COURT FILE NO.: FC-08-FO-130-02

DATE: 2023-04-03

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and 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.: FC-08-FO-130-02

DATE: 2023-04-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Child and Family Services of Grand Erie

Applicant

– and –

H.Z. and T.J.

Respondents

D. Clarke for the Applicant

E. Kiernan, for the Respondent Mother

HEARD: October 3-11, 2022 and January 23-24, 27, 2023

CORRECTED DECISION: April 3, 2023 – Names of parties and identifying details have been anonymized. There has been no change in content.

K. Bingham J.

[1] This trial concerned two children, O.J (“O”) (age three) and G.T (“G”) (age two). The Society sought an order for extended society care with no access. The Mother sought the return of the children to her care, subject to the supervision of the Society with or without a period of interim Society care prior to the placement of the children in her care with supervision.

[2] The Society has been involved in the Mother’s life for a long time. The Mother has older children who were placed in the extended care of the Society, with the Mother’s consent. Likely because of this, the Society decided early on in these children’s lives that they could not be returned to the Mother. The Society failed to meet its obligation to increase and expand the Mother’s access, even when the Society itself assessed that it would be appropriate to do so. This inaction on the Society’s part caused frustration for the Mother, limited the possibility of a constructive working relationship and increased the conflict between the Mother, the children’s caregivers and the Society. The Society relied on the conflict to confirm its original decision that the children could not be returned to the Mother.

[3] This Court’s decision will cause significant disruption to the children, their caregivers and to the Mother. The Court hopes that all of the adults involved in the children’s lives will recognize that the wellbeing of the children must be prioritized and that they will work cooperatively and constructively to move forward.

Brief Overview and Chronology

[4] The parents in this matter are the mother, H.Z., and the father, T.J. I refer to them as the Mother and Father throughout this decision. The parents do not live together. They maintain contact with one another and the Mother testified that they have a platonic relationship.

[5] The Father did not participate in the litigation. He has been noted in default.

[6] O, age three (now age four) and G, age two are the children of the Mother and Father. The trial was about them.

[7] The parents have an older daughter, T. T was placed in the extended care of the Society on February 11, 2019, pursuant to a Consent reached between the Mother and the Society. The issue of access between the Mother and T went to trial and an access order was not made. T has been adopted. O is placed in the same home as T and O’s caregivers wish to adopt her too.

[8] The Mother also has two older sons, J and M. Their father is deceased. J and M resided with the Mother until October 2017 when the Mother was required to leave her parent’s home. She did not have appropriate accommodation for J and M and they were brought into the care of the Society. When the Mother still had not secured appropriate accommodation in early 2019, the Mother consented to an order for extended care for these children, and the order was granted February 11, 2019. At the trial on the issue of access, an order was made that there be access between the Mother and J and M. J and M reside with the Mother’s sister, Ms. B.

Trial Process

[9] The trial in this matter commenced October 3, 2022 and continued until October 11, 2022. During that period of time, the Society and the Mother called evidence in support of their respective positions. Neither party called all witnesses listed on the Trial Scheduling Endorsement Form.

[10] On October 11, 2022 I concluded that the Society had not made out its case for the disposition sought. Similarly, because the Mother’s time with the children was limited to two hours per week and because the evidence showed that the Society had not expanded her time with the children despite its own intention to do so, the Court was not in a position to be satisfied that returning the children to the Mother subject to terms of supervision would be adequate to ensure their protection or in their best interest.

[11] I advised the parties that I was prepared to make the identification findings with respect to the children and that I was satisfied that the Society had proven that the children were in need of protection. On the issue of disposition, I adjourned the trial.

[12] During the period of the adjournment, I issued a temporary order which provided that the Mother was to have increased access with the children. The relevant terms of the October 11, 2022 order are as follows:

i. Commencing immediately:

1. The Respondent Mother shall have access with the children at least three times per week for at least eight hours per week. This shall include the Respondent Mother’s currently scheduled supervised access at the Society.

2. The remainder of the Respondent Mother’s time with the children shall be unsupervised but shall occur in the community (Early On, library, recreation centre, park etc…) unless agreed to in advance between the Society and the Respondent Mother.

ii. Commencing November 14, 2022:

1. The Respondent Mother shall have access at least three times per week for at least 16 hours. One of the Respondent Mother’s visits shall be an eight hour visit on a Saturday or Sunday.

2. The Respondent Mother’s time with the children shall be unsupervised and there shall be no requirement that it occur in the community, except that the Respondent Mother’s currently scheduled supervised access at the Society may continue.

iii. Commencing December 26, 2022:

1. The Respondent Mother shall have access at least three times per week for at least three hours per visit. One of the Respondent Mother’s visits shall include an overnight visit on the weekend. If the Respondent Mother and the Society cannot agree, the overnight visit shall occur from Saturday at 3:00 p.m. to Sunday at 3:00 p.m.

iv. The Respondent Mother and the Society shall discuss the plan for the visits at least 24 hours in advance, including the location where the visits shall occur.

v. The Society shall be permitted to attend the Respondent Mother’s access to observe her interactions with the children. The Respondent Mother shall cooperate with the Society and provide them with information to allow them to attend the visits on a scheduled or unscheduled basis.

vi. If the exchanges are facilitated between the children’s current caregivers and the Respondent Mother, only information with respect to the children’s needs at the visit shall be exchanged.

vii. The Respondent Mother shall not for any portion of access:

1. Engage in conflict with any individual;

2. Allow the children to be in the company of any person not approved of by the Society in advance;

3. Use any form of physical discipline on the children;

4. Behave in a verbally or physically threatening manner towards the children or any other person.

viii. The children shall not have contact, either by telephone or in person, with the Father during the Respondent Mother’s time with the children unless approved in advance by the Society.

b. Should either the Society or the Respondent Mother need to speak to this matter during the adjournment period, they shall contact the Trial Coordinator to arrange a virtual appearance. The Trial Coordinator shall be permitted to add this matter to my list at 9:15 a.m. on any day that I am sitting.

[13] The trial resumed January 23, 2023 as scheduled. As required, the Society filed additional affidavit evidence and the affiants were cross-examined. The Mother gave additional evidence and her physician and pastor also attended as witnesses.

[14] When the trial resumed January 23, 2023, it became apparent that terms of the October 11, 2022 order that provided for the Mother’s overnight visits with the children had not been followed. The Mother’s expanded access had occurred up until the final expansion, which was to commence December 26, 2022 and include a weekly overnight visit. The Society refused to permit the overnights to occur. The daytime portion of the overnight visits did not occur. The Mother continued to have the increased access set out in phase 2 of the October 11, 2022 Order.

Findings

[15] The identification findings were agreed to between the parties and are set out in the terms of this Final Order.

[16] All parties agreed that the children are in need of protection but disagreed with respect to the grounds of protection.

[17] The Society’s position is that the children are in need of protection pursuant to sections 74(2)(b)(i) and (ii) and section 74(2)(h) of the Child, Youth and Family Services Act (“CYFSA”). The Mother’s position is that the children are in need of protection pursuant to section 74(2)(b)(i).

[18] The protection concerns advanced by the Society when O was born include that the Mother was involved with the Society in relation to her three older children at the time, the Mother did not advise the Society that she was pregnant with or had given birth to T, that she was asked to leave her parent’s home in October 2017, was unhoused for a period of time and only recently agreed to reside at a women’s shelter, there were concerns with respect to her access with the older children, she was hostile towards Society workers and there was a report that she had tested positive after a urine test during O’s delivery for ecstasy and MDMA. The second drug screen was negative and there is no evidence that the Mother has ever used substances. It appears that the positive report was an error and substance use is not a historic or current concern with respect to the Mother.

[19] When G was born, the protection concerns relied upon included the Mother’s failure to advise the Society of her pregnancy with G and the Mother’s history with the Society, although she had maintained appropriate housing between O and G’s birth and, until the onset of the pandemic, was having positive access with O.

[20] The Mother did not disclose her pregnancy with G to the Society, despite being asked by Society workers if she was pregnant. The Mother’s evidence is that she learned she was pregnant with G at the end of March, beginning of April 2020 – after the commencement of the pandemic. When she learned she was pregnant, she made plans to place G for adoption with a private adoption agency. When G was born, the Mother did place him with the adoption agency. Approximately a month after his birth, her plan changed and she decided to put forward a plan for G. It was at this time that the Protection Application with respect to G commenced.

[21] The Mother does not have a criminal record or any concerning police involvement. With the exception of the hospital social workers at the time of O’s birth, a service provider has not contacted the Society to report concerns about the Mother’s parenting of O or G. The Society does not have concerns about substance use and there are no concerns about people with whom the Mother associates.

[22] I find that the children are in need of protection pursuant to sections 74(2)(b)(i) and (ii) of the CYFSA. When the Society intervened with respect to these children, there were concerns about the Mother’s housing and ability to maintain stable housing, her interactions with Society workers, conflict with her family members and her ability to care for and protect the children.

[23] I do not find that the children are in need of protection due to a risk that they are likely to suffer emotional harm. There is no evidence that the children are at risk of suffering emotional harm and there is no evidence that at the time of the Society’s intervention with these children or subsequently during their interactions with their Mother that these risks arose.

[24] The evidence that supports my conclusions with respect to the finding in need of protection is set out below. I have not referred to every piece of evidence heard, but I have considered the totality of the evidence.

[25] The Society was briefly involved with the Mother when J was a baby and there was an investigation with respect to physical harm to the child. This concern was not verified. J was in care for five days and was returned to the Mother subject to the supervision of the Society. I did not hear further details with respect to the Society’s involvement with the Mother when J was a baby.

[26] The Society’s next involvement with the Mother began in September 2014 following an investigation with respect to lack of supervision regarding the oldest boys. The Society remained involved through to 2017 because of J’s behavioral difficulties at school. The Society’s view of the Mother’s actions during that time is that she was not compliant with the recommendations of the Society and the school board. Although the Society’s evidence was that during this time the Mother was difficult to engage and was quick to shout and yell, the Society did not seek a supervision order and noted in September 2016 that there was improvement; J was taking his medication and his behaviours at school were improving.

[27] On June 16, 2017 the Mother gave birth to T. She did not advise the Society that she was pregnant or that she had delivered a child, despite meeting with the worker only a few hours after T’s birth. The Mother’s evidence is that she had been diagnosed with a cyst in January 2017 and was not aware that she was pregnant until presenting at the hospital prior to the birth.

[28] T was brought into the care of the Society and a protection application with respect to T was commenced. The boys remained in the Mother’s care.

[29] During this time, there was also conflict between the Mother and her family. In October 2017 the Mother and boys were asked by her parents to leave the family home. While the Mother disputes the Society’s evidence that she refused to go to a shelter with the children, it is undisputed that she did not have a place to take the children in October 2017 and the boys were brought into the Society’s care.

[30] During this period of time, the Mother struggled to work with the Society. There were multiple concerns with respect to her interactions with workers, (becoming angry and losing control of her emotions) as well as concerns about her supervision of the children during visits. Additionally, the Mother did not have a residence.

[31] During this time, the Mother was not able to maintain her composure and would regularly escalate when engaging with the Society workers. There were also periods of time when her access with the children was suspended.

[32] As a result of the Mother’s behaviours towards Society workers, the Society implemented a safety plan where it was decided that all meetings with the Mother would occur outside of the agency; either at the Simcoe courthouse, or the Norfolk OPP station. Additionally, the Mother was required to have a support person present during her visits with the children, which were already supervised by one, at times two, workers.

[33] On January 4, 2019 the Mother advised the Society that she was pregnant with O. At the time the Mother advised the Society of her pregnancy with O, the concern about her hostility towards the Society workers was ongoing. During this time period, there was a safety plan in place and two workers were present for meetings with the Mother.

[34] The Mother sought prenatal care for O at 28 weeks pregnant, when she testified that she learned she was pregnant, and attended appointments throughout the remainder of her pregnancy.

[35] During its work with the Mother following O’s birth, the Society asked the Mother to complete one month of random drug testing, which was negative, and complete an assessment of her mental wellness, stability and ability to parent her baby. The Mother’s doctor did not feel that a mental health assessment was medially indicated. There was no evidence of the Society’s proposal with respect to a third-party assessment of her ability to parent.

[36] After O’s birth, the Mother was having access with O at the EarlyOn centre and at the Children’s Aid Society in Kitchener. At the Kitchener visits, the Mother spent time with O in the family access room. Her visits were supervised, but the level of supervision was not as high as it had been with the older children and the Society workers were concerned that the Kitchener supervisors were not making notes of the visit.

[37] Prior to the commencement of the pandemic, the Mother was having access three times per week with O. The access was going well. The Society sought to increase the visits and expand them into her home.

[38] In addition, the Mother’s interactions with workers had improved. Her family service worker at the time testified that there was a decrease in her level of hostility towards workers.

[39] Although the Society was prepared to move the Mother’s access with O into her home, the Mother was not prepared to have the access in her home because of her concerns with respect to the odours coming from adjacent units (neighbours using marijuana and a separate unit that smelled of cat urine). The Mother testified that the odour from the cat urine was so significant that she required medical attention and was prescribed puffers to address her symptoms.

[40] The Mother’s perspective is that she was being child focused. On one occasion M had attended the apartment and made a comment about the smell. The Mother was concerned about O’s comfort and was working to try and rectify the issue with the support of Women’s Services and the landlord.

[41] It is unfortunate that the Mother declined the expansion of her access. Regardless, the onset of the pandemic put all access on hold.

[42] The Society was initially prepared to have the Mother’s in person access begin in August 2020 to occur once a week. However, during the intervening time period, the Society became concerned about the Mother’s ability to be honest with the Society and therefore declined to begin in person visits at all.

[43] The most significant area where the Society was concerned about the Mother’s lack of honesty arose as a result of her pregnancy with G. In January 2020, the Society worker asked the Mother if she was pregnant, and she indicated she was not. The Society worker asked her again April 6, 2020. On June 26, 2020, hospital staff contacted the Society to advise that the Mother had delivered G.

[44] The Mother subsequently informed the worker that she learned she was pregnant in late March 2020. The Mother’s plan for G was to place him for adoption with a private agency and she made arrangements to do so. On July 27, 2020, the Mother changed her mind and expressed that she wished to care for G and the adoption agency advised the Society. The Society held the Mother’s decision not to advise them of the pregnancy against her in many facets of their work with her.

[45] A second area where the Mother was penalized for her dishonesty was with respect to the children’s Father. The Mother advised the worker that the Father wanted to participate in planning for their baby. When the worker spoke with the Father, he denied wanting to participate and wanted the baby to be adopted. The Father did not participate and did not testify. It is possible that he told the Mother that he wanted to participate in planning for the baby and he told the worker that he did not. In this scenario, it is the Father not the Mother who is not being truthful.

[46] Finally, the Society indicates that the Mother was dishonest because she did not tell the Society that her worker from Women’s Services was no longer providing her with assistance.

[47] Stephanie Dejonghe, the Mother’s worker at Haldimand Women’s Services testified. She worked with the Mother from March 19, 2019 to July 28, 2020. The Mother connected with Ms. Dejonghe when she moved into Quetzel House. Ms. Dejonghe attended meetings with the Society, meetings with the Mother and her lawyer, court dates and provided the Mother with general counselling and emotional support.

[48] The breakdown in the relationship with Ms. Dejonghe occurred because the Mother did not tell her that she was pregnant with G. Ms. Dejonghe testified that she was upset with the Mother’s lack of transparency and the Mother’s decision not to inform her about her pregnancy with G, but that it was her supervisor who directed that Ms. Dejonghe was no longer able to support the Mother.

[49] The Mother was not honest with the Society when directly asked April 6, 2020 if she was pregnant. I do not find that the Mother was dishonest with the Society with respect to the Father’s statements to her. The Mother’s failure to advise the Society of her pregnancy with G is relevant to the finding in need of protection, particularly because the Mother’s plan for G changed and it was the adoption agency, not the Mother who advised the Society.

[50] The Mother’s in person visits with the children did not resume until March 2021. I have included my findings with respect to the evidence since this time in my analysis with respect to the appropriate disposition.

Disposition

The Legal Framework

[51] When asked to make a decision in the context of a child protection proceeding, the Court must be mindful of the distinctive features of the proceeding, which are summarized by Bale J. in CCAS v. I.B. et al., 2020 ONSC 5498, at paragraph 148 as follows:

1. The best interests, protection, and well-being of children takes precedence over all other considerations: Child Youth and Family Services Act, S.O. 2017, c.14, Sched. 1, s. 1.(1);

2. The interests at stake in child protection proceedings are of the highest order – few state actions can have a more profound effect on the lives of both parent and child: New Brunswick (Minister of Health and Community Services) v. J.(J.), [1993] 3 S.C.R. 46 at para. 76;

3. Fairness demands recognition of the unique dynamics of the child protection litigant: women, particularly single mothers are disproportionately and particularly affected by child protection proceedings; parents are often poor, uneducated, or members of minority groups; and even when parents are represented by counsel, a power imbalance often exits: Kawartha-Haliburton Children’s Aid Society v. W.(M.) at paras. 68-69.

4. The decisions made in child protection courts have life changing consequences for parents, families, and children. The court is conferred with the awesome power to permanently separate parents and children. Children are set on courses that potentially lead them to estrangement from their biological family. Parents are forever left grieving the loss of their offspring: Brant Family and Children’s Services v. A.H. and C.T., 2019 ONCJ 540 at para. 7.

Orders available to the court

[52] Sections 101 and 102 of the CYFSA set out the Orders available to the court where a finding in need of protection has been made and when the court is satisfied that intervention through a court Order is necessary for the protection of the child.

[53] Section 101 provides that the Court may order:

a. that the child be placed in the care and custody or a parent or another person, subject to the supervision of the Society for a period of at least three months and not more than 12 months;

b. that the child be placed in interim society care and custody for a specified period not exceeding 12 months;

c. That the child be placed in extended society care;

d. That the child be placed in interim society care and custody for a specified period and then be returned to a parent or another person, subject to the supervision of the Society for a period or periods not exceeding a total of 12 months.

[54] Section 102 provides that if the court finds that a custody order would be in a child’s best interest (as opposed to an order under section 101), the court may grant custody of the child to one or more persons with the consent of the person or persons. No one sought a custody order in this matter.

[55] Madsen J. summarized the relevant considerations when considering options for disposition as follows:

[79] In determining whether a supervision Order may be appropriate, the court must have regard to principles including the following:

a. For a final supervision Order to be an effective instrument of risk management the court should consider the following: the parent must meet a minimum threshold of co-operation and reliability; there needs to be a trusting relationship between the parent and the Society; there needs to be clear and accurate information exchanged between the parties; there should be demonstrable evidence that the parent would be compliant with the terms; there needs to be evidence that the Society could monitor a parent’s compliance; and a supervision Order should not be imposed if a parent is ungovernable. See: Catholic Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22 at 620.

b. The issue for the court is whether the parenting that could be provided with a return of the children is below the minimum standard tolerated by the community, not whether the children will be “better off” with parents other than their own. Family and Children’s Services of St. Thomas and Elgin v. C.(A.), 2013 ONCJ 453 at 158.

c. Courts must recognize that families living in poverty may face challenges. Parents are not to be judged by a “middle class yardstick… provided that the standard used is not contrary to the child’s best interests.” Children’s Aid Society of London and Middlesex v. J.D., 2018 ONSC 6193 at 79. See also C.C.A.S. v. I.(J.), 2006 CanLII 19432 (ON SC), 2006 CarswellOnt 3510 at 38.

d. “A supervision Order requires some element of confidence that the parent being supervised shows awareness of the alleged problems and a real commitment to cooperate and ensure that problems do not re-occur… The likelihood of a supervision Order adequately addressing concerns about a parent must be considered in the context of that parent’s past and present behaviours.” Children’s Aid Society of Hamilton v. R.(A), 2011 ONSC 7248 at 20, 22.

[80] Interim Society care is available where a supervision Order or custody Order is not appropriate. However, the CYSFA places time-limits on the amount of time that children can be in interim Society care. Under section 122, for children over the age of 6 on the day the court makes the Order, the time-limit is 24 months. Previous periods in care must be counted unless they preceded a period of five or more years that the children were not in the care of the Society. Section 122(5) provides that a court may extend the time limit for children to be in interim Society care for a period not to exceed six months where in a child’s best interest to do so.

[81] The length of time a child has been in care is at all times a relevant consideration in determining placement. This must be viewed from the child’s perspective. Further, any decision to extend time should be based on something more than a parent’s heartfelt desire to resume care of a child. The parent(s) must face some better prospects than what existed at the time of the removal of the children from their care and the development of new ability as a parent. CCAS of Toronto v. O. (G.), 2014 ONCJ 523 at 87 and 88; Children’s Aid Society of Toronto v. S.(D.), 2009 CarswellOnt 6725 at 70, 71; Children’s Aid Society of Toronto v. H.(R.), 2000 CanLII 3158 (ON CJ), 2000 CarswellOnt 6170.

[82] An Order for extended Society care, which permanently severs the legal relationship between parents and their children and profoundly reshapes any emotional and caregiving relationship, is an Order to be made only with the highest degree of caution, only on the basis of compelling evidence, and only after careful examination of possible alternative remedies. CAS of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122. The court must assess the degree to which the risk concerns that existed at the time of the removal still exist, and those risks must be examined from the child’s perspective. CAS of Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165. See also CAS of Frontenac v. T.(C)., 2010 ONSC 3054 at 35.

[83] In determining whether an Order for extended Society care is required, consideration should be given to whether the Society has provided the parent an opportunity to parent. Where the Society frustrates contact and offers few or no services, this must be considered. More will be said about this below. Children and Family Services for York Region v. A.W. and M.M. 2003 CarswellOnt 936 at 22; CCAS v. M.(P.A.), 1998 CanLII 14476 (ON CJ), 1998 CarswellOnt 3659; CAS of the United Counties of Stormount, Dundas and Glengarry v. K.(C.), 2001 CarswellOnt 219 at 18, 25.

See: Children’s Aid Society of the Niagara Region v. S.S. and T.F. 2022 ONSC 744.

[56] If the order being made does not return the child to the person who had charge of the child prior to the intervention of the Society, the court must consider what efforts the Society has made to assist the child prior to the intervention and the court must not remove the child if there are less disruptive alternatives available. If the court is satisfied that the protection concerns can be mitigated with terms of supervision, then the child must be returned pursuant to a supervision order.

The Society’s obligation to provide services to families

[57] The CYFSA recognizes at the outset that families may need help in caring for their children and that help should give support to the autonomy and integrity of the family unit. Wherever possible, the least disruptive course of action should be taken and services provided to children and their families should be provided in a manner that builds on the strengths of families.

[58] Madsen J. summarized the Society’s obligation to provide services to families and why it matters:

[89] As seen above, under section 101(2) of the CYFSA, the court is specifically directed to enquire into the efforts made by the Society and other community services to assist the child and the parent. This inquiry is not limited to the timeframe prior to the litigation, but also includes an inquiry into the Society’s efforts after the removal of the child. Careful scrutiny is required when the Society shifts its position to recommend permanent removal. Children and Family Services for York Region v. C.(H.), 2008 CanLII 64678 (ON SC), 2008 CarswellOnt 7450 at 38 – 52; Frontenac CAS v. T.(C.) 2010 ONSC 3054 at 36.

[90] Courts have held that the Society’s duty to provide services to a family is a fundamental issue in determining whether or not the risk of return to the parent can be addressed or mitigated. If every available service is not provided, or not provided in a timely manner, then the parent has not been given a reasonable opportunity to engage in those services and the ability of the court to assess a parent’s ability to benefit from services is hampered. Children’s Aid Society of Toronto v. C.(L.)., 2016 ONCJ 432, Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113 at 155.

[91] Providing services to the family includes connecting parents with external resources as may be required, whether with respect to housing, mental health or addiction supports, parenting courses, courses or services to address intimate partner violence, for example.

[92] Service to families must also include making necessary adjustments to access over time, where appropriate. This can mean increasing the amount of access supervised by the Society, moving towards supervised pick up and drop off only, to unsupervised access with unscheduled visits by Society workers. Thus in CCAS of Toronto v. R.M., 2017 ONCJ 784, Sherr J stated:

[77] It is imperative in this process that the initial access Order not stay frozen until trial, unless it would be unsafe for the child to change it. Families sometimes fail in the reunification process because no steps were ever taken to change the original access Order.

[78] The failure to change temporary access places a trial judge in a difficult predicament. The statutory time limit for a child to stay in Society care set out in subsection 70 (1) of the Act may have expired. This means that the child must either be made a crown ward or returned to a parent who might only have had supervised access for two hours once each week since the child was apprehended. Even if the access was positive, how can the judge confidently return the child to a parent if he or she does not even know that the parent can safely parent the child for a full day?

[79] In a constructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be gradually increased. This not only improves the parent/child bond, but gives the court some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.

[93] In CAS of Toronto v. R.B, 2020 ONCJ 113, Murray J. found the Society failed to discharge its duty to the mother under section 102(2) when it failed to properly explain family group conferencing; failed to assist her in locating resources; failed to assist in finding housing; failed to give recommendations about addiction aftercare programs; and, when it failed to increase and attempt unsupervised access so the mother could demonstrate her ability to parent for longer periods. See para 156.

[94] Murray J. noted that the CYFSA does not address what consequences should flow from a failure by the Society to properly assist. However, she considered that such failure might, in some cases, ground a decision to extend time to remain in interim Society care, under section 122, as discussed above. However, this must balance against the need for permanency planning and requires an assessment of whether, with such an extension, it can reasonably be expected that the remaining protection issues can be addressed, and, whether a transition from limited and highly structured supervised access can be successfully transitioned to a return home. In that case, despite her serious concerns with respect to the lack of assistance by the Society to the mother, Murray J. ordered that the children be placed in extended Society care. See paras. 157 - 173.

[95] See also Children’s Aid Society of Hamilton v. O.(E.), 2009 CanLII 72087 (ON SC), 2009 CarswellOnt 8125 in which Gordon J. found the Society’s failure to expand access where warranted to be an aggressive litigation strategy, and criticized the Society for “tunnel vision.” See paras. 201, 204. Gordon J. stated:

An aggressive litigation strategy has no part in child protection cases and is contrary to the Society’s role. The Society must understand it is the court that determines the child’s future, relying on the Society to present all relevant evidence. The court does not rubber stamp decisions previously made by supervisors or management at the Society. In my view the Society comes up well short in meeting its obligations in this case. The court is left with a difficult decision .... See 204 and 205.

See: Children’s Aid Society of the Niagara Region v. S.S. and T.F. 2022 ONSC 744.

Best interest analysis

[59] In determining disposition, the Court must make an order in the child’s best interest.

[60] In determining the child’s best interest, the Court shall, for children who are not First Nations, Inuk or Metis, consider the child’s views and wishes, unless they cannot be ascertained and may also consider any other circumstance that the Court considers relevant including:

i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

ii. the child’s physical, mental and emotional level of development,

iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. the child’s cultural and linguistic heritage,

v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

viii. the merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

ix. the effects on the child of delay in the disposition of the case,

x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

xi. the degree of risk, if any, that justified the finding that the child is in need of protection

Analysis

[61] The protection concerns for the children include the Mother’s housing instability, concerns with her parenting skills and her conflictual interactions with others and anger management.

[62] In determining the appropriate disposition, the Court must consider the underlying protection concerns and whether or not the protection concerns continue to exist. If they do continue, it is necessary to determine whether the concerns can be mitigated by terms of supervision.

Underlying protection concerns

[63] Given the length of the Mother’s involvement with the Society, she has had interactions with many workers. Where it is necessary within this decision to identify the worker, I have done so.

[64] Mr. Fisher is the Mother’s current family services worker. He has been the Mother’s family services worker since October 2020, and was previously involved with the Mother as a secondary family services worker and, before that, her primary family services worker.

[65] When Mr. Fisher assumed responsibility as the Mother’s primary worker in October 2020, his most immediate goals were to support the Mother in obtaining housing and assess her instrumental care of the children. I infer that these where his goals because these were the Society’s primary areas of concern at the time. The Society’s concerns with respect to conflict between the Mother and workers persisted, but there had been improvement.

(i) Housing instability

[66] The Society continues to have concerns with respect to the Mother’s housing. Mr. Fisher’s evidence is that the Mother refuses to “work productively with community housing supports” and continues to “ineffectively manage” her housing.

[67] In May 2019, the Mother secured housing at Quetzel House. This is a second stage housing program through Women’s Services and residents are permitted to remain in the unit for two years. The Society’s position is that the Mother engaged in conflict within the home and harassed other tenants, and was required to leave the home as a result of her actions. This is not correct and the Society acknowledged it’s error in this position. The Mother did raise concerns about other tenants to the landlord, which is appropriate.

[68] Mr. Fisher’s evidence is that during the Mother’s time at Quetzel, she did not apply for subsidized housing, did not work with the Housing Support Worker and displayed “little to no effort” in securing housing. This is also inaccurate.

[69] The Mother applied for subsidized housing in 2017 or 2018 and she remains on the waitlist. The Mother has also made efforts to find housing during and following her time at Quetzel.

[70] Despite Mr. Fisher’s stated goal to support the Mother in obtaining housing, it does not appear that he took steps to do so, except for attending a meeting in May 2021 to request that the Mother receive a short extension of her lease at Quetzel. Mr. Fisher also confirmed that he did not provide a letter of any kind to support the Mother to obtain housing and that this was not part of the Society’s role. This evidence is inconsistent with the evidence of Ms. Francis (the Mother’s previous family service worker) who testified that she has, on other files, written letters of support for parents to advocate for housing and has supported parents in filling out appropriate paperwork to apply for subsidized housing.

[71] Since September 2021, the Mother has resided in a motel room with a bathroom. There is no kitchen, but the Mother uses a crock pot and coffee maker to prepare cooked food. The Society is very critical of the space and described it as potentially unsafe (no sanitary place to prepare meals and wash dishes as this would have to be done in the common area) and insufficient to meet the needs of two young children. Mr. Fisher’s evidence was that while families working with the Society have lived in hotel rooms before, the Society’s position on the Mother’s motel room is that it is a small space, it is cluttered, there is not a lot of storage and there is a crockpot at toddler height. It is his evidence that the room is an accident waiting to happen.

[72] While the Society was very concerned about the crock pot and the possibility that the children may injure themselves on this appliance, I find that the Mother is very resourceful with these small appliances and recognizes the need to supervise the children if the appliance is in use.

[73] The Society’s characterization of the Mother’s housing and repeated references to her during the trial as “homeless” is unfair and inappropriate. The Mother did not have stable housing between October 2017 and May 2019 when she moved into the Quetzel residence. She remained at Quetzel between May 2019 and August 2021. Since leaving Quetzel, she has maintained her current accommodation. She has applied for subsidized housing and has made efforts to locate alternate accommodation that is affordable.

[74] The Mother has limited financial resources. She is employed and does not rely on social assistance. She is diligent with her budget. There is some financial assistance that may be available to the Mother through her Church. Despite being aware of these funds, she has not made an application for them, and she would be able to do so if she wished and required some assistance to acquire items for the children.

[75] The Mother acknowledges that her home is not ideal, but she has mitigated the protection concern with respect to her housing and secured stable housing.

(ii) Parenting skills and the Society’s failure to increase and expand the Mother’s access

[76] Since September 2014 when the Society became involved, the Society has had concerns about the Mother’s ability to appropriately supervise the children. The concerns include the children placing objects in their mouths or climbing on furniture, focusing on one child and not the other and failure to engage with the children on an emotional level.

[77] The Society filed an affidavit of the worker who supervised the Mother’s access with J, M and T. She has never observed the Mother interacting with O and G. I accept that the Society had concerns about the Mother’s interactions with the older children. The observations during access coupled with the Mother’s circumstances at the time resulted in T, J and M being placed in the extended care of the Society. The concerns set out with respect to the Mother’s parenting skills with T underscore that she has made improvements in her parenting skills as current observations indicate that the Mother is able to meet the children’s needs during her visits with them.

[78] The Mother did not have face to face visits with O between March 2020 and April 2021. Inexplicably, she did not have any form of visits with G until March 10, 2021.

[79] The Society’s cites the Mother’s refusal to comply with covid safety protocols as the reason why no in person access occurred. The Mother denies that she refused to comply with covid safety protocols and in fact, during this period of time, she maintained her employment driving a school bus and was compliant with the safety protocols required by her employer.

[80] While the Society blames the Mother for the prolonged gap in her access, the Society has an obligation to deliver services in a manner that supports the family. There is no evidence that the Society reached out to the Mother’s employer or sought consent from the Mother to speak to her employer to assess whether the Mother was compliant with covid protocols. Additionally, the Mother was represented by counsel. There is no evidence that the Society wrote to seek confirmation that the Mother would comply with its expectations. The Society relied on its assessment of the Mother as “dishonest” to support its concern that she would not comply with the covid safety protocols require to facilitate access.

[81] Ms. Bertling, the children’s service worker, testified about the visits between the Mother and the children she supervised. She acknowledged that the visits she attended were atypical. For example, she participated in the visits in April 2021 when the Mother’s face to face visits with O resumed and when they began with G because the Society anticipated that children would be upset because of the new circumstances. While Ms. Bertling identified some concerns with the children’s presentation and the Mother’s response to the children, the concerns did not continue.

[82] In June 2021, approximately two months after the Mother’s in person access with the children resumed, the Society decided to assign a worker, Jane Moore, to supervise and complete an assessment of the Mother’s parenting skills. Five six-hour visits were scheduled over the months of July and August 2021. Although five visits were planned, only three occurred because Ms. Moore left the agency on a leave.

[83] Ms. Moore testified that she was assigned because she would be fresh eyes and the Mother had not had visits with the children in her home before.

[84] While Ms. Moore observed some concerns at each visit, she confirmed that none of the concerns observed rose to the level where the Society would have intervened if the children were in the Mother’s care. Additionally, she observed positive parenting and engagement between the children and the Mother. Ms. Moore also observed that during the second visit, the Mother better met the children’s safety needs, despite having what Ms. Moore described as a more negative mood (Ms. Moore testified that she did not need to intervene as a result of the Mother’s mood). On the third visit the Mother was better at following their routines and recognizing and acting on their cues. Overall, the visits observed by Ms. Moore were positive and the Mother demonstrated improvement during each visit. When Ms. Moore unexpectedly went off work, the final two visits did not occur, the assessment was not completed and there was no increase to the Mother’s access with the children.

[85] Given the information observed by Ms. Moore during the first three visits, the Society’s decision not to complete the assessment or increase the Mother’s access was a failure to meet its obligation to review access and to re-evaluate its position during its work with the family.

[86] The observations of the access facilitator, Ms. Dygos, who has regularly supervised the Mother’s access since November 2021 is that the Mother usually handles the children’s instrumental care well. She often engages well with the children and would manage the children’s behaviours that arose during visits. Ms. Dygos observed that O and G often did not listen to the Mother. Ms. Dygos expressed a concern that the Mother often focused on one child at a time and was distracted by personal calls.

[87] Ms. Dygos also expressed a concern that the Mother did not respond to the children’s cues appropriately, especially where giving affection was concerned. Her concern was that the Mother tried to give the children hugs and kisses at the beginning or end of a visit, and the children would resist her and try to get away from her. I note that the Society also provided evidence that the Mother was not affectionate enough with the children or did not greet them physically at the outset of the visits. It is unclear what the Society expects of the Mother given that they have raised concerns with her being affectionate and for not being affectionate.

[88] Ms. Dygos also expressed a concern that the Mother was critical of the children’s caregivers when the children would refer to their current caregivers as “Daddy” or “Mommy”, commented on the food that was sent by the caregivers with the children and was concerned when she wrote in the communication book that she was concerned that G had an ear infection because he was coughing and more clumsy than usual.

[89] During cross-examination, Ms. Dygos confirmed that none of her worries with respect to the Mother’s interactions had to do with child safety and that the Mother’s instrumental care of the children is generally good.

[90] At the end of May 2022 the Mother sent an e-mail to Mr. Fisher and Ms. Bertling asking to have visits with the children on Sundays because there were special Sunday school events at the church. The visits did not occur. The Mother’s understanding is that the caregivers were busy on the proposed dates.

[91] Mr. Fisher’s evidence was that he wanted to increase the Mother’s access with the children during the summer of 2022. In order to do so, he required the Mother’s work schedule. The Mother works for her employer in the summer months cleaning school buses and providing some charter services. Mr. Fisher described that she “did not provide the Society [her work schedule] until late June 2022” and as a result no additional access could be scheduled because he had to take into account everyone’s availability.

[92] Mr. Fisher’s evidence was that there were two Saturday visits planned for the Mother and the children in August 2022. O’s caregivers were not available to attend one of the Saturday visits. Mr. Fisher could not recall if G was available to attend. Mr. Fisher acknowledged that the second Saturday visit did not occur because he did not get the visit arranged.

[93] The Mother did not know her work schedule until June 2022. The Society’s obligation to reassess and increase access as it deemed was appropriate is not extinguished because the Mother does not know her work schedule more than one month in advance. This is a further example of how the Society failed to work with the Mother to increase her time with the children.

[94] Mr. Fisher’s testified that the Society would not consider expanding her access while the Mother resided at the motel. Additionally, the Society felt that her access was difficult to organize because the Mother’s work schedule made it hard to have consistent visit times and there were times that the Mother missed access because of her work responsibilities. The Mother was also regularly late to her visits. The Society recognized that the Mother was late as a result of her employment and was lenient with the usual 15-minute rule (access is cancelled if the parent does not attend within 15 minutes).

[95] Mr. Fisher’s assessment was that the Mother was not highly motivated with respect to her access. He felt that she cared about her time with the children, but it was his opinion that the Mother should be more clear with her employer about her visits so that she could attend on time.

[96] The Mother generally works Monday through Friday, although there are times when she has the opportunity to drive a charter bus on weekends. Despite this, the Society did not expand the Mother’s time to the weekends as it concluded that the schedule does not allow for weekend visits. Mr. Fisher confirmed that when designing the access schedule, the caregivers’ schedules are also a factor.

[97] After the Mother’s access resumed in 2021, she again requested access in Kitchener supervised at the Children’s Aid Society. However, Mr. Fisher confirmed that the Society was not open to this option because the Kitchener agency did not provide documentation about the visits and the Society was not prepared to send a clinical access facilitator to Kitchener. Mr. Fisher’s evidence was that while the access in Kitchener worked well for the Mother and the children, it did not work for the Society because it found it hard to complete its assessment of the Mother without notes.

[98] For over a year, the Society considered increasing the Mother’s time with the children but there has been no increase. The Society’s decision not to increase and expand the Mother’s time with the children is a failure to provide appropriate services to this family.

[99] After the October 11, 2022 Temporary Order, the Mother’s time with the children increased significantly, but did not expand as ordered to include overnight time with the children. The Society had concerns about the increased access:

a. That the Mother did not send the plan for access to the Society the week prior as the Society requested.

i. The Temporary Order requires that the plan be discussed at least 24 hours in advance.

b. The children were returning from visits hungry.

i. The Society raised the concern with the Mother who provided a response asking if there was a problem with what the children were being fed. The Society attached copies of the communication book that travelled with the children. The Mother consistently offered the children many food options during the visit.

c. The Mother was not responding to their communication.

i. It appears that the Mother did respond when the communication was related to the children. For example, when G would not be present at a visit, when the Society raised concerns about the food served to the children during visits or when she was concerned about G’s fever.

d. That on October 20, 2022 the Mother had given O a juice box that contained blueberries, a fruit O is known to have an aversion to.

i. While the Society characterized this as the Mother deliberately feeding blueberries to the child, I accept the Mother’s evidence that she did not realize that the juice box she provided to the child contained blueberries. Her choice to advise the supervisor that the juice box contained blueberries was child focused as it is unlikely it would have come to the Society or the caregiver’s attention had the Mother not self-reported her mistake.

e. That the meals the Mother brings for the children lack protein.

i. The communication book attached to the Society’s Affidavit indicates that the Mother provided a wide variety of foods during visits and the meals were balanced. The children did not always eat the food that was offered to them.

f. That the Mother was not appropriately supervising the children in parking lots and there was a risk that the children would be hit by a vehicle.

i. The Mother acknowledges that there were concerns, but testified that she was trying her best to ensure the safety of the children and would try to “mother goose” the children when they refused to hold her hand. The Mother also described observing similar concerns when the children were with the caregivers. I am satisfied that the Mother is aware of the concerns and was using strategies to try to address the concerns.

[100] The Society was also advised of additional concerns from the caregivers following the expanded access schedule. These concerns included:

a. After the first unsupervised visit, G had a rough night and when he arrived home he was distraught and crying. There were also concerns about his diapering during the visit.

b. O was being left unattended during the access visits when the Mother was caring for G.

c. The children were not eating enough during the visits. The Mother noted in the communication book that the children did not eat much and reported they were not hungry.

d. G lost approximately three pounds around November 2022. His regained the weight in December 2022.

e. G was not sleeping as consistently as he was prior to the increasing access and displayed more struggles with defiance.

f. O displayed atypical behaviours such as not wanting to go to pre-school and being upset when her caregivers are not home.

g. O reported that during a visit she spit at the Mother and the Mother slapped her cheek.

i. This was investigated and not verified by the Society.

h. The children were spending too much time driving during the visits in addition to the transportation to and from the visits.

i. During exchanges, the Mother was not adequately supervising the children and on December 12, 2022 the children were walking unaccompanied into a lane of traffic with a car approaching.

j. The children are, at times, resistant transitioning to the Mother’s care.

[101] I accept that there may have been changes in the children’s behaviour as a result of the change in the schedule. Prior to the Temporary Order, the children were spending two hours per week with the Mother. This increased significantly. The children’s services worker testified that G’s behaviours could be attributable to the change in schedule, could be part of his age and stage of development, or could be related to both. With the exception of the concern with respect to the supervision of the children, which I have already addressed, I do not accept that these concerns are a reflection of the Mother’s parenting skills.

[102] After the Temporary Order, the Society continued to regularly supervise the Mother’s time with the children and the observations of her access are, for the most part, positive. This includes:

a. Bringing a variety of food options for the children and encouraging the children to eat;

b. Managing the children’s interpersonal disputes;

c. Comforting the children and getting down to their level when they are upset;

d. Troubleshooting when the children refused to follow an instruction (ie: get dressed to go home) or resisted having their diaper changed;

e. G greets the Mother with affection at the start of visits. O is more reserved and does not hug the Mother;

f. Remaining calm and correcting O’s behaviour when she bit G and the Mother;

g. Remaining calm even though the children can be challenging and difficult at times;

h. Engaging well with the children whether in a setting like the library or outdoors at a park.

[103] The Mother does not respond to situations in the way the Society wants her to, but she does respond. For example, when O refused to hold the Mother’s hand when leaving the building and running away, the Mother did not go after her but did ask her whether she was being safe and when O responded yes, corrected her and explained that she was not.

[104] On November 29, 2022 the Mother sought support from Mr. Fisher when O was refusing to get into the Mother’s vehicle. After asking for support, the Mother was able to resolve the issue by promising O a piece of candy if she got into the vehicle. The Mother indicated that she would have preferred to use another method to manage O’s behaviours but did what she needed to do as she does not want to physically place O in the vehicle.

[105] Overall, the evidence supports that there has been an improvement in the Mother’s parenting skills.

(iii) Conflict and anger management

[106] The Society’s position is that the Mother engages with others in a manner that is high conflict and her aggressiveness and hostility creates a continuing risk of harm to the children.

(a) Conflict with the Society

[107] The Society had significant concerns about the Mother’s interactions with workers and the conflict between the Mother and the Society. As set out above, the conflict was serious and the Society, at one point, had safety plans that included meetings occurring at the police station or the Courthouse.

[108] The change in the manner of the Society’s interactions with the Mother indicates that there has been an improvement in the interactions between the workers and the Mother and that there is less conflict, although the Society continues to identify this as a serious problem.

[109] In addition to the conflict, the Society believes that the Mother demonstrates an inability or unwillingness to follow safety directions. The most significant recent example given by the Society was with respect to compliance with covid pandemic protocols. The Society’s evidence is that the Mother indicated that she would refuse to isolate if she were exposed to covid-19 or displayed symptoms and as a result the Society did not permit face to face visits with the children between March 2020 and April 2021.

[110] The Mother’s evidence was that she was willing to comply with the safety protocols. Throughout this period, she was working as a school bus driver and complying with the strict covid protocols required by her employer and the School Board. The Mother’s evidence is that during meetings, she was expressing to the Society her familiarity with the required protocols by referencing her own experiences as an employee.

[111] I find that the Mother’s conflict with the Society has decreased over time. Additionally, there are examples of actions taken by the Society that contributed to the conflict.

[112] On June 30, 2021 two Society workers attended the Mother’s home, unannounced, to discuss planning for in-person visits at her home and the completion of an assessment of her parenting of the children. On this same date, the Mother was advised of the five dates for the assessment and told that the assessments would be completed between 9:00 a.m. and 3:00 p.m.

[113] At a subsequent meeting on July 15, 2021, the Mother raised concerns that she had not been included in the planning of the assessment and the dates for the assessment, which she felt compromised her ability to work and earn income. She was also upset that the children’s caregivers had been advised of the assessment before her. The Society’s confirmed that the caregivers were aware before her because the Society “needed everyone’s input for scheduling”. The Society’s actions confirm that they did not consider the Mother to be a person whose input was required: the Society did not involve the Mother in the scheduling process at all, advising her of the dates of the assessment at the same time she was told there would be an assessment.

[114] The evidence of the Society was that during July 15, 2021 meeting, the Mother presented as frustrated. While the Society attributes this to her hearing information that was critical of her parenting skills, it is equally possible that she was frustrated because she was excluded from planning a process that had a significant impact on her financial circumstances.

[115] During another meeting on October 22, 2021 the Society wanted to discuss the Mother’s access with the children and her work schedule. Instead, the Mother wanted to discuss other topics. While she did speak with the Society about her older children and her concerns that the kin families were not complying with covid restrictions (which were not topics on the Society’s agenda), she also discussed her concerns about her finances and the financial implications of having to try to do everything the Society was asking of her. On the subject of her access with the children, the Mother proposed resuming visits in Kitchener (where she had previously had in person visits) or looking at having the visits in the playroom of her church. The Society’s evidence is that during this discussion, the Mother did not “stay on track to find a solution for access” though the Society’s evidence confirms that she addressed both topics on the agenda and made proposals to try to improve her access with the children.

[116] It appears that this is a regular occurrence in the interactions between the Society and the Mother. The Society wants to discuss particular topics and the Mother wants to discuss particular topics. The Society concludes that the meetings are unproductive, and the Mother is difficult to work with because she wishes to discuss topics other than those identified by the Society.

[117] Ms. Bertling testified that during her involvement with the Mother as O and G’s children’s service worker the Mother was not rude or aggressive. She described the Mother’s interactions as sometimes being “short” or “cold” and noted that the Mother has a difficult time staying on topic and focused during meetings. Ms. Bertling noted that during the Mother’s in person and virtual visits with O and G she did follow the Society’s rules and expectations.

[118] Brenda Pliskevicius, J and M’s worker, testified about her interactions with the Mother during the course of her involvement with the family. Her evidence was that she noted an improvement between January 2018 and June 2021 and that by June 2021 the Mother was “easier to deal with” and there were times when they could have a good conversation.

[119] After the expansion of access in October 2022, the Society’s evidence is that the Mother was more emotionally escalated than usual. The Mother expressed concern that Mr. Fisher was meeting with her in parking lots and that her confidentiality was not being maintained given that Mr. Fisher was trying to discuss her access. Mr. Fisher’s evidence is that the conversations were quick and in relation to access and there was no risk to her confidentiality because no one was present other than the people walking by. The Mother’s view is that conversations with Society workers is a breach of her confidentiality because, given the nature of her employment, she would be concerned about individuals in the community knowing that she is involved with the Society.

[120] During the Mother’s increased visits, there was a plan to have a day visit on November 2, 2022 that would occur half at the Mother’s church and half at the library. Prior to the visit, the Mother asked if the entirety of the visit could occur at the church. Mr. Fisher refused this request citing insufficient time to adjust the plan.

[121] On October 31, 2022 Pastor Abraham spoke to Mr. Fisher to advise that he had tested positive for Covid and he not entered the church building since October 28, 2022. Despite having received first-hand information that Pastor Abraham had not been in the church since October 28, 2022, and the previous refusal of the Mother’s request to change the location of the visit to the Church because the request was too “last minute”, the November 2, 2022 visit took place entirely at the library.

[122] Mr. Fisher’s evidence was that the Mother engaged in conflict with him when he advised her that the visit on November 2, 2022 would not be permitted to occur at the Church. While the Mother should not engage in conflict with Mr. Fisher, particularly in the presence of the children, Mr. Fisher did not appear to accept any responsibility for his role in contributing to the conflict (i.e.: changing the location of the visit citing covid concerns without any reasonable basis for coming to this conclusion).

[123] Despite the conflict leading up to the November 2, 2022 visit, the observations of Mr. Fisher was that the Mother engaged well with the kin caregiver and the children during the visit.

[124] On December 30, 2022 Mr. Fisher and Ms. Bertling attended the Mother’s residence unannounced to view the home in advance of her overnight visit. During the attendance, which was immediately prior to the Mother’s day visit with the children, the Mother advised that she had a play pen at her parent’s home that she was planning to pick up.

[125] Without speaking to the Mother to obtain her permission and knowing that there is conflict between the Mother and her family, Mr. Fisher contacted the Mother’s parents to pick up the playpen. The maternal grandparents indicated that there was no playpen at the home and the Mother had not contacted them about the playpen.

[126] Mr. Fisher contacted the Mother. His evidence is that he first advised the Mother that G is over the weight limit to use a playpen. I do not accept this evidence. If Mr. Fisher was aware that G was over the weight limit for the use of a playpen there would have been no reason for him to contact the grandparents to try to obtain the playpen.

[127] The Mother was angry that Mr. Fisher had contacted her parents without her permission. While Mr. Fisher’s evidence is that his “goal was to aid [the Mother]” he ought to have known that given the dynamics in the Mother’s relationship with her parents this would not assist. The Mother, recognizing that she has a difficult relationship with her parents, had made a plan to deliver a birthday gift to her Father with the children and obtain the playpen (which she says she left in the basement when she moved out and her parent’s would not have been aware was there) at the same time. The Mother felt that Mr. Fisher’s contact with her parents sabotaged her plan.

[128] While there is conflict between the Mother and the Society, I do not accept that it is the Mother who bears sole responsibility for the conflict. The Mother continues to interact with Society workers and there has been a significant improvement in the interactions since 2020. Additionally, even if the Mother is difficult to work with, rude or unpleasant to Society workers, this is not a protection concern.

(b) Conflict with children’s caregivers

[129] In addition to conflict with the Society, the Society points to the Mother’s conflict with the children’s caregivers.

[130] O’s caregiver testified during the first part of the trial. Ms. L’s partner is the Mother’s first cousin. The caregivers have adopted T and have cared for O since she was an infant. There is no doubt that these caregivers have a very close relationship with O and that O views her caregivers as her parents. The caregivers want to adopt O.

[131] Ms. L testified that she and her husband have a very poor relationship with the Mother and that the Mother usually ignores them or responds to them curtly when they do interact.

[132] Ms. L also expressed that the Mother does not acknowledge correspondence that they send to her and does not respond. The Mother agrees that she has not responded because it was her understanding that she was not permitted to communicate directly with the caregivers. The Mother has tried to provide items for the children (homemade baby food, underwear for O, items for G’s birthday) and these items are returned to her.

[133] Ms. L’s observation of O is that she resists going to access with the Mother. Ms. L indicates that the Mother is often talked about and honoured at their home.

[134] Ms. L testified that she had been asking for a meeting with the Mother for almost a year and it was her impression that it was the Mother who was obstructing a meeting taking place.

[135] The family meeting occurred on September 23, 2022 and the Ls, the Mother, her support worker, Ms. Bertling, Mr. Fisher and the resource worker were present. Ms. L testified that the Mother yelled at Mr. L during the meeting because it was her view that he ought to have assisted her in finding housing because he is a police officer. The other witnesses in attendance at the meeting testified that the Mother remained calm throughout the meeting despite being upset at times. Given the Mother’s presentation is one of the Society’s most significant concerns, I find that the Society workers would have mentioned it if she had yelled during the meeting.

[136] Ms. L testified that the visit immediately after the family meeting was conflictual and left her and the other caregiver feeling frightened.

[137] Ms. L’s evidence was that at the beginning of the visit she approached the Mother with O and the Mother refused to acknowledge her. At the end of the visit, Ms. L and G’s caregiver walked up to the Mother and asked how the visit was. The Mother did not respond. Ms. L testified that G’s caregiver was holding G and his diaper bag and the Mother “lunged” at her, grabbed a photo out of the diaper bag and ripped it out.

[138] Ms. L testified that G’s caregiver was crying and she described the Mother during the interaction as hostile and agitated. During cross-examination, Ms. L testified that if she adopts O her intention would be to set up visits between O and the Mother, but the Mother must demonstrate to the caregivers that she can be civil, calm and child focused. However, Ms. L’s impression of the Mother based on the September 26, 2022 meeting was that she was “out of control”. After the visit on September 26, 2022 her evidence is that she would not be confident that she would be able to manage access between O and the Mother even at a supervised access centre.

[139] Haley Dygos supervised the September 26, 2022 visit. She testified that she did not observe anything remarkable at the end of the visit. Even when asked very specific questions that would have prompted her to reflect on the end of the visit, she did not corroborate Ms. L’s evidence. She testified that the Mother was upset because the caregivers picked up the children early from the end of the visit and the Mother did not have a chance to say goodbye; something that was particularly difficult because the trial commenced the following week and the Mother was unsure whether she would have further access with them.

[140] Ms. Dygos’ evidence was that the Mother did not display any form of aggression towards the caregivers and was not rude to them. I accept Ms. Dygos’ evidence.

[141] Ms. L testified that the Mother told her and her husband that they were not invited to or wanted at O’s baptism. With respect to the baptism, Ms. L testified that they would want to attend the baptism as a family to enable T to attend the baptism and to support O.

[142] During the first part of the trial, the Mother confirmed in her testimony that the caregiver family was invited to the baptism. Shortly after the first part of the trial ended, the caregivers reached out to Pastor Abraham, expressing concern that the Mother was not allowing them to attend the baptism. Pastor Abraham indicated that it was his preference that the caregivers and T attend the baptism and he would speak with the Mother. Of course, when he spoke to the Mother, she confirmed her evidence that she wanted the caregivers as well as her sister’s family at the baptism as she hoped that all of her children would be able to attend.

[143] Pastor Abraham recalled that there was tension at T’s baptism: the kin caregivers did not attend and CAS had two workers in attendance even though the Mother was managing T without issue. Not wanting the baptism of O and G to repeat the events at T’s baptism, Pastor Abraham planned to have meetings with O and G prior to the baptism and hoped to have a third meeting with T present as well.

[144] On December 4, 2022 O and G were baptized. Neither the caregivers nor the Mother’s family attended the baptism.

[145] On November 7, 2022 the Mother and kin caregivers had a discussion at the end of a supervised visit. The Mother was asking about the possibility of changing one of the visits. During the interaction, Ms. L stated to the Society worker that the Mother was “yelling at her”. The Society worker who observed the interaction confirmed that the Mother was not yelling and her tone remained the same throughout the conversation. The Mother was upset after the interaction because she was not trying to upset the caregivers.

[146] I had concerns about Ms. L’s credibility.

[147] Much of Ms. L’s evidence was about her explanation as to why the family decided to change T’s name when she was adopted after Ms. L gave evidence at the trial in 2019 that they did not intend to change T’s name if they adopted her. This issue was not relevant to the Court’s consideration with respect to G and O: the Ls adopted T and, as adoptive parents, it is their choice what to name the child upon adoption. My assessment of Ms. L’s credibility was not influenced by the evidence with respect to T’s name or the fact that T’s name was changed despite her evidence in 2019 that it would not be changed.

[148] My concerns about Ms. L’s credibility arose because on a number of very significant points her evidence was contradicted by the evidence of others. In particular, her evidence of the Mother’s presentation and her characterization of the Mother as aggressive was inconsistent with the evidence of the Society workers and the Mother. Where Ms. L’s evidence contradicts with the evidence of other witnesses, I do not accept her evidence.

(c) Conflict with family

[149] The Society’s position is that the Mother was required to leave her parents home in 2017 as a result of her actions and the conflict that she instigated within the home. I accept that there was conflict in the home and that the Respondent Mother is responsible for some of that conflict, but I cannot accept that she is solely responsible.

[150] The Society submitted as an exhibit a letter from the maternal grandparent’s physician that was sent to the Society. The letter indicates that “due to ongoing mental health issues, memory issues, and the grandmother just seeing her sugar go into the diabetic range, the grandparents are requesting the grandkids move out of their home… I will continue to see both grandparents for ongoing mental health, memory and diabetic issues”. The concerns with respect to mental health referenced in this correspondence pertain to the grandparents, not the Mother. This letter was admitted in evidence as part of the narrative, not for the truth of its contents.

[151] The maternal grandparents did not testify. The evidence of the Respondent Mother was that between October 2022 and January 2023 at an encounter at church, the maternal grandmother asked the Respondent Mother in an accusatory manner why she is taking the kin caregivers to court. This is, at best, a significant misunderstanding of the child protection proceeding. At worst, it is an unfair characterization of this litigation.

[152] The Mother’s evidence is that she has made efforts to improve her relationship with her parents. For example, at the end of December 2022 the Mother made plans to bring O and G to her parent’s home to give her father a birthday gift and to collect a playpen for her overnight visit. The Mother was unable to bring the birthday gift or attempt to have this visit after Mr. Fisher reached out directly to the grandparents.

[153] The Mother’s sister, Ms. B testified. She is the caregiver for J and M (although the children are in the Extended care of the Society). Ms. B has a strained relationship with the Mother and feels that the Mother is constantly criticizing her.

[154] Ms. B’s evidence is that she cut ties with the Mother because she observed the Mother’s negative treatment of the children, for example at J’s graduation ceremony, which is discussed below.

[155] Ms. B and the Mother were adopted by the maternal grandparents as children. Ms. B’s evidence is that they were provided many opportunities growing up. She testified there was a lot of yelling in the home but that she and the Mother did things they ought not to have done. The Mother testified that she felt that her mother withheld affection during her childhood and while her parents tried their best, the relationship has been challenging.

[156] Ms. B testified that a wedge was created between her and the Mother when the Mother did not share with Ms. B that she had a child that she placed for adoption.

[157] Ms. B’s evidence is that no one in the Mother’s family associates with the Mother or asks about her at family functions. The Mother acknowledges that she does not have support of her family members who reside locally.

[158] There is no question that the Mother has a poor relationship with her family. However, based on the evidence, I am not able to infer that the Respondent Mother is solely responsible for the conflict within her family. It is possible that the maternal grandparents and her sister each bear responsibility for the current state of their relationships.

[159] The Mother does have positive relationships with other members of her family but these individuals do not reside close to her. The Mother also has a positive relationship with two individuals who are paternal relatives of J and M. They own a local restaurant and the Mother has worked and assisted at the restaurant in the past. They have also been present during her visits with J and M and these visits have gone well.

(d) Conflict with her older children

[160] The access order between the Mother and her older sons is to be a minimum of six 1-hour visits per year.

[161] The Mother’s oldest children reside with their maternal aunt and uncle. Since the extended care and access order were made, they have at times wanted to have access with their Mother and other times have not. They have also expressed worries about the conflict between their Mother and their caregivers.

[162] The Society also has concerns about interactions between the Mother and the older boys. The concern is that the Mother’s interaction or lack of interaction is emotionally harmful to the children.

[163] For example, the children attended Church and the Mother did not acknowledge their presence, which was upsetting to the children.

[164] The Mother acknowledges that she did not communicate with J and M at church, which was upsetting to them. The Mother’s evidence is that she was told by Society workers that she was not allowed to speak to the children and was not allowed to show her emotions. The Mother was crying and she covered her face so the children would not see her tears. Pastor Abraham witnessed this interaction. He confirmed that the Mother did not acknowledge the children, was crying and that it was upsetting to the children. However, having observed the event, he believes that the Society has overplayed the event.

[165] The Mother is reluctant and hesitant to engage with J and M because she wants to ensure that she is complying with the Society’s expectations. The Mother was driving a school bus route that arrived at the boys’ school. J noticed the Mother and asked his teacher to go and say hello. J came onto the bus and gave the Mother a hug. The following day, M came on the bus and gave her a hug. Shortly after, the children’s worker called the Mother and told her that she was in the wrong and she was not to have contact with the boys that was unsupervised.

[166] Ms. B testified that she observes that the Mother is hard, critical and emotionally distant in her words and actions towards J and M and this upsets them. She provided the example of J’s graduation in June 2022. The Mother attended and the caregivers supervised the visit. Unfortunately, the evening started off badly because the Mother was given the wrong time of the event. The Mother was embarrassed and upset to have arrived late. After the event ended, the Mother went outside and did not see the children or the caregivers. She walked away trying to get a better view of the crowd and heard Ms. B calling her.

[167] J went to give the Mother a hug and she did not hug him back. This was upsetting and confusing to J. The Mother testified that she understood that Ms. B and her husband were supervising the visit and that in the past both had to be present during her interactions with the children. Because only Ms. B was present at the time J went to give her a hug, she was unsure what she was permitted to do, and she did not want to get in trouble for hugging J. This event was approximately two weeks after the boys had hugged the Mother on the school bus and she was told she was in the wrong. Ms. B told the Mother that she was allowed to hug J and that it was a “supervised visit”. This comment further embarrassed the Mother and she asked Ms. B not to humiliate her.

[168] Ms. B’s assessment of this interaction is that the Mother was selfish and created conflict and upset the children. The Mother’s view is that she was trying to do exactly what she had been told to do. J was understandably upset by the Mother’s actions towards him. The Mother testified that looking back, she should have hugged J, but is concerned about being seen as not following the Society’s expectations, particularly given that the trial in this matter was coming up.

[169] There was a period of time when J and M were expressing that they did not want to have contact with the Mother. But the most recent evidence is that J and M are willing to have further contact with the Mother.

[170] On December 11, 2022, J and M attended a Christmas potluck at the church and the Mother, G and O were also in attendance. It appears this went well as J and M asked to attend the Mother’s visit with G and O on December 29, 2022.

(e) Concerns with respect to mental health

[171] The Society has concerns that conflict in the Mother’s interactions is indicative that she has unaddressed mental health issues.

[172] The Mother’s family doctor, Dr. Paul Nunn, testified at the second part of the trial. Additionally, excerpts of his medical file were filed.

[173] Dr. Nunn’s evidence is that the Mother does not present with symptoms that suggest that there is a concern with her mental health and that he does not have a concern with respect to the Mother’s mental health.

[174] During cross-examination, the Society suggested that his findings with respect to the Mother’s mental health were undermined because she did not tell him the full extent of the Society’s concerns and the issues that she was experiencing.

[175] However, a review of the notes in the medical file indicate that the Mother did share many of the concerns, including “both sons apprehended by cas”, “overwhelmed by the court process”, “living in shelter” and “no communication w family”. Additionally, the Mother repeatedly requested a mental health assessment as the Society was suggesting. Although a referral was eventually made, Dr. Nunn’s evidence is that the referral was made because the Mother was asking for one to satisfy the Society, not because the Mother was presenting with symptoms suggestive of an issue with her mental health.

[176] The referral to the psychiatrist was not accepted and the Mother has not seen a psychiatrist. Dr. Nunn does not have concerns about the Mother’s physical or mental health.

The Children

[177] O’s development is on track. She is bright, curious and fun loving. She is able to communicate her needs and wants and can, at times, be stubborn. She does not have any particular medical or special needs. She does have an umbilical hernia that may require correction.

[178] O attends daycare and participates in a variety of extra-curricular activities. She will attend junior kindergarten in September 2023.

[179] O and T have a very close relationship. When O is away having visits with the Mother, T is sad and worried. O’s caregivers express concern about the separation of O and T.

[180] G is also doing well and developing without concern. He is healthy and eats and sleeps well. He does not have any medical or special needs.

[181] G attends daycare with O and is doing well in that environment.

[182] In addition to contact with one another, G and O also have ongoing sibling contact with their older brothers.

[183] There was an issue during visits that O was referring to G as “Harvey” and G would not respond when called by his name but would respond when called “Harvey”. This concern arose again after the Temporary Order and was noted by the access facilitator.

[184] In June 2021, the Society advised G’s caregivers that G could not be called by another name when the worker heard G referred to by a staff member at the doctor’s office as Harvey. The Society’s evidence is that they did not know that the caregivers continued to refer to G as “Harvey”. I accept this evidence. However, despite the direction given to the family in June 2021, they persisted calling G “Harvey”.

[185] The children are not of an age where their views and wishes can be ascertained.

Society’s failure to comply with the Temporary October 11, 2022 order

[186] The most concerning example of the Society’s failure to increase and expand the Mother’s access with the children occurred after Temporary Order of October 11, 2022. The Temporary Order provided that the Mother would have increased and expanding time with the children. The Temporary Order was granted after evidence had been given with respect to the Society’s concerns, the Mother’s current circumstances (including her residence) and the Mother’s access.

[187] The evidence during the second phase of the trial was heard January 23 and 24, 2023. On January 27, 2023, the parties attended to make closing submissions with respect to the trial. I also asked the parties to address, in their submissions, the non-compliance with the October 11, 2022 order.

[188] The Society’s evidence was that it did not proceed with the expansion of time to overnights because it concluded that there was no safe sleeping arrangement for G and, while they were satisfied with the sleeping arrangement for O, they had concerns about her attending without G and because she had expressed to workers after the October 11, 2022 was granted that she did not want to sleep overnight with the Mother.

[189] Jamie Brownlee, Mr. Fisher’s supervisor, testified at the resumption of the trial. While she supervised Mr. Fisher during his involvement with the Mother, her evidence was specifically related to the Society’s decision not to permit overnights.

[190] During a consultation with Mr. Fisher, Ms. Brownlee learned that the Mother did not have a playpen for G to sleep in and she undertook an internet search to purchase a playpen for G to use during the overnights. During her internet search Ms. Brownlee learned that some playpens have a weight limit and G exceeded the weight limit. Ms. Brownlee confirmed prior to the internet search she was not aware of the weight limit for a playpen.[^1] Despite having only learned herself that there was a weight limit, Ms. Brownlee testified that it was her assessment that the Mother showed no regard for the safety of the children.

[191] The Mother’s first overnight visit was scheduled for the following day, so Ms. Brownlee worked with the Mother to try to satisfy the Society’s concern with respect to the sleeping arrangement. To Ms. Brownlee’s credit, she spent several hours on a Friday evening trying to resolve the issue.

[192] During the conversation, the Mother was frustrated with the Society and raised concerns with Ms. Brownlee with respect to Mr. Fisher’s unilateral decision to try and pick up the playpen from her parent’s home and with the worker’s unannounced attendance at her home earlier that day.

[193] Ms. Brownlee offered to purchase a crib and a toddler bed for the Mother’s visit with the children, but these options were not compliant with the fire code for the Mother’s residence. Ms. Brownlee tried to consider other alternatives for the location of the visits (church, at a friend or family member’s home) because she did not consider the sleeping options that the Mother was suggesting for the children to be suitable.

[194] Ms. Brownlee testified that the Mother was escalated during this conversation, yelling, swearing and complaining about different workers. It was a conflictual phone call.

[195] Unfortunately, no resolution was reached and shortly before 9:00 p.m. the conversation ended. The Mother was understandably angry and upset that the Society would not permit the ordered overnight visit to occur. Ms. Brownlee’s assessment was that this interaction with the Mother reinforced the Society’s concerns that she requires significant support to meet the children’s needs and refuses to accept support, feedback or direction. This assessment overlooks the fact that the visits were ordered by the Court and the Mother would have been upset by the Society’s decision not to permit the visits, particularly given that the Mother had made suitable arrangements to meet the children’s needs.

[196] Prior to the commencement of the overnight visits, Ms. LeBrun, a Society worker who had not previously been involved with the Mother, attended at her home to observe the unit. Ms. LeBrun’s contact note of her attendance indicate:

a. Although there was lots of clothing on the floor and bed, it was organized;

b. The space heater was stable and does not get hot to touch. The Mother understood that children would need to be supervised and not touch it;

c. The coffee maker and slow cooker are on secure surfaces that are not at risk of being knocked over. The Mother expressed concern about the slow cooker given concerns raised by Mr. Fisher and Ms. LeBrun reviewed with the Mother ways to make it safer;

d. The worker suggested that the Mother get a child door lock for the bathroom door so that the children cannot access cleaning supplies;

e. The Mother planned to get a playpen that would be placed to block access to the closet so that she would have a space that she could put things that the children should not have access to;

f. The Mother was not planning to spend much time in the motel room and had plans to eat at the Church so the children could run around and the Mother would have access to a full kitchen;

g. The Mother was planning to get a playpen but also recognized that the children may want to sleep with her or sleep together in the playpen.

[197] Ms. LeBrun’s case note concludes that she does not have any concerns regarding the Mother’s plan for access with the children in the room, recognizing that the room is not yet set up for access and the Mother has been telling her what the plan will be.

[198] In addition to concerns with respect to the sleeping arrangements, on the day prior to the commencement of overnights, Mr. Fisher and Ms. Bertling testified that the Society also had concerns that the Mother had not implemented the recommendations of Ms. LeBrun with respect to the safe storage of her cleaning supplies and her medications. The evidence of Ms. Bertling with respect to these two issues is that the Mother was aware that these items needed to be stored out of reach of the children and had a plan to do so. The Mother testified that she had a plan to store the items safely (in her vehicle) but she intended to use the items before the overnight visit.

[199] I do not accept the Society’s evidence that it was attempting to work with the Mother or that it was focused on finding a solution to implement the Order.

[200] On January 27, 2023, I endorsed the following:

This concludes the trial in this matter. The trial commenced in October 2022. On October 11, 2022, I adjourned the trial and made a temporary order that the Respondent Mother was to have defined and expanding access during the period of the adjournment.

The final stage of the expansion provided that the Respondent Mother was to have access:

At least three times per week for at least three hours per visit. One of the Respondent Mother’s visits was to include an overnight visit on the weekend. If the Respondent Mother and the Society could not agree, the overnight visit was to occur from Saturday at 3:00 p.m. to Sunday at 3:00 p.m.

The order also included a term that if either the Society or the Respondent Mother needed to speak to the matter during the adjournment period, they were to contact the Trial Coordinator to arrange a virtual appearance that could be added to my list at 9:15 a.m. on any day that I was sitting.

No request to speak to the matter was made.

I gave oral reasons on October 11, 2022 setting out why I was adjourning the trial and why I found that an interim access order during the period of the adjournment was in the children’s best interest.

Based on the evidence that I had heard, I found that on three occasions the Society had looked to expand the Respondent Mother’s time with the children, but the expansion had not occurred.

a. In 2020, the Society intended to expand the Respondent Mother’s access into her home. The mother expressed concerns with the odours coming from a neighbouring unit and although the Society was prepared to expand the access in spite of the odours, the Respondent Mother was concerned that the nature of the odours would be unpleasant for the child and wanted to resolve the issue before moving her access into her home. The access did not expand and then was subsequently significantly disrupted a result of the covid pandemic.

b. In 2021, the Society expanded the Mother’s access (from virtual access to supervised in person) and planned to provide an assessment of the Mother’s access with the children. This approach was consistent with the family service worker’s stated goal of assessing the Respondent Mother’s instrumental care of the children and was described as five intensive six-hour access visits to complete an updated assessment of the Respondent Mother’s parenting skills. Three visits occurred and the last two did not occur because the worker left for personal reasons. Although some concerns were observed at each of the three visits, the evidence of the visit supervisor was that none of the concerns rose to the level of requiring the Society’s intervention if the children had been in the Respondent Mother’s care.

c. Lastly, in 2022, the Society looked at expanding the Respondent Mother’s access during the summer months. This expansion did not occur because when the Respondent Mother provided her work schedule at the end of June 2022, the Society was not able to coordinate visits with children’s caregivers and the Respondent Mother’s work schedule. The Respondent Mother needs to maintain her employment. Providing her work schedule for July and August 2022 at the end of June 2022 was not unreasonable.

It is clear that a Children’s Aid Society has a duty to provide services to a family and Courts have consistently found that providing services includes making necessary adjustments to access over time. Where it can safely be done, access should be gradually increased. In both 2021 and 2022 the Society considered an expansion of the Respondent Mother’s time with the children, but the expansion did not take place as a result of the Society’s actions or inaction.

In my oral reasons on October 11, 2022, I adopted the comments of Sherr J. in CCAS of Toronto v. R.M., 2017 ONCJ 784:

[77] It is imperative in this process that the initial access Order not stay frozen until trial, unless it would be unsafe for the child to change it. Families sometimes fail in the reunification process because no steps were ever taken to change the original access Order.

[78] The failure to change temporary access places a trial judge in a difficult predicament. The statutory time limit for a child to stay in Society care set out in subsection 70 (1) of the Act may have expired. This means that the child must either be made a crown ward or returned to a parent who might only have had supervised access for two hours once each week since the child was apprehended. Even if the access was positive, how can the judge confidently return the child to a parent if he or she does not even know that the parent can safely parent the child for a full day?

[79] In a constructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be gradually increased. This not only improves the parent/child bond, but gives the court some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.

When I made the Temporary Order, I had also had the opportunity to hear evidence with respect to the Respondent Mother’s place of residence, including the size of the residence, what was contained within the residence in the way of furniture, the state of the residence and that there was a crockpot and coffee maker in the residence that the Respondent Mother used to prepare hot foods.

Within the context of all of the evidence heard and considering the obligations of the Society to give support to the autonomy and integrity of the family unit, and giving consideration to the Respondent Mother’s access with the children and her current residence, I found that it was in the children’s best interest to have expanded access with the Respondent Mother during the course of the adjournment. This included the specific provision for overnight visits.

At the resumption of the trial, no overnight visits had occurred as set out in my Temporary Order.

The Society’s evidence was that it was not satisfied that there were safe sleeping arrangements for the child G. The only sleeping arrangement that the Society assessed that would be safe for G was a crib, and the fire code at the Respondent Mother’s residence did not permit a crib to be placed in the room.

The Society was also concerned with the safety of the Respondent Mother’s residence because there cleaning supplies and vitamins that were not put away when the Society unexpectedly attended her residence shortly prior to her day visit with the children (where the children would not be at her residence) and over 24 hours before her scheduled overnight visit with the children.

Although it appeared that the Society was satisfied with the sleeping arrangement for O, the Society made submissions that O expressed that she did not want to have a sleepover with the Respondent Mother, that it would not have been in her best interest to have a sleepover when she was expressing opposition to the Respondent Mother and had made an allegation that the Respondent Mother had smacked her during a visit. This allegation was investigated, and not verified. Physical discipline on the part of the Respondent Mother has not been a concern with respect to her involvement with the Society.

The Respondent Mother proposed that G would sleep in the bed with O, on the floor on a camping mat or on a crib mattress on the floor. After the overnight visits did not occur, she then obtained toddler cots and proposed that the children could sleep on the toddler cots. None of these options were acceptable to the Society.

The Society’s position is that G has always slept in a crib, a toddler cot is designed for naps at daycare and it was concerned that if G was not in a contained sleeping space (ie: a crib), he may get up in the middle of the night and wander off without the Respondent Mother hearing him.

There is no evidence to suggest that the Respondent Mother would not hear G if he were to wake in the middle of the night and she provided a reasonable plan should G wake during the night. The Society’s concern was entirely speculative.

The Society’s acknowledged that the Order was not complied with but submits that most of the blame should be attributed to the Respondent Mother. The Society submits that its assessment was that there was nowhere for the children to sleep, and the residence was unsafe so the overnights could not occur. Given its assessment, the Society submits it was up to the Respondent Mother to make another plan for the overnight visits.

The Society submits that it considered seeking direction from the Court but chose instead to try to work with the Respondent Mother to find a solution. I note that the Respondent Mother offered several solutions, most recently procuring the toddler cots. Each solution was not acceptable to the Society.

It is unclear why the Society felt that it had the discretion not to permit the overnight visits to take place when the Order was made, and the Court had received evidence with respect to the location where the overnights would occur. In making the Order, the Court found that the Respondent Mother’s residence was appropriate for the overnights to occur and ordered that the visits take place.

The Society’s submissions that the overnights were not permitted for O because it appeared that she was opposed to them is also concerning. The Court found that overnights were in O’s best interest. It is not open to the Society to second guess the decision without returning the matter to Court.

The Society’s submits that it was not acting out of defiance of the Court or putting up an unreasonable opposition to the Court order, it was trying to ensure the safety of the children. I do not accept this characterization.

I find that the Society, in concluding that there was no way that overnights could occur at the Respondent Mother’s residence, put up an unreasonable opposition to the Court order and did not comply with its terms.

I find that it is the actions of the Society, not the Respondent Mother, that resulted in the non-compliance with the overnight access schedule ordered.

It is unfortunate that the Respondent Mother did not return the matter to the Court’s attention when it became evident that the Society would not permit the overnight visits to occur. But the Respondent Mother’s failure to return the matter to Court does not relieve the Society of its obligation to do so when it is prohibiting access to occur as set out in a Court Order.

The Respondent Mother sought an adjournment of the trial in order to allow time for the Order to be followed. The Society opposed on the basis that the children have been in care beyond the permitted time, the children need permanency, and, from the Society’s perspective, an adjournment is not going to make a difference in terms of the disposition.

The Society’s refusal to permit the overnights to occur as set out in the Order is contrary to its obligations under the CYFSA and to the Court. If the Society’s assessment was that there was no safe way to comply with the Order, it was incumbent on the Society to return the matter to the Court’s attention as was contemplated in the Temporary Order.

The children have been in care beyond the permitted timelines and they do require permanency. The trial was adjourned once already and I do not find that it is consistent with the objectives of the legislation and the children’s best interest to grant a further adjournment.

I heard closing submissions and have reserved my decision.

The Society’s evidence upon the resumption of the trial was that there were no further plans for the Respondent Mother to have access with the children.

The Court has an obligation to give detailed reasons for decisions and in a child protection case it would be unusual for the Court to immediately make a decision. The Society ought to have anticipated that there would be a period of time between the conclusion of the trial and the release of the Court’s decision. There is no reason the Society should have expected that the terms of the Temporary Order would not continue.

For clarity, pending the release of my decision, the Temporary Order that I made on October 11, 2022 remains in place.

So that there is no confusion, I reiterate the terms of the Order below. I also find, given the issues that arose with the implementation of the Order during the previous period of adjournment, it is necessary to add additional terms. I have underlined the additional terms.

Accordingly, on a temporary basis,

1. Commencing immediately, with the first overnight visit to occur on January 28, 2023, the Respondent Mother shall have access with the children at least three times per week for at least three hours per visit. One of the Respondent Mother’s visits shall include an overnight visit on the weekend. If the Respondent Mother and the Society cannot agree, the overnight visit shall occur from Saturday at 3:00 p.m. to Sunday at 3:00 p.m.

2. The overnight visits shall occur at the Respondent Mother’s residence and the children shall be permitted to sleep on toddler cots, a camping mat on the floor, a crib mattress placed on the floor or in the bed with safety rails during their overnight visits with the Respondent Mother.

3. The Respondent Mother and the Society shall discuss the plan for the visits at least 24 hours in advance, including the location where the visits shall occur.

4. The Society shall be permitted to attend the Respondent Mother’s access to observe her interactions with the children. The Respondent Mother shall cooperate with the Society and provide them with information to allow them to attend the visits on a scheduled or unscheduled basis. The Society shall not attend for more than one hour during any visit.

5. If the exchanges are facilitated between the children’s current caregivers and the Respondent Mother, only information with respect to the children’s needs at the visit shall be exchanged.

6. The Respondent Mother shall not for any portion of access:

a. Engage in conflict with any individual;

b. Allow the children to be in the company of any person not approved of by the Society in advance;

c. Use any form of physical discipline on the children;

d. Behave in a verbally or physically threatening manner towards the children or any other person.

e. The children shall not have contact, either by telephone or in person, with T.J. during the Respondent Mother’s time with the children unless approved in advance by the Society.

7. If access it not occurring as contemplated in this Order, the Respondent Mother shall return the matter to my attention on short notice.

8. Should either the Society or the Respondent Mother need to speak to this matter, they shall contact the Trial Coordinator to arrange a virtual appearance. The Trial Coordinator shall be permitted to add this matter virtually to my list at 9:15 a.m. on any day that I am sitting.

Society’s characterization of the Mother’s actions

[201] The Mother’s position is that the Society will take a negative view of her actions even when she is trying to meet their expectations.

[202] Mr. Fisher’s Affidavit of January 6, 2023 confirms the Mother’s position that the Society interprets her actions in a negative light. For example:

a. Mr. Fisher affirmed “To help ensure that [the Mother] was able to have overnight access I tried to help with the playpen situation only to learn that [the Mother] had lied about having a playpen available and that she did not even investigate the weight restrictions of playpens”.

i. There is no evidence that the Mother lied about having a playpen available. Her evidence is that there was one available at her parents. Her parents did not testify and it is possible that they are unaware of the playpen in their home. Mr. Fisher’s supervisor testified that she was not aware that there were weight restrictions on playpens until she tried to locate one for the Mother. I do not accept Mr. Fisher’s evidence that he was aware of the issue of the weight limit for the reasons previously set out.

b. Mr. Fisher affirmed “[The Mother] is consistently unprepared for her visits”.

i. This conclusion is not supported by the evidence. The Society’s own evidence confirmed that the Mother attended the visit with a variety of food options and other supplies for the children.

c. Mr. Fisher affirmed “There has been some concern in relation to [the Mother’s] choices for lunch and snack, often providing food that the children refuse to eat, or that doesn’t fill them up”.

i. The children do not eat all of the food the Mother offers during visits, but the evidence does not support the conclusion that the Mother is not providing and offering appropriate food to the children during their visits.

d. Mr. Fisher affirmed “[The Mother] struggles with supervision of both children, particularly in dangerous situations such as parking lots”.

i. There have been concerns about the Mother’s management of the children in parking lots, the Society’s evidence also includes that the Mother has supervised and engaged with the children well during her visits.

e. Mr. Fisher indicated that the Mother has been dishonest with the Society … lying about such things as:

i. “feeding O blueberries when she has been directed not to due to O being allergic”.

1. This suggests that the Mother was feeding O whole blueberries and is an unfair mischaracterization of the evidence. The evidence was that the Mother fed O a juice box that contained blueberry juice. When she realized that blueberry juice was one of the ingredients in the juice box, she self-reported this to the worker.

ii. “have appropriate sleeping accommodations”.

1. The Mother did have appropriate sleeping accommodations for the children. The Society did not accept that the sleeping accommodations proposed by the Mother were appropriate, but the Mother was not being dishonest in advising the Society she had made appropriate accommodations.

Plans of Care

[203] The Society’s Plan of Care with respect to the children is that they be placed in the extended care of the Society and adopted by their current caregivers.

[204] O has been with the same kin caregivers since birth. She resides with her biological sibling, who has been adopted by O’s caregivers. O and her biological sibling have a close relationship.

[205] G’s caregivers are family friends of O’s caregivers. Accordingly, O and G have regular contact with one another in addition to their contact during visits with the Mother and at daycare.

[206] The Mother’s Plan of Care is that the children be placed in her care subject to the supervision of the Society.

Mother’s current circumstances

[207] The Mother is 39 years of age and was adopted by her parents with her sister when she was 55 days old. She graduated from a two-year program in culinary management at Fanshawe College.

[208] After college she worked at several different restaurants, hotels and a daycare. With the exception of the time between 2002 and 2004, she resided with her parents until October 2017 when she was asked to leave their home.

[209] The Mother was briefly married before the marriage was annulled.

[210] The Mother had a relationship with J and M’s father. They were separated when he passed away in May 2020.

[211] In 2013, the Mother had a child that she placed for adoption through a private agency.

[212] The Mother began a relationship with the Father in 2015. He is a migrant farm worker who lives in Jamaica when he is not in Canada. The Mother and Father have never lived together.

[213] The Mother testified that she has always had a somewhat rocky relationship with her parents. Her relationship with her mother was more strained than with her father. When J was born, the Mother reported that her mother was upset but her father was more supportive. Fortunately, the Mother testified that her mother did come around and had a good relationship with the children.

[214] The Mother has had two significant accidents in her life. A motor vehicle accident in 2005 or 2006 and an incident in January 2018 when she slipped and fell on ice outside of the Simcoe library.

[215] The Mother gave evidence that she has not always been an argumentative person. She can be argumentative when she is feeling scared or uneasy. She has not been diagnosed with any mental health issues and has consulted with her family doctor with respect to her mental health.

[216] The Mother’s physical health is good. The Mother takes care of herself.

[217] The Mother obtained her bus license in 2013 and began working driving charters. Since 2013 she has been driving a school bus, primarily for school children.

[218] She currently works for [redacted] and her work hours are 5:30 a.m. to 9:30 a.m., and 1:00 p.m. to 5:30 p.m. At the outset of the trial the Mother was working a school bus route that began in Guelph and ended in Cambridge. She was willing to drive these longer routes in order to earn more money. A typical day would be from 7:00 a.m. to 9:30 a.m., and 2:30 p.m. to 4:30 p.m.

[219] The Mother earns $19 or $20 per hour depending on the route that she is driving. She is also able to take on some extra work on Saturday or Sundays. In addition to driving the school bus, the Mother does casual work for Instacart and for local farmers.

(i) Housing

[220] The Society continues to have concerns with respect to the Mother’s housing. The Mother did not have stable housing after October 2017 until she moved into the Quetzel residence. Since leaving Quetzel, she has maintained her current accommodation. She has been on the waiting list for subsidized housing for approximately five years and has made efforts to locate alternate accommodation that is affordable.

[221] The Mother is currently paying $350 per week ($1,516 per month) for her motel room. She has applied for one and two bedroom apartments that are within her budget, but has not secured one as a result of the volume of applicants.

[222] While the Society throughout trial was very critical of the Mother’s home, this criticism reflects the Society using the proverbial middle-class yardstick. The Society’s evidence was that if the other protection concerns would be addressed, her home would not prevent the return of the children and there are other families the Society has worked with who care for their children in similar accommodation. The Mother acknowledges that her home is not ideal, but she has mitigated the protection concern with respect to her housing.

(ii) Parenting Skills

[223] The evidence of the supervised access facilitators and other Society workers is that the Mother’s access and interactions with the children has improved since the Society’s involvement J, M and T.

[224] The Mother has participated in many services with respect to parenting since T was born. She cared for J and M without Court intervention until 2017, when she was required to leave her parent’s home. J and M were ages nine and six at that time. The Society’s evidence is that they were brought into care solely as a result of the Mother’s lack of housing. If she had had housing, the boys would have remained in her care.

[225] Ms. Dejonghe from Women’s Services worked with the Mother from March 2019 until July 28, 2020.

[226] During Ms. Dejonghe’s work with the Mother, the Mother completed several support programs and worked extensively with the pregnancy centre to obtain counselling and complete parenting programs. The Mother also attended counselling at Corner Stone Counselling.

[227] The Mother attended Corner Stone Counselling until the onset of the covid pandemic because there was an increased cost to the counselling. The Mother had received a compassionate rate of $50 per appointment, but the discounted rate did not continue and continuing with counselling at this location was unaffordable to the Mother.

[228] The Mother now participates in counselling at least twice per week through LifeWorks, which is a program available to her through her Employee Assistance Program. The Society is critical of the service, both because it is a virtual service and because the Mother does not speak to the same counsellor during each session. The Mother’s evidence is that the service has benefitted her and it is what is available and affordable to her. When she is experiencing increased stress, such as during the trial and the period of the adjournment, she testified that she increases her use of the services offered.

[229] The Mother also completed the Supportive Mothering program which she started prior to O’s birth. Although the program was focused on parenting skills, the Mother felt that the skills she learned also assisted her in her communication with the Society.

[230] Between 2017 and 2020, the Mother completed many parenting programs at the Norfolk Pregnancy Centre including programs on ages and stages of development. Some of the programs, including Toddler Safety, she took more than once.

[231] During the course of the Mother’s supervised access, the evidence demonstrates that there was a significant improvement in her access between the visits with T and the visits with G and O. The Mother’s instrumental care of the children has improved. I accept the Mother’s evidence that part of the reason for improvement is her application of the information learned in the many programs she completed.

[232] The Mother also had current First Aid and CPR training through her employment as well as ongoing education with respect to transportation of students with special needs and managing student behaviours on the school bus.

[233] Since the adjournment of the trial in October 2022, the Mother had increased access with the children.

[234] The Society’s evidence of the visits includes the Mother:

a. Followed the children’s routines;

b. Offered lots of healthy food options for the children to eat;

c. Wrote in the communication book;

d. Played with appropriate toys;

e. Encouraged the children to share and use manners, and;

f. That G often showed affection towards the Mother during visits.

[235] The concerns noted by the access facilitators are not concerns related to the Mother’s parenting skills. For example, in October 2022 it was noted that the child O said “I don’t want to go home with you [Mother’s first name]” and referred to her Mother by her first name. She also said that “my real mom says you’re not allowed to touch me” when the Mother was trying to help O get dressed to go outside.

[236] There were also concerns noted that O would refer to G as “Harvey” during visits. G would also not respond to the Mother when she called him G, but would respond immediately if referred to as “Harvey”.

[237] Pastor Abraham testified as to his observations of the Mother’s interactions with O and G. His evidence is that the Mother is attentive to the children although he noted that there is a slight change in her interactions with the children when someone from the Society is present. His observation is that the Mother appears to be more uncertain with the children when a Society worker is present and contrasts this to her acting more freely with the children when the Society worker is not present.

[238] Since the January 27, 2023 order was granted, I have not had a request from either the Mother or the Society to speak to the matter. I infer that this means that the access between the Mother and the children, including the overnight visits, are occurring as ordered and there are no issues that require further intervention.

[239] There is evidence of improvement with respect to the Mother’s parenting skills and the observations of the workers who supervise her access is that the concerns that are observed would not require the Society’s intervention if the children were in the Mother’s care.

[240] The Mother also testified that after the October 11, 2022 her income decreased by approximately 50% because she was unable to work as much as she was before the increased access was ordered. The Mother testified that in addition to the reduction in income, she had increased fuel and food costs to attend the visits and to provide food for the children during her visits. There is no doubt that this period of time has been financially difficult for the Mother. I find that her ability to carefully manage her budget while ensuring that the children had what they required underscores her improved parenting skills.

(iii) Conflict

[241] The Society has a significant concern with respect to conflict between the Mother and those she interacts with.

[242] The Mother has been involved with the Society for a significant period of time. Previously, the conflict between her and the Society workers required that she have a support person present, two workers present and at times, that meetings occurred only at the police station or the Courthouse.

[243] This is no longer the case and supports the Mother’s assertion that she has a working relationship with the Society. Indeed, the Society’s own evidence is that the Mother’s interactions with workers have improved.

[244] While the Society argues that the Mother has significant conflict with the Society, the children’s caregivers and her family members, it overlooks that the Mother has had several longstanding relationships that are free of conflict.

[245] Examples of the Mother’s ability to work with service providers and engage in relationships that are free of conflict include:

a. Ms. Dejonghe’s evidence was that she never had any issues working with the Mother. The Mother wanted more time with O and her work schedule was the biggest roadblock to securing more time. Ms. Dejonghe never had issues with the Mother presenting as angry, aggressive or lashing out. Ms. Dejonghe’s evidence is that she did have tough conversations with the Mother. She described the Mother was being kind and respectful during their work together. The Mother did not have conflict with Ms. Dejonghe.

b. Pastor Abraham

i. Pastor Abraham has been the pastor of the Mother’s church, St. Peter’s Lutheran Church in Simcoe, Ontario since July 2008. The Mother has been a parishioner since that time.

ii. Pastor Abraham is well acquainted with the Mother as well as her parents, sister and her sister’s family. He has provided support to the Mother since the beginning of her involvement with the Society. This support has included counselling and personal support to the Mother as well as supervision support for her visits.

iii. The Church also provides the Mother with a space to have visits and will continue to provide a space to the Mother to care for her children if they are in her care. This includes a large area where the children can play as well as a full kitchen where the Mother can prepare food. The Mother has a key to the Church and can access it at any time.

iv. Pastor Abraham described a positive working relationship with the Mother where he provides support to her as she navigates difficult personal circumstances. He testified that he challenges her when speaking with her and did not describe concerns with respect to conflict in their interactions.

c. Dr. Nunn has been the Mother’s family physician for approximately ten years. There was no evidence that Dr. Nunn has concerns about the Mother’s presentation or interactions with him or his staff members.

d. Throughout the evidence, it became clear that Mr. Kiernan has been the Mother’s lawyer since at least the protection application with T. This is a period of approximately six years. My own observations of the Mother’s interactions with Mr. Kiernan as well as the evidence of communication between the Mother, Mr. Kiernan and the Society satisfy me that the Mother has maintained a working relationship with her lawyer.

e. The Mother has maintained her current housing since September 2021 and her evidence is that she has a good relationship with her landlord. She has discussed the option of renting a separate apartment that is located on the property and this may be available to her if the children are in her care.

f. There was no evidence that the Mother argued or had conflict with Society staff at the Kitchener Children’s Aid Society during the period of time that they supervised her visits.

[246] Most notably, the Mother has been driving school buses for ten years. During that period of time, she worked for Langs for three years, First Student, and for the past five years has worked for the school bus division of [redacted]. In her relationship with her employer, she is in a subordinate position and is required to follow the directions of her supervisors. The Mother has maintained her employment without issue and been able to make changes to her schedule to accommodate her time with the children. The Mother’s evidence is that she has a positive and supportive relationship with her employer and this is supported within the context of the evidence as a whole.

(iv) Plan for the children if placed in her care

[247] The Mother’s plan for the children if they were placed in her care includes registering the children in daycare.

[248] She testified that she has looked into a daycare in Simcoe as well as two daycares in Waterford, where her employer is located. The Mother was knowledgeable about what was required to register the children in daycare and how she would be able to apply for a subsidy to assist her with the cost of daycare.

[249] Until there is a daycare space available for the children, she would drive the children on the school bus with her. This is permitted by her employer. Mr. Fisher indicates that the Society has concerns because in 2014 there was an anonymous call to the Society with respect to concerns about the Mother’s lack of supervision of the older boys when they were accompanying her on a school bus route. The Society verified the concern. Mr. Fisher’s evidence is that this has been a problem in the past and the Mother has not addressed the concern. It is important to recall that despite verifying this concern in 2014, the Society did not take steps to remove the children from the Mother’s care or even seek a supervision order. I find that this is an appropriate plan until the Mother is able to secure daycare for the children.

[250] The Mother testified that her financial circumstances would change if she were caring for O and G. She would be eligible to receive the Canada Child Benefit.

[251] With respect to her current housing, the Mother has acknowledged that it is not ideal for the children. However, her plan includes taking the children out of the motel room during the day and using it as a place to sleep until she is able to find other accommodation. The Mother had many suggestions of activities that she would be able to do with the children during the day and she has use of the church, with a full kitchen and play area, and a key to access the church at any time.

[252] The Mother testified that it would be important for the children to have a period of transition where they spent increased time with her while remaining with their current caregivers.

Disposition

[253] The Society submits that the only option to keep the children safe is an order for extended Society care. It is their position that there should be no access to the Mother or the Father, but if the Court were inclined to grant the Mother access it should be on strict conditions and occur in the jurisdiction where the children reside.

[254] The Mother submits the legal analysis that the Court must undertake is not to determine which option is “safest”, which would mean that only an extended Society care order could be granted. Instead, the Court must determine if intervention is necessary to protect the child in the future, and, if intervention is required, what intervention is least disruptive and adequate to protect the child. The Mother concedes that intervention is required and proposes that the Court should make a consecutive order placing the children in interim society care followed by a return to her care subject to the supervision of the Society.

[255] Having found the children in need of protection, I find that intervention is necessary to protect the children in the future. The Mother has made significant progress in addressing the protection concerns: she has secured stable housing, she has taken courses and demonstrated through her visits with the children that her parenting skills have improved, the level of conflict between the Mother and the Society has decreased and the Mother maintains conflict free relationships with other service providers, her employer and involved professionals.

[256] The Mother has been compliant with the terms of supervision and other rules and expectations given to her throughout this litigation. In the circumstances, I find that terms of supervision are sufficient to mitigate the protection concerns and this is the least intrusive order that will adequately protect the children. I also find that the Court can have confidence that the Mother will follow the terms of supervision.

[257] I find that a supervision order is in the children’s best interest because:

a. The Mother is able to meet the children’s physical, mental and emotional needs and provide the children with the care they require;

b. The Mother supports the children’s identity as children of a Canadian Mother and Jamaican Father;

c. Placement with the Mother will allow O and G an opportunity to develop a positive relationship with their parent and live together with their parent;

d. While the permanency plan put forward by the Society would certainly meet the children’s needs, it is not the least disruptive order that is adequate to protect the children’s needs;

e. A period of interim Society care followed by a supervision order is not an appropriate option given that the children have already been in care beyond the statutory time limits and the protection concerns have been addressed sufficiently to be mitigated by terms of supervision, and;

f. I am cognizant that the children’s caregivers intended to adopt the children and will be devastated by this decision. I heard evidence with respect to T’s important relationship with O and how a decision to return O to the Mother’s care will affect T. However, the Court has already made decisions with respect to T and she has been adopted by Ms. L. The impact that this Order will have on T is not within the scope of the Court’s jurisdiction to consider.

[258] In other circumstances, it would have been ideal to order a gradual reintegration of the children to the Mother’s care as she proposed. However, I find that this would not be in the children’s best interest because I do not have confidence that the caregivers will work cooperatively with the Mother to manage the transition for the following reasons:

a. The caregivers have, with the support of the Society, contributed to the restriction of the Mother’s access with the children prioritizing their own schedules over the importance of the children’s time with their Mother;

b. G’s caregivers have called him “Harvey” and continued to do so despite having been specifically directed by the Society not to call him any name other than his birth name;

c. O’s caregivers raised concerns about wanting to attend O’s baptism and the Mother preventing their attendance. Despite being told that they were welcome to attend, they did not attend;

d. The Society’s evidence is that both sets of caregivers were surprised and upset with the October 11, 2022 order expanding the Mother’s time with the children. After the temporary expansion, new concerns were consistently raised by the caregivers about the Mother’s care of the children – concerns which, for the most part, did not accord with the observations of the workers, the information being provided to them about the visits by the Mother and were concerns that had not previously been reported with respect to the Mother’s care of the children;

e. I found that Ms. L’s evidence with respect to her interactions with the Mother during the meeting on September 23, 2022 and during the access exchange on September 26, 2022 portrayed the Mother in a negative light and was not credible;

f. The evidence of the Society workers is that O makes negative comments about the Mother during their meetings with her and during her visits with the Mother. Given O’s age, it is probable that she is overhearing these comments or attune to her caregiver’s frustration with and dislike of the Mother, and;

g. The placement of the children in the Mother’s care is going to be very upsetting for the caregivers and I am concerned that their own sadness will impact their ability to support the children’s successful reintegration into the Mother’s care.

[259] As I indicated, the evidence throughout the trial is that T and O have a very close relationship and that T and G spend regular time together and have a positive relationship. The Court does not have the jurisdiction to make Orders with respect to T. The Mother’s evidence is that she recognizes that O has a strong relationship with the Ls and she would be willing to continue to facilitate contact between O, G and T. Maintaining the relationship with T would be in O and G’s best interest, and I encourage all parties to support the ongoing contact if it can be arranged.

[260] I have selected a period of nine months for the term of the supervision order. This will provide time for the Mother to register the children in daycare, enroll O in school and give sufficient time for the children to settle into the Mother’s care before the order must be reviewed.

Final Order

[261] Pursuant to section 90(2) of the Child, Youth and Family Services Act the children are determined to be:

a. O born March, 2019.

b. G born June, 2020.

c. The children are not First Nations, Inuk or Metis children.

d. O was brought to a place of safety on March 25, 2019 from the care of H.Z. at [redacted], Ontario.

e. G was brought to a place of safety on July 28, 2020 from the care of H.Z. at [redacted], Ontario.

[262] A final order that both subject children, O born March, 2019 and G born June, 2020, are found to be in need of protection pursuant to s. 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act.

[263] A final order pursuant to section 101(1) of the Child, Youth and Family Services Act that the children, O, born March, 2019 and G born June, 2020, shall be placed in the care and custody of H.Z. for a period of nine months, subject to the supervision of Child and Family Services of Grand Erie under the following terms and conditions:

a. The Society shall perform all of its work with the family overall in a way which is respectful of the children and family’s unique identity and cultural background, and in a way which recognizes and seeks to avoid harmful historical mistakes of the child welfare system particularly towards racialized children.

b. The Society shall always work in a way that values and promotes the integrity of the family and the child’s connection to extended family, natural supports, and cultural communities.

c. The Society shall aid and assist H.Z. and the children wherever and however possible. This may be achieved by:

i. Always ensuring that the views and wishes of the children are sought, heard, and considered in a meaningful way;

ii. Helping to identify and obtain preferred methods for healing;

iii. Bringing together informal and formal supports to assist the family with formulating any needed safety plans and advocates as needed on their behalf.

d. The Society shall support H.Z., as she requests, to obtain daycare for the children that is available and affordable to her. This shall not include an obligation to provide monetary support.

e. The Society shall support H.Z., as she requests, to obtain alternate housing that is available and affordable to her. This shall not include an obligation to provide financial support.

f. H.Z. shall enroll the children in an affordable daycare as soon as it becomes available to her. The children shall attend regularly and on time.

g. H.Z. shall enroll O in junior kindergarten commencing September 2023. O shall attend school regularly and on time.

h. H.Z. and the Society shall work to communicate openly and honestly. This will be achieved by:

i. Ensuring the other always has the most current contact information, such as phone number and residential address

ii. Regularly and reasonably schedule, attend, and participate in meetings with each other.

iii. Allowing the Society to enter and view the family home as the Society requires.

iv. Allowing the Society to privately meet and talk with the children and not telling the children what to say or what not to say to anyone.

i. H.Z. and the Society shall share all important information with each other.

j. H.Z. shall not permit any individual, other than the children, to stay overnight in the family home, even for a single night, without the advance written consent of the Society.

k. H.Z. shall advise the Society if she or the children has any involvement with police.

l. H.Z. shall obtain a family physician for the children and shall advise the Society of the particulars of the children’s treating physician.

m. H.Z. shall advise the Society of the particulars of any medical or other third-party service provider involved with the children.

n. H.Z. shall advise the Society if she or the children have any new or ongoing medical diagnoses. This does not include typical medical illnesses that may require treatment from time to time.

o. H.Z. shall advise the Society of any other information that is relevant to the safety, wellbeing, and best interests of the children or to her work with the Society.

p. H.Z. will ensure the children’s safety needs are met. This will be achieved by:

i. Getting the children to school or daycare regularly and on-time.

ii. Making sure the children regularly see all the educational, medical, dental, and counselling care providers the Society says are necessary, and following the care providers’ recommendations.

iii. Making sure the home is safe for the children, considering the children’s age and stage of development.

q. H.Z. shall not physically discipline the children and she shall not permit anyone else to do so.

r. H.Z. shall ensure that the children are not exposed to conflict, which includes yelling and screaming; insulting others; threats to break things or hurt people; and, breaking or throwing things or hurting other people.

s. H.Z. shall not be impaired by drugs or alcohol when caring for the children and shall not allow anyone else who is aware is impaired by drugs or alcohol to care for or be around the children.

t. H.Z. shall not permit the children to have contact with T.J. without the advanced written approval of the Society. She shall comply with the Society’s directions about contact between T.J. and the children.

[264] A final order pursuant to s. 104 of the Child, Youth and Family Services Act that there shall be access between the children O born March, 2019 and G born June, 2020 and T.J. at the discretion of the Society and supervised in its discretion. This shall include the Society’s discretion to not permit access until T.J. meets with the Society to develop an access plan.

___________________________________ Bingham J.

DATE: 2023-04-03

[^1]: On November 21, 2022 the Mother had a supervised visit at the Society. There was a playpen in the visit room and the worker’s evidence is that G pulled the playpen down on himself but did not cry. It is understandable that the Mother was not aware that the playpen would not be acceptable to the Society given that the Society provided one during her supervised time with the children.