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 and Parties

COURT FILE NO.: FC-22-609-0001 DATE: 20240820

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Children and Family Services for York Region Anna Harris, for the Society Applicant (the “Society”)

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K.D.S. Respondent Mother Christopher M. Murphy, for the Respondent Mother

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G.A.N. Respondent Father William Doodnauth, for the Respondent Father

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D.C. Respondent Maternal Grandmother On her own behalf

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A.N. Respondent Paternal Aunt On her own behalf

HEARD: June 17, 18, 19, 20, 21, 24, 25, 26, 2024, and July 16 and 17, 2024

JUSTICE ALEX FINLAYSON

PART I: OVERVIEW

[1] This trial of a Status Review Application under the Child, Youth and Family Services Act, 2017 (the “CYFSA”) concerns two very young children, E. and J. E. was just 4 years old at the time of the trial (she turns 5 in August); J. is 3 years old (he turns 4 later in the fall).

[2] The children’s parents are the mother, K.D.S., and the father, G.A.N. The maternal grandmother, D.C., and the paternal aunt, A.N., are added respondents to this proceeding. E. and J. were removed from their parents’ care at the end of March of 2022. Since that time, E. has lived with the maternal grandmother, and J. has lived with the paternal aunt. This initially temporary arrangement was finalized into a six-month Supervision Order of Himel J., dated September 22, 2022. It is that supervision Order that is being reviewed in this Status Review.

[3] While there are a myriad of protection concerns that continue to present, the principal ones concern the mother’s severe, chronic and untreated alcohol misuse, the fact that the father suffers from schizophrenia, and the fact that he otherwise lacks the parenting skills and the support network that he would need to care for the children primarily.

[4] The mother has an older child named Z., from a previous relationship. Z is not before the Court in this case, but he also lives with the grandmother. That has been the case for most of Z.’s life. The mother is now pregnant with her fourth child, with a new partner. That relationship has been marked with family violence. The mother’s new partner suffers from schizophrenia.

[5] This trial was heard over the course of 10 different days. The Court received evidence by way of a combination of affidavit and documentary evidence, supplemented by oral examinations-in-chief and cross-examinations. Although not particularly complex legally, the mental health and addiction issues that are afflicting both parents in different ways, the extended family dynamics, economic factors, and other logistics, have rendered the resolution of this case, particularly access, more complicated.

[6] When it first brought this Status Review Application, the Society sought a further six-month Supervision Order. It later amended the application to claim a deemed custody order under section 102 of the CYFSA, to maintain the children’s current placements on a final basis. At the outset of this trial, the Society sought orders the parents would each have supervised access to the children once per week, to occur at a supervised access center, as the default. The Society proposed that the mother’s visits could otherwise occur at the maternal grandmother’s home, if the grandmother agreed. The Society’s position respecting access changed somewhat by the end of the trial.

[7] At a high level, the mother appeared to support this plan. However during her in court testimony, she used the words “for now”. She made it clear that she intends to seek increases to her parenting time, and she eventually wants the children back in her care.

[8] The maternal grandmother and the aunt also each support the Society’s position, at a high level. However they both raised a number of impediments to the viability of the Society’s access plan. For example, the parents live in Aurora, the grandmother lives in Keswick, and the aunt, who previously also lived in Aurora, now lives in Beaton. She moved there on the cusp of this trial starting. [1] It came out towards the end of the trial, that the mother is apparently planning to move near the maternal grandmother’s residence in Keswick. This revelation resulted in the mother yelling and swearing at the grandmother, when the grandmother tried to express her concern, that the mother was trying to get her “foot back in the door”. As I explain below, facilitating access will be challenging.

[9] Unlike the other parties, the father does not support the Society’s plan at all. He seeks a graduated return of the children to his care under a Supervision Order. He is of the view that the Society has predominantly relied upon historic information related to his mental health. He believes that the Society has relied in part, on narratives of fear about his mental health. He also argues that the conflict that existed between the parents is no longer present, as his plan is to care for the children independently of the mother. Alternatively, the father would have the Court order unsupervised access. However, the father’s significant health condition, combined with his lack of parenting skills, and the current absence of a support network, poses different challenges for his principal and alternative plans.

[10] While the outcome respecting the children’s placements became more obvious to the Court by the end of this trial, there remained too many unknowns about access. The Court queried whether there shouldn’t be a further supervision Order. In so doing, the Court expressed to the parties’ its concern, that it may not be able to accommodate everyone’s interests and logistical needs. It encouraged the parties to return to the negotiating table, but the need for a decision about the children’s longer-term placements seemed to be an impediment to that.

[11] In the end result, the Court ultimately agrees with the Society that these children need finality respecting their placements. The children have been with their current caregivers for over two years. Continuing that is the only viable option before the Court, and it is the one that I find to be in the children’s best interests. Making another supervision Order respecting placement would do little more than delay the inevitable, and consequently leave the children in limbo. The evidence does not support a return of the children to either parents’ care, either now or in the foreseeable future. That will not change if there is another Supervision Order.

[12] However the Society also agreed that the Court could make an interim access Order, and adjourn the trial respecting access, in view of the unknowns. An expansion of the father’s parenting time may be possible, but a better safety plan needs to be built. Without this further development and fleshing out, the Society’s access plan is right now unworkable and there is a risk that there will be a Motion to Change. Geography, the parents’ health issues, both parties’ limited financial resources, the fact that the access center in Aurora cannot even accommodate what the Society proposed, and the requirements of everyday life for the children and their caregivers, create too many barriers right now. The Court cannot solve all of these, without further work invested by the Society, and the parties.

[13] Rather than granting a final access Order that the Court worries will not work, the Court will attempt to structure a framework for this family to work on over a six-month period. If necessary, there can be a further limited hearing to follow, for the Court to receive updated evidence (if the access issues do not resolve on consent).

PART II: PRIOR PROCEEDINGS

[14] I will now summarize the history of this matter to this point. This includes the Society’s involvement with the family, prior to initiating a proceeding.

A. The Voluntary Services Agreements in 2019 and 2021

[15] The Society has been involved with the family, essentially for the children’s entire lives. Before this matter was brought before the Court, the Society became involved by way of two Voluntary Services Agreements (the “VSAs”).

[16] The first VSA was signed on September 5, 2019, shortly after E.’s birth. It identified the protection concerns then existing as the mother’s “historical substance misuse/current marijuana usage and the impact this has had on her parenting”, and the father’s “untreated schizophrenia and the impact this may have on his parenting”. Among other things, in this VSA, the parties agreed not to consume any alcohol, non-prescription medications and/or marijuana in a caregiving role, they agreed to engage in certain services, and they agreed that the father would not be left in a sole caregiving role with E. The father also agreed to meet with his psychiatrist on a regular basis, and follow treatment recommendations. Some of these terms, particularly in respect of the mother’s substance misuse and the father’s medical treatment, were breached.

[17] The second VSA was signed on July 21, 2021, now after J.’s birth. The identified protection concerns were elaborated upon in this document. They were the mother’s “untreated and uncontrolled alcoholism and substance misuse”, her conflict with the law arising from that substance misuse, parental conflict, coping skills, lack of follow through with community supports, the father’s loyalty bind between the mother and the children, and the mother’s refusal to access family supports to address the protection concerns.

[18] Through this document, the Society agreed to support the mother to obtain in-patient treatment for her alcohol misuse. That included providing financial support. The Society also agreed to support a discharge plan for the mother upon completion of treatment. The Society agreed to ensure that a Family Intervention Team worker was assigned to help the family. It agreed to develop a wrap around safety plan for the children.

[19] The mother agreed to complete an in-patient program. Yet she did not then, and has not since completed one. The earlier restriction about the father being left alone with E. in a caregiving role was removed from this document. Complaints and concerns about what happened under this relaxed term then ensued.

B. The Children’s Removal from the Joint Charge of the Parents and the Protection Application

[20] On March 31, 2022, less than a year later, the Society commenced the protection application. This followed the children’s removal from the joint charge of their parents. The Society sought to place the children with the maternal grandmother and the paternal aunt, under a six-month supervision Order. The protection application later resolved on that basis, on September 29, 2022, by way of the six-month Supervision Order of Himel J.

C. The Orders and Endorsements of this Court

[21] There are 28 Endorsements or Orders in the Trial Record, made in both the original protection application and continuing during this Status Review proceeding. Some deal with procedural matters; others are more substantive in nature, upon which I shall turn my focus in this part of the summary.

(1) The Temporary Care and Custody Hearing

[22] On March 31, 2022, Himel J. made a temporary Order in the protection application placing the children in the temporary care of the grandmother and the aunt. The Court ordered access in the discretion of the Society, with the Society to make its best efforts to arrange a minimum of two supervised visits of 1 to 1.5 hours in length.

(2) The Final Supervision Order of Himel J. dated September 29, 2022 Was based on the Parties’ Statement of Agreed Facts

[23] The protection application resolved on consent by way of a Statement of Agreed Facts (“SAF”).

[24] The Statement of Agreed Facts is 20 pages in length. Based on it, Himel J. found the children were in need of protection pursuant to sections 74(2)(a), (b) and (h) of the CYFSA. The children remained in their placements with the grandmother and the aunt during the period of supervision. There were various terms and conditions put in place, which included that the parents and the caregivers were not to engage in conflict in the presence of the children, nor were they to use any alcohol or intoxicating substances while in a primary caregiving role.

[25] The mother once again agreed to engage in addiction services, but this time she would not agree to in-patient treatment. She agreed to abide by any criminal, probation or other “no-contact” orders, while they were in effect, but she did not follow this term. The father agreed to seek “psychiatric consultation, treatment and to follow recommendations from psychiatrist”, which term has also been breached. There was a similar term about the father’s compliance with any orders of the criminal court. The father was subject to pending criminal charges following events around the time of the removal. (He would later be acquitted by Sickinger J. of the Ontario Court of Justice, on November 14, 2023, following a criminal trial).

[26] The SAF states that a maternal aunt, named D.S., could provide respite care at the discretion of the maternal grandmother, on notice to the Society and to the parents. I come back to this particular term later in this Judgment. Himel J. otherwise ordered access in the discretion of the Society.

[27] The facts supporting Himel J.’s finding and disposition, are detailed in the SAF. There are facts about historic incidents of the mother’s drinking, police involvement, and conflict with members of her family. There are also ongoing reports of police involvement, concerning arguments and fighting between the parents, and the mother’s continued drinking. In fact, on page 17 of the SAF, there is a chart summarizing some 13 incidents that involved the police, between April 8, 2021 and March 26, 2022. The list of police contacts has grown between March 26, 2022 and the time of this trial.

[28] Some notable entries of concern, which relate to the ongoing risks to these children, still present, are:

(a) In regards to the parents’ abilities to care for the children, E. had been re-admitted to the hospital soon after his birth for weight loss;

(b) Soon after J’s birth, a hospital nurse reported to the Society, that J. had signs of marijuana withdrawal. The mother admitted during this trial that J. suffered from withdrawal. She also continues to smoke marijuana now during her current pregnancy, admittedly against her doctor’s advice;

(c) In regards to the parents’ abilities to care for the children, J. also missed two important medical appointments after his birth;

(d) In regards to the father’s mental health and consequently his ability to parent, the father’s treating psychiatrist, Dr. Rustam Sethna, reported to the Society on August 29, 2019, that he had been treating the father for many years. He reported that the father was diagnosed with paranoid schizophrenia. He reported that as of the date of that call, he had not seen the father for 6 months. He reported that the father last presented as anxious and suspicious, that the father had been hospitalized a few times in the past when in crisis, and that the father slept with and carried a knife. Dr. Sethna also expressed a concern that the father was not then on his medication, although he did not feel that the father was a risk to the new baby. More details about the father’s subsequent inconsistent compliance with a treatment plan were brought to the Court’s attention during this trial;

(e) In regards to the parent conflict, on March 31, 2021, the police attended at the home following a “domestic incident” that took place between the parents, that was “verbal not physical”. The father was charged with mischief for damaging the mother’s phone, and could not reside at the home;

(f) On March 26, 2022, the date of the removal, the police and ambulance had been called, because E. had “potentially ingested something or was having a medical episode” such as a possible seizure. The mother’s testimony at this trial was that E.’s lips had just turned blue, although the statement of agreed facts says, that the police advised the Society that the “parents” had called 911, and reported that she looked pale, her lips turned blue, and that she had slumped over and twitched;

(g) On that occasion, the mother also reported to the police, that she had argued with the father the night before. She said that the father pulled a knife on her and threatened her when she went out;

(h) The mother nevertheless went out with her new partner S.G., which appears to be what triggered the argument between the two parents in the first place. The mother agreed in the SAF, that she lacked insight, by leaving the children alone with the father that night;

(i) The father was arrested, although as set out already, he would later be acquitted by Sickinger J. The acquittal was based on concerns about the credibility and reliability of the mother’s testimony; and

(j) The mother also reported that the father had been hiding his medication rather than taking it. It was agreed in the SAF, that pills had been found hidden in clothing, something which I was also told about at this trial.

[29] Above, I indicated that the parents both breached certain terms in the two VSAs, and later in Himel J.’s Final Supervision Order. In particular, and as I will explain in more detail below, there was more alcohol use by the mother, she did not follow through with treatment for her alcohol misuse, and there was more parental conflict. In regards to the father, he did not attend medical appointments with his doctor for approaching a year, between August of 2023 and May of 2024.

D. The Status Review Proceeding

[30] The Society commenced this Status Review on March 14, 2023 for another supervision Order. But on March 12, 2024, it amended the application to claim final Orders under section 102. That is what is before me at this trial.

(1) The First Appearance in the Status Review

[31] The first appearance in the Status Review occurred on March 21, 2023. Then, Bruhn J. made an order for terms of supervision to continue on a temporary basis during the Status Review, and she continued the same access Order that Himel J. had made. While I have not engaged in a line by line comparison of the new terms of supervision, but they appear to be similar, if not the same as what Himel J. had ordered.

(2) The Case Conference Before Daurio J. on June 20, 2024

[32] There was a case conference on June 20, 2023, before Daurio J. According to her Endorsement, the Court had been informed that the father was presenting a different kin plan. The Society said it was assessing it. [2] However the Society was also proposing a plan to relocate E. to the maternal aunt D.S.’ home, near Ottawa. The Court scheduled a motion to hear this request to vary to the placement on an interim basis.

(3) The Society’s Motion for E.’s Relocation to Ottawa, and the Father’s Therapeutic Access

[33] It appears that the Society’s motion was precipitated by the fact that the maternal grandmother was then expressing reservations about caring for E. in the long term. But already at this point, the father had been having extensive therapeutic access, supported by Family Intervention Worker Colleen Johnson. Just before the Society brought this motion, it chose to terminate the therapeutic access.

[34] The Society’s motion came on before MacPherson J. on August 10, 2023. It was not successful. The Society withdrew its motion orally, on the basis of concerns that the Court had noted, respecting the threshold required to vary a placement on an interim basis in a Status Review. Simultaneously with withdrawing its motion, the Society indicated that it would amend the Status Review Application to seek a relocation and a custody order with D.S. in Ottawa.

[35] The Society then abandoned this plan of action, entirely. It did not amend to seek E.’s relocation. The grandmother changed her mind, in part because her child care responsibilities eased up, after E. got into a day care.

[36] After this failed motion, the Society decided to reinstate the father’s therapeutic access. But it did so in a drastically increased, and unusual fashion. The father asserted at this trial, that the Society set him up for failure. By most accounts at this trial, what the Society tried to do here, turned into a bit of a disaster.

(4) Daurio J.’s Section 98 Order for A Psychological Assessment

[37] At the conclusion of the August 10, 2023 motion, MacPherson J. put the matter over for another possible motion, for a psychological assessment of the father. Daurio J. granted that Order on December 12, 2023.

[38] Pursuant to Daurio J.’s section 98 Endorsement, Dr. Daniel Fitzgerald was appointed to assess the father. The reasons for the assessment were to:

(a) establish a formal diagnosis and to develop a corresponding treatment plan;

(b) identify the specific triggers that lead to the father’s dysregulation, as well as additional indicators of such dysregulation;

(c) comprehend how the father’s diagnosis affects his behaviours, judgment and decision-making;

(d) evaluate how the diagnoses may affect his attention span/focus and capacity to acquire new skills and manage stress; and

(e) evaluate how the father can assess risk and implement safety measures in response to that assessment for himself and others.

[39] Dr. Fitzgerald was specifically asked to opine on and make recommendations about the following ten questions about the father:

(a) What is the precise diagnosis, and what is the recommended treatment plan to support stability in his mental health?;

(b) What observable behaviours or signs might family and friends observe if he becomes dysregulated or fails to adhere to his medication regimen and treatment plan?

(c) What specific risks does he pose to himself and others, and how are these risks mitigated when he is following his treatment plan?

(d) What are the known side effects that the father experiences from his medication?

(e) How should support be structured for the father in the event of his dysregulation?

(f) How capable is the father of engaging in proactive planning and effective problem-solving?

(g) How capable is the father of identifying, assessing and managing risk for himself and others?

(h) How capable is the father of remaining focused, multitasking and addressing competing demands?

(i) How capable is the father of maintaining his attention span/focus and an ability to acquire new skills and manage stress?

(j) What methods are available to verify that the father is consistently adhering to his medication schedule and treatment plan?

[40] Dr. Fitzgerald released his Report on March 11, 2024. His evidence is discussed in some detail, below.

(5) The Settlement and Trial Scheduling Conferences

[41] These prior proceedings concluded with a Settlement Conference before Bennett J., followed by a Trial Scheduling Conference. As the matter did not resolve in conferencing, this case was then set down for a trial, during the June 2024 child protection sittings.

PART III: ISSUES AND ANALYSIS

A. Applicable Statutory and Legal Provisions

[42] Pursuant to section 113(2) of the CYFSA, the Society was required to apply to the Court for a status review before the expiry of Himel J.’s Final Supervision Order. Pursuant to section 114, on such an application, the Court may, in the children’s best interests: (a) vary or terminate the Supervision Order, including a term or condition or a provision for access that is part of the Order; (b) order that the original order terminate on a specified future date; (c) make a further order or orders under section 101; or (d) make an order under section 102.

[43] At ¶ 51-53, 73 and 74 of C.A.S. v. M.W. and M.S, 2020 ONSC 1847, Madsen J. (as she then was) summarized the law on status review applications and the treatment of agreed statement of facts, which principles have application here. She wrote:

(a) On a status review, the Court is to assess what, if anything, has changed since the making of the prior Final Order. A status review hearing is not a re-hearing of the original protection application;

(b) A consent order that ended an action is of the same effect as a judgment of a court following a trial or hearing, for the purpose of the doctrine of res judicata;

(c) Prior court orders, reasons for decision, and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders;

(d) The original order is presumed to be correct. A status review is not a rehearing of the previous order that was made;

(e) The Court must first determine whether the child continues to be in need of protection and whether, as a consequence, the child requires a court order for his or her protection;

(f) The Court must consider the degree to which the risk concerns that form the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection or from circumstances that have arisen since then; and

(g) The Court must consider the best interests of the child. This analysis must be conducted from the child’s perspective.

B. Evidentiary Issues Respecting the Evidence that Pre-dates Himel J.’s Final Supervision Order

[44] The Society has filed several lengthy affidavits from various of its employees who have been involved in servicing this family, including those of:

(a) Elena Petrushanko, who was the family services worker from January 24, 2020 until early October, 2022;

(b) Nahid Hassan, who has been a backup Family Services Worker since March 28, 2022;

(c) Awrin Ranjkesh, a Family Services Supervisor, who has been involved with this family in that supervisory role since July 11, 2022; and

(d) Melissa Eben, who has been the family services worker since early October, 2022.

[45] Mr Murphy and Mr. Doodnauth put certain objections on the record or made arguments about the sometimes historic nature of the Society’s evidence. Indeed, much of these affidavits contain details that pre-date the SAF and the Final Supervision Order.

[46] The two principal affidavits are those of family services workers Ms. Petrushanko and Ms. Eben. In addition, Mr. Hassan’s evidence details some of the events surrounding the children’s removal from the parents, as Ms. Petrushanko was away from work between March 26, 2022 and April 4, 2022. And Mr. Ranjkesh’s affidavit details the supervisory meetings that occurred, but the source of the information and belief really comes from other Society employees who had been involved day to day, including Ms. Petrushanko and Ms. Eben.

[47] In regards to the family services workers’ evidence, Ms. Petrushanko’s affidavit details events that pre-date both the commencement of this proceeding, and Himel J.’s Final Supervision Order dated September 29, 2022, almost entirely. Carriage of this matter was transferred to Ms. Eben a few days after the Final Supervision Order. Nevertheless, over the course of 39 pages, Ms. Petrushanko discusses the protection concerns that then existed about alcohol use, parental conflict, police involvement, and non-compliance with the terms of the Voluntary Services Agreement, previously in place. Some of Ms. Eben’s evidence, and some of the oral evidence I heard at this trial, is of a similar ilk.

[48] While I have reviewed and considered this historic evidence, the SAF adequately deals with the past. As Madsen J. wrote, those issues need not be relitigated. However the prior evidence is still part of the backdrop against which to consider “the degree to which the risk concerns that form the basis for the original order still exist” since the Final Supervision Order.

C. The Children Continue to be in Need of Protection and Require a Court Order for Their Protection

[49] There is very little issue respecting this part of the analysis; this was not even really disputed by the time of closing submissions.

[50] The protection concerns that continue to present, identified in the Society’s Opening Trial Statement and subsequently proven at trial, and that were additionally exposed during the course of the trial, follow next. Based on what is set out below, I find that the children continue to be in need of protection and require a court order for their protection.

D. The Risks Concerning the Mother

(1) The Mother’s Alcohol Misuse

[51] This ongoing risk is patently obvious. It was more or less admitted at the trial.

[52] For example, the mother herself admits that she suffers from serious alcoholism. In her trial affidavit sworn June 3, 2024, the mother says that she went through trauma in the past. She says she was diagnosed with depression in 2014, after her first child, Z., was born. She says she has also been dealing with “full blown alcoholism for about 6 years now, using it as self-medication for [her] depression”.

[53] There is also the Society’s evidence that augments the extent of the ongoing problem. This evidence is overwhelming, that the mother has not addressed the problem. As already indicated and as will be elaborated upon below, the mother failed to complete adequate substance abuse treatment, while the VSAs were in place and during the period of the original protection application. That continues to be so since the Final Supervision Order of Himel J. dated September 29, 2022.

[54] Before the original protection application and the Final Supervision Order, the mother did not take her need to pursue recovery seriously. She did not follow through. For example, on August 4, 2021, the mother told Ms. Petrushanko that she had connected with a service that was going to help her apply for a rehabilitation program, although the mother said she did not want to go into residential treatment. By September of 2021, the mother reported that she was on a wait list for treatment at Hope Place. But on October 18, 2021, the mother told Ms. Petrushanko that she did not need to go to a residential treatment facility. She instead said she was having weekly appointments with an addiction counsellor, although she had missed a meeting the week prior. But soon thereafter, the counsellor apparently told Ms. Petrushanko that the mother in fact required in-patient treatment.

[55] According to Ms. Eben’s 40-page long trial affidavit sworn May 21, 2024, the mother said that in or around January of 2022, she apparently began working with Cornerstone Recovery, taking the “Making Changes” program. Yet she also obtained a job working at the LCBO.

[56] According to Ms. Petrushanko, by June 22, 2022, the mother began working with a different addiction counsellor, although there had only been two meetings by that point. That counsellor would later report to the Society on September 26, 2022, that the mother had been struggling to have consistent sessions with her. In fact, the mother had missed a combined total of 16 sessions with both her previous and her current addictions counsellor. Very little work had been done in the few sessions that the new counsellor had actually been able to conduct. In the end, the mother’s addiction counselling file was closed due to the mother’s failure to meaningfully engage.

[57] Since the Final Supervision Order, things have not improved. According to Ms. Eben’s trial affidavit sworn May 21, 2024, on January 12, 2024, Ms. Eben learned that the mother had attended CAMH looking for treatment, and she was discharged to “Women’s OWN detox” in Toronto. The next day, the mother reported that she would be attending Renascent Addiction Treatment Centre, for an in-patient program. About two months later, on March 5, 2024, the mother reported that she had been at Renascent for three weeks. However she said did not want to finish the program, so Renascent apparently helped her get into an outpatient program.

[58] There was some delay in Ms. Eben obtaining a consent to speak to Renascent, to verify what the mother had reported. Ms. Eben later learned that the mother had been admitted into Renascent on October 4, 2023, but she had been discharged on October 11, 2023 for being under the influence of substances. She was discharged to Women’s Own Withdrawal Management Program. The mother went back to Renascent again, on January 25, 2024. Four days later, she was discharged after “contraband” (i.e. alcohol) was found in her room. The mother then went to stay with the father for a few days after this discharge.

[59] Separately, the Society points to this fact as evidence of a lack of insight on the part of the father, in view of his current plan to parent separately from the mother. While perhaps kind of him to have helped the mother out, given the past parental conflict when the parents were together, that the children had been exposed to, the Court agrees with the Society. And as I explain below, the police ended up being called during the mother’s temporary stay with the father, culminating in the mother’s arrest.

[60] Although some of this evidence about the mother’s failure to pursue treatment rests on hearsay, it is not actually disputed that the mother did not complete an in-patient treatment. Nor are the reasons for her removal from the Renascent program the second time (i.e. the presence of contraband).

[61] As already indicated, the mother is now pregnant with her fourth child, with a man named S.G. On the one hand, she is not drinking during her pregnancy. In fact, in her trial affidavit she says that she stopped drinking during her previous pregnancies, too.

[62] The mother points to this and says she believes that she can stop drinking, if she really puts her mind to it. She says she has “a lot” more support now, and that she has learned “coping strategies” to deal with her problems, rather than turning to alcohol. She is currently taking “another intensive online program” through Jean Tweed, after which she says she will have access to aftercare, counselling, and many other supports that are offered.

[63] Yet she resumed drinking after her prior pregnancies. The mother has also in the past used, and she continues to use, marijuana. Although she has stopped drinking while pregnant, she chose to smoke marijuana during past pregnancies, and she does so during this pregnancy. She even acknowledged during the trial that her doctor is not approving of this smoking. She also acknowledged that J. experienced withdrawal symptoms after his birth, although she may have attributed that to smoking cigarettes. This evidence and behaviour continues to reveal a lack of insight, and it is evidence of risk.

[64] In conclusion, the Court does not have confidence in these statements in the mother’s trial affidavit, or the statements the mother made during in her in court testimony, that things have changed respecting her addiction. And the mother called none of the professionals with whom she had previous sporadic involvement in the past, almost no evidence about the past or current programs, like that at Jean Tweed, to discuss her past work, her commitment to recovery, and the like, and no evidence from anyone at Jean Tweed, who could comment on her current progress.

[65] While the mother says that she does not intend to resume drinking after the birth of this new baby, what is patently obvious to the Court, is that the mother relapsed in the past after giving birth. She has not taken steps to address the underlying trauma with which she admits to suffering. Her in court statements, and her conduct at this trial, reveal that she lacks insight into what she needs to do, to address this.

(2) The Mother’s Inability to Control Her Angry Outbursts

[66] During her in court testimony, the mother admitted to having issues with anger. The mother’s conflict with others has included conflict with the father, hew new partner, S.G., and other family members who are part of the plans being presented to the Court. There has also been conflict with at least one random stranger in the community. Most often, the mother’s outbursts occur when intoxicated, but not always. The bottom line is that the police have been involved with the mother numerous times. Like with the evidence about alcohol misuse, this happened prior to the commencement of the protection application, while the protection application was pending, and it has continued since the Final Supervision Order.

[67] The Society’s Two Volume Exhibit Book, and a third Supplementary Exhibit Book, contain 57 tabs of police records, spanning the period between August 30, 2019 and May 7, 2024 (although not all of these records pertain to the mother’s issues with anger). In the end, the Society only sought to introduce some of these records, not all 57 tabs.

[68] Nevertheless, some of those that post-date the Final Supervision Order, do in fact reveal the mother’s conflict with the law, her problematic drinking, other angry outbursts, and even assaultive behaviour, including when she claimed she was not drinking. There are also examples of housing instability, which I discuss later.

[69] In particular:

(a) On March 22, 2023, the police were called as a result of the mother fighting with S.G. and S.G.’s mother. The mother fell and hit her head on a dresser in the bedroom. Police observed the mother to be quite intoxicated. Repeat, and similar behaviour in this particular home, was reported again on April 2, 2023 as well;

(b) On June 6, 2023, the police were called. The mother was arrested and charged with various offences, after the mother drove a car into a ditch, while drunk. The charges pertained to her operation of the vehicle while intoxicated, and her failure to comply with a prior release Order that was in place. The mother admitted to having done this, during this trial;

(c) The mother has been charged with two different offences relating to having stolen alcohol from an LCBO, on two different dates, in July of 2023;

(d) On February 8, 2024, the police were called. The mother had been staying at the father’s apartment (after her discharge from Renascent – see above). The person who phoned the police alleged that the parents had been arguing inside and outside of the father’s apartment;

(e) This time, the police observed the mother to be “noticeably intoxicated”. She became agitated when the police tried to speak to her. The police arrested the mother for another failure to comply with prior release terms, because criminal conditions then in place prohibited the mother from having alcohol and/or drugs in her body when outside her residence; and

(f) On May 7, 2024, just a few weeks before the start of this trial, the mother was charged with assaulting a passenger on public transportation. Although during this trial the mother explained that she did not hit this other person, (she admitted to knocking the phone out of that person’s hand), the police report states that the mother kicked this person in the stomach. The mother testified that she was not intoxicated, when whatever actually happened, occurred.

[70] The mother’s conflict with her family members, including with her own mother is said to arise out of the mother’s drinking. That too is not just a thing of the past; it is ongoing. There are upsetting family dynamics in the mother’s family, apparently in large part because of the drinking.

[71] For example, the mother does not speak to one of her two sisters. Their relationship is completely fractured. The mother’s other sister, D.S., who continues to maintain a relationship with the mother, testified against the mother at this trial.

[72] There is also, more recent evidence of conflict between the mother and the maternal grandmother, triggered by the mother’s drinking, that is more germane. For example, there is a police report dated September 26, 2023. Police were notified after a 911 call had been made that day. To the police, the grandmother advised that the mother was visiting her home and had gotten into an argument with the paternal grandfather. The mother then left the home. The grandmother reported that she believed that the mother had been drinking.

[73] During this trial, the Society tendered an audio recording and a transcript of certain conflict within this family, related to the mother’s drinking. I initially marked these documents as Exhibit “A”, because I was uncertain about the circumstances surrounding the making of the recording. I now query whether this recording relates to the incident that occurred on September 26, 2023, above.

[74] Regardless, upon further reflection, I have decided to admit this recording. It provides an insightful verbal/audio illustration of why the mother cannot be allowed to be around her family and the children, when she is drinking. During it, all three of the mother, the grandmother and the grandfather can be heard yelling at each other. The mother can be heard speaking to her parents in an extremely disrespectful manner, such as telling the grandmother to “shut the fuck up” and telling the grandfather to “fucking muzzle your fucking stupid dog”, referring to the grandmother.

(3) The Mother’s Housing Instability

[75] The mother is experiencing housing instability. It is not just housing stability on its own that is a problem here; the mother’s housing instability has morphed into a different source of conflict with the maternal grandmother.

[76] The mother’s housing instability was prevalent throughout some of the period of time after the Final Supervision Order. It has continued during the Status Review, to present.

[77] For example, one of the police records that was introduced into evidence is from December 10, 2022, a little over two months after Himel J.’s Final Supervision Order. On that day, a landlord called the police to advise that the mother and her roommate at the time had recently been evicted from an apartment, and left significant damage to the apartment. A police officer then attended and inspected the apartment. He observed holes in the wall, a missing dryer taken out of the unit, cupboard doors ripped off, and pet feces and urine all over the floor “in every room”.

[78] At the moment, the mother is living in a different rented room, in Aurora. In her trial affidavit, the mother deposed that she occupies the master suite in a home with four other people. She referred to this arrangement as “suitable space”. But I then heard evidence from the mother herself, that there is conflict with her roommates.

[79] At ¶ 3 of her trial affidavit sworn June 3, 2024, the mother says that her plan “for the time being” is to stay there until she can find a suitable and affordable apartment, “probably closer to her [mother’s] residence”, although she was unsure when this would happen. On the penultimate day of this trial, it was revealed that the mother intends to move very near to the maternal grandmother.

[80] The revelation of this plan deteriorated into a yelling session between the mother and the maternal grandmother, with the mother swearing in the process of her yelling. Apparently there had been an argument outside the court room, before it continued in Court from the witness box. That outside argument, followed by the mother’s in court outbreak, continued because the grandmother attempted to cross-examine the mother about whether the mother’s choice to move near her was an attempt to get her “foot back in the door”.

[81] I find this late in the day revelation is notable in three respects. First, the mother had not been drinking when this occurred. Second, at ¶ 11 of her trial affidavit sworn June 3, 2024, the mother said that her communication with the grandmother had become “a lot better recently”, whereas this “used to be a big issue for [them].” Yet 1.5 months later, right under the direct observation of the Court, this heated argument broke out. Third, the mother’s apparent plan to move near the maternal grandmother concerns the Court that E. will be exposed to conflict, if the mother attends at the grandmother’s house and continues to act like this. Based on this, coupled with the other examples above, this Court finds that restrictions need to be imposed, to protect the stability of E.’s placement with the grandmother, and to insulate both children from the mother’s volatility.

(4) The Mother’s Pregnancy and Her New Partner

[82] The mother’s pregnancy, combined with her plan to continue in a relationship with S.G., is a new risk. It poses risks not just to the yet to be born child, but also to the children before the Court in this case.

[83] For example, S.G. is currently subject to restrictions of a criminal court as a result of a number of alleged assaults said to have been perpetrated upon the mother. The Society introduced a police record dated July 23, 2023 that details some five counts of violent assaults on the mother. [3] These are said to have occurred in March of 2022, April of 2023, and July 21, 23 and 26, 2023. Most of these post-date Himel J.’s Final Supervision Order.

[84] The mother’s in-court testimony revealed a lack of understanding on her part about the harms of family violence. She seemed to suggest that she deserved to be assaulted. She also said that she had assaulted S.G. “10 times worse”.

[85] Not only was the Court concerned to hear a complainant talk this way about assaults that I am told she was the victim of, but as it pertains to these children before the Court, there is a real, ongoing risk of their exposure to family violence, if the mother chooses to continue in this relationship, as she said she would.

[86] I find that the mother is incapable right now, of shielding E. and J. from further incidents of family violence. Apparently, the mother’s and S.G.’s completely unstable plan, to care for their new baby, is to resume their relationship, once the criminal restrictions imposed on S.G. are lifted. And notably, S.G. suffers from mental health issues, including schizophrenia, apparently. While the mother says his diagnosis is different from the father’s (G.A.N.) schizophrenia, she said that without detail. She also said that without any serious regard for the fact that S.G.’s mental health issues, whatever they are, appear to manifest themselves in part by way of violent conduct directed at her.

[87] The Society specifically advised the Court that intends to maintain an open, pre-natal file, respecting this new baby. It may very well be initiating a protection application when the child is born. The Court hopes that the mother takes seriously the Court’s comments in this decision. There may be a small window here for her to start to make real efforts and meaningful changes, with the Society’s help. Otherwise, any protection application can be made returnable before me, or the previous case management judge, Himel J. This is subject of course to any timing concerns. The first appearance can also go before a different judge in a situation of timeliness, if either of Himel J. or I are not sitting.

E. The Risks Concerning the Father

[88] In regards to the father, and the “degree to which the risk concerns that form the basis for the original order still exist”, his situation is different. These risks largely pertains to his mental health. But as Sherr J. explained at ¶ 113 and 114 of Children’s Aid Society of Toronto v. R.S., 2018 ONCJ 866, it does not automatically follow that a child will be in need of protection (or continues to be in need of protection) just because a parent has mental health challenges. There are wide ranges of mental illnesses that affect parents differently, and by extension, their children differently.

[89] Therefore, to consider whether a parent’s mental health places a child at risk of harm and if so, whether a child can still be placed in that parent’s care, Sherr J. mapped out a list of 12 factors. These factors included the type of mental illness, its severity, the frequency of the symptoms, whether situational or chronic, the impact on the parents’ functioning and parenting, the presence or absence of other stressors, the impact on the children, the degree of insight a parent has into his health, the parent’s compliance with treatment, the presence or absence of a support network, and whether the children have any needs that make them more vulnerable to compromised parenting.

[90] Although not child protection decisions, more recently in P.P. v. A.V., 2021 ONSC 7459 and in Gerasimoloulos v. Sambirsky, 2024 ONSC 2368, Himel J. and Kraft J. respectively, referred to the Revised AFCC-Ontario Parenting Guide, Microsoft Word – AFCC-O Parenting Plan Guide (Version 2.0, December 2021).doc (afccontario.ca) and the principles discussed therein regarding mental illness as instructive. They quoted from page 45 of the guide, which provides some guidance about how to address mental health in a parenting proceeding. Similarly to what Sherr J. wrote, the guide states that if there is a parent who is compliant with a treatment plan, or where parenting is not affected, regular parenting time can be established or resume.

[91] Unfortunately, almost all of the factors that Sherr J. identified, cause this Court some concern, particularly as it concerns placement, but also when it comes to the father’s access.

(1) The Father’s Diagnosis and Treatment Plan

[92] The father suffers from paranoid schizophrenia. His condition is chronic and lifelong. As I explain in some detail next, when off his medication, the father’s “positive symptoms” have included paranoid and delusional thoughts, barricading himself into closets and bolting windows shut, and building a spear. Even when he takes his medication, he suffers from “negative symptoms” that impact his energy levels, his mood, his affect, and his quality of life. He is at risk of breakthrough symptoms even when on his medication. To manage his condition, the father must take medication and see his psychiatrist regularly. He would also benefit from a better support network, including ongoing psychotherapy.

[93] But there have been periods in the past, including in the recent past, where the father has not taken his medication, or attended appointments regularly with his doctor. And at the moment he lacks a support network. He is not receiving regular psychotherapy. Until these deficits are addressed, the Court finds it has no choice but to proceed very cautiously.

(2) The Prior Evidence of Risk Against Which to Assess Whether Ongoing Risk Still Exists

[94] The Court heard evidence about how the father’s mental health manifested itself in the past. As I did already respecting some of the other prior evidence, I also rely on this prior evidence, as a basis to assess whether there is ongoing risk.

[95] In her trial affidavit, the mother says that the parties lived together for about 4 years, between 2018 and 2022. She says that things were good in the relationship at first, but after E. was born, there were “red flags”. She says that the father started to do strange things, like keeping the blinds and curtains closed. She says he put deadbolt locks on the doors. She says he locked himself in the storage room under the stairs for hours at a time. There was a specific report from the mother, and photographs tendered to show to the Court, that in 2022, the father had made a spear using a knife and a purse strap. While issues about the credibility and reliability of the mother’s accounts have been previously flagged (such as in the criminal trial before Sickinger J., and during this trial too), I do not completely reject the mother’s accounts of her previous experiences with the father. There is also other corroborating evidence.

[96] For example, Police Constable Tyler Nash attended at the home that the parents then lived in together, on March 26, 2022. This was around the time of the children’s removal. He attended at just after 3 AM that day. According to Officer Nash, the father was upset because the mother had left with S.G. The father told the police that S.G. was dealing drugs, and he believed he was armed. The father also told Officer Nash that he thought someone was trying to pump gas into the apartment, to gas him.

[97] While they children were not in distress and Officer Nash did not feel he had grounds to apprehend the father under the Mental Health Act, he observed the lights and the television to be on in the residence at 3 AM, and he observed that the children were up at that late hour, playing with toys, which he thought was odd (given their young age). While Officer Nash testified that the father was pleasant, he also appeared to be a “bit paranoid” [4] according to the officer.

[98] Another example, as set out earlier, is that around the time of the removal, the father was arrested. His arrests followed the mother’s reports of family violence, that later culminated in the trial before Sickinger J. Although he would be acquitted, he was no longer able to remain in the home, pending the resolution of the criminal charges. So the father went to stay with his sister for a time.

[99] In the summer of 2022, the aunt reported to the Society, that that the father had used one of the children’s toys, to steam garlic, in the middle of the night. Then, at one point during the father’s stay in her home, the aunt discovered that the father was not taking his medication. She testified that she and their grandmother (who lived with the aunt at the time) supervised him taking the medication, to ensure that he was 100% compliant. This discovery that the father was not taking his medication appears to have followed a different incident in May of 2022. The medical note of Dr. Sethna, discussed below, reveals that the father himself, reported to his psychiatrist, that he had been off his medication.

[100] After the father moved out of her home, the aunt noticed that the father had screwed shut doors in her home while living there. On March 9, 2023 (after the date of Himel J.’s Final Supervision Order), the aunt reported this to Kinship Service Worker Marni Goril. Ms. Goril observed damage to the bedroom and closet door in the aunt’s home, during a home visit that day.

(3) The Father’s Condition Is Chronic

[101] While the father admits to his diagnosis, he says he is frustrated that the Society distrusts him, particularly respecting his mental health and medication compliance. He says that the source of some of the distrust comes from his sister, A.N. and the mother, who have advised the Society that they don’t believe the father is taking his medications. However it is not just these reports from family (or Officer Nash). There is also medical evidence, and it reveals the father’s condition is both serious and chronic.

[102] The Court heard the testimony of the father’s treating psychiatrist, Dr. Sethna, as well as the evidence of Dr. Fitzgerald.

[103] I permitted Dr. Sethna testify as a participant expert who could give evidence about the father’s mental health condition and treatment.

[104] Dr. Fitzgerald is a clinical psychologist. He is licensed with the College of Psychologists of Ontario. He has several years of experience in the clinical assessment of children, adolescents, adults and families. He has conducted many assessments under section 98 of the CYFSA and section 30 of the Children’s Law Reform Act. He has been qualified as an expert witness in the field of clinical psychology in the Ontario Court of Justice and in the Superior Court of Justice in Ontario. I qualified Dr. Fitzgerald as an expert in clinical psychology, as an expert appointed under section 98 of the CYFSA to answer questions related to the father’s mental health, as an expert in the assessment of persons with schizophrenia, and as an expert in the assessment of children and families.

[105] According to Dr. Fitzgerald’s Report dated March 11, 2024, the father reported to him, that he began to experience low mood in his early 20s. He reported that he began to see Dr. Sethna at that time, who he said diagnosed him with depression and prescribed anti-depressant medication. Over time, his diagnosis changed as he began to experience beliefs that others might attempt to influence or harm him. He was diagnosed with paranoid schizophrenia.

[106] Dr. Sethna testified that he has been treating the father for about 14 years. He also testified that he diagnosed the father with chronic schizophrenia. Dr. Sethna testified that when he first met the father, he was hypervigilant. His thoughts had paranoid delusional content. He heard voices. He was persistently afraid and would not often leave the home. He felt it was safer to venture out at night, when it was dark. He could not work or function, and lived a very isolated existence in his mother’s home.

[107] Dr. Sethna explained that schizophrenia is a severe mental disorder that is characterized by both positive and negative symptoms. He explained that it impacts how a person feels and behaves. He explained that persons suffering from it may feel like that have lost touch with reality. Persons with schizophrenia can experience significant distress. The disorder can be distressing to others associated with the person too, according to Dr. Sethna.

[108] Dr. Fitzgerald likewise explained that persons with untreated paranoid schizophrenia typically have a range of “positive” symptoms. He said these can include delusions, hallucinations, disorganized thinking and speech, and disorganized behaviour. In response to questions put to him by counsel, Dr. Fitzgerald testified that barricading oneself in a room, preparing weapons, or believing that someone may be gassing you, would be examples of “positive symptoms” of the disorder. Dr. Fitzgerald reported that the “negative” symptoms of schizophrenia, could include a lack of motivation, difficulty expressing emotions and the loss of interest in the activities of life. This can be compounded by medication, which he said can have a strongly sedative effect.

(4) The Father Has Not Been Consistently Compliant With His Treatment

[109] Dr. Sethna testified that the father’s schizophrenia is treated with medication and auxiliary follow up. He testified that he follows his patients out of the Markham Stouffville Hospital across their lifespan, and tries to stay connected because “trust can be a tenuous issue” for persons with the disorder.

[110] The father deposed in his trial affidavit that he takes two medications, called olanzapine and escitalopram, which I understand from the expert evidence to be an antipsychotic medication, and an antidepressant/antianxiety medication. The evidence was slightly inconsistent about the doses the father takes. Regardless, this is managed by the father’s psychiatrist, and the discrepancy in the evidence about the dosages is not significant to my decision.

[111] The father says he is compliant with his medication, and that he has advised the Society of this routinely since 2020. The father also reported to Dr. Fitzgerald that he sees his doctor every four months to review his medication.

[112] Dr. Sethna testified that the father comes for follow up appointments. The last appointment was on May 1, 2024, at which point Dr. Sethna testified the father was doing quite well. There is another appointment scheduled for later in August. Dr. Fitzgerald opined in his report, that the father’s treatment regimen, appeared to be very effective. Dr. Sethna testified that he did not currently see the father as a man with fragmented thoughts. In fact, Dr. Sethna also testified that the father extracts joy from being a father. He testified that now that he is a father, he has become empowered and enthused to be the best father he can. He found him to be more committed to his own wellness and also to the wellness of his children’s lives. These are positive reports.

[113] However, while in some respects he described it as “par for the course”, Dr. Sethna nevertheless testified that there had been periods of non-compliance with medication. The Court’s current concern, is not that the father was hospitalized in 2015 and 2017 as was pointed out, but that there are also some recent examples of this in the father’s case. This is in addition to recent examples of the father not attending appointments.

[114] According to his case note of May 25, 2022 (about two months after the removal), the father reported to Dr. Sethna that he was “doing much better” since starting his medication a few months ago. When confronted with this note, Dr. Sethna testified that it seemed apparent that the father had come off his medication. And notably again, this coincides relatively proximate in time to the reports from the police, the mother and the father’s sister, of positive symptoms (the report about being gassed, the making of the spear, and bolting doors in the father’s sister’s home, above).

[115] In regards to the father missing psychiatrist appointments, some of his inconsistent attendance is more historic in nature. For instance it was revealed that the father did not see Dr. Sethna at all in 2019, only once in 2020 and only once in 2021, whereas Dr. Sethna recommends that the father should have appointments as frequent as every three to four months. Dr. Sethna testified that the father’s appointments were “drastically less” back then, than they should have been.

[116] But Dr. Sethna does not really track the situation, or follow up, if there are missed appointments. Rather, a missed appointment just results in a notation in the father’s chart. And as the evidence unfolded, while the father did resume seeing Dr. Sethna relatively regularly after the case note of May 2022, this only lasted for a little over a year. There was yet another gap in appointments between August of 2023 and May of 2024. It is somewhat concerning that the father waited to re-attend and see his psychiatrist, until the cusp of this trial.

(5) The Consequences of the Father Not Following the Treatment Plan Are Serious

[117] Dr. Fitzgerald reported that the cessation of treatment would precipitate a return of the active psychotic symptoms of schizophrenia. The father may also experience anxiety and agitation with heightened worry, fear and difficulty staying calm, as well as an increase in the “negative symptoms”. The onset of positive symptoms would likely occur quickly, according to Dr. Fitzgerald. He elaborated that the manifestation of the father’s condition would become obvious to people who are familiar with him, within a couple of weeks.

[118] Dr. Sethna likewise testified that the cessation of medication would be evident “quickly”. For example, he testified that the father would have difficulty sleeping, which would cause exhaustion and impair his functionality. This could be evident within a few days after stopping medication, according to Dr. Sethna.

(6) The Children Are Very Young and Vulnerable

[119] While the children do not have special needs per se that make them more vulnerable, they are both very young. That makes them inherently vulnerable.

[120] Dr. Fitzgerald also testified about the risks to children who have a parent with a mental health issue like this. He felt it may be important for the children to get education or other therapy supports as they age, to help them understand their parent’s illness. But again, for right now, this is not an option, because of their ages.

(7) The Father Lacks the Parenting Skills to Care for Two Young Children Primarily

[121] There are also significant concerns about the father’s skills, whether related to his mental health or not.

[122] The evidence was overwhelming, that in the past there was much chaos in the home, when the parents lived together. In addition to parental conflict, alcohol consumption on the part of the mother, drug use, including one example of cocaine use, the repeated attendance of the police, and criminal charges levelled against both parents, I heard evidence about the children’s needs not being met on a more instrumental level.

[123] For example, the mother deposed in her trial affidavit, that there were issues about the father’s supervision of the children, when they lived together. In that affidavit, she explained that there were times that she went out and left the father to are for the children. On occasion she came home and found the father sleeping, or the children otherwise left unsupervised. I also heard evidence from both the mother and her sister, D.S., that the children were up late at night, that they were fed pizza in their beds without supervision, and that the father left dirty diapers around the house.

[124] After the removal in March of 2022, the father saw J. regularly during the time that he lived with his sister, in addition to during his therapeutic access (that later included E., after the transportation logistics were sorted out). But the aunt testified that when the father lived in her home, he often delegated the care of J. to her (although he did help out at times). She also testified that when the father had supervised parenting time with both children in her home, the situation was chaotic. She testified that the children were screaming and running around, throwing toys, and making big messes. The aunt was left to clean up the mess. Her observations were consistent with what the Family Intervention Team worker, Colleen Johnson, observed.

[125] The aunt did not always supervise the father with the children the entire time. There were occasions when she left the father alone, and then she said she had to intervene. For example, there was an occasion where E., who was then 3 years old, was left alone on the stair case, and could have been injured. There was also another time where the children locked themselves in the bathroom. She said she was concerned, because there were “chemicals” under the bathroom counter, that the children could have accessed.

[126] The Society provided 118 hours of therapeutic access visits to the father over an 18-month period. The goal of this therapeutic access was to support the father to learn new parenting strategies and to build his insight into the children’s behaviours. Ms. Johnson tried to “improve the family’s functioning, the quality of their interactions and the parent-child relationships”.

[127] As indicated above, some of these therapeutic visits occurred at the aunt’s home, but by October of 2022, the Society moved the visits to its offices (after the father moved out, and because of some limitations in the aunt’s home). In 2023, the therapeutic visits expanded to occur in the community, and in the father’s home.

[128] Ms. Johnson’s trial affidavit sworn May 21, 2024 is 52 pages long. It extensively details the work that she did. Her affidavit is broken out into different phases.

[129] Ms. Johnson’s first tranche of work was a 60-day initial assessment period between May 4, 2022 and July 4, 2022. This pre-dates the Final Supervision Order. These visits occurred at the father’s sister’s home. Only J. was there, because there was an issue about E.’s transportation that had not yet been resolved.

[130] During this phase of the therapeutic access, there were positive interactions between the father and J. There are also some examples of the father accepting Ms. Johnson’s feedback. However by the end of this phase, Ms. Johnson felt that she required more time to fully assess the father’s parenting. She determined that, because her observations of the father and J. were limited in length to 1.5 hours, because E. was not yet present for the visits, and because the father’s sister did not allow the father complete freedom to prepare J.’s meals or manage other tasks for him in the home. [5] There would be another period of assessment.

[131] Ms. Johnson’s second phase of this intervention was for 90 days, between July 4, 2022 and October 4, 2022. The end of this phase coincided with the Final Supervision Order of Himel J. These visits also occurred in the father’s sister’s home. And once again, there were positive interactions between the father and J.

[132] However during this phase, Ms. Johnson still noted some disconnect between the father and J. She observed the father’s low affect when interacting with J. She also observed inconsistencies in his parenting. For example, on one occasion, the father noticed that J. required a diaper change (which was positive), but that he then hesitated when it came time to feeding J. before bed. Ms. Johnson questioned whether the father had insight into the past, such as when she tried to discuss with him the reason the children had been removed.

[133] The next phase was for another 90 days, between October 4, 2022 and January 4, 2023, now after Himel J.’s Final Supervision Order. During this phase, the visits moved to the Society’s office. Ms. Johnson explained to the father that he had to take full parenting responsibility during this next phase, that he had to arrive on time, and he had to bring the necessary items for the children.

[134] During this phase, there were a total of 20.5 hours of therapeutic visits. The father’s visits also increased from 1.5 hours to 2 hours. The father generally arrived on time. The father also displayed loving interactions with the children. In fact, towards the end of this phase, Ms. Johnson commended the father for his empathy, his protective nature and his nurturing qualities. She also found that he had been able to learn new parenting skills, such as setting limits and establishing a basic routine.

[135] However Ms. Johnson still felt there were a number of issues. For example, on the very first visit, the father forgot to bring diapers. The father also needed to be prompted to chase after E., when she bolted out of the car and into the car park, upon arrival for a visit.

[136] Ms. Johnson tried to get the father to be more animated with the children at visits.

[137] There were a number of other incidents that Ms. Johnson observed, which raised safety concerns in her mind, such as E. climbing on furniture, and running out of the observation room. Ms. Johnson explained that she tried to coach the father about how to exercise authority on these occasions, and while he tried, he was not always successful.

[138] Some incidents of particular concern to Ms. Johnson were that on December 8, 2022, E. screamed in her father’s face to sit down; and the father complied. Ms. Johnson intervened to try to teach the father a more appropriate parental response to this kind of behaviour. On December 22, 2022, Ms. Johnson again questioned the father’s insight into the children’s behaviours, after they were still being permitted by the father, to jump on furniture, and play with blind cords. When she asked the father about it, he responded that his family is “used to” the children jumping.

[139] There was another 90 day phase between January 4, 2023 and April 4, 2023. This time, there were 18 hours of observations between the father and the children. The themes that Ms. Johnson observed during this period are similar. One of the concerns in particular during this phase, which is a concern for this Court when crafting any kind of parenting order, was the father’s apparent inability to focus on both children at the same time.

[140] On March 2, 2023, the father was at the sink preparing fruit for the children. He was able to hold J. while he completed this task, but he could not keep his attention on E. at the same time. While he was busy preparing fruit, E. opened a communal fridge that contained “unknown food items”. The father called out to E. to stop, but she did not listen. The father did not stop what he was doing to intervene; he just continued to wash the fruit.

[141] Ms. Johnson wrote that by the end of this phase, she observed the father to be able to set limits and use a parental tone “at times”. But there were many times when he required intervention, reminders and encouragement to be consistent in implementing the strategies that she was teaching. In the result, yet again, Ms. Johnson determined that further assessment was required, before visits could be increased in time.

[142] The next phase, between April 4, 2023 and July 4, 2023, now consisted of 36 hours in total. During this phase, some of the father’s visits increased to a 3 hour period, and this included some time in the community. The father even attended with Ms. Johnson to pick J. up at the day care. Some of the visits were for four hours, and they occurred in the father’s home.

[143] Once again, there were some positive observations during this phase. For example, there was an incident at the outset of this period where E. was choking on some food, and the father responded swiftly and in a protective manner. The father later thanked Mr. Johnson for helping, too. On April 6, 2023, Ms. Johnson observed the father to dress the children to go out to the playground, and that he held their hands while walking them to the playground in an orderly manner. She observed this to be an improvement, following a number of conversations she had previously had with the father, about not letting E. run freely out the door.

[144] However the following week, and again the week after that, the father again had difficulty with consistency and managing E.’s behaviour. Ms. Johnson described some difficulty that the father had setting parental limits, when grocery shopping with the children. Likewise, there was another visit at which the father forgot to plan in advance. On another occasion, the father did not intervene when E. was at risk of going down the basement stairs, unaided (or perhaps more aptly stated, she was at risk of falling down the stairs).

[145] There was yet another 90 day phase between July 4, 2023 and October 4, 2023. There was a small increase of 15 minutes of unsupervised time added to these visits. It was in the midst of this period, that the Society decided to terminate therapeutic access. However it resumed on August 17, 2023, shortly after the Society’s failed motion to relocate the children to Ottawa, as explained earlier.

[146] This phase seemed to be the most problematic in terms of the father’s ability to manage the children. For example, Ms. Johnson expressed concern on July 13, 2023, when she observed E. pushing J. in a stroller through the living room, kitchen and down a hallway. E. continued to do this despite the father’s command for her to stop. Ms. Johnson observed the father to be unsure of what to do. In the end, E. slipped and fell underneath the stroller, and the father did not respond.

[147] Ms. Johnson expressed concern that on another occasion, the children went into a private room of the father’s roommates and started jumping on the bed. The father did not respond appropriately (although the father explained to Ms. Johnson that the roommates were nice, and would not mind).

[148] And on yet another occasion, now in September, the children were playing unsupervised in what Ms. Johnson described to be the father’s “overcrowded” living room. Ms. Johnson felt this was unsafe.

[149] After the failed relocation motion, the Society decided to drastically increase the father’s visits. It arranged for a 48-hour visit at an Airbnb, between October 11 and 13, 2023. Apparently, the Society had never arranged for such a thing before. Nonetheless, Ms. Johnson deposed that while the Society felt that the previous visits had provided some information, it did not have “enough specific detail about [the father’s] parenting over an extended period of time.” This is what the father’s counsel at this trial, seemed to characterize as a kind of “set up” by the Society.

[150] There is some merit to the father’s counsel’s complaint. I accept the father’s counsel’s point, that this visit occurred in unfamiliar surroundings, with two children who were no longer accustomed to spending overnights together, and it represented a significant increase to what had been previously occurring. While I have considered this evidence in that context, the visit nevertheless did not go well. Some might characterize it as a bit of a disaster.

[151] During this 48 hour visit, among other things, E. fell off a chair more than once, E. pushed a highchair with J. inside in a dangerous fashion, and the father only responded when prompted by Ms. Johnson, the father lost focus when preparing meals, the father left E. unsupervised in the bathroom and only went to check on her when prompted by Ms. Johnson to do so, the father had difficulty feeding the children during meal time, the father misread the instructions when administering medication to E., the father allowed the children to jump on the bed and throw towels and pillows, he did not have an evening routine pre-planned, the situation at bedtime was entirely chaotic, the father went into the children’s bedroom to eat after they had fallen asleep, by the middle of the second day, the father was “fading” (i.e. exhausted), and the father did not have a bedtime routine organized for the second night either.

[152] Ms. Johnson and Ms. Eben held a debriefing meeting with the father on November 2, 2023. Ms. Johnson was concerned about the father’s response, when asked how the visit went. He responded “good”. He otherwise responded with one word answers when pressed to discuss this further. He told Ms. Johnson that he wouldn’t have done anything differently.

(8) The Father’s Lack of A Support Network

[153] Dr. Fitzgerald opined that the father is at risk of relapse under times of stress, even when taking medication. He testified that this could manifest itself by way of both an increase in positive and negative symptoms. Dr. Sethna testified that it is possible to have breakthrough symptoms, or “shorter lived blips”, even when the father is taking his medication. Parenting two young children is a stressor.

[154] Dr. Fitzgerald recommended that there needs to be professionals involved in monitoring the father’s situation. Those professionals should have the skills to be alert to both kinds of symptoms of the disorder (i.e. positive and negative). Both Dr. Sethna and Dr. Fitzgerald recommended that the father might access psychotherapy, and supports from the Canadian Mental Health Association. Dr. Fitzgerald even identified that persons who maintain close relationships with a person with schizophrenia, which could include a close family member, might act as a protective factor.

[155] In regards to professional support, the father really only has Dr. Sethna. But again, the father has struggled, including in recent times, to consistently attend medical appointments, and the medical appointments that do occur, are brief, and they are spaced out months apart. The father used to have a worker with the Canadian Mental Health Association, but this person was no longer involved at the time of this trial. In her trial affidavit, Ms. Eben indicated that she had not been able to connect with that worker, prior to the trial.

[156] In regards to family support, the father testified that he has the support of his father, his mother, other friends, or he can access a babysitter as needed. But the paternal grandfather was not called to testify, and the Court was given very little information about him. The Society suggested to the father in cross-examination, that the grandfather suffers from an alcohol addiction. I am not clear on the situation with that. The paternal grandmother lives in Australia. Specifics about the father’s friends were not offered in a fashion that they could, at this point, form part of a safety plan. And the father was unable to really elaborate about who he could access to provide babysitting services.

[157] The aunt used to be a support person for the father, but unfortunately they are now estranged. The aunt is upset for several reasons. One is that the father did not help out around the house when he lived there. Again, she said that the father spent a lot of time sleeping, while she cared for J.

[158] The aunt testified that the father did not pick up after himself when they lived together. She described an incident when the father was cooking chicken, made a mess with flour and oil, and then put the chicken carcass in the cupboard. The aunt testified that she found the chicken carcass the following day. This is why the father was no longer allowed to cook in her home, which in turn posed challenges during Ms. Johnson’s intervention, described above.

[159] The aunt is also upset because she did not ask the father to contribute financially while he lived in her home, but she did expect him to save so that he could find his own apartment to move into. What led to the eventual deterioration of their relationship, was that the aunt discovered that the father was not saving, but rather he was “sending all of his money” to the mother.

[160] At this trial, the aunt now testified that she is even fearful of her brother. She does not want to disclose her new address as a result. She testified that when the father lived in her home, she expressed concerns to her brother, that his mental health medication was not working properly. The father told his sister that there was nothing to be afraid of, and he didn’t want her to be afraid.

[161] The Court directed counsel for the father to serve a summons to witness to the father’s former Canadian Mental Health Association mental health worker. The building of a better support network had not been done prior to this trial, that ties the Court’s hands, and one way or the other, this needs to be done for the future.

[162] The father ended up calling Melodie Erochko-Bingham. She is a case manager with CMHA in York Region.

[163] She worked with the father in late 2019, and again in September of 2022. Most recently, she worked with the father between May of 2023 and December. During their most recent period of working together, Ms. Erochko-Bingham and the father had interactions with each other about once every 2 weeks, either by phone or in person, but she always saw him once per month, in person.

[164] Ms. Erochko-Bingham testified that most recently, she helped the father work on certain goals. She testified that she helped him work on food security, she talked to him about his children, and she arranged for him to attend social events, like a holiday party, for socialization. She also referred the father to an employment service.

[165] Although the father’s file for this kind of case management service with the CMHA is currently closed, it seemed to the Court, having heard her evidence, that it may be possible to get Ms. Erochko-Bingham re-involved. She testified that she is willing to work with the father. I was told during submissions, that the father is willing to work with her, too.

[166] Now Ms. Erochko-Bingham testified that she would have to confirm certain matters with her supervisor. She also said that typically service can be provided for shorter periods. But I equally understood that exceptions could be made, and that period can be extended if needed. What the Court is not clear yet on, is whether, and if so for how long, service resume. Ms. Erochko-Bingham seemed to suggest that she may be able to see the father more frequently, and for a longer period of time, than in the past.

[167] In regards to psychotherapy, Ms. Erochko-Bingham testified that there are CBT therapy groups available through CMHA, that she could help the father apply for in a case management capacity. Perhaps she could help him source individual therapy, if he is less comfortable in a group setting. She also seemed to suggest that she might be able to help the father, by taking him to his doctor’s appointments, and to the pharmacy to refill prescriptions.

[168] I intended on the last day of the trial to ask the father to make an application to CMHA to re-open a case management file, but when I raised the issue, Mr. Doodnauth confirmed that the father had already done this. This shows initiative. I nevertheless made a request of CMHA in the Endorsement of July 17, 2024, asking if it could expedite the re-opening of a file for the father.

[169] In regards to non-professional, contact with close family or friends, the only long term viable solution for this family is for she and the father to repair their relationship. Importantly, the father’s sister’s fear is not necessarily specific to the father, or to anything that he has done to the aunt. Rather, the aunt has a general concern that people with schizophrenia, may harm people who are close to them, while experiencing an episode. I find that the aunt would benefit from some education.

[170] A positive hope that emerged during this trial, is that both the father and the aunt agreed to attend counselling together, to try to repair their relationship. The aunt also reluctantly seemed open to meeting the father in the community, perhaps with her partner present. Were she willing to do so, she could assess his condition, before visits.

[171] Therefore, the Court also asked the Society in its Endorsement of July 17, 2024, to source counselling for the father and his sister. It would be of assistance to the workability of any plan, if the sister was prepared to disclose her address also. Perhaps this could be discussed in therapy.

F. Section 102 Orders are in the Children’s Best Interests

[172] Having found that the children continue to be in need of protection, and that as a consequence, they require an order for their protection, I turn to the disposition of this Status Review.

[173] I have been asked by the Society, the grandmother and the aunt, to make custody Orders under section 102(1) of the CYFSA. The mother does not oppose this. In contrast, I have been asked by the father to make a further supervision Order. Both are remedial options in a Status Review.

[174] I have decided to grant the section 102 Orders sought. Section 102(1) of the CYFSA provides that, if a court finds that an order under this section instead of an order under section 101(1) (a supervision order) would be in a child’s best interests, the Court may make an Order granting custody to one or more persons, with the consent of that person. The grandmother and the aunt both consent.

[175] This decision is to be made with regards to the children’s best interests. The statutory best interests test that applies is set out in section 74(3). In regards to the various criteria in section 74(3), the children’s views and wishes in section 74(3)(a) are not a weighty factor given their young ages. The children are not indigenous either, and as such section 74(3)(b) does not apply.

[176] Before deciding to grant the section 102 Orders, I considered, with regards to the other best interests factors, whether there should be another supervision Order, but not because I am of the view that further time is required to determine the viability of a return to either of the parents. Rather, the Court became concerned during the trial, that the access terms being proposed by the Society are not workable, and that in the result, the children’s relationships, with the father in particular, would either be significantly curtailed, or become non-existent. I also became concerned that the access proposed, if ordered, would just result in another round of litigation under the Children’s Law Reform Act, disguised as what is really as protection matter (see for example Children’s Aid Society of Algoma v. A.B., 2018 ONCJ 831, where the Court opted for a supervision Order for similar reasons).

[177] This conundrum placed before the Court, two less than idea choices. However, in deciding to make the Orders sought under section 102, I find the most significant applicable factors under section 74(3), to be the children’s need for permanency, stability and continuity of care.

[178] At the same time, these children also need to have relationships with each other and with their parents. Of course, this still has to be balanced against the risks that are present in this case and that need for permanency. Fortunately in the end, the Society consented to the Court making a temporary access order, and adjourning that part of the trial. This alleviates the Court’s concerns about the viability of the access plan put forth, because the Society will remain involved, and it will continue to help the family build a better plan.

G. E. Shall Remain With her Maternal Grandmother Under A Section 102 Order

[179] I find that the only viable plan for E., is for her to remain with the maternal grandmother in the longer term.

[180] The maternal grandmother lives in Keswick with her partner (the maternal grandfather). They are both retired. In addition to caring for E., they are also providing care for Z. Z. has been in their sole care since 2018, but he has lived in the home since 2014, essentially his entire life. Z. and E. have a relationship with one another, according to the grandmother.

[181] E. now attends a local public school. The grandmother has been able to maintain a stable environment for E. during the past two plus years. She ensures that E. attends school. She makes provision for her medical and dental care. She is currently exploring extracurricular activities for E. She has put in place some stability for E., that the parents did not offer. The Society has assessed and approved this arrangement.

[182] I nevertheless had some concern during this trial, about the stability of this plan. For example, both grandparents are elderly (the grandmother is 70, and the grandfather is 75). I considered the fact that the grandmother was initially apprehensive about caring for E. long term. However, I also considered that at first the grandmother found it challenging to take on the care of a second grandchild. Understandably, the grandmother did not expect, to be taking on the care of a young child, at this stage of her life, nor that she would have to deplete her retirement savings to do so. And, after the plan for E. to relocate to Ottawa to live with D.S. was abandoned, the grandmother did commit to the longer term. She testified that in so doing, once E. started to attend day care (and I suppose now that she attends school), things became easier.

[183] I also had some concern about whether the Court would be making a section 102 Order, only to have it undermined de facto basis, after the Society’s file and this Court file is closed. A move to Ottawa had been pursued in the past. Obviously a potential move to Ottawa (or to wherever else that D.S. may be moving) would add into the mix a whole series of other logistic problems, in addition to those that already confront this family. And to be perfectly clear to all of the parties, E. (or J.) cannot be moved from the grandmother’s home or current geographic location (or in the case of J., from the aunt’s home or current geographic location) to somewhere else, without court oversight, to oversee all impacts of such a change (or at least the consent of the parties that addresses thoroughly all impacts of such a change). But at the same time, the Court confirmed with the grandmother that she does not plan to do this. She does however want to be able to send E. to visit with D.S. from time to time, such as for one week in July and one week in August, to get some reprieve. This is reasonable. [6] The Court intends to make an Order to this effect, in tandem with prohibiting either child’s relocation.

H. J. Shall Remain in his Paternal Aunt’s Care Under A Section 102 Order

[184] In her Will Say statement (which she adopted as true during this trial), the aunt has set out her history of providing care for other children and adults over the course of her life. The aunt has continued to provide such care, now for J. Like the grandmother does with E., she ensures that his needs are cared for.

[185] The aunt has made arrangements for J. to start school in the fall. Previously he was attending day care in Aurora, but the aunt says that there is before and after school care available for him at his new school.

[186] The aunt is notably busier than the grandmother. She works full time for an insurance company. She is in a relationship with K.K., who has a 15 year old son who lives in the household. But she also says that K.K. plays a major role in helping to care for J. During her testimony, the aunt advised that she is also providing care for the young child of a friend, who needs her assistance. But this care is said to be temporary.

[187] Again, the aunt used to live in Aurora, but shortly before the start of this trial, she moved to Beaton, which has admittedly added some complications to crafting a plan. But I find that these are the realities of life for this family unit. It is not a reason to reject a plan with the aunt (especially when no other viable ones exist). Nevertheless, more effort does need to be put into coming up with an access plan.

[188] Like with the grandmother, the right plan can provide some respite to the aunt too or, at a minimum, it can reduce the burden imposed on her right now, of driving back and forth, to facilitate visits.

I. The Parents Do Not Have Viable Plans

[189] In contrast, the parents do not have viable plans. The mother has not even proposed a different placement. But her use of the words “for now” when agreeing to the placements with her mother and with the aunt, is not reasonable.

[190] The mother has not addressed her addiction, she is intent on remaining in a problematic relationship, and now she will have to deal with a new baby. In view of the concerns the evidence about the mother raised, restrictions need to be put in place respecting both her access, but also respecting her ability to launch a Motion to Change, to strengthen the stability of the children’s placements with the grandmother and the aunt.

[191] In this regard, I specifically considered whether the mother’s plan to relocate to Keswick near the maternal grandmother should be prohibited. But in the end, and despite specific questions from the Court, no one asked me to make to order this. [7] The grandmother did not even strenuously object to perhaps allowing the mother to have visits in the home, if she is not drinking. I nevertheless intend to address the issue, by imposing other restrictions.

[192] To his credit, the father is trying harder, and has made efforts for the children to be returned to his care. For example, he accessed housing support services from Blue Door while this case has been pending. He secured a 2 bedroom apartment in Aurora, close to a public school. He prepared a simulated daily routine for the children; he also described in his affidavit what that routine would consist of. He tendered photographs of his apartment. He has also taken some parenting courses. He is to be commended for this, but he should be focusing on bettering a plan for access.

[193] Unquestionably, the father loves the children, and the children love their father. The evidence was universally that they are bonded to him, and that they love spending time together. Ms. Johnson offered a number of positive observations about the strength of the father’s and the children’s relationships with each other. Although Ms. Johnson found that as the father’s parenting time and responsibility increased, and as therapeutic support reduced, the father struggled, she still commented that that the father put forth some effort to learn and use strategies to improve his parenting.

[194] These are strengths that the Society and the father (and the grandmother and the aunt) can build on during the adjournment. But the focus is to be on access; not placement.

[195] In terms of the placement, the Court was left concerned at the end of the trial, that the father does not fully appreciate all that is entailed in parenting two young children at the same time, and all of the time. The Court was left concerned that he will not be able to handle it, as the children’s primary parent.

[196] The Court also had a significant concern that the father lacks a support network to deal with the effects of his mental health and to help him parent the children primarily.

J. Access

(1) Overview

[197] Pursuant to sections 114(a) and 104(a) of the CYFSA, the Court may vary an earlier access Order. The test that applies is also best interests, and in that regard, I refer again to section 74(3).

[198] As alluded to earlier, the access plans are unrealistic and insufficiently developed at this juncture. The principal focus of this trial was unquestionably about the children’s placements. While that is somewhat understandable, the access plans are also important to ensure that the children continue to have meaningful relationships with their parents and with each other. And these were pursued to some extent, without regard to the realities of lives of the caregivers and the children.

[199] More than once during the trial, the Court implored the parties to sit down together and try to craft a solution that would work for this family. They chose not to do so. The Court has been left to sort out these logistics. While I am prepared to provide some direction, I am not prepared to finalize access right now. The parties need to first roll up their sleeves, to try to come up with a better solution.

(2) The Problems With the Society’s Access Plan

[200] First, the Society proposed that each parent would have supervised access to each child a minimum of once per week. According to the affidavit of Family Services Worker Melissa Eben sworn June 24, 2024, tendered towards the end of this trial, there is an access center in Aurora that is open on Friday evenings from 5:45 PM until 8:15 PM, and on Sundays between 9AM and 4PM. Ms. Eben’s affidavit states that the center offers supervised exchanges and can support virtual access as well. Apparently at the time of the affidavit there was a 3 week wait list.

[201] However by the end of the trial, the Society corrected this evidence. Weekly visits are not available. The access center could only offer two hours every other week. In other words, the center could only offer four hours per parent per month, broken out into 2, two hour visits.

[202] Second, the Society suggested that the mother could have visits with E. and J. at the grandmother’s home, if the grandmother agreed. Otherwise her visits would have to occur in a supervised access center. While I am prepared to permit this, this has to be tightly controlled.

[203] Third, transportation is clearly going to be an impediment in this case. The Society’s plan does address how the children are supposed to get together, either at the grandmother’s home, or in the to the access center. And on this point, it was largely the Court (although not exclusively), that fleshed out the details.

[204] During her testimony, the grandmother first said she was willing to do some of the driving, for example between her home in Keswick and Aurora, although she would prefer to have visits in her area. This does not necessarily include driving to Beaton, although she did testify that it would take her about 1 hour to drive there.

[205] In her closing statement, the grandmother tightened her position, and said that she and the grandfather do not wish to drive extensively to accommodate both parents. She asked the Court to please take her, and the grandfather’s lives, into consideration when making access Orders.

[206] As indicated earlier, the grandmother would also like the Court to ensure that she can get some respite care. Finally, the grandmother sometimes goes to Beaverton on Saturdays from time to time, and otherwise runs errands on Thursdays and Fridays. The Court would like to try to accommodate this.

[207] The grandmother testified in cross-examination, that during the few weeks leading up to the trial, the paternal aunt had been dropping J. off at her home on Sundays, for a four-hour period between 12 and 4 PM. The grandmother was then going out into the community with the mother and the children to supervise some visits, or the visits also happened in the home, such as in the backyard. But this has imposed a lot of the driving onto the aunt.

[208] The aunt’s hours of work are from 8 30 AM until 4 30 PM. She does occasional afternoon shifts (two five day periods of afternoon shifts, between 12 and 8 PM, and two weekend days in a 13 week period). The aunt works from home, but again she is caring for the other infant in her care, temporarily, while working.

[209] J. goes to day care from between 7 45 or 8 AM in Aurora, until about 5 30 PM. The aunt’s partner, K.K., works as an electrician in various different locations. K.K.’s hours of work are usually between 6 AM and 2 15PM or 3 15PM. Sometimes K.K. picks J. up from day care on his way home from work, around 3PM or 4 PM. I considered whether visits could be structured somehow around that, like after day care. But starting in September, J. will be attending school in Beaton.

[210] Unhelpfully, during her testimony, the aunt said she had not yet “figured out” how supervised access was going to work, logistically. In any event, the aunt did not want an access schedule that would impede her “enjoyment of time”. She stressed that she needed weekends to enjoy for herself. For example, the aunt wants to be able to go with her partner to their cottage on some weekends, which she said J. enjoys visiting. At one point, she said she would like to be able to go on alternating weekends. Regardless of the frequency of this in the end, her request to have leisure time too, as J.’s primary parent, is not unreasonable.

[211] But the aunt hoped that visits could occur on a week day, ideally every other week. This is not realistic, especially if the visits are to occur at an access center, which the aunt maintained should be the case. The supervised access center in Aurora does not accommodate evening visits during the week, as set out above. The aunt did not like the idea of extending visits on a particular weekend day either, for the children to see both parents, as she felt that was too much for the children. The aunt also said that the current arrangement, of taking E. to the grandmother’s house on Sundays, is a lot of driving. That said, K.K. testified that he was willing to assist with exchanges, if needed. This is helpful.

[212] In regards to the father, at this point, his visits still need to be supervised. But work may be able to be done, to relax that in a safe way. For instance, Ms. Johnson cautiously/reluctantly agreed, that perhaps there could be some expansion, if the father had the children individually, or perhaps if the father had someone to check in with. Dr. Fitzgerald recommended that supervised exchanges could be ordered as an extra safeguard for monitoring of the father’s condition. In terms of managing the negative symptoms, Dr. Fitzgerald also testified that there could be defined visits and pre-planned activities. These are good suggestions to work with.

[213] By the end of the trial, even the Society seemed perhaps open to expanding the father’s visits into the community, with some kind of check in and out.

(3) A Pathway Forward

[214] There may very well be a solution to this conundrum. An arrangement might be worked out where there could be shared driving between the grandmother and the aunt. The children can spend more time together in each of the grandmother’s and the aunt’s homes, giving the other household a reprieve. While the grandmother testified that the children have not slept over together in her home, or at the aunt’s home, and while she said “it would be a handful”, she also said she is prepared to try it.

[215] Relationships need to be mended. In regards to the mother, a precondition for her to regain the grandmother’s trust, is a serious effort to address her alcoholism. In the mean time, there is no other option but to impose conditions to limit the effects of her outbursts and erratic behaviour.

[216] In regards to the father and his sister, they need counselling. On the last day of the trial I asked the Society to make inquiries and to assist the father and his sister to source relationship counselling. The aunt said that she might be willing to have the father visit her home, or for her to go to his home, if there was confirmation that the father was compliant with his treatment. Again, the aunt also cautiously said that if there were exchanges in the community, the she might be willing to attend with her partner. In other words, there was some reluctant willingness on the aunt’s part to make this work, but the two need therapeutic support. Having the parties get to a place where the aunt can see the father around exchanges, and gage if something is off, is consistent with the recommendations of Dr. Fitzgerald.

[217] In the end, if the parties are serious about wanting to know and ensure that the father is compliant with his treatment and medication, the solution is not to disengage with him; they need to do the opposite; they need to have interactions with him.

[218] There also needs to be the disclosure of information and the better building of a support network for the father to strengthen an access plan. The Society should participate with the father in the creation of such a safety plan.

[219] Helpfully, the grandmother also said she was not opposed to meeting the father in the community, and engaging with him in a brief way.

[220] Because there are limited options at the access center, the parents are going to need to take some responsibility to get themselves to the area that the children reside, in the longer term. Helpfully the father testified that he is able to take the bus from the Newmarket terminal to Keswick. The father also testified that he can get to Beaton on the bus. He testified that he can ride the bus for 2 hours, for just $2.00, because of a program available to him, through ODSP.

(4) Conclusions Respecting Access

[221] In summary, and at the risk of repeating myself, more than one during this trial, the Court warned the parties that they had put the Court in the untenable position of ordering access terms, that seemed unworkable and that some or all of them may find unsatisfactory and onerous. As can be seen above, there are competing logistic and other problems. The Court is grappling with trying to promote the children’s need for stability in their placements, it is trying to take into account the caregivers’ needs, other commitments and the realities of their lives (with a view to strengthening the placements, not undermining them), but balanced against the children’s interests in maintaining a connection to each other and to their parents.

[222] The Court was influenced by the good qualities of the father’s relationships with these children.

[223] And again, at the risk of repeating myself, I am adjourning this trial to give the parties another chance to take control of the situation. That means:

(a) The mother needs to refrain from breaching this Court’s Order, and from causing chaos and conflict. She also needs to take a hard look at committing to living a healthier lifestyle. She needs to reconsider her relationship choices, and she needs to seriously consider a better way of pursuing her sobriety. And if she does neither of these things, she may find her relationship with E. and J. further curtailed under the terms of my Order, below;

(b) The father needs to rigorously comply with his treatment plan, [8] begin psychotherapy and try his best to re-engage with a CMHA worker (recognizing that the latter may be time limited and somewhat out of his control). He also needs to ensure there is complete transparency with the caregivers, about his mental health;

(c) The aunt and the father need to overcome the rift in their relationship. They need to start therapy together as soon as possible;

(d) The aunt needs to better educate herself about persons suffering from schizophrenia, and not rely on fears of harm, based on what may be stereotypes;

(e) The aunt and the grandmother should use each other to reduce their individual parenting responsibilities and to give each other some reprieve; and

(f) The Society needs to work with the father, to see if restrictions on his parenting time, can be relaxed.

[224] For now, I am going to make a temporary Order for access in the discretion of the Society, with some other terms. However it is my intention to also set out in more detail, what the above principles, could look like in a plan. I may consider Ordering that or some other variation of that, when this matter returns, if there is no settlement.

[225] The parties are cautioned that if they do not try to work on the Court’s expectations above, then one or more of them may regrettably find that there are no other options left for the Court. Conditions that one or some of the parties find untenable, may be imposed.

PART V: ORDER

Section 102 Custody Orders

[226] I make the following Final Orders respecting custody:

(a) Pursuant to Rule 25(19)(b) of the Family Law Rules, paragraph 1(a) of the Order of Himel J. dated September 29, 2022 shall be amended to correct J’s name, as reflected on the draft Order that the Society tendered for closing submissions (i.e. J.’s name shall be referred as J.G.R.N. (but in the Amended Order to be taken out, the full name as specified in the draft Order (not initials) shall be used);

(b) Pursuant to sections 114(d) and 102 of the Child, Youth and Family Services Act, 2017, E. shall be placed in the custody of the maternal grandmother;

(c) Pursuant to sections 114(d) and 102 of the Child, Youth and Family Services Act, 2017, J. shall be placed in the custody of the paternal aunt;

(d) The grandmother shall be entitled to obtain and/or renew E.’s passport, health card and any other relevant document for the child, without the consent of either parent;

(e) The grandmother may travel with the child, E., within Canada, or internationally, without the consent of either parent;

(f) The same terms as those set out in (d) and (e) are Ordered for aunt, in relation to J.;

(g) Both parents have the right to obtain information about either child, from teachers, health care providers, day care providers, and other third parties who are service providers involved with the children, without the written consent of the grandmother or the aunt as the case may be;

(h) E.’s primary residence shall not be moved from the maternal grandmother’s home in Keswick, without the consent of the paternal aunt and both parents, and the Society’s consent (for so long as this matter remains pending before this Court) or a court order;

(i) J’s primary residence shall not be moved from the paternal aunt’s home in Beaton, without the consent of the maternal grandmother and both parents, and the Society’s consent (for so long as this matter remains pending before this Court) or a court order;

(j) If there is to be a move on consent without court oversight, the parties must also agree to any consequential adjustments to access, as necessary, to continue contact between the parents and the children, and the children with each other;

Restrictions on Future Motions to Change

[227] I make the following Final Order respecting future Motions to Change, pursuant to the Family Law Rules, and the inherent jurisdiction of this Court:

(a) The Mother shall not commence a Motion to Change, until she commits to living a healthy lifestyle. She must complete in-patient rehabilitation program of such duration as is recommended by the service provider, and she must regularly engage in a program of after care as recommended by the service provider;

(b) If a Motion to Change is brought, it shall be served on both parents, the aunt and the maternal grandmother, and upon the Society;

Temporary Access

[228] I make the following temporary access Orders pursuant to section 104 of the Child, Youth and Family Services Act, 2017:

(a) Both parents’ access to either of the children shall be supervised in the discretion of the Society;

(b) The Society shall create a schedule of virtual visits between both each parent and the children to take place weekly in addition to in person visits. This shall be arranged in consultation with the grandmother and the aunt;

(c) The maternal grandmother may have E. visit her daughter D.S., or her other daughter A., for one week in July and one week in August. During those weeks, either of the parents’ access to E., or any sibling access between E. and J., shall be suspended;

(d) During the period of the adjournment, the parties shall endeavour to create an additional holiday schedule, such as some summer holiday time for the Aunt during which visits shall be suspended, and surrounding Christmas, Mother’s Day and Father’s Day visits for the parents;

(e) Although access for now remains in the discretion of the Society, the Court asks the Society and the parties to create an access plan based on the following pathway to move forward towards a potential final Order, insofar as possible;

Terms and Conditions

[229] I make the following temporary Orders respecting terms of access pursuant to section 104 of the Child, Youth and Family Services Act, 2017:

(a) The mother shall not consume alcohol or marijuana, and she shall not consume any non-prescribed illegal drugs, 24 hours prior to or during any visits with either child;

(b) The mother shall not attend at either the maternal grandmother’s or the paternal aunt’s homes, without their consent;

(c) The maternal grandmother may agree to allow the mother to have some visits, supervised by the maternal grandmother outside of an access center, either at her home, or in the community. Any such arrangements shall be made on notice to the Society and briefly in writing;

(d) If the mother violates either paragraph (a) or (b) above, or if she engages in any conflict with the grandmother when making arrangements pursuant to paragraph (c), or if there is any conflict whatsoever between the mother and members of the maternal grandmother’s home, then the maternal grandmother shall report this to the Society immediately, and the mother’s ability to have visits at the maternal grandmother’s home shall be suspended pending further Order of this Court;

(e) The father shall attend all medical appointments as directed by his treating psychiatrist, Dr. Sethna, or any other health care provider involved in his care;

(f) The father shall ensure that he fully complies with any prescribed treatment to address his mental health, which shall include attending all medical appointments, regularly filling prescriptions, and diligently taking any medication that is prescribed;

(g) The father shall enroll in and attend psychotherapy, such as cognitive behavioural therapy, either in a group or on an individual basis. The Society shall assist the father to arrange this;

(h) The father shall take reasonable steps to engage with programming through the Canadian Mental Health Association, which may include case management services. Ideally he will work with Melodie Erochko-Bingham, if she is willing and able, for as long as the Canadian Mental Health Association, can provide this service;

(i) At the conclusion of any period of service offered by the Canadian Mental Health Association, the father shall make a request of the Canadian Mental Health Association, to provide extensions of service, for so long as it is willing and able to do so;

(j) If Melodie Erochko-Bingham (or another worker) becomes re-involved with the father, the father shall request to have regular in person meetings, either weekly or bi-weekly as can be accommodated by the worker, to have regular check ins with the father about his mental health. The father shall also request that the worker take him to doctors appointments, assist him to obtain periodic and regular medication refills as required, and he shall ask her to discuss with him his medication intake. I recommend that the father also show his worker his medication to review the amount of medication taken from one visit to the next;

(k) The father shall sign consents for the release of information, to permit Dr. Sethna his pharmacy, and any support person who becomes involved with the father from the Canadian Mental Health Association, or a similar mental health organization, to release information to the maternal grandmother, to the paternal aunt and to the Society, about his attendance at medical appointments, his compliance with treatment, his compliance with taking and filling medications, and whether there is any evidence of dysregulation;

(l) The father shall provide to the maternal grandmother, to the paternal aunt and to the Society, a schedule of his upcoming medical appointments with Dr. Sethna, which he shall keep current as new appointments are booked;

(m) The father shall have a separate obligation to self-report to the grandmother, the aunt and the Society, any missed appointments, non-compliance with treatment, including the taking of medication, and any health conditions that he himself observes, that cause him concern about his own dysregulation;

(n) A copy of this decision shall be provided to Dr. Sethna and to the Canadian Mental Health Association, or other similar mental health organization that might become involved, to include any case manager like Ms. Erochko-Bingham;

(o) The Society has the discretion to suspend any of the father’s visits if there are any missed medical appointments, or any reports or other evidence of the father not taking his medication or of dysregulation. If the father’s visits progress to the point that exchanges are facilitated by either of the maternal grandmother or the aunt, either may suspend a particular visit if either has concerns about the father’s condition. In the case of any of these events, the Society shall then promptly investigate the situation, which shall include obtaining objective collateral information from the medical professionals or the CMHA worker involved with the father. The visits shall be reinstated once the Society is satisfied that the father is stable and has resumed compliance with his medical treatment.

The Pathway Forward

[230] In order to craft a better and longer lasting access arrangement, which includes facilitating the siblings’ access with other and the children’s access with their parents; in order to alleviate the burden of transportation on the caregivers; in order to provide each of the caregivers with regular reprieve from their parenting responsibilities, and in order to maximize the available limited resources of the access center, the Court is recommending that the parties implement a schedule that revolves around four weekends, with some additional mid-week visits for the father.

[231] The Court’s recommendation provides that each caregiver would have one weekend out of four with both children. Consequently they would also have one weekend out of four, without the responsibility to care for either E. or J. During those weekends when the children are together, there will be access with the parents. The Court’s proposal then leaves each caregiver with two weekends where she has the child for whom she is responsible under the section 102 Order only, and without responsibility to arrange access. This provides both caregivers with two weekends off each month. As well, each caregiver is responsible for only half of driving on the two of the four weekends that there is access, thus reducing the burden of driving.

[232] The mother can sort out additional mid-week visits with the caregivers and the Society, if this is possible to achieve. There needs to be some effort on supporting the father, though. Therefore, in regards to the father’s mid-week visits, the goal is to facilitate supervised or semi-supervised individual visits for him, with one child only. During the period of the adjournment, the father will either be responsible for getting himself to Keswick or Beaton as the case may be, for the mid-week visits. Or, if the Society cannot supervise in that location, then the Society shall arrange a driver to have each of the children taken elsewhere in York Region. This is a temporary and transitional solution only, while relationships are repaired and the father’s health continues to be monitored; the Society will not be involved in the longer term and accordingly it will not be arranging for drivers forever. The goal has to be that the father eventually being able to pick up or drop off E. and J., from the grandmother or the aunt, with either being able assessing the father’s condition at supervised exchanges of that kind.

[233] Therefore, the Court recommends the parties try out the following four weekend rotation during the period of the adjournment:

(1) Weekend one: both children with maternal grandmother in Keswick;

(2) Weekend two: both children remain with their respective caregivers;

(3) Weekend three: both children with paternal aunt in Beaton;

(4) Weekend four: both children remain with their respective caregivers;

[234] On weekend one, the paternal aunt or her designate will drop off J. to the grandmother’s house after school on Friday. The grandmother or her designate will return J. to the paternal aunt’s house at the end of the weekend. The Society should arrange the times of these exchanges with the grandmother and the aunt in such as fashion as to permit visits, below;

[235] The father and the mother shall each have a separate supervised visit, with both children together, on either of the Friday evening when the access center in Aurora is available, or at some other point on the Sunday that weekend, when the access center in Aurora is available. The Society has the discretion to create the schedule of which parent will have the visit on Friday and which parent will have the visit on Sunday, after consulting with the parties. If the grandmother allows it, the mother may instead have a supervised visit with the grandmother outside of the access center, but on the terms set out above (see again ¶ 229(a)-(d)). If the supervised access center is not available, then the Society shall supervise or arrange third party supervision.

[236] On weekend three, the maternal grandmother will drop E. off at the paternal aunt’s house on Friday after school. The aunt shall then return E. on the Sunday, and if access is occurring at the access center in Aurora that weekend, she shall bring J. with her also, on the Sunday.

[237] However I ask the parties to first explore whether there is an access center closer to Beaton. If so, there may be visits with the mother and the father as the case may be, at the access center near Beaton. The Society can sort out the logistics of the times of these visits. If not, then there will be visits at the access center, but only on the Sunday, in Aurora, so that the aunt is not required to drive back and forth on both Friday night and Sunday for this supervised access. Once again in the case of the mother, access may be supervised by the grandmother outside of the access center, if there is consent. Once again the Society has the discretion to create the schedule for these supervised visits on weekend three. And once again, if the supervised access center is not available, then the Society shall supervise or arrange third party supervision.

[238] There shall be no visits at an access center on weekends two and four for the reasons set out above. There shall be no visits outside of the access center for either parent, unless the maternal grandmother or the paternal aunt as the case may be, agree otherwise, in consultation with the Society.

[239] During the mid-week of week 2, the father might have a community visit with E., after school, up to a few hours in length depending on E.’s schedule, either in Keswick or elsewhere in York Region, supervised by the Society or its designate, which may include third party supervision. If the visit is able to take place in Keswick, the father shall be responsible for getting to Keswick. If the visit is to take place elsewhere in York Region (because the Society cannot supervise in Keswick), the Society should arrange a driver to pick up and drop off E. In advance of this visit, the grandmother should provide to the father in writing, a proposed activity for him to engage in with E., and a list of items that he should have with him. The Society has the discretion, in consultation with the maternal grandmother, to select the day and time of this visit, that best suits E.’s schedule and needs.

[240] During the mid-week of week 4, the father might have a community visit with J. after school, up to a few hours in length depending on J.’s schedule, either Beaton, or somewhere else in York Region, supervised by the Society or its designate, which may include third party supervision. If the visit is to take place in Beaton, the father shall be responsible for getting to Beaton. If it is to take place somewhere in York Region (because the Society cannot supervise in Beaton), the Society should arrange a driver to pick up and drop off J. In advance of the visit, the aunt should provide to the father in writing, a proposed activity for him to engage in with J., and a list of items that he should have with him. The Society has the discretion, in consultation with the aunt, to select the day and time of this visit.

[241] The Society also has the discretion to extend these visits to become semi-supervised only, such as by way of a check in and check out, or to occur in the father’s home, or some combination thereof, depending on the progress of these visits and the father’s medical condition.

[242] It is imperative under this plan that the father and the aunt commence counselling, with a view to the Society extricating itself from this situation. At some point, the aunt and the father are going to need to interact with one another for this plan to become longer lasting. As set out earlier, the grandmother has already agreed to meet with the father in the community. I recommend that the Society host a meeting between the grandmother and the father, to get each other familiar with one another and to start this dialogue.

[243] Finally, the Society should work with the grandmother, if it is now appropriate, to have E. enrolled in a community activity, as that might provide an additional venue for the father to have some of the community visits.

Adjournment

[244] This matter is adjourned to December 16, 2024 @ 2 PM for 60 minutes in person. I have selected this return date to fall in the middle of the six-month adjournment, for a check in. If either counsel or the parties are not available, then I ask the Society to please coordinate an alternative date.

[245] The parties are free to make reasonable alterations to some of the details of the pathway set out above. The Court also urges the parties to consider child protection mediation during the adjournment.

[246] If there are any significant problems with the operation of the above plan, I am to be contacted by 14B immediately, that sets out the details of the problem, and I will consider seeing the parties earlier. I strongly ask the parties to make serious efforts to implement this and not create barriers to its success.

[247] Otherwise the purpose of December 16, 2024 appearance is to report to the Court about the progress of the above, and to canvass whether a resolution of the outstanding issues might be achieved. Offers to Settle should not be filed as I am seized with the completion of this trial.

[248] If there is no agreement, then I will set a summary process to receive additional evidence and for a final hearing of the access issues in this matter.

[249] I wish to thank all counsel for their organization and presentation of this case, and for their assistance.

Justice Alex Finlayson Released: August 20, 2024

[1] The aunt explained during closing submissions that this was not deliberate, to frustrate or complicate the situation. She had to vacate her home in Aurora, because the landlord requested it back for personal use.

[2] This plan was subsequently and appropriately rejected by the Society, for reasons that do not impact my analysis. While some evidence was called about that during this trial, it is sufficient for me to say that this kin plan was problematic and it was not pursued by anyone at trial.

[3] Although the identity of the accused is redacted, one of the incidents referred to therein refers to the mother and this other person living in a tent, and I heard evidence from the mother during this trial that she and S.G. lived in a tent for a time.

[4] Notably the general occurrence report actually described the father as being “extremely paranoid”, not a “bit paranoid”. Upon arrival, the father was whispering, because he was worried his neighbours would “call someone and tell them everything he is saying”. The father wanted the police to place cameras in the home.

[5] The reason the aunt placed restrictions on the father is discussed later, when I address access.

[6] The Court also finds that the parties can craft an access schedule that contributes to the grandmother getting other reprieves, regularly throughout the year.

[7] Counsel for the Society also indicated that the Society did not have instructions to fund first and last months’ rent for the mother to move nearby the grandmother, so perhaps this will not in fact occur.

[8] The Court heard some evidence that there is an injection available as an alternative to oral medication, that might alleviate some of the concerns expressed about the father not taking his medication (since the administration of his medication would be monitored). The father is not willing at this time to switch his medication at this time, due to a fear of needles. Dr. Sethna also testified that there would need to be a process of switching over the father’s medication. The injection is a different drug; it would first have to be administered orally, and then monitored for efficacy. There is the risk that the different medication may or may not work. The Court cannot compel this anyway, but the father may wish to consider this alternative in consultation with his doctor over time, if he wishes.