Children’s Aid Society of Peel v. C.D., 2018 ONCJ 917

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, . . . (

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. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Peel v. C.D., 2018 ONCJ 917 DATE: 2018-12-04 COURT FILE No.: Brampton 20083-12 BETWEEN: THE CHILDREN’S AID SOCIETY OF PEEL, Applicant — AND — C.D. D.M. G.B. S.J. Respondents Before Justice Philip J. Clay Heard on October 22, 23, 24, 25, 26, 29, 30, and 31 November 1, 2, 5, and 7, 2018

Reasons released on December 4, 2018 Ms. M. Pilch ……………………………………………………counsel for the Applicant Society Mr. R. Sharpe……………………………………………………counsel for the respondent C.D. D.M …………………………………………………………………………found to be in default G.B. ………………………………………………………………………acted on his own behalf S.J…………………………………………………………………………….…………not present CLAY J.: INTRODUCTION [ 1 ] This Peel Children’s Aid Society (“PCAS”) brought an Application on May 3, 2016 with respect to four of C.D.’s children after their apprehension on April 28, 2016. The said children have not returned to the care of their mother since their apprehension. The Honourable Mr. Justice P.W. Dunn heard a

summary judgment motion on November 29, 2017. He made statutory findings but found that there were genuine issues for trial with respect to protection findings and disposition. Over the course of time the Society’s position changed due to changed circumstances such that the application before the court is the sixth amended protection application. [ 2 ] The children involved are; M. M. (“M”) born […], 2003, the daughter of C.D. and D. M., the twins Aa. B. and As. B., (“As and Aa respectively”) the daughters of C.D. and G.B., born […], 2011 and D.J. (“D”) born […], 2015, the daughter of C.D. and S.J.

At the time of trial M. who is globally developmentally disabled was residing with her foster mother, the twins were residing with their father G.B. and D. was residing in a foster home. [ 3 ] The Society’s request was for protection findings for all four children and for the following disposition orders: M. to be placed in extended Society care, the twins to be placed into the custody of their father G.B. pursuant to s. 102 of the Child and Youth Family Services Act , (“CYFSA”) and D. to be placed in the temporary care of the Society for a period of four months. [ 4 ] C.D. sought an order returning all four children to her care and she was amenable to a period of Society supervision.

G.B. sought a custody order for the twins. S.J. had moved to Antigua. He had temporary custody of D. before he left. He gave D. to C.D. in June 2017 without the knowledge of the Society. D. was apprehended from C.D on August 30, 2018. C.D.’s alternate position with respect to D. was that she be in the kin care of C.D.’s first cousin C.S. [ 5 ] There had been other child protection proceedings involving C.D and her children or step-children over the years. This led to a pre-trial motion. PRE-TRIAL MOTION [ 6 ] Mr.

Sharpe had given notice at the trial management conference (“TMC”) that he wished to bring a motion with respect to excluding evidence based upon the principle of res judicata . He was granted leave to bring such a motion before the trial judge at the beginning of the trial. [ 7 ] Mr. Sharpe then brought an oral motion to exclude from the trial any evidence which predated the termination of child protection proceedings on November 18, 2015.

The Society’s document brief and the submissions of counsel set out that the mother has been involved in three separate child protection proceedings over the years concerning her children or step-children. In anticipation of the motion the Society had limited its affidavit evidence to post November 18, 2015 events.

Its document brief contained the reasons for decision, either in written form or by way of the filing of a transcript, for every child protection and criminal proceeding in which C.D. was involved. [ 8 ] I heard the motion on October 22 and gave a written decision on October 25 which was before any Society evidence for the period prior to November 18, 2015 was heard. I ruled that findings of fact by a court should be admissible even if the actual evidence upon which such findings were based is found to be inadmissible due to issue estoppel.

Admitting the decisions themselves does not run the risk of different findings being made by different judges on the same evidence. I permitted the filing of the Society’s document brief as evidence but did not permit the Society to call witnesses to address pre November 18, 2015 events. Service and default [ 9 ] C.D. had filed an answer to the original protection proceeding in July 2016. Her claim then was the same as her claim at trial. She sought a return of all four of her children to her care. She was not required to file a fresh answer to the amended application.

D.M. was noted in default in prior proceedings and an order was made on November 19, 2017 dispensing with service upon him in this proceeding. G.B. had filed an answer to the original protection proceeding in June 2016, and as the request in his answer for custody of his daughters was the same as his request (and the Society’s position) at trial he was not required to file a fresh answer to the amended proceedings.

[ 10 ] S.J. had filed an answer to the original protection proceeding but he had moved to Antigua in June 2017. He had provided the Society with his email address and he was served with the sixth amended application by way of a substituted service order. At the opening of trial 60 days had not expired since service. As S.J. had stated in an email that for immigration reasons he was unable to return to Canada I am prepared to shorten the time period for an answer to the period prior to the opening of trial. S.J. had not filed an answer by October 22, 2018, and he is found to be in default.

Briefs filed [ 11 ] Pursuant to the order at the TMC the Society and C.D. were to file their direct evidence by way of affidavit . The Society filed their affidavit brief prior to the opening of trial and Mr. Sharpe was permitted to file C.D.’s affidavit of October 17, 2018 at the opening of trial. [ 12 ] Both parties filed document briefs and the Society filed an expert evidence brief.

The briefs were received subject to proof such that the contents would not be marked as an exhibit unless and until they were found to be admissible after they were identified by their author or submitted on consent. [ 13 ] The expert briefs contained the reports and curriculum vitae of three purported experts. The Society stated that they were not relying on one report so it was removed from the brief. One expert, Dr. V. Murphy was qualified and was produced for cross- examination and the report of Dr. M. Kalia was admitted on consent without the necessity of calling the author.

Cumulative periods of care [ 14 ] The child M. was in care from June 22, 2012 to February 5, 2014 when she was returned subject to a temporary supervision order. She has been in care continuously since her apprehension on April 28, 2016 to the time of trial which amounts to a total period in care of 46 months. [ 15 ] The twins were in care from April 28, 2016 until they were placed with their father G.B. on Jan. 27, 2017, and this amounted to a total of 27 months. D. was in care from April 28, 2016 until she was placed with her father S.J. in October 2016.

She has been back in care since August 30, 2016 for a cumulative total of nearly eight months. Protection findings [ 16 ] There have been no protection findings made since the May 3, 2016 protection application was filed . [ 17 ] There were some differences in the findings sought by the Society with respect to each child. I will set out the subsection numbers together with the colloquial manner in which each finding is commonly referred to for each child. [ 18 ] For M. and Aa. the Society sought findings under s. 74 (2) (a) (

i) actual physical harm by failure to provide care (ii) actual physical harm by pattern of neglect (b) (

i) risk of physical harm by failure to provide care (ii) risk of physical harm by pattern of neglect. For As. and D. the Society sought findings under the said s. 74 (2) (b) (

i) and (ii). ISSUES 1) Should the children M., Aa., As. and D.. or any of them be found to be in need of protection? 2) If so which sub-section of s. 74 (2) should apply to each child found to be in need of protection? 3)

a) Should the child M. be placed into extended Society care or returned to her mother C.D. subject to supervision.

b) Should the children Aa. and As. be placed in the custody of their father G.B. or returned to their mother C.D. subject to supervision.

c) Should the child D. be placed into the temporary care of the Society for four months, placed into the temporary care of a kin caregiver for four months subject to the temporary supervision of the Society or returned to her mother C.D. subject to the temporary supervision of the Society. 4)

a) if the child M is placed into extended Society care what access should she have to her mother C.D. and her siblings Aa., As. and D.?

b) if the children Aa. and As. are placed in the care of the father G.B. what access should the children have to their mother C.D. and their siblings M. and D. ?

c) if the child D. is placed in the care of the Society or a kin caregiver what access should D. have to her mother C.D. and to her siblings M., Aa. and As.

d) if the child D.. is placed in the care of her mother C.D. what access should she have to her siblings M., Aa. and As.? EVIDENCE CHILD PROTECTION FINDINGS Pre-Apprehension care [ 19 ] All four children had been residing with C.D. since February 2014. There was no other adult in the home. They had previously been in care but were returned home pursuant to a supervision order. That order was terminated and the prior child protection were concluded on November 18, 2015. M. [ 20 ] M. has global developmental delays. She is also thought to have a type of autism.

She was 14 years old at the time of trial but had the cognitive ability of a child of about three years old. M. was non-verbal. There was evidence that she was a pleasant, happy child. She was assessed by Dr. Vincent Murphy on January 19, 2017. Dr. Murphy’s report was filed as an exhibit and he was qualified as an expert in child development. He said M’s receptive language level was at the level of a child of two years and five months. She had an understanding of about 100 words. She could follow basic one step directions. If she could not express herself she could point to assist a caregiver. Dr.

Murphy said that M’s gross motor skills were impaired and she walked with an awkward gait. She could feed and dress herself. M.’s fine motor skills were such that she had difficulty holding a pencil or buttoning a coat. C.D. understood her daughter’s challenges and ensured that she attended for speech therapy at ErinOaks. C.D. attended the meetings at M.’s school and was actively involved with the school in ensuring that her daughter received the services that she required. [ 21 ] Dr. Murphy said that M. had a dual diagnosis as she also had an impairment in social awareness and self-awareness.

Her presentation in this regard was similar to someone on the autism spectrum. Dr. Murphy said that M. needed consistency with routine. She required a very high level of supervision and support. A caregiver would need to follow the same steps every morning. Dr. Murphy conceded that M. could probably manage to be left alone for brief periods of time for example while a parent gets supper ready and she is within ear shot. M. could not manage her own hygiene although she could be trained for instance to brush her teeth. M. needed a caregiver who had a higher level of organizational skill than an average parent.

She was in a special class – and had more appointments to manage than the average child. [ 22 ] Although C.D. was a Muslim and raised her children to be Muslim she registered M. into the Catholic school system because there was a specialized classroom in the local Catholic school and she wanted her three school aged children to attend the same school. In October 2015, M. transferred from S[…] School in Brampton to St. Nicholas school in Bolton. There she was placed in a specialized classroom that catered to children with dual diagnosis. There were three other children in the classroom. The teacher was Ms.

Nicolina Grisolia and she was assisted by child and youth workers. M’s teacher [ 23 ] Ms. Grisolia has been a special education teacher at St. Nicholas since 2008. She had five years in experience in special education. She said that the four children in her specialized classroom in the 2015-16 school year had various diagnosis and varying needs. She was assisted in her classroom by two educational assistants. The teacher said that she attended the conference whereby plans were made for M. to transfer from S[…]’s.

The teacher said she was not told of any prior allegations of abuse or Society involvement. [ 24 ] She said she had a communication book that was sent home with each student. C.D. had written in the book every day the child attended school. Ms. Grisolia said she had good communication with C.D. Ms. Grisolia kept a record or timeline of events and she used that timeline in preparing the affidavit that was filed. [ 25 ] She provided a letter to the investigating officer and filed an affidavit and gave evidence at the trial. She said that M. was not an aggressive child and that she was not noted to be clumsy.

She said that due to their own challenges the four students in her class did not tend to interact with each other very much. Ms. Grisolia also supervised the students at recess and the lunch break. She had not observed M. to fall down or to be physically interfered with by other students. She did not get hurt at school.

[ 26 ] Ms. Grisolia said that throughout the time that she was M.’s teacher there were times when M. attended school with cuts and bruises to her face and head. Due to the number of minor injuries the teacher began to keep a record sometime in October 2015. On October 20 she noted a bump on M.’s head, the following day her eye appeared to be even more swollen and the next day she missed school. On Friday, November 6, M. was absent and on Monday, November 9, she attended school with two big scrapes and two small scrapes on her forehead between her eyes.

The teacher stated in her oral evidence that the bridge of M’s nose was swollen. When she asked C.D. about the injury C.D. replied, “sometime she don’t listen”. On December 2, M. attended school with a cut on her left temple and a bump on the same side. On February 1, 2016, M. attended school with a swollen lip and a swollen left cheek. The teacher asked C.D. to let her know how M. gets injured. On this occasion C.D. said that a sibling had thrown a toy at her. On March 8, 2016, M. attended school with a welt on her nose. [ 27 ] On March 22, M. attended school with a bruised eye.

Given the frequency of the injuries the teacher thought it necessary to inform the PCAS. Shortly thereafter Ms. A. Mensah a child protection worker attended at the school and met with Ms. Grisolia and her principal Ms. D’Agostino. PCAS investigation [ 28 ] Ms. L. Oxley had previously been the child protection worker assigned to C.D. prior to the Society closing the file on November 18, 2015. She was re-assigned after the March 22 call. She spoke to C.D. at her home. The mother denied hitting M.

C.D. said that the March 22 injury was caused when M. was in the bathroom trying to wash her clothes and she hit her herself on the vice clamps that were attached to a faucet. C.D. explained the other injuries to M. by stating that the twins threw toys at her and there were many times when M. and her sisters were in the bedroom playing when she might has sustained a minor cut or bruise. [ 29 ] Ms. Oxley had another meeting at the home on April 5. She had no concerns when she observed the four children there. Ms. Oxley called the family physician Dr. K. Marshall the next day and she did not report any concerns.

Ms. Oxley tried to persuade C.D. to work voluntarily with the Society. When C.D. declined to do so Ms. Oxley said that the Society would then be required to go to court to obtain a supervision order. That did not happen prior to a new report from Ms. Grisolia on April 28. [ 30 ] C.D.’s evidence was that she had good reasons for not cooperating with the Society. The PCAS had apprehended her children in June 2012, and she did not get them back until February 2014. She said she had done nothing wrong. She denied ever hitting any of her children or any children that were in her care.

She felt that ever since the Society had been required to close their file in November 2015 their workers had looked for ways to find fault with her. She was particularly aggrieved by Ms. Oxley who had been the worker from March 2013 to November 2015. C.D. felt targeted by the Society. [ 31 ] C.D. stated that when M missed school, which she did quite often, it was for many different reasons including doctor’s appointments, M. missing the bus and illness. There was evidence that on some, but certainly not all of the absences C.D. had provided a reason for the absence.

There was also evidence that there was no proof of doctor’s appointments and the school did not verify the reasons. The April 28 injury [ 32 ] Ms. Grisolia said that M. had unexplained absences on April 26 and 27 and on April 28 she attended school with an injury to her face. In her affidavit she stated that she observed “a red bruise under her left eye and cheekbone”. C.D. had left a voicemail message for Ms. Grisolia that morning.

When the teacher called back C.D. told her that M. had sustained the injury to her face by hitting herself with a zipper. [ 33 ] Notwithstanding the explanation the teacher called the Society. The report was received by Society worker Ms. M. Williams. She filed an affidavit and was cross-examined. She was on the community care giver serious incident team. This team received any referrals of serious incidents made by teachers or day care providers. In this way the Society sought to avoid the “cognitive bias” that could possibly influence workers who had been involved with the family before.

She said that where a family has a history with the Society it was important to have a “fresh set of eyes” involved to avoid any concern about “groupthink” developing within the team that had worked with the family. Joint investigation [ 34 ] Ms. M. Williams contacted the Peel Regional Police Special Victims Unit and with them developed a joint investigation plan. It was agreed that the Society would attend the school to observe M.’s injuries and the Society would contact the Hospital for Sick Children’s Suspected Child Abuse and Neglect (“SCAN”) team.

The police would interview the twins As. and Aa. (as M. was non- verbal she would not be interviewed). [ 35 ] Ms. Oxley attended at St. Nicholas school and used her phone to take photographs of M.’s face. She sent the photographs to Ms. Williams. One of the photos was filed as an exhibit and what it depicted was a contested issue. There was no doubt that there was an area of redness on the left cheek and a scratch above the area of redness. [ 36 ] Ms. Williams attended at S[…]’s school to meet the twins. She noted that Aa. had no visible injuries. Ms.

Williams observed a linear mark on As.’s left cheek which appeared to be a scar. She also noted a slight cut at the very top of As.’ head where her hairline began. This five millimetre cut did not require medical attention. [ 37 ] Ms. Williams accompanied As. and Aa. to the police station. The children were taken into separate rooms for their interviews. Aa. was interviewed by Constable Melo and As. by Constable DiNardo. Both officers gave evidence. Constable DiNardo [ 38 ] Constable DiNardo had been a Peel police officer for 16 years, the last five years with the Special Victims Unit (“SVU”).

In that role he dealt with child abuse cases and sexual assaults. He had taken a two week course on interviewing children and he had

interviewed children ranging in age from 3 to 17. [ 39 ] On April 28, 2016, he interviewed As. at the police station. Prior to so doing he had had been told by Ms. Williams by telephone that M. had attended at school with an injury to her face. He spoke to Ms. Grisolia and was aware of M.’s developmental delay and knew that she could not be interviewed. He received a letter from Ms. Grisolia.

The letter said that on April 28 M. was taken off the school bus by the educational resource workers and the bus driver said that C.D. had asked her to communicate that they were not to touch M.’s face but they did not know why. Ms. Grisolia wrote that she observed that M. had a red raised bump on her left cheek. “Bruising was evident”. The teacher wrote that that morning the C.D. called in to say that M. had hit herself with a coat zipper. [ 40 ] Constable DiNardo received the photographs of M. taken by Ms. Oxley.

He also searched the police data base and was aware that C.D. had been charged with assault on a child previously and that she had been acquitted at trial. [ 41 ] The 31 minute interview with As. was videoed and a transcript was filed. The transcript was not certified. It was prepared by an administrative assistant at the police station from the video. Constable DiNardo said that she does as close to a verbatim transcript as possible.

The officer had watched the video again the night before testifying and said that there was nothing said in the video that was omitted from the transcript. [ 42 ] As. was only four years old and the officer said she spoke softly (“inaudible” was noted in response to general opening questions). The officer made positive statements to her and encouraged her to speak up. The relevant part of the transcript is set out below; As. - Aa. spit at me Cst. She spit at you that is bad eh? What did mommy do after she spit at you? Aa She tell me… Cst. She did what? As. She beat her up Cst. She beat her? What did she do? As.

And Aa. cried Cst. She cried eh? You said she beats her, what do you mean? What I don’t understand? Aa. Um to say sorry Cst. To say sorry, um so your sister she spit on you right, which is bad, and that is breaking the rules, and then you said your mom beat on her? Okay when you say your mom beat on her what do you mean, what did your mom do? As. Um they will just say sorry to me Cst. She made her say sorry to you ? Okay what else did you mom do? As. (inaudible) Aa not going to do it again. Cst. That is good. And um, what did your mom do to Aa. As Aa is going to be nice now. Cst.

Ya, good that is good, what did your mom do to her As. My mom let’s Aa be nice A little further in the questioning As. said that he sister kicked her; Cst. She kicked you okay. Did you mom see what happened? What did your mom do? As. She beat Aa. Cst. She beat her again okay when you say she beats her can you help me understand, I don’t understand what do you mean what did she do? As. Um Aa pushing me in the couch Cst. Okay but you said that you mom beat Aa right? What do you mean, what did you mom do to her? As. (inaudible) and Aa get back in my spot.

Cst. Okay well what did your mom, you said your mom beat Aa., what did you mean by that As. Um, mommy let Aa apology. Cst. Okay um, but when you say that your mom beat Aa,right . What did she do to her, can you explain it to me show, can you show me? Show me what your mom did Aa. Okay my mommy did this, Aa has to go in time out Cst. Ya you were sayig before that your mom, um your mum beat her. Can you show me what your mom did, what did she do? As. My mom did, mummy did beat Aa understand (inaudible) [ 43 ] Constable DiNardo did not remember any gestures that the child may have made while being questioned.

The video was not shown at the trial (it was shown at C.D.’s criminal trial at which she was acquitted of two charges of assault one on Aa and one on M.). [ 44 ] I set the transcript out in some detail as the mother’s position is that she has never hit any of her children or any children in her care. In his cross-examination of the officer Mr. Sharpe noted that it was the officer who said to the child five times that mommy beat Aa. until the child finally made that statement. In his submissions he maintained that the child’s earlier statements that “she beat Aa” did not mean that “mommy” beat Aa.

He argued that “she” could have been any one of the five females (mother and four daughters) in the house at the time. [ 45 ] Mr. Sharpe argued that the child’s statements were often not responsive to the questions and that they cannot be relied upon to suggest in any way that C.D. had hit Aa. [ 46 ] There is no doubt that As. did not provide any detail of what happened. However, I find that when As. said “she” beats her she meant that her mother beat Aa. No other explanation makes any sense. The child said Aa. spit at her, she was asked what the mother did and she responded “she beats her”.

She did not elaborate as to what the mother did, despite the best efforts of the officer to have her do so, but she did state that Aa. had to apologize to her. I find that whatever “beat” meant it appears to have been done as a form of physical discipline to elicit an apology for bad behaviour. It also appears that the apology was given. Constable Melo [ 47 ] Constable S. Melo stated that she had been with the Peel Regional police service since 2001 and had spent the last five years with the SVU. She said that she assisted with the joint investigation by conducting the interview with child Aa.

She said that she did not recall if she had any information about the family before doing the interview. [ 48 ] Unlike Constable DiNardo’s interview with As. there was not a full transcript of the interview with Aa. A

summary of the child’s statements was completed by Constable Innes of the SVU after watching the video. Constable Melo said she had only seen that

summary the morning of this trial. She required the

summary to refresh her memory as to what had been said. She said that while her questions were not set out she had been trained to ask open ended questions when interviewing young children and she was aware that young children can be easily influenced by the interviewer. She said the interview lasted ten minutes. [ 49 ] The relevant

section of the

summary read as follows; As. pushes Mommy slapped M. because she was bad M. peed on my panties M. bathed Mommy is still angry at M. [ 50 ] Constable Melo had no memory of the actual question asked that elicited the response “Mommy slapped M. because she was bad”. The officer said that she had obtained a statement from the child and she provided that information to Constable DiNardo. That ended her involvement with this matter.

Police interview of C.D. [ 51 ] Constable DiNardo said that after the two interviews of the children had been conducted he just relayed information to other officers in the unit so that the next steps could be determined. The officer said he had decided that he had reasonable grounds to arrest C.D. for assault upon Aa. and M. [ 52 ] After making the decision to arrest C.D. Constable DiNardo decided to interview her and he asked her to come to the station. The transcript of this one hour interview was filed. The officer began the interview by telling C.D. that she was under arrest for assault.

He then read her rights. C.D waived the right to a lawyer and her right to silence. [ 53 ] Constable DiNardo said he had seen the mark on M.’s cheek and it was a “pretty good mark”. He testified that what he meant was that it was a significant injury. Under cross-examination he conceded to Mr. Sharpe that in his initial incident report he had described

what he had seen on M’s left cheek as a “minor scratch”. No marks were observed on the twins. [ 54 ] He told C.D. that Aa. had said that she had seen her hit M. and he wanted to hear her side of the story. C.D. responded that Aa. could not have seen her hit M. as the twins had already left for school. She was home with M. She said she “cuss them out and M face but I never took, do it what is it called” She tried to clarify that she did not do it “willingly.” [ 55 ] C.D. said she was making her lunch with her youngest D. on the counter. M.’s school bus was honking outside.

She picked up M.’s jacket and threw it towards M. and that is what caused the injury. Later she said that there were actually two jackets and when M. reached out to catch them one fell on the floor and the other one M. caught by pulling it into her face. She said the child was scratched by the zipper on the jacket. [ 56 ] In the interview with the police C.D. said that when she saw the mark “ And I kiss it and I said I am so sorry M. but I am in a hurry I am so sorry…” [ 57 ] The following exchange was set out in the transcript; Cst. Ya and when I say a good mark I mean it took some force to do that mark. C.D.

No I swear to God I did not. I throw the two jacket at her that is it. [ 58 ] Later on C.D. acknowledged seeing the red mark and stated; So if I was hiding it she would not go to school today you guys wouldn’t be involved because she wouldn’t have to go to school today I could have call in sick and she don’t go in school for the rest of the week until it is better. So I wasn’t hiding anything I sent her to school”. [ 59 ] Constable DiNardo pursued the issue of how much force would need to be exerted to cause the mark that he saw.

He said it would require a person to “whip the jacket pretty hard” and C.D. responded; I never whip it I just throw it and I have no maybe I go with force, maybe the force too because I didn’t throw it hard, it is both of them and you don’t live with M. so you don’t know what you have to do with her” [ 60 ] Further on in the interview C.D. describe her busy mornings getting three children off to school while caring for her toddler. She said if anybody did not have their shoes on “I am going to beat” and if they don’t have their jacket on “I am going to beat”.

She said that she said she is going to beat but “I don’t beat because I am scared of Children’s Aid”. She then said “I don’t beat them I don’t hit them”. [ 61 ] C.D. was then asked why M. had missed the two days of school immediately prior to April 28. C.D. said that she woke up late and then she said how their basement apartment was so cold and M. was coughing. It is noted that C. D. called the school to advise that M. had an injury to her face on April 28 but she did not call the school with any explanation on the previous two days.

The apprehension [ 62 ] At the end of the interview Constable DiNardo advised that C.D. would be kept in custody overnight and he asked her if she had anyone that could look after the children. She said that she could not reach her boyfriend S.J. who was working out of town and no one else was available. All four children were then apprehended. [ 63 ] Constable DiNardo explained that C.D. was held over for a bail hearing for the safety of her children. Mr.

Sharpe noted that there were no allegations that related to the year old child D., there were no restrictions recommended to the Crown by him on C.D.’s contact with D. His point was that D. would not have had to have been apprehended had the officer just released C.D. that night as she could have taken D. home with her. The PCAS evidence was clear that they had made no decision on apprehension until the police completed their investigation and made a decision on whether or not to charge C.D. and whether or not to hold her overnight for a bail hearing. Mr.

Sharpe said that the PCAS had the police facilitate an apprehension by keeping C.D. overnight. Constable DiNardo said that the sequence of events was simply that once the police made a decision to keep C.D. overnight for the bail hearing the PCAS needed to decide what to do. He denied the allegation that the PCAS and the Peel police colluded in causing an unnecessary apprehension of D. SCAN report [ 64 ] A decision was made to have M. seen by SCAN on April 29, 2016. Ms. Oxley took her there. Dr.

Michelle Shouldice gave evidence and was qualified as an expert in pediatric medicine and the assessment of injuries in children. She had been the director of SCAN from 2003-2014. Her job title now was head of pediatric medicine and acting head of adolescents at the Hospital for Sick Children. She brought to court the notes taken, and diagrams drawn, at SCAN. [ 65 ] Dr. Shouldice stated that she supervises other pediatricians and residents. Dr. Lord did the examination and completed the diagram and Dr. Shouldice checked her work and signed off on the notes and diagram.

SCAN was advised that M. had global developmental delays and was non-verbal. The notes indicated that they were provided with information about the March 22 injury and other injuries reported by the school. The notes also stated that SCAN was advised that the mother had stated that the April 28 injury was due to M. being hit by a zipper. The doctors were told that Aa. said that C.D. beat M. and that As. said she slapped Aa. It was noted that the twins had no marks. [ 66 ] The SCAN notes stated that M had a “cheek bruise-non-specific in terms of injury type, size and location”. Dr.

Shouldice said the red bruise could have been inflicted by force over the cheek bone. She did not see any swelling. She said what was observed was a bruise and not acne. There was some acne near the hairline and near M’s nose. The diagram showed that the bruise measured 4 x1.5 cm. [ 67 ] The diagram showed that there were hypo-pigmented linear marks above the bruise of 1 cm and 2 cm respectively. The doctor

said that the mark that had scabbing may have been missed in the examination or it may be a healing scratch or the scabbing look may relate to how it was caused. I concluded from her evidence that it was possible that one of these marks was the scratch noted the day before and one was an earlier scar. [ 68 ] The doctors noted other injuries on M’s body included curvilinear marks that could be bite marks on her back and near her shoulder. The doctor confirmed that those marks were not there when M. was examined by SCAN in 2012.

There were also hyper- pigmented marks on the upper left arm which were unusual for an accidental injury. The doctor said that “hypo” meant that the skin was less pigmented and “hyper” meant that it was more pigmented. Dr. Shouldice said that with children who have pigmented skin (and M. is black) whether a mark is hypo or hyper does not tell anything about the injury. The doctor could not specifically date any of the other injuries noted. She agreed with the suggestion that the production of melanin which impacts the skin colour can be the result of many factors. Dr.

Shouldice said she thought that it was very unlikely that the red mark is just M’s natural colouration. Criminal trial re: M. and Aa. [ 69 ] The assault charges were tried by the Honourable Justice D. McLeod of the Ontario Court of Justice on July 12, 2017. His reasons for judgment were filed as an exhibit. Justice McLeod noted that three witnesses testified; Aa. As. and Ms. Grisolia. Based upon the evidence heard the Crown invited Justice McLeod to enter an acquittal on the second count which was the allegation that C.D. had hit the child Aa.

The court was left to deal with the allegation made by Aa. that C.D. had slapped M. on the left side of her face with her hand. [ 70 ] The court noted that the Crown position was that even though the testimony of the twins particularly As. had its inconsistencies looked at in the totality it should lead to a conviction. The photograph was said to be corroborating evidence and the judge made reference to the bruising observed in the picture. The defence submitted that the evidence of the twins was too unreliable and must leave the court in a state of reasonable doubt.

Justice Mcleod found the twins evidence to be unreliable. As. never saw C.D. slap M. in the face and the only slapping she had seen was in M.’s buttocks area. Aa. did remember C.D. slapping M. but at another point said she did not remember M being slapped at all. [ 71 ] Justice McLeod also noted difficulties with the photo in that the court; does not have the ability to see the other side of the girl’s face to see if there is any symmetery between what is seen there and what presents on the other side. [ 72 ] Justice McLeod also stated that he did not find that Aa.’s credibility was in issue.

He felt she had done her best to give evidence. He then referred to R .v. W.D. a decision of the Supreme Court of Canada with respect to the analytical process that a judge must engage in when considering whether a case has been made out by the Crown beyond a reasonable doubt. He entered an acquittal. [ 73 ] The burden of proof in a civil matter (including a child protection matter) is proof on the balance of probabilities not proof beyond a reasonable doubt. In this matter I am unable to find on a balance of probabilities that M. was slapped in the face by C.D. on April 28. I accept the evidence from Dr.

Shouldice at SCAN that the scratch and bruise on the cheek could have been caused by an accident. I do not believe though that a tossed jacket fumbled into the face would cause the cheek to turn red and be swollen to the degree reported by Ms. Grisolia. Child protection findings based on care since November 18, 2015 [ 74 ] In this matter though I do not need to decide exactly how the injury was caused. I know that the injury did not happen outside of the home as M. did not leave the home from April 26 to her attendance at school on the morning of April 28.

C.D. was the only adult with M. in the home during the time period when this injury was suffered. The expert from SCAN was unable to say when the injury occurred. I find it could have occurred before the twins left for school or even the evening before. There could have already been a bruise on the cheek when the coat was tossed, if it was in fact tossed, such that the scratch and the bruise were not caused at the same time.

The key point though is that a vulnerable non-verbal developmentally delayed child suffered an injury to her face while in the direct care of her mother. [ 75 ] This was not an isolated injury. I accept the evidence of Ms. Grisolia that M. had suffered other unexplained injuries in the period of time between October 2015 and April 28, 2016. The teacher said that she had not been made aware of the family’s child protection history when M. joined her school. She had no reason to be particularly attuned to M. possibly being abused at home.

She said that M. did not fall at school and was not hit or interfered with by other students. All of the M’s injuries occurred at her home. It is understandable that M. might have been hurt by sibling interaction but C.D. never called her to state that that had occurred. The explanation for the March 22 marks around the eye was that the child was washing clothes in the bathroom and hit her head.

Even if that were true this would show that M. was unsupervised by her mother. [ 76 ] I find that M. is a child in need of protection due to her suffering actual harm either caused by C.D.’s hitting her or by C.D’s lack of supervision of her as a vulnerable child who required constant supervision. [ 77 ] I do not find that Aa. suffered actual physical harm. However, C.D.’s inability to control her frustration and anger had caused her to threaten her children with beatings. I find that based upon the twins statements that it is likely that C.D. hit her children when she was very upset.

While neither twin may be able to tell a police officer, or a court, exactly what happened and when I find that their separate statements to Constable DiNardo and Constable Melo that “mommy slaps’ or “Mommy beats” are very unlikely to have been totally made up. There was a considerable amount of evidence in this matter that all of the children had a close and loving relationship with their mother. They had no reason to make up that she was hitting them. They did not even seem to understand the possible consequences of such a statement.

They just talked in the manner of children of their age and they independently said that their mother hit them or their sister. They did not seem to think that there was anything unusual about that. They effectively said that there was bad behaviour, mommy beat the offending child, the bad behaviour stopped and there was an apology. Prior proceedings

[ 78 ] I need to determine if these children are still in need of protection today such that a disposition needs to be made. The prior proceedings do add context to the current proceeding and pursuant to s. 93 of the CYFSA the document brief with the prior decisions and reasons was filed as evidence of past parenting. First child protection proceeding [ 79 ] The first proceeding was in 2004 and concerned the then 13 and 14 year old sons of D. M. and t heir respective mothers. C.D. was a step-parent to the boys, and a party to the proceeding, as the boys had been residing with D. M. and C.

D prior to the Society’s involvement. That proceeding resulted in two final orders made by the Honourable Justice J. D. Karswick on May 18, 2005. One for the child De. M. and the other for the child L. M. Each order found the respective child to be in need of protection pursuant to the following subsections of s. 37 (2); (a) (i) (which can be summarized as physical harm from failure to provide care) a) (ii) (physical harm by pattern of neglect ii) , b) (i) (risk of physical harm by failure to provide care) (

b) ii) (risk of physical harm by a pattern of neglect) and (g) (risk of emotional harm). Both children were made Wards of the Crown. The document brief contains the final orders but not the reasons for decision. Therefore, Justice Karswick’s findings of fact are not before this court. All other reasons for decision, transcripts or Statements of Agreed Fact referred to below are found in the Society’s document brief.

Second child protection proceeding [ 80 ] The second child protection proceeding began in June 2012 and concerned the eldest three children in this proceeding and C.D.’s step-child K.B. (the daughter of G.B.). A temporary care hearing was held in this matter. The transcript of Justice Pawagi’s oral reasons for decision showed that she found that all four children should remain in the temporary care of the Society. On August 28, 2013, K.B. was placed in the care of her biological mother Sh. J. under supervision. At that same time the criminal trial of C.D. for allegedly assaulting K.B. was heard by Justice T.

Wolder. His reasons for decision were released on December 6, 2013. He made certain findings of fact but ultimately concluded that he was not persuaded beyond a reasonable doubt and he acquitted the mother of all charges. [ 81 ] On February 5, 2014, the three eldest children in this proceeding were placed with C.D. subject to Society supervision. On September 30, 2015, I heard a

summary judgment motion with respect to statutory and child protection findings concerning K.B. and the three eldest children. I released my reasons for decision on October 15, 2015, and I found all four children to be in need of protection. K.B.’s finding was on physical harm and the risk of physical harm and other grounds. The three other children’s findings were based upon the risk of physical harm from failure to provide care or from a pattern of neglect. [ 82 ] On November 18, 2015, the parties filed a Statement of Agreed Facts whereby the three eldest children in this proceeding were placed in the care of the mother C.D. pursuant to s. 57 (9) of the CFSA. (This

section provides that children can be returned to a parent where they have been found to be in need of protection but no further order is required to protect the children in the future) Current child protection proceeding [ 83 ] The child D. was born on […], 2015. As noted above the mother C. D. was acquitted on criminal charges of assaulting the children M. and Aa. Those two children plus As. and D. were apprehended from the mother’s care on April 29, 2016. They have not returned to the mother’s care since. On December 23, 2016, Justice Dunn heard a temporary care motion with respect to the four children.

In his reasons for decision released on January 30, 2017, he found that all four children should be in the temporary care of the Society with supervised access to the mother C.D. [ 84 ] As noted above on November 29, 2017, Justice Dunn heard a

summary judgment motion with respect to statutory and protection findings and disposition. He made statutory findings (with the exception of D. an oversight which was addressed by a consent finding that I ultimately made on October 18, 2018). Justice Dunn found that “this case is too complex to be considered in a

summary judgment motion as there are serious credibility issues not resolvable by reading affidavits”. He set out the genuine issues that required a trial and suggested “areas where further information could be helpful to the court or cross-examination of person(

s) may be beneficial or both”. [ 85 ] Finally, a place of safety hearing was held regarding D. when the Society learned in August 2018 that she was not residing with her father S. J. in Antigua but had in fact been residing for some time with the mother C.D. My endorsement of September 4, 2018 sets out the reasons for my temporary order that D. be placed in the care of the Society. C.D.’s position [ 86 ] As noted above C.D. took the position that she had never hit any child in her care. She provided an explanation for the injuries observed on M. There were no observed injuries to the other three children.

I have found that M. was injured while under her direct care and supervision. It is common ground that the only evidence that C.D. directly inflicted injuries on her children was that of the twin’s statements and they were only four years old at the time of the alleged events. [ 87 ] At the time of the apprehension on April 28, 2016, C.D. was living in a basement apartment with a 12 year old globally developmentally delayed child, two four year old twins and a one year old child. She had no caregiving help.

It would be understandable if she said she was overwhelmed and often tired and frustrated although she did not state that. C.D. did not concede that she ever had any difficulties parenting her children. The theory of her entire case was that the fathers of her children did have issues with anger and aggression towards her and that she had protected her children by moving out of bad relationships. She said that the Society was persecuting her and she queried if it was because she was black and Muslim. She said that there was absolutely no evidence of any protection concerns with respect to her parenting.

Physical aggression with children [ 88 ] C.D. was living with G.B. when their twins were born on […], 2011. Her eldest daughter K.Q., then 15, was living with them. While I had made a ruling in this trial that there was to be no evidence concerning child protection proceedings prior to November 18, 2015, there was some evidence that emerged from the narrative as to who was living where and when. There was evidence that G.B.

wanted to sponsor his eight year old daughter K.B. to immigrate to Jamaica from Canada and that C.D. very reluctantly agreed. K.B. was developmentally delayed. There was evidence that K.B. arrived in December 2011 just after the twin’s birth. [ 89 ] On January 30, 2012, G.B. was arrested and charged with sexual interference for touching K.Q. on at least two occasions. He was arrested and removed from the home. This resulted in C.D. being the sole caregiver for the infant twins, M., K.B. and K.Q. in her basement apartment. The Society became involved with C.D. over allegations that she had physically abused K.B.

The five children were apprehended in June 2012. A temporary care hearing was held before Justice M.B. Pawagi in November 2012. A transcript of her oral reasons for decision of November 26, 2012 was filed with the court. [ 90 ] Justice Pawagi reviewed C.D.’s history to that point with the Society. At that time C.D. was using the surname B. and the names in the transcript were not initialized. For ease of reference I will refer to persons by the initials used in this proceeding. Justice Pawagi began by stating that she was prepared to return K. Q. to her mother subject to a supervision order.

She then said; With respect to the three younger children, I find that there is risk such that a supervision order would not alleviate that and the basis for that is the evidence that was provided by the Society. It goes back to 2002 to 2004 where there were serious concerns noted with respect to her two steps sons… (De. M and L. M)….-allegations of physical discipline, deprivation of food and being left alone, and I am specifically noting that on July 6, 2004 the Peel Police contacted the Society to report that the M. boys were found living in an abandoned house and that they had reported being beaten by …(D.

M. and C. D)….and forced to drink toilet water. They detailed the allegations both with respect to…(D.M. and C.D)….and at the end of that the M. boys were made Crown wards. …C.D. and M. then go to Jamaica. The file is opened again in October 2006 when K. Q. discloses physical discipline by her mother… (C.D.)…She said that she had been punched in the stomach, hit on the head and in the face with a clothes hangar and that a one inch mark on her face had been caused as a result. She reported that her mother regularly used hitting and kicking as a means of discipline with (sic) since K.

Q. had arrived from Jamaica two years earlier. There is also a report on February 8, 2008 where staff at the daycare M. attended say that they witnessed C.D. punch K. Q. in the face causing her to stumble backward and she is charged with assault at this time. I am turning to the allegations with respect to… (K. B)…. This is a five year old (sic) step-child of C.D. who comes into her care approximately in January 2012. The allegations are initially reported by Mr. Clark…(K. B’s)….kindergarten teacher and the

summary is as follows….That he advises the Society that…(K .B.)…seemed happier when she began school in January 2012 and that by June 2012 she appeared sad all the time. Then there are a series of allegations, June 4 he observes her with a bruise on her cheek and under her eye and that she had defecated in her pants and that she had been having accidents previously. On June 12 th he observed fresh bruises on her face and swollen cheek and scratches on her neck.

On June 13 he observes new bruises, observes that her tongue has appeared to be split and takes a picture of that. [ 91 ] K.B. was taken to the SCAN unit at Sick Kids. Dr. Sarah Schwartz listed the injuries that she presented with upon admission. They were as follows;

a) Bruises of the face, thighs and buttocks,

b) Hyperpigmented (darker skin) marks to the face and neck,

c) Mouth injuries including a tongue laceration and a torn frenulum,

d) A subconjunctival hemorrhage in her left eye,

e) Fractures of the right clavicle,

f) Fracture of the left 1st rib,

g) Fracture of the 1st cervical vertebrae,

h) Subdural hematomas (bleeding around the brain),

i) Brain contusions and shearing injuries of the corpus callosum,

j) Extramedullary hemorrhage in the spine, and

k) Healed complete transections of the hymen on genital exam. [ 92 ] Dr. Schwartz noted that the SCAN program concluded that K.B.’s injuries were not caused by any pre-existing medical conditions. Several of the injuries were severe and unusual. The multiple injuries in multiple locations on the body made the injuries highly suspicious for inflicted injury.

The doctor said that upon sustaining many of the injuries K.B. would have experienced a great deal of pain. [ 93 ] After noting the injuries sustained Justice Pawagi noted that the evidence was that all of the injuries with the exception of the one in the genital area would have occurred within days or weeks prior to her admission to hospital. This was the time when she was in the care of C.D. after G.B. had been removed from the home. [ 94 ] Justice Pawagi noted C.D.’s only explanation for the injuries was that M caused them.

She found that to be inconsistent with all of the other evidence before the court and found it likely that C.D. caused the injuries to K.B. She stated that the evidence was that the child was unwanted and was treated in a cruel manner and as an interloper in the home. Criminal trial re: K.B.

[ 95 ] C.D. was criminally charged with assaulting K.B. during the period between March and June 13, 2012. The reasons for judgment of Justice T. Wolder were released on December 5, 2013. Justice Wolder found on the evidence that during this period of time there were four persons in the home who interacted with the child on a regular basis C.D. G.B., M. and K.Q. (the twins were infants). Justice Wolder found that; It is clear from the evidence that the accused was the primary caretaker in the home in which the child… (K. B)… lived. The bruising that K.B. sustained was from time to time was obvious.

It was obvious to her home room teacher and to the school principal. It would also have been obvious to the accused. I am satisfied that there appeared to be a lack of concern for K.B.’s well-being in the home and that the accused would have been fully aware that the child was being harmed and was sustaining injuries while residing in her home.

There is no evidence that anyone, other than school officials, ever took steps to address the harm that the child was sustaining at her home during the months of March through June 2012. [ 96 ] Later on his decision Justice Wolder stated that; I am satisfied beyond a reasonable doubt that K.B. was abused while in the home of her father and the accused. I also find that she was abused by numerous individuals in the home. I am also satisfied that the accused and her father …G.

B…. failed to protect the child from the abuse that she sustained in the home. [ 97 ] Ultimately Justice Wolder had a reasonable doubt as to whether C.D. intentionally inflicted injuries on K.B. and he acquitted her on all five counts. [ 98 ] On October 15, 2015, I released my reasons for judgment after a

summary judgment motion regarding protection findings with respect to K.B. M. and the twins. I commented on Justice Wolder’s reasons as follows. It appears clear from the decision that Justice Wolder understood from the evidence before him that… (C.D. and G. B)…. were living together at the time that…( K. B…) suffered injuries as he referred to the home of the father and the accused. The evidence before me makes it clear that ( G. .B…) moved out of..( C.D.’s).. home in January 2012. …(K.B.)… went to live with her father between April 9 and May 2, 2012.

The Society’s position based upon the SCAN report was that most of the injuries occurred within 10 days of June 23. The only other people in the home other than C.D. who could have inflicted injuries were the siblings and the only real evidence of another person who could have caused her harm was evidence related to…( K.B.’s).. rough treatment at the hands of M. [ 99 ] The child K. Q. was returned to the care of her mother after the temporary care and custody hearing on November 26, 2012. K.B. was placed with her mother Sh. J. in the summer of 2013 and C.D. has had no further contact with her.

The children M., Aa, and As. were returned to the care of C.D. under a temporary supervision order on February 5, 2014. This meant that when the protection findings were made on October 15, 2015, there were no children still in care. I declined to make an order that no disposition was required under s. 59 of the CFSA. That order was made on consent after the filing of a Statement of Agreed Facts on November 18, 2015. [ 100 ] C.D. takes the position that she has never hit any of her children.

She relies on the fact that she was acquitted of all the charges against her both in 2013 (K.B.) and 2017 (M. and Aa.) It is true that with very young or developmentally delayed children as witnesses the Crown was unable to meet the burden of proof upon them of beyond a reasonable doubt. However, a review of all of the judgments leads to the inescapable conclusion that C.D. did hit children in her care. [ 101 ] The evidence of past parenting buttresses the evidence of parenting after November 18, 2015. The pattern was the same.

A vulnerable child attending school with injuries and explanations for them that strain credibility. There was also evidence at this trial of ongoing anger management issues that have caused C.D. to act out violently even when it presented a risk to the safety of her child. Criminal Charge in 2017 [ 102 ] Officer Dhami was called to give evidence. He had been with the Peel Regional Police since 2012. His occurrence report of Feb. 23, 2017 was filed as an exhibit. On the day in question the officer was dispatched to 39 Pluto Drive, Brampton to investigate an alleged domestic assault.

C.D. had called the police and said that she had been punched several times in the face and her face was swollen. She had declined an ambulance. [ 103 ] When the officer arrived at the scene C.D. advised that she had exaggerated the assault and there had only been a verbal assault. She said she had been in a relationship with S. J. since August 2016. Her four children had been in the care of the PCAS since April 28. Officer Dhami testified that C.D. told him she and S. J. had an argument over her scheduled visit with her children. He was late in arriving home.

She became so upset that she grabbed a knife and slashed all four tires on his vehicle. S. J. then did the same thing to her vehicle. At that point she called the police and made up a story of physical assault. [ 104 ] When Officer Dhami had C.D. in custody on the street he heard a child crying and male appeared holding a young girl. The officer spoke to C.D. and learned that the child was her daughter D. The officer called for additional units as he had two adults in custody and their child in the hands of the basement tenant. The tenant had responded to the child’s crying from the top floor of the house.

C.D. and S. J. were taken to the police station and both were charged with mischief under. Those charges have been resolved. [ 105 ] When C.D. gave her evidence she admitted lying to the police and slashing S. J.’s tires. She noted that D. was living with S. J. as the child had been temporarily placed with her father S.J. in August, 2016. I reviewed the order made by Justice A.W. Sullivan on August 15, 2016. On the order S. J.’s address is listed as 39 Pluto and C.D. had a different Brampton address. The child was placed with S.

J. subject to Society supervision and C.D.’s access to D. was subject to Society approval. [ 106 ] The occurrence report showed that both C.D. and S. J. lived at 39 Pluto. It appeared that the Society was unaware that the parties were living together with D. at the time. It also appeared that the Society were unaware of the mischief charge.

[ 107 ] There are a few aspects of this incident that are relevant to ongoing protection concerns. C.D. was left caring for nearly two year old D. when S. J. was not home. C.D. then got into an argument in which she was so angry she grabbed a knife and went outside leaving the child alone in the house. She slashed S.J.’s tires, then made a false report to the police and did not bother telling the police that her child was alone in the house. Fortunately the basement tenant had the presence of mind to go upstairs to retrieve the crying child.

At a time when she was not even to be with her daughter C.D. was left caring for her and she could not do so without putting her in danger. C.D’s support system [ 108 ] C.D. is seeking a return of four children to her care. Three of the children are under seven years old and the fourth has global developmental delays. The evidence was that C.D. had a very limited support system. C.D. herself told her counsellors that her biggest support was her now 22 year old daughter K. Q. who is now a full time university student in Ottawa.

K .Q. did come back from university when her mother was in crisis at the time of the August 30 apprehension of D. There is no doubt that mother and adult daughter share a bond and that K. Q. enjoys spending time with her siblings. However, given her age and stage in life K. Q. cannot be expected to be present on a consistent basis in C.D.’s home to provide parenting assistance. [ 109 ] C.D. called Dr. Karen Marshall as a witness. She has been a family doctor since 1997 and has been a specialist in family practice since 2002. C.D became her patient in April 2006. Dr.

Marshall reviewed her August 12, 2016 report and noted that she documented that C.D.’s children looked well cared for. She confirmed that she was aware that M. has global delays. She was the one who had referred M. to a pediatrician, Dr. Contreras who referred her to ErinOaks for speech therapy. Dr. Marshall effectively said that when she saw C.D. with her children the mother seemed to be caring and concerned and she followed up on referrals that she made. Under cross-examination Dr. Marshall was directed to eight appointments that C.D. had made for herself and cancelled between June 7, 2016 and May 29, 2018.

C.D. put Dr. Marshall forward as a support to her, but she has not seen her, with or without the children, since September 6, 2017. [ 110 ] Ms. Pilch for the Society said that C.D. only focused on meeting her own needs and how others can assist her in meeting them. C.D.’s paternal aunt L. D. testified that “C.D. only calls me when she needs something”. C.D. spoke of her warm relationship with her first cousin C.S. notwithstanding that with all of the turmoil in her life C.D. had not talked to C.S. in ten years.

She only spoke to her in August 2017 at the suggestion of her mother who lives in Jamaica and is the sister of C.S.’s father. [ 111 ] Naheed Zuberi was called to testify for C.D. She has known C.D. for ten years as she is the outreach secretary for the local Ahmidayah Muslim community. Ms. Zuberi presented as a kind, helpful person who would go out of her way to assist anyone in her community who asked for help.

She noted that as C.D. lived in Malton (east Brampton) that the “sisters” serving that area of the city would be the ones who could provide direct help with food, transportation or whatever was needed for a family. She said though that C.D. would not outwardly ask for help. [ 112 ] Ms. Zuberi said that she recently met C.D. with her youngest child D. She had no concerns when she observed D. playing with her mother. She said she was prepared to help C.D. find child care for D. It was clear that Ms.

Zuberi was completely unaware of the fact that there was a court order in effect by which D. was to be in the care of her father S. J. subject to Society supervision.

Summary [ 113 ] For all of the reasons set out above I find that the child protection concerns still exist and that they cannot be ameliorated without a further court order. DISPOSITION EVIDENCE [ 114 ] At this point it is necessary to consider the sub-sections of s. 101 of the CYFSA that are relevant to the facts in this matter. They read as follows; 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 s. 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. Court to inquire

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

section 102, the court shall ask the parties what efforts the Society or another person or entity has made to assist the child before intervention under this Part. 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 the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child. 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 the child immediately before intervention under this Part, the court shall, before making an order 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. Custody order 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. Deemed to be order under s. 28 Children’s Law Reform Act

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

section 104 that is made at the same time as the order under subsection (1) is 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. [ 115 ] Prior to a consideration of the appropriate disposition the court must consider s. 101(2) and review the efforts the Society has made to assist the child before intervention under this part of the Act . Efforts of Society to provide services [ 116 ] Mr. Sharpe said that the Society offered no services and did not recommend a single program to C.D. to get her children back. Ms. Pilch submitted that this

section allows the court to consider the services offered to the family during the entire period of Society involvement from June 2012 to just four months before the children were apprehended in April 2016. [ 117 ] I find that the court can look at the provision of services in the context of the entire history of C.D.’s involvement with the PCAS.

It is noted from the Statement of Agreed Facts filed on November 15, 2015, that C.D. did participate in the Society’s Therapeutic Access and Assessment Program (TAAP) from November 2013 until the children were placed back in her care subject to a temporary supervision order on February 14, 2014. Prior to the children’s return C.D. had participated in individual counselling from January 10, 2013 to August 23, 2013. Notwithstanding this assistance C.D. physically disciplined her children particularly M. almost as soon as the Society supervision ended.

The court must look at not only whether services were offered but whether the services were effective in addressing the underlying cause of the behaviour that led to child protection concerns. [ 118 ] Ms. Pilch submitted that the concerns that resulted in the file’s reopening in March 2016 demonstrate that if the programs and counselling had resulted in a change in behaviour it was not permanent.

She further submitted that C.D. may have been able to parent effectively in the TAAP program but when she faced a difficult real world environment of providing full time care for four children 24 hours a day, 7 days a week C.D. was unable to do so without a resurgence of her anger, frustration and poor impulse control. [ 119 ] After the April 28, 2016, apprehension C.D. was so upset with the Society that she refused to consider any advice or services offered by its workers.

When the Society did offer further anger management programming C.D. declined it as she said she was undergoing counselling through Family Services of Peel. [ 120 ] Mr. Sharpe called Ms. Mohanty of Family Services of Peel as a witness. She has been a counsellor since 2006 and had worked with C.D. in the past. She said that clients call and are assigned a counsellor and C.D. was assigned to her. The first appointment was on November 16, 2016 and C.D. was 30 minutes late so she could only give her the welcome package. On November 24, Ms. Mohanty listened as C.D. set out her current issues.

She said she needed to gather more information to establish goals for the counselling. On December 7, 2016 C.D. told Ms. Mohanty that she wanted to discuss coping with stress. C.D. then missed her next appointments which were during the period of time when she was charged with mischief for the tire slashing incident. She saw Ms. Mohanty for the last time on April 7, 2017. Ms. Mohanty said that with only three full sessions they were not able to establish and work on goals. She said that it was usually in the fourth session when the therapist and patient write down goals and sign off on them.

They did not reach the fourth session. Ms. Mohanty said that a client is able to have up to twelve appointments so it must have been C.D. that cancelled the counselling before any progress could be made. [ 121 ] The evidence of the Society witnesses was that C.D. had made it very clear that she did not want to work with them or accept any advice. The relevant workers all said that any course addressing anger management was acceptable and C.D. could arrange her own programs. Ms. Simamba the current child protection worker said that “…C.D…. could have gone to any program “as long as she owns the need”.

The Society position is that C.D. never really thought she had an anger management problem and therefore she had no interest in seeking out assistance. [ 122 ] There was evidence though that C.D. attended other programs. Ms. Faren Hale-Vokey from the Elizabeth Fry Society testified. From 2015 to 2017 she was the court liaison adult court counsellor at the Brampton court house. She admitted that she had little independent recollection of working with C.D. Their organization does not have psychologists on staff.

They simply look at how a female offender’s behaviours and thoughts culminated in the charge that brings them before the court. They work on different ways to emotionally regulate and communicate. Ms. Hale-Vokey said they rely upon the information disclosed by the client. The counsellors do

not contact the PCAS for verification or input. The counsellor said that a person needs to acknowledge the anger in order to learn how to cope with it. [ 123 ] C.D. called Victoria Bazely from the Family Education Centre in Peel to give evidence. She has a BSW and M.Ed. and she facilitates a parenting program. It is four week course with four hours every Saturday. C.D. attended the course that ran from October 13 to November 3, 2018. She noted that C.D. missed the third session of the program which covered positive communication skills, problem solving and discipline.

This meant that she missed one quarter of the course. Nevertheless C.D. was considered to have completed the program and she received a certificate. It is noted that this program began the week before the scheduled trial and followed a long period in which no anger management or parenting programs were taken. [ 124 ] I find that in all of the circumstances of this matter the Society did meet the onus upon it to assist the mother by offering or providing services that would assist her and thereby assist the children.

Supervision order? [ 125 ] The provisions of s. 101 (3) require that the court make the least disruptive order necessary to protect the child. This means that I must first consider whether the children, or any of them, could be returned to the mother subject to a supervision order. Lack of honesty and openness [ 126 ] Ms. Pilch for the Society stated that the evidence was clear that C.D. has not been open and honest with the Society and had completely refused to work with the Society to address the child protection concerns.

In her evidence C.D. denied that she had ever hit a child in her care or been responsible for any injuries that they have suffered. C.D. simply stated that the Society had chosen to persecute her when there was absolutely no evidence that should lead to a child protection concern. She minimized or dismissed all concerns and reacted to them by seeking evidence that it was the Society through its foster parents, or the father of her twins, who had actually caused harm to her children. [ 127 ] There was a great deal of evidence that C.D. was obsessed with finding fault with others.

C.D. has ninety minute visits with her children each week. She always takes her daughters to the washroom for extended periods of time. In her evidence she stated that she gave M. a shower every visit. She had her 14 year old daughter take her clothes off so her mother could examine her for injuries and wash her all over. She did not think that M. felt in any way uncomfortable with her doing this. On occasion she did find marks or bruises on her children. She asked the Society worker to investigate each time and they did provide her with a response on the next visit.

To be fair to C.D. any parent would be very concerned with noting bite marks on their child and the placement of M. in a group home appeared in hindsight to be ill advised. The burn to M’s chest area was another example of a legitimate inquiry but C.D. refused to accept the explanation that it was caused by a seatbelt or harness and insisted that her daughter was being intentionally abused. Access remained fully supervised [ 128 ] The children were apprehended on April 30, 2016, yet the visits never became unsupervised. C.D. actually had separate visits with D. that S. J. joined in when they were together.

C.D. gave up those separate weekly visits in favour of one visit with all of the children once a week. The evidence was that C.D. missed quite a few visits sometimes without any explanation. The current worker Ms. Simamba testified that the mother cancelled her visits on October 5 and 12, 2018 with this trial about to begin on October 22 (she attended October 19). [ 129 ] There was no doubt from the observations of the visit supervisors that C.D. had many parenting strengths. She was loving and affectionate with her children, and she was able to effectively direct and manage their behaviour.

There were some very concerning things said though. C.D. did not deny telling the twins that G.B. was not their father. She was clear in her evidence that she felt that she was the only one who truly loves her girls and the only one who could protect them from harm. I find that C.D. meets her needs through her children but she is not always sensitive to their needs. Deception with D. [ 130 ] The Society position is that C.D. is ungovernable. The strongest evidence of that was her deception with respect to D.

A court order was made on August 15, 2016 placing D. in the temporary care of her father S.J. subject to Society supervision. [ 131 ] C.D.’s access with D. was to be approved by the Society in advance. It now appears likely that C.D. and S. J. began to reside together from the time of the placement. It also appears likely that C.D. was the primary caregiver for D. We know that she took her to see Dr. Marshall and to counselling with Ms. Mohanty. Officer Dhami noted both C.D. and S. J. to be residing at 39 Pluto Drive in February 2017. C.D. admitted that S.

J. left D. with her when he left for Antigua on June 30, 2017. C .D. was very bitter about the fact that S. J. had to leave Canada. She said that the apprehension of the children caused her to lose her housing and forced her onto welfare (due to the loss of child tax benefits). She was then unable to continue sponsoring S. J.’s immigration which led to him being forced to leave the country and to be unable to return. By January 2018, C.D. had found work from 7:30 to 4:00 p.m. daily.

She arranged private daycare for D. and carried on her life knowing that the Society thought that D. had gone with her father to Antigua for a family funeral. [ 132 ] C.D. did not concede that there was anything wrong with her breaching a court order and effectively continuing a lie to the Society and the court which likely began in August 2016 and certainly occurred after June 2017 when S.J. left the country. She simply stated that “I was protecting my daughter”. C.D. knew that if she told the Society that S. J. left D. with her the child would most likely be apprehended.

I state most likely rather than certainly because later events show some inconsistency

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