2019 ONCJ 489, 2019 ONCJ 489

WARNING The court hearing this matter directs that the following notice 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, . . . (a) (

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. Y.M., 2019 ONCJ 489 DATE : July 5, 2019 COURT FILE NO. C12068/17 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) CHILDREN’S AID SOCIETY OF TORONTO JULIA O’BYRNE, for the APPLICANT ) APPLICANT ) ) - and - )

Y.M., S.O. and Y.B. ) KATHERINE LONG, for the RESPONDENT, Y.M. KATHARINA JANCZARUK, for the RESPONDENT, S.O. THE RESPONENT, Y.B., not attending and found in default on March 21, 2019 LAUREN ISRAEL, counsel for the OFFICE OF THE CHILDREN’S LAWYER, on behalf of the child N.B. RESPONDENTS ) ) ) ) HEARD: JUNE 3-7, 10-14, 17-18 and 20, 2019 JUSTICE S.B.

SHERR REASONS FOR JUDGMENT Part One – Introduction [ 1 ] This was a child protection trial concerning two children - N.B., who is a 10-year-old girl and M.M., who is an 18-month-old girl. [ 2 ] The respondent Y.M. (the mother) is the mother of both children (the children). [ 3 ] The respondent S.O. (M.M.’s father) is M.M.’s father and N.B.’s stepfather. [ 4 ] The respondent Y.B. is N.B.’s father. He did not participate in this case and was found in default. [ 5 ] M.M. has been in the care of the Children’s Aid Society of Toronto (the society) since December 14, 2017 – […] days after her birth.

The mother and M.M.’s father exercise supervised access to her at the society’s office. [ 6 ] N.B. lived with the mother until August 2, 2017. She then lived with Y.B. until October 30, 2017. Since then she has resided with S.B. and J.A. (the kin caregivers). The mother and M.M.’s father exercise supervised access with N.B. at the society’s offices. [ 7 ] Y.B. exercised access with N.B. until he left for the Philippines in January, 2019.

The court was advised that he will be staying there indefinitely. [ 8 ] N.B. was found to be a child in need of protection pursuant to clause 74 (2) (h) (risk of emotional harm) of the Child, Youth and Family Services Act, 2017 (the Act ) on October 2, 2018 by Justice Robert Spence. [ 9 ] The society seeks an order that N.B. be placed in the custody of the kin caregivers, pursuant to

section 102 of the Act . It also seeks incidents of custody for the kin caregivers, including the ability to obtain documentation for N.B. and to travel with her outside of Canada, without anyone’s consent. It seeks an order that the mother and M.M.’s father have access to N.B. twice each month, for two

hours each visit, at a supervised access centre and that Y.B.’s access to N.B. be in the discretion of the kin caregivers. [ 10 ] The society also seeks a finding that M.M. is a child in need of protection pursuant to subclause 74 (2) (b) (

i) of the Act . It seeks a dispositional order that M.M. be placed in extended society care. It seeks an order that M.M. have supervised access twice each year with her parents, with the child being the access holder and her parents being the access recipients. [1] Lastly, the society seeks an order for sibling access a minimum of four times each year, with the children being both access holders and access recipients. [ 11 ] The mother and M.M.’s father seek an order that N.B. be placed in their joint care, with terms of society supervision.

In the alternative, they seek an order that N.B. be placed in M.M.’s father’s care, subject to terms of society supervision, with liberal and generous access to the mother. [ 12 ] The mother and M.M.’s father ask that the society’s protection application for M.M. be dismissed on the basis that she is not a child in need of protection. If a finding in need of protection is made, they seek a determination that intervention through a court order is not necessary to protect M.M. in the future.

This would result in M.M. being returned to their care, as they had charge of the child immediately before society intervention under the Act . In the alternative, they seek an order that M.M. be placed in their joint care, subject to terms of society supervision. In the further alternative, they seek an order that M.M. be placed in M.M.’s father’s care, subject to society supervision, with liberal and generous access to the mother.

In the further alternative, they seek an extension order pursuant to subsection 122 (5) of the Act that N.B. be placed in interim society care. [2] [ 13 ] The mother also seeks a nominal order of costs against the society. [ 14 ] The Office of the Children’s Lawyer, on behalf of N.B., supports the parenting orders sought by the society regarding N.B.

It also asks for an order that sibling access take place a minimum of 12 times each year with both children being access holders and access recipients. [ 15 ] The mother and M.M.’s father seek generous unsupervised access to both children, if one or both are not returned to their care. In the case of M.M., they seek an order that the court make them both access holders and access recipients. [ 16 ] The society called 18 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 M.M.’s father. The court heard oral evidence from community witnesses who had dealt with the mother and M.M.’s father, including a hospital social worker, a social assistance worker and a paramedic. The court also heard from S.B. (one of the kin caregivers); N.B.’s paternal aunt and M.M.’s foster mother. [ 17 ] The mother and M.M.’s father both testified. M.M.’s father provided most of his direct evidence by affidavit with some supplementary oral evidence.

The mother provided part of her direct evidence by affidavit and presented most of her evidence orally over 3 days. [ 18 ] The society and the mother both filed business record briefs on consent. These included school report cards and attendance records regarding N.B. and hospital, medical and prescription drug records regarding N.B. and the mother. [ 19 ] Counsel worked well together to determine which of N.B.’s statements would be admitted at trial and the purpose for their admission.

Many of her statements were admitted for her state of mind and some were admitted for the truth of their contents. [ 20 ] The society had planned to call expert evidence about urine testing conducted on the mother and a voir dire was scheduled. However, the society chose to withdraw this evidence and did not rely upon it. [ 21 ] The trial was conducted as a blended proceeding regarding M.M. The court did not consider evidence solely related to disposition when considering whether she should be found to be a child in need of protection. [ 22 ] The main issues for this court to determine are as follows:

a) Is M.M. a child in need of protection?

b) If so, is a further protection order required to protect her?

c) If so, what dispositional order is in her best interests? [3]

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

e) If M.M. is placed in her father’s care, what access orders are in her best interests?

f) Is a further protection order required to protect N.B.?

g) If so, what dispositional order is in her best interests?

h) If N.B. is placed in the custody of the kin caregivers, what incidents of custody are in her best interests?

i) If N.B. is placed in the care of the kin caregivers, what access orders are in her best interests?

j) If N.B. is placed in the care of M.M.’s father, what access orders are in her best interests? Part Two – Background facts and court history [4]

[ 23 ] The mother is 39 years old. She was born in Kiev. She came to Canada at age 17 in 1997 and was a student at a missionary college in Alberta. She moved to Toronto in 1998 and worked as a nanny. She has lived in Toronto since that time. [ 24 ] The mother testified that she has had many jobs – most recently as a paralegal and a law clerk doing personal injury work. She said that her paralegal licence was suspended at a disciplinary hearing and she hopes to have it reinstated. She has been in receipt of social assistance throughout 2019.

She testified that she has supplemented this income with occasional part-time work, cleaning buildings and working as a server at a banquet hall. [ 25 ] The mother lived with Y.B. from December, 2005 until 2009. She described it as an abusive relationship. Y.B., she said, was addicted to painkillers and was an alcoholic. He would physically and emotionally abuse her. [ 26 ] The mother said that she acted as a stepmother to Y.B.’s child (D.B.) from another relationship.

D.B. was two years old when the mother began her relationship with Y.B. [ 27 ] N.B. is the only child that the mother and Y.B. had together. [ 28 ] Children’s Aid Societies were involved with Y.B. and the mother regarding D.B. primarily due to the high-conflict relationship between Y.B. and D.B.’s mother. [ 29 ] York Region Children’s Aid Society (York) received a referral from the hospital when N.B. was born in 2009 as she appeared to be going through withdrawal after birth.

Hospital staff conducted a drug screen on the baby which returned positive for Lorazepam and Oxycodone. [ 30 ] The mother deposed that the drugs in her system were drugs that had been prescribed to her by her doctors for depression and anxiety. She said that in 2007 she started having panic attacks and was diagnosed with a major depressive disorder and panic attacks – primarily as a result of Y.B.’s abusive behaviour and alcohol abuse.

The mother deposed at one point in this case that she might have put a few of her Percocet pills in a Tylenol bottle and had inadvertently taken one prior to N.B.’s birth. [5] [ 31 ] The mother said that she took N.B. and left Y.B. in December of 2009 because of his abusive behaviour. D.B. stayed with Y.B. [ 32 ] The mother said that she worked cooperatively with York and it closed its file with her in the spring of 2010. The mother had no further involvement with child protection agencies for 6 years. [ 33 ] The mother testified that Y.B. did not see N.B. for 6 months after their separation.

Subsequently, she said, his access with N.B. was variable. At times, he would see N.B. regularly, including overnights.

At other times, he would go several months without seeing her. [ 34 ] York became involved with the mother again in May, 2016 after N.B.’s school made a report to it over N.B.’s frequent absences. [ 35 ] In the 2015/2016 school year, N.B. missed at least 59 days of school. [ 36 ] In the fall of 2016, N.B. missed 31 days of school and was late an additional 27 times. [ 37 ] A police officer from York Region called the society on December 22, 2016 to report that N.B.’s school had called alleging that N.B. had not attended school since December 8, 2016. [ 38 ] The mother and M.M.’s father moved in together in Toronto in December, 2016 and York referred the case to the society. [ 39 ] M.M.’s father is 41 years old and was born in Russia.

He came to Canada in 1998 as a Convention Refugee. [ 40 ] M.M.’s father has worked most of his adult life as a truck driver. He said that he quit his full-time job at the end of 2018. He said that his job prevented him from regularly exercising access with the children as he would be driving overnight to different cities several times each week. He said that he used to work 70 hours each week, taking only Saturdays off. He said that he still works as a driver on occasion, doing local drives.

He has been in receipt of social assistance during 2019. [ 41 ] The society only dealt with the mother at the start of its involvement. The mother asked the society not to involve M.M.’s father at that time. She testified that it was a new relationship and she didn’t want to cause M.M.’s father stress in dealing with them. [ 42 ] N.B.’s school attendance remained a problem from January to June, 2017.

N.B. missed 43 days of school in that time period and was late 16 times. [ 43 ] During this time, the society received calls from Y.B. and Y.B.’s sister alleging that both the mother and M.M.’s father were drug users. The mother and M.M.’s father denied all allegations and said they were made maliciously as Y.B. had wanted to reconcile and was jealous of M.M.’s father. [ 44 ] The society’s intake worker acknowledged that Y.B. had a long history with child protection agencies.

The history indicated significant physical abuse by Y.B. to D.B.’s mother, threatening behaviour to D.B.’s mother and to society workers and coaching D.B. to make false allegations about her mother on videotape. [ 45 ] During this time, the mother was struggling with her health. She was diagnosed with gallbladder issues on March 2, 2017. She deposed that later in March she was told that she had 4 gallstones. [ 46 ] The mother testified that she was scheduled to have gallbladder surgery on April 28, 2017, but the surgery was cancelled on

April 25, 2017 when she learned that she was pregnant. [ 47 ] The mother was hospitalized several times in 2017 and 2018 due to severe abdominal pain. She said that she was frequently taken to different hospitals by ambulance because she didn’t drive. [ 48 ] On May 22, 2017, the mother was prescribed a course of hydromorphone, to be taken sparingly on an as needed basis. [ 49 ] On July 27, 2017, the mother was hospitalized for two days due to onset of acute cholecystitis related to her gallstones.

She was prescribed Amoxicllin and Percocet when discharged. [ 50 ] On August 2, 2017, the mother became unconscious on a TTC bus. The fire department and paramedics were called. [ 51 ] The lead paramedic who treated the mother testified at trial. He was unable to revive the mother and transported her to the hospital. She was unconscious for over 50 minutes. [ 52 ] The mother tested positive at the hospital for morphine.

She explained that this was the medication prescribed for her just a few days before. [ 53 ] The society told the mother that N.B. could not stay with her and advised her that N.B. would live with Y.B. The mother asked if N.B. could stay with M.M.’s father, and the society did not agree, as it did not know M.M.’s father The mother reluctantly agreed to this placement. [6] [ 54 ] The society agreed that M.M.’s father could take N.B. to and from school every day. The worker eventually learned that the mother was also coming with M.M.’s father and N.B.

The worker did not object to this. [ 55 ] N.B.’s placement with Y.B. quickly fell apart. Y.B. was abusing prescription drugs and alcohol during the time that N.B. lived with him. [7] [ 56 ] The mother testified that at some point in September, 2017, N.B. began spending most of her time with her and M.M.’s father. [ 57 ] During the first three weeks of September, 2017, N.B. was late or absent from school 75% of the time, although M.M.’s father and the mother were supposed to take her to school. A meeting was held with the school on October 4, 2017 to discuss this issue.

The mother testified that N.B.’s school attendance improved after this meeting. [ 58 ] On or about October 30, 2017, Y.B. was charged with two counts of assaulting the mother. [ 59 ] The mother called the society worker on October 30, 2017 to report that Y.B. had been criminally charged. The worker then spoke to Y.B., who admitted to her that N.B. had been staying at the mother’s home sometimes over the past few months without the society knowing.

He also made allegations of drug use against the mother and M.M.’s father [ 60 ] The worker said that she subsequently met with the mother, who acknowledged that N.B. had been staying with her some nights. [8] She told the worker that Y.B. had been drunk when she came to drop off N.B. with him the weekend before. She said that Y.B. made sexual advances towards her and pushed her on the floor. She also said that Y.B. was harassing M.M.’s father.

The mother denied any drug use by either her or M.M.’s father. [9] [ 61 ] On October 30, 2017, N.B. was placed with the kin caregivers. [10] The kin caregiver S.B. is the sister-in-law of the father’s sister (L.B.). S.B. is a primary school teacher.

She and her husband J.A. do not have any children. [ 62 ] Supervised access by the mother and M.M.’s father to N.B. began to take place twice each week at the society’s office. [ 63 ] The society advised the mother and M.M.’s father that it would conduct meconium testing on the baby at birth and then determine whether the baby could be placed in their care. [ 64 ] M.M. was born on […], 2017. Meconium testing was conducted, but the results were delayed.

The mother and M.M. remained in the hospital. [ 65 ] The society brought M.M. to a place of safety on December 14, 2017. [11] The meconium test results were still not available. [ 66 ] On December 19, 2017, the society issued its protection application regarding M.M. and obtained a temporary without prejudice order placing her in the care of the society, with access to the mother and M.M.’s father in its discretion. [ 67 ] The mother and M.M.’s father began having supervised access visits with M.M. twice each week at the society’s office. [ 68 ] On January 10, 2018, M.M.’s meconium tests came back negative.

The society decided against returning M.M. to the care of her parents.

The society asked the mother and M.M.’s father to participate in random urine screens and they agreed. [ 69 ] A society worker deposed that on February 8, 2018, the mother advised her that she no longer agreed to N.B. living with the kin caregivers. [12] [ 70 ] The society issued a protection application regarding N.B. on February 14, 2018. [ 71 ] On March 1, 2018, after a contested temporary care and custody hearing, Justice Spence placed N.B. in the temporary care of the kin caregivers, with access to the mother, M.M.’s father and Y.B. in the society’s discretion. [ 72 ] The society had difficulty coordinating urine testing with the mother in the spring of 2018.

It agreed to suspend the testing, as

the mother was scheduled for surgery. [ 73 ] On April 3, 2018, the mother and M.M.’s father were referred to the society’s Therapeutic Access Program (TAP). This is a society program for parenting instruction and an internal assessment of a parent’s ability to parent. For parents in the TAP, the society schedules longer-than-normal visits and looks to see how well the parents structure their visits, interact with the children, manage the children’s needs and integrate the worker’s feedback into their parenting. It also looks to see if the parents can attend visits consistently and on time.

The visits are scheduled for longer periods of time than are normally scheduled for parents to see if they can meet the needs of their children. [ 74 ] On May 3, 2018, the mother had surgery to have her gallbladder removed. [ 75 ] The urine testing on the mother started again on June 11, 2018. The attempts at testing did not go smoothly. Only two tests were obtained from the mother – one positive (that the mother explained as being her prescription medication) and one negative.

The society stopped trying to test the mother at the end of October, 2018. [13] [ 76 ] The father had three urine tests completed in the spring of 2018 – all were negative. [ 77 ] The mother and M.M.’s father had a dispute with their landlord and in the fall of 2018, the mother moved into a women’s shelter. M.M.’s father testified that he spent many nights sleeping in his truck. Both confirmed that they were still together as a couple. [ 78 ] On September 11, 2018, M.M.’s father submitted a plan to care for both children. [ 79 ] On October 2, 2018, the protection finding for N.B. was made by Justice Spence.

The issue of disposition for N.B. was adjourned. [ 80 ] The TAP program was terminated by the society at the end of October, 2018. [ 81 ] The visits were resumed at the society offices. [ 82 ] The society amended its protection application for N.B. on November 23, 2018, seeking a custody order in favour of the kin caregivers pursuant to

section 102 of the Act . [ 83 ] On December 11, 2018, a date was set for a

summary judgment motion regarding N.B., to be heard on March 21, 2019. [ 84 ] On December 20, 2018, the society amended its protection application for M.M., seeking a disposition that she be placed in the extended care of the society with no access to her parents. [ 85 ] At some point in December, 2018, the mother and M.M.’s father moved in together into a home in Thornhill, Ontario. [ 86 ] On January 7, 2019, the society held a Family Group Conference with the mother and M.M.’s father to discuss M.M.’s father’s plan to care for the children.

M.M.’s father and the mother proposed that a friend of the mother’s from Ukraine would come to Canada and move in with them. [ 87 ] The society agreed to explore this plan further and told the mother and M.M.’s father that they would assess M.M.’s father as the primary caregiver.

The structure of the visits was changed to allow times when M.M.’s father would be M.M.’s primary caregiver. [ 88 ] On February 27, 2019, Justice Spence granted the society’s motion to fully supervise the mother’s access with N.B., based on evidence that the mother was inappropriately pressuring N.B. to return to her care and discussing the court case with her. [ 89 ] On March 7, 2019, the mother and M.M.’s father sought an adjournment of the

summary judgment motion regarding N.B. This request was granted over the objections of the society and counsel for N.B. A new

summary motion date was set for April 18, 2019. [ 90 ] The mother moved for another adjournment of the

summary judgment motion, supported by M.M.’s father This request was also granted over the objections of the society and counsel for N.B. See: Children’s Aid Society of Toronto v. Y.M., 2019 ONCJ 209 . [ 91 ] The parties subsequently agreed to have a trial regarding both children and the society decided not to proceed with N.B.’s case by way of

summary judgment motion. [ 92 ] The mother and M.M.’s father testified that they left their home in Thornhill after a dispute with the landlord and are now living in a shelter. The mother testified that the move took place on May 16, 2019 – the father had earlier testified that it had taken place earlier in May. The mother said that the shelter they are staying in does not accept children. M.M.’s father said that they do not have a room, but share a bed together. [ 93 ] The mother exercises supervised access with N.B. at the society offices on two afternoons each week.

The visits last 90 minutes. [ 94 ] M.M.’s father has supervised access with M.M. at the society offices two days each week for two hours. In the second hour, the mother joins the visit. The society has asked M.M.’s father to take the lead in caring for M.M. during this hour.

The mother then has an additional hour alone with M.M. [ 95 ] Access was temporarily suspended on June 6, 2019, as the mother and M.M.’s father both had the MRSA virus and active symptoms. [ 96 ] At the outset of the trial on June 3, 2019, on consent, the court made the statutory findings under subsection 90 (2) of the Act pertaining to M.M., as set out in the society’s amended protection application.

Part Three – Credibility and reliability 3.1 M.M.’s father [ 97 ] M.M.’s father was not a reliable or credible witness. [ 98 ] M.M.’s father claimed that he had a very bad memory. The court observed that his memory became worse when he was asked uncomfortable questions. [ 99 ] The court found M.M.’s father to be avoidant when asked difficult questions, particularly about his drug use and his failure to allow the society to make home visits. [ 100 ] There were many examples that supported the court’s finding that M.M.’s father is not a credible witness. They include the following:

a) He failed to advise the society that he and the mother are now living in a shelter. In his trial affidavit (sworn on May 27, 2019), he still used his old Thornhill address, even though he had been in the shelter, according to his testimony, for several weeks. M.M.’s father was asked why he didn’t tell the society worker that he was living in a shelter. He responded, “she didn’t ask me”. However, the family service worker testified that she had been making considerable efforts trying to ascertain where the mother and M.M.’s father were living.

b) He has given different addresses to institutions in 2019. He led the society to believe that he and the mother were living together in Thornhill until the trial. He gave an Ajax, Ontario address to St. Michael’s Hospital in June, 2019 and he and the mother have given social assistance two separate addresses throughout 2019 – neither being an address that had been provided to the society.

c) He and the mother have been claiming as single dependants to get increased social assistance throughout 2019, even though M.M.’s father testified that they have been together 90% of the time. When he was asked if he told social assistance that they were living together 90% of the time, M.M.’s father answered, “no, how were we supposed to tell them”?

d) He is collecting social assistance even though he testified that he was earning $300 to $400 a week as a truck driver. He later said that he is not working every week. It is highly unlikely that he has reported this income to social assistance.

e) His evidence about his employment kept changing. In his trial affidavit, he said he was working part-time. In his oral testimony, he claimed that he wasn’t working, but when the inconsistency was put to him, he claimed that he was taking jobs in the city. This was a common pattern where his evidence shifted when confronted with inconsistencies.

f) He unsuccessfully opposed a mid-trial motion for production of his recent hospital records. Those records revealed that he told a treating physician that he had used a line of crack cocaine on June 3, 2019 – the first day of trial. He did not attend court on that first day of trial.

g) He deposed in his trial affidavit that he never took or sold drugs. When confronted with this inconsistency, he tried to minimize this, claiming he had only tried cocaine 3 or 4 times, so he did not consider himself a user. He deflected some questions, at one time stating that his memory was bad and at another time stating there was a difference between using and selling. When asked if he knew what crack was, he said, “I have an inkling”. The court did not consider his claims about infrequent drug usage to be credible.

h) The society made it clear to him and the mother that N.B. was not to spend overnights with them after she went to live with Y.B. on August 3, 2017. He and the mother breached this direction – N.B. was spending many nights at their home without the society’s knowledge. He testified that it was right to break society rules if he felt they weren’t best for N.B. 3.2 The mother [ 101 ] The mother was also not a reliable or credible witness. [ 102 ] What was particularly striking about this case was the volume of excuses the mother provided the society and the court about her actions.

These excuses fell into three categories. Some of them were legitimate and backed up by independent documentation. Some were clearly not plausible.

And most fell into a category of seeming plausible if looked at in isolation and if one were to give her the benefit of the doubt, but became far less plausible when looked at together with the sheer number of them. [ 103 ] These multiple excuses extended to multiple areas of concern, including N.B.’s frequent absences from school, breaking the society’s direction in 2017 that N.B. not stay overnight with her, her cancellation of multiple home visits, her erratic attendance at access, her passing out on a TTC bus in August, 2017 and her troubling presentation at many access visits . [ 104 ] N.B.’s poor school attendance was a good example of the mother providing multiple excuses.

Over the course of this case the mother has given the following excuses for N.B.’s attendance:

a) The mother was suffering from gallbladder pain and was having trouble getting up on some mornings. [14]

b) N.B. was anxious about attending a new school.

c) N.B. did not like her teacher.

d) N.B. was suffering from joint pain.

e) N.B. was suffering from severe headaches.

f) N.B. was frequently sick.

g) N.B. was up many nights and the mother didn’t want to wake her up many of those mornings to go to school.

h) The mother was frequently sick.

i) N.B. did not want to go to school.

j) Many of the absences were Y.B.’s fault.

k) The mother and M.M.’s father moved to a new area and it was hard to get to the new school. [ 105 ] The mother provided little medical evidence to back up her claims of N.B.’s illnesses. Much of what was provided in those reports was self-reported by the mother.

There was no medical evidence that a doctor told the mother to keep N.B. home from school. [ 106 ] N.B.’s poor school attendance extended over her attending two schools, making the excuses about distance and adjustment far less credible. [ 107 ] When M.M.’s father was asked why the mother was frequently late coming to court during the trial, he said that she takes a long time to get ready in the morning. N.B. also reported to society worker Tina Hatton that her mother didn’t pay attention to the time that N.B. went to bed.

These are more likely the reasons for N.B.’s dismal school attendance. [ 108 ] These absences had a significant impact on N.B. Her school marks were poor and she had several subjects marked as incomplete on her report card. [ 109 ] Once N.B. was placed with the kin caregivers, her school attendance was excellent. She has had no health problems (other than nosebleeds that were quickly cleared up). N.B. now loves school and has many friends there.

She is getting excellent marks – A’s and B’s. [ 110 ] This instant improvement informs the court that the mother’s blaming N.B.’s poor school attendance on N.B.’s health and dislike of school was not credible. [ 111 ] At times during the trial, the mother was able to give detailed and comprehensive evidence about events.

However, the court found that her evidence became much more evasive and imprecise (and, as noted above, contained multiple excuses ) when questioned about events that placed her in a bad light, such as her housing issues, reasons for missed visits, reasons for N.B. missing school and breaking the society’s direction for N.B. not to spend overnights with her after August 3, 2017. [ 112 ] There are several other reasons the court has found that the mother is not a credible or reliable witness, including: [15]

a) She failed to advise the society that she is living in a shelter. She claimed that she wanted to speak to the worker in May, 2019 about this but didn’t have a chance. The court does not find this believable. The mother claimed to have moved into the shelter on May 16, 2019, but at a visit on May 17, 2019, she asked the society worker to fax a letter to social assistance from her landlord confirming she had been living in the landlord’s residence since December, 2016 so she could get social assistance benefits. [16] She had plenty of opportunities to be forthcoming with the society. She knew that her lack of housing was problematic and hid this problem as long as possible.

b) In her May 27, 2019 trial affidavit, the mother used her old Thornhill address. The society did not learn where she was living until the trial started.

c) The mother has claimed social assistance as a single person since December, 2016. She did not report that she was together with M.M.’s father 90% of the time during this period, which would likely have reduced her payments. She went so far as providing social assistance with a separate North York address, even though she said at trial that she was primarily living with M.M.’s father in Thornhill until May 16, 2019.

d) The social assistance worker testified that the mother claimed that the children were with her every weekend. This permitted her to get extra funds. This information was false. The mother gave the excuse that this was a mix-up as this was old information in the file given to this new worker. However, the social assistance worker was very credible, saying that the mother gave her this information and she recorded it in her notes, in quotes.

e) The social worker from the hospital that the mother attended after the TTC incident on August 2, 2017 testified that the mother told her that she had no children and had no relationship with the father of the child she was pregnant with. The mother denied saying this to her. The court prefers the evidence of the social worker who had no reason to misrepresent this evidence.

f) It became clear to the court that the mother deliberately broke the society’s direction for N.B. to spend each night with Y.B. from August 3 to October 30, 2017. She hid this from the society. Her statement that she received permission for this from the society on October 4, 2017 was mentioned for the first time at trial and was not credible.

g) The mother testified that she had lost her paralegal licence and had been provided with no notice of the hearing. The law society tribunal decision was subsequently filed as an exhibit by the society and revealed a story very consistent with the pattern of events in this case. The decision sets out the following: (

i) The Law Society brought a Notice of Application on December 10, 2018 alleging misconduct by the mother. (ii) The mother had been administratively suspended for some time due to non-payment of fees.

(iii) On January 2, 2018, the Law Society received a complaint that the mother was providing legal services while under suspension. (iv) The Law Society investigator made multiple attempts to contact the mother at addresses she had provided. (

v) The investigator finally contacted the mother in July, 2018 and confirmed new home and email addresses for her. (vi) The mother scheduled three interviews with the investigator and cancelled each interview on the day of the interview, claiming a medical emergency. She offered to provide medical evidence and never did. (vii) On August 13, 2018, the investigator sent his seventh letter to the mother asking for her response to the complaint and medical evidence. This letter was returned unopened. (viii) The mother made no further efforts to contact the Law Society or advise it of her new contact information. (ix) The tribunal was satisfied that the mother was given notice of the hearing. (

x) The mother did not attend the hearing. (xi) The mother was found guilty of professional misconduct by failing to cooperate with the investigation and not advising it of her new address as required to do so by the Law Society Act . (xii) The mother’s licence was suspended for one month following the end of her administrative suspension. She was also fined.

h) It is highly unlikely that the mother was unaware of the Law Society hearing. On the day of the Law Society hearing, she arrived late for her access visit, advising family service worker Pamela Dawe that she was at Osgoode Hall all day at a hearing. It is highly unlikely that this was a coincidence.

i) The mother testified that she went to Osgoode Hall a day or two after the hearing to speak to the investigator and learned that the hearing had been held. The court finds it highly unlikely that she would not have followed through and obtained a copy of the decision once it was released. It is far more likely that she was well aware of the hearing and the result and hoped that the society and the court would not learn about this.

This conclusion is consistent with her pattern of deceit. 3.3 The society witnesses [ 113 ] While the court questioned some of the decisions made by the society workers, it generally found their evidence to be reliable and credible. [ 114 ] The society workers kept contemporaneous notes of events.

The court found that the workers readily admitted positive qualities of the mother and M.M.’s father and tried to directly answer questions to the best of their ability. [ 115 ] One area of concern with the evidence of the society workers was the notation by many of them of marks on the mother’s face and her picking at them. These observations started in the fall of 2018. The court asked one worker why so many workers were putting this observation in their affidavits. She stated it was because Y.B. had told her that the mother breaks out in this fashion when using drugs.

However, this wasn’t directly stated by any worker in their affidavits. It was unfair of these workers to try and create a specter of drug use by the mother without stating why they were making these observations. [ 116 ] The message the court wants to give is that the society should say what it means when presenting its evidence. It was disingenuous and not helpful to the court to present this evidence in this form. [ 117 ] The evidence of the non-society professional witnesses was given in a direct and fair manner. These workers had contemporaneous notes of their observations.

None of them were defensive or tried to over-state their evidence. They were confident in their observations. The court found the evidence of these witnesses to be both reliable and credible. [ 118 ] The kin caregiver S.B. and M.M.’s foster mother were excellent witnesses. Both answered questions directly and in a fair and balanced matter. Both had clear memories of important events in the children’s lives and expressed them clearly. Both showed a deep understanding of the children in their care and spoke about their issues in a kind and empathetic manner.

S.B. demonstrated that she was very aware of the importance of the mother and M.M.’s father for N.B. It was apparent to the court that she has worked very hard to foster that relationship. [ 119 ] The court treated the evidence of one society witness, the paternal aunt (L.B.), with considerable caution. It was apparent to the court that L.B. had a contemptuous view of the mother. She had reported protection concerns about the mother’s alleged alcohol and drug abuse to the society, but only after having an argument with her.

She did not report her concerns about the mother’s alleged long- standing drug and alcohol abuse to the society before then. She never reported her brother Y.B. to the society even though she acknowledged that he was an addict.

She has also acted inappropriately by recently calling M.M.’s father an ugly pig to N.B. and demeaning the mother in front of N.B. [ 120 ] With the exception of L.B., the court preferred the evidence of the society workers, professional witnesses, S.B. and M.M.’s foster mother when it conflicted with that of either the mother or M.M.’s father. [ 121 ] The court treated the evidence of the mother and M.M.’s father with extreme caution when it was not supported by independent evidence. Part Four – The finding in need of protection for M.M.

4.1 Legal considerations [122] The society seeks a finding that M.M. is in need of protection pursuant to subclause 74 (2) (b) (

i) of the Act. This subclausereads as 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 [123] The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm. [124] The risk of harm under clause 74 (2) (

b) of the Act must be real and likely, not speculative. The harm must be demonstrated bya serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River 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.). [125] 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. [126] 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 beunder control 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. 4.2 Analysis 4.2.1 Initial discussion [127] The evidence was overwhelming that M.M. has been a child in need of protection from the date she was born until today. [128] While the focus of the society’s protection concerns at the outset of M.M.’s protection application was about the mother’smisuse of prescription drugs, the mother and M.M.’s father’s inability to get N.B. to school and their lack of insight into the protectionconcerns, many more protection concerns emerged throughout the case related to their stability and functioning. These includedprotection concerns about:

a) The mother’s health issues which were adversely impacting her access.

b) The mother’s struggles to properly address her health issues.

c) Descriptions of the mother zoning out, falling asleep, swaying on her feet or looking “wobbly” at several access visits.

d) The many missed access visits of the mother and M.M.’s father, as well as late attendances.

e) The inability of the mother and M.M.’s father to keep most home visits scheduled with society workers.

f) The personal instability of the mother and M.M.’s father, related to their housing and employment.

g) The secrecy and the dishonesty of the mother and M.M.’s father.

h) M.M.’s father’s use of crack cocaine during the trial. [129] A lot of time was spent during this case over whether the mother was abusing drugs. The society believes that she has beenabusing prescription medication. The mother vehemently denies this has been the case. [130] However, it is unnecessary for the court to determine this issue to find M.M. to be a child in need of protection. [131] It became apparent to the court during the trial that the dominant theme in this case is that the mother and M.M.’s father havebeen unable to sufficiently function in a manner where they could adequately parent a child.

They are unable to provide the minimumamount of stability, consistency and reliability that a child needs from a parent. This has placed and continues to place both children atrisk of neglect and both physical and emotional harm. [132] While the mother, and in particular, M.M.’s father, have made gains in their parenting skills during access visits, their ability tofunction has not improved. Rather, it seriously declined in the months up to and including the trial.

[ 133 ] The evidence also showed that the mother and M.M.’s father continue to have little insight into the protection concerns and that they have taken minimal steps to address them. 4.2.2 Neglect of N.B. [ 134 ] N.B. was a neglected child. Her school attendance was terrible for a long period of time. The mother and M.M.’s father could not sufficiently function to get her to school on time, or at all. N.B. suffered academically. She missed opportunities for socialization. The court finds that she primarily missed school due to the neglect of the mother and M.M.’s father, not due to her own issues.

Her instant turnaround in school attendance and performance and the absence of the medical issues described by the mother, once she started to live with the kin caregivers, support this conclusion. [ 135 ] The mother also neglected to give N.B. any of her vaccinations after she was 18 months old. The mother explained that she was worried about anti-vaccination articles.

She said that she knows these articles have been “debunked”, but could not explain why she didn’t start the vaccinations once she learned this. [ 136 ] On October 2, 2018, the mother and M.M.’s father agreed to a finding that N.B. was a child in need of protection due to a risk of emotional harm.

It is hard to believe that M.M., a vulnerable infant, would not similarly have been at risk of harm at that time. 4.2.3 – The TTC incident [ 137 ] On August 2, 2017, the mother passed out on a TTC bus. [ 138 ] The mother explained that she fainted due to being pregnant, walking around all day and because of the severe heat. [ 139 ] The evidence was clear that the mother didn’t just faint. The paramedic who testified stated that the mother was unresponsive for the 52 minutes he was involved in the matter.

He testified that he gave her a needle for an IV and did compression on her with his knuckle and she still did not respond. He indicated that she had sluggish pupils. The fire department showed him empty prescription bottles for painkillers, although he did not note the date on the bottles. He said that in his 29-years-experience as a paramedic he had never seen somebody faint for that period of time. [ 140 ] The mother gave different explanations to several society workers about this incident.

She told one worker that she had likely taken two extra painkiller pills accidentally, she told another worker that she had taken one or two pills and she told a third worker that she had taken just one pill. [ 141 ] At trial, the mother claimed that she was just giving hypothetical explanations to these workers. None of these workers said that the mother had provided them with this qualification. [ 142 ] The society, in submissions, pointed out that this incident paralleled the mother’s explanation for why N.B. tested positive for drugs at birth.

On that occasion, the mother also said that she might have accidentally taken prescription medication. [ 143 ] The court finds it more probable than not that the mother took one or two additional prescription painkiller pills on August 2, 2017.

It may very well be that other factors, such as the mother’s pregnancy and the heat contributed to this incident, but the court finds that the mother taking additional prescription pills was a significant contributor to this serious incident. [ 144 ] This incident created a protection concern about the mother’s ability to take care of herself, let alone a child. 4.2.4 The mother and M.M.’s father’s health issues and struggles in addressing them [ 145 ] Health issues on their own are not usually a protection concern.

Parents can have periods where their health issues temporarily impair their parenting, but they either recover or adapt to the illness, so that they are able to adequately parent.

Often, the parent obtains supports to assist them to parent the child. [ 146 ] However, when the parent’s health issues are part of a constellation of factors that are indicative that a parent cannot adequately function as a parent, then they are very relevant – particularly when they appear to be chronic and inadequately managed. [ 147 ] The mother has been in poor health since at least 2017. [17] [ 148 ] The mother was in frequent pain with her gallbladder issues during 2017 and early 2018 and was often admitted to emergency departments. This was exacerbated in 2017 by her pregnancy.

The mother chose not to have surgery due to risks to the child and was prescribed painkillers to be used on occasion. [ 149 ] The mother was advised by one doctor in 2017 to see someone for consistent pain management, but she did not follow up on this. [ 150 ] The mother had a C-section for M.M. in December, 2017 and described complications after that surgery. [ 151 ] The mother had her gallbladder surgery in May, 2018. [ 152 ] The mother also described an array of ailments she has had over the past two years, including frequent viruses, pneumonia, bronchitis, a concussion, dehydration and eye infections. [ 153 ] On June 6, 2019, the mother was diagnosed with the MRSA virus. [ 154 ] The mother also testified that she has had vision issues.

She attributes the society’s observations about her closing her eyes on visits and being unable to focus at times on problems with her contact lenses. She has been telling society workers since November,

2018 that she intends to get new contacts and that new glasses are on the way, but this still hasn’t happened. The mother gave confusing testimony about this issue, talking at length about changing prescriptions. [ 155 ] During the trial, the mother discussed the trauma she has suffered in her life. She described how her father was persecuted in Ukraine and how her family lived in fear. She discussed her abuse by Y.B. She talked about how she was diagnosed with depression and anxiety prior to N.B.’s birth and treated with prescription medication.

During the trial, she talked about how anxious this proceeding has made her. At one point during her testimony, the mother slumped in the witness stand and became unresponsive to questions. The case was adjourned for the day. The explanation given was that the mother had a panic attack. [ 156 ] The mother is not being treated for her anxiety although she claims she is on a waiting list to see someone.

The society offered to make a referral for trauma counseling for her in 2018, but the mother does not trust the society and did not follow up. [ 157 ] M.M.’s father has also used illness as a frequent excuse to miss access. He also used illness as a reason that he missed the first two days of trial. [ 158 ] M.M.’s father was cancelling his visits from May 23, 2019 due to illness and twice told the worker he was going to the hospital, but didn’t do this. He finally went to the hospital on June 4, 2019 and was diagnosed with the MRSA virus.

He was told to bring in the mother right away for testing, but she didn’t come in for testing until June 6, 2019 and she too, apparently tested positive for this virus. [ 159 ] M.M.’s father attended at court on June 5 and 6 and told no one that he had this infectious virus. On June 7, 2019, the mother provided this information to counsel.

The trial date was adjourned so that further information could be obtained as to whether the presence of the mother and M.M.’s father posed a health and safety risk to the public. [18] [ 160 ] The mother and M.M.’s father withdrew their consent for the society to obtain their medical records and opposed a mid-trial oral motion that day for production of them.

The records ordered by the court revealed that M.M.’s father had been taking crack cocaine on the first day of trial that he did not attend. [ 161 ] M.M.’s father’s mishandling of his medical issue gives the court no confidence that he could adequately make responsible medical judgments for M.M. and this puts her at risk of physical harm. 4.2.5 The mother’s functioning at access visits [ 162 ] For the most part, the mother has had very good access visits with the children.

However, a theme through this case has been how the mother has appeared at many visits. [ 163 ] The mother has often been described as “zoning out” for periods of time and staring blankly ahead. She has been observed as struggling to stay awake and keeping her eyes open at some visits and at times has been observed as being unsteady on her feet. She has been observed on occasions as being hyper, talking quickly and incomprehensibly and moving about the access room without purpose. She has been observed slurring her words. Several society workers expressed their belief that she has attended access impaired.

The society supervisor testified that the mother has patterns of high energy followed by sleepiness. These types of observations have been made by multiple workers over a period of time – increasing in frequency in 2019. [19] [ 164 ] S.B., the kin caregiver, described how on April 6, 2019, N.B. called the mother at 8:50 a.m. on a Saturday morning. S.B. monitors these calls. She described how the mother fell asleep during the call and started snoring. The mother did not deny this incident.

She said that she was very tired, having been up much of the night. [ 165 ] M.M.’s father testified that sometimes the mother is unfocused and assured the court that he will not leave her alone with M.M. if she is unwell. [ 166 ] The mother has given various explanations for this behaviour. She says that she has long trips by transit to come to the society office for visits, has sometimes worked the night before and she will be tired. She blamed much of her presentation on her problems with her contact lenses – but hasn’t dealt with this problem.

The mother said that on one occasion she was swaying with M.M. in her arms because she was so happy, not because she was nodding off. Maybe. The worker certainly didn’t think that was the case. The mother says that she has always mumbled. The court observed that this was the mother’s natural speaking style. However, the court is more concerned with the fact that the workers described the mother’s hyperactivity at these visits as being out of character with her character at other visits. [ 167 ] Many of these observations of the mother were apparent during the trial.

At times the mother would appear to fade out and we needed to take frequent breaks. One day had to be ended early as it was reported that the mother had fainted in the court hallway. There was the other occasion when the mother became unresponsive in the witness stand and court had to be adjourned. At other times the mother would become restless and bustle about the courtroom. [ 168 ] The society believed that this behaviour by the mother was evidence of prescription drug misuse. Perhaps this is the case – it is unnecessary to decide this.

There may be other explanations for this behaviour, including a combination of physical and mental health issues. What the court is concerned about is the behaviours themselves and the risk they could pose for M.M. The court does not think that the mother would ever deliberately hurt M.M., but this is strong evidence that M.M. is at physical risk of harm if the mother is in this condition while parenting her alone. 4.2.6 The inconsistent access visits [ 169 ] The poor functioning of the mother and M.M.’s father has resulted in many periods of inconsistent attendance at access visits.

Many visits have been missed and they have often been late.

[ 170 ] The mother and M.M.’s father were told at the outset of the TAP program that this would be an opportunity for them to show that they could consistently attend access visits on time. They were told that this was an important factor in determining if they could provide the children with the stability, consistency and reliability that they needed. [ 171 ] Despite knowing how important this factor was, the mother and M.M.’s father missed almost one-third of the scheduled visits. As with other aspects of this case, multiple excuses were provided by them.

Their inconsistent access was a significant factor in the termination of their participation in this program in October, 2018. [20] On October 2, 2018, Justice Spence ordered that the mother had to confirm whether or not she was attending her access visit the day before because of her inconsistent attendance. [ 172 ] The attendance of the mother and M.M.’s father improved after the TAP ended, although there were still missed visits and the mother in particular would sometimes be late. [ 173 ] However, their attendance began to decline again in April, 2019.

They explained that some visits were missed due to a friend’s emergency and they went to Ottawa for a week – a puzzling choice given that the trial was approaching. [ 174 ] The mother and M.M.’s father then started missing a number of visits starting in mid-May, 2019.

M.M.’s father had not seen M.M. since May 16, 2019. [ 175 ] The missed visits coincided with the instability in the housing issues of the mother and M.M.’s father. [ 176 ] On May 22, 2019, the society instituted a new policy that the mother had to attend 45 minutes early for visits with N.B., as N.B. was coming to visits and when the mother did not attend, it was difficult to get a driver to take her back to school.

This now means that the mother has to attend at the society office before N.B. is taken out of school and brought to the office. [ 177 ] It is very troubling to the court that with so much at stake for the mother and M.M.’s father that in the time leading up to the trial the mother and M.M.’s father struggled in this area. [ 178 ] Also concerning is that M.M.’s father chose not to attend many visits when the mother was ill, despite being given the opportunity. He explained that the mother needed him more.

It leaves the court to wonder if he will make the mother or M.M. his priority. 4.2.7 The home visits and review meetings [ 179 ] The society needed to conduct home visits to determine if the mother and M.M.’s father could provide a safe and suitable home for the children. [ 180 ] The evidence established that the mother and M.M.’s father have actively avoided the society’s attempts to see their home. [ 181 ] The intake worker described in detail how the mother continually cancelled home visits during 2017. The mother would frequently cancel on the day of the visits.

Home visits were cancelled by the mother on February 23, March 2, April 5, May 26 and 29 of 2017. The mother only kept one scheduled home visit – on June 27, 2017. The society was also able to meet the mother on one unscheduled home visit on June 12, 2017. [ 182 ] The intake worker also had difficulty contacting the mother as the mother’s phone was often out of service. [ 183 ] The present family service worker also testified about how the mother and M.M.’s father have avoided multiple home visits despite her persistent attempts and her emphasis to them of their importance.

She has only been able to have three home visits since she took over the file in August, 2018. She testified that at the last home visit on March 1, 2019, their home was a mess. M.M.’s father’s response was, “why would she assume that is where we planned to live?” [ 184 ] The mother merely testified that she always had a good excuse to cancel these visits. [ 185 ] The court draws an adverse inference from the mother and M.M.’s father’s avoidant behaviour. It is apparent that they didn’t want to show their home to the society.

It is also likely that they didn’t want the society to know about their living arrangements in much of 2019. [ 186 ] It was interesting to observe how the society worker’s experience in dealing with the mother in this area mirrored the experience of the Law Society investigator. [ 187 ] The evidence shows that the mother has a clear pattern of avoidance and disorganization. This increases the risk of harm to M.M. [ 188 ] M.M.’s father also missed important review meetings scheduled with the society to discuss his plan of care.

He externalized responsibility for missing these meetings by claiming it was the society’s job to send him a reminder of the meetings. When informed that the society worker had left him a voicemail reminder for one meeting, he responded, “she knows I don’t check my voicemail”. 4.2.8 Unstable housing and employment [ 189 ] The poor functioning of the mother and M.M.’s father is reflected in their employment and housing struggles. [ 190 ] The mother has lost her paralegal licence. It is unclear how much, if at all, M.M.’s father has been working.

He said that he quit his job at the end of 2018 that was paying him over $100,000 per year prior to society involvement. [21]

[ 191 ] The mother and M.M.’s father lost their housing after a dispute with their landlord in August, 2018. M.M.’s father lived in a truck during the rest of 2018, the mother in a shelter. [ 192 ] The housing situation of the mother and M.M.’s father has been unclear in 2019 and they actively tried to keep the society from learning what it was. They say they were together, but they kept separate addresses and reported separate addresses to social assistance. They left the Thornhill home after another dispute with a landlord and gave contradictory evidence as to when this happened.

They are now living in a shelter. [ 193 ] The mother and M.M.’s father have been secretive and deceitful in their dealings with the society. How can the society or the court have confidence in their parenting abilities when they are evasive, deceitful and untruthful about such matters as their health, employment, M.M.’s father’s drug use and their housing? [ 194 ] The court wants to emphasize that poverty by itself is not a protection concern.

However, the main protection concern in this case is the poor overall functioning of the mother and M.M.’s father and their resultant inability to provide the children with the minimum amount of stability, consistency and reliability that they require. The housing and employment issues are amongst the many indicia of this poor functioning. 4.2.9 M.M.’s father’s crack cocaine use [ 195 ] The use of drugs will usually not be a protection concern unless there is some link to the parent’s parenting. See: Catholic Children’s Aid Society of Toronto v. A.V., [2010] O.J.

No. 5835 (OCJ) ; Children’s Aid Society of Toronto v. T.L., 2018 ONCJ 691 . [ 196 ] M.M.’s father adamantly denied throughout this case that he ever uses drugs. [ 197 ] That statement was proven false with the production of his hospital records from June 4, 2019. [ 198 ] The court does not believe M.M.’s father’s evidence that he has only tried cocaine 3 or 4 times.

He never stated this before and it appeared to be a poor attempt to control the damage of him being caught using drugs. [ 199 ] It also stretches credulity that the mother, who was with M.M.’s father on June 3, 2019, was unaware of his drug use – particularly since the court does not find the mother to be a credible witness. [ 200 ] What is jarring about this evidence is that M.M.’s father was taking crack cocaine instead of coming to court on the first day of trial.

How can he possibly expect the court to find that he can meet M.M.’s needs when he acts in this manner? [ 201 ] When M.M.’s father did not attend at court on one of the most important days of his child’s life – the start of the trial to determine her future home, and instead was home taking crack cocaine, there was a direct link between his drug use and parenting. 4.2.10 – The mother and M.M.’s father’s attendance at court [ 202 ] Another indicator of the poor functioning of the mother and M.M.’s father was their erratic court attendance. [ 203 ] Neither the mother nor M.M.’s father attended court on the first day of trial or contacted anyone to say that they couldn’t attend.

The mother said she was sick and slept in and only woke up at 1 p.m. – again, on what should have been one of the most important days of her children’s lives. [ 204 ] M.M.’s father did not attend the second day of the trial. He did not contact anyone.

The mother came to court 35 minutes late. [ 205 ] On the third day of trial, the mother and M.M.’s father both arrived 75 minutes late. [ 206 ] On occasion during the trial, M.M.’s father would arrive at court on time and the mother came later. [ 207 ] The court attendance of the mother and M.M.’s father improved as the trial went on, although they were late again on the final day of trial. [ 208 ] During the trial, the court constantly emphasized to the mother and M.M.’s father the importance of coming on time. Despite knowing how important this was, they still could not consistently come on time.

Combined with the other risk concerns, this was very informative to the court.

If they can’t even get to court with everything at stake, how will they be able to get M.M. to school, medical appointments and to any of her activities? [ 209 ] The risk of M.M. suffering the same instability experienced by N.B., particularly the neglect of her schooling needs, remains just as high today, if not higher, than on the day she came into society care. 4.2.11 – Conclusion on finding for M.M. [ 210 ] For the numerous reasons set out above, the court finds that M.M. is a child in a need of protection pursuant to subclause 74 (2) (b) (

i) of the Act . [ 211 ] Also for these reasons, if the request had been made, the court would have found M.M. to be a child in need of protection pursuant to clause 74 (2) (

h) of the Act (risk of emotional harm). Part Five – Disposition – legal considerations [ 212 ] 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.

[ 213 ] 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 . [ 214 ] 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 . [ 215 ] 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 . [ 216 ] 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

section 102 of the Act in the child’s best interests. These 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. [ 217 ] The mother is seeking an alternative disposition of an extension order for an interim society care order under subsection 122 (5) of the Act for M.M.

Section 122 of the Act sets out the time limit for making an interim society care order. It reads as follows: Expiry of Orders Time limit 122

(1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding, (a) 12 months, if the child is younger than 6 on the day the court makes the order; or (b) 24 months, if the child is 6 or older on the day the court makes the order. Calculation of time limit

(2) The time during which a child has been in a society’s care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1): 1. An agreement made under subsection 75 (1) (temporary care agreement). 2. A temporary order made under clause 94 (2) (d) (custody during adjournment). Previous periods to be counted

(3) The period referred to in subsection (1) shall include any previous periods that the child was in a society’s care and custody under an interim society care order made under paragraph 2 of subsection 101 (1) or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society’s care and custody. Deemed extension of time limit

(4) Where the period referred to in subsection (1) or (5) expires and, (

a) an appeal of an order made under subsection 101 (1) has been commenced and is not yet finally disposed of; or (

b) the court has adjourned a hearing under

section 114 (status review), the period is deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under

section 114, as the case may be. Six-month extension

(5) Subject to paragraphs 2 and 4 of subsection 101 (1) , the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so. [ 218 ]

Section 122 is relevant for M.M., as she has now been in care for almost 19 months – beyond the 12-month time limit for a child under 6 years of age.

Section 122 does not apply to N.B. as she is not in society care. [ 219 ] There is conflicting case law as to whether the court has jurisdiction under subsection 122 (5) of the Act to extend an order for a child to remain in the interim care of the society for more than 6 months in excess of the statutory limits set out in subsection 122 (1) . [22] It is unnecessary for the court to review this conflicting law as the evidence does not come anywhere close to supporting a finding that an extension order is in M.M.’s best interests – even with the most liberal

interpretation of subsection 122 (5). [ 220 ] 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 . [ 221 ] 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. [ 222 ] 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. [ 223 ] 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 be ascertained; (

b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations 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 of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (

x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[224] 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. [225] 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). [226] 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.). [227] 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 protection order required to protect the children in the future? [228] Subsect

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