) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John J. Rossi, for applicant society ) — v. —, 2011 ONCJ 678

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows: 45.—

(8) 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. . . . 85.—

(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Sault Ste. Marie Registry No. 13/2009 DATE: 2011·VII·05 CITATION: Children’s Aid Society of Algoma v. R.L. , 2011 ONCJ 678 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John J. Rossi, for applicant society ) — AND — ) ) R.L., S.J.M., M.T. and S.W., ) ) ) ) ) ) Murdoch J.

Carter, for the respondent mother, R.L. S.J.M., on his own behalf M.T., on his own behalf S.W., on his own behalf ) ) ) ) David G. Stone, for the Office of the Children’s Lawyer, legal representative for the children J. and A. ) ) Heard on 8 and 22 June 2011 [ 1 ] JUSTICE J.

KUKURIN:— This is a decision on a motion of the society (at tab 2, volume 4 of the continuing record) on the issue of interim care and custody following the apprehension of two of three children (J., age 12 and A., age nine) on February 7, 2011 during the currency of a six month supervision order dated November 24, 2010. [ 2 ] The order of November 24, 2010 awarded care and custody of these two children, and their older brother, S., age 16, to their mother Ms. R.L., subject to a supervision order for six months with multiple terms and conditions.

Among these were conditions that the mother abstain absolutely from consumption of alcohol and non-prescribed dosages of drugs, and that there be no alcohol, not even empty alcohol containers, in the home at any time. The mother was required to comply with random alcohol and drug screens to be arranged by the society and to give samples for hair follicle testing.

She was to maintain sobriety and to continue to attend all scheduled appointments for drug/alcohol counselling. [ 3 ] These conditions were included because the mother had a history of abusing alcohol to the point that, in the summer of 2009, she was producing results placing her in the chronic alcohol abuse range. Also, back then, her hair follicle testing indicated she had been using cocaine.

[ 4 ] These circumstances were bad enough in themselves. However, they were exacerbated by the fact that she was then in a relationship with the father of the youngest child, A.. This relationship was dysfunctional. This man was abusing alcohol and was addicted to illegal drugs. He was violent to the mother and, on at least one occasion, with the oldest child S.J.M.. For a long time, the mother maintained this relationship knowing of the father’s addiction and violence, and she was aggressively non-cooperative with the society.

Not unexpectedly, her parenting of the children during this stage of her life was deficient. The society had started a child protection application in January 2009. By April 2009, it had apprehended all three of the children and placed them in foster homes. [ 5 ] They remained in the society’s care for almost 15 months. They were finally returned to their mother on an interim basis in mid-July 2010, and pursuant to the final order in November 2010.

The mother had, in this lengthy period, taken steps to address the circumstances that were creating the protection concerns. [ 6 ] Her most significant change was to separate herself from the father of A.. He was bad news for her, and it appears that she finally came to realize this. He has now been out of her life for at least a year, and there is no evidence that the relationship is remotely likely to resume.

This removed from her family a co-abuser of alcohol and drugs, and a source of domestic conflict and violence. [ 7 ] The second thing she did, in May 2010, was to enter, and successfully complete, a residential drug-and-alcohol treatment program. Following this, drug-and-alcohol testing showed negative results. She followed up by attending counselling and was reportedly doing well. The society agreed to return of all three children to her.

She was encouraged and did attend Alcoholics Anonymous (“AA”) meetings to help to solidify her gains in relation to the use of substances, and to help prevent relapse. [ 8 ] However, the society now believes that the mother has relapsed. It claims that she has breached several conditions of the supervision order. It has lost trust in her.

It believes she is lying to the society, is avoiding the society, has dropped out of counselling and attending AA meetings and has reverted to a pattern of dissembling, denials and making excuses, reminiscent of her attitude towards the society back in 2009. [ 9 ] The factual basis of the society for the belief that the mother has relapsed is fourfold: (

a) Her hair follicle sample provided August 9, 2010 provided results positive for alcohol at a level commensurate with chronic alcohol abuse, and positive for trace amounts of cocaine; (

b) In September 2010, a search of the mother’s home yielded three empty beer cans under her kitchen sink; (

c) Information from the police, not obtained by the society until December 3, 2010, indicated that the mother, on November 9, 2010, was stopped on the highway for speeding (134 per hour in a posted maximum 90 kilometres per hour speed zone), failed a roadside screening test, and gave a breathalyser reading at the police station of 90 milligrams of alcohol in 100 millilitres of blood, above the legal limit for driving; (

d) On February 7, 2011, a society worker observed the mother purchase a 12-pack of beer at the beer store in Thessalon. On a follow-up visit to her home, a full can of beer was found in her refrigerator. There was no indication that the mother had consumed any alcohol at the time. [ 10 ] The mother provided some explanations. She attributed the beer cans under the sink to workmen who had left them behind after putting in her new window. She claimed that the children were not even at home when the workmen had consumed these.

She denied use of cocaine or alcohol that would result in the readings obtained by the society from her August 2010 hair follicle analysis. The society is aware that hairsprays and gels may be a factor in alcohol readings. However, despite attempts, it was never able to obtain samples of the mother’s hair products to determine whether they contained any alcohol or other chemicals that might elevate alcohol readings. There was no explanation for the trace amount of cocaine other than her denial of using any.

Nor was there any evidence of the significance of this finding. [ 11 ] The mother candidly admitted purchasing a 12-pack of beer. She claimed she did this as a favour to her neighbour who had asked her to pick up some things for her when she was in town. The explanation she proffers is that one can of beer was accidentally brought into her home by her son S. when he helped unload the groceries from her vehicle, and this found its way to a shelf in her refrigerator. The neighbour provided a letter supporting this story. So did the child S..

Noteworthy is the absence of any sign of the balance (11 cans) of the 12-pack of beer in the mother’s home, and the lack of any indication that the mother had been drinking alcohol at the time. [ 12 ] While the mother’s explanations with respect to the three empties, and the single can of beer are not unreasonable, and the uncertainty of the basis for the high alcohol reading in her hair follicle analysis makes this evidence less than persuasive, the events surrounding her stop by police on November 9, 2010 are more difficult to explain away.

Her story is that she unknowingly drank some spiked punch at a social function that afternoon and this was the reason for her positive breathalyser test. She also points out that: (

a) she was given a speeding ticket not for 134 kilometres per hour but rather 100 kilometres per hour in a 90 kilometre per hour zone and that she paid a fine for this; (

b) she was not charged with impaired driving, nor with driving with blood alcohol over the legal limit; (

c) her license to drive was not suspended; (

d) the society has provided no reliable evidence to refute her story about the spiked punch. [ 13 ] I have been sceptical about fairy tales ever since I heard the one about a prince climbing a two-storey tower on a girl’s long hair. The mother’s tale is certainly imaginative and somewhat far-fetched. She could easily have provided an affidavit of someone else at this social gathering to corroborate her story. But she did not. Conversely, the society could have as well. [1] It did not either.

This leaves this entire episode in a less than satisfactory state from an evidentiary point of view. The onus in this motion is on the society. At the end of the day, its evidence supports only a suspicion rather than the factual occurrence that the society wishes the court to infer. [ 14 ] There is some evidence that the mother had alcohol in her body, both from the hair follicle test in August-September 2010, and from the breathalyser test on November 9, 2010.

Apart from these, the society has really presented no concrete evidence that the mother has been consuming alcohol since she completed the residential treatment program in May 2010. [ 15 ] The Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”), governs child protection proceedings. This motion by the society is brought pursuant to section 64(8) of the Act. [2] This particular subsection applies to the circumstances such as those in this case where a child is placed with a caregiver subject to a society supervision order and conditions.

The rationale that underlies the making of such order is that the order is in the best interests of the child. That premise applied in this case when the order was made in November 2010, and, it should be noted, on consent of the society.

In fact, the society had returned the children to their mother much earlier, four months earlier, in July 2010, on an interim basis, but on identical terms and supervision order conditions. [ 16 ] The judicial expectation that accompanies the making of such a protection order is that the society will carry out its supervisory role, that the caregiver will cooperate with the society and will comply with all of the conditions contained in the order.

The purpose of the order, which is temporally limited to a maximum of 12 months, is to ensure that whatever protection concerns prompted the society’s intervention and resulted in the protection order, have abated sufficiently (or disappeared) to permit the society’s withdrawal from further involvement with the family. [ 17 ] Where, as here, the society apprehends the children removing them from their caregiver, it must justify the continuation of that removal, and to do so with admissible evidence.

The exact wording of the statute is that: “... the child shall remain in the care and custody of the person or society having charge of the child until the [status review] application is disposed of unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.” [ 18 ] The starting point in the motion of the society is not reflective of a neutral position. It is not a level playing field.

In fact, it is slanted in such a way that the society has an uphill battle. [ 19 ] The “default position”, so to speak, is that the children are to remain where they are placed by the existing court order when a status review application is filed. This is not merely a presumption. It is a statutory direction. And it applies throughout the duration of the status review case until a final resolution is reached, which may or may not change that placement. [ 20 ] There is an exception.

The existing court ordered care and custody can be changed on an interim basis, but only if the court is satisfied that it is in the best interests of the child or children to do so. [ 21 ] The Act is structured to require the oversight of the court in child protection (including status review) proceedings. Courts are satisfied only on the basis of evidence.

That evidence should firstly be admissible evidence only, and secondly, must meet the civil evidentiary standard of proof of the balance of probabilities. [ 22 ] On motions such as the present one before this court, the evidence is exclusively affidavit evidence untested by any cross- examination. It would be too lengthy an exercise to digress into the treatment of evidence filed in motions like this one, but some brief comments are not inappropriate. [ 23 ] Firstly, the Act does have procedural provisions, in the part of the statute (Part III) that governs child protection cases like this one.

Some of these are evidentiary in nature. These depart from the classic rules of evidence in civil cases in some respects. Most notable are subsections 51(7) [3] and section 50(1) [4] of the Act . These widen considerably the boundaries of evidence that is permitted in other types of family cases. However, it would be a mistake to generalize too much from these apparent loosening of evidentiary rules. Section 51(7) applies only to circumstances where

section 51 issues are being dealt with by the court. The present motion is not under

section 51; it is under

section 64. Accordingly, section 51(7) has no applicability to the evidence filed on this motion. As for section 50(1) , this applies to evidence of a person’s past conduct towards a child only Whether the court considers such evidence or not is discretionary. In the present motion, the thrust of the society’s evidence is not directed to past conduct of the mother towards a child. Rather it is directed at the mother’s more recent behaviour as it relates to alcohol. [ 24 ] There are evidentiary provisions outside the Act that do apply to the motion of the society. These are found in the Family Law Rules , O.

Reg. 114/99, as amended. Specifically, rule 14 applies to this motion. Subrules 14(17), (18), (19) and (20) apply to the evidence on motions. Subrule 14(18) requires motion affidavits to contain, as much as possible, information within the personal knowledge of the person signing the affidavit. I interpret this to mean that the affiant is to recount factual occurrences that he or she personally observed or heard.

Subrule 14(19) permits an affiant to recount information which he or she “learned from someone else” but this can be included only if the affiant identifies by name the source of the information learned, and states that he or she believes it to be true. [ 25 ] As I interpret subrule 14(19), the course of the affiant’s information must be a person, not a document, or some other inanimate entity. Moreover, that person must, himself or herself, have personally observed, heard or otherwise experienced the factual occurrence communicated to the affiant.

I do not believe that subrules 14(18) and 14(19) permit into evidence information that is more than “second hand”. This is so even if the affiant identifies by name the source of his or her sources’ information.

Nor does the appending of a source document as an exhibit to an affidavit circumvent the evidentiary restriction in these subrules. [ 26 ] In this case, as an example, the society’s primary affidavit (at tab 3) in support of its motion contains in 31 of its 80 paragraphs the opening words “society records indicate that ...” Whatever information follows these introductory words in these paragraphs, if introduced for the truth of such information, which I believe is the case, is unquestionably hearsay and does not fall within subrule 14(18) or 14(19).

Accordingly, these are all inadmissible as evidence, and this is so even in the absence of an objection by opposing parties in the case. [5]

[ 27 ] In addition to the requirement of meeting the threshold for admissibility, the society’s evidence must prove what is required to be proved at the standard of the balance of probabilities. This is not a difficult standard to achieve. However, it is not an easy one either. With respect to any particular factual allegation, the question to be asked is whether the evidence establishes the factual occurrence is more likely than not to have taken place. It is always easier to meet the standard where an allegation has elicited no response from an opposing party.

It is clearly more difficult where there is a response, and that response is a denial or a contradiction. For example, the mother in this case denied drinking alcohol or using drugs. The society’s evidence is a laboratory report of hair follicle analysis showing alcohol and cocaine in the sample of the mother that was analyzed. Has the society met the balance of probability standard in this piece of evidence? It has not. Especially where there is a conceded possibility that hair products may have influenced alcohol readings.

As for the “trace” of cocaine in only one of three segments of the hair follicle analyzed, I am not sure what conclusion I can reach, or that I am expected to reach, as to the mother’s drug use. [ 28 ] Aside and apart from the question of admissibility of, or the requisite standard of evidence, what should remain front and centre in the motion is what it is specifically that the society has the onus of demonstrating to the satisfaction of the court.

That is that the child’s best interests require a change from the care and custody that was provided for in the existing protection order. [ 29 ] The statutory direction in favour of maintaining the ordered care and custody is not easy to displace. Where something different is sought, the criterion that the court must apply is the best interests of the child. Moreover, it is not merely that the best interests has to favour a different care and custody. The test uses the much more onerous word “requires”. This has the connotation of necessity.

In short, it suggests that maintaining the status quo is simply no longer reasonably possible. [ 30 ] Where “best interests” is statutorily designated as the criterion to be applied in making a judicial determination or order, the Act lists a number of considerations that, to the extent that they apply in a particular case, must be taken into account. [6] The statute identifies a dozen of these fairly specifically, and then adds a thirteenth in the form of a “catch-all” to permit taking into account any relevant factor not included in the first 12. [ 31 ] The society’s motion, and its evidence on this motion, has not addressed all of the considerations in section 37(3).

Its focus has been primarily on three things: (

a) the risk that the children may suffer harm through remaining in the care of their mother; (

b) the degree of risk that justified the finding; (

c) the untrustworthiness of the mother in complying with court imposed supervision order terms and conditions. [ 32 ] There is no ranking of importance among the multiple considerations listed in section 37(3). It seems logical, however, to prioritize the importance of some of these. The presence of a risk of harm, particularly if the risk is significant and the potential harm is substantial, seems to me to be a consideration that would trump not only each of the others, but all of them cumulatively.

I cannot imagine a case where the process of judicial balancing of opposing considerations would result in placing or letting a child remain in a situation of a significant and substantial risk of harm. [ 33 ] Is this what is present here? I don’t believe so. In terms of risk of harm, clause 12 of section 37(3) directs the court to look at the degree of risk that justified the finding that the (three) children were in need of protection.

That finding was made in January 2010, a year and a half ago. [7] At that time, the major factors underlying the risk of harm were: - the presence of A.’s father who presented elements of violence, substance abuse and addiction; - the mother’s abuse of alcohol and her use of illegal drugs (which may have been to the point of addiction); - the mother’s lack of insight into the actual and potential harm to the children that was inherent in this father’s violence and their abuse of alcohol and drugs; - the mother’s inadequate care and supervision of the children; - the mother’s lack of cooperation with the society at times bordering on animosity; - the mother’s unwillingness to seek help from community agencies. [ 34 ] It is impossible to ignore the enormous reduction in the degree of risk of harm to these children.

The father of A. has virtually disappeared from the scene — and he represented a monumental component of risk of harm. The mother finally got the message, and she now goes out of her way to avoid contact with him. His absence also removes the main person with whom she was involved in drug and alcohol abuse. The mother has successfully completed a drug-and-alcohol treatment program. She accesses help from her community. She has been attending AA meetings and has an AA sponsor. She has a family physician who is aware of her history and current circumstances and is clearly sympathetic and supportive of her.

She has an Ontario Works case worker with whom she seems to have a positive rapport. She has at least one close neighbour with whom she and her children enjoy a good relationship. She has family, most notably her sister Melody who claims she is regular contact with the mother and believes that the mother is a good mother to her children. She is very involved in the lives of her children and is in touch not only with their teachers, but also with their activities, both academic and extracurricular. The evidence appears to be uncontradicted that the children thrived after being returned to her care in July of 2010.

The mother seems to have provided more than adequate parental care. [8] [ 35 ] What ingredients remain of the recipe for child protection concerns? The society’s argument is that the mother has relapsed with respect to substance abuse. In addition, it believes she is lying about this relapse. Finally, it is convinced that the mother cannot be trusted to comply with its recommendations and with court imposed conditions. [ 36 ] In terms of relapse, there is a qualitative distinction between alcohol and non-prescribed or non-prescribed dosages of

drugs. The society’s evidence that the mother has relapsed back to drug use is not at all convincing. A trace element of cocaine in one of three hair follicle segments with no explanation or

interpretation of what this means is virtually the only evidence of a drug relapse. [ 37 ] I am satisfied, on the evidence, that the mother had alcohol in her body on at least two occasions since having the three children returned to her. However, I am far from convinced that this represents a “relapse” back to alcohol abuse. The hair follicle results remain somewhat ambiguous with respect to alcohol because of the possibility of the influence of hair care products on the readings. The results were received in September 2010 of samples collected in August 2010.

The society did not apprehend the children even though they were in their mother’s care since July 2010. In fact, it consented to a final order in November 2010 by which date it was fully aware of the test results. [ 38 ] The only other incident was on November 9, 2010. The mother provided less than convincing evidence that her ingestion of alcohol was inadvertent. However, the society’s evidence implying that she deliberately drank alcohol was equally equivocal.

The evidence does establish that she had alcohol in her blood and, although it was over the legal limit for driving a motor vehicle, it was not so by much. The evidence does not support an inference that she was intoxicated at the time, or that she was driving while impaired by alcohol. [ 39 ] There was no evidence of consumption by her at any other time, neither when the beer bottle empties were found under her sink, nor when one full can of beer was found in her fridge. [ 40 ] With the evidence of the society, I am not satisfied that the mother has suffered a relapse back to alcohol abuse.

This is even more the case when there is juxtaposed the mother’s denial of any such relapse, her own doctor’s statement in February 2011 that he has consistently found her to be sober, and her sister’s belief in the fact of the mother’s sobriety. None of the children report any such relapse. Nor do any of the persons in the community with which the mother is in contact. [ 41 ] The mother’s non-compliance with terms of the supervision order is proven to my satisfaction. However, the circumstances of the non-compliance are as important as the fact of the non-compliance.

The conditions of the supervision order were included to address the concern created by the mother’s abuse of alcohol. They were clearly strict terms, almost draconian perhaps. However, they were terms to which she consented. In this case the non-compliances were far from egregious.

Had they been, the society would surely have apprehended much earlier or would not have consented at all to the supervision order of November 24, 2010. [ 42 ] My impression, in this case, is that the can of beer in the fridge may have been the precipitating factor for the apprehension, but the real reason was the accumulation of other information about the mother and alcohol, combined with an increasing deterioration of the mother’s cooperation and communication with the society. [ 43 ] The section 37(2) circumstances relied upon by the society are not all that the court must consider.

There are many more in subsection (2) of

section 37, most of which, when considered in the context of this case, favour the care and custody of these children with their mother, rather than in foster care. Foremost among these is the express wishes of J. and A. to return to home. These wishes are both clear and consistent and are corroborated by their OCL counsel. At the ages of these children, their wishes represent a serious consideration in favour of reuniting this family. [ 44 ] Their ages are also relevant in another sense, namely, the extent of any risk that may exist if they are returned home.

They are no longer infants, no longer totally dependent on adult care. At age 12, J., with suitable childcare training, would be an acceptable babysitter in our society. Moreover, there is a 16 year old brother in the home old enough to be applying for a beginner’s driver’s license. [ 45 ] The children apparently live in a foster home in Blind River, a considerable distance from their family home in the suburbs of Thessalon.

The society (until the most recent judicially imposed interim access order) permitted the children J. and A. contact by way of access only once a week, and only for a three hour visit — and in Blind River. S. attended these visits for a time but his ability to do so was limited by the society to once a month. Since March, these visits have been unsupervised by the society. The children do not like the limitations on their ability to be with their mother and their brother. On the evidence presented, these children have strong positive maternal and sibling bonds.

I conclude that clauses (1), (2), (5) and (6) favour a reintegration of these children back to their own family. [ 46 ] Continuity of care is yet another consideration favouring a return of these children to their mother. Apart from the familiarity, routine and structure inherent in family life generally, the mother appears to have parented in such a way that she had happy, involved, relatively well adjusted children who were making good progress and achieving rather well. She also took steps to address their needs. Since being in foster care, the evidence is that they are not happy.

J. has dropped out of extracurricular activities. She has apparently regressed to the point that the society is planning to find an intervention worker for her. The mother had followed up with A.’s developmental lag after the children were returned to her in July 2010. This included a psychological assessment, attendance at an IPRC meeting with teachers and board of education personnel, development of an IEP for A. who became eligible for the Life Education and Development Skills (LEADS) Program. Since the most recent apprehension, the LEADS Program has not been implemented for A..

Nor has a tutor, a recommendation of A.’s psychological assessment. No reason has been given why not. [ 47 ] The Act advocates for the continuity of care and favours the least disruptive course that is available and appropriate. In the present case, these objectives are not advanced by the removal (or continuation of that removal) of the children from their mother, their brother, their home, and their family. [ 48 ] There appears to be, in this case, a distinct possibility of adverse effects on these two sisters by a continuation of a separation from their mother.

The mother’s uncontradicted evidence is that the lives of these children have not gone well since they were apprehended in early February. They have not adjusted well to foster care. They have been separated from their family for almost five months. That is plenty of time to settle into a foster family and become comfortable there. That has not happened. More time will not, in my view, bring about any significant positive transformation. [ 49 ] In terms of other relevant circumstances, two are worthy of mention. The first, and most obvious, is the fact that the

society did not apprehend S. when they apprehended his younger sisters. Clearly he did not wish to leave his home and his mother, and at age 16, his expressed wishes carried significant weight. This left a 16 year old in the sole care and custody of a mother whom the society claims had relapsed to alcohol and drug use. And the society did so while it still had a supervisory obligation by way of this court’s protection order.

Of even greater significance is the fact that the society sought, and obtained, a termination of its supervision responsibility with respect to S. thereby leaving him completely without any assistance whatsoever from the society. What is the court to make of this differential treatment of S. and his sisters?

There are several possible inferences, but one that surfaces most readily is that the mother’s relapse, if there is one at all, is nowhere near as serious as the society intimates. [ 50 ] The second, and more recent, circumstance is the favourable kin assessment of Melody, the maternal aunt of these children, and the society’s most recent request to amend its plan of care and thereby obtain an order placing J. and A. with this aunt. Section 64(8) of the Act does not restrict a change in the existing care and custody only to a society.

Suitable kin are, in fact, to be preferred over foster care in almost every case. However, this alternative placement with an extended family member comes into play only if the society has met its onus in displacing the statutory direction to maintain the care and custody as set out in the existing order. In this case, placement with their aunt Melody should not be treated as a compromise between continued foster care and a return to their mother.

Placement with an aunt, just as continued placement with the society, can only be considered if the court is satisfied that the best interests of these two children require a change in their care and custody placement. [ 51 ] This court is not satisfied of this statutory prerequisite on the evidence presented and after a consideration of the best interests criterion in the statute. [ 52 ] The children should be returned forthwith to their mother. [ 53 ] The existing supervision order terms contained in the order dated November 24, 2010 will continue.

The words “a change in the child’s care and custody” found in section 64(8) is not restricted to placement only. Such change can maintain the same placement but vary other aspects such as conditions affecting the parties. In this case, I am not inclined to change any conditions. Counsel for the children has put it aptly in his submissions that the recent apprehension and the intervening five month separation from her daughters represent a wake-up call for their mother that failure to comply strictly with court imposed conditions can have very serious consequences. The court can only echo this sentiment.

The mother knows full well why these children were removed from her care in April 2009. She knows equally well what is expected from her in the supervision order terms and conditions. She cannot afford slips, minor relapses, or even errors in judgment. My impression is that the relationship between her and the society is not altogether amicable, and it continues to supervise the placement of these two children with her. She will have to remain very vigilant. 5 July 2011 Justice John Kukurin Ontario Court of Justice (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and (

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance.