Windsor-Essex Children’s Aid Society v. T.B., 2012 ONCJ 588

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

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., 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.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT FILE No.: FO-05-0000454-0002 DATE: 2012-03-14 Citation: Windsor-Essex Children’s Aid Society v. T.B. , 2012 ONCJ 588 ONTARIO COURT OF JUSTICE BETWEEN: WINDSOR – ESSEX CHILDREN’S AID SOCIETY Applicant — AND — T.B., M.D., and D.D. Respondents Before the Honourable Justice Barry M.

Tobin Heard on June 6 - 9, August 23, September 19 - 23, 26, 27, October 18, 26, November 14 - 16, 2011 and January 3 - 6, 2012

Mark L. Hurley ..................................................................................... counsel for the applicant Michael Frank ............................................................................ counsel for the respondent T.B. J. J. Avery ................................................................................... counsel for the respondent M.D. Gerri L.

Wong .......................................................................... counsel for the Children’s Lawyer legal representative for the children TOBIN J.: REASONS FOR JUDGMENT [ 1 ] This is a Protection Application brought by the Society in respect of four children. [ 2 ] The children were found in need of protection under subclause 37(2)(b)(

i) and clause 37(2)(

i) of the Child and Family Services Act by Phillips J. on October 22, 2010. [ 3 ] The issue before the Court on this hearing is the appropriate disposition. [ 4 ] The issue, as framed by Counsel, is whether the older two of the four children should remain in the care of their mother subject to a supervision order or be separated from their siblings and be placed in the care of their father under a custody order. 1. THE RESPONDENTS: [ 5 ] The respondent T.B. “Ms. T.B.” is the mother of four children: H.S.D. born […], 2001 (age 10), J.P.D. born […], 2003 (age 8), D.M.D.

Jr. born […], 2006 (age 5), and L.M.D. born […], 2008 (age 3). [ 6 ] The respondent M.D. “Mr. M.D.” is the father of H.S.D. and J.P.D.. [ 7 ] The respondent D.D. “Mr. D.D.” is the father of D.M.D. Jr. and L.M.D.. He did not participate in this hearing. 2. POSITION OF THE PARTIES : [ 8 ] The Society filed a Plan of Care dated January 27, 2011 in which it sought an order placing the four children in the care of Ms. T.B. subject to supervision by the Society for a period of six months and subject to terms and conditions under

section 57 of the Child and Family Services Act. At the end of the hearing the Society asked that the term be 12 months. [ 9 ] The Society submits that the children continue to be in need of protection while in the care of Ms. T.B. but the risk to them can be protected against with terms of supervision. [ 10 ] The Society’s position is supported by Ms. T.B. and Counsel for the Children’s Lawyer. [ 11 ] Mr. M.D. asks for an order placing the children in his custody under

section 57.1 of the Child and Family Services Act . [ 12 ] Mr. M.D. argues that Ms. T.B.’s care of the children is so wanting that no terms of supervision will protect H.S.D. and J.P.D. from the risks she poses to them. Further he argues the Society’s supervision has been incompetent, to such an extent that it cannot be trusted to ensure the protection of the children while in Ms. T.B.’s care. The only order that will protect the children and be in their best interests is to place them in Mr. M.D.’s custody without any Society involvement. [ 13 ] By reason of Mr.

M.D.’s position the history of the Society’s participation with this family must be considered. 3. FACTS: 3.1 Custody proceeding and first child protection application [ 14 ] Mr. M.D. and Ms. T.B. started living together in 1999. They separated in April, 2003 while Ms. T.B. was pregnant with J.P.D.. [ 15 ] H.S.D. remained in Ms. T.B.’s care following the separation as did J.P.D. following his birth. [ 16 ] It was not until 2005 that Mr. M.D. started proceedings in the Superior Court of Justice seeking custody of the children. Ms. T.B. resisted that claim on the basis that Mr.

M.D. was violent towards her. [ 17 ] Within that proceeding, a temporary order was granted, which provided Mr. M.D. would have supervised access to the children. The children remained in the care of Ms. T.B..

[ 18 ] Later that year (2005) the Society started a Child Protection Application. [ 19 ] In the Child Protection case a final order was made by Bondy J. on November 26, 2006. The Court made a finding that the children were in need of protection based on a Statement of Agreed Facts that was filed. The basis of the finding made by Bondy J. were the “historical allegations of violent behaviour by Mr. M.D., ongoing incidents of domestic violence, resulting instability by [Ms. T.B.], inadequate parenting and inappropriate use of babysitters.” [ 20 ] The children remained in Ms. T.B.’s care subject to supervision. Mr.

M.D.’s access to the children was enlarged and eventually became unsupervised in that Child Protection Application. 3.2 First Status Review Application [ 21 ] Justice Bondy's Order of November 26, 2006 was the subject of a Status Review Application. In the fall of 2007 the Society, Ms. T.B., Mr. M.D. and Counsel for the Children’s Lawyer signed a Statement of Agreed Facts in that Status Review Application.

The parties sought termination of the supervision order. [ 22 ] In the Statement of Agreed Facts filed in connection with the request for the termination of the supervision order the following paragraph was included: “Paragraph 13: Although the Society continued to receive referrals throughout the course of the November 27, 2006 Order of The Honourable Madam Justice S. S. Bondy from the respondent father and his family, each and every time the Society conducted its investigation into the nature of these referrals, the claims have been unsubstantiated.

It is the Society’s position that this is a custody and access dispute as between the respondent parents as opposed to a child protection matter.” [ 23 ] The termination Order was granted on October 9, 2007. One week before the supervision order was terminated Ms. T.B. entered into a voluntary contract with the Society for a term of five months.

That contract expired on March 10, 2008. [ 24 ] Following the termination Order being granted on October 9, 2007 the Society was again engaged with this family from time to time as a result of various allegations including allegations made by each parent against the other. 3.3 Society assigns Shannon Clarke as family services worker: March 2008-September 2008 [ 25 ] The Society became involved again with Ms. T.B. and the children following a referral made on April 1, 2008.

This was approximately three weeks after the voluntary services agreement referred to above expired. [ 26 ] The child protection worker assigned to this matter was Shannon Clarke. [ 27 ] She investigated the April 1, 2008 referral and prepared an Ontario Safety Assessment Report on April 4, 2008. This report was approved by her Supervisor, Marilyn Dinham on April 9, 2008. The risk factors identified were; the possibility of Ms. T.B. suffering from depression, domestic violence between Ms. T.B. and Mr. D.D., Ms. T.B. punishing the children for speaking with society workers and inappropriate discipline strategies.

The Safety Assessment concluded that the children were “expected to remain at home with [Ms. T.B.’s] co-operation with the Society, more frequent visits and possible legal intervention, a safety plan to address the identified risks was developed by the Society.” Ms. T.B. agreed to the safety plan. [ 28 ] Ms. T.B.’s position regarding the investigation was that she denied the use of physical punishment by Mr. D.D. or her but agreed to refrain from its use. She acknowledged arguments occurred between Mr. D.D. and her but denied any domestic violence. She agreed not to fight with Mr.

D.D. in front of the children and that she would contact Hiatus House (a shelter) if Mr. D.D. presented as abusive. [ 29 ] Ms. Clarke and Ms. T.B. did not have a positive relationship as family services worker and client. Ms. T.B. did not trust Ms. Clarke. Ms. Clarke viewed Ms. T.B. as unco-operative, evasive, manipulative and a liar. [ 30 ] Ms. Clarke did not have a positive relationship with her Supervisor, Ms. Dinham. According to Ms. Clarke, Ms. Dinham would not pursue more intrusive options to protect Ms. T.B.’s children. Her evidence was that Ms.

Dinahm’s instructions were to implement a safety plan even when she reported to her that Ms. T.B. and Mr. D.D. refused to work co-operatively with her. [ 31 ] Ms. Dinham was called as a witness by Mr. M.D.. She has been a supervisor in Family Services for 11 years. She supervises Family Services Workers who deal mainly with child protection files. Ms. Dinham has had responsibility as supervisor of the Society's file concerning the T.B. and D. family since 2006. [ 32 ] Ms.

Dinham testified that she did not know how many safety plans had been put into place during the period of time she had responsibility as a supervisor for the file. She stated that the Society prepares safety plans all the time. They are designed to reduce risk to the children in the home by providing education and direction to the parent. For Ms.

T.B. the Society wanted to ensure that there was no physical discipline of the children, that she would engage in a Fresh Start Programme (counselling regarding domestic violence) and should argument arise at home to walk away until the emotional level decreased. [ 33 ] On April 17, 2008 the Society was sufficiently concerned with the risk to the children in the home that it contemplated seeking a supervision order. After seeking legal advice the Society decided not to bring a child protection application seeking a supervision order. That same day Ms.

T.B. signed a voluntary services agreement with the Society. [ 34 ] In the spring of 2008 Ms. T.B.’s home was damaged by fire. The fire started in the home of a neighbour and it spread to and rendered her home uninhabitable. Mr. M.D. and Ms. T.B. agreed that H.S.D. and J.P.D. would stay with Mr. M.D. following the fire. They did so for approximately ten days.

[ 35 ] Mr. M.D. did not take any steps to pursue his custody application in the Superior Court of Justice following the termination of the supervision order. Eventually, Ms. T.B.’s counsel did on her behalf. A case conference was conducted by Master Pope on June 17, 2008. At that time a Consent Order was made which allowed Mr. M.D. access to the children on alternate weekends from Friday evening until Monday morning as well as other times agreed upon by them. [ 36 ] During the summer of 2008 Ms. T.B. and Mr. M.D. agreed that access could be extended. H.S.D. and J.P.D. stayed with Mr.

M.D. from July 11, 2008 until August 12, 2008. During this time Ms. T.B. went first to St. Thomas and then to Toronto to assist her brother and his partner. The partner was experiencing a difficult pregnancy and following the child’s birth was required to stay for a two week period at the Hospital for Sick Children in Toronto. [ 37 ] Any spirit of co-operation that may have existed between the parents that spring ended when Ms. T.B. attempted to have the children returned to her on August 12, 2008. Mr. M.D. refused to return the children alleging that Ms.

T.B. had abandoned them. [ 38 ] On August 15, 2008 an Order was made in the custody proceeding by Gates J. continuing the residence and access regime that had been in place, that is, H.S.D. and J.P.D. were to reside with Ms. T.B. and have access with their father on alternate weekends and at other times as agreed upon. [ 39 ] In September 2008 Ms. Clarke took a leave from her employment with the Society due in part to the stress created “by the work atmosphere under Marilyn Dinham.” [ 40 ] The cross examination of Ms.

Clarke revealed that she had not reviewed the Society’s entire file concerning this family in sometime. She was able to review her case notes in preparation for the hearing. Accordingly, she was not able to speak to details of events that occurred during her involvement with this family from March 2008 until September 2008. 3.4 Society assigns Karen Stecher as family services worker: September 2008 [ 41 ] Karen Stecher became the Family Services Worker responsible for the T.B./D. family on September 23, 2008. When she took over the case, the concerns identified at that time were domestic violence between Ms.

T.B. and Mr. D.D., inappropriate discipline of the children and the ongoing custody dispute concerning H.S.D. and J.P.D.. [ 42 ] Mr. M.D. made it clear to Ms. Stecher that he did not want to have any contact with her. [ 43 ] Ms. T.B. was co-operative with Ms. Stecher. She allowed her in her home and posed no problems allowing her to see the children. She also met with Mr. D.D. at one time and found him to be co-operative.

During the period of time she had responsibility for this matter – from September 2008 to June 2010 - she conducted eighteen unannounced visits and twenty scheduled visits. [ 44 ] The ability of Mr. M.D. and Ms. T.B. to arrange for access and access exchanges continued to deteriorate through the fall of 2008 and into the early months of 2009. [ 45 ] During this period Mr. M.D. exercised access on an inconsistent basis. Access visits were cancelled by him on occasion. Ms. T.B. describes Mr.

M.D. as yelling and swearing at her when they attempted to make access arrangements, one time this occurred in front of H.S.D. and L.M.D.. [ 46 ] In January, 2009 Ms. Stecher received a report from Ms. T.B. that during an access exchange Mr. M.D. pushed her down a stairway at his home. Ms. Stecher contacted Mr. M.D. as part of her investigation of Ms. T.B.’s allegation. Mr. M.D. refused to allow Ms. Stecher to attend at his home. He refused to meet with her. Following the report of that incident, the only time Ms. Stecher saw Mr. M.D. was when he and she both attended court in connection with this case.

Even in that setting Mr. M.D. asked that Ms. Stecher not speak with him. [ 47 ] At the end of an access visit that did occur in late January, 2009 Mr. M.D. refused to return H.S.D. and J.P.D. to Ms. T.B.. The police were called but would not assist Ms. T.B. in having the children returned without a court order. [ 48 ] On January 26, 2009 another order was made in the custody proceedings by Patterson J. requiring the children to be returned to Ms. T.B.’s care. [ 49 ] On January 30, 2009 Mr. D.D. was charged with first degree murder and possession of a concealed weapon on January 30, 2009. Mr.

D.D. has remained in custody and the trial of these criminal charges was ongoing in the Superior Court of Justice while this hearing was undertaken. [ 50 ] Again, on February 9, 2009 Mr. M.D. took matters into his own hands and refused to return the children to Ms. T.B.. The next day the children were returned to her with the assistance of the police and the Society. 3.5 The apprehension [ 51 ] Ms.

T.B. was arrested on February 12, 2009 after being charged with mischief, breach of court order, fraud and “conspiracy of trafficking.” The children were apprehended from her that day. [ 52 ] The Society started this child protection application on February 17, 2009. [ 53 ] Ms. T.B. was released very shortly after her arrest and the charges against her were subsequently withdrawn. 3.6 Temporary care and custody motion [ 54 ] The temporary care and custody hearing was argued before Phillips J. on March 10, 2009.

It was ordered on that date, that pending trial or further order of the court the four children were to be returned to the care of Ms. T.B. subject to terms of

supervision. Though Mr. M.D. and his counsel appeared on the hearing no order for access by him to the children was made that day. [ 55 ] The children have remained in Ms. T.B.’s care since that date subject to the terms of supervision. In oral reasons delivered on the temporary care and custody motion, Justice Phillips took great care in explaining to Ms. T.B. and Mr. M.D. that the proceeding before him was not part of the then long outstanding custody proceeding taking place in the Superior Court of Justice under the Children’s Law Reform Act.

He explained that the case before him was under the Child and Family Services Act and that the contest was between the Society and “the parent from whom the children were taken.” It was not a contest between the parents of H.S.D. and J.P.D. for the purpose of deciding on the basis of best interests who should be the custodial parent. [ 56 ] The next day, March 11, 2009 Mr. M.D. signed his Answer and Plan of Care in which he sought custody of H.S.D. and J.P.D. pursuant to

section 57.1 of the Child and Family Services Act. The case then became one where the custody of H.S.D. and J.P.D. was an issue. Also on March 11, 2009 the issue of Mr. M.D.’s access to the children was adjourned to March 24, 2009. Mr. M.D. appealed from the Order of Phillips J. dated March 10, 2009. That Appeal was subsequently dismissed. Mr. M.D.’s access was dealt with by Justice Phillips by Order dated August 13, 2009. The matter of Mr.

M.D.’s access with the children will be dealt with below in these Reasons. 3.7 The finding that the children are in need of protection [ 57 ] It has taken a considerable amount of time for this case to be heard. [ 58 ] The parties appeared before the case management judge approximately 21 times after the temporary care and custody order was made on March 10, 2009. The issues addressed dealt primarily with disclosure and Mr. M.D.’s access. The issues in this case were also the subject of an appeal and a judicial review application both brought by Mr.

M.D. and both were unsuccessful. [ 59 ] A parenting capacity assessment was undertaken. [ 60 ] On October 22, 2010 Justice Phillips made a finding that the children were in need of protection pursuant to subclause 37(2)(b)(

i) and clause 37(2)(

i) of the Child and Family Services Act. This finding was made following argument on a

summary judgment motion brought by the Society. In Justice Phillips’ Ruling on Motion the following reasons were given for the finding being made: “[10] The Society seeks a protection finding having to do with the children. [11] The evidence offered by the moving party Society having to do with the issue of a protection focuses on historical circumstances and court determinations and the circumstances at the time of the apprehension February 12, 2009. [12] The mother and M.D. were the subject of prior Child and Family Services Act litigation resulting in a protection finding and disposition order.

The facts supporting the finding reflected “…historical allegations of violent behaviour by Mr.

M.D., ongoing incidents of domestic violence, resulting in instability by the children’s mother, inadequate parenting and inappropriate use of babysitters.” [13] The Society also relies upon evidence in support of the request for a protection finding on evidence of the respondent mother’s drug use. [14] The Society relies on evidence that suggests the possibility of risk to the children based on the respondent mother’s relationship with the second male respondent, D.D.. [15] In so far as the final area upon which the Society relies for facts supporting the finding, the focus is on the circumstances of the apprehension of the children February 12, 2009.

The respondent mother, T.B., was arrested on February 12, 2009 and was held in custody for a period of time. The children were apprehended. [20] The test on a

summary judgment motion is whether there is a genuine issue for trial. Having regard for the whole of the evidentiary review undertaken, there is no genuine issue for trial. There is sufficient evidence on the balance of probabilities to make a finding that the children are in need of protection based on the provisions of s. 37(2)(b)(i). The evidence also supports a protection finding at s. 37(2)(i). [21] Accordingly, such protection findings will go.” [ footnotes omitted ] 4. LEGAL CONSIDERATIONS : 4.1 Statutory provisions [ 61 ] The issue to be determined is the appropriate disposition. [ 62 ] In this matter the following sections of the Child and Family Services Act are engaged: 1.

(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. 3.

To recognize that children’s services should be provided in a manner that, i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate. 37

(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 take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

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

The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance. Society’s plan for child 56. The court shall, before making an order under

section 57, 57.1, 65 or 65.2, obtain and consider a plan for the child’s care prepared in writing by the society and including, (

a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection; (

b) a statement of the criteria by which the society will determine when its wardship or supervision is no longer required; (

c) an estimate of the time required to achieve the purpose of the society’s intervention; (

d) where the society proposes to remove or has removed the child from a person’s care, (

i) an explanation of why the child cannot be adequately protected while in the person’s care, and a description of any past efforts to do so, and (ii) a statement of what efforts, if any, are planned to maintain the child’s contact with the person; (

e) where the society proposes to remove or has removed the child from a person’s care permanently, a description of the arrangements made or being made for the child’s long-term stable placement; and (

f) a description of the arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity. R.S.O. 1990, c. C.11, s.56 ; 2006, c.5, s.12 .

Order where child in need of protection 57.

(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 57.1, 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. Society wardship 2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months. Crown wardship 3. That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71(1), and be placed in the care of the society. Consecutive orders of society wardship and supervision 4. That the child be made a ward of the society 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 an aggregate of twelve months. R.S.O. 1990, c. C.11, s.57(1) ; 2006, c.5, s.13 (1-3). Court to inquire

(2) In determining which order to make under subsection (1) or

section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c.5, s.13(4) . Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c.2, s.15(1). Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s.57(4) . Terms and conditions of supervision order

(8) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose, (

a) reasonable terms and conditions relating to the child’s care and supervision; (

b) reasonable terms and conditions on, (

i) the child’s parent, (ii) the person who will have care and custody of the child under the order, (iii) the child, and (iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and (

c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services. 2006, c.5, s.13(5) . Where no court order necessary

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part. R.S.O. 1990, c. C.11, s.57(9) . Custody order 57.1

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

section instead of an order under subsection 57

(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 fosterparent of the child, with the consent of the person or persons. 2006, c.5, s.14. Deemed to be order under Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under

section 58 that is made at the same time as the orderunder subsection (1) shall be deemed to be made under

section 28 of the Children’s Law Reform Act and the court, (

a) may make any order under subsection (1) that the court may make under

section 28 of that Act; and (

b) may give any directions that it may give under

section 34 of that Act. 2006, c.5, s.14. Restraining order

(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order inaccordance with

section 35 of the Children’s Law Reform Act. 2009, c.11, s.3. Same

(4) An order under subsection (3) is deemed to be a final order made under

section 35 of the Children’s Law Reform Act, andshall be treated for all purposes as if it had been made under that section. 2009, c.11, s.3. Conflict of laws

(6) No order shall be made under this

section if, (

a) an order granting custody of the child has been made under the Divorce Act (Canada); or (

b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an ordermade by a superior court. 2006, c.5, s.14. Application of s. 57 (3) (7) Subsection 57 (3) applies for the purposes of this section. Access order 58.

(1) The court may, in the child’s best interests, (

a) when making an order under this Part; or (

b) upon an application under subsection (2), make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such termsand conditions on the order as the court considers appropriate. 4.2 The Statutory Pathway [63] The CFSA provides a statutory pathway that is to be followed in a child protection application: see L.(R.) v.

Children’sAid Society of Metropolitan Toronto, (ON SC), [1995] O.J. 119. [64] As Phillips J. made the finding that the children were in need of protection on October 22, 2010, the starting point indetermining the proper disposition is to consider ss.57(1). [65] If the children remain in need of protection the Court must then determine if a court order is necessary to protect thechildren in the future: see CFSA subsection 57(1) and (9). [66] For the reasons that follow I am satisfied that the children remain in need of protection and an order is necessary toprotect the children in the future. [67] The next step is to consider which one of the orders under ss.57 (1) ¶1, ¶2, ¶3 or ¶4 or s.57.1 should be made in the bestinterests of the children. [68] It is necessary to consider factors in CFSA ss. 37(3) to determine the children’s best interests: see CFSA ss. 57 (1). [69] The court must consider what efforts the Society or another Society or person has made to assist the children before theintervention under

Part III of the CFSA: see CFSA ss. 57(2). [70] Before making an order removing the children from the person who had charge of them immediately before theintervention under

Part III of the CFSA the court must enquire into the least disruptive alternatives: see CFSA ss. 57(3). [71] If the children are to be removed from Ms. T.B.’s care the court is to consider whether there are family – such as Mr.M.D. – or community placements before making a Society or crown wardship order. See CFSA ss. 57 (4).

[ 72 ] In this case, the Society is supported by Ms. T.B. and counsel for the children in seeking an order in keeping the children in Ms. T.B.’s care subject to Society supervision. 4.3 When is a Custody Order under s. 57.1 Request To Be Considered? [ 73 ] Mr. M.D. seeks a custody order under s. 57.1. The option requested by Mr. M.D., that is, that he be granted custody of H.S.D. and J.P.D., may not to be considered until the court is satisfied that allowing the children to remain in Ms. T.B.’s care subject to supervision would not be adequate to protect the children: see CFSA ss. 57.1(7) and 57(3). [ 74 ] Ms.

Avery’s argument, if I understand it correctly, is that Mr. M.D.’s plan for custody should be compared to the Society’s plan to keep the children in Ms. T.B.’s care. This argument fails to take into account ss. 57.1(7) and ss. 57(3) which require a determination whether the children can be adequately protected while in the care of Ms. T.B. having regard to their best interests. She is the person who had charge of the children immediately before the Society’s intervention. It is only after a determination has been made that they cannot be protected in Ms.

T.B.’s care that a consideration of the custody request made by Mr. M.D. can be undertaken. [ 75 ] The application before me is not a custody case under the Children’s Law Reform Act , in which the merits of two plans are to be considered when deciding the best interests of the children. It is the provisions of the CFSA that must be considered and applied. When doing so I must keep in mind that one of the purposes of the CFSA is to “recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.” See CFSA ss. 1(2) ¶2.

This is accomplished when the statutory pathway analysis is followed. 5. PAST EFFORTS TO ASSIST : [ 76 ] The Society has attempted to assist the children since it became acquainted with the T.B. and D. family in approximately 2005. It has provided family service workers to attend at the home where the children reside. They have implemented safety plans and made referrals to service providers that have been of assistance to this family. 6. THE CHILDREN: 6.1 H.S.D. [ 77 ] H.S.D. is a ten year old boy described by Ms. Stetcher as active and aggressive in school and at home.

At school he presented with behavioural issues. He was aggressive with students and staff as well. He had difficulty with transitions and unstructured times of the day. H.S.D. was suspended from school a number of times. His behavioural problems were severe enough to warrant him attending Glengarda Child and Family Services day treatment programme. This is a children’s mental health programme and is typically six months in length. H.S.D. has also been diagnosed with a learning disorder and struggles with comprehension. [ 78 ] While he attended the school at Glengarda his behaviours improved significantly.

He enjoyed going to school and made friends there. He started at Glengarda in mid May, 2011 until the end of the school year. He resumed his attendance there in September, 2011 in the Grade 5 programme. It was expected that he would return to his regular school in January, 2012. [ 79 ] H.S.D. was referred to a child psychiatrist, Doctor Yousha Mirza in February, 2011. He was prescribed medication for depression on February 16, 2011. On the follow – up visit of April 16, 2011 Dr. Mirza observed that the medication appeared to have helped H.S.D.’s depression. The next follow-up visit was on June 1, 2011.

At that time the medicine dosage was reduced as H.S.D. was having abdominal discomfort as a side effect. [ 80 ] On this occasion Dr. Mirza noted that H.S.D.’s depression was in remission. Dr. Mirza suggested that a stressor for H.S.D. was him not having his visitation with his father in some months. The last visit H.S.D. had with his father before June 1, 2011 was in November 2010. [ 81 ] The next and last appointment H.S.D. had with Dr. Mirza was on September 28, 2011. By this time access with Mr. M.D. had started again. During this last appointment Dr.

Mirza met with H.S.D. and his mother for approximately fifteen minutes and then with H.S.D. and his father for approximately fifteen minutes. [ 82 ] It appears from Dr. Mirza’s consultation report of September 28, 2011 that he was drawn into the parental conflict ongoing between Ms. T.B. and Mr. M.D.. They both reported behaviours to Dr. Mirza that they had observed in the children and that were connected with the involvement of the other parent. [ 83 ] Dr. Mirza reported that H.S.D. was more communicative with his father and gave Mr.

M.D. a “big and long hug … when he entered the office and when he left.” From this, Dr. Mirza was of the opinion that the best way to manage the situation for H.S.D. was to have him spend more time with his father. He also reported his “impression (unconfirmed/no proof) that mother’s parenting and child management skills are inadequate (or have been inadequate in the past); and this resulted in a breakdown of the parent/child relationship.” [ 84 ] Dr. Mirza has not seen H.S.D. since September 28, 2011. [ 85 ] I find Dr. Mirza’s conclusions to be of limited weight as it relates to Ms T.B.’s parenting skills.

He was not aware of the parenting capacity assessment that had been undertaken with respect to Ms. T.B.. He did not meet with Ms. T.B. to discuss the issues relating to her parenting. [ 86 ] Dr. Mirza was not aware of Dr. Catherine Lee’s concerns regarding Mr. M.D.’s interaction with H.S.D.. These concerns will be addressed below. [ 87 ] I do accept Dr. Mirza’s opinion that H.S.D. does want to spend more time with his father.

6.2 J.P.D. [ 88 ] J.P.D. is an eight year old boy whose behaviours are similar to those of his brother H.S.D.. Ms. Stecher observed J.P.D. to mimic his older brother’s behaviours. At school he would touch other children, say inappropriate things and was difficult to discipline. [ 89 ] While he attended Prince Edward Public School a child and youth worker attended his class once daily and an educational assistant was there half days. [ 90 ] J.P.D. was also in the same supervised programme as H.S.D. because of his difficulties with transitions and unstructured times of the day.

He was referred to and attended the Glengarda day treatment programme beginning September, 2011. [ 91 ] J.P.D. was seen by Dr. Mirza twice. The first time was on June 20, 2011 to assess him for the school base programme at Glengarda. Dr. Mirza did not prescribe any medications for J.P.D. and simply requested a follow-up appointment at the end of September, 2011. Dr. Mirza was not able to make a firm diagnosis following that first visit. [ 92 ] When he next saw J.P.D. on September 28, 2011 Dr. Mirza thought his behaviour problems related to his past and current psychosocial situation.

He recommended counselling and follow-up as needed. 6.3 D. M. D. Jr. [ 93 ] D. M. D. Jr. is now five years of age. He has language delays and receives services from Children First to assist him in this regard. He started JK beginning September 2010. He is now in Senior Kindergarten. The school, in conjunction with Children First, started D. M. D. Jr. off in class one hour per day and increased that time as the year passed. D. M. D. Jr. too has behavioural problems. He had been hitting staff and swearing. D. M. D.

Jr. has a communication disorder, a learning disorder and is developmentally below average. [ 94 ] Ms. T.B. has observed that with the help of speech and resource professionals D. M. D. Jr.’s behaviours have improved over time. He is better able to listen and follow directions on a more consistent basis. His ability to communicate and his social skills have improved. Ms. Lucy Noal, the Speech Language Pathologist at Children First also found that D. M. D. Jr. has made steady gains since he was assessed. 6.4 L.M.D. L.M.D.is now three years old.

Following her birth a meconium test was taken and it indicated a positive result for cocaine. Ms. T.B. denied taking cocaine but did acknowledge that it may have been in marijuana she took during her pregnancy. [ 95 ] In February, 2009 L.M.D.was referred by the Society to Children First due to a diagnosis of failure to thrive and concerns about delays in her development. L.M.D.received the benefit of resource consultation and speech and language services. By March, 2011 L.M.D.’s receptive and expressive language skills were at age expected levels and she was discharged from Children First. Ms.

Carrie Augustine, a resource consultant with Children First described L.M.D.as a sweet little girl. L.M.D.is not receiving any services at this time. 7. DR. McGRORY’S PARENTING CAPACITY ASSESSMENT: [ 96 ] On November 9, 2009, Justice Phillips signed a Child and Family Services Act S.54 Endorsement Sheet. Dr. Jay J. McGrory was ordered to conduct an assessment in this case, pursuant to s.54 of the Child and Family Services Act . The court requested in part, the assessor to address the parenting capabilities of Ms. T.B. and Mr. M.D..

He was to consider whether they have any psychiatric, psychological or other disorder or condition that may impact upon their respective abilities to care for and meet the needs of the children H.S.D., J.P.D., D. M. D. Jr. and L.M.D.. [ 97 ] Dr. McGrory’s Parenting Capacity Assessment of Ms. T.B. is dated May 18, 2010. The report of the assessment ordered is evidence and part of the court record in this proceeding: see C.F.S.A. s.54 (6). [ 98 ] Dr. McGrory reported that during the assessment, Ms. T.B. presented as a cooperative and well-meaning individual.

She appeared to be honest and motivated to meet her children’s needs. Based on the assessment conducted by Dr. McGrory, he observed that there were some areas where Ms. T.B. may require additional intervention and assistance: 1) she is a single parent who is somewhat overwhelmed by the needs of her four children; 2) her parenting function was also affected by her continued use of marijuana to address her stress and anxiety; and 3) she struggles with difficulties related to anxiety and to a lesser extent depression. [ 99 ] Dr. McGrory concluded that when feeling overwhelmed and stressed, Ms.

T.B.’s parenting effectiveness is compromised. Although Ms. T.B. has a high level of motivation to meet her children’s needs and has adequate parenting knowledge and skill, she can be overwhelmed by the needs of her four young children. She may tend to lack consistency and structure required to adequately address and meet the children’s needs. [ 100 ] Dr. McGrory’s recommendations were as follows: 1. Ms. T.B. would benefit from a structured intervention to address issues of anxiety and depression, such as cognitive behavioural therapy and possibly psychotropic medication. 2. Ms.

T.B. will require ongoing support as a single parent. Referrals to community services such as Children’s First and Windsor Regional Children’s Centre would be of assistance to her. Such intervention would assist Ms. T.B. in further developing the consistency, structure and routine required to care for four young children. 3. In relation to H.S.D. and J.P.D., it would be prudent to conduct a psycho-educational assessment to further elucidate and better understand functioning.

4. Ms. T.B. would be assisted with some level of structured respite. [ 101 ] In

summary, Dr. McGrory was of the opinion that with support of various services, Ms. T.B. could adequately meet the needs of the four children. [ 102 ] Ms. Avery argues that Dr. McGrory’s evidence should be discounted because his assessment report is dated and unreliable. [ 103 ] Dr. McGrory’s evidence at the hearing was given approximately 15 months after the report was prepared. In that sense, the report may be considered dated. However, with the passage of time and the implementation of the recommendations made by Dr.

McGrory which, in turn, were based upon his assessment, his recommendations have proved beneficial for the children and Ms. T.B.. [ 104 ] The evidence of the last two family service workers involved with Ms. T.B. and the children is that Ms. T.B. has been cooperative with the Society and has engaged in substantially all the services recommended. [ 105 ] L.M.D. and D. M. D. Jr. participated in the services provided by Children’s First. Ms. T.B. participated in the Fresh Start programme at Hiatus House.

H.S.D. and J.P.D. also participated in a family violence programme provided by Hiatus House that was school based. Ms. T.B. was supportive and cooperative with persons providing services for H.S.D. and J.P.D. at Glengarda. The family services well-being worker provided in home services to Ms. T.B. and the children. She was cooperative with the family well-being worker. [ 106 ] While Ms. Stetcher was the family services worker, she was aware that Ms. T.B. used marijuana to alleviate stress and anxiety. She never observed Ms.

T.B. under the influence of marijuana or of being incapable of caring for the children as a result of her use. During the period of time Ms. Stetcher was the family services worker, she made 21 announced and 18 unannounced visits to the home. [ 107 ] Sarah Sanders, the current family services worker, was assigned the case on August 17, 2010. In her dealings with Ms. T.B., Ms. Sanders found her to be extremely open to services. She was with Ms. T.B. and the children every second week and during that time Ms.

T.B. has made herself available for the meetings and has always allowed scheduled and unscheduled access to her home and the children. Ms. Sanders observed that the home was free of safety hazards. Ms. T.B. and Ms. Sanders have a positive relationship. Ms. T.B. consistently and willingly shares information with Ms. Sanders regarding her ongoing struggles with the behaviours of the children. Ms. Sanders makes recommendations to Ms. T.B. regarding implementing structure and routine in the home: this includes encouraging Ms. T.B. to follow through with services provided by Children’s First. Ms.

Sanders has provided schedules for routines and requested that Ms. T.B. attend at parenting programmes. Ms. Sanders found Ms. T.B. to be open to these services and recommendations and always willing to try something knew if it would help improve her situation at home. Ms. T.B. remained involved in a positive way with school officials who were attempting to manage the children’s behavioural issues. [ 108 ] On her own initiative, Ms. T.B. began attending a community parent education programme. This programme is a large group parenting course for parents of children aged three to six.

The programme is designed to improve child management skills, family functioning as well as build and strengthen person networks. [ 109 ] Ms. T.B. has completed three separate sessions of the Triple ‘P’ Parenting Programme. [ 110 ] Ms. T.B.’s actions are consistent with Dr. McGrory’s assessment that she has a high level of motivation to meet her children’s needs. She has followed through with Dr. McGrory’s recommendation that she participate in ongoing support. Ms.

T.B.’s cooperation with school officials and Glengarda for the purpose of addressing H.S.D. and J.P.D.’s behaviours and scholastic ability is consistent with Dr. McGrory’s recommendations. [ 111 ] I find that Dr. McGrory’s assessment remain relevant and valid notwithstanding it was made some 15 months before he testified at the hearing. Also I find his observations and recommendations valid and very helpful in determining the appropriate disposition in the best interests of the children. [ 112 ] Ms. Avery also argued that the assessment was unreliable because Ms.

T.B. fooled him into thinking she was someone she was not. Dr. McGrory testified in cross-examination by Ms. Avery that he followed required protocols in undertaking his assessment. He interviewed the Society’s family service worker, met with Ms. T.B., administered standard tests, visited Ms. T.B. and the children in her home and reviewed court documents filed. He did not review transcripts of wire taps of Ms. T.B.’s interactions with her children that were made during the months of January and February 2009.

These were not produced by the Crown to the Society, and subsequently to the parties, until after he had testified. The importance and effect of these wiretap transcripts will be addressed later in these reasons. [ 113 ] Ms. Avery did not present evidence from an expert or other person experienced in parenting capacity assessments to suggest that Dr. McGrory’s methodology was flawed. I disagree with Ms. Avery’s submission that Dr. McGrory’s report should not be relied upon by reason of flawed methodology. I find that Dr. McGrory’s assessment report undertaken in an appropriate matter. I accept Dr.

McGrory’s assessment of Ms. T.B.’s parenting abilities and deficiencies. 8. T.B.’S PLAN OF CARE: 8.1 Details of the Plan [ 114 ] Ms. T.B. resides in a four bedroom home that also has a living room, dining room, kitchen and one bathroom. The Society has had the opportunity to inspect this home and has approved it as being appropriate. The children each have their own bedroom. There is a back yard and front yard where the children can play. The children’s schools and parks are within walking distance of the home. Ms.

T.B. has remained in this home since April 2009. [ 115 ] She is in receipt of social assistance and government benefits sufficient to allow her to provide care and stability for her children.

[ 116 ] The family well-being worker attends at her home on a weekly basis. She assists with behaviour management skills and techniques and Ms. T.B. is receptive to this help. Ms. T.B. will continue to co-operate with the Society and follow supervision terms. [ 117 ] Ms. T.B.’s evidence is that she does not use physical discipline with the children. Instead, she uses removal of privileges, together with a reward system.

Based on the recent Society investigation of this issue (see paragraph 127 below) I accept her evidence in this regard. [ 118 ] A hair follicle test conducted in February, 2011 was negative for all drugs. Ms. T.B.’s evidence is that she last used marijuana on her thirtieth birthday which occurred in April 2011. She has stopped using it. [ 119 ] One of Dr. McGrory’s recommendations was that Ms. T.B. participate in therapy to address her anxiety and depression. She has not done so yet.

Her evidence is that her anxiety level has improved over the last couple of years and that her work with Children’s First and Glengarda has assisted her in managing the children. This, in part, has lessened her stress as has work in changing her outlook on life and “not stressing over the things [she] cannot control.” Although she is willing to attend for counselling, limited finances, the other commitments for the children and babysitting make it difficult for her to engage in personal counselling at this time. 8.2 Risks Posed by Ms. T.B.’s Past Actions 8.2.1 Improper Supervision [ 120 ] Ms.

Avery’s cross-examination of Ms. T.B. revealed incidents of inappropriate parental behaviour on her part. There have been a few instances since the parties separated many years ago where the children were not adequately supervised. H.S.D. and J.P.D. had been observed at a pawn shop that was outside the area they were allowed to play. J.P.D. failed to return home one afternoon in time to be picked up by a volunteer driver to attend access. J.P.D. rides his bike without a helmet on occasion. Ms. T.B. allowed a 15 year old girl to remain in her home even though she had been advised by the Society not to.

During the period of time Ms. Shannon Clark was the Society’s family service worker responsible for the T.B. and D. family, safety plans had to be implemented due to her behaviours. The circumstances giving rise to the need for the safety plan were dealt with earlier in these reasons. The evidence does not disclose that lack of supervision is a chronic problem or one that would warrant the removal of the children from her care. 8.2.2 Abusive Parenting: Wire Tap Transcripts [ 121 ] On November 14, 2011 the fifteenth day of this hearing, the Society brought a motion seeking to re-open its case.

The parties agreed that the Society’s case should be reopened because eight transcripts of police wire tap evidence of Ms. T.B. recorded between January 29, 2009 and February 10, 2009 and one on August 2, 2011 had been made available to the parties.

A Wagg motion resulted in the release of evidence in the possession of the Crown Attorney obtained in connection with the then ongoing criminal proceedings concerning the respondent D.D.. [ 122 ] These nine transcripts are contained in Exhibit 35 entitled “Audio/Video Transcripts Brief.” [ 123 ] Scott Ritchie, a detective with the Major Crime Branch of the Windsor Police Service supervised the civilian monitors of the recordings. The recordings were made in connection with a murder investigation involving D.D..

Detective Ritchie’s duties also included listening to the recordings, reviewing the transcripts and reporting to the primary investigator on the case. A recording device was placed in Ms. T.B.’s residence for approximately 60 days beginning in late December 2008 until early February 2009. The transcripts represent a small portion of the more than approximately 100 hours of recording. [ 124 ] The contents of the transcripts are most disturbing. Ms. T.B. uses crude and vulgar language when speaking with her children. Counsel for the Society submitted that had it been aware of Ms.

T.B.’s behaviour at the time the recordings were made it would have apprehended the children. These transcripts also record Ms. T.B. disparaging Mr. M.D. and his relationship with the children. For example: “TB: I won’t let you live with your dad, I’ll put you in a home first. TB: Let’s get this (inaudible) you’re not going to stay with your father. He only gets you for an extra day until the Judge hears everything.

And when the Judge looks up in the computer and puts in your dad’s name, he’ll get your dad’s history and he’ll know what type of stuff your dad did wrong growing up and how your dad used to steal from your grandfather all the time. Your dad used to steal from everybody else, because your dad never went to school, why your dad never finished school...your dad’s dragging himself, your dad’s going down. He’s looking more and more like a moron to the police and to the judges. I mean, he is dragging the kids with him.” [ 125 ] During other instances, Ms.

T.B. uses the “f” expletive when speaking to the children. [ 126 ] After being provided with the transcripts, the Society conducted an investigation. The investigation included interviewing Ms. T.B. and the children. The Society decided not to alter its proposed plan of care to have the children remain with Ms. T.B. under supervision. When asked why the position did not change, Ms. Sanders testified that Ms. T.B. remains cooperative with the Society and continues to work with the services recommended to her. There is no evidence that the abuse disclosed in the transcript continues.

The Society was also of the view that it would do more damage to the children to remove them from her care and separate them from their siblings than it would to keep them in her care under a supervision order with close monitoring. [ 127 ] When examined by her Counsel with respect to the transcript, Ms. T.B. acknowledged it was inappropriate for her to communicate with the children in that manner. She described the circumstances in late January/early February 2010 as being stressful for her. She was recovering emotionally and financially from the house fire which took place a number of months before. Mr.

D.D.’s mother had returned to hospital due to her having cancer. Mr. D.D. was arrested January 31, 2009. The children were not seeing their father very much and she knew that J.P.D. and H.S.D. wanted to. D. M. D. Jr. and L.M.D. were very young and she was not getting very much sleep at the time. The Society was involved with her but services were not in place. Ms. T.B. testified that the expletive recorded

in the transcript is not a word she would use with the children, rather, would use the word “freaking.” [ 128 ] The last transcript in the exhibit is a recording made on August 2, 2011 of a meeting Ms. T.B. had with a female undercover police officer who was later joined by a second one. The female undercover police officer made Ms. T.B.’s acquaintance sometime in July, 2011. The undercover officer arranged to meet Ms. T.B. in a hotel room on the evening of August 2, 2011. The conversation they had was recorded by means of a body pack. During this conversation, Ms.

T.B. stated that she continued to communicate with Mr. D.D.. Ms. T.B. explained in evidence that recently it was Mr. D.D. who called her from jail. He called on birthdays or anniversaries or holidays. She has also gone to see him while he has been in custody. [ 129 ] In the transcript of that evening’s conversation, Ms. T.B. stated that she “...sat on 2 kgs of coke in the closet for six months...” Ms. T.B. testified that she did say those words but it was a lie. She told the undercover officer several things that were not true because she was suspicious of her.

She had a feeling that something was not quite right with this person. [ 130 ] Ms. Avery chose not to cross-examine Ms. T.B. on the wire tap evidence. [ 131 ] All counsel submit and I agree that the transcripts recorded in January and February 2009 are most disturbing and reflect very poorly on Ms. T.B.. The transcripts reflect parenting that falls below acceptable standards. [ 132 ] It is Ms. T.B.’s evidence that the 2009 statements made were at a time when she was under stress. This does not excuse her actions.

She has been saved from the consequences of these actions, that is, the removal of the children from her care, by the passage of time during which she has generally demonstrated her willingness to cooperate with the Society and engage in appropriate services. As well there is no evidence of this type of behaviour contiues. [ 133 ] The Society’s position is that the events occurred a little less than three years ago. Since then Ms. T.B. has been working cooperatively with the Society and service providers.

She has been engaging for the benefit of the children, including participating in parenting classes and employing appropriate behaviour management strategies. Her attitude and actions as reflected in those first eight transcripts are not evident now. I find that this is the case. [ 134 ] When considering the last transcript it is helpful to recall that Dr. McGrory observed in his parenting capacity assessment that Ms. T.B. appears to have adopted a long standing anti-authority stance. In all likelihood, he suggests, Ms.

T.B.’s tendency to involve herself with these individuals, although not a high level of risk, may cause her to become involved and entrapped in unintentional and problematic situations. This conclusion made by Dr. McGrory appears to be prescient. I accept that the statements made by Ms. T.B. to the undercover police officer were no more than bravado based on her acknowledged tendency to associate with less than desirable persons and a sense of suspicion that she felt that evening. Given Ms.

T.B.’s engagement in services and motivation to meet the needs of her children, I accept that she would not be so foolhardy as to put her children at risk by holding cocaine for another person or engaging in a criminal enterprise based on the evidence that has been presented. 8.2.3 Abusive Parenting: Dr. David Warren’s Report [ 135 ] Dr. David Warren is the medical director of the Children’s Hospital of Western Ontario Child Abuse Team at London, Ontario. He is a very well respected medical doctor with the expertise in the area of child abuse.

He has been qualified on a number of occasions to give opinion evidence on this subject. [ 136 ] After conducting a voir dire Dr. Warren, was qualified to give opinion evidence as an expert in the areas of paediatric medicine, including the assessment of child abuse and child injury including child risk and child protection matters associated with abuse. [ 137 ] Dr. Warren was retained by counsel for Mr. M.D. in connection with proceedings that were ongoing in April and May, 2009. Dr.

Warren’s report is dated May 8, 2009 and states that it was prepared “…with regard to custody and access proceedings for H.S.D. and J.P.D. in the case of M.D. and T.B.. The report concludes that Mr. M.D. is a proper person to have custody of the children, Ms. T.B. is not and that the actions of the Society should be called into question. [ 138 ] Dr. Warren had the opportunity to review Windsor – Essex CAS disclosures on the children H.S.D. and J.P.D. as well as “court criminal reports, medical reports and court proceedings…” with respect to them. Dr.

Warren’s report of May 8 th , 2009 constituted his examination in chief. [ 139 ] In Dr. Warren’s report it states: “It has been recognized over the past decade that the best circumstances for children in a family separation are typically identified through a mutually agreed custody and access sharing arrangement between the 2 caring, mature responsible parents. It is in the best interest of the children to develop an appropriate, caring relationship with both of their parents.

The arrangements must take into consideration the personal circumstances of each parent and also be cognisant of being the least disruptive to the children for their education and associations outside the family home.” [ 140 ] Dr. Warren then identified that significant concerns have been raised by Mr. M.D’s Counsel with respect “…to the unilateral relationship that has developed between these children and their mother. It would appear from the extent of the disclosures that the father, Mr. M.D. has been limited, and on occasion refused access to his children by Ms.

T.B. and [the Society].” This fact is not supported by the evidence. The evidence disclosed that for lengthy periods of time Mr. M.D. chose not to exercise access with the children. This will be addressed later in these reasons. [ 141 ] Dr. Warren responded specifically to the question – “what are the effects on children of abuse and violence in the home?” He stated that “[it] is well recognized that in the child psychology literature that abusive relationships, violence in the home and ongoing parental conflict, in particular, is deleterious to the appropriate psychological development of children.

Several issues with respect to this have been raised in the disclosures by the CAS.” Dr. Warren then identified the following:

1. His review of the Society documentation disclosed no evidence that Mr. M.D.’s home is “less than appropriate for raising of these two children.” 2. Mr. M.D. has not and does not use drugs. 3. There is no evidence objectively that Mr. M.D. has ever been involved in violent behaviour nor does he have a criminal record in the past. 4. M.D. is involved in teaching Aikido, a non aggressive marshal art. He has been involved in teaching this material to the Regional Children’s Centre, Windsor Western Children’s Hospital and to classes at the Canadian Mental Health Association. [ 142 ] Dr.

Warren concludes that he “… can identify through [Mr. M.D.’s] struggles to obtain access to his children that he is certainly caring and concerned for them.” [ 143 ] Dr. Warren also provides the opinion that based on his review “…of the disclosures by [the Society] I see no evidence that M.D. would be inappropriate or unfit to provide parenting for these children.” [ 144 ] The next area addressed by Dr. Warren concerned the role of a father figure in the development of the children.

He stated: “the development of appropriate male-female relationships, spousal relationships, and parenting relationships have all been studied and are negatively affected if they are denied appropriate role models in their rearing.” [ 145 ] Dr. Warren then stated that H.S.D.’s and J.P.D.’s requests that they have more time with their father had been denied. [ 146 ] I accept Dr. Warren’s statement with respect to the need for appropriate role models. As stated above the evidence does not support that Mr. M.D. was denied access rather he refused to exercise the access that was afforded him. [ 147 ] Dr.

Warren then addressed his concerns with respect to the care of the children by Ms. T.B. based upon the disclosures provided by the Society. He observed that the Society reports indicate that there have been “… minor incidents of physical abuse… to these children by her in her care… [and there is] the report of threatening behaviour by her current partner towards these children. … there have been several incidents of inappropriateness in the home situation reported by [the Society] in Ms. T.B.’s care.” [ 148 ] Dr.

Warren then expressed that he was “…puzzled by why the Windsor-Essex Children’s Aid Society has allowed in a number of circumstances these children to return to the mother’s care. In some circumstances it would appear that the Society has colluded with the mother to deny access to these children by the father. I do not have any evidence beyond these disclosures as to why the prevalent bias towards these children’s father exists.” [ 149 ] It is not clear from Dr. Warren’s report what documents or specific allegations he is referring to.

There is no mention of reasons given by the Court in connection with the temporary care and custody hearing that took place in March, 2009. It was decided at that time it was proper for the children to be returned to Ms. T.B.’s care. This decision was not varied or set aside by an appeal Court. It is also not clear upon what documents Dr. Warren is referring to in connection with his conclusion that there is a prevalent bias against the children’s father. This was not supported in the evidence that was presented in this hearing. This too will be addressed later in these reasons. [ 150 ] Despite Dr.

Warren’s recognized skill and expertise in the area of child abuse I am not able to attach much weight to the conclusions he reaches in his report. I accept his statements with respect to what medical literature suggests would be in the best interests of children. However, his opinions which rest upon Mr. M.D. being denied access cannot be relied upon because, as stated above, it is he who chose not to exercise the access. Important facts relied upon by Dr. Warren were not proved at this hearing. 9. THE SOCIETY’S PLAN OF CARE: [ 151 ] The Society’s Plan of Care sets out that the services to be provided to Ms.

T.B. and the children are as follows: 1. A family services worker will provide support and monitoring. 2. Ms. T.B. will participate in drug testing services as needed. 3. Ms. T.B. will ensure regular medical care for the children. 4. The services of Glengarda and any other society approved counselling services will be arranged to provide for counselling and support for J.P.D. and H.S.D.. 5. The services of Children’s First will be sought to provide for the proper development of D. M. D. Jr.. [ 152 ] The Plan of Care also sets forth the expectations the Society has of Ms.

T.B., which are detailed and appropriate, that it will consider before adopting the position that supervision is no longer required. These expectations include ongoing co-operation with the society, ensuring the children’s health (physical and psychological) educational and other basic needs are met. Ms. T.B. is to ensure that the children are not exposed to domestic violence, criminal behaviour and are cared for by appropriate caregivers. Ms. T.B. is to support and co-operate with Mr. M.D. having access to and a relationship with H.S.D. and J.P.D.. [ 153 ] The Plan of Care also provides with respect to Mr.

M.D. that he participate in a parenting capacity assessment and attend at a parenting programme. Mr. M.D. did not participate in the parenting assessment. He left papers at Dr. McGrory’s office for him to review. Mr. M.D. would not participate in the parenting capacity assessment in the manner requested by Dr. McGrory. 10. SUPERVISION ORDER:

[ 154 ] I find that it is in the best interest of the children that they remain in the care and custody of Ms. T.B. subject to terms of supervision. This is the least intrusive order that can be made in all the circumstances of this case and in the best interests of the children. The risk to the children that gave rise to their remaining in need of protection can be adequately addressed with terms of supervision and the services to be provided by the Society and service providers. [ 155 ] Ms.

T.B. continues to need support from the Society and service providers in order to ensure the special needs of H.S.D., J.P.D. and D. M. D. Jr. are met. She also needs assistance in ensuring that she can provide structure and consistency in the care of her four young children. [ 156 ] The relationship between Mr. M.D. and her remains conflictual. The custody case now stayed has not been resolved. They are not able to communicate effectively and risk exposing the children to their ongoing discord. Ms. T.B.’s tendency to allow her anti-authoritarian attitude to compromise her parenting judgment continues.

Most recently this was demonstrated by her allowing a fifteen year old child to be in her home when she knew the Society did not want that to take place. There is also her bravado with the undercover police officers. She continued to have contact with Mr. D.D.. [ 157 ] Ms. T.B. has not dealt with her problem with anxiety in a clinical way. I accept her evidence that she has not used marijuana in a number of months now and that her circumstances have become less stressful. The help she has received with her children has been most important in reducing this stress. [ 158 ] Ms.

T.B. has for some time now been co-operative with the Society and service providers. The children have benefitted from the services in which they have participated. Whatever difficulties Ms. T.B. and Ms. Clarke experienced and which prevented help being provided effectively no longer exists. [ 159 ] Ms. T.B. has demonstrated her motivation and willingness to provide a stable home for the children, meet their needs and accept the support of the Society and supervisor. [ 160 ] The Society’s plan of care requests that the term of supervision be for a period of six months.

During submissions the Society requested that the term be for a period of twelve months. Ms. T.B. consents to the term being twelve months. Counsel for the children also supports the term being twelve months. It will allow the parties to focus on the needs of the children which she described as severe and distinct. The parties have been engaged in litigation for a long time and a period of stability without outstanding litigation would be in the best of the children. Counsel for Mr.

M.D. did not address this request in her submissions. [ 161 ] I agree that a longer period of time is needed to meet the best interest of the children. Services will be put in place to meet the long term needs of the children and to support Ms. T.B.’s ability to continue to provide adequate care for the children. The evidence does not disclose that there will be a “fix” within six months. I find that it would be in the best interests of the children for the term of the supervision order be 12 months. 11. CAN THE SOCIETY PROPERLY SUPERVISE MS. T.B.? [ 162 ] Mr.

M.D. argues that the Society has been incompetent in its supervision of Ms. T.B. and by extension its protection of the children. Further he submits that it has been wilfully blind in its support of Ms. T.B.. Mr. M.D.’s counsel argues that the Society “… is not worthy of further reliance by the Court as able or willing to protect H.S.D. and J.P.D. effectively or to be involved with Mr. M.D..”. [ 163 ] In support of this argument Mr. M.D. points to the difficult relationship that Ms. Clarke had with Ms. Dinham. I do find that Ms. Clarke and Ms. Dinham did not have a positive relationship. I do not find that Ms.

Dinham acted in a manner that compromised the protection of the children. [ 164 ] During the period of time Ms. Clarke was the Family Services Worker, Ms. Dinham and Ms. Clarke were aware of the risks that were ongoing and that safety plans were put into place as a result. Legal action was contemplated but not undertaken. It is noteworthy that since September, 2008 the Society workers have had a positive relationship with Ms. T.B. and that the services that they have assisted her in obtaining have proved beneficial for the children and that Ms. T.B. has been a co-operative client of the Society. [ 165 ] Mr.

M.D. complains that the Society has acted to marginalize and vilify him. [ 166 ] I disagree with this argument. I find that the evidence does not support it in any way a finding that the Society has been incompetent in the management of this case and in ensuring the protection of the children. [ 167 ] I find that the Society’s involvement with the children - in the manner it has for some time - has resulted in risk being reduced and helpful services being implemented. [ 168 ] Mr.

M.D. must accept responsibility that it was decisions he made that have contributed to him not having significant contact with the children and being involved in their lives as he wanted. He chose not to co-operate or even communicate with the Society since September, 2008. He chose not to see the children for extended periods of time. 12. M.D.: [ 169 ] If I had determined that the children should not be in the care of Ms. T.B., I would have placed them in Mr. M.D.’s care subject to Society supervision for the reasons that follow. I find that it would not be in the best interests of the children to grant Mr.

M.D. custody of H.S.D. and J.P.D.. 12.1 Mr. M.D’s Plan [ 170 ] Mr. M.D. has an adequate home in which the children can be cared for by him. He is able to provide financially with the social assistance and supplements he receives from his mother and aunt to meet the children’s basic needs. He wants to continue to be

supportive of the educational programmes offered to H.S.D. and J.P.D.. He has and wants to continue to help the boys with their reading. [ 171 ] Mr. M.D. is a certified trainer in AIKDO and wants H.S.D. and J.P.D. to participate in this activity. As well, he wants to involve the boys in other recreational and cultural activities, let them develop relationships with his extended family and ensure their health needs are met. [ 172 ] He is working with a counsellor, Bruce Cowan who would be able to provide counselling for H.S.D. and J.P.D. as needed. Mr. Cowan has already assisted Mr.

M.D. in developing parenting skills. 12.2 No Society Involvement With Mr. M.D. [ 173 ] What Mr. M.D. does not want is any involvement with the Society. He remains aggrieved that H.S.D. and J.P.D. were not placed in his care when Ms. T.B. was arrested. The Society did consider placing the children with Mr. M.D. at that time but wanted it subject to supervision. He refused. [ 174 ] These issues were raised by Mr. M.D. and dealt with by the Court at the temporary care and custody hearing. Mr. M.D. continues to be wary of any involvement with the Society.

He views Society involvement and its request that his access be supervised as undermining his role as a “… safe, secure and reliable parent.” His trial affidavit states that H.S.D. and J.P.D. “… would have seen me demeaned and diminished to being someone the [ Society ] needed to supervise. This would serve only to undermine the relationship between me and my sons. I was not the source of the protection concerns.” This statement demonstrates Mr.

M.D.’s lack of awareness that his actions have contributed to the risks the children have been exposed to over the years and their corresponding effect on the behaviours exhibited by H.S.D. and J.P.D.. 12.3 Criminal Complaints to Obtain Custody [ 175 ] Mr. M.D. could have had the Society’s support in placing H.S.D. and J.P.D. in his care with supervision after Ms. T.B. was arrested. He refused because he did not want to be subject to Society supervision. Instead, and after the children were returned to Ms. T.B. under court order of March 10 th , 2009 Mr.

M.D. attended with the Windsor Police Service to file a criminal complaint against her. The intent was to support his claim for custody. No charges were laid. [ 176 ] Toward the end of March or beginning of April, 2009 Mr. M.D. again attended with the Windsor Police Service to lay criminal charges against Ms. Stetcher and Ms. Dinham. This time charges were laid. He then brought a Motion in the Superior Court (within then ongoing appeal proceedings) seeking custody of H.S.D. and J.P.D.. In part that Motion was based upon the criminal charges that had been laid against Ms. Stetcher and Ms. Dinham. What Mr.

M.D. did not disclose was that the charges were based on a private information made by him. The custody motion and criminal charges did not proceed. [ 177 ] These actions are consistent with Mr. M.D. acting tactically to meet or achieve his goals rather than being primarily concerned with the best interests of the children. 12.4 Mr. M.D. Refuses to Exercise Access [ 178 ] Since the start of the child protection application in February, 2009 Mr. M.D. chose not to exercise access for significant periods of time. The following sets out when he has and has not exercise access: i.

March, 2009 – May, 2010: no access exercised. ii. May 10, 2010 – June, 2010: access exercised and supervised by Dr. C. Lee three times per week. iii. July, 2010 – October, 2010: no access exercised. iv. October, 2010 – November, 2010: access exercised with Mr. Bruce Cowan in attendance. v. December, 2010 – March, 2011: no access exercised. vi. From March, 2011: access each Wednesday and Sunday subject to Society monitoring. [ 179 ] The issu

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