Hastings Children Aid Society v. M.L., 2011 ONCJ 647

Belleville Registry No. 262/05 DATE: 30·III·2011 CITATION: Hastings Children Aid Society v. M.L. , 2011 ONCJ 647 THE ONTARIO COURT OF JUSTICE IN THE MATTER OF an application under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, for the Crown wardship of A.E., K.L., T.L., R.F., M.F. and L.J.L., children apparently in need of protection; B E T W E E N: HASTINGS CHILDREN’S AID SOCIETY Applicant - and – M.L., J.F. and M.E. Respondents R E A S O N S F O R J U D G M E N T of Justice Elaine I. Deluzio at Belleville, Ontario on Wednesday, 30 March 2011 APPEARANCES: Cory B. Deyarmond counsel for the society Natalie G.J. Phipps counsel for the natural mother, M.L. Paul W.

Lamain counsel for the Office of the Children’s Lawyer, legal representative for the children A.E., K.L. and T.L. Heather H. McGurk counsel for the Office of the Children’s Lawyer, legal representative for the children R.F. and M.F. INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO S. 45(8) OF THE CHILD AND FAMILY SERVICES ACT REASONS FOR JUDGMENT Position of the Parties [ 1 ] Ms. M.L., born on […]1978, is the biological mother of six children, namely A.E., DOB […], 1998, K.L., DOB […], 2001, T.L., DOB […], 2002, R.F. DOB […], 2007, M.F., DOB […], 2009 and L.J.L. DOB […], 2010.

The five oldest children were apprehended from their mother’s care on January 8, 2010. L. was apprehended at birth. [ 2 ] The Hastings Children’s Aid Society (“the society”) is seeking an order that all six children be made Crown wards. The children have remained in the continuous care of the society since they were apprehended. They are currently placed among four separate foster homes. A.E. is on his own, K.L. and T.L. are placed together, R.F. and M.F. are placed together, and L.J.L. is placed separately.

A.E. was initially placed with K.L. and T.L. but that placement broke down because the foster parents had difficulty controlling A.E.’s behaviour, especially his aggressive behaviour towards his sisters. A.E. has been in his second foster home since May 2010 and he is doing well there. R.F. and M.F. are also in their second foster placement. All of the children appear to be doing well in their current foster placements. [ 3 ] The society is asking that A.E. be made a Crown ward with access and that the five younger siblings be made Crown wards without access for the purpose of adoption.

The society’s plan is to secure three separate adoptive placements for these children with K.L. and T.L. being placed together, R.F. and M.F. being placed together and L.J.L. placed separately. Only L.JL. is currently placed in a potential adoptive home. L.J.L.’s foster parents, who have cared for L.J.L. since her birth, want to adopt her, if she is made a Crown

ward. [ 4 ] The oldest five children have already been found to be in need of protection. They were being supervised in Ms. M.L.’s care at the time of their apprehension. On September 16, 2009, A.E., K.L., T.L., R.F. and M.F. were found to be in need of protection, on consent, and ordered to reside in the care and custody of their mother, subject to society supervision for six months. Ms. M.L. consents to a finding that L.J.L. is a child in need of protection. The issue at trial is what protection order, made pursuant to

section 57 of the Child and Family Services Act (“the Act”), is in the best interests of each of the children, taking into account the factors set out subsection 37(3) of the Act. [ 5 ] Ms. M.L. is asking that all of the children be returned to her care, subject to a supervision order. Ms. M.L.’s plan is to parent the children jointly with her mother, Ms. D.R.. Ms. M.L. and the children were living with Ms. D.R. throughout the period of supervision and at the time of their apprehension. The evidence establishes that Ms. D.R. has a strong attachment with each of the children and has been closely involved with Ms.

M.L. and the children since A.E.’s birth. Ms. D.R. has assumed a co-parental role with her daughter, on a continuous basis, since March 2008. Ms. M.L. and Ms. D.R. have continued to live together since the children were apprehended and they have visited the children together, and consistently, two or three times each week, depending on the access

schedule set by the society. [ 6 ] None of the biological fathers of the children participated in the trial or presented a Plan of Care. [ 7 ] Ms. M.L. separated from A.E.’s biological father, Mr. M.E., when A.E. was seven months old, and he has had no contact with A.E. since that time. K.L.’s biological father is deceased and T.L.’s biological father is unknown. [ 8 ] Mr. J.F. is the biological father of R.F., M.F. and L.J.L.. Mr. J.F. has never filed an answer and did not present a plan. He is noted in default. Mr. J.F. was subpoenaed by the Children’s Lawyer to testify during the trial.

He says he is in a new relationship now and wants nothing to do with his children. Position of the Children’s Lawyers [ 9 ] At the outset of the trial Mr. Lamain, Children’s Lawyer for A.E., T.L. and K.L., supported the society’s position and advised the court that an order of Crown wardship with access was in the best interests of A.E., and an order of Crown wardship, no access, was in the best interests of K.L. and T. L.. Mr. Lamain advocated this position, while acknowledging that all three of his clients since their apprehension have clearly and consistently maintained that they want to go home. [ 10 ] Ms.

Smith-McGurk, Children’s Lawyer for R.F., M.F. and L.J.L. also took the position that an order of Crown wardship, no access, was in the best interests of all three young children. Ms. S.- McGurk also acknowledged that R.F. has also been clear and consistent in expressing his wish to go home, while M.F. and L.J.L. are of course too young to express their wishes. [ 11 ] Both Children’s Lawyers agree that all of the children, except L.J.L. who was apprehended at birth, have strong attachments with each other and with their mother and grandmother. [ 12 ] Mr.

Lamain’s position changed after hearing nine days of evidence. In his final submissions Mr. Lamain asked the court to consider making a six-month society wardship order for his clients. Mr. Lamain, on behalf of A.E., K.L. and T.L., submitted that the trial evidence demonstrated that Ms. M.L. and Ms. D.R. have made some positive changes in their lives, and have demonstrated improved insight into the issues resulting in the children’s apprehension.

He suggested that a society wardship order would give mother and grandmother a further opportunity to continue to make positive improvements that may be sufficient, after another six months, to justify the safe return of the children subject to a supervision order. [ 13 ] In her final submissions, Ms. Smith-McGurk, on behalf of the three youngest children, also acknowledged that the evidence has established that Ms. M.L. is starting to acknowledge the issues leading to the apprehension of the children, is working with counsellors, and is trying the make positive changes in her lifestyle. Ms.

Smith-McGurk also submitted that a society wardship order, or the gradual return of the children to their mother’s care pursuant to a supervision order, are both available options for the court, but she stopped short of advocating this option and suggested that the court would first have to be convinced that Ms. M.L. has transformed herself into an “assertive individual, capable of protecting her children and making sound decisions”. Past Parenting Concerns and Previous Protection Proceedings [ 14 ] The society has been involved, on and off, with Ms. M.L. since 2003. The society worked with Ms.

M.L. on a voluntary basis between March 2003 and May 2004. At that time the society’s concerns included the cleanliness of Ms. M.L.’s home, the family’s transient lifestyle, and A.E.’s poor school attendance. In September of 2003 Ms. M.L. and her children, A.E., K.L. and T.L., were staying temporarily at the home of Ms. M.L.’s father, even though Ms. M.L. had been sexually abused by her father when she was a child. At the insistence of the society, Ms. M.L. moved with the children to a women’s shelter, and then relocated to subsidized housing in Belleville. During this time the society referred Ms.

M.L. to Children’s Mental Health Services due to concerns about A.E.’s behaviours, but Ms. M.L. failed to follow through with scheduled appointments, and the counselling file was closed. [ 15 ] The society became re-involved with the family on January 17, 2005 when the society received a referral from A.E.’s school principal about bruising on A.E.’s cheeks. At that time Ms. M.L.’s brother, Mr. T.L., was living with Ms. M.L. and the children. A.E. reported that his Uncle T. had smacked him with a DVD case, spanked and hit him. A.E. also said that his uncle had spanked K.L. and T.L. The society investigated and Ms.

M.L. acknowledged having previously told Mr. T.L. not to spank the children. She asked Mr. T.L. to leave her home following her appointment with the society worker.

[ 16 ] Two months later in March 2005, Ms. M.L. was evicted from her apartment in Belleville for non- payment of rent. She moved with the children into her mother’s two-bedroom apartment in M.. That same month the society assigned a family support worker to provide in-home assistance to Ms. M.L. to work on budgeting skills, hygiene and cleanliness of the home, child management strategies and housing. The family support worker, Patti Sweet, testified that she completed ten in-home visits with Ms. M.L. between March and June of 2005. She said that Ms.

M.L. did show improvement with housekeeping tasks and child management strategies, but showed poor follow-through with arranging medical appointments for the children or obtaining housing. The school was reporting that A.E.’s attendance remained poor. [ 17 ] As a result of these ongoing concerns the society brought a child protection application in May 2005. On consent, the children were found to be in need of protection and the society was granted a six month supervision order with the children remaining in the care of their mother. [ 18 ] In July 2005 Ms.

M.L. moved with the children to a three-bedroom residence and in December 2005 the supervision order expired. The society remained involved with Ms. M.L. and the children until July 2006 on a voluntary basis to address issues of A.E.’s school attendance, behaviour management of the children, and cleanliness of the home. By July 2006 A.E.’s school reported no concerns respecting his attendance and few concerns were noted regarding the children’s behaviours. Cleanliness of the home was also no longer an issue for the society. The society closed its file.

Recent Society Involvement and Current Protection Concerns [ 19 ] On 2 October 2007, the society was contacted by Ms. Sandy Ross from the maternity ward at the Belleville General Hospital. She advised that Ms. M.L. was pregnant and in hospital for testing with an expected due date of 23 October 2007. Ms. M.L.’s family doctor had reported that Ms. M.L. had received little prenatal care during her pregnancy. Ms. M.L. gave birth to a healthy, full-term baby on […] 2007. On 31 October 2007, the society’s intake protection worker visited Ms. M.L. in her home and Ms.

M.L. explained that her lack of prenatal care was because she did not become aware she was pregnant until the final stages of the pregnancy. The worker noted that R.F. appeared healthy, Ms. M.L. had all of the necessities for R.F., and she had no concerns about the children. During that visit Ms. M.L. identified Mr. J.F. as R.F.’s father, but said that she was not living with Mr. J.F. .She said he only visited from time to time and she described her relationship with Mr. J.F. as positive and free from violence. [ 20 ] On March 23, 2008 police attended Ms.

M.L.’s home in response to a neighbour’s report of domestic conflict in her residence. Both Ms. M.L. and Mr. J.F. were present when the police arrived. Ms. M.L. told the police that earlier that day and in the presence of R.F., Mr. J.F. had threatened to beat Ms. M.L.. Contrary to what she told the society worker in October 2007 about her relationship with Mr. J.F., Ms. M.L. told the police that in the spring of 2007, Mr. J.F. had grabbed her during an argument and tried to push her over a railing and had sexually assaulted her during a separate incident. Mr.

J.F. was removed from the home and charged with two counts of assault and sexual assault against Ms. M.L.. He was released on conditions, including a condition that he has no contact with Ms. M.L. or the children. The investigating officer called the society to report the domestic altercation in the home in the presence of the children. [ 21 ] The society’s involvement with Ms. M.L. and her children intensified after the society learned about the allegations of physical and sexual violence against Mr. J.F. The society also found out that Mr.

J.F. had an extensive criminal record that included a 1991 sexual assault conviction arising from allegations that in 1988, when he was 20 years old, Mr. J.F. had sexually abused two nieces who were six and seven at the time. [ 22 ] Linda Howard, an intake worker with the society, testified at trial. The society was notified by the police about the domestic violence charges. Ms. Howard went to see Ms. M.L. on April 2, 2008 and met with Ms. M.L., and the children, A.E., K.L., T.L. and R.F.. Ms. M.L. acknowledged that there had been verbal conflict and said that A.E. had seen Mr.

J.F. try to push her over the railing. She said that Mr. J.F. had been drinking heavily at the time of that incident. Ms. M.L. told the worker that her relationship with Mr. J.F. was over and she wanted to gain custody of R.F. and ensure that Mr. J.F. had only supervised access. [ 23 ] Shortly after the charges were laid in March 2008, Ms. M.L. and the children moved from Tweed into Ms. D.R.’s apartment in M.. Ms. M.L. testified that she had to move out of her apartment because after charges were laid against Mr. J.F. she began receiving threats from relatives of Mr. J.F. who lived in the same apartment building.

It was over a month after the move before Ms. M.L. registered A.E., K.L. and T.L. in their new school in M.. [ 24 ] On May 29, 2008, Ms. Howard attended Ms. D.R.’s apartment for a pre-arranged appointment with Ms. M.L.. Ms. M.L. arrived late, and told Ms. Howard that she had been at a court appearance with Mr. J.F. to try to get the no contact conditions lifted. Ms. Howard made it clear to Ms. M.L. that the society opposed any contact between the children and Mr. J.F. until the society had further assessed the matter, and Ms. M.L. agreed. [ 25 ] The next day, May 30, 2008, Ms.

Howard interviewed the children at school and received conflicting information about contact between the children and Mr. J.F. K.L. said that they had visited “Daddy [J.F.]” with their mother but A.E. maintained that his mother and Mr. J.F. were not seeing each other because they were not allowed to. [ 26 ] Lisa Mascherin was assigned as ongoing worker for the family in June 2008. She testified that she met with Ms. M.L. on June 22, 2008 to create a voluntary plan of service with which Ms. M.L. agreed and signed on July 1, 2008. The plan of service dated July 1, 2008 was filed as an exhibit at trial.

Listed as one of the “outcome tasks” is the following condition: “[ Ms. M.L.] to choose appropriate partners who promote non-violence and to restrict contact with the children until such time as the current partner is going to be a stable person in the children’s lives”. [ 27 ] Ms. Mascherin testified that her main protection concern at that time was the possibility that Ms. M.L. was allowing contact between Mr. J.F. and the children. Ms. Mascherin had no concerns about Ms. M.L.’s parenting or the care the children were receiving. The children were always fed appropriately, and well dressed.

The condition of the apartment was smoky and crowded but otherwise clean, and the children were always happy when she was there. She said the children were always smiling and appeared to get along well with

each other. At trial Ms. Mascherin agreed that during the period of voluntary supervision she did not refer Ms. M.L. to a parenting program, or suggest an in-home family support worker because she did not thing Ms. M.L. needed this type of parenting direction. She said her main concerns were about the external environment “things mom was exposing the children to or failing to protect them from”. [ 28 ] On September 15, 2008 Mr. J.F. pleaded guilty and received a ten-month jail sentence for the assaults and sexual assault against Ms. M.L. [ 29 ] After Mr.

J.F. was incarcerated the society continued to supervise Ms. M.L. on a voluntary basis. [ 30 ] While Mr. J.F. was in jail, the society’s concerns focused mainly on the crowded living conditions in Ms. D.R.’s two bedroom apartment, smoking in the presence of R.F. who had repeated chest infections and concerns that Ms. D.R. was using and selling marijuana. On November 19, 2008, during a school visit, K.L. and T.L. told Ms. Mascherin that their grandmother “smoked fluffy green stuff” and that people come to the apartment to buy the “green fluffy stuff”. Instead of discussing the children’s comments with Ms.

M.L. and Ms. D.R., Ms. Mascherin, along with two police officers, attended Ms. D.R.’s apartment to confront Ms. D.R. and Ms. M.L. about the children’s statements. A small amount of marijuana was found in Ms. D.R.’s possession but she was not charged with any offence. Ms. D.R. has admitted that she had marijuana for her personal use but she has denied selling marijuana and she handed over a small amount of marijuana to the police. Ms. D.R. was not charged with any offence. [ 31 ] After this incident Ms. Mascherin advised Ms. M.L. to move out of Ms.

D.R.’s apartment and find separate housing for her and the children. One of the original tasks identified in the Voluntary Plan of Service had been for Ms. M.L. to find appropriate housing for the children. However, despite repeated requests and offers of assistance by the society, Ms. M.L. remained in the apartment with her mother and the children. [ 32 ] Ms. M.L. and Ms. D.R. say they made efforts to find separate accommodation for Ms. M.L. but were unsuccessful, given the limited housing options available in their small rural community, and Ms.

M.L.’s reluctance to live in a subsidized housing unit with her children. Ms. M.L. testified her experience living with the children in low income housing in Belleville in 2005 had been very negative and she feared exposing her children to “crack heads” and violence in that environment. [ 33 ] Both Ms. M.L. and Ms. D.R. testified that after Ms. Mascherin showed up with the police at their apartment, their relationship with Ms. Mascherin deteriorated. They were upset that the children were present when police arrived and felt Ms. Mascherin should have talked to them first about what the children were saying. Ms.

D.R. says she would have admitted her marijuana use. She denies ever selling marijuana from the apartment. Ms. Mascherin testified that Ms. D.R. did admit to her that she gave drugs out to people but didn’t “charge them”. Ms. D.R. denies this and there is no other evidence of drug dealing by Ms. M.L.. There is no evidence that Ms. M.L. ever used or sold marijuana. [ 34 ] M.F. was born on […], 2009. Mr. J.F. is the biological father of M.F.. Once again the society was contacted by the hospital because Ms. M.L. had received no prenatal care. Ms. Mascherin testified that she saw Ms.

M.L. just a few weeks before M.F. was born and Ms. M.L. did not physically appear pregnant. Ms. M.L. testified that, as was the case with R.F., she did not know she was pregnant until shortly before M.F. was born. Ms. D.R. said that she did not know her daughter was pregnant until Ms. M.L.’s water broke. Ms. D.R. explained that she thinks that even after her daughter became aware that she was pregnant she kept the information secret because Ms. M.L. knew Ms. D.R. would be upset that she had been having a sexual relationship with Mr. J.F.

Despite the lack of prenatal care, M.F. was a healthy, full term baby. [ 35 ] Mr. J.F. was released from custody on April 4, 2009 and was subject to probation conditions prohibiting contact with Ms. M.L., without her written consent, and prohibiting contact with the children, except with the approval of the society. [ 36 ] On April 28, 2009, the society received information from a community member who claimed to have purchased marijuana from Ms. D.R. at her apartment. Ms. Mascherin attended Ms. D.R.’s apartment with three police officers. On this date, Ms. M.L., R.F. and M.F. were at the home. Ms.

Mascherin searched the apartment in the presence of the police and found a small amount of marijuana, two scales, a bag full of tiny Ziploc-type bags that had some trace of marijuana in some of them, and a bong with marijuana on it. The police confiscated the marijuana but Ms. D.R. was not charged with any offence. On the same day Ms. Mascherin spoke with Ms. D.R. to explain why the society was concerned about the safety of the children in a residence where drug dealing was occurring. Ms. Mascherin testified that Ms. D.R. promised to move out of the apartment that night but never did. Ms.

D.R. testified that she did arrange to move into a separate apartment in the same apartment building but she was told by Ms. Mascherin that the society did not want her living in the same building as her daughter so she let the apartment go. [ 37 ] On May 20, 2009 the society received a faxed letter from Ms. M.L.’ family physician, Dr. Yorsten. Dr Yorsten advised the society that she was concerned about Ms. M.L.’s new baby, M.F., because Ms. M.L. had received no prenatal care, and because Ms. M.L. had not yet brought M.F. in for an appointment. Dr.

Yorsten advised the society that she had personally attended at Ms. M.L.’s home two weeks prior and asked Ms. M.L. to bring M.F. in or she would have to call the society. [ 38 ] On July 8, 2009 the society brought a child protection application seeking a six month supervision order. The society’s identified concerns at that time were the risks of emotional, physical and sexual harm to the children posed by Mr. J.F. due to Ms. M.L.’s ongoing relationship with Mr. J.F., and Ms. M.L.’s inability to protect her children from unsafe situations in her home. [ 39 ] On August 17, 2009 Dr. Anthony Eccles, C.

Psych., completed and provided the society with a copy of a sexual behaviours/risk assessment of Mr. J.F., conducted at the request of Mr. J.F.’s probation officer. Dr. Eccles did not testify but his report was filed on consent as an exhibit at trial. Dr. Eccles concludes that Mr. J.F. is at medium to high risk to reoffend in a sexually violent manner and a high risk to reoffend in a non–sexually violent manner. Society workers Sonia Ross and Lisa Mascherin testified that when they reviewed the Eccles report with Ms. M.L. her response was that his sexual offences happened a long time ago when he was “just a kid”.

Ms. M.L. testified that she has never read the report herself even though her lawyer has a copy of the report and it has been filed as an exhibit at trial. [ 40 ] On September 16, 2009, on consent of Ms. M.L. and Mr. J.F., A.E., K.L., T.L., R.F. and M.F. were found to be in need of

protection and were ordered to reside in the care and custody of Ms. M.L., subject to society supervision for six months, with conditions set out in the plan of care filed July 6, 2009. Condition #13 of the plan of care states that: “Ms. M.L. will not allow Mr. J.F. in the home or around the children without approval from the society. All of Mr. J.F.’s access will be supervised and in the discretion of the society.” [ 41 ] One month later, on October 26, 2009, at the request of Ms. M.L. a probation condition preventing Mr. J.F. from having contact with Ms. M.L. was amended to allow Mr. J.F. and Ms.

M.L. to have contact in a community setting, but not in a private dwelling. [ 42 ] This was the second time that Ms. M.L. took positive steps to have Mr. J.F.’s no contact conditions varied and this second request was made after the release of Dr. Eccles’ report. By this time Ms. M.L. must have been fully aware that the society did not support any contact between Mr. J.F. and the children. Ms. M.L. testified that she only continued to have a relationship with Mr. J.F. because he was harassing or threatening her, and since she was the victim of physical and sexual domestic violence by Mr.

J.F., it is reasonable to infer that Mr. J.F. had some control over Ms. M.L.. However, it is also a reasonable inference that Ms. M.L. wanted to continue her relationship with Mr. J.F. and failed to appreciate the risk that he posed to her children. Circumstances Leading to Apprehension of the Children [ 43 ] By November 2009 the society had decided to transfer the L. file to another worker, Mr. Uddenberg. Both Ms.

Mascherin and her supervisor, Sonya Ross, explained that from the society’s perspective the decision to change workers was arrived at because the family was not making progress, not co-operating or addressing the society’s concerns, and it was hoped that a new worker might make a difference. [ 44 ] The relationship between Ms. Mascherin and both Ms. M.L. and Ms. D.R. had clearly broken down by then. Ms. M.L. rarely even spoke with Ms. Mascherin when she visited the apartment in accordance with the supervision order. Ms. M.L. and Ms. D.R. both testified that they didn’t like Ms.

Mascherin visiting the children at school. They were also angry and embarrassed about the two occasions when Ms. Mascherin arrived at their home with police, and conducted a search for drugs. [ 45 ] On November 17, 2009, Ms. M.L.’s brother, Mr. M.L., was charged by the Centre Hastings OPP with having a marijuana grow operation in his home. Both Ms. M.L. and Ms. D.R. described a very close relationship with Mr. M.L. and his three children, D[1 ] ., D[2 ] .. and D[3 ] ... Mr. M.L.’s three children spent most evenings after school in their apartment so that they could have dinner and do their homework.

Sometimes the cousins stayed overnight and Ms. M.L. and Ms. D.R. would feed them breakfast and get them off to school. [ 46 ] On November 24, 2009, the society received a referral from M.T.S., advising that Mr. M.L.’s child, D[3 ] , disclosed to her school support staff that Mr. J.F. has been at the home with Ms. M.L., and that he was there most evenings and weekends. [ 47 ] That same day, in response to D[3 ] ’s disclosure, Ms. Mascherin attended M.P.S. to interview Ms. M.L.’s children and Ms. McCoy, another society intake worker, attended M.T.S. to interview Mr. M.L.’s children. T.L. and K.L. both told Ms.

Mascherin that Mr. J.F. had been at their home, had slept over and had played physical games with them such as “horsey”. They also said they had to lie about Mr. J.F. being in their home and had been warned by family members that they would go to a foster home if they told. [ 48 ] Ms. Mascherin asked T.L. if Mr. J.F. had been in the home. T.L. said he had been there and that he helps out with “R.”, makes breakfast, and helps mommy. She said that sometimes she was left alone with daddy Mr. J.F. and said they played lots of games and he slept over on a pull-out couch with mommy.

She said she was uncomfortable talking about Mr. J.F. because she was told she would go to a foster home. A second society worker, Jess Uddenberg, interviewed K.L. and she also made comments about having contact with Mr. J.F. [ 49 ] Kristen McCoy testified and said that she interviewed D[3 ] at school in the presence of her school counsellor on November 29, 2009. When she asked D[3 ] where she was living D[3 ] started to cry and said they were staying with her Gramma and they had been told to lie about that. D[3 ] told Ms. McCoy where everyone would sleep and that her aunt and Mr.

J.F. would sleep on the couch and her father would sometimes sleep on the couch when Mr. J.F. wasn’t there. D[3 ] said that she knew that Mr. J.F. wasn’t supposed to be there. Ms. McCoy then spoke with Ms. D.R. who acknowledged that sometimes Mr. M.L.’s children stayed over, but she denied that Mr. J.F. was ever in the apartment. [ 50 ] After meeting with T.L. and K.L., Ms. Mascherin and Mr. Uddenberg went to the apartment to meet with Ms. M.L. and talk about what T.L. was saying. The workers told Ms. M.L. that they believed Mr. J.F. had been in the home. Ms. M.L. denied that Mr.

J.F. had been there and accused the society workers of lying about what the children had said. The society workers warned Ms. M.L. that if they received any further information that Mr. J.F. was with the children the Society would have to apprehend the children. [ 51 ] On December 9, 2009 Ms. Mascherin received a call from the children’s school, with concerns that Ms. M.L. and the children were now living in Mr. M.L.’s home which was without heat or hydro due to the grow operation bust. Althought Ms. M.L. was subject to a supervision order, she had not informed the Society of this move.

That same day three society protection workers went to Mr. M.L.’s residence and confirmed that Ms. M.L., Ms. D.R., and all five children had moved into Mr. M.L.’s two-bedroom home and that there were now eleven people living there, including Mr. M.L. and his three children. The families were using a wood stove for heat and a generator for hydro. During this visit, Ms. Mascherin once again warned Ms. M.L. not to allow any contact between Mr. J.F. and the children.

The Apprehension – January 8, 2010 [ 52 ] Lisa Mascherin and her supervisor Sonya Ross both testified and explained the reasons why the society decided to apprehend the

children. Earlier that day, January 8, 2010, the society received information from another society worker that just a few days previously, on January 5, 2010, Mr. J.F.’s four-year-old niece T[1 ] ., had disclosed to her kinship parent that Mr. J.F. had hurt her. T[1 ]. ’s sister, T[2 ] ., also disclosed seeing Mr. J.F. touch T[1 ] . The incident was alleged to have occurred two years earlier, in 2008. Mr. J.F. had been interviewed by police but denied the allegation. [ 53 ] According to Ms. Ross, this new information about an allegation of recent sexual offending by Mr.

J.F. against young children lead the society to conclude that Ms. M.L.’s children were at imminent risk of harm in their mother’s care. The children were apprehended that same day. [ 54 ] Until that day, the society had not reached the point where it felt the children were at imminent risk of harm, even though the children were describing recent contact with Mr. J.F.. Ms. Ross explained that when this new information was considered in light of the children’s comments made on November 29, 2009 about Mr.

J.F. being in the home, and the low level of co-operation from mom, the society determined that the level of risk was too great to allow the children to remain in the care of their mother. [ 55 ] It is clear that this new information about a recent sexual assault allegation against Mr. J.F. was the “final straw” and in fact convinced the society that apprehending the children was the only way to keep the children safe. It is unfortunate that the society did not share this information about recent allegation of sexual abuse against Mr. J.F. with Ms.

M.L. before apprehending the children. [ 56 ] The society’s view was that Ms. M.L. was minimizing the risk posed by Mr. J.F. to her children, primarily because the sexual assault conviction arose from an incident that occurred twenty years earlier, when Mr. J.F. was quite young. It is impossible to know now whether Ms. M.L. would have ceased all contact with Mr. J.F. had she known about the recent sexual abuse allegations involving young children. Ms. M.L. was certainly fully aware that Mr.

J.F. posed a risk of physical and sexual violence towards her but she testified that before the children were apprehended she did not appreciate or fully understand the risk that Mr. J.F. posed to her children. There is no evidence that Mr. J.F. ever mistreated the children. During various interviews with society workers and the assessor the children spoke about Mr. J.F. in positive terms. While they described domestic conflict between Mr. J.F. and their mother and excessive drinking by Mr. J.F., they did not express fear of Mr. J.F. or suggest that Mr. J.F. had ever harmed them in any way. [ 57 ] Ms.

Ross testified that she thought another worker may have told Ms. M.L. about these allegations during the apprehension but agreed that it would have been difficult for Ms. M.L. to absorb that information while her children were being apprehended. Ms. Ross agreed that the information about recent sexual misconduct by Mr. J.F. towards children should have been relayed to Ms.

M.L. before the apprehension. [ 58 ] On January 13, 2010, the society brought an early status review before the Ontario Court of Justice seeking an order that the children be made wards of the society for six months with access in the discretion of the society. In her affidavit sworn January 13, 2010, Lisa Mascherin states at paragraph 13: “ The children were apprehended for reasons including, but not limited to, Ms. M.L.’ inability or unwillingness to take steps to protect the children from an unsafe living arrangement in their primary residence and Mr.

J.F.’s extensive domestic violence, sexual violence, criminal history and very high risk to re-offend ”. [ 59 ] At the first post-apprehension appearance, the court ordered that the children remain in the temporary care and custody of the society with access to Ms. M.L. to occur at least three times per week supervised by the society or a third party approved by the society. [ 60 ] On […], 2010 L.J.L. was born and apprehended at birth. Once again, Ms. M.L. sought no prenatal care for L.J.L. who was born at full term and healthy.

The society brought a child protection application seeking an order that L.J.L. be made a ward of the society and on March 3, 2010 by order of Justice Malcolm, L.J.L. remained in the temporary care and custody of the society with access to be reasonable, supervised and in the discretion of the society. [ 61 ] A temporary care and custody hearing proceeded on May 31, 2010 and on June 8, 2010 Justice Malcolm granted the society temporary care and custody of the children, with reasonable supervised access to Ms. M.L..

It is clear from Justice Malcolm’s decision that the society’s main reason for apprehending the children was Mr. J.F. Justice Malcolm writes: “The children were apprehended when the society investigation showed that the children had been around Mr. J.F. despite the order of this court ” . [ 62 ] By the time of the temporary care and custody hearing on May 31, 2010, Ms. M.L. and Ms. D.R. had made several positive changes in their lives. Ms. M.L. had ended her relationship with Mr. J.F.. They had moved into a five bedroom rented home in Tweed, where they continue to reside today. For the first time, Ms.

M.L. had started individual counselling to address domestic violence and sexual abuse issues. Ms. D.R. had stopped using marijuana. Ms. D.R. says she stopped using marijuana in October 2009. Drug testing conducted by the society prior to trial confirms that Ms. D.R. has been drug free for a long time. Despite this positive progress, Justice Malcolm found that the children could not be protected with an interim supervision order: I am not satisfied at this time that she could adequately supervise and protect her children from risk of harm.

Further, her mother has not been assessed as a caregiver and I am not aware of whether she has a criminal record or child protection involvement. After she has obtained counselling, if Ms. M.L. does obtain insight into the risk that she has placed her children in, the court may be satisfied that the risk of harm could be addressed with a temporary supervision order.

Section 54 Parenting Capacity Assessment [ 63 ] On June 23, 2010, a

section 54 parenting capacity assessment was ordered. [ 64 ] The assessment was completed by Ms. Visca on August 23, 2010 and recommends that all six children be made Crown wards. She recommends that A.E. be made a Crown ward with supervised access to his mother and grandmother in the discretion of the society and that the other five children be made Crown wards without access for the purpose of adoption.

[ 65 ] During her assessment, Ms. Visca conducted several interviews with the children. Ms. Visca concluded that the children were at risk of physical harm due to chronic neglect of the children’s medical and dental needs and at risk of emotional harm due to the messages the children were given by Ms. M.L. and Ms. D.R. to keep secrets from the society about their contact with Mr. J.F. [ 66 ] By the time the assessment had been completed, Ms. M.L. had attended ten counselling sessions through Three Oaks women’s shelter worker, Shelley Haggarty, and one session at the Sexual Assault Centre. Ms.

Visca’s opinion was that, at the time the assessment was completed in August 2010, Ms. M.L. was still not demonstrating any insight into the reasons or need for the children’s apprehension. During interviews with Ms. Visca, Ms. M.L. denied allowing contact between the children and Mr. J.F. and she also denied neglecting the dental and medical needs of the children. Ms. M.L. even failed to take responsibility for the children’s poor school attendance, in one instance blaming K.L. for taking too long to get ready for school in the morning. Ms. Visca noted that Ms.

M.L.: “ consistently externalizes blame and fails to recognize her actions as the impetus for their placement in care and continued placement in care”. [ 67 ] Ms. Visca concludes in her report that Ms. M.L.’s past history of failing to co-operate with clinical interventions and support makes it unlikely that further clinical interventions could lead to a successful reunification of the family. Ms. Visca noted that during the previous protection proceedings in 2005 Ms.

M.L. failed to follow through with counselling despite four separate referrals for Children’s Mental Health Services, and made limited progress with the Family Support Worker in-home program. Ms. Visca also noted that the counselling Ms. M.L. had received by August 2010 had not helped her to gain any insight into her actions. At page 93 of her report Ms. Visca writes: At this point in time, it is not believed that Ms. M.L. and her mother are in a position to meet the immediate needs of the children and their ability to meet their long-term needs is also seriously questionable.

It is also believed that the likelihood of this being a realistic possibility in the foreseeable future is highly unlikely. It is not believed that Ms. M.L. will be able to effectively address her interpersonal and deficient parenting skills in the foreseeable future, particularly given her externalization of responsibility and minimization of the concerns. There is urgency in all the children being afforded safe, nurturing and consistent environments to maximize their potential to develop secure attachments to enhance and promote their future emotional and psychological growth with their future caregivers.

It is not believed that any of the children can return to Ms. M.L.’ care and to do so, could result in future risk of emotional and sexual harm and unmet basic needs. While it is clear that Ms. M.L. adores the children and is emotionally devastated at the prospect of not having the children returned to her care, the needs of the children must supersede the needs of the adult. The needs and best interests of the children are the first priority. Statements Made by the Children about Contact with Mr.

J.F. and their Wishes [ 68 ] The children, A.E., K.L. and T.L., and their cousins, all told society workers that they had contact with Mr. J.F. during their move in November 2009 from their grandmother’s home to their Uncle M.L.’s home. A.E. reported that he was packing boxes at his grandmother’s apartment with Mr. J.F. and his grandmother. K.L. said that Mr. J.F. went into her Uncle M.E.’s home and that her mother and grandmother were there. K.L. also said that her mother told them to keep quiet and not say anything to the CAS about Mr.

J.F. being there. [ 69 ] A.E. has told his foster mother that his mother took the children to see Mr. J.F. even when they were not supposed to see him and A.E. told Ms. Visca that Mr. J.F. came over to his house “even when it was illegal”. The children provided other details in their statements that lend further credibility to this evidence. For example, K.L. and T.L., told society worker Lisa Mascherin that they were left alone with Mr. J.F. when their mother went out to get Mr. J.F. his Pepsi. Ms. D.F. testified that all Mr. J.F. drinks is Pepsi. The girls also told Ms. Mascherin that Mr.

J.F.’s mother drove him to their apartment. Ms. D.F. testified that she often brought Mr. J.F. into town in M. and dropped him off. [ 70 ] T.L. told Ms. Visca that there were times when the CAS worker visited Uncle ML.’s home and Mr. J.F. would hide in a trailer on the property or in her Uncle ML.’s room. She said she was told by her mom and grandmother that she would get into trouble if she said that Mr. J.F. was in the home. [ 71 ] Ms.

Visca describes A.E. in her report as presenting as an “open, forthright young man who did not appear to have any difficulty sharing his thoughts and feelings with this clinician” . A.E. told Ms. Visca that he was in foster care because Mr. J.F. had “come to our house when he was not supposed to – when it was illegal”. He was able to explain that it was when he and his family lived with his grandmother that it was illegal for him to see Mr. J.F.

Ms Visca testified that when she met with A.E. he expressed being angry with K.L. because she told the CAS and her foster mother about the drugs kept at her grandmother’s apartment and her Uncle ML.’s home. At page 63 of her report Ms. Visca quotes A.E. as stating the following: “ K.L. told the CAS about the drugs. They didn’t need to know because the police dealt with it. K.L. opened her mother to Jeanine (foster mother) and now we will be in care longer and longer”. K.L. will lie to us but not lie to the CAS. She doesn’t need to tell the CAS anything. It’s all dealt with.

It drives mom and grandma mad to the point of crying. CAS can keep K.L. forever for all I care. J. and K.L. hug and hold hands – it’s gross”. A.E. also commented that he wanted Ms. Visca to tell the judge not to listen to K.L. and that K.L. is the reason they are in care and that he wanted the Judge to know she can keep K.L. in care. [ 72 ] During his interview with Ms. Visca, A.E. told Ms.

Visca that he missed his mother and grandmother and wanted to go home but he also said that his current foster home was nice and that since he has been in care he has not missed any school days and attends school for full days. He acknowledged that when he was at home he missed a lot of school and when he did go, he attended for half days only. He then commented to Ms. Visca: ” No matter what I say don’t make it sound bad. I want to go home more than anywhere”. [ 73 ] Ms. Visca had a separate meeting with K.L. on August 19, 2010. During this interview K.L. told Ms. Visca that Mr. J.F. would hide

behind her bedroom door when the CAS came, and that when they lived with Uncle ML., Mr. J.F. would in one of the children’s bedrooms when the society worker attended. She described Mr. J.F. and her mother sleeping on the pull–out bed in the living room when the family lived at Uncle ML.’s and she said that when she said “Hi J.” her mom would correct her and say “call him Dad”. K.L. also talked to Ms. Visca about her exposure to drugs at her grandmother’s home and at her Uncle ML.’s home. She said that her grandmother kept her drugs in a cabinet and that her Uncle ML. had drugs in the freezer.

She said that her Uncle ML. would smoke drugs in front of her and her grandmother would yell at him and tell him to stop because the kids were around. [ 74 ] When K.L. was asked by Ms. Visca what three wishes she would like if any three could be granted she said her first wish would be to go back home without Mr. J.F., her second wish would be to have her brothers and sisters back and her third wish would be for her foster mother to like A.E. so he could come to the foster home to visit. [ 75 ] K.L. also expressed concern to Ms. Visca about her mother finding out that about the things she had said about Mr. J.F.

K.L. stated to Ms. Visca: “ Mommy and grandma will get me in big trouble and won’t like me anymore. Whenever I tell the truth to the police and the CAS, they get mad at me”. [ 76 ] It is important to note that by the time of K.L.’s interview with Ms. Visca, both Ms. M.L. and Ms. D.R. were aware that K.L. had made disclosures about contact with Mr. J.F. A great deal of evidence about the children’s statements and disclosures about contact with Mr. J.F. was presented at the temporary care and custody hearing held in May 2010.

According to the supervised access notes there is no evidence of changed behaviour or angry behaviour displayed by mom or grandma towards K.L. or the other children at any time, but in particular, following the hearing in May 2010. [ 77 ] Ms. Visca had a private meeting with T.L. on the same day, August 19, 2010. She describes T.L. as a friendly, polite, and open young girl. When Ms. Visca asked T.L. why she was in foster care, T.L. responded that it was because her Uncle ML. “takes drugs and grandma too”. T.L. told Ms. Visca that, when she and her siblings lived at her grandmother’s apartment, Mr.

J.F. would sleep there sometimes and he also slept at their Uncle M.L.’s home. She described her mother and Mr. J.F. sleeping on a black pull-out couch at Uncle M.L.’s home and she said that Mr. J.F. would hide in a trailer on the property when the society came to the home. She also said that she was told that they might get into trouble if they said Mr. J.F. was in the home. [ 78 ] When asked by Ms. Visca what her three wishes were T.L. said her first wish was to go back and live with her grandmother, mother, cousins and siblings and her second wish was that her Uncle M.L. and grandmother would stop doing drugs.

She could not think of a third wish. T.L. told Ms. Visca that she was alright with the judge being advised of what she had said. [ 79 ] The statements the children made to Ms. Visca during their separate interviews on August 19, 2010 are consistent with earlier statements that they made to society workers and foster parents. The children’s statements are corroborative of each other, and they are consistent with their own earlier statements. Evidence of Ms. M.L. and Ms. D.R. about Contact between the Children and Mr. J.F. [ 80 ] Both Ms. M.L. and Ms. D.R. maintain that after Mr.

J.F. was charged in March 2008 he had a few supervised visits with R.F. but had no contact with any of the other children. When confronted with the various statements made by the children about Mr. J.F. being present with them at Ms. D.R.’s apartment, both Ms. M.L. and Ms. D.R. say that the children are confused about dates and that the contact the children are describing occurred before the charges were laid. [ 81 ] Ms. M.L. maintains that K.L. is easily manipulated and has lied in the past and will say whatever you want her to say to receive extra attention. She says that the children were aware that Mr.

J.F. was dropping off diapers and formula outside of the apartment building and this is what they are referring to when they say Mr. J.F. was at her mother’s apartment. She testified that she thinks Lisa Mascherin questioned the children a lot about Mr. J.F. and asked them so many times about contact with him that the children thought if they told her what she wanted to hear she would leave them alone. [ 82 ] There is no dispute that Ms. M.L. continued a relationship with Mr. J.F. after March 2008. She admits that she went to a criminal court hearing in May 2008 to ask that Mr.

J.F.’s release conditions be amended so that she could have contact with Mr. J.F., even though the society had made its position clear at that point that the society did not support any contact between Mr. J.F. and the children. Ms. M.L. also admits that, after Mr. J.F. served his sentence and was released from custody, she contacted his probation officer to ask that his probation conditions be amended to allow contact in a public place, and not in the presence of the children. It is also clear that Ms. M.L. had sexual relations with Mr. J.F. on at least two occasions after March 2008.

She gave birth to M.F. on […], 2009 and L.J.L. on […], 2010. [ 83 ] The undisputed evidence about an ongoing relationship between Ms. M.L. and Mr. J.F. also supports the children’s statements about the contact they had with Mr. J. F. It is reasonable to infer that since Ms. M.L. continued her relationship with Mr. J.F., she failed to appreciate the risk Mr. J.F. posed towards her children, and therefore, may have allowed contact to occur.

Post Apprehension Child Protection Concerns [ 84 ] Although the society was supervising the L. children voluntarily and then pursuant to a supervision order for over two years before the children were apprehended, concerns relating to neglect of the children’s medical, dental and educational needs were not identified by the society until after the children were apprehended. The society’s affidavit filed in support of its protection application in June 2009 focuses mainly on Ms. M.L.’s relationship with Mr. J.F. and the risk he posed to the children and concerns about drug use and drug trafficking by Ms. D.R.

The only concerns raised relating to improper medical attention were with respect to Ms. M.L.’s lack of prenatal care for M.F., smoking in the presence of the infant children and unsafe sleeping practices (use of a bassinette instead of a proper crib). When the children were apprehended in January 2010 the society’s concerns again were focused primarily on the risk posed by Mr. J.F.

and concerns that he had been around the children, and the unsafe, crowded living arrangements in Mr. M.L.’s home. Concerns about chronic dental and medical neglect, and poor school attendance, were not raised by the society until the temporary care and custody hearing was held in May 2010. Evidence about Medical Neglect [ 85 ] At the time of the apprehension, R.F. was 27 months old and M.F. was nine months old. Both children were meeting their developmental milestones.

Both boys had colds and R.F. was treated for an ear infection but they were otherwise healthy. [ 86 ] K.L. and T.L. are also in good health. [ 87 ] Copies of the children’s vaccination records were filed as exhibits and they appear to indicate that A.E. and K.L. may have missed their second set of 5 year old vaccinations, and R.F. missed his six month, 12 month and 18 month needles. T.L.’s vaccinations were up to date, as were the vaccination schedules for R.F. and M.F.. Ms. M.L. says that the vaccinations for all of the children are up to date, and blames her family doctor for poor record keeping.

The court did not hear any evidence about why the issue of timely vaccinations for the children was not addressed during the lengthy period of society supervision that preceded the apprehension of the children. The family doctor did not testify but the children’s medical records were filed, on consent, as exhibits. I accept the medical records as proof that Ms. M.L. failed to attend to all of the children’s vaccinations. [ 88 ] Ms. M.L. did not have prenatal care for R.F., M.F. or L.J.L.. She testified that she did not become aware that she was pregnant until very late in each of these pregnancies. Ms.

D.R. testified that Ms. M.L. kept her pregnancy with M.F. a secret from Ms. D.R. because Ms. M.L. knew that Ms. D.R. would be angry because Ms. D.R. did not want her to continue a relationship with Mr. J.F. Even when she did become aware that she was pregnant, Ms. M.L. was not forthcoming with the society workers about her pregnancies with M.F. or L.J.L.. She knew that the society did not want Mr. J.F. around her children and did not support Ms. M.L. continuing a relationship with him. It is reasonable to infer that Ms.

M.L. chose to keep the information about her pregnancies secret for as long as possible to avoid the repercussions she might face, not only from her mother, but also from the society. [ 89 ] Ms. M.L. did not take M.F. for follow-up post-natal care for almost two months, until after her family doctor threatened to report her to the society. Transportation to her doctor’s office was not an issue as Ms. M.L. lived within walking distance of her doctor’s office. A letter from Ms. M.L.’ family doctor, Dr. Yorsten to the CAS, dated May 9, 2009 was filed as an exhibit at trial. In her letter Dr.

Yorsten states: “I am very concerned about Ms. M.L. and her new baby. She had a new baby on [… ], 2009, and has never brought him for care. She did not receive any prenatal care whatsoever and I have enclosed a note from a Paediatrician. I knocked on her door two weeks ago and asked her to bring the baby in – even without an appointment and she has not done so. She said CAS is already involved with her other children due to a previous domestic assault issue. I have great concerns about the wellbeing of this baby. I told Ms. M.L. is she did not bring him in I would need to contact you.” Following Dr.

Yorsten’s referral to the society, Ms. M.L. did bring M.F. in for his medical appointments. [ 90 ] The court heard a great deal of evidence about A.E.’s having a cyst in his ear that may have resulted from untreated ear infections. A letter from A.E.’s ear specialist, Dr. Kenneth Sewchand to society worker Betty Lemstra, dated December 7, 2010, was filed as an exhibit. In his letter Dr. Sewchand details A.E.’s history with recurrent ear infections. He had a tonsillectomy and tubes inserted in his ears when he was three, and he continued to suffer from ear infections. In 2006 Dr.

Sewchand recommended that tubes be inserted again, and a procedure was booked but Ms. M.L. cancelled the procedure because she was unable to find a ride to the hospital. When Dr. Sewchand saw A.E. again two years later on August 15, 2008, he found a large polyp in A.E.’s right middle ear and diagnosed A.E. with “extensive Mastoid disease including middle ear disease of the right ear and right Mastoid cavity”. Ms. M.L. did follow up by taking A.E. for a CT scan on September 10, 2008 in Belleville and a further appointment with Dr. Sewchand on September 19, 2008. Dr.

Sewchand noted improvement due to antibiotics and eardrops but recommended surgery. The surgery was performed in Peterborough on October 28, 2008 and Ms. M.L. did bring A.E. back to see Dr. Sewchand on a regular basis over the next year although she did cancel or miss some appointments. [ 91 ] It is unclear from Dr. Sewchand’s letter whether Ms. M.L.’ failure to follow up with having tubes inserted in A.E.’s ears or other medical neglect by Ms. M.L. led to the formation of the cyst in A.E.’s ear and no other evidence was led by the society. The court is unable to conclude on the basis of the letter from Dr.

Sewchand or any of the other evidence presented by the society, that medical neglect caused A.E.’s ear problems. I note that A.E. has been under the regular care of an ear specialist since his admission to care, but the cyst has not disappeared and he may still require another operation. [ 92 ] Several society workers testified that they had concerns about Ms. M.L. and Ms. D.R. causing A.E. to suffer emotional harm by referring to A.E.’s cyst as a “tumour” or “brain tumour”. Both Ms. D.R. and Ms.

M.L. deny telling A.E. that the growth in his ear was a brain tumour — both say that A.E. first heard this term from the society worker, Ms. Mascherin. I am satisfied that neither Ms. M.L. nor Ms. D.R. would have deliberately upset A.E. by giving him inaccurate information about his ear condition. I don’t know, and the evidence has failed to establish, who used this term in front of A.E., but it is possible that he heard it from his doctor, or that his caregivers used the term because they heard it used by A.E.’s ear specialist. In his letter of December 7, 2010 Dr.

Sewchand does in fact call the cyst a “tumour” and he makes reference to the risk of harm to A.E.’s brain if the cyst is not properly treated: “ This condition has a tendency to recur if proper follow up appointments are not kept. This condition can behave like a tumour and hence result in an abscess in the brain if not properly and regularly managed”. Evidence about Dental Neglect. [ 93 ] After the children were apprehended, the society became aware that the children’s dental needs had been neglected.

The court did not hear any evidence about why the dental needs of the children were not addressed by the society during the two years it supervised the L. children before they were apprehended. Upon their admission to CAS care, A.E., K.L., T.L. and R. had dental assessments and were

all found to have poor oral hygiene and multiple advanced cavities. Ms. M.L. admits that prior to the apprehension, the children had not seen a dentist in almost three years, and she acknowledges neglecting the children’s dental needs. Evidence about Poor School Attendance [ 94 ] School records for A.E., T.L. and K.L. confirm that the children have attended multiple schools and had chronically poor school attendance. A.E. has attended at least six different schools.

He missed 57 days of school in Grade One, 37 days in grade Two, 27 days in Grade Three, at least 16 days in Grade Four, 46 days in Grade Five, and 17 days between September and December 2009 of Grade Six. Ms. M.L. testified that before A.E.’s apprehension he was only able to attend school for half days due to his health issues and behaviour issues. Since he has been in care, A.E.’s school attendance has been regular. He missed only 5.5 days between January and June 2010, and only 3 days of Grade Seven, between September and November 2010.

His most recent report card indicates that he is now on an individual education plan, attends school for full days, and “progressing well”. [ 95 ] K.L. missed 34 days in Grade One, 23 days in Grade Two, 11 days between September and December 2009. This past year while in care, in Grade Four between September and November 2010 she missed only two days of school. [ 96 ] T.L. missed 27 days in Grade One, and 12 days in Grade Two between September and December 2009. Between January and June 2010 she missed nine days.

This year in Grade Three and while in foster care she missed only two days of school from September to November 2010. [ 97 ] Their foster mother reports that both T.L. and K.L. are doing well in school. [ 98 ] During her testimony Ms. M.L. acknowledged that the children missed too much school when they were in her care, and that much of the missed school time was related to her various moves with the children. She also acknowledged that she neglected the dental needs of the children.

She defended her lack of prenatal care for M.F. and L.J.L. by explaining that she was not aware that she was pregnant until almost full term and she maintains that the children’s immunizations were for the most part up to date. She says that she was attentive to A.E.’s ear issues although she did miss a few appointments with the ear specialist who practiced in Peterborough. [ 99 ] It is significant to note that issues of medical and dental neglect and school attendance were not addressed with Ms. M.L. by the society until after the children were apprehended.

There is no evidence that the society was receiving reports or referrals about the children from school officials (except the report about the children living in their uncle’s home, without heat or hydro) prior to the apprehension. The society was concerned about Ms. M.L.’s lack of prenatal care for M.F. and L.J.L. but did not address any other concerns with Ms. M.L. The society’s concerns were focused mainly on issues of crowded and inadequate housing, Ms. D.R.’s drug use and possible drug dealing, and Ms. M.L.’s relationship with Mr.

J.F. [ 100 ] The number of school changes and missed school days is evidence of ongoing instability in Ms. M.L.’s life and her past inability to provide the children with a stable home environment. Except for the evidence about missed school days, there is no evidence about any significant behavioural difficulties or other issues related to their school attendance. The attendance records and report cards filed as exhibits do not disclose any significant concerns other than inconsistent homework completion about any of the school-aged children.

T.L., in particular, achieved very good grades and consistently had her homework done. Since their apprehension both K.L. and A.E. have been placed on Individual education plans at their new school. Evidence of Ms. M.L. [ 101 ] Ms. M.L. testified for almost two days, and was cross-examined at length, and thoroughly, by counsel for the society, and both Children’s Lawyers. Althought Ms. M.L.’ denial of the evidence and allegations that she allowed contact between Mr. J.F. and the children is not accepted, for the most part Ms. M.L. presented as forthright and sincere.

She was emotional when she talked about her children and broke down several times when she described the day the children were apprehended and her experience coping with the loss of day-to-day care and contact with her children for the past 14 months. [ 102 ] Ms. M.L. testified that when she first became involved with Mr. J.F. she did not know he had been previously charged with sexual offences against children. She says that until Lisa Mascherin arrived at her home with the police and searched for drugs she had a good working relationship with the society.

She points out that she worked with the society voluntarily for almost five years between 2003 and 2008, except for a six month supervision order that she complied with. She disagreed with the suggestion that she failed to follow up with a referral for A.E. with Children’s Mental Health in Belleville. She says she initiated the referral because of A.E.’s aggression but when they moved in with her mother in M. his aggression was no longer a problem. She lost contact with Children’s Mental Health in Belleville when she moved. She knew that her mom used drugs but said she didn’t know her mom was selling drugs.

She said her mom confined her pot smoking activities to her bedroom and never smoked in front of the kids. She didn’t feel that she could ask her mom to stop smoking because it was her mom’s apartment. She was unhappy with Lisa Mascherin because she felt Lisa visited the children at school too frequently. She thinks these school visits occurred two or three times a week at times, but society records show that the visits were rarely more often than once per month. She says the children didn’t want to go to school because Lisa Mascherin was constantly bothering them there. [ 103 ] Ms. M.L. describes Mr.

J.F. as constantly phoning her and pressuring her to continue their relationship after he was charged. She admits that in October 2009 she agreed to have Mr. J.F.’s no contact conditions lifted even though she was aware that the society would not support this. She said she conceived M.F. when Mr. J.F. stopped her when she was walking to the store for cigarettes. She voluntarily got into the van he was driving and he drove down a log road and then made sexual advances. She says she “gave him what he wanted” so she could go home, and that is when she conceived M.F..

She says the next time they had sex was when his mother invited her for tea. She knew Mr. J.F. lived with his mother but says she didn’t think he would be there. She went into the bedroom to talk to him and once again they had another sexual encounter and again she says she “gave in” to appease him. That second sexual

encounter in June 2009 was when L.J.L. was conceived. She says she continued to see Mr. J.F. after he was released from jail because he threatened to call the CAS and make false allegations against her if she didn’t agree to see him. She admits that she could have contacted Mr. J.F.’s probation officer to have the no contact conditions reinstated but didn’t do anything to stop the contact until after the children were apprehended. Ms.

M.L. also acknowledged that even though she was subject to a supervision order when she moved with the children to her brother’s home in November 2009, and even though the society had already made it clear to her that they were concerned about the crowded conditions in her mother’s apartment, she did not seek the approval of the society, or even advise her society worker, before she moved. [ 104 ] On the day the children were apprehended, Ms. M.L. recalls being told that there had been a new accusation involving Mr. J.F. and other children. She was not given this information before the children were apprehended.

She now understands that Mr. J.F. is a risk to her children. [ 105 ] Since the children have been in care Ms. M.L. has missed only one visit and that was because Ms. Terry K.’s car tire blew. She tried to get another ride but was unsuccessful. She has attended every visit, two or three visits each week, even though she and her mother do not own a vehicle and she has to arrange rides or spend $80.00 for a taxi. She has tried to co-operate with society workers since the children were apprehended. She has had two workers since the children were apprehended and she has worked well with both of them.

She liked Jess Uddenberg and has a good relationship with her current worker, Tracy Lawrence, and with the access supervisors. She has made positive changes in her life since the children were apprehended. She has moved into a bigger home and goes for counselling. She sees Debra for sexual assault counselling and Shelley for domestic violence counselling. She has been seeing both of these counsellors for almost a year. Her counselling with Debra is long term and with Shelley she is now on a “check in” basis.

She knows that in the past she has had problems saying no to people and would do anything she could to appease them but lately she has been better at saying no. [ 106 ] Ms. M.L. testified that she has started setting boundaries with people in her life, not just with men, but other relationships too. If Mr. J.F. ever contacts her again she will contact the police. She now sees that Mr. J.F. does present a risk to her children. The counselling has helped her to see this. She wants a restraining order issued so that he can’t be around her or the children.

She still has the same phone and phone number but she plans to change her phone number. She plans to enrol the children in activities when they come home. A.E. wants guitar lessons and K.L. wants to be in a choir and take ballet. T.L. wants to dance and sing and play the violin. Before the children were apprehended she had one-on-one time with the children when she helped them with their homework. She baked with the kids and did arts and crafts with K.L.T.L. liked beads and R.F. liked play dough. She sat and played games with A.E. [ 107 ] Ms.

M.L. acknowledged that transitioning the children home should be done over time. She worries about L.J.L. because L.J.L. has been in the care of her foster mother since her birth and she is attached to her foster mother. She says Ms. D.R.’s plan is to stay with her long term. Ms. M.L. is not planning to work outside of the home in the foreseeable future. She is in receipt of ODSP benefits right now. She wants to enrol M.F. in a nursery school program. [ 108 ] Although she has been involved on and off with the society for years, her children have never before been removed from her care, and Ms.

M.L. has clearly been devastated by this experience. [ 109 ] There is no doubt that Ms. M.L. loves all of her children. It is also clear from her evidence that Ms. M.L. has a close relationship with her mother, Ms. D.R. Evidence of Ms. D.R. [ 110 ] Ms. D.R. testified that she has never supported her daughter’s relationship with Mr. J.F. and cried when Ms. M.L. informed her that R.F.’s biological father was Mr. J.F. .She said that Ms. M.L. kept her pregnancy with M.F. a secret because she knew Ms. M.L. would become angry that she was pregnant a second time with Mr. J.F.’s child. Ms.

M.L. kept her pregnancy with L.J.L. secret from Ms. D.R. for the same reason. She says that she has no use for Mr. J.F. and didn’t meet him until R.F. was six months old. She knew that Mr. J.F. had been charged with sexual assault when he was young. Ms. D.R. testified that Mr. J.F. was never allowed in her apartment and that when Ms. M.L. wanted to see Mr. J.F., she would have to go to Mr. J.F.’s apartment to see him. She says that after Ms. M.L. and the children moved into her apartment, Mr. J.F. called Ms. M.L. constantly. She says that Mr. J.F.’s mother would drive Mr.

J.F. into town and he would drop off diapers and formula on the street near the apartment building but she maintains that he never came into the apartment. Ms. D.R. described the months when Mr. J.F. was in jail as the “best time” because he could not contact her daughter and his mother did not come over to their apartment. [ 111 ] It is significant to note that when Ms. M.L. and the children lived at Ms. D.R.’s apartment, Ms. D.R. worked five nights per week from 10 p.m. to 6 a.m. at the local M.’s m. s.. Ms. D.R. conceded that it was possible that Mr. J.F. visited Ms. M.L. at the apartment when Ms.

D.R. was at work but she doesn’t think this ever happened because she would have known what was happening in her own apartment. After the children were apprehended she and Ms. M.L. found a large home in Tweed so she moved from M. to Tweed. She has not worked since the move because the transportation costs between Tweed and M. were too high. She hopes to go back to working night shifts in Tweed if the children are returned. She says that she was actively involved in caring for the children when they lived with her and her plan is to jointly parent the children with Ms. M.L.

A. the children were apprehended she read Dr. Eccles’ report and she now understands fully what Mr. J.F. was charged with and what he is capable of. She says that her daughter has had no contact with Mr. J.F. since the children were apprehended and that relationship is over. [ 112 ] Ms. D.R. spoke affectionately about all of her grandchildren. She cried continuously as she described the routines she and her daughter had established when they lived together. She is clearly attached to all of her grandchildren and is committed to helping Ms. M.L. raise them.

She says her daughter has been devastated by the apprehension of the children. She testified that her daughter “made a few mistakes when it came to her choices in men” but that the children were her daughter’s “whole world” and when the children were taken away, Ms. D.R. didn’t know what to do to help her daughter so she helped her daughter contact counsellors. She says that they haven’t been able to put the children’s pictures on the walls of their new home. The pictures are still in boxes because it is too painful

for them to look at them. She says that her daughter now knows that one person is not worth her children. Evidence of Foster Parents [ 113 ] When the children were first apprehended, A.E., K.L. and T.L. were placed together. A.E.’s placement in this home broke down due to A.E.’s aggressive behaviour towards his foster mother and his sisters. He was moved to a second foster home in May 2010 where he remains. A.E.’s current foster mother, F.M., testified. She has been a foster parent for nine years. A.E. is the youngest child in her home. She describes A.E. as a happy, talkative, polite, outgoing child.

She says he is doing well at school but finding it difficult to make friends. She says he has responded to the routines in her home and she has no problems with him. He makes himself breakfast and gets himself ready for school every day. He is doing fine academically although he had a one day suspension for hitting another student. She says he enjoys the access visits. She finds that he is happy to go for visits and happy to come back but he doesn’t talk about anything that happens during the visits. [ 114 ] J.K. testified. She has been a foster parent for four years.

She has fostered T.L. and K.L. since they were brought into care and she fostered A.E. for about four months. She describes T.L. and K.L. as very close. She says she had problems with A.E. because he was aggressive towards K.L. A.E. was upset and unhappy in care and missed his family. He wanted to go back home or be with his brothers. He would become angry when K.L. called the foster parents “mom” and “dad”. He had to move out after he punched K.L. and kicked her one morning when she called J. “mom”. He pushed J. too, so she called the CAS and asked that he be moved. T.L. and K.L. are happy in her home.

They are busy with dance, ukulele and school. She says the girls love their mom and grandmother and look forward to access visits. She took K.L. to the police station in August 2010 and was with K.L. when K.L. told the police that when the CAS worker would come to their house their mom would hide Mr. J.F. under the covers. K.L. also told the police that Mr. J.F. went for sleepovers at Uncle M.L.’s house and slept in the living room with her mommy. After the girls met with Ms. Visca, T.L. told J. that she was happy because she had told Ms. Visca everything.

Both K.L. and T.L. talk about M.F. and R.F. all the time and say they want to go home but if they can’t go home they want to stay with J.. [ 115 ] M.R. testified. She has been a foster parent since May 2010 and has had R.F. and M.F. in her care since June 2010. This is their second foster placement. The first foster parents were older and found it difficult to handle two small children. She says both boys are smart and doing well developmentally. She arranged a birthday party for R.F. and invited his siblings and their foster parents. The children had a great time and loved being together.

They celebrated A.E.’s birthday too. R. talks about his mother and grandmother. He will say he is going to see his mom today and looks forward to the visits. He talks about his brother and sisters. He calls A.E. “b.” and T.L. “m.”. Ms. R. does not want to adopt the boys. [ 116 ] S.D. is L.J.L.’s foster mother. She has had L.J.L. in her care since L.J.L. was apprehended at birth. L.J.L. is doing really well, meeting all of her milestones. She has tendered a letter of intent to adopt L.J.L. if L.J.L. cannot go home. She gets along well with Ms. M.L. and Ms. D.R..

They share information about L.J.L. and have good communication. Evidence of Ms. M.L.’ Counsellors [ 117 ] Shelley Haggerty is an outreach and transitional worker for Three Oaks Foundation, which operates a shelter for abused women. She has been a counsellor since November 2006. She first met Ms. M.L. on February 10, 2010 and has seen her regularly since then. Ms. M.L. has never cancelled an appointment. The focus of their sessions has been on domestic abuse and the effects of domestic violence on children, self esteem, healthy relationships, coping and support networks. Ms. Haggerty thinks that Ms.

M.L. is really receptive to the counselling. She completes her homework and follows through with recommended readings. Generally the counselling sessions run for 12 weeks but they have had over 20 biweekly sessions. At this point Ms. Haggerty checks in with Ms. M.L. to see how she is managing with assertiveness and boundaries. Ms. Haggerty believes that Ms. M.L. needs to continue building on her self esteem and practising her assertiveness. At first Ms. Haggerty was concerned that Ms. M.L. was in denial but she thinks that Ms. M.L. is more aware now and understands the seriousness of her past connection with Mr.

J.F.. Ms. M.L. has clearly stated that she has chosen the children over Mr. J.F. .She believes that Ms. M.L. has ended her relationship with Mr. J.F. and has had no contact with him. [ 118 ] Deborah Raymond is Ms. M.L.’ sexual assault counsellor. She works at the Sexual Assault Centre and has been a front line therapist for 13 years. She started seeing Ms. M.L. on July 19, 2010 but there is always a long wait list so she thinks Ms. M.L. was on the waiting list for a while before their first appointment. She says Ms. M.L. is committed to her counselling appointments and attends weekly.

They have looked at the impact of Ms. M.L.’s own experience as a victim of child sexual abuse on Ms. M.L.’s life today. They have talked about coping strategies to help Ms. M.L. deal with everyday situations. She has found Ms. M.L. very receptive to new ideas and new concepts and changing thought patterns. She testified that Ms. M.L. now understands what she needs to do to make positive changes in her life. Ms. Raymond testified that Ms. M.L. is devastated by the children’s apprehension and says the children being in care has been foremost in Ms. M.L.’s mind at this point. Ms. M.L. talks to Ms.

Raymond at each weekly session about the pain that not having her children brings to her. She sees Ms. M.L. as more positive and more assertive and very committed to improving her own life and the lives of her children. Evidence of Ms. Terry K. [ 119 ] The court heard from Ms. Terry K., a woman who has been a friend of Ms. D.R. for five years, and a friend of Ms. M.L. for three years. Ms. Terry K. has four children between the ages of eight and 31. Her three oldest children are adults. Her youngest child lives with her father but visits Ms. Terry K. on weekends. Ms. Terry K. has helped Ms. D.R. and Ms.

M.L. by providing transportation from Tweed to Belleville for the access visits. Before the children were apprehended she visited Ms. D.R.’s apartment almost daily and helped out with the care of the children and housework. She would help out with dishes and switch loads of laundry while Ms. M.L. helped the children with their homework. She says that Ms. M.L. loves her children and is attentive to them. She testified that Mr. J.F.

would contact Ms. M.L. relentlessly on the phone and Ms. M.L. would become upset and ask him not to call. It seemed like harassment to Ms. Terry K., but Ms. M.L. continued to accept his calls. Ms. M.L. seemed upset after these calls and Ms. Terry K. suggested that she should see a counsellor. She never saw Mr. J.F. in Ms. D.R.’s apartment. She testified that Ms. M.L. is no longer in a relationship with Mr. J.F. .She helped out when Ms. D.R. and Ms. M.L. moved to Mr. M.L.’s home. She looked after the kids in shifts, first the boys and then the girls.

When the girls were with her, A.E. and his cousin D[2 ]. were with Ms. M.L.. She saw Mr. J.F. at Ms. D.R.’s apartment but by then the children were at Mr. M.L.’s home. She wants to continue to help out and be part of the family again, as a friend and caregiver, providing transportation and babysitting whenever she is needed. She says that Ms. M.L. has changed since the children were apprehended. Ms. M.L. was quiet before but now she is a little more open about herself and more open to suggestions. Ms. M.L. has told her she has no intention of reuniti

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