross-examination, L.T. agreed that her role as a foster parent was to create a safe place for the children to make disclosures, comfort them if they made disclosures. She disagreed however that the children would get more attention for having made disclosures than they regularly got from the foster family. L.T. clarified that N had just learned about her own body parts and the proper names for parts for girls and boys.

[480] Shortly thereafter, on the same day, N made an utterance to L.T.’s mother, M.T. to the effect that “daddy hurt me in the shower, and it made me sad.”

[481] On June 25, 2021, Ms. Seguin recorded an audio-video taped conversation (Exhibit 14) between herself and A, where A could only be heard, not seen, and Ms. Seguin was only partially observable. This video was made following A going to the police station where no concerning statements were provided to police, despite allegedly making utterances about her father to L.T. after being caught masturbating. The video revealed the worker asking extremely leading questions to the child. The court appreciates that the intent was to record A making concerning disclosures. However, the manner in which the video was taken (without any meaningful video) was troubling, and the worker’s intonation in response to some of A’s statements was exceptionally suggestive and leading. For instance, when A told the worker that “daddy and mommy touched my peepee”, the worker’s inflection seemed to influence the child’s disclosure as she quickly changed her words to “daddy touched my peepee”.

[482] Given these concerns, I am not prepared to place any reliance or weight on the June 25, 2021, audio-video recording.

Analysis

[483] I accept that children have made utterances which may been interpreted to establish they were sexually abused. The children’s statements referenced being touched by the father, his partner N.D., and her son, M.

[484] Based on the totality of the evidence, I am persuaded that the children were both inappropriately touched in a sexual manner.

[485] However, I am left with doubt as to the perpetrator for several reasons, including but not limited to what follows.

[486] When the first disclosure was made, and since going into care, it was established that both children had significant speech and language delays, making it very difficult to understand what they were saying.

[487] Following them going into care, the children have been interviewed by the police on several occasions and they have been over-interviewed by Ms. Seguin, to the point that apparently the police told Ms. Seguin to stop questing the children.

[488] Having had the opportunity to hear the audio/visual recording made by Ms. Seguin, I am deeply concerned about what leading questions may have been asked in the past, as well as what tone she may have used to influence any of the children’s answers. I am troubled by Ms. Seguin interviewing the children in the presence of each other, and the foster mother. I am concerned that L.T.’s evidence was it took “months” for her and her husband to understand what the children were saying, yet she was the “interpreter” for Ms. Seguin just two months following the children going into care.

[489] Further, as evidenced by L.P., the occupational therapist and A.K., pediatric mental health social worker, the foster mother asked for help regarding the children’s propensity to lie. L.T.’s evidence however was that the “misrepresentations” were about avoiding getting out of trouble or to make people happy. L.T.’s evidence was that the children never lied about serious issues and indicated they had very distinct behaviors when they lie. I am not persuaded this last statement to be accurate, though again, I believe that the children have been sexually abused – I just cannot, on a balance of probabilities, conclude it was the father.

[490] Given the above, on a balance of probabilities, with the onus being on the Society, I am not persuaded the grounds for 74(2)(c) CYFSA have been made out.

[491] Additionally, while there is evidence of M being charged as a result of the allegations, there is insufficient evidence to conclude that the father permitted or was aware of the occurrences while the children were in his care. There is no evidence that the mother would have had any knowledge of the occurrences. Ultimately, I am not persuaded that 74(2)(d) CYFSA has been established.

s.74(2)(e), (f), and (h) CYFSA: failure to provide treatment or access to treatment and/or emotional harm and/or risk of emotional harm

[492] As noted above, the Society seeks a finding that the children are in need of protection due to a failure or refusal to provide or access treatment, emotional harm and risk of emotional harm. I am of the view that in this case, the facts require these three issues to be analyzed together.

[493] Pursuant to section 74(2)(e) CYFSA, the Society advanced that when the children were with their parent(s), they failed to obtain or access the necessary treatment for the children. Section 74(2)(e) CYFSA states that a child is in need of protection where that child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent does not or refuses to provide treatment or access to treatment.

[494] To establish a finding under Section 74(2)(f), the Society must establish that the child has suffered emotional harm, demonstrated by serious, (i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[495] For a finding under clause 74(2)(h) CYFSA, risk of emotional harm, the Society must establish prescribed symptoms of emotional harm and must show a real likelihood of harm on a balance of probabilities. The degree of harm must be serious and must be connected to the parenting. Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458 and Children's Aid Society of Algoma v. A.B.,2018 ONCJ 831: Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 369 at para. 208.

[496] Section 74 (2) (h) is a ground that involves risk of emotional harm to the child. Therefore, it looks to the future. The type(s) of harm, the degree of the harm, and the causal connection of the harm to the mother’s or father’s conduct, pre-requisites for a finding under (h) grounds, are all necessary for the Society to prove to the court that it has met the test with respect to this ground. Although no actual emotional harm symptoms are needed to be shown, the Society cannot rely only on the existence of reasonable grounds to believe that a risk exists. This ground requires the society to show that the risk does exist, and to do it on the balance of probabilities. “Risk” has been said to mean “more likely than not”: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, at para. 17.

[497] In its evidence, the Society must first establish that there is a risk that the child will suffer at least one of the emotional harms found in 74(2)(f), being anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development. Second, that the degree of the harm is one that is serious, as opposed to minimal, mild, or moderate. Third, it has to establish that the risk of whatever emotional harm it is alleging, is causally connected to, or “resulting from”, the parents, and specifically by the actions, failure to act, or pattern of neglect of these parents: Children’s Aid Society of Algoma v. A.B., 2018 ONCJ 831, at paras. 13 to 15.

[498] Sometimes, the evidence of a child's distressed reactions to parental behaviour is sufficiently clear that a finding of a risk of emotional harm can be made without the opinion of an expert. See: Children's Aid Society of Ottawa v. P.Y., (2007) 2007 CanLII 14325 (ON SC), 2007 O.J. No. 1639 (Ont. S.C.J.); Catholic Children's Aid Society of Toronto v. S.E., 2016 ONCJ 279, at para. 94.

Analysis:

[499] The mother conceded to a finding that the children were at risk of physical harm due to the father’s failure to address their significant medical issues. The mother did not dispute that the father failed to provide the children the proper care. However, she took the position that when they were together, the children’s needs were being met.

[500] The father conceded that a finding could be made pursuant so 74(2)(h) CYFSA, that there is a risk that the children are likely to suffer emotional harm.

[501] The Society advanced that the children have suffered emotional harm, as set out in s.74(2)(f) CYFSA based on evidence of their special needs, which include their delayed development, N’s diagnosis of reactive attachment disorder (RAD) and A’s diagnosis of disinhibited social engagement disorder. I have already rejected the foundation for N’s RAD diagnosis and will discuss it no further.

[502] I am of the view that the girls have special needs and have delayed development. Prior to going into care, N had been diagnosed with autism spectrum disorder. The evidence shows she was receiving services for ASD.

Exposure to Domestic Violence and/or Conflict

[503] Whether the child has suffered emotional harm from a parent's actions, includes potentially from exposure to domestic violence (s. 74(2)(h)): Windsor-Essex Children's Aid Society v. E.W., 2020 ONCA 682 (leave to appeal refused, 2021 CarswellOnt 7363 (S.C.C.), 2021 CarswellOnt 7364(S.C.C.)).

[504] It is not necessary for the Society to prove an intention to cause the child harm before finding that a child is in need of protection. A pervasive pattern of exposing a child to domestic abuse is sufficient: Children's Aid Society of Niagara Region v. P. (T.), (2003), 2003 CanLII 2397 (ON SC), 35 R.F.L. (5th) 290 (Ont. S.C.J.); Jewish Family and Child Services v. K.(R.), supra, at para. 28.

[505] As set out in Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, a parent’s repeated pattern of partnering with physically abusive partners, which has exposed a child to domestic violence, is a ground for finding that a child is at risk of likely suffering physical harm and is in need of protection under s.74(2(b)(i) and s.74(2)(b)(ii) of the CYFSA: Children’s Aid Society of Algoma v. J.B., at paras. 47 to 49.

[506] Verbal abuse, aggression, and inappropriate situations that children are exposed to can constitute risk of physical harm: Catholic Children's Aid Society of Hamilton v. S.(L.), 2011 ONSC 5850, at para. 380.

[507] Domestic violence places children at risk on a number of levels. Witnessing violence perpetrated against the mother may have an abusive and detrimental impact on a child's development. Children may feel guilty, blame themselves and feel depressed. They can develop fears, insecurity, and low self-esteem as a result of witnessing domestic violence. They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss: See Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274, [2005] W.D.F.L. 3688 (Ont. C.J.), affirmed on appeal November 25, 2005 (Ont. Sup.Ct.), further affirmed at, (Ont. C.A.), permission to appeal to the Supreme court of Canada denied, (S.C.C.); Jewish Family and Child Services v. K.(R.), 2008 ONCJ 774, at para. 29.

[508] As set out by Bale J. in Catholic Children’s Aid Society of Hamilton v. I.B., 2020 ONSC 5498 at paras. 163 to 165:

Children of parents in abusive relationships have been found to be in need of protection by many courts, and the negative impact of children's exposure to domestic violence is well-documented, including for example: insecure attachments, aggressive and antisocial behavior, poor academic performance, propensity for delinquency, peer violence, conflict and suicidality: Children's Aid Society of Hamilton v. C.G. and S.B. 2013 ONSC 4972 at para. 157.

Domestic violence is not limited to physical assault: it embraces a range of behavior which includes mental and emotional abuse, with implications that spill-over to children. The environment in such households is frequently chaotic, volatile, escalating, charged and degrading and the exposure of children to such an environment on a pattern basis is devastating to their development: Children's Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2009 ONCJ 70 at para. 75.

In order to militate against such a finding the court may require evidence demonstrating that the abused parent understands the cycle of abuse and has broken the pattern, for example by seeking counselling, leaving the relationship and moving to a safe location. An abused parent's continuing failure to leave an abusive relationship may well be a reason for placing the children in extended society care: Children's Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 at para. 100, Children's Aid Society of Ottawa v. E.L., 2019 ONSC 3724 at para. 94. The child's opportunities for a permanent and stable placement should not await the time that might be required to establish that the risk to the child has been satisfactorily addressed: Children's Aid Society of Toronto v. S.A.C., supra.; CCAS v IB et al, 2020 ONSC 5498, para 163-165

Analysis

[509] The evidence as I find it at trial supported a finding that the children were exposed