WARNING Section 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 may apply:

Prohibition re identifying child

87(8) 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.

Court of Appeal for Ontario

Date: 20240208 Docket: COA-23-CV-0159

Simmons, Paciocco and Thorburn JJ.A.

BETWEEN

B.F. Applicant (Respondent)

and

A.N., I.F.**, B.O.F. and Office of the Children’s Lawyer Respondents (Respondents*/Appellants**)

Counsel: I.F., acting in person A.N., acting in person, via video conference Jane L. Long, for the respondent Office of the Children’s Lawyer No one appearing for the respondent B.F.

Heard: November 22, 2023

On appeal from the order of Justice Melanie Kraft of the Superior Court of Justice, dated December 16, 2022.

By The Court:

[1] Following a 20-day trial, the trial judge made orders under s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3, (2nd Supp.) that a five-year-old child reside with her father at all times, and that the father have sole decision-making responsibility over all decisions relating to the child.

[2] The child's mother initiated the divorce proceeding but did not participate in the trial because, prior to the trial, she was convicted of attempting to murder the child and her own mother, and sentenced to life imprisonment [1]. As part of the criminal proceeding, the child’s mother was also prohibited from having contact with the child, the child's father, or any member of the child's father's family.

[3] The live issues at trial related to contact between the maternal grandparents and the child. Both maternal grandparents brought applications under the Children's Law Reform Act, R.S.O. 1990, c. C. 12 (the “CLRA”) in which they sought decision-making responsibility for, and primary residence of, the child. However, both abandoned those claims prior to trial. Accordingly, the only issues at trial were whether the maternal grandparents should have contact with the child and access to her medical records and whether any orders restraining their contact with the child should be made.

[4] The trial judge ordered that the maternal grandfather, B.O.F., be permitted to have some supervised contact with the child. However, under s. 16.5 of the Divorce Act, the trial judge ordered that the maternal grandmother, I.F., have no direct or indirect contact with the child, with her father, or with any member of the father’s family. In addition, the trial judge ordered that neither maternal grandparent have access to any medical reports, information, or records in relation to the child and that neither maternal grandparent contact any of the medical or health professionals working with the child.

[5] Further, under s. 35 of the CLRA, the trial judge made an order permanently restraining the maternal grandmother from any direct or indirect contact or communication with the child's father, the child, or any centres where the child receives treatment.

[6] The maternal grandmother raises several issues on appeal. The maternal grandfather did not participate in the appeal. For the reasons that follow, we dismiss the appeal.

Background

[7] The child was born in 2017 and turned five years of age while the trial was underway. She suffered a catastrophic brain injury on June 12, 2019, as a result of her mother injecting her nine times with significant amounts of insulin. The child is permanently disabled and requires constant daily care.

[8] The child's parents had a tumultuous and dysfunctional relationship. They separated in January 2018 when the child was almost three months old. Following the separation, the child lived with her mother and maternal grandparents for about 18 months prior to the insulin overdose. During this period, the child's mother permitted the child's father to see the child only once, in February 2018. The child’s father had been sending threatening and disturbing messages to the child’s mother prior to and following their separation. These included messages threatening to harm the child’s mother and himself as well as disturbing pictures of dead people and people with dismembered body parts. The child’s father was charged with assault, uttering threats, and criminal harassment in May 2018. On November 1, 2018, he pleaded guilty to uttering threats and was sentenced to an intermittent sentence. Nonetheless, he applied for and obtained supervised access to the child, which was to commence a few days after the date of the insulin overdose.

[9] The maternal grandfather travelled to Europe the day before the insulin overdose. He asked a friend to check on the family when he was unable to contact his wife. The friend found the child, her mother, and the appellant unconscious in the family home. All three were suffering from insulin overdoses.

[10] Prior to the child's release from hospital, the Children's Aid Society of Toronto (the "Society") brought a protection application regarding the child. On November 4, 2019, a temporary without prejudice order was made under the Child Youth and Family Services Act, 2017, S.O. 2017, c 14, Sched. 1 (the “CYFSA”) placing the child in the father's care subject to Society supervision.

[11] The child was released from hospital into her father's care in December 2019. In February 2020, a further order was made under the CYFSA providing that the child would remain in her father's temporary care subject to Society supervision on terms that the maternal grandparents have limited weekly access to the child at the discretion of the Society.

[12] The child was found to be a child in need of protection under the CYFSA on June 16, 2020. The Society subsequently withdrew its protection application after an order was made in the divorce proceeding on August 12, 2020, following a contested hearing, granting temporary custody of the child to the father with the same access to the maternal grandparents as provided in the February 2020 order.

[13] The child and the child's father lived with the child's father's parents following the child's release from hospital up to and throughout the trial. The Society suspended the maternal grandparents' contact with the child in May 2022 and this decision was subsequently incorporated into a Superior Court order on June 9, 2022.

The Trial Judge’s Reasons

[14] In her reasons, the trial judge reviewed the background facts and the applicable legal principles concerning awarding a grandparent access [2] to a child.

[15] The trial judge began her analysis with a consideration of the three-part test set out in Giansante v. DiChiara [3], to first determine whether she should defer to the child’s father’s position that no contact should be permitted:

• Does a positive grandparent-grandchild relationship already exist?
• Has the parent’s decision imperilled the positive relationship?
• Has the parent acted arbitrarily?

[16] The trial judge accepted that the maternal grandparents had a positive relationship with the child during the first 18 months of her life prior to the insulin overdose, that they remained committed to the child, visited her when permitted and had a positive relationship with her following the insulin overdose. However, the trial judge found that if anything, it was the maternal grandparents’ actions, not the actions of the father, which had led to the court limiting their contact with the child following the insulin overdose. Moreover, the child’s father had initially been supportive of the maternal grandparents having a relationship with the child following the insulin overdose. The trial judge found it was their conduct in criticizing the child’s father’s care and the medical team’s care of the child, in accusing him and the doctors of attempting to poison the child, and in accusing him and his family of being part of a human trafficking cartel that caused the father to oppose contact between the child and the maternal grandparents. She thus found that his decision was not arbitrary. Nonetheless, the trial judge concluded she would “not necessarily” defer to the father’s position that there be no contact.

[17] The trial judge therefore conducted a full best interests analysis, taking account of many factors, including the following: the nature and strength of the child’s relationship with the appellant and the history of the child’s care; the child’s needs and, particularly in this case, her special needs; the appellant’s willingness and ability to meet the child’s needs; the appellant’s willingness and ability to co-operate with the child’s father and other caregivers; the child's cultural, linguistic, and religious upbringing; and any criminal proceeding, order, condition or measure relevant to the safety of the child.

[18] Despite the appellant's love for and early bond with the child and other good qualities the trial judge recognized, the trial judge concluded that many negative factors outweighed those positive factors and militated against the appellant having contact with the child or access to her medical records. Those negative factors included:

• the intensity and hostility of the appellant's conflict with the child’s father and his parents, which the trial judge found had created extreme stress and anxiety for the child’s father and his parents as well as stress to the personal support workers (“PSWs”) who worked with the child;
• the appellant's refusal to accept that it was the child's mother who had harmed the child and not the child’s father, an agent on his behalf or some unknown third party;
• the appellant's refusal to listen to, and lack of respect for, the child's doctors and other caregivers concerning the child's significant treatment and care needs;
• the appellant's delusional beliefs about the child's condition and the care being provided to her by her treatment team and by her father; and
• the appellant's problematic behaviour during contact with the child, which included making derogatory and accusatory claims to the PSWs and refusing to follow instructions concerning how the child should be cared for.

[19] The child’s medical condition and needs were explained at trial by, among others, the pediatrician in charge of her care at the Complex Care Clinic (the “CCC”) at the McMaster Children’s Hospital and a pediatric neurologist at the CCC. These witnesses testified that the child has an acquired brain injury and has been diagnosed with cerebral palsy, multiple system organ issues, spasticity and seizures. She can use her voice to communicate but will never be able to speak. She has cortical visual impairment, respiratory issues and gastrointestinal issues. She has no ability to walk on her own and has dislocated hips, but she is able to lie on her back and can sit on her own for up to three seconds. She can also sit in a tomato chair (which the trial judge explained is an adaptive seating system that provides support covered in soft, cushioned waterproof material) and can stand in a stander. She cannot care for herself and will require 24-hour-a-day care for the rest of her life.

[20] Among other things, the trial judge found that the maternal grandmother’s anger at the child’s father overshadows her ability to be child-focused in a way that meets the child needs and that she holds delusional beliefs about the child’s condition and medical treatment that have led her to be combative and aggressive with the child’s caregivers and to make serious allegations against them. Such delusional beliefs include a belief that the child’s treatment team are attempting to poison her with Botox injections whereas the medical professionals testified they recommended the injections to reduce the child’s muscle tone and her excessive salivary issues, factors which the trial judge found would improve the child’s quality of life.

[21] The evidence at trial also indicated that the maternal grandmother had written to government ministers, the College of Physicians and Surgeons and the RCMP claiming that the child was deteriorating in her father’s care and because of injections being given by the child’s doctors and asserting that future injections would amount to criminal acts. The maternal grandmother also wrote to federal ministers, the child’s doctors and the RCMP stating that a human trafficking cartel had inserted agents into public hospitals in Ontario and that one of the child’s doctors was planning to paralyze the child through Botox injections at the request of her father.

[22] In light of these and other factors, the trial judge concluded that the maternal grandmother does not understand the child’s medical needs and has no willingness or ability to meet the child’s needs and no willingness or ability to communicate or co-operate with the child’s father or her other caregivers. On the other hand, the trial judge was satisfied that the child’s father had demonstrated that he was committed to caring for the child “with as much care and thought as possible” and with the guidance and advice of the medical team looking after her.

[23] In all the circumstances, the trial judge concluded that it was not in the child’s best interests that she have any contact with her maternal grandmother or that the maternal grandmother have access to the child’s medical records. The trial judge reached the latter conclusion primarily out of concern that the maternal grandmother would continue to try and create her own narrative of what she believes is in the child’s best interests and in doing so, continue to complain about the child’s caregivers and generally cause continuing chaos and stress for the child’s father, his parents and the child’s other caregivers.

Discussion

[24] The appellant submits that the trial judge erred in applying the best interests of the child test as set out in s. 16 of the Divorce Act in multiple ways:

• by basing her decision on what is in the best interests of the child’s father and his mother rather than the factors set out in s. 16 of the Divorce Act;
• by failing to address whether it was in the child’s best interests that she be placed in the care of her father and misinterpreting the decision of the appellant and the maternal grandfather to withdraw their applications under the CLRA;
• by disregarding the child’s father’s history of family violence and his criminal record;
• by failing to appreciate or give sufficient weight to the child’s Serbian ethnic and linguistic heritage and Christian religion;
• by improperly dismissing the appellant’s efforts to bring the child’s deteriorating condition to the attention of the authorities and ignoring the appellant’s evidence concerning the ongoing mistreatment of the child by the child’s father and her caregivers and concerning the appellant’s efforts to ensure the child was properly cared for;
• by concluding incorrectly that prohibiting the appellant from receiving medical information about the child was in the child’s best interests;

[25] The appellant also submits that her fair trial rights were infringed in two ways. First, because her exhibits on the Caselines court document filing system were tampered with and ultimately destroyed such that she was prevented from properly presenting her case. Second, because she was barred by an order made in the criminal proceedings from speaking to the child’s mother or calling the child’s mother as a witness.

[26] We do not accept the appellant’s submissions.

[27] As a starting point, we note that in cases involving parenting or contact orders for a child, a trial judge’s decision is entitled to significant deference. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11 citing Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 10 and 12.

[28] Here, we see no such error. The trial judge set out the law correctly concerning grandparent contact with a child in divorce proceedings and conducted a thorough analysis of the relevant factors, including the factors set out in s. 16 of the Divorce Act.

[29] Contrary to the appellant’s submissions, the trial judge’s analysis was focused on the best interests of the child, not the best interests of the child’s father or his mother. The trial judge provided compelling reasons, rooted in the appellant’s conduct, concerning why contact between the appellant and the child was not in the best interests of the child and why the appellant should not have access to the child’s medical records.

[30] Given that the maternal grandparents had withdrawn their claims under the CLRA, it was not necessary that the trial judge assess whether the child’s father should have sole parenting time and decision-making responsibility for her. Nonetheless, as part of her grandparent-contact analysis the trial judge gave reasons that amply supported the child’s father having sole parenting time and decision-making responsibility for the child. The trial judge noted that the child’s father pleaded guilty to uttering threats against the child’s mother, served an intermittent sentence, and then went to therapy to address his issues. He also took several parenting courses prior to the insulin overdose to attempt to convince the child’s mother that he was capable of parenting the child. The trial judge found that following the insulin overdose, the child’s father had taken every possible step to look after the child’s needs and that the child’s doctors had confirmed that he should be commended for his efforts in ensuring she received the best care possible. As noted above, the trial judge found that the child’s father had “demonstrated that he is committed to caring for [the child] with as much care and thought as possible, with the guidance and advice of the medical team looking after [the child].”

[31] The trial judge’s reasons make clear that she was aware of the child’s father’s history of family violence and criminal record but was satisfied that he had taken responsibility for his past and was now acting in the child’s best interests. These findings were open to her on the record.

[32] Further, the trial judge carefully considered the fact that the child’s parents had different cultural, linguistic and religious heritages – the mother and her family being Serbian and Orthodox Catholic, and the father and his family being of a Muslim and Arabic cultural, linguistic and spiritual heritage. While the trial judge agreed that it was important that the child continue to be exposed to her Serbian and Christian heritage, she concluded that contact with the appellant to try and meet that goal would jeopardize the child’s emotional and medical stability. Again, this was a finding that was open to the trial judge on the record. The trial judge also found that the maternal grandfather would be able to continue to expose the child to the maternal family’s traditions and religious practices through his contact with the child.

[33] We are satisfied that it was open to the trial judge on the evidence to prefer the evidence of the medical experts concerning the child’s condition and treatment needs over the evidence of the appellant. We see no error in her findings or her conclusion that the appellant’s beliefs and conduct justified denying the appellant’s requests for contact with the child and access to her medical records.

[34] We would also reject the appellant’s arguments that her fair trial rights were breached because her exhibits were tampered with, and because she was prevented from communicating with the child’s mother, including to call her as a witness. There is no evidence that the appellant’s exhibits were tampered with or destroyed by the child’s father, as she alleges.

[35] Further, the issue of the sentencing conditions imposed on the child’s mother was not raised by the maternal grandmother until her oral submissions on appeal. Such conditions are not properly the subject of this proceeding as they were imposed by the sentencing judge as part of the criminal proceeding. In any event, as we have said, the child’s mother’s lawyer apparently advised the court at the opening of trial that the child’s mother did not wish to participate in this proceeding. In the circumstances, we have no reason to believe that the non-communication order had any impact on the outcome of this proceeding.

[36] We have no basis for concluding that the appellant’s fair trial rights were infringed.

Disposition

[37] Based on the foregoing reasons, the appeal is dismissed. If the father or the Office of the Children’s Lawyer are seeking costs, they may deliver brief written submissions, no more than 3 pages in length each, along with their Bills of Costs, within 10 days of the release of these reasons, and the maternal grandmother may respond in brief written submissions not to exceed three pages within 10 days of receipt of same.

Released: February 8, 2024 “J.S.” “Janet Simmons J.A.” “David M. Paciocco J.A.” “Thorburn J.A.”

Footnotes

[1] In her reasons, the trial judge noted that the child’s mother’s lawyer brought a motion to get off the record at the beginning of the trial and confirmed that the child’s mother did not want to participate in the trial.

[2] Pursuant to amendments to the Divorce Act, R.S.C. 1985, c. 3, which came into effect on March 1, 2021, the terms “custody” and “access” under s. 16 have been replaced by the terms “decision-making responsibility”, “parenting time” and “contact”, which are therefore the terms used throughout these reasons.

[3] The trial judge recognized that the Giansante test had subsequently been modified such that the initial three steps effectively became part 1 of a two-part test: Torabi v. Patterson, 2016 ONCJ 210, at para. 61; Capone v. Pirri, 2018 ONSC 6541, at para. 12; Botelho v. De Medeiros, 2017 ONCJ 463, at paras. 21-29.