Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866

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

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7) , 87(8) and 87(9) of the Act . These subsections and subsection 142(3) of the Act , which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

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

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. CITATION: Children’s Aid Society of Toronto v. R.S., 2019 ONCJ 866 DATE: December 2, 2019 COURT FILE NO. C11282/17 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) CHILDREN’S AID SOCIETY OF TORONTO SHERRI SMOLKIN, for the APPLICANT ) APPLICANT ) ) - and - )

R.S., B.P. and M.J.G. ) SAGE HARVEY, for the RESPONDENT, R.S. THE RESPONDENTS B.P. and M.J.G. not attending and found in default JEAN HYNDMAN, counsel for the OFFICE OF THE CHILDREN’S LAWYER, on behalf of the children JSP and JS RESPONDENTS ) ) ) ) ) ) HEARD: NOVEMBER 18 - 22 and 25, 2019 JUSTICE S.B. SHERR REASONS FOR JUDGMENT Part One – Introduction [ 1 ] This was a child protection trial concerning three children – JSP, who is an 8-year-old girl, JS, who is a 4-year-old boy and RS, who is a 9-month-old boy.

There were two applications before the court – a status review application regarding JSP and JS and an amended protection application regarding RS. [ 2 ] The respondent R.S. (the mother) is the mother of these children (the children). [ 3 ] The respondent B.P. is JSP’s biological father. [ 4 ] The respondent M.J.G. is JS’s biological father. [ 5 ] There is no male parent , as defined in the Child, Youth and Family Services Act, 2017 (the Act ), for RS. [1] [ 6 ] Neither B.P. or M.J.G. attended at court nor filed an Answer/Plan of Care.

They were found in default. [ 7 ] JSP and JS were removed by the Children’s Aid Society of Toronto (the society) from the mother’s care on July 28, 2017 and have been living since then with B.P.’s parents (the paternal grandparents). [ 8 ] The society seeks an order that JSP and JS be placed in the final care and custody of the paternal grandparents.

It also seeks incidents of custody for the paternal grandparents, including the ability for them to obtain documentation for JSP and JS and to travel with them outside of Canada, without anyone’s consent. [ 9 ] The society seeks an order that the mother have access to JSP and JS once each month at the Toronto Supervised Access Centre (TSAC). It also seeks an order that B.P.’s access to JSP and JS and M.J.G.’s access to JS be in the sole discretion of the paternal

grandparents, including with respect to frequency, duration, location and the level of supervision. [ 10 ] The society asks that this order change an existing domestic order dated January 27, 2014 made under the Children’s Law Reform Act (the domestic order) regarding JSP. The domestic order granted joint custody of JSP to the mother and B.P., with JSP’s primary residence to be with the mother. B.P. was granted extensive parenting time with JSP. [2] [ 11 ] RS has been in the care of the society since birth. The society seeks a finding that RS is a child in need of protection pursuant to clause 74 (2) (

b) of the Act (risk of physical harm). It seeks a disposition order that RS be placed in extended society care with no access to the mother. It further seeks an order that JSP and JS have access to RS as agreed upon between the paternal grandparents and RS’s legal guardian, a minimum of four times a year and further and other access as agreed between them. [ 12 ] The mother seeks a dismissal of the society’s amended protection application for RS. She opposes the relief sought by the society in its status review application for JSP and JS. [ 13 ] The mother asks that the children be placed in her care.

In the alternative, she seeks an order that the children be placed in the joint care of her and her mother (the maternal grandmother). [3] She is prepared, in the further alternative, to agree to terms of society supervision for 6 months. [4] [ 14 ] If JSP and JS are placed in her care, the mother proposes that the paternal grandmother have day access to them every Sunday. [ 15 ] If the court awards custody of JSP and JS to the paternal grandparents, the mother asks that the maternal grandmother have day access to them on alternate Saturdays and a single overnight visit with them on alternate weekends.

Subject to the wishes of the maternal grandmother, the mother seeks an order permitting her to attend at these visits. The mother also seeks daily telephone access to JSP and JS.

Lastly, the mother seeks rights to information about JSP and JS as set out in subsection 20 (5) of the Children’s Law Reform Act . [5] [ 16 ] If RS is placed in extended society care, the mother seeks frequent and specified access to him as may be deemed appropriate by the court. [ 17 ] The mother supports an order for sibling access if any of the children are not living in her care. [ 18 ] The Office of the Children’s Lawyer (OCL) was appointed to act on behalf of JSP and JS.

The parties agreed at the trial management conference that the court could hear the views and preferences of JSP and JS through their counsel from the body of the court. Those views and preferences were not contentious. [ 19 ] The OCL did not take a position about the placement of JSP and JS, as JSP and JS are not expressing any views and preferences on this issue. The OCL does not consent to or oppose the orders sought by the society or the mother. [ 20 ] The OCL did take a position on access.

If JSP and JS do not live with RS, the OCL seeks an order that the society use its best efforts to ensure that sibling access takes place once each week, subject to each child’s wishes,

schedule and other activities, to be arranged between the caregivers for each of the children. [ 21 ] The OCL took the position that if RS is placed in extended society care and a prospective adoptive home is identified for him, the society may, in its discretion, reduce the frequency of sibling access, but access shall still take place a minimum of once each month until a notice of intent to place RS for adoption is served. [ 22 ] The OCL asks that sibling access take place separately from any child’s access with the mother.

The society agreed with this request. [ 23 ] If JSP and JS are placed with the paternal grandparents, the OCL seeks an order that JSP and JS have access with the mother at the TSAC, with the location, frequency and duration as may be available through the TSAC, and further access in the discretion of the paternal grandparents, taking into consideration the best interests of these children, including their views and wishes.

It also asked for an order giving JSP and JS the right to have a one-on-one visit with the mother a minimum of three times each year. [ 24 ] The OCL also sought an order that JSP and JS have access with the maternal grandparents each Saturday, subject to each child’s wishes and other activities, to be arranged between the maternal grandparents and the paternal grandparents, and such further and other access as they may agree upon, which may include overnight access . [6] [ 25 ] The OCL does not take any position with respect to whether the mother, RS or any other person should also be made an access holder, except that any order making one of them an access holder should mirror the orders made for JSP and JS. [ 26 ] The society called 11 witnesses at trial.

The court heard from multiple society employees who worked with the family. Their direct evidence was provided by affidavit and they were all cross-examined by counsel for the mother and counsel for JSP and JS. The court heard oral evidence from the paternal grandmother of JSP (the paternal grandmother) and from the foster parents of RS. [ 27 ] The mother provided part of her direct evidence by affidavit and the other part orally. She also called a social worker and the maternal grandmother as witnesses. [ 28 ] The society filed business record briefs on consent.

During the trial both the society and the mother filed additional business records. [ 29 ] The parties also filed two Statements of Agreed Facts. One was prepared for the hearing on August 7, 2018, where JSP and JS were found to be children in need of protection. The second was prepared for the consent disposition hearing on January 30, 2019 for JSP

and JS. [ 30 ] The statutory findings concerning RS were made at the outset of the trial pursuant to subsection 90 (2) of the Act . RS is not a First Nations, Inuk or Métis child. [ 31 ] The trial was conducted as a blended proceeding regarding RS. The court did not consider evidence solely related to disposition when considering whether he should be found to be a child in need of protection. [ 32 ] The main issues for this court to determine are as follows:

a) Is RS a child in need of protection?

b) If so, is intervention through a court order necessary to protect him in the future?

c) If so, what dispositional order is in his best interests?

d) If an order is made placing RS in extended society care, what access orders are in his best interests, including who should be made an access holder and who should be made an access recipient?

e) Is intervention through a court order necessary to protect JSP and JS in the future?

f) If so, what dispositional order is in their best interests?

g) If JSP and JS are placed in the custody of the paternal grandparents, what incidents of custody are in JSP’s and JS’s best interests?

h) If JSP and JS are placed in the care of the paternal grandparents, what access orders are in JSP’s and JS’s best interests? This includes a consideration of whether the court should make an access order for the maternal grandmother.

i) If JSP and JS are placed in the care of the mother, or in the joint care of the mother and the maternal grandmother, what access orders are in JSP’s and JS’s best interests? Part Two – Background facts and court history [7] [ 33 ] The mother is 37 years old. She was born in Canada and comes from a family that is of Indian Sikh background. She is fluent in English and Punjabi. [ 34 ] The mother testified that she lived for one year with B.P. They separated around 2010. JSP lived with the mother after this separation. [ 35 ] B.P. issued an application for custody of JSP in 2012.

This case was resolved on consent. On January 27, 2014, Justice Geraldine Waldman made an order for joint custody of JSP, with primary residence to the mother, and generous specified parenting time for B.P. [ 36 ] JSP continued to reside with the mother after this order was made. [ 37 ] JS was born in 2015. He also lived with the mother. His biological father, M.J.G., has had little contact with him.

The court was advised that M.J.G. has been in jail throughout most of 2019. [ 38 ] The mother and maternal grandmother both testified that the maternal grandmother provided considerable parenting assistance for the mother. The maternal grandparents bought a condominium for the mother to live in with JSP and JS. They paid the mortgage on the property and provided other financial assistance for the mother. The maternal grandmother came over daily to spend time with the mother, JSP and JS. [ 39 ] The mother described a volatile and violent relationship with B.P. that continued until 2017.

She testified that he had alcohol and drug addictions and that he frequently assaulted her. She said he would break things in her home when he was enraged. This often took place, she said, in front of the children. She said that she couldn’t end this relationship. She said that “B.P. was my addiction”. The mother said that, because of B.P., she spent a night in a holding cell. She also said that she entered into a Peace Bond respecting him in 2015. [8] [ 40 ] The paternal grandmother confirmed that B.P. had an alcohol addiction.

She has been concerned in the past about his drinking and driving and emotional outbursts when intoxicated. [ 41 ] The mother testified that the police were frequently called about her and B.P. [ 42 ] In 2016, the maternal grandmother became seriously ill and was hospitalized for 5 weeks. The mother said that this is when everything began to collapse.

She was in an abusive relationship, was caring for two young children, had been in a car accident, was not receiving any child support from the fathers of her children and no longer had the maternal grandmother available to assist her. [ 43 ] The society attended the mother’s home with the police on June 19, 2017.

The Statement of Agreed Facts filed on August 7, 2018 sets out that the mother displayed bizarre behaviour on this day, including screaming at society workers and alleging that their identity cards were fake. [ 44 ] On July 28, 2017, the mother was involuntarily admitted to hospital under a Form 1 order pursuant to the Mental Health Act after the maternal grandparents called 911 and the society. The mother stayed in the hospital until August 1, 2017 due to concerns about her deteriorating mental health.

[ 45 ] On July 28, 2017, the maternal grandparents advised the society that they were unable to care for JSP and JS and declined to have them placed in their care. [ 46 ] The same day, the paternal grandparents advised the society that they were able to care for JSP and JS. [ 47 ] JSP and JS have remained in the care of the paternal grandparents since then. [ 48 ] At the time of her discharge from the hospital on August 1, 2017, the mother’s final diagnosis was cannabis-induced psychosis. [ 49 ] The society commenced a protection application for JSP and JS.

On August 2, 2017, Justice Carole Curtis made a temporary without prejudice order placing them in the care of the paternal grandmother. [ 50 ] The mother attended the emergency room of a hospital on August 2, 2017. She reported that she had fallen and believed that she had fractured her hip. She also reported having heart problems. She disclosed to the treating physicians that she had been drinking beer that day. At the time of her release, the doctor noted no physical problems and provided a diagnosis of “substance induced psychosis”. The discharge

summary included a plan for the mother to follow up with Pinewood Addiction Services (Pinewood). The mother did not follow through with this program. [ 51 ] On August 5, 2017, the mother attended the emergency room at a different hospital complaining of hip pain. X-rays were completed and no concerns were noted. [ 52 ] On or about August 9, 2017, the mother was admitted to hospital under a Form 2 pursuant to the Mental Health Act based on the information sworn by a family member.

She was subsequently placed on a Form 1 order by her treating physician until August 11, 2017, after which time she was placed on a Form 3 order pursuant to the Mental Health Act .

She was discharged on August 18, 2017 with a diagnosis of substance induced psychosis. [ 53 ] The mother testified that she had little memory of what happened during this time. [ 54 ] The mother exercised supervised access twice each week to JSP and JS at the society’s office after they were placed with the paternal grandmother. [ 55 ] JSP and JS have also had unsupervised access on most Saturdays with the maternal grandmother since they were placed with the paternal grandparents. The paternal grandmother and maternal grandmother have arranged this access directly.

There has never been a court order regarding this access. [ 56 ] On October 22, 2017, the mother attended at the hospital claiming that she was pregnant, due in January 2018 and that the baby had dropped. The hospital conducted an ultrasound. The mother was not pregnant. It was suggested that the mother see a psychiatrist, but she refused to do so. [9] [ 57 ] On or about October 31, 2017, the maternal grandmother called the police and the mother was charged with assaulting the maternal grandparents. [ 58 ] Due to concerns about the mother’s conduct at visits, the society suspended them in November 2017.

They remained on hold until they started again in March 2018. [ 59 ] On December 12, 2017, Justice Curtis heard a contested access motion brought by the mother. She ordered that the mother’s access to JSP and JS would be in the society’s discretion, including no access. [ 60 ] On January 14, 2018, the mother was brought by the police to Rouge Valley Hospital. The hospital records indicate that the mother reported that she had been partying with her boyfriend since New Year’s Day and had been drinking alcohol and smoking marijuana. She was claiming that JSP and JS had been taken by B.P. (they hadn’t).

The records further noted that the mother had been previously prescribed Lorazepam during one of her hospitalizations but did not use it as it made her feel worse. [ 61 ] The mother testified that the police had brought her to the hospital that day because her friend had beaten her and another friend.

This evidence was contrary to the information set out in the hospital records. [10] [ 62 ] The hospital referred the mother to the Pinewood program and the mother completed the program in February 2018. [ 63 ] In March 2018, the mother completed a women’s empowerment program teaching different life skills. [ 64 ] On June 20, 2018, the mother and the society agreed that a psychological assessment of the mother should be conducted by Dr. Kathleen McDermott. [ 65 ] A trial was held on August 7, 2018 to determine if JSP and JS were children in need of protection.

The mother and the society agreed that the court could make this determination based on the Statement of Agreed Facts filed and submissions of counsel. [ 66 ] At the conclusion of the August 7, 2018 trial, Justice Curtis found JSP and JS to be children in need of protection pursuant to clauses 74 (2) (b) (risk of physical harm), (h) (risk of emotional harm) and (k) (unavailability of parent) of the Act . [ 67 ] Dr. McDermott prepared a psychological assessment of the mother dated October 3, 2018. [ 68 ] Dr. McDermott’s assessment was not provided to the court at this trial. Dr.

McDermott was not called as a witness. [ 69 ] In the second Statement of Agreed Facts provided for the disposition hearing on January 30, 2019, the parties agreed that:

a) Dr. McDermott noted in her assessment that the mother presents as an individual with pronounced narcissistic personality features and has a predisposition to severe cognitive decompensation (i.e. paranoid delusions) when under extreme stress and/or substance abuse.

b) Dr. McDermott stated in her assessment that the mother’s interpersonal relationships based only on her needs and gratification will continue.

c) Dr. McDermott recommended in her assessment that perhaps long-term and ongoing treatment with an experienced therapist, who has foreknowledge of her previous behaviours and actions, might help mitigate the mother’s future suffering. [ 70 ] The second Statement of Agreed facts also states that:

a) The mother and her family service worker had discussed Dr. McDermott’s report several times.

b) The mother told the family service worker that she does not mind the diagnosis, because “I do love myself, who doesn’t”. She said that she does not need to read the rest of the report.

c) She denied to the family service worker on January 8, 2019 that she has any current mental health concerns.

d) The family service worker encouraged her to review the report with any psychologist or psychiatrist of her choice. The mother said that she would not do this.

e) The mother subsequently said that she planned to meet with a psychiatrist to be reassessed. [11]

f) There were concerns about the mother’s ability to divide her attention between JSP and JS at visits, to manage JS’s behaviour and to end visits on time.

g) The mother was consistent in attending her access visits. Some visits went well overall. [ 71 ] In September 2018, B.P. moved into the home of the paternal grandparents. The paternal grandmother testified that he was never left alone with JSP and JS. In December 2018, B.P. was asked to leave the home after coming home drunk. The police were called to remove him after he was breaking furniture in his room. He did not see JSP and JS again, by his choice, until the fall of 2019. [ 72 ] On October 16, 2018, Justice Curtis set a

summary judgment motion date for the disposition of the protection application. The society was seeking a 6-month supervision order placing JSP and JS with the paternal grandparents. The mother opposed this. [ 73 ] The society attempted to arrange a Family Group Conference to discuss alternative family or community plans for RS, who was due in February 2019. The mother was resistant to doing this. She finally agreed and a Family Group Conference was scheduled for January 31, 2019. However, it was cancelled because no maternal family member was willing to present a plan for the baby. [ 74 ] The parties agreed to a disposition order for JSP and JS on January 30, 2019 – the return date for the

summary judgment motion. Justice Melanie Sager ordered that JSP and JS be placed in the care of the paternal grandmother for 6 months, subject to the supervision of the society. Access to JSP and JS by the mother and B.P. was to be as approved by the society and in its discretion. Access to JS by M.J.G. was to be as approved by the society in writing and in advance, with the access to be supervised. The supervision order set out terms and conditions for the mother. [ 75 ] RS was born in February 2019. He had medical issues at birth and remained in the hospital for nine days.

The society brought him to a place of safety (at the hospital) at birth. [ 76 ] On February 15, 2019, Justice Debra Paulseth placed RS in the temporary care of the society. Access to the mother was ordered to be in the discretion of the society. This order remains in place. [ 77 ] On February 21, 2019, RS was discharged from the hospital and placed in a foster home. He has remained in that foster home since then. [ 78 ] The mother has exercised supervised access to RS twice each week at the society office since he was discharged from the hospital.

At one of these visits each week, the mother, JSP and JS visit with RS for an additional thirty minutes. [ 79 ] In March 2019, the mother attended at the Scarborough Health Network for the purpose of obtaining individual counseling. Some preliminary appointments took place but counseling never started. The mother and the counselor agreed that the counselor could not provide the services that the mother was looking for.

The counselor suggested other resources that might help the mother. [ 80 ] In April 2019, the society assessed the maternal grandmother as a potential supervisor for the mother’s access with JSP and JS. It assessed that the maternal grandmother was not capable of safely protecting them from the mother. [ 81 ] In May 2019, the mother asked the society to assess her roommate, K.C., as a potential access supervisor for her. The society started this process. However, K.C. called the society on July 12, 2019 stating that she was no longer willing to provide support for the mother.

The mother testified that there was a physical confrontation where K.C. tried to slap her, and K.C. asked her to leave her apartment. [ 82 ] On July 2, 2019, the society issued its status review application regarding JSP and JS. [ 83 ] On August 12, 2019, the society reduced the mother’s visits to JSP and JS to once each week due to its concerns about her conduct at visits. [12] [ 84 ] B.P. began seeing JSP and JS again in the fall of 2019. His access is supervised by one of the paternal grandparents.

[ 85 ] In August 2019, the society referred a proposed plan by the maternal grandparents to care for RS to its kinship department for assessment. Shortly after, the maternal grandmother asked the society to put its assessment on hold. [ 86 ] On October 16, 2019, Justice Curtis dismissed a motion brought by the mother for increased access to the children. [ 87 ] M.J.G. has not actively engaged with the society and has shown no interest in seeing JS. Part Three – Credibility and reliability [ 88 ] There were many material facts in dispute at trial – particularly around the mother’s conduct.

It is necessary to conduct a credibility and reliability analysis to determine these contested facts. 3.1 The mother [ 89 ] The mother was neither a credible or reliable witness. [ 90 ] Some of the mother’s evidence was proven to be false. Other evidence was exaggerated. Often, the mother provided evidence that appeared to be a distorted reconstruction of the facts. [ 91 ] Some examples of the mother’s evidence being proven false were:

a) She claimed that she had never been arrested. The maternal grandmother confirmed that the mother had been arrested at the end of October 2017 for assaulting her. Further, the mother described another occasion where she had been held overnight in jail and entered into a Peace Bond with respect to B.P. She also said that she completed the PARS program in 2015 – this is usually related to the criminal court process.

b) The mother claimed in her trial affidavit that she had completed several weeks of individual counseling in 2019. She said that the counselor refused to continue with her after being sent a letter by her counsel asking for information about the counseling. She deposed, “Ms. J. then refused to provide any further counseling to me saying I should see someone who is willing to write letters”. The mother called the counselor as a witness. The counselor testified that the mother came very late for their first session – not much was done. She had the mother complete an assessment for the second session.

In the third session, she explained to the mother that she would be conducting Cognitive Behavioural Therapy with her. In the final session, the mother told her that she wanted a parenting capacity assessment for court. The counselor said that she didn’t provide this service and gave her referrals. The counselor said that no individual counseling ever took place. In cross-examination, the mother conceded that she didn’t want to continue with the counselor.

She felt that the counseling the counselor had proposed doing with her didn’t pertain to what she was going though and was “more appropriate for a CAMH [13] patient”. She expressed gratitude for the counselor and said that they had agreed she would not participate in counseling with her. This evidence was contrary to the mother’s evidence set out in her trial affidavit.

c) The mother stated in her trial affidavit that no psychiatrist has been willing to see her on an ongoing basis. In cross-examination, she conceded that she recently missed an appointment with a psychiatrist and has now been put on a 3 to 6 month wait-list.

d) The mother claimed that she did not attend at a hospital in October 2017 and tell hospital staff that she was pregnant and that the baby had dropped. This was contradicted by the hospital records. There is no reason to doubt such a detailed record from the hospital.

e) The mother claimed that the police took her to the hospital on January 14, 2018 because of physical injuries suffered when she was assaulted by her friend. She denied that she had been drinking alcohol. The hospital records for that date make no mention of physical injuries but do set out that she had been partying with her boyfriend (the person she claimed at trial had assaulted her) since New Year’s Day, drinking and smoking marijuana. The records also set out the mother’s allegation that B.P. had taken JSP and JS. Again, there is no reason to doubt such specific records from the hospital.

f) The mother claimed that she was now living in a condominium rented by her parents. The maternal grandmother had no knowledge of this and said that the mother was living in an apartment with a friend. The maternal grandmother said that she hadn’t arranged for this apartment. [ 92 ] Some examples of the mother distorting or exaggerating evidence are as follows:

a) She claimed that she didn’t want the maternal grandmother to see RS at the hospital after he was born because she didn’t want her to become attached to him if he was to come into society care. This was not the case. The maternal grandmother testified that the mother was denying her access because she was very angry at her for calling the society about her in July 2017 – their relationship had deteriorated. The mother told the society at the time of RS’s birth that the maternal grandmother had to be supervised as she may be having a mental health deterioration and has a bi-polar disorder. [14]

b) She claimed that her home was immaculate prior to the children coming into care. The paternal grandmother described it as being kept in very poor condition. She said that it smelled of urine, was dirty and that dishes would be piled up in the sink. Subsequently, the mother acknowledged that the home was significantly damaged. She blamed this on B.P. The maternal grandmother acknowledged that there were damages to the home at that time. She said that B.P. had broken a window and M.J.G. had broken a door.

c) The mother claimed that she attended Pinewood because she was “addicted to B.P.”. She didn’t seem to recognize that she was referred to Pinewood because her alcohol and substance abuse had contributed to her multiple hospitalizations.

d) She claimed that she is the only person who can calm JS down. There was considerable evidence from multiple witnesses that the mother struggles with managing JS’s behaviour at visits. He behaves much better at school and in the paternal grandparents’ home.

e) She has been quick to make baseless allegations, threaten to call the police and overreact. Examples are as follows: (

i) She asked for a change in her first society family service worker, claiming that the worker had a personal relationship with the maternal grandmother. At trial, she struggled to explain why she would feel this way. (ii) She has accused the current family service worker of having a personal relationship with JSP’s paternal family. (iii) On February 8, 2019, she accused the worker of tripping JS deliberately and insisted on obtaining surveillance video, despite JS telling her he hadn’t been tripped.

The mother continued to scream and yell at the worker in front of JSP and JS. (iv) On June 4, 2019, she felt that JSP and JS had been violated by society workers, based on newspaper articles of unrelated cases that she had read. (

v) On August 8, 2019, RS had a rash. She called 911 from the society offices to have paramedics attend. They assessed RS and left. [15] (vi) On November 18, 2019, (after the first day of this trial) she called the society’s emergency after-hours department expressing concerns about B.P.’s contact with JSP and JS and threatened to call the police on the society.

f) The mother claimed that: (

i) She has never acted inappropriately at visits. (ii) She has never made inappropriate comments in front of the children at visits. (iii) She is very accommodating to the society at visits. (iv) She feels that she is exceeding the society’s expectations. (

v) JSP and JS have never asked her to stop yelling at society staff. (vi) The children have never been scared when she gets angry at visits. (vii) She has good relationships with more than half the society staff. The evidence from multiple witnesses established that the mother’s claims had no connection to reality. It is troubling to the court that this is her perception of events.

In the face of overwhelming evidence about her conduct at visits, the court would have expected the mother to acknowledge much of it, perhaps explain why she acted that way and set out what she is doing to ensure that the conduct is not repeated. Instead she chose to deny all of it. 3.2 The maternal grandmother [ 93 ] The court treated the maternal grandmother’s evidence with considerable caution. [ 94 ] The maternal grandmother was in a difficult position at trial. It was very apparent that she wanted to do what she could to support the mother.

She spoke about how angry the mother had been at her from July 2017 until about March of 2019. Her relationship with the mother has improved and she understandably doesn’t want that to change. [ 95 ] The court found that the maternal grandmother frequently minimized or rationalized the mother’s bad conduct. She struggled answering questions that she perceived would place the mother in a bad light. An example was where she vacillated on whether she ever called the police and the mother was arrested .

She initially denied this but then admitted it when presented with a police occurrence report in cross-examination. 3.3 The paternal grandmother [ 96 ] Although she has a vested interest in the outcome of this case, the court found the paternal grandmother to be a strong witness. [ 97 ] The paternal grandmother provided balanced evidence. Despite having some challenges in her dealings with the maternal grandmother, she was very generous in her descriptions of the maternal grandparents’ relationship with JSP and JS.

She has facilitated significant access with the maternal grandparents despite no court order requiring her to do so. [ 98 ] The paternal grandmother was able to recognize both deficiencies and positive qualities of the mother. [ 99 ] The paternal grandmother was able to give detailed and thoughtful evidence about both JSP and JS. 3.4 The society witnesses [ 100 ] The court found the evidence of the society workers to be reliable and credible. [ 101 ] The society workers kept contemporaneous notes of events.

The court found that the workers readily admitted positive qualities of the mother and tried to directly answer questions to the best of their ability. [ 102 ] The evidence of the society workers was very consistent. [ 103 ] The court preferred the evidence of the paternal grandmother, society witnesses, the mother’s counselor and the information

contained in the hospital records where it conflicted with the evidence of the mother and maternal grandmother. Part Four – The finding in need of protection for RS 4.1 Legal considerations [104] The society seeks a finding that RS is in need of protection pursuant to subclause 74 (2) (b) (

i) of the Act. This subclause readsas follows: 74 (2) ….. (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by orresulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, or [105] The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm. [106] Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreatedaddictions, inadequate shelter or food are common circumstances leading to findings of physical harm or risk of physical harm. [107] The risk of harm under clause 74 (2) (

b) of the Act must be real and likely, not speculative. See: Children's Aid Society of RainyRiver v. B. (C.), 2006 ONCJ 458 ; Children’s Aid Society of Ottawa-Carlton v. T. and T., (ON SC), [2000]O.J. No. 2273, (Ont. Fam. Ct.). [108] Factors that can lead to a finding that a child is at risk of physical and emotional abuse include: a. Repeated conflict between the parents, witnessed by the children. b. Numerous police calls relating to misconduct and aggression between the parents, at times in the presence of the children. c. Long-standing instability of housing and caregiving arrangements for the children. d.

Verbal abuse, aggression and inappropriate situations the children have been exposed to. e. The physical and emotional distress the children have each experienced; the parents’ contribution to that distress; and the parents’inability or unwillingness to appropriately respond to that distress. See: Catholic Children's Aid Society of Hamilton v.

S. (L.), 2011 ONSC 5850, at para. 380. [109] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admitevidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to allparties. See: Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children’s AidSociety of Toronto v. R.M., 2019 ONSC 2251; Catholic Children’s Aid Society of Toronto v. A.T., 2019 ONSC 3191.

The parties haddisclosure of the relevant evidence in this case. [110] At paragraph 94 of Children’s Aid Society of Toronto v. R.M., supra, Justice Carolyn Horkins wrote the following: 94 In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be undercontrol or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may beresponsible for the control or resolution of the risk. Every risk is different, and some are more serious than others.

A risk that is notpresent on the hearing day may nevertheless justify a protection order. It all depends on the facts. [111] Many of the risk factors for RS arose out of the mother’s past parenting of JSP and JS.

Section 93 of the Act permits the courtto consider the mother’s past parenting of these children. It reads as follows: Evidence Past conduct toward children 93

(1) Despite anything in the Evidence Act, in any proceeding under this Part, (

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 orhave 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 orthe reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [112] The more recent the past parenting evidence, the more probative it is. See: Children’s Aid Society of Simcoe County v. B.D.,[2014] O.J. No. 1641; Children’s Aid Society of Toronto v. S.C., 2017 ONCJ 240 , [2017] O.J. No. 1762 (OCJ). 4.2 Mental health and risk of harm

[ 113 ] It does not automatically follow that a child will be in need of protection just because a parent has mental health challenges. Many parents with mental health issues parent their children well – others can’t. There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently. [ 114 ] The court needs to assess several factors to determine if a parent’s mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent’s care. These factors include:

a) The type of mental illness the parent has.

b) The severity of the mental illness.

c) The frequency of the parent’s mental illness symptoms – whether they are situational or chronic.

d) The impact of the mental illness on the parent’s functioning.

e) The impact of the mental illness on the parent’s parenting.

f) Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic violence and other stressors such as unstable housing and financial problems.

g) The impact of the mental illness on the children.

h) The insight of the parent into their mental illness.

i) The ability of the parent to meaningfully engage with supports to address the mental health issues.

j) Whether the parent is compliant with treatment recommendations.

k) The strength of the parent’s support system, the insight of those support persons into the parent’s mental health issues and the ability of those persons to prioritize a child’s needs to those of the parent’s and to protect the child.

l) Whether the children have any needs that make them more vulnerable to compromised parenting. [ 115 ] The court will be assessing these factors throughout this decision. 4.3 Analysis 4.3.1 Mother’s position and evidence [ 116 ] The mother submitted that RS is not a child in need of protection. [ 117 ] The mother claimed that the protection concerns that led to JSP and JS being placed in society care no longer existed when RS was born. She said that RS only came into care due to her previous diagnosis of cannabis induced psychosis.

She submitted that this mental health issue was situational due to the stresses she had been under arising from B.P.’s abuse of her, the lack of financial support from the fathers of her children, a car accident and the maternal grandmother’s unavailability. [ 118 ] The mother claimed that she had been doing an excellent job parenting JSP and JS prior to her hospitalizations in 2017. The evidence did not support this. In particular:

a) The mother described the children having been exposed to considerable domestic violence and parental conflict.

b) The mother testified that the police were frequently called to the home.

c) The mother testified that she spent a night in jail and entered into a peace bond with respect to B.P.

d) The paternal grandmother testified that the mother’s home was kept in very poor condition.

e) The paternal grandmother testified that the mother would yell and scream a lot and be confrontational with people.

f) The mother said that everything began to collapse after the maternal grandmother was hospitalized in 2016.

g) The paternal grandmother testified that the mother often left JS in the playpen instead of playing with him.

h) JS came into care with significant behavioural concerns. He constantly screamed, yelled and was defiant. He was a very troubled child. 4.3.2 The protection order made for JSP and JS [ 119 ] The evidence was overwhelming that RS has been a child in need of protection from the day he was born until today. [ 120 ] Subsection 101 (1) of the Act sets out that the court must be satisfied that intervention through a court order is necessary to protect a child in the future before it makes a disposition order.

Less than two weeks before RS was born, the mother consented to the disposition order for JSP and JS, placing them in the custody of the paternal grandmother for 6 months. In doing so, she acknowledged that a protection order was necessary to protect them. Even more importantly, she consented to the very restrictive requirement for her access to JSP and JS to be approved by the society and at their discretion and agreed that this order was in the best interests of JSP and JS at that time.

[ 121 ] If a court found that JSP and JS required that level of protection from the mother just two weeks before RS was born, surely a vulnerable infant was also at risk of physical harm - nothing had changed in the intervening two weeks. 4.3.3 Concerning behaviour of the mother leading up to RS’s birth [ 122 ] The mother was continuing to demonstrate concerning behaviours leading up to and after RS’s birth, including:

a) Without any basis in fact, she would accuse society workers of poisoning her food, and workers of going through her personal belongings and stealing her things at the society office.

b) The week before RS was born, the mother was extremely agitated at a visit and observed to be acting in an irrational manner. This included the mother’s overreaction to JS falling, claiming that the worker had tripped him, and her insistence on looking at video surveillance. She was crying and shouting at the worker to stop hurting her babies. The worker noted how JSP appeared scared by the mother’s behaviour. She was sitting on the sofa with her knees drawn up to her chin and covering her face.

c) She kept telling people that RS would be coming home with her, even when it had been clearly explained to her that RS would be placed in the society’s care when born. She was telling people that the plan to place RS with her had been approved by the CEO of the society and approved by directors of the society. This was not the case.

d) She was making claims at the hospital that people were sneaking in and holding RS without her knowledge. [ 123 ] This evidence must be looked at in context given the serious mental health issues the mother experienced in 2017 and early in 2018 and informs the court that the mother was not stable enough to safely care for a child when RS was born. 4.3.4 Continued concerns about the mother’s behaviour after RS’s birth [ 124 ] The mother’s behaviour has continued to be very concerning since RS was born. She is frequently unable to regulate her emotions at visits.

She resists efforts by society workers to give her direction. She screams and yells at workers. She makes false accusations against them and threatens to call the police. She demeans them and is rude to them. The mother lacks impulse control and acts in an aggressive and volatile manner. [ 125 ] The mother has also continued to have had a distorted view of reality. Many examples were set out in paragraph 92 above. [ 126 ] It is common for child protection litigants to be angry at child protection workers.

If the mother limited this conduct to private meetings with society workers, it would be concerning, but on its own it wouldn’t be a basis to find a child in need of protection. See: Children’s Aid Society of London and Middlesex v. A.W., 2015 ONSC 2224 . [ 127 ] However, what makes this conduct so problematic, is that it takes place in the presence of the children and negatively impacts them. Society witnesses set out how troubling this behaviour is for the children. JSP and JS often plead for the mother to stop yelling at society workers.

At times, JSP curls up on the couch in a fetal position when the mother starts escalating. JS’s behaviour often becomes very agitated when the mother gets agitated. Further, when the mother becomes upset, she does not notice JSP and JS when they are trying to get her attention and ignores them as she rants against the society. The mother is unable to see or acknowledge how her behaviour upsets the children. [ 128 ] Examples of the mother’s more recent concerning behaviour are as follows: [16]

a) On April 9, 2019, the mother became upset because JSP started discussing the FAME program that she was attending. [17] She yelled at JSP who began to cry. She shouted at and argued with the workers during the visit. She made inappropriate statements about the paternal grandparents. The society could not calm the mother down. At one point, the maternal grandmother huddled with the children in the corner as they were crying, trying to console them. JSP was so upset that she curled up in a ball on the couch. The mother ignored JSP and JS for much of the visit.

b) On April 16, 2019, the mother brought sparring gloves to the visit. She put them on and went up to the observation window, saying in front of JSP and JS, “you know how mom always feels like everyone’s punching bag, well not today, I am changing things and we are going to spar”. She told the worker “we can spar all day” and continued to clap her fist to her hand. JSP and JS were observed to be uncomfortable and upset about the mother’s behaviour. The worker supervising the visit said that she felt intimidated by the mother.

c) On May 3, 2019, JS began crying over a toy. The mother claimed that he was crying because the visits are too short (the mother often attributes this as a reason for why JSP or JS are upset, even if there is no basis for doing so). She carried JS over to the worker and shouted, “you explain to him whey we don’t have enough time to do things!” She accused the worker of laughing at her and told her she was “sick, sick” in front of JSP and JS. At this visit, the mother called M.J.G. and asked JS to speak to his dad. This was confusing for JS, who thought B.P. was his father.

d) On May 14, 2019, the mother started talking at the visit about police and social workers and statistics regarding their family problems. She discussed in front of JSP and JS how the workers have a lot of problems with their own children and their marriages and are “messed up” and they “get what they ask for”.

e) On June 4, 2019, the mother was agitated and paced back and forth during the visit, trying to call her lawyer. She claimed in front of the children that she was doing this for “all the children who don’t have a voice”. She spoke on the phone to her lawyer’s assistant and said in front of the children: There was news published about Scarborough CAS workers violating boundaries….Here is my concern: my kids have been coming here for a couple of years and been crying about it when they leave so now I know why… it’s because they have been violated. I don’t know who has been charged but I do not feel safe here.

The mother was preoccupied with this issue during the visit and was unable to engage with JSP even when JSP tried speaking with her. She told one worker that she was going to call the police on the society.

f) On July 22, 2019, the mother began talking loudly to the maternal grandmother about being bullied. She ignored JS’s attempts to get her attention. She started getting so agitated that security had to be called. Again, the maternal grandmother and JSP and JS huddled together as the children were upset by the mother’s agitation. During this visit, she told JS not to talk to society workers, “they don’t care about you”. She also told the access supervisor not to speak to her. At one point in the visit, JSP asked the mother to stop talking.

g) On August 2, 2019, the mother took JSP and JS into the kitchen and closed the door. She began yelling at the worker who tried to open the door. JSP began whimpering and went to lay down on the couch. JS tried to calm his mother down. Subsequently, the mother yelled at the worker in front of JSP and JS and the worker had to caution her that the visit would be cancelled if she continued to do this. JS then became very agitated. After the visit, the worker tried to speak to the mother, but the mother was so angry she just yelled over the worker. It was after this visit that the society decided to reduce the mother’s visits to once each week for JSP and JS.

h) On August 8, 2019, JS had a rash. The mother tried to give him Benadryl and the worker had to intervene twice to stop her. The mother then called 911 and paramedics came to the society office. They saw no problem with the rash and left.

i) On September 24, 2019, the mother became upset again and accused the worker of laughing at her. She repeatedly called the worker a liar and encouraged JS to do the same. He eventually joined in calling the worker a liar. 4.3.5 – Mother’s lack of insight into the protection concerns and failure to obtain services [ 129 ] The risks posed by the mother’s mental health issues and conduct are increased by her total lack of insight into them. She denied to workers prior to RS being born that she had any mental health issues. She was resistant to discussing Dr. McDermott’s report with them.

She told workers that she would not show Dr. McDermott’s report to any service provider because she did not agree with it. [ 130 ] The mother continued to show a lack of insight into her mental health challenges at trial. She conceded that she didn’t really understand Dr. McDermott’s report. She did not see any concerns with her behaviour at visits or towards society workers.

She felt that the counseling she needed was to address the trauma she had suffered from having been in a relationship with B.P. [ 131 ] Whenever the mother was asked at trial about her understanding of the society’s child protection concerns, she couldn’t say what they were, instead deflecting the questions by criticizing the society. [ 132 ] The mother had no treatment for her mental health issues prior to RS being born. She had turned down opportunities to see psychiatrists when she attended at hospitals.

She rejected medication prescribed for her. [ 133 ] The mother still has had no treatment for her mental health issues, despite her claim in her trial affidavit that she received intensive counseling. The counselor she saw was prepared to start Cognitive Behavioural Therapy with her, but the mother felt that this was not appropriate for her and individual counseling never took place.

The mother set up one appointment with a psychiatrist but she missed it. [ 134 ] The mother denied having any substance abuse issues despite being hospitalized for substance induced psychosis and subsequently being taken to the hospital by police on January 14, 2018 reporting that she had been drinking and taking drugs since New Year’s Day. She said that she attended Pinewood due to her addiction to B.P. [ 135 ] The evidence shows that the mother’s mental health issues have been significant and have been unaddressed.

Until these issues have been meaningfully addressed, any child in her care would be at risk of physical harm. [ 136 ] It will be set out later in this decision that it is very important that RS’s caregivers be able to effectively work with service providers because of his feeding and health issues. The evidence informs the court that the mother will be resistant to any advice she does not agree with and that she will not work effectively with service providers.

This places RS at an unacceptable risk of neglect of his physical needs. 4.3.6 Mother’s instability [ 137 ] The mother has had unstable relationships and housing since JSP and JS came into society care, raising a protection concern about her ability to safely parent RS. [ 138 ] The mother testified that she was in an abusive relationship with B.P. that she had difficulty extricating herself from. She said that she was abused in January 2018 by a friend who she had thought might be RS’s biological father. JS’s father has been in jail. The mother said that she visits him but does not know why he is in jail.

The maternal grandmother testified that M.J.G. had broken a door in the mother’s home in 2017. [ 139 ] The mother’s relationship with her primary support, the maternal grandmother, had deteriorated as of RS’s birth to the point where the mother was preventing her from seeing RS and accusing her of being bipolar.

The mother proposed K.C. as an access supervisor in 2019 but this quickly fell apart when K.C. asked her to leave the apartment after a physical altercation. [ 140 ] No other family members or friends testified on the mother’s behalf at trial. [ 141 ] The mother lost her housing when JSP and JS came into society care. The maternal grandparents sold the property. In November 2018, the mother lived in a small room and shared a washroom and kitchen with other tenants. No overnight guests were allowed. In February 2019, the mother moved in with a cousin. However, that cousin was unwilling to be part of a plan for RS.

The mother did not have accommodation for RS when he was brought to a place of safety.

[ 142 ] The mother moved again in March 2019 into a friend’s home. In May 2019, the mother moved in with K.C. She was asked to leave in July 2019. The mother says that she is now living in an apartment with a friend. However, she and the maternal grandmother have refused to provide the society with the address or the name of the friend, despite Justice Sager’s order requiring her to notify the society of any change in address. The mother plans to move again if the children are placed in her care. 4.3.7 – Conclusion on finding for RS [ 143 ] For the numerous reasons set out above, the court finds that RS is a child in a need of protection pursuant to subclause 74 (2) (b) (

i) of the Act .

Part Five – Disposition – legal considerations [ 144 ] Subsection 101 (1) of the Act provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future. [ 145 ] Subsection 101 (8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act . [ 146 ] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care.

See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482 . [ 147 ] In determining if a protection order is necessary to protect the child in the future, the importance of emotional ties between a child and the child’s caregiver are an important consideration. In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2.

S.C.R. 165, the Supreme Court expressed, at para. 37, that the Child and Family Services Act “seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail”. Because of this goal, the best interests of the child is “an important and, in the final analysis, a determining element of the decision as to the need of protection.

The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children’s Aid Society of Toronto v. S.P., 2019 ONSC 3482 . [ 148 ] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or subsection 102 of the Act in the child’s best interests. Subsections 101 (1) and 102 (1) of the Act read as follows: Order where child in need of protection 101

(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under

section 102, in the child’s best interests: Supervision order 1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. Interim society care 2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months. Extended society care 3. That the child be placed in extended society care until the order is terminated under

section 116 or expires under

section 123. Consecutive orders of interim society care and supervision 4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months. 102

(1) Subject to subsection (6), if a court finds that an order under this

section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. [ 149 ] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under

Part V of the Act . [ 150 ] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child.

Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child. [ 151 ] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care. [ 152 ] In determining the appropriate disposition, the court must decide what order is in the children’s best interests.

The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child 74

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (

a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot beascertained; (

b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit andMétis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to theconsiderations under clauses (

a) and (c); and (

c) consider any other circumstance of the case that the person considers relevant, including, (

i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation,gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (

v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member ofthe child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted,compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (

x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of aparent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection. [153] In Children’s Aid Society of Toronto v. S.B., 2014 ONCJ 518, this court discussed the importance of a parent providing a childwith a safe, stable and secure home as follows: [112] The major protection issue is the mother’s ability to be able to provide the child with a safe, secure and stable home. This is acritical aspect of being a parent.

Children need stable housing. They need their parents to have a stable plan for them. Children need theirparents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother hasjust started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing thatshe can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerablechild.

Terms of supervision would be inadequate to protect the child. [154] An order placing a child in the extended society care of the society is the most profound order that a court can make. To takesomeone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis ofcompelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children’s Aid Society of Hamilton- Wentworth v.

G. (J) (1997), 23 R.F.L. 4th 79 (SCJ- Family Branch). [155] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to bein need of protection. Time is considered from a child’s needs and perspective. The time consideration, like all considerations in childprotection matters, should be child-focused. See: Children’s Aid Society of Toronto v. D.S., (Ont.

S.C.J.). [156] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not beused as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue mustarise from something more than a heartfelt expression of a parent’s desire to resume care of the child.

There must be an arguable notiondiscernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of thechild from their care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H., (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.). Part Six - Is intervention through a court order necessary to protect the children in the future? [157] Subsection 101 (1) requires the court to ask this question before turning to the disposition options in the Act.

If the answer is no,then the child must be returned to the person who had charge of them prior to society intervention under

Part V of the Act. [158] For all the reasons set out in

Part 4.3 of this decision, and the reasons that will follow below, the court finds that interventionthrough a court order is necessary to protect the children in the future. Part Seven -The children

[ 159 ] The children were described with affection by all the witnesses. 7.1 – JSP [ 160 ] JSP was described by the witnesses as a warm, articulate and caring child. She was described as a child who cares about people and wants them to be happy. She is a child who wants to please everyone. She is mature and easy to manage. [ 161 ] JSP is in grade three and is doing very well in school. She has friends and participates in many activities such as taekwondo, gymnastics and swimming. She has some artistic and athletic talent. [ 162 ] JSP has no special needs. 7.2 – JS [ 163 ] JS has struggled with behavioural issues.

These were severe when he first came to live with the paternal grandparents. He had frequent temper tantrums. He was a very angry child who screamed, yelled and was defiant. He often lashed out at JSP physically. [ 164 ] JS’s behaviour has improved in the paternal grandparents’ home in the past year. The paternal grandmother sought assistance from the Aisling Discoveries program (Aisling). She went for individual help for parenting strategies and later worked in group sessions.

JS also went to Aisling for individual sessions. [ 165 ] The paternal grandmother described many of the techniques she has found to be effective for managing JS’s behaviour. She said that one of the keys is to identify situations that might trigger JS’s behaviour and manage those before JS becomes upset.

She has found that time-outs, clear rules, having JS breathe, reinforcement of positive behaviour and discussing JS’s feelings with him have been effective in reducing his outbursts. [ 166 ] The paternal grandmother testified that JS reacts very badly when the adults around him are not calm or raise their voices, so it is important that adults model positive behaviour for him. [ 167 ] JS is now in Junior Kindergarten. His school has not reported any behavioural concerns to the paternal grandmother. [ 168 ] JS is advanced in reading and math.

He loves to go to the library and read. [ 169 ] JS is very active and likes to swim. [ 170 ] Unfortunately, JS’s behaviour has continued to be problematic at visits with the mother. He often has tantrums and physically hits the mother, the maternal grandmother and JSP. 7.3 – RS [ 171 ] RS has had many physical issues since birth. [ 172 ] RS remained in the hospital 9 days after birth as he was very small. [ 173 ] RS has had feeding issues that have had to be closely monitored by his treating doctors. He has been followed in the hospital’s neo-natal clinic.

In September 2019, he was referred to an occupational therapist to assist with this issue and his fine motor skills. Although he remains a picky eater, RS’s feeding issues have significantly improved. [ 174 ] RS started to have difficulty rotating his neck this past summer. He was referred to a physiotherapist. His foster parents testified that this is no longer a problem for him. [ 175 ] RS will continue to be followed at the neo-natal clinic and by the occupational therapist. [ 176 ] RS is now meeting all his developmental milestones. [ 177 ] RS was described as an easy baby to manage.

He is social and inquisitive. Part Eight - Services provided by the society for the mother and the children [ 178 ] The society has provided the following services for the mother and the children:

a) The mother has been provided with three different family service workers.

b) The society obtained a psychological assessment of the mother.

c) The society provided the mother with referrals based on the recommendations of Dr. McDermott.

d) The society offered to connect with the mother’s family doctor to arrange for counseling. The mother did not follow up on this.

e) The society has offered parenting direction at visits for the mother. She is resistant to this.

f) The society offered the mother separate visits with JSP and JS . The mother chose not to do this.

g) The society explored alternative access supervisors for the mother. They assessed that the maternal grandmother could not safely

monitor the mother. K.C. decided not to participate further after her altercation with the mother.

h) The society arranged a Family Group Conference to try and develop a safety plan for RS. However, none of the maternal family members were willing to participate.

i) JS and the paternal grandmother have received assistance for JS’s behavioural issues from Aisling.

j) JSP has been participating in the FAME program.

k) RS has a children’s service worker from the society.

l) RS is followed at the society’s medical clinic.

m) RS has received occupational therapy.

n) RS has received physiotherapy.

o) RS has had a family support worker to assist with his feeding issues. [ 179 ] There has been a limit to what services the society can provide to the mother. She does not trust the society. She has made it clear that she does not want its assistance and would not go to any service provider it suggests. Part Nine – Community or family plans [ 180 ] The society found and supported an excellent family plan for JSP and JS. [ 181 ] The society asked the maternal grandparents if they were willing to care for JSP and JS before placing them with the paternal grandparents on July 28, 2017.

The maternal grandparents indicated that they couldn’t do this. [ 182 ] The society also explored with the maternal grandparents if they were willing to have RS placed in their care in August 2019. The maternal grandfather did not return the society’s calls when it tried to assess this plan. Subsequently the maternal grandmother asked the society to put its assessment of this plan on hold as the maternal grandfather had been in a car accident. She has not asked them to start this process since then. [ 183 ] The maternal grandparents did not ask to have any of the children placed in their care at trial.

The maternal grandmother is prepared to have joint custody of the children together with the mother. However, the children would live with the mother. [ 184 ] No other family or community plan has been presented for RS by the mother.

Part Ten – Assessment of the plans of care 10.1 The society’s plans of care 10.1.1 – JSP and JS [ 185 ] The society’s plan is for the paternal grandparents to have custody of JSP and JS. [ 186 ] The society seeks an order that the mother have supervised access to JSP and JS once each month at the TSAC together with one phone call each week. [ 187 ] The evidence indicates that JSP and JS have thrived in the care of the paternal grandparents. The paternal grandparents have provided these children with a safe, secure and structured home.

JSP and JS have fully integrated into this home. [ 188 ] JS has made significant behavioural gains in the paternal grandparents’ care. [ 189 ] The paternal grandparents have ensured that all of JSP’s and JS’s physical and emotional needs are met. [ 190 ] JSP and JS are both doing well in school. [ 191 ] JSP and JS are both involved in many activities that they enjoy. [ 192 ] The paternal grandmother actively sought out services for the children.

She was proactive in seeking services to assist her in parenting JS. [ 193 ] The paternal grandmother testified and showed that she was very attuned to JSP’s and JS’s needs and committed to meeting them. [ 194 ] The paternal grandparents provide structure and rules for JSP and JS and they have (and in particular JS) responded well to this. [ 195 ] JSP and JS feel safe, secure and loved in the paternal grandparents’ home. [ 196 ] JSP and JS have also developed positive relationships with the extended paternal family.

The paternal grandparents’ son (not B.P.) and his partner live in the home and they help out with the children. [ 197 ] The mother claimed that the paternal grandmother is inappropriately undermining her relationship with JSP and JS. The evidence did not support this. The paternal grandmother has demonstrated that she is very committed to supporting JSP’s and JS’s

relationship with the mother and the maternal grandparents. JSP and JS come to every visit with the mother. The paternal grandmother does not question them about the visits. Despite the absence of a court order, she has facilitated weekly visits with the maternal grandparents and was complimentary of them. [ 198 ] JSP and JS are achieving their potential with the paternal grandparents. [ 199 ] The mother claimed that the paternal grandparents are not protective of JSP and JS by permitting B.P. frequent contact with them. The evidence did not support this.

The paternal grandmother testified that B.P.’s access is fully supervised. She called the police when he came home drunk in 2018 and has established firm rules and boundaries for him. The society trusts her judgment and her ability to be protective of JSP and JS. The court does too. 10.1.2 – RS [ 200 ] The society’s plan is to have RS placed in extended society care for the purpose of adoption. [ 201 ] The society’s adoption worker testified that RS is very adoptable.

She says that a number of families are viable candidates to adopt him. [ 202 ] The adoption worker testified that the society would search for a family with a cultural match for RS. [ 203 ] The adoption worker also said that the society would reject any adoptive family that was not supportive of sibling access between RS and his siblings. [ 204 ] The society proposes that sibling access take place as agreed upon between the paternal grandparents and RS’s legal guardian, a minimum of four times each year. [ 205 ] The society was surprised when RS’s foster parents both testified that they would be willing to adopt RS.

They both said that they had never been asked whether they were prepared to do this by the society. The society’s children service worker testified that she had understood that the foster parents were unwilling to adopt RS. 10.2 Plan of the mother [ 206 ] The mother’s plans for the children up until closing argument were as follows:

a) In her March 14, 2019 Answer/Plan of Care, she sought an order placing RS in her care.

b) In her July 31, 2019 Answer/Plan of Care, she sought an order that JSP and JS be placed in the care of the maternal grandparents, or in the alternative, herself. [18]

c) In her November 15, 2019 Amended Answer/Plan of Care, she added an alternative claim for an order that RS be placed in the joint care of herself and the maternal grandmother.

d) In her opening statement, the mother sought orders that all three children be placed in the joint care of herself and the maternal grandmother – the primary residence being with her. [ 207 ] In closing argument, the mother clarified that she was seeking orders that all three children be placed in her care, or in the alternative in the joint care of herself and the maternal grandmother. The children would live with the mother and she would share caregiving responsibilities with the maternal grandmother.

If required by the court, the mother is prepared to agree to terms of society supervision for 6 months. [ 208 ] The mother and maternal grandmother both testified that their relationship has improved considerably since March 2019. They both described their relationship as “like sisters”. [ 209 ] The mother indicated that the maternal grandparents would provide a condominium for her and the children to live in. [ 210 ] The mother said that she hopes to work full-time. She said that she would also receive financial assistance from the maternal grandparents.

The maternal grandmother confirmed that she was prepared to provide this assistance. [ 211 ] The mother’s plan is for RS to attend daycare or to have the maternal grandparents care for him while she is working. [ 212 ] The mother hopes to find a residence near the school that JSP and JS are attending so that they don’t have to change schools. [ 213 ] The maternal grandparents have two other adult children living with them. One of these children is autistic and requires considerable attention. [ 214 ] The mother says that she will expose the chil

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