[1]                       JUSTICE E.I. DELUZIO:—  This is an application by the Hastings Children’s Aid Society for Crown wardship of the following four children:

[2]                       S.T., K.T. and D.T. have been in the care of the society since they were apprehended from their parents on […] 2005.  They were apprehended following the death of their infant brother E.T. (born on […] 2005).  E.T., the biological child of Ms. A.S.1 and Mr. W.T., died on […] 2005.

[3]                       In its original application, the society sought an order of society wardship for six months with supervised access by the parents.  At the request of the society, the protection application was amended by order dated 28 February 2007 to claim Crown wardship of all three children with no access to the parents.

[4]                       N.S.1 was apprehended from his mother at birth and he has remained in the care of the society since that time.  The application is for an order of Crown wardship, no access, for N.S.1

[5]                       In the statement of agreed facts filed as exhibit 1, the children’s aid society confirmed its position that it was seeking an order of Crown wardship for all four children.  However, during final submissions, the society advised the court that it was now planning to return the children to the care of their mother.  The society asked the court to make a finding that the children are in need of protection and order a six-month supervision order.

[6]                       Ms. A.S.1 is asking the court to return the children to her care.  She consents to a finding that the children are in need of protection and a supervision order for six months.

[7]                       Mr. D.S.2 supports Ms. A.S.1’s position that N.S.1 be returned to her care.

[8]                       Mr. W.T. is awaiting trial on his second-degree murder charge.  He is currently serving an unrelated sentence.  He is not presenting a plan.

[9]                       On [...] 2001, the society received a referral from Dr. O’Brien, the obstetrician who delivered S.T. Dr. O'Brien was concerned about S.T.’s low birth weight.  The society investigated this referral and determined that Ms. A.S.1 was competent in her care of S.T. Ms. A.S.1 was breastfeeding S.T., taking her to medical appointments and co-operative with the society.  The family physician was seeing Ms. A.S.1 and S.T. biweekly and reported no concerns.  The society’s file was closed on 16 May 2001.

[10]                  On 18 April 2003, the society received a referral from the paternal grandmother of the children.  At this time, the family unit consisted of Ms. A.S.1, Mr. W.T., S.T. and K.T. Ms. A.S.1 was pregnant with D.T. The grandmother reported that the children lacked proper nutrition and that the parents were using marijuana, screaming at the children, using physical discipline and sometimes locked the children in their room.  As a result of this referral, the society conducted a child protection investigation.  Both parents admitted using marijuana and admitted to using some physical discipline such as tapping the children’s hands and buttocks.  The society found that the children had no marks and interacted positively with their parents.  The parents committed to cease using any physical discipline in favour of time-outs, which they were also using at the time of the investigation.  They agreed to be involved with the “Healthy Babies Healthy Children” program and the society closed its file two weeks later on 5 May 2003.

[11]                  On 24 April 2004, the society received a referral from Dr. Steinitz, a paediatric orthopaedic surgeon at Belleville General Hospital.  The family unit now consisted of Ms. A.S.1, Mr. W.T., S.T., K.T., and D.T. Dr. Steinitz was concerned that K.T. had been brought to hospital with a fractured tibia that the doctor felt was an unusual injury for a child K.T.’s age.  Dr. Steinitz was concerned that the parents had delayed bringing K.T. to the hospital, that Mr. W.T. had lost his temper while holding K.T. for an x-ray and that he had left the hospital before K.T. could be admitted.  On 23 April 2004, the society received a referral that both parents were constantly using marijuana and had three other adults living in the home.

[12]                  The society investigated these referrals.  The society determined that K.T.’s injury was accidental.  Mr. W.T. admitted to using marijuana but agreed with Ms. A.S.1’s assertions that she did not.

[13]                  On 16 May 2004, the society received a referral from Mr. W.T. He alleged that he and Ms. A.S.1 had separated because she was having affairs and using drugs with her new boyfriend and that Ms. A.S.1 was not supervising the children properly.  The society found no evidence to support any of these allegations.  The society closed its file on 19 July 2004.  At that time, Mr. W.T. was not living in the home.  Ms. A.S.1 reported some marijuana use and some stress caring for three young children, but she had supports in place and was attending Abigail’s Learning Centre for Children, Parents and Families with the children three times per week.

[14]                  On 3 August 2004, the society received a referral from Mr. M.S.3 and C.S.3, who were residing in the home of Ms. A.S.1 and the three children, S.T., K.T. and D.T. The S.3s reported that D.T.’s breathing was laboured, S.T. and K.T. were locked in their room and that Mr. M.S.3 had found D.T. in his crib with a baby monitor cord wrapped around his neck.  Two society workers attended Ms. A.S.1’s residence along with two police officers.  They found D.T. in his crib covered in faeces, and S.T. and K.T. locked in their bedroom.  Ms. A.S.1 was asleep and did not wake up until after all three children had been removed from their bedrooms and taken downstairs.  Ms. A.S.1 acknowledged that D.T. had ongoing breathing difficulties but denied that a cord had ever been in his crib.  D.T. was taken to hospital and examined by a paediatrician who was concerned about D.T.’s breathing and overall development.  D.T. was examined and there was no evidence of a cord ever having been around his neck.  All three children were apprehended on 3 August 2004.  On 6 August 2004, by order of Justice William J. Pickett, all three children were returned to the care of Ms. A.S.1 and Mr. W.T., subject to interim supervision by the society.

[15]                  On 26 August 2004, the society received a referral from Dr. Storr, a paediatrician at Belleville General Hospital who reported that D.T. had been readmitted to hospital for an asthma attack.  Dr. Storr was aware that Ms. A.S.1 had taken D.T. to see his paediatrician, Dr. Dempsey, the previous day and that Dr. Dempsey had noted then that D.T. had breathing difficulties.  Dr. Storr reported that D.T. had pin point bruising on the right side of his neck described as petechiae and three circular red marks of unknown origin above his navel and a mark on his back that looked like an “imprint”.  Dr. Storr did not accept as plausible Ms. A.S.1’s explanation that the pin-point bruising could have been caused by crying and that the circular red marks could have been caused by buttons on a sleeper or a toy.  The society investigated this referral and apprehended all three children on 27 August 2004.

[16]                  By order of Justice D. Kent Kirkland dated 13 October 2004, S.T. and K.T. were returned to the care of Ms. A.S.1 and Mr. W.T. subject to interim society supervision while D.T. remained in the care of the society.  D.T. made significant developmental gains while in the care of the society and he was re-integrated to the care of his parents on 5 January 2005.

[17]                  By order of Justice Kirkland dated 18 January 2005, the children were found to be in need of protection on the consent of the parties and were ordered to reside with their parents subject to supervision by the society for a period of six months.

[18]                  On 6 July 2005, the society brought a status review application and sought a termination of its supervision order.  During the period of supervision, D.T.’s health was stable and his language and development had progressed.  K.T. and S.T. were meeting all of their milestones, Mr. W.T. was working, and Ms. A.S.1 was providing a child-centred environment and was responsive to the children’s cues and needs.  On 3 August 2005, the supervision order was terminated by order of Justice Kirkland.

[19]                  On […] 2005, the society received a referral that E.T. (born on […] 2005) had been brought to the hospital where he was pronounced dead at 8:02 a.m.   The paediatrician, Dr. Gregoire, indicated to the society that the cause of death was suspected to be accidental suffocation but that the child had bruising on the right side of his forehead and upper abdomen, as well as an injury to the left side of his scalp.

[20]                  On […] 2005, the society received a preliminary verbal report from the pathologist, Dr. DeNanassay, who indicated that E.T. had likely died as a result of a significant blow to the head and that E.T. had several fractures at various stages of healing and at various locations, including the arm, legs and ribs, indicating the likelihood of child abuse.

[21]                  The society apprehended all three children on […] 2005 and they have remained in care since that date.

[22]                  One week after E.T. died, Ms. A.S.1 met with police officers who advised her that they believed that E.T.’s death was not accidental and that Mr. W.T. had caused E.T.’s death.  Immediately following this meeting, Ms. A.S.1 separated from Mr. W.T. They have remained separated.

[23]                  On 31 March 2006, the final autopsy report on the death of E.T. was released.  The report concluded that E.T. died as a result of a head injury of a non-accidental nature.  The report further confirmed multiple fractures of different ages.  E.T. was in the sole care of Mr. W.T. at the time of his death.  The police and the society conducted investigations and concluded that Mr. W.T. was solely responsible for E.T.’s death.

[24]                  On 3 August 2006, Mr. W.T. was charged with second-degree murder and aggravated assault in relation to the death of E.T.

[25]                  During the spring of 2006, Ms. A.S.1 became involved in a relationship with Mr. D.S.2 and she became pregnant with N.S.1.  Ms. A.S.1’s relationship with Mr. D.S.2 ended several months before N.S.1’s birth.  N.S.1 was apprehended at birth and has remained in the care of the society.

[26]                  The court heard from thirteen witnesses over four days of trial; 13, 14, and 18 September 2007 and 29 October 2007.  The trial evidence is summarized below:

[27]                  Dr. Susan Beckett is a certified clinical psychologist.  She prepared the parenting capacity assessment dated 25 January 2007 and filed as exhibit 3.  In her parenting capacity assessment, Dr. Beckett recommended that the three T.-S.1 children be made Crown wards without access.  Dr. Beckett based her recommendation on her review of the society file, clinical interviews with Ms. A.S.1 and Mr. D.S.2, her observations of access visits, and her interpretation of the results of psychological testing of Ms. A.S.1 and Mr. D.S.2 Mr. W.T. is incarcerated and did not participate in the assessment process.

[28]                  Dr. Beckett testified that, in her opinion, Ms. A.S.1 suffers from a narcissistic personality disorder that inhibits Ms. A.S.1’s ability to place the needs of her children ahead of her own needs.  Dr. Beckett testified that a child raised by a narcissistic parent is emotionally and sometimes physically neglected because of that parent’s high need to have her own needs met ahead of the child’s needs.  Dr. Beckett testified that the main area where she sees Ms. A.S.1’s narcissism is in her grandiosity, “her consistent belief that she is a very competent parent”.  Dr. Beckett testified that it was unlikely that Ms. A.S.1 would seek out and engage in any psychological counselling because “she [Ms. A.S.1] doesn’t believe she has any problems”.  Dr. Beckett also testified that she did not believe that Ms. A.S.1 would be able to work co-operatively with the children’s aid society.

[29]                  It is interesting to note that, although Dr. Beckett reviewed the society file, she did not make any reference in her assessment to the ten-month period between October 2004 and August 2005 when the society was supervising the T.-S.1 family.  When cross-examined about this omission, Dr. Beckett explained that she did not refer to the positive gains made by the parents during the supervision period because these positive gains were “implied” by the fact that the society returned the children to the parents.

[30]                  With respect to N.S.1, Dr. Beckett expressed concern about the fact that Ms. A.S.1 had entered into a relationship with Mr. D.S.2 while her children were in care.  Dr. Beckett was also concerned about the fact that Mr. D.S.2 had been charged with assaulting a former partner.  Dr. Beckett recommended that N.S.1 be apprehended at birth if Ms. A.S.1 were still in a relationship with Mr. D.S.2 when N.S.1 was born.

[31]                  Ms. McKay was employed with the Hastings Children’s Aid Society as an intake worker from January 1999 to April 2006.  She was involved with the T.-S.1 family following the first apprehension of the children on 3 August 2004 and she remained involved with the family until the case was transferred to Kristen McCoy on 8 September 2004.  She confirmed that the allegation about a cord being found around D.T.’s neck was never verified.  She had weekly announced and unannounced visits in T.-S.1 home and always found Ms. A.S.1 to be forthright, honest and co-operative in her dealings with her.

[32]                  Ms. Woodcox has been employed with the Hastings Children’s Aid Society for eight years.  She was working as an after-hours intake worker in August 2004.  She attended the T.-S.1 home in the early morning hours of 3 August 2004.  She found D.T. in his crib, suffering from asthma and encrusted with faeces.  The two girls were locked in their bedroom and Ms. A.S.1 was asleep.  She took D.T. to hospital where he was admitted because of his asthma.  Although the society had received information that some type of cord had been wrapped around D.T.’s neck, she did not find a cord in D.T.’s crib or in his bedroom and no marks on D.T. to suggest that anything had been wrapped around his neck.  She was involved in the decision to apprehend all three children that day.

[33]                  Mr. St. Germaine has been a child protection worker with the Hastings Children’s Aid Society for four years.  He became involved with the T.-S.1 children on […] 2005, the day that E.T. died.  He received the initial report of E.T.’s death from the hospital and was designated the lead society investigator.

[34]                  Mr. St. Germaine opened a file and started his investigation on […] 2005.  His investigation-verification report (exhibit 6) was not completed until 22 November 2006.

[35]                  Mr. St. Germaine testified that he was unable to complete his investigation until he received the autopsy report, which was not released to the society until 17 August 2006.  Mr. St. Germaine spoke with the paediatrician who reported E.T.’s death to the society.  Dr. Gregoire’s first impression was that the cause of death was “accidental suffocation”.  Ms. A.S.1 told Mr. St. Germaine that E.T. woke up crying at about 1:00 a.m.  She brought him downstairs and was going to give him a bottle.  Mr. W.T. was sleeping downstairs and he assumed care of E.T. Ms. A.S.1 went back upstairs to bed.  Mr. W.T. told Mr. St. Germaine that he was the sole caregiver of E.T. from 1:30 a.m. when he attempted to feed him his bottle.  Mr. W.T. told Mr. St. Germaine that he fell asleep and woke up at around 7:00 a.m. to find E.T. was on the floor beside him.  He thinks he may have fallen asleep and “accidentally smothered E.T.”.

[36]                  The day after E.T.’s death, the local coroner, Dr. Mason, called the society to say that the preliminary result of the autopsy was that the cause of death was a skull fracture, likely caused by a significant blow.

[37]                  The autopsy report was finally released in August of 2006.  The report indicated that E.T. had “bilateral temporal skull fractures, subdural and occipital haemorrhage and multiple fractures in various bones at different stages of healing”.

[38]                  On 3 August 2006, Belleville City Police charged Mr. W.T. with second-degree murder and aggravated assault.  Detective Sweet, who was in charge of the police investigation into E.T.’s death, told Mr. St. Germaine that police believe that Mr. W.T. is solely responsible for E.T.’s death and that Ms. A.S.1 seemed very naïve and did not play any part in E.T.’s death.

[39]                  Mr. St. Germaine testified that he concluded that Mr. W.T. was solely responsible for E.T.’s death and that Ms. A.S.1 was unaware of E.T.’s injuries.  He based his conclusion on the fact that Mr. W.T. was alone with E.T. from 1:00 a.m. to 7:00 a.m.  Mr. St. Germaine also noted that the three older children had been physically examined, including skeletal x-rays, and nothing unusual had been detected.  The children were interviewed and no concerns were noted.  Ms. A.S.1 had called 911 right away and was fully co-operative with the society investigation.  In his report, completed on 22 November 2006 Mr. St. Germaine wrote:

[40]                  Andrea Flieler is a child protection worker with the Hastings Children’s Aid Society.  Ms. Fleiler had been working as a protection worker for about a year in April 2007 when N.S.1 was born and apprehended.  Ms. Fleiler testified that the decision to apprehend N.S.1 had already been made before she took over the case from the previous worker, Ms. Stoddard.  Ms. Flieler explained that there was an after-hours alert put out to the Belleville Hospital directing that the society be notified when Ms. A.S.1 gave birth so that the baby could be apprehended.  As Ms. A.S.1 was transferred from the Belleville General Hospital to a Kingston hospital during her labour, an after-hours request was made to the Children’s Aid Society of the City of Kingston and County of Frontenac to apprehend Ms. A.S.1’s baby.  Ms. Flieler provided the after-hours worker with the information that was relayed to the Frontenac children’s aid society.

[41]                  Ms. Flieler recalled that she told the after-hours worker that Ms. A.S.1’s baby was to be apprehended at birth because Ms. A.S.1:

[42]                  Ms. Fleiler filed an affidavit sworn on 24 April 2007 in support of the apprehension of N.S.1  Ms. Flieler’s affidavit was before the court at the first appearance of the protection application on 26 April 2007 before Justice Anne C. Trousdale in Kingston.

[43]                  In her affidavit sworn on 24 April 2007, Ms. Flieler stated at paragraph 5:

[44]                  Ms. Flieler makes no reference in her affidavit to the ten-month period of society supervision of Ms. A.S.1 between October 2004 and August 2005 during which time, according to the society’s application dated 30 June 2005 requesting a termination of the supervision order, Ms. A.S.1 was observed to be responsive and attentive to her children who were described as happy, healthy and meeting all of their milestones.  Justice Trousdale made an interim order placing N.S.1 in the interim care and custody of the society with access in the discretion of the society.  The matter was transferred to the Ontario Court of Justice in Belleville with the first appearance in Belleville on 23 May 2007.

[45]                  An interim placement hearing was held before Justice Wendy B. Malcolm on 14 June 2007.  The evidence filed by the society in support of its application for temporary care and custody of N.S.1 consisted of two affidavits sworn by Ms. Flieler, including her original affidavit sworn on 24 April 2007 and a second affidavit sworn on 11 June 2007.  Ms. Flieler’s second affidavit was filed in response to the affidavit of Ms. A.S.1 sworn on 28 May 2007.

[46]                  In her affidavit sworn on 28 May 2007, Ms. A.S.1 pointed out that Mr. St. Germaine had stated, in the last paragraph of his investigation report that “It is this worker’s opinion that [Ms. A.S.1] was completely unaware of any harm to her children.  At this time worker does not believe there to be any information to suggest that [Ms. A.S.1] in any way failed to protect [E.T.] from [Mr. W.T.].”

[47]                  Ms. A.S.1 also argued that that the society had no evidence whatsoever that Ms. A.S.1’s three older children, S.T., K.T. and D.T., have ever been abused in any way.

[48]                  In response to Ms. A.S.1’s affidavit, Ms. Flieler produced another affidavit sworn on 6 June 2007 in which she asserted that Mr. St. Germaine’s opinion that “at this time there was no information to suggest that [Ms. A.S.1] had failed to protect her son [E.T.]” was “taken out of context” by Ms. A.S.1 and that the words “at this time” actually referred to the time of […] 2005, the opening date of Mr. St. Germaine’s investigation.

[49]                  In response to Ms. A.S.1’s contention that the society had never had any evidence that her three older children had been abused, Ms. Flieler stated that the society had investigated and verified several referrals noting unexplained injuries to the children, including a referral call stating that D.T. was found to be in a crib with a cord wrapped around his neck two times.

[50]                  Ms. Flieler was extensively cross-examined about the contents of her sworn affidavits filed with the court in support of the society’s apprehension of N.S.1 and request for an order of temporary care and custody of N.S.1

[51]                  Under cross-examination, Ms. Flieler acknowledged that:

[52]                  Ms. Bowers has been employed as a child protection worker with Hastings Children’s Aid Society for 11 years.  She has been a supervisor for the past five years.  Ms. Bowers supervised Andrea Fleiler and Pat St. Germaine when they were the assigned workers dealing with Ms. A.S.1 and her children.

[53]                  Ms. Sherry Bowers acknowledged that it has been the position of the society, since E.T.’s death, that the children needed to remain in care and could not return to the care of their mother subject to a supervision order.  She explained that the society was concerned about Ms. A.S.1’s historical involvement with the society and wanted further to investigate Ms. A.S.1’s role, if any, in E.T.’s death.

[54]                  Ms. Bowers supervised Mr. St. Germaine while he was preparing his investigation report and, in fact, signed off on his report, which concluded in November 2006 that Mr. W.T. was solely responsible for E.T.’s death and that the society had no information to suggest that Ms. A.S.1 in any way failed to protect E.T. from Mr. W.T.

[55]                  Ms. Bowers supervised Andrea Flieler and approved her affidavits sworn on 24 April 2007 and 6 June 2007.  Ms. Bowers acknowledged that she was aware that Mr. St. Germaine opened his investigation on […] 2005 and completed his report in November 2006 when Ms. Bowers approved the report.

[56]                  I found Ms. Bowers to be evasive and unclear when she was asked to explain Ms. Flieler’s assertion (which Ms. Flieler testified had been directed by Ms. Bowers) that Mr. St. Germaine’s words “at this time” referred to […] 2005.

[57]                  Ms. Bowers testified that, notwithstanding Mr. St. Germaine’s conclusion, she still felt the children needed to remain in care because “it was still undetermined whether mom was a risk to her children, if at all”, and the society “needed further information” about mom’s psychological functioning.

[58]                  Ms. Bowers explained that, when the parenting capacity assessment was completed, the society reached its decision to pursue Crown wardship/no access of the children:

[59]                  Ms. Bowers testified that the decision of the society to apprehend N.S.1 was based on:

[60]                  Ms. Bowers also agreed that, when the society issued birth alerts for N.S.1’s apprehension in January 2007, the society had no current information or evidence to suggest that Ms. A.S.1 was in a relationship with Mr. D.S. Ms. Bowers acknowledged, under cross-examination, that following the completion of the parenting capacity assessment, the society made its decision to apprehend N.S.1 whether or not Ms. A.S.1 was in a relationship with Mr. D.S.2, or anyone else.

[61]                  It is disturbing to note, then, that the information provided to the Frontenac children’s aid society, by the Hastings Children’s Aid Society after-hours worker was that Ms. A.S.1 was, at the time of N.S.1’s birth, involved with “another violent partner, [Mr. D.S.2]”.

[62]                  It is also disturbing to this court that, when questioned about how this inaccurate information was provided to the Frontenac children’s aid society, Ms. Bowers refused to take any responsibility, stating that the information was provided by an after-hours worker.  I note, however, that nothing was done by the society to correct the inaccurate information and it was not corrected when the matter came before the court in Belleville for the interim care and custody hearing.

[63]                  Under cross-examination, Ms. Bowers acknowledged that, since the apprehension of the children on […] 2005, the society has never outlined any expectations for Ms. A.S.1, offered any services to Ms. A.S.1 or made any suggestions to Ms. A.S.1 about courses of which she could take advantage to improve her parenting.  Ms. Bowers agreed that the society’s plan of care dated 6 December 2005 does not identify any expectations or conditions that must be satisfied by Ms. A.S.1.  Ms. Bowers also agreed that “this is not a case of failing to follow through because no recommendations have been made to Ms. A.S.1”.

[64]                  Ms. Bowers explained that the society had amended its applications to claim Crown wardship of all four of the children because “we don’t see that there is a point where these children can be in the home and be safe”.

[65]                  Ms. Christie Nazzur has worked for the Hastings Children’s Aid Society for seven years.  She is the children’s service worker for all four children.  She has been involved with this family since the children were first apprehended in August 2004.

[66]                  Ms. Nazzur supervises access visits between Ms. A.S.1 and the children.  She described the visits as “positive” and she stated that Ms. A.S.1 has established a healthy working relationship with the foster parents and the society worker.  She testified that Ms. A.S.1 has positive interactions with her children and the children are attached to her.  At the end of the visits, Ms. A.S.1 encourages the children to return to the foster parents.  She said that the three T. children have been placed together in the same foster home and they have developed a strong relationship with their foster parents.  Ms. A.S.1 has visited her children regularly and there have been generally no concerns about the visits.  Ms. Nazzur did state that, on one occasion, Ms. A.S.1 had a difficult time controlling all three children during a visit to a park.

[67]                  Ms. Kristin McCoy has been an ongoing child protection worker with the Hastings Children’s Aid Society for 12 years.  She was the assigned worker, responsible for supervising the T.-S.1 family, from September 2004 until E.T.’s death in October 2005.

[68]                  Although Ms. McCoy is the only child protection worker to have actually supervised the T.-S.1 family, she was not called as a witness by the society.  Instead, she was called as a witness by counsel for Ms. A.S.1

[69]                  When asked why she was not asked to testify on behalf of the children’s aid society, Ms. McCoy stated that she assumed that the society did not ask her to testify because she does not support the society’s application for Crown wardship.

[70]                  Following E.T.’s death and the apprehension of the children, Ms. McCoy was invited to participate in internal society case conferences until the summer of 2006.  Ms. McCoy expressed her disagreement with the position that the society was taking.  She testified that she felt that there was evidence to suggest that the children did not need to remain in care.  She thought that the children could be returned to the care of their mother subject to a supervision order.  She became concerned at an early internal case conference when there was a discussion about whether the foster parents were interested in adopting the children.  Ms. McCoy testified that she felt that discussion was premature and became extremely concerned that comments about adoption were being made when the society had not explored all possibilities to see whether the children could be safely cared for in their mother’s care.  She felt it was premature to be looking at never returning the children to their mother’s care.  Under cross-examination by the society’s counsel, Ms. McCoy agreed that it is not uncommon for the society to do “concurrent planning” but that it was done “more zealously” in this case.

[71]                  Ms. McCoy testified that, once the police had charged Mr. W.T. in E.T.’s death, she thought the society would look at returning the children.  At that point, the society’s investigator, Mr. St. Germaine had also completed his investigation report and concluded that Ms. A.S.1 had not played a role in E.T.’s death.  The investigation report reinforced Ms. McCoy’s opinion that Ms. A.S.1 had nothing to do with E.T.’s death.  Instead of returning the children to their mother’s care, the society decided to pursue a parenting capacity assessment.

[72]                  Ms. McCoy had extensive involvement with the T.-S.1 family.  When she first became involved in August of 2004, the children were in foster care.  At that point, the concerns were quite specific to D.T. as the parents were unable to mange his asthma.  Ms. McCoy met with Ms. A.S.1 and found her to be quite remorseful and able to understand that she had not met D.T.’s needs.  She realized that she had made some mistakes.  After the children were returned home, Ms. McCoy attended the T.-S.1 home several times per month.  She described the family as doing really well.  There were no community calls and no new referrals.  During the home visits, she found that D.T. was healthy and developing normally and that the interactions between Ms. A.S.1 and her children were always positive.  She described the girls as quite remarkable in their development.  She testified that she was always impressed by the fact that they were such gentle, bright children.  Ms. McCoy stated:

[73]                  Ms. McCoy was also receiving positive reports from the community.  Ms. A.S.1 was taking the children to Abigail’s Learning Centre for Children, Parents and Families three times per week.  The co-ordinator, Gloria Bentley, spoke regularly with Ms. McCoy and always had positive things to say about Ms. A.S.1 and her parenting abilities.

[74]                  Ms. McCoy found Ms. A.S.1 to be co-operative throughout the supervision period.  She said that Ms. A.S.1 acknowledged that she had made mistakes dealing with D.T.’s asthma and acknowledged that she needed help from the society.  Ms. A.S.1 was always open to suggestions from Ms. McCoy.  She completed a 12-week “Parenting for Success” program in the fall of 2004 and complied with all of the supervision conditions set out in the society’s plan of care.

[75]                  Ms. McCoy acknowledged that most of her observations and interactions were with Ms. A.S.1 and the children, as Mr. W.T. was usually at work when she attended the home.

[76]                  Ms. McCoy completed a risk assessment as a part of a regular six-month review of the T.-S.1 family in May 2005.  A copy of that assessment was filed as exhibit 12.  In the assessment, Ms. McCoy wrote:

[77]                  Ms. McCoy, in consultation with her supervisor, made the decision to terminate the society’s involvement with the family in the summer of 2005.  Ms. McCoy was aware that Ms. A.S.1 was pregnant but stated that the pregnancy did not enter into her decision because there were no issues regarding the family’s functioning.

[78]                  Ms. McCoy stated that she did not agree with Dr. Beckett’s assessment of Ms. A.S.1 as an “overly confident” parent.  Ms. McCoy described Ms. A.S.1 as someone who enjoys parenting and took her role seriously but was always able to recognize her need for support and the need for improvement in her parenting.  Ms. McCoy did not see Ms. A.S.1 as narcissistic.  She said Ms. A.S.1 was very focused on the needs of her children and getting them ready for kindergarten.  Her home was very child-centred with age-appropriate toys and furnishings.  She found Ms. A.S.1 to be very focused in a genuine way on her children.

[79]                  Under cross-examination by counsel for the society, Ms. McCoy defended her opposition to the position taken by the society:

[80]                  When asked about the fact that the autopsy showed that E.T. had pre-existing injuries Ms. McCoy stated:

[81]                  Ms. Kelly Dean is an experienced counsellor who has been working with Ms. A.S.1 since August 2006.  Ms. A.S.1 told Ms. Dean that she needed support because she had no one to support her.  I note here that, since the children were apprehended in October 2005, the society has never offered Ms. A.S.1 counselling or in fact any other service.  Ms. Dean has been meeting with Ms. A.S.1 once per week to work on grief issues, self-esteem, relationship choices and coping skills.  Ms. Dean described Ms. A.S.1 as someone with generally low self-esteem who does see herself as a good mother.  She has never seen any narcissistic traits in Ms. A.S.1  In fact, she sees Ms. A.S.1 as someone who is unselfish and consistently puts other people ahead of herself.  Ms. Dean continues to see Ms. A.S.1 and will see her for the foreseeable future.

[82]                  Ms. A.S.1 currently resides in a two-bedroom apartment that can accommodate all four of her children.  She is not in a relationship and has no plans to enter a new relationship.  She has been separated from Mr. D.S.2 since January 2007 and was not in a relationship with Mr. D.S.2 when N.S.1 was born.

[83]                  She agreed that the society was justified in being involved when her children were first apprehended in August 2004.  She was willing to participate in a parenting capacity assessment at that time, but it was never done.  She co-operated fully with the society and participated in a “Parenting for Success” program.  She worked with infant development to help D.T. to catch up in his development.  She attending Abigail’s Learning Centre for Children, Parents and Families with the children on a regular basis and took advantage of programs for mothers, including parenting courses, computer courses and moms and tots programs.

[84]                  She gave birth to E.T. a few weeks after the society terminated its involvement.  She had no concerns about E.T.’s health.  She did not see or hear anything that caused her to be concerned about E.T.

[85]                  She understood why the society became involved again and apprehended her three children after E.T.’s death.

[86]                  One week after E.T. died, the police told her that they thought that Mr. W.T. was responsible for E.T.’s death.  She left the police station and stayed with a friend.  She never went back and has remained separated from Mr. W.T. since that time.

[87]                  Since the death of E.T. and the removal of her children from her care, she has tried to cope by seeing doctors and taking anti-depressants.  She took anti-depressants for six months after E.T. died.  She does not take any medication now.  She sees Kelly Dean for counselling.  Ms. Dean has helped her to cope.  For the past two years, she has seen her children twice per week for one and one half hours.

[88]                  N.S.1 was born in April 2007 and apprehended from her at birth.  She sees N.S.1 twice per week.  Her visits with N.S.1 are separate from her visits with her three older children.

[89]                  She disagrees with Dr. Beckett’s conclusion that she is narcissistic.  She says that she sees herself as naïve but she is always willing to help other people, especially her children.  She does see herself as a good mother.

[90]                  She agrees that it was not a good idea to enter a relationship with Mr. D.S.2 She has known Mr. D.S.2 since she was 18.  He needed a place to stay for a few weeks and they started seeing one another.  In the eight years that she has known Mr. D.S.2, she has never seen or heard of his being violent.  She described Mr. D.S.2 as a sad, depressed kind of person, not angry or violent.  Mr. D.S.2 was never violent towards her.  She was aware that the society did not like him.   She ended her relationship with Mr. D.S.2 but the society still apprehended N.S.1

[91]                  She wants her children returned to her care.

[92]                  She knows it will be difficult, especially for D.T. who has been in care for most of his life and is very attached to his foster parents.  She says the girls show signs of upset and ask her a lot whether the judge will send them home.

[93]                  She is still willing to work with the society and would agree to ongoing society involvement.  She is willing to have a family support worker in her home to help her to cope with the reintegration of the children into her home.

[94]                  Mr. D.S.2 is the biological father of N.S.1  He is 24 years old and lives alone.  He has a grade IX education and wants to be an electrician.  He is trying to take extra credits.  He visits N.S.1 every week for 1-2 hours.

[95]                  Although Mr. D.S.2 has been described by the society as violent, he has never been convicted of a violent offence.  He was involved with an incident with his ex-girlfriend.  He has another child, J., with his ex-girlfriend.  He pushed his ex-girlfriend away from him when she tried to take J. out of his arms.  He was charged with assault but the charge was withdrawn.  He has no criminal record.

[96]                  Ms. A.S.1 testified that Mr. D.S.2 has never been physically violent towards her.

[97]                  Mr. D.S.2 wants the chance to be a father to N.S.1.  He supports Ms. A.S.1’s plan to have N.S.1 returned to her care.

[98]                  During final submissions, counsel for the Hastings Children’s Aid Society advised the court that the society was no longer seeking an order of Crown wardship without access but instead was now asking the court to make a finding that the children are in need of protection and a six-month supervision order.

[99]                  I note that the society has not filed a new plan of care in support of this new position.

[100]              S.T., K.T. and D.T. have now been in the care of the Hastings Children’s Aid Society for over two years.  N.S.1 has been in the care of the society since his birth on […] 2007.

[101]              The society has had several opportunities to return S.T., K.T. and D.T. to the care of their mother subject to a supervision order.

[102]              One week after E.T. died, Ms. A.S.1 separated from Mr. W.T. At that point, the society knew that E.T. had been in the sole care of Mr. W.T. when he died and that police suspected that Mr. W.T. was solely responsible for E.T.’s death.  The society also knew that Ms. A.S.1 had worked co-operatively and successfully with the society for the past year, ending with the society’s decision to terminate its supervision order only two months earlier.  The society also knew that Ms. Kristin McCoy, the only society worker to have actually supervised Ms. A.S.1’s care of the children, fully supported Ms. A.S.1 and believed strongly that the children would be safe in Ms. A.S.1’s sole care.  The society could have returned the children to Ms. A.S.1 under a supervision order with a condition that any access by Mr. W.T. to the children had to be supervised by the society.

[103]              Once the autopsy report was released and Mr. W.T. was charged with second-degree murder of E.T., the society had a second opportunity to return the children to Ms. A.S.1’s care.  There was no longer any threat that Ms. A.S.1 would allow Mr. W.T. access to the children or fail to protect the children from Mr. W.T. because he was now in custody.

[104]              A third opportunity presented itself to the society when its own investigation into E.T.’s death was completed by Mr. Pat St. Germaine who concluded on 22 November 2006 that Ms. A.S.1 was completely unaware of any harm to her children and that there was no information to suggest that she in any way failed to protect E.T. from Mr. W.T.

[105]              At this point, the children had already been in the care of the society for over one year.  Mr. W.T. had been charged with E.T.’s death and was in custody.  The society’s own investigator believed that Ms. A.S.1 had not played any role in E.T.’s death.  And the society knew from Ms. Kristen McCoy that Ms. A.S.1 had worked well with the society in the past and would continue to work co-operatively with the society if the children were returned home under a supervision order.

[106]              Instead, the society continued on its quest to justify its consistently held view that the children could not safely be returned to their mother’s care.  The society requested and obtained a parenting capacity assessment.  The assessment, completed by Dr. Susan Beckett, recommended that S.T., K.T. and D.T. be made Crown wards without access.  Dr. Beckett recommended that N.S.1 be apprehended if Ms. A.S.1 were in a relationship with Mr. D.S.2 at the time of N.S.1’s birth.

[107]              Dr. Beckett observed only one access visit between Ms. A.S.1 and the children, and, although she reviewed the society file, she did not make a single reference to the period of time between October 2004 and August 2005 when Ms. A.S.1 was subject to a society supervision order.  Dr. Beckett stated in her report that the results of Ms. A.S.1’s psychological testing are consistent with a diagnosis of narcissistic personality disorder.

[108]              The results of the psychological testing conducted by Dr. Beckett must be weighed against actual evidence and observations of Ms. A.S.1’s behaviour and parenting.  In this case, the evidence of witnesses who have observed Ms. A.S.1 interact with her children on a regular basis is not consistent with Ms. A.S.1 having a “narcissistic personality characterized by a pervasive pattern of grandiosity, need for admiration and lack of empathy”.  Ms. McCoy testified that she did not see any evidence that Ms. A.S.1 was narcissistic, but instead saw Ms. A.S.1 as a mother who was genuinely focused on the needs of her children, who was responsive and attentive to their needs and who created a child-centred environment for her children.  The children’s services worker, Ms. Nazzur, observed Ms. A.S.1 to have positive interactions with the children during access visits and to encourage them to return to the care of the foster parents at the end of access visits.  Ms. A.S.1’s counsellor, Kelly Dean described Ms. A.S.1 as someone who is always putting the needs of others ahead of her own needs.  Ms. Dean described several situations in which she observed Ms. A.S.1 to act generously and helpfully towards other people.

[109]              Throughout this trial, there has been no evidence that Ms. A.S.1 has ever physically abused her children.  Concerns about neglect of the children, unusual bruising on D.T., and K.T.’s fractured leg, were investigated and not verified.  Moreover, these concerns pre-dated the supervision period and the society’s decision to terminate its supervision order.

[110]              The apprehension of S.T., K.T. and D.T. was justified following E.T.’s death.  The society had a duty to protect these children and fully to investigate the cause of E.T.’s death.  Although E.T. was alone with Mr. W.T. when he died, the autopsy report revealed that E.T. had pre-existing injuries including several fractures and bruises.  The society had an obligation to investigate to determine whether there was any evidence that Ms. A.S.1 had caused injury to E.T. or had failed to protect him from harm.

[111]              The society investigated and found no evidence that S.T., K.T. and D.T. had ever been physically abused.  To the contrary, these three children were described as healthy, happy, well-adjusted children who were meeting all of their milestones.

[112]              The society waited for the completion of the autopsy report and, although I have already commented that the society did have earlier opportunities to consider returning the children to the care of their mother, I also understand the society’s wish to be very cautious in the serious circumstances of this case.

[113]              Once the autopsy report was released, the police completed their investigation and charged Mr. W.T. with second-degree murder and aggravated assault of E.T. The police did not believe that Ms. A.S.1 was responsible for E.T.’s injuries or that she had failed to protect E.T.  Mr. St. Germaine, the society worker assigned to investigate E.T.’s death, also reached the conclusion that Ms. A.S.1 had not caused any harm to E.T. or played any role in E.T.’s death.

[114]              At this point in November 2006, the society should have returned the children to their mother’s care.  The society had fully investigated the matter and had no evidence that the mother had ever abused the children or failed to protect them from harm.  The society did not need a parenting capacity assessment because it already had evidence, from Ms. McCoy and from the workers who have supervised Ms. A.S.1’s access visits, that Ms. A.S.1 has the capacity to parent.  It was in the best interests of the children to be returned to the care of their mother at that time.  There is no doubt that Ms. A.S.1 would have consented to a finding that the children were in need of protection and a supervision order.

[115]              Instead, the society asked for a parenting capacity assessment and the T.-S.1 children have remained in care for a second year.

[116]              At this point, I wish to comment on the temporary care and custody hearing that proceeded before Justice Malcolm on 14 June 2007.  In support of its application to apprehend N.S.1, the society relied on the affidavits of Ms. Andrea Flieler sworn on 24 April 2007 and 11 June 2007.  I have already reviewed in detail the misleading, incomplete and inaccurate information contained in Ms. Flieler’s affidavits.  I note that Ms. Flieler was a new worker at the time that she was assigned to this case and that her affidavits were approved by her supervisor, Ms. Sherry Bowers.

[117]              I wish to cite one further example of affidavit evidence presented by the society at the temporary care and custody hearing.  In support of its apprehension of N.S.1, the society relied on the affidavit of Ms. Andrea Flieler sworn on 11 June 2007 in which Ms. Flieler stated that “The concern in respect to [Ms. A.S.1] is that, not long after her relationship with [Mr. W.T.], she entered into a relationship with [Mr. D.S.2] who also has a violent history”.

[118]              The only evidence the court heard about Mr. D.S.2’s “violent history” was Mr. D.S.2’s evidence about the incident with his ex-girlfriend that involved a push.  The society did not present any evidence at trial to support this allegation that Mr. D.S.2 has a “violent history”.  Mr. D.S.2 does not have a criminal record and there was no evidence that Mr. D.S.2 has been violent towards Ms. A.S.1 or anyone else.

[119]              The post-apprehension hearing must be fair, given that the apprehension of children constitutes a significant state intrusion into the family.  In Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, 260 N.R. 203, 150 Man. R. (2d) 161, [2001] 1 W.W.R. 1, 230 W.A.C. 161, 191 D.L.R. (4th) 1, 78 C.R.R. (2d) 1, 10 R.F.L. (5th) 122, [2000] S.C.J. No. 48, 2000 Cars­well­Man 469, at paragraph [122], the Supreme Court of Canada described how procedural fairness through full and frank disclosure is meant to counter-balance the power of the society to apprehend children in an emergency situation:

[120]              The evidence of the society contained exaggerated and misleading information and lacked a reasonable factual foundation.  The society did not include any evidence about the positive gains made by Ms. A.S.1 and her children during the ten-month supervision period.  The society should have disclosed the fact that the worker previously assigned to Ms. A.S.1’s case believed that the children would be safe supervised in the care of Ms. A.S.1

[121]              After considering all of the evidence, I am not prepared to make a finding that N.S.1 is a child in need of protection.  He shall be returned immediately to the care of his mother.

[122]              Ms. A.S.1 has consented to a finding that the children, S.T., K.T. and D.T. are in need of protection and she has consented to a six-month supervision order.

[123]              The society has indicated that it is now seeking a supervision order but there has been no plan of care filed.

[124]              I am concerned that the three older children have been in care for over two years and are attached to their foster parents.  The re-integration of these children back into the care of their mother must be approached carefully.  The plan of care of the society must include a concrete re-integration plan.  I recommend that the society approach V.V. to see whether she is able to assist with developing a re-integration plan and identifying supports that will need to be in place for Ms. A.S.1 and the children.  Consideration will have to be given to maintaining contact between the children and their foster parents.

[125]              Mr. W.T. is not opposing the society’s application and has not presented a plan.  I am not prepared to order access for Mr. W.T. at this time.  The issue of Mr. W.T.’s access to the children will need to be determined at a later date, pending the outcome of his murder trial.

[126]              There will be a final order as follows: