WARNING

The court hearing this matter directs that the following notice be attached to the file:

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

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: November 1, 2013

Court File No.: Halton C220/13

Between:

Children's Aid Society, Region of Halton Applicant,

— AND —

J.S. and D.S. Respondents.

Before: Justice Roselyn Zisman

Heard on: September 23 & 24, 2013

Reasons for Judgment released on: November 1, 2013

Counsel

Lucia Spampinato — counsel for the applicant society

Kathryn Junger — counsel for the respondent J.S.

Brian Ludmer — counsel for the respondent D.S.

Geoffrey Carpenter — counsel for the Office of the Children's Lawyer, legal representative for the child L.S.

Mark Demeda — counsel for the Office of the Children's Lawyer, legal representative for the child M.S.

Decision

Zisman J.:

Introduction

[1] This is a temporary care and custody hearing wherein the society is seeking to place the child M.S. born […], 1998 ("M.S.") in the care and custody of the father, D.S. and to place L.S.1 born […], 2007 ("L.S.1") and L.S.2 born […], 2001 ("L.S.2") in the care of the mother J.S. subject to extensive terms of supervision of the society.

Background

[2] The parties were married on October 1994.

[3] The parties have three children M.S. born […], 1998 ("M.S.") L.S.1 born […], 2007 ("L.S.1") and L.S.2 born […], 2001 ("L.S.2").

[4] The parties separated on October 17, 2011. At the time of the separation, the father left the matrimonial home with M.S. and the mother remained in the home with L.S.2 and L.S.1. As of about November 2011, L.S.2 has not had access to his father.

[5] Subsequent to the separation, a court application was begun in the Superior Court of Justice. A temporary order was made by Justice Snowie on February 29, 2012 that on consent preserved the status quo residential arrangements for the children with L.S.2 and L.S.1 residing with the mother and M.S. residing with the father. The order also provided, not on consent that the parties to communicate through the Family Wizard program, except for emergencies. An order was made for specified access between the father and L.S.2. The mother was ordered to pay the father costs as he had made an offer to settle the issue of access. The endorsement states, in part, as follows:

This is a dysfunctional situation. At the present time M.S. and his mother have a strained relationship and he is refusing to see her. Father has him in counselling to address this situation. This friction between mother and M.S. is apparently long standing. It is hoped with professional help these "bridges" can be mended.

Since separation father has not seen L.S.2 (10). Mother alleges that L.S.2 does not wish to see father. There is no history for this situation. L.S.2 is too young to be deciding such an issue. It is questionable if this is healthy. The 3 boys need to have a healthy relationship with each of their parents and with each other. As such mother shall ensure and encourage that L.S.2 attend access as ordered with his father.

The parties are explosive with each other and therefore the exchanges should take place as per this order in Public places and not at the matrimonial home.

[6] Shortly after this order was made, the mother made allegations against the father with respect to historic assaults dating back to the date of the separation in October 2011.

[7] The father was charged on March 27, 2012 with six counts of historic physical assault and two counts of sexual assault. The terms of release stipulated that the father was not to have contact directly or indirectly with the mother.

[8] On April 23, 2013 the father was charged with a failure to comply with his terms of release as it was alleged that he had contact with the mother.

[9] The father's criminal charges have not yet been dealt with and are still before the court.

History of Protection Application Proceedings

[10] The society began this Protection Application in May 2013 with a first return date of June 20, 2013 and as a result the domestic proceedings are stayed and any orders made in those proceedings are suspended.[1]

[11] The society seeks a finding that the children are at risk of emotional harm pursuant to section 37(2)(b)(g) and risk of physical harm pursuant to section 37(2)(b)(i) and (ii).

[12] At the first appearance on June 20th, 2013 the society advised the court that it had suggested that an assessment would be appropriate but the mother was not agreeable and the father needed time to consider this suggestion. As both parents were co-operating the society did not seek a without prejudice order. A schedule was agreed upon for the filing of materials and the proceeding was adjourned for a temporary care and custody motion to July 19, 2013.

[13] On July 19, 2013, the motion could not proceed due to a lack of time. On consent an order was made appointing separate counsel for M.S. and L.S.2. A request was made that male counsel be appointed as both parents agreed that M.S. and L.S.2 did not relate to the female counsel that had been appointed to represent them in the domestic proceedings. After hearing submissions, on a without prejudice basis, an order was made for summer access.

[14] In an attempt to break the impasse that had been reached with respect to L.S.2's refusal to see the father, the mother was ordered to bring L.S.2 to the society's offices for a supervised access visit for a minimum of 30 minutes once a week to be increased or decreased in accordance with L.S.2's wishes, reaction to these visits and if possible in consultation with his counsellors.

[15] The father was also required to arrange for the mother to have reasonable access to M.S. in a public place in accordance with his wishes but at a minimum of once a week. The father's access to L.S.1 was to continue to be on alternate weekends and twice during the week but pick up and drop off was to be at the society office, if it was open and otherwise at a specified neutral location. There were further stipulations and restrictions on the parents' communications, attendance at extra-curricular events and an order prohibiting the video and audio recording of the children at pick up and drop offs.

[16] The parties were ordered not to file any further affidavits, without a further court order, except that the society was permitted to file a reply affidavit and the mother was permitted to file a cross motion.

[17] The motion was again adjourned to August 22, 2013 but could not proceed as the court was advised at least a full day was now required to argue the motion. The motion was adjourned to September 23, 2013.

[18] Despite the previous order that no further affidavits be filed, at the commencement of the temporary care and custody motion the father sought to introduce three further affidavits that he submitted were necessary to update the court regarding the mother's non-compliance with the order for access between himself and L.S.2 and the further inappropriate actions by the mother. The society counsel objected to the admission of the affidavits as they added no new information and the society had updated the court in its reply affidavit. The mother's counsel also objected to the admission of the affidavits on the basis that they did not add any new information and if they were admitted, she was then requesting an adjournment to respond.

[19] Despite the objections and my previous order, I permitted the affidavits to be filed to ensure that the court had all of the relevant facts but permitted the mother and society to respond to any new information either orally or by filing a responding affidavit that day. Neither counsel found it necessary to file any responding affidavits and dealt with the issues in oral submissions and relied on the materials already before the court.

[20] The society's Plan of Care requested an extraordinary 66 terms of supervision. Counsel for both the mother and father filed a summary of their responses to these terms. Counsel for the father also filed a Statement of Law and three Books of Authorities. I have considered the oral submissions of all counsel and have reviewed the following affidavits with attachments filed on this motion namely:

(a) On behalf of the society: affidavits of Ashley Sloan sworn May 9 and August 21, 2013

(b) On behalf of the father: affidavits of the father sworn June 20, July 12, July 16, July 18, August 20 and September 23, 2013. Six affidavits in support of the father from his parents, sister and friends

(c) On behalf of the mother: affidavits of the mother sworn July 12 and 17, 2013

Position of the Parties

[21] It is the position of the society that it has been involved with the family since 2008 on a voluntary basis and there have been multiple investigations regarding physical harm due to inappropriate discipline, exposure to domestic violence and conflict, concerns about the caregiver's emotional and mental health problems interfering with their ability to care for the children, M.S.'s aggressive behaviour, an attempted suicide attempt by M.S. and concerns about both parents inappropriately involving the children in their conflict.

[22] It is the position of the society that strict and extensive terms of supervision are necessary to set appropriate boundaries to de-escalate the conflict, to ensure that the parents and the children obtain counselling and that the society be permitted to monitor such counselling. In view of the ongoing conflicts regarding access, the society has also taken the somewhat unusual position of including very specific terms of access in the terms of supervision that have been suggested due to the high level of conflict regarding access arrangements.

[23] Both counsel appointed to represent M.S. and L.S.2 had just been appointed and accordingly they were not able to take a position with respect to this motion. Counsel for L.S.2 did advise that he had met with L.S.2 and he was agreeable to seeing his father but was not requesting access be increased. Further, L.S.2 advised his counsel that he was uncomfortable with access taking place at the society's access centre. L.S.2 also expressed a desire to see M.S. more.

[24] The mother agreed with the position of the society regarding where the children reside but did not agree with some of the terms of supervision. The mother was hoping to normalize her access to M.S. so that he would be permitted to exercise access in the home with the other children. The mother denies the father's allegation that she has alienated L.S.2 from the father but rather submitted that it was the father's treatment of L.S.2 that had caused the breakdown in their relationship. The mother submitted that all of the background of the father's problems in his relationship with L.S.2 was not before the court in the domestic proceedings when the order was made for the father to have access to L.S.2. The mother also submitted that the father has continued to disparage the mother in front of the children and has taken no responsibility for any of his actions.

[25] The father initially filed a notice of cross-motion requesting an order that M.S. be placed in his sole care and that L.S.1 and L.S.2 be placed in the shared legal and physical custody of both parents. He proposed a schedule of a gradual increase in his time with L.S.2 until equally shared time was achieved.

[26] However, when the temporary care and custody motion was argued he took the position that he was generally prepared to agree to the position of the society but did not agree with all of the terms of supervision. The father submitted had not seen L.S.2 for 1½ years and there had been no change in the circumstances since the order made by Justice Snowie on February 29, 2012 in the domestic proceedings ordering that he have access to L.S.2. The father's position therefore was that his access to L.S.2 should be in accordance with the outstanding order in the domestic proceedings and should be the same as his access to L.S.1 namely, alternate weekends and two afternoons a week. It was submitted that the mother should be required to prove what guidance, boundaries and consequences she has used to ensure that L.S.2 went to see his father.

[27] It was also the father's position that the mother should be warned that this was her last chance to encourage the father's relationship with L.S.2 and to stop alienating L.S.2 from him and if that relationship was not repaired then L.S.2 should be placed in his care.

[28] The father submitted that the society has not thoroughly investigated this case, that it not been even-handed and that there has never been any verification of him causing any physical harm to the children or that the children are at risk of emotional harm in his care.

[29] It is the father's position that L.S.2 is at only at risk of emotional harm in the care of the mother as she is systematically and deliberately alienating L.S.2 from him. It is further submitted that the mother has refused to comply with the outstanding order for access pursuant to the order of Justice Snowie and then shortly thereafter fabricates allegations of historic assault and then arranged a situation whereby he was charged with a breach his release terms by having indirect contact with her all as part of a scheme to ensure he has no contact with L.S.2. It was also the father's position that none of the children were at risk of physical harm while in his care as such a risk has never been verified by the society.

History of Society Involvement

[30] In view of the father's position it is necessary to briefly review the history of the society's involvement with this family.

[31] In February 2008 the family was investigated and the society verified physical harm to the children during discipline by both parents as they both admitted to spanking the children however, it was not deemed to be excessive. The society verified that the children had been exposed to "conflict".

[32] In October 2008, the family was again investigated and the society verified that the children had been exposed to domestic violence along with a caregiver having a mental or emotional problem which interfered with their ability to care for the children. However, as the father was seeking counselling to address his anger issues and the domestic violence and the mother was continuing with her counselling the society deemed there were no protection concerns and closed their file.

[33] In March 2011, the society investigated concerns about the father's use of physical force on M.S. and the children being exposed to adult conflict. Although the society did not verify these concerns it did verify concerns with parent child conflict due to M.S.'s aggressive behaviours and verified problems due to the father's mental health issues.

[34] In June 2011 and July 2011 the society received a report from a medical professional and another report from a counsellor about M.S.'s aggressive behaviour in the family home. The mother was contacted and responded appropriately and was linked to community services for assistance.

[35] In August 2011, [2] the mother reported that the father was two hours late returning L.S.1 from an access visit and insisted on returning L.S.1 to her care at a police station. The police were present when L.S.1 stated to the mother "when I get older mommy I'm going to kill you with a knife". The mother was referred to services in the community.

[36] In October 2011 a medical professional contacted the society to report an allegation of the father causing physical harm to L.S.2 on a family trip on July 2, 2011 while attempting to discipline him. The society verified that the father had punched L.S.2 in the face and that his lip was bleeding. L.S.2, who was interviewed privately, confirmed that it was not an accident. Although the society confirmed that the father did not have a malicious intent nevertheless, he struck L.S.2 for the purpose of discipline. The society verified that the children were at risk of physical and emotional harm due to domestic conflict in the home. The society also verified that the parent's mental health issues were having an adverse impact on the children's emotional well-being.

[37] Between October 2011 and May 2012, the file was open for ongoing services to monitor the family, to make referrals to community services and to provide support and recommendations. The family was referred to various counselling services to address the custody and access issues, the parents' and the children's mental health issues and the issue of domestic violence in the home. The family had the assistance of a counselling program in their home to address the children's behavioural issues and provide parenting strategies.

[38] The parents attended mediation offered through the society as their conflict regarding the custody and access issues was adversely affecting the emotional well-being of the children. The mother found the process unhelpful and did not agree to the recommendations and the process was discontinued.

[39] The society also arranged a service co-ordination meeting with all of the service providers and the parents. They discussed the parents' progress, the custody and access issues and the impact of the parents' behaviour on the children's mental health.

[40] Both parents attended individual counselling to address their own mental health issues. The two children in the mother's care, L.S.2 and L.S.1 attended a Safety Zone program. M.S., who was in his father's care, refused to attend any counselling but was seeing a child and youth worker at his school. During this time he was refusing to have access to his mother.

[41] During this time period both parents were cautioned numerous times about their behaviour in the presence of the children. After each investigation the parents were cautioned about the emotional harm their conflict was having on the children.

[42] About three weeks after the separation the mother was specifically cautioned about an inappropriate discussion in front of L.S.2 and L.S.1 in which the mother is heard to sing "Daddy is sick in the head" and make several inappropriate comments about the father. The father relies heavily on this conversation that he audio taped. The father attached as an exhibit a copy of the transcript of this discussion in two of his affidavits.

[43] However, the society worker deposed that the mother was cautioned, accepted responsibility and there have been no further incidents. The mother explained that she was feeling continually harassed and verbally abused by the father and that he was encouraging M.S. to do the same. M.S. was telling her things about the separation that he should have not known and the father was continually recording her. On the particular day in question, the mother deposed that the father was saying inappropriate things about her and although she knew it was wrong the stress she was under caused her to act out inappropriately. Further, in reviewing the transcript it is evident that the father also said inappropriate things and once the mother regained control of herself she told L.S.2 to stop calling his father names.

[44] The mother's counsel submitted that although there was no question that this discussion should not have taken place on front of the children, it should not have been an excuse for the father to retaliate and tell the children that their mother was sick or a reason to play the tape loudly in the courtroom hallway. In March 2013, the mother was forced to bring a motion to take the children to Florida for the spring break, as the father would only consent if the mother arranged a "successful" visit between the father and L.S.2 and the he expected to see "a happy child, eager to see his father". This was despite the fact that there had been no access between the father and L.S.2 for over a year and despite the fact that the parties were by then working with a parent co-ordinator, Ms Geraldo, to assist them in a reconciliation process.

[45] In May 2012, despite the fact that the society had verified the risk of physical and emotional harm, the society closed its file as the parents had been referred to services to address the protection concerns, the criminal and custody and access issues were before the court and a temporary order was in place.

[46] In June 2012, the society received a referral from a medical professional about a serious incident regarding M.S.. M.S. had told the mother he was coming to her house and she tried to stop him from coming when she was not present but he attended anyways. The mother called a neighbour to attend the house to make sure the children were safe. M.S. punched the neighbour three times and also punched L.S.2 in the face. Although the police attended, no charges were laid.

[47] In December 2012, the society re-opened its file after the father called to report a knife fight at the mother's home between the children. The society verified that L.S.2 had been trying to get M.S. to say that the father use to abuse him and when M.S. became upset and lunged at L.S.2, L.S.2 grabbed a kitchen knife. The mother got between them and told L.S.2 to put down the knife and then L.S.1 came running into the room. Later that night, M.S. punched the mother in the jaw.

[48] The father was interviewed and expressed his fear that the mother could not provide adequate supervision or protection for the children when it came to M.S.. The father told the society worker that he could understand if the children needed to be placed in foster care for their own safety while he and the mother worked things out. He also expressed his wish to reunite with L.S.2.

[49] In January 2013, the society received several reports from medical professionals involved with the family expressing concerns about the emotional health and development of the children. In view of the prior history, the society chose to open a file on a voluntary basis.

[50] In February 2013, the society received a report about the father following L.S.2 around at an activity and using L.S.2 to report something to the mother thereby breaching his bail condition not to communicate with the mother.

[51] In February 15, 2013 the society worker attended at the mother's home for a scheduled visit. When L.S.2 returned from school and saw M.S. there he became upset and began to cry. The home became chaotic with the boys yelling and fighting. After the mother tried to calm things down, M.S. appeared at the door pointing a BB gun at the mother and the worker. The mother assured the worker it was not loaded and belonged to the father. The mother and worker had to ask M.S. many times to give them the BB gun.

[52] In March 2013, the society received a report that as a result of a fight between the boys, M.S. had thrown a bag of candy at L.S.1 and caused him to have a scratch on his face.

[53] On April 3, 2013 the society received a report that the L.S.1 reported that M.S. was chasing L.S.2 and said that he wanted to throw a cross at him and kill him so there would be no more fighting in the house. L.S.1 also reported that he was in the car with M.S. while the mother went inside the YMCA with L.S.2 to get his jacket and M.S. told L.S.1 to turn on the car and drive away. L.S.1 described how he got into the front seat and the engine was revving and that M.S. then locked the doors so the mother could not get into the car. L.S.1 was reported to say that that he would like to drive and crash the car so he could die and go to heaven.

[54] On April 8, 2013 the society received a call from Lourdes Geraldo who reported an incident that day between the mother and the boys. Ms Geraldo had been used by the parents to assist with parent child reconciliation and parenting strategies. Ms Geraldo reported that the mother saw M.S. coming out of a store and she pulled over to tell him to go to his father's home. At the time, the mother was on her way to the society office for a scheduled meeting and L.S.2 and L.S.1 were in the car. M.S. would not move and both L.S.2 and L.S.1 were in the car screaming and they sounded petrified. It appeared to Ms Geraldo that M.S. wanted to attend the meeting at the society but she did not think it would be safe.

[55] The society then received a call from the father reporting the same incident. The father told the worker he was going to pick up M.S. and asked if he should bring him to the meeting. The worker told that father that given the incident that had just occurred that this was not a good idea and scheduled another time to meet.

[56] The mother and L.S.2 and L.S.1 arrived at the office for the scheduled meeting about half an hour late. L.S.1 asked the worker who he was supposed to listen to M.S. or his mother and he then said he wanted to listen to M.S..

[57] Despite the father being told not to bring M.S., he dropped M.S. off. M.S. interrupted the interview between the worker and L.S.1 and once L.S.1 saw M.S. he refused to talk to the worker. The mother and worker tried to get L.S.1 to leave the room she could speak to M.S.. Both M.S. and L.S.1 said that it was not the worker's building and if she wanted to talk to M.S. then L.S.1 would sit and listen. The worker noted that the mother remained calm throughout this incident and tried to separate M.S. and L.S.1.

[58] The worker did speak to M.S. although L.S.1 ran into the room three times. M.S. referred to his mother by her first name, said he respected his father, referred to his mother as "crazy" and that he only liked going to her home because it was his home also and he had friends in the area.

[59] When the worker interviewed L.S.2 he was teary and told her that he would not go home if M.S. was there. He told the worker that his mother could not protect him or herself from M.S. and that he did not feel safe.

[60] When the worker questioned the father as to why he had brought M.S. to the meeting when he had been told not to, the father yelled at the worker. He told her she should be thanking him as it allowed her to speak to M.S. and that M.S. told him that it was either that day or never that he would be willing to be interviewed by the worker.

[61] The next day, the police reported that the mother had called for assistance as M.S. refused to leave her home. The worker noted that she had told the mother to call the police if M.S. refused to leave.

[62] The police again contacted the society to report that on April 22, 2013 the mother attended the father's residence to pick up M.S. and observed what appeared to be an argument between M.S. and the father. The father reportedly gave her a dirty look and mouthed to her "you are in so much trouble."

[63] Based on the accumulation of these events, long standing concerns that the parents were exposing the children to emotional harm, the inability of either parent to set appropriate boundaries for the children, M.S.'s mental health issues and the failure of any changes as a result of the society working with the family on a voluntary basis, the society commenced the herein protection application.

Events Since the Commencement of the Protection Application

[64] The society confirmed that the mother was abiding by the terms of the proposed plan of care specifically with the requirement that she not permit M.S. to be in the home when L.S.1 and L.S.2 are there and that access between the boys take place in a public place.

[65] The society also confirmed that it had requested that the father refrain from continuing to videotape but the mother alleged that he continued to do so because he alleges that he is being terrorized by her which she denies.

[66] The society has continued to receive reports from the parents about ongoing difficulties with the children's behaviours and abiding by the terms of the temporary order. The mother reported that she did not know how to stop M.S. from coming to the home.

[67] The society also received reports from the school that M.S. is not attending school regularly. L.S.1 reported to his teacher that the father was purchasing alcohol for M.S. and that the father was telling him that his teachers are going to tell the court about his family.

[68] On July 24, 2013 the parents were exchanging L.S.1 after an access visit in accordance with the temporary order. M.S. had gone into the mother's car and refused to leave until she gave him his identification documents. The father just stood by telling the workers he was waiting for M.S.. Eventually, M.S. exited the car and sat in his father's car. The mother explained that M.S. had gone into her purse and taken her identification and refused to give it back until she gave him his passport. M.S. was defiant and rude to the society workers who tried to intervene and he was told the police would be called. The father then handed the mother's identification back to her. As the mother tried to leave, M.S. blocked her and then the father tried to intervene by placing himself between the mother and M.S.. They were then blocking a society worker who was trying to leave. Both M.S. and the father moved so the worker could leave but then M.S. again blocked the mother's car and taunted her to "go ahead, hit me." Finally after the society worker told them she was calling the police, M.S. moved and the mother was able to leave.

[69] On the same day, the father and M.S. walked into the society's office. When the worker told the father she could not meet as she was with other children, M.S. became rude and swore at the worker. When the father told M.S. they were leaving he began to argue with the father and swore that he was not leaving. The worker was able to disengage and walked away and then the father and M.S. left.

[70] The society reported that on August 9, 2013 L.S.2 and the father had their first visit. L.S.2 indicated that he wanted the worker to remain in the room. Although L.S.2 appeared nervous and was not very talkative, there was appropriate conversation and interaction. When L.S.2 appeared a bit anxious, the worker intervened and suggested they play a game which eased the tension. After the visit, L.S.2 told the worker he was uncomfortable and did not want another visit but she was able to have him agree to another visit.

[71] On the next visit, L.S.2 would not leave the mother's car and despite the worker speaking to him, L.S.2 would not go to the visit and another visit was arranged.

[72] When the worker explained to the father why the visit could not happen, he told her that M.S. needed "someone to throw him a bone" and suggested that the mother return his passport. The worker explained that in view of M.S.'s behaviour in front of the society's office demanding that his mother give him his passport he did not deserve it. The worker noted that the father did not understand the role M.S. played and placed all of the blame on the mother.

[73] On August 14, 2013 the father brought M.S. to meet with the worker. M.S. told the worker that he was not interested in having a children's lawyer as he could defend himself. He reported that he does not like the mother but he wants to go back to his mother's house to see his friends and he wants to live with the mother. At the end of the meeting, M.S. picked up the telephone and called his mother and told her to pick him up as that the worker wanted them to have positive visits together. When the worker pointed out that he had not asked his father or did not know what his mother had planned for the day, he responded, "she is my bitch, she'll do whatever I want." When M.S. walked out of the meeting room and told his father that the mother was coming to pick him up, he was rude and dismissive to the father when the father tried to ask some questions about the arrangements.

[74] The mother advised the society that she was taking L.S.2 and L.S.1 to Sauble Beach for the weekend and M.S. wanted to go and that she confirmed that L.S.2 wanted M.S. to go with them. When the worker told the mother that she was not approving any overnight visits, the mother became upset, confirmed she would comply but told the worker she would need to tell M.S. that he could not go. The worker told the mother that she was the parent and needed to tell M.S..

[75] On August 16th, the next access visit between L.S.2 and the father, L.S.2 would not engage with the father or look at him. L.S.2 was talking to himself under his breath and asked the worker why M.S. could not go to Sauble Beach with them. Despite the worker telling him that he was there for a visit with his father he continued to ask why M.S. could not go. The worker said they could talk about it after the visit. L.S.2 then put his head down and closed his eyes. After about 15 minutes the worker ended the visit as it was not productive and told him that he could leave with his mother. L.S.2 then said he was not done as he wanted to discuss the issue of Sauble Beach. When the worker told him she would not discuss the issue with him as his access visit was not over, L.S.2 then agreed to play football with his father in the society's reception area. The mother was in the reception area and was told to leave. However, the mother spoke to L.S.2 and kept repeating words to the effect of "its okay L.S.2, remember if you are done its okay". After the mother left, L.S.2 and the father played football together and although L.S.2 did not engage in conversation, as the game went on he was smiling and laughing with the father.

[76] After the visit, the worker tried to explain to L.S.2 why M.S. could not go with them to Sauble Beach and that there would have to be successful community visits first. L.S.2 persisted and when the worker told him she was not going to change her mind, he told her he was not done and would not leave the meeting. When the worker called the mother into the meeting, she tried to discuss M.S. in front of L.S.2 and she persisted even after the worker tried to redirect her. L.S.2 became upset, left the room and was crying. When the worker pointed out that she needed to comfort L.S.2 now, the mother said she always did that and then left with L.S.2.

[77] On August 20th, the father called the worker to seek permission for M.S. to spend the day at the beach with the mother and the two boys. Although the worker indicated she approved the visit, the father indicated that he was being put in a difficult situation as the mother had already discussed the visit with M.S. and then put the responsibility for explaining why something did not work out on him. The worker agreed that both parents should not be using the children as a means of communicating plans to the opposite parent and that plans should not be discussed until approved of by the society.

[78] In the society's reply affidavit, the society worker deposed that she was able to update the court regarding, Lourdes Geraldo, who acted as a parent co-ordinator, and to clarify her involvement with the family as both parents made reference to her in their materials. Ms Lourdes advised the worker that a term of her retainer agreement with the parents was that neither parent was to paraphrase in court material any correspondence, statements, feedback or discussions they had had with her.

[79] In a letter filed by the society, Ms Geraldo outlined her involvement with the family and her assessment. She identified that the children are each aligned with the parent with whom they live although she felt L.S.1 was somewhat sheltered from the high conflict. It was her assessment that the parental conflict had polarized the children's relationship with each other, made it difficult for them in moving between households and accepting parental direction in either home. Neither parent appeared to have sufficient control to enable the children to participate in therapy in an emotionally safe manner. Ms Lourdes recommended that:

The focus of the intervention with this family must be to contain and boundary the parental conflict to enable them to make day to day decisions as well as significant decisions for their children. The children can also benefit from individual therapy to assist them in dealing with the separation. It is important that the children's therapy be sheltered from their parents' litigation, given both parents' history of blaming one another for their children's reactions and behaviour.

Applicable Law

[80] Temporary care and custody hearings are determined pursuant to s. 51(2), (3), (3.1), and (3.2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (hereinafter referred to as "CFSA") the relevant portions which state as follows:

Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Placement with relative, etc.

(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

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

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services. 2006, c. 5, s. 8(3).

[81] In this case the society is seeking an order pursuant to s. 51(2)(b) that is, that the children remain with in the care of a parent with M.S. in the care of the father and L.S.2 and L.S.1 in the care of the mother with terms and conditions.

[82] Section 51(3.2) is therefore applicable but that section does not define the terms or provide any criteria or guidance as to what "reasonable terms and conditions" a court should impose. This is sensible as any terms should be child and harm specific.

[83] It is well established that on a temporary care and custody hearing, where the society is seeking to remove a child pursuant to section 51(2)(c) or (d), the society must establish, on credible and trustworthy evidence, reasonable grounds to believe that that there is a real possibility that if the child is returned to his parents, it is more probable or not that he will suffer harm.[3]

[84] It has also been held that on a temporary care and custody hearing, where the society is seeking to remove a child, the society need only demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies society intervention. The burden on the society at this early stage is not on a balance of probabilities as to the actual existence of risk but is an evaluation of the reasonableness of the grounds for the society's belief.[4]

[85] But as section 51(a) and (b) does not apply to the criteria in sec. 51(3.2), it appears that the legislature has not made it clear what test is to be applied when a society is seeking a temporary supervision order or what the criteria for such an order should be.

[86] The scheme of the legislature provides that the court should, pending a hearing, make the least intrusive order possible consistent with the protection of the child from a risk of likely harm. Any order made in a child protection proceeding is intrusive and despite the lack of clear legislative language I see no reason for the onus of proof or criteria to be any different when the society is requesting an order pursuant to section 51(b) than when a society is requesting a more intrusive order pursuant to section 51(c) and (d).

[87] Therefore the issue to be determined is whether or not the society has reasonable grounds to believe that there is a probable risk that the children in this case will suffer harm if reasonable terms and conditions of a supervision order are not imposed.

Analysis

[88] In this case, as previously indicated, the society seeks that M.S. remain in his father's care and that L.S.2 and L.S.1 remain in the mother's care with appropriate and detailed terms and conditions of supervision.

[89] I have outlined in detail many incidents that have over many years been brought to the attention of the society in order to understand the historical and current context of these proceedings and to put into put into context the need for the extensive terms and conditions being proposed by the society.

[90] I find there is overwhelming evidence that there is a probable risk that the children will suffer both physical and emotional harm in the care of their parents if terms and conditions are not imposed to attempt to minimize these risks.

[91] I find there is no basis for the father's allegations that the society did not thoroughly investigate. The only basis for this allegation is that the society did not obtain or examine the domestic file. I agree with society counsel that this was not a necessary part of their investigation. In any event, based on the extensive materials filed by the father it is hard to imagine any facts that are contained in that court file that the father has not referred to in this proceeding.

[92] I also find there is no basis for the father's allegation that the society has not acted fairly or balanced in their interactions with the father and mother. The society over the years has cautioned both parents about the emotional harm they have caused the children due to their exposure to the conflict between the parents.

[93] The mother was cautioned each and every time there was an investigation about the harm being caused to the children. She was cautioned and has accepted responsibility for her inappropriate singing of the "Daddy is sick" song and her inappropriate comments about the father in the presence of the children.

[94] The society has outlined both the mother's strengths and her weaknesses. The mother has always been very active in the children's lives and has responded appropriately when connecting the children with community resources. The mother has responded calmly to the volatile situations with M.S. but she continues to have difficulty setting boundaries for all of the children. She has followed the society's directions although she has continued to involve the children in making plans without seeking the prior approval of either the father or the society. Further, the mother has recently attempted to obtain some information about M.S. and discussed him front of L.S.2.

[95] There is no basis to find, as alleged by the father, that the mother has been persistently late in bringing L.S.2 to the access visits or actively interfered with these visits. She has agreed to leave the premises as suggested by the society worker after dropping L.S.2 off for a visit.

[96] I do not find there is any evidence to support the father's persistent allegations that the mother has alienated L.S.2 from his father. The father did not provide any medical, psychological or psychiatric evidence that the mother has alienated L.S.2 or that counselling would not be effective or that the solution is simply to order access in accordance with the domestic order of Justice Snowie. The letter provided by Ms Lourdes does not confirm the mother has alienated L.S.2 and recommends that there be counselling.

[97] It is striking that in all of the father's various affidavits and the affidavits of his friends and family, there is not an iota of responsibility by the father or any recognition that he has any blame for the current situation. It is clear from the materials filed that the society verified and the father has been cautioned on numerous occasions with respect to physically harming the children while disciplining them and has been encouraged to obtain help for his anger management issues.

[98] The society verified that in July 2011, the father punched L.S.2 in the face and that this was not an accident. There is no evidentiary basis to substantiate the father's position that it was only as a result of the mother singing the "Daddy is sick" song that L.S.2 stopped wishing access to his father; there is no basis for the father's allegation that the mother has been persistently late for the access visits between him and L.S.2. I find that the father has acted in ways that have made L.S.2 as uncomfortable including videotaping the exchanges, attending at his school and attempting to stop him from going on a trip to Florida with the mother.

[99] There is further no basis for the father's allegation that he encouraged M.S. to see his mother whereas the mother did not do the same with respect to L.S.2. The two situations are not comparable. M.S. has expressed that he wished to go to his mother's house, despite his disparaging comments about her, because his friends are there. Based on the society worker's observations, the mother has been co-operating with the society and it is L.S.2 who is having difficulties with the access visits with his father.

[100] The father has also inappropriately shared information with the children. M.S. was told the terms of the father's bail. The father must have discussed the financial issues with M.S. as he has asked the mother about why she is in the matrimonial home. Despite L.S.1 being uncomfortable with the father videotaping the exchanges, the father persisted in doing so and told L.S.1 he needed to video tape in order to protect himself.

[101] The society records indicates that M.S. was hospitalized due to threats of suicide and that he has been diagnosed with three anxiety disorders for which M.S. has refused counselling. The father does not seem to be able to ensure that M.S. receives the type of in-depth counselling that he clearly requires.

[102] Based on recent incidents, I find that the father is unable to manage M.S.'s behaviour and is unable to set appropriate boundaries. The father is unable to control M.S.'s visits to his mother and allows him to make his own arrangements and go there whenever he wishes. The father is unable to ensure that M.S. attends school regularly. The father is unable to control or set appropriate consequences for M.S.'s impulsive actions as recently evidenced by M.S. taking his mother's identification or blocking her car in front of the society office. The incident on July 24th, is extremely concerning as it indicates the father's inability to proactively parent M.S. as the father sat back and did nothing to calm M.S. down. If this is how the father parents M.S. in front of the society workers it raises serious questions about how the father parents him in private.

[103] There is a further concern about L.S.1's safety in the father's home when M.S. is present as the father is unable to set boundaries and ensure that M.S. is respectful around his younger brother.

[104] I agree with the society's position that there are concerns about M.S. being in the care of the mother with the two other children because M.S. has assaulted the mother and his brothers. There is no basis for the father's assertion that this is due to the mother's inability to parent the children. Rather it is due to M.S.'s impulsive behaviour and his physical size that places the mother and the other children at risk. This is yet another example of the father seeking to blame the mother and not seeing that he may have some responsibility in not setting proper routines and boundaries for M.S. and not ensuring that he receives the counselling he needs to deal with his mental health issues. In all of the affidavits filed by the father, I did not see the father refer to any consequences M.S. received for his inappropriate behaviour.

[105] I find that both parents love their children and want the best for them. However, their ongoing marital conflict has morphed into a situation that has required the society to commence child protection proceedings to attempt to shield the children from any further emotional harm. I find that the mother sincerely wishes to normalize her relationship with M.S. so that he can spend time in the home with her and his brothers and that he receives the help he needs for his mental health issues and that he is successful in school. I also find that the mother wishes that the father's relationship with L.S.2 is normalized.

[106] However, unless and until the father stops his incessant crusade against the mother and stops speaking about the mother's past transgressions, I do not see how this family will move forward regardless of the number of conditions that are put in place. Although the mother is not blameless, I find that she tends to react to the father's accusations and is under such enormous strain that again is in large part caused by the father's aggressive and relentless behaviour in blaming her for all that has gone wrong in his relationship with L.S.2.

[107] I do not intend to repeat the various submissions made by the parties regarding the appropriate terms and conditions or review in minutiae the changes suggested by both parents to the terms proposed by the society.

[108] But it is important to make some general comments in order for the parents to understand the purpose of the terms that I intend to impose. Based on the litigious nature of these proceedings and the history of the matter, it is necessary for the society to be able to closely monitor the family and to ensure that any further conflict is minimized.

[109] In order to be even-handed the society has proposed many mutual terms although it is evident from the evidence presented on this motion that generally the terms are necessary as a result of the father's conduct. But as the mother has agreed to the terms, I am prepared to make the terms prohibiting certain behaviour mutual.

[110] In view of the emotional needs of the children and based on the recommendation of Ms Lourdes, the parents need to ensure that all of the children receive counselling and that the society can monitor the counselling. As M.S.'s needs are the most serious and as he has in the past refused to attend counselling and the father has not been able to ensure he attends counselling regularly, the terms for his counselling must be more specific than for the other children. I am not agreeable to the father's proposal that the society determine the nature of L.S.2's counselling as this is again based on the father's theory, not supported by any objective evidence, that the mother is responsible for L.S.2 not seeing him.

[111] In view of M.S.'s lack of attendance at school, an order is necessary to ensure that he attends school. I note that the father did not even acknowledge that this was an issue and therefore it is necessary that the society and the mother be able to monitor M.S.'s attendance and to obtain information from the school regarding any difficulties he may be experiencing.

[112] As there has been considerable police involvement with the family, the society also reasonably wishes to be informed about any further such involvement.

[113] The society proposed that a parent co-ordinator be appointed to assist the parents in making arrangements and in resolving ongoing disputes. The society did not pursue these terms based on the court's view that the court does not have the authority to delegate any decision making to a parent co-ordinator except with the consent of the parents. As the parents did not consent, I am not prepared to include these terms.

[114] The society also sought terms that both parents continue with their therapists and that they sign consents to release information to the society. Both parents' counsel did not agree with the requirement that to sign releases for their therapists in order to protect their confidentiality. I find that given the high level of conflict, those records would be used by each parent against the other and would only continue to further increase the conflict. The therapists involved with this family have contacted the society in the past regarding any child protection concerns and therefore I find that the society will be able to monitor any ongoing risks to the children as a result of the mental health of either parent. If the society does receive any concerning reports then the need for the release of records can be pursued in the future.

[115] The society is also seeking terms regarding parenting courses and other counselling as recommended by the society. Father's counsel submitted that there may be a cost component to these services and that there also may be an overloading on the parents and the children. Counsel for L.S.2 also expressed concerns about the number of programs that were being suggested. Society counsel pointed out that most of the courses were free of charge and that the society did not expect that the courses or programs would be taken all at once. However, the society was concerned that given the high level of conflict and the litigious nature of the proceedings the society did not want to have to return to court if one of the parents disagreed with a program that was recommended but was not specially set out as a term. Based on this representation by the society I agree that it would be prudent to include such terms in the order at the present time.

[116] Based on the historical verification of physical discipline and physical violence by the father against the children, a term prohibiting such behaviour is appropriate and agreed to be mutual.

[117] There is a need for specific terms regulating communication and boundaries between the parents and prohibiting both parents from using the children to communicate with each other as both parents have continued to do this. Also the parents need to be prohibited from discussing the family conflict with the children and with third parties in the presence of the children.

[118] The society has proposed a term to prohibit the parties from video or audio taping each other. The father was only agreeable to this term if there were restrictions placed on the mother that she strictly comply with his bail terms and not be within 500 metres of him. This is based on the father's position that he needs to protect himself from further false allegations by the mother. I am not prepared to order any such stipulations. What is abundantly clear is that the children are distressed by the father taping them and it is emotionally harmful for the children to be video and audio taped. The children need to be protected from the father's practice in taping them. I am ordering both parents to refrain from doing so as the mother is consenting to this term. However, there is no evidence that the mother has ever done this.

[119] The society has proposed specific terms for access to de-escalate the conflict that the children are exposed to as a result of conflict revolving around access. The without prejudice temporary order in place currently regarding M.S. making arrangements for access has not proven workable as it has empowered him to do what he wishes and he has imposed that on his parents. M.S.'s access to his mother needs to be more structured and his parents need to be able to set the parameters for those visits. M.S. should not be permitted to control and dictate the terms of access. Given his impulsivity, physical aggression and the conflict between him and his brothers his contact with his brothers also needs to be closely supervised.

[120] With respect to the father's access to L.S.2, I agree with the terms suggested by the society and the mother that any increase in access needs to be slow, measured and closely monitored. Based on the difficulty L.S.2 is having with even the short visits, it is appropriate to continue the current limited and structured access but to provide the society the flexibility to increase the access and eliminate the need for supervision as L.S.2 becomes more comfortable in the visits.

[121] The society is seeking a term that the parents not attend together at extracurricular events. Both parents have submitted that they do not wish to miss the children's activities and suggested that they would be able to attend at the same event if there were appropriate terms attached that they not have contact with each other. This is only a temporary motion and I agree with the society that there will be more harm to the children if the parents are not civil to each other at such events. At this stage I do not believe that parents can conduct themselves in a manner that will ensure there is no conflict between them. I find that the children are best protected if both parents are not present at the same event. However, there should be some flexibility. Accordingly, if the society deems that the parents' conduct towards each other has improved so that they can attend together or that the event is of such importance that it is in the best interests of the children that both of their parents should be present, the society will be permitted to provide such permission.

Order

[122] There will be a temporary order as follows:

1. The children, L.S.2, born […], 2011, and L.S.1, born […], 2007, shall be placed in the care and custody of the mother, J.S. subject to the following terms and conditions.

2. The child M.S., born on […], 1998, shall be placed in the care and custody of the father, D.S. subject to the following terms and conditions.

3. Each parent shall cooperate with the society to have access to the children and the home as may be considered necessary by the society worker to monitor and assess the family situation, including scheduled and unscheduled visits.

4. The society worker shall have the right to interview the children alone on an announced or unannounced basis at any location, including the home, the children's school and the society's offices, if this is considered appropriate by the society worker.

5. Each parent shall maintain regular communication with the society worker, and shall attend any scheduled and unscheduled appointments with the worker, with the frequency and duration of such meetings to be determined by the worker.

6. The parents shall refrain from making inaccurate reports about one another to the society.

7. The mother shall ensure that L.S.1 and L.S.2 receive regular medical attention from the family physician and/or paediatrician as deemed necessary by the physician or society worker, and shall follow through with any recommendations made by any medical professionals who may become involved with L.S.1 and L.S.2.

8. The father shall ensure that M.S. receives regular medical attention from the family physician and/or paediatrician as deemed necessary by the physician or society worker, and shall follow through with any recommendations made by any medical professionals who may become involved with M.S.

9. The mother shall ensure that L.S.1 attends regular play therapy sessions in order to cope with the trauma and to assist in building healthy parental and sibling relationships.

10. The mother shall ensure that L.S.2 attends regular play therapy, art therapy or counselling as chosen by the mother, in order to assist in building healthy parental and sibling relationships with both parents.

11. The father shall ensure that, at minimum on a weekly basis, M.S. will attend regular play therapy, art therapy, or counselling chosen by the father in order to assist in building healthy parental and sibling relationships.

12. The mother shall ensure L.S.1 and L.S.2 attend school on a consistent and regular basis and on time, unless either of them is ill.

13. The father shall ensure M.S. attends school on a consistent and regular basis and on time, unless he is ill.

14. The father shall attend any meeting which may be scheduled by professionals at M.S.'s school to discuss M.S.'s progress at school and shall follow through with any reasonable recommendations made by these professionals regarding M.S.'s educational needs.

15. Each parent hereby consents to the release of any medical and/or educational information respecting the children which may be requested by the society. Further, each parent consents to the exchange of information between the society and those individuals and facilities. This provision shall constitute good and sufficient authority for the release of this information pursuant to any relevant legislation.

16. Each parent shall advise the Society immediately if the police attend his/her home, if he/she is charged with a criminal offence, or convicted and sentenced, and provide particulars of the charge, conviction or sentence.

17. Each parent and the children shall follow the direction of the society worker and attend any reasonable services recommended by the society worker, including counselling.

18. Each parent shall immediately report any child management difficulties to the society worker.

19. Each parent shall immediately notify the society and the other parent if the child is taken to the doctor or hospital for any serious issue and provide particulars.

20. The parents shall continue to receive counselling services through their respective, chosen counsellors. The parents shall follow up monthly with seeing their therapists to ensure their own emotional needs are being met.

21. Each parent will participate in a parenting program recommended by the Halton Children's Aid Society for him/her/them.

22. Each parent will not use any physical disciplinary measures when coping with the children's behaviours, nor allow anyone else to do so.

23. Each parent shall not expose the children to domestic violence, including but not limited to punching, kicking, pushing, choking, aggressive arguing and foul language.

24. Each parent shall notify the society and each other immediately of any change in address or telephone number including exact address and telephone number. Further, each parent shall inform the society of all people who are residing in his/her residence.

25. The parents shall abide by any terms, including bail terms, which may be imposed by the criminal court.

26. The parent shall not attend at each other's homes unannounced.

27. The parties may communicate by email regarding access arrangements, scheduling issues and significant issues regarding any of the children. The parties shall attempt to use Our Family Wizard to communicate regarding the children if they are able to afford the service and are able to use it.

28. In the event of a medical emergency and/or a healthcare professional requesting that the parents both attend at the professional's offices, the parents will be permitted to attend at the hospital and/or the healthcare professional's offices together.

29. The parents shall not engage in conversation in the presence of the children, except to exchange usual pleasantries.

30. The parents shall absolutely refrain from using the children as a means to communicate with one another including but not limited to discussing access plans and travel plans.

31. The parents shall absolutely refrain from using the children as a means to communicate with the society, including but not limited to discussing access plans, travel plans and any concerns that a parent may have regarding the society.

32. Regular access between M.S. and the mother shall be at the discretion of the society, and in consultation with the parents, M.S., and, if possible/applicable M.S.'s counsellor(s), and at a minimum shall be as follows:

a. Weekly access to occur in a public place on Sunday from 10:00 a.m. to 7:30 p.m.

b. Weekly access to occur in a public place on Thursday after school to 7:30 p.m. In the event that the child is not in school on the Thursday, access will commence at 11:30 a.m.

33. Except as permitted herein, M.S. shall not be permitted to attend at the mother's residence unless the prior approval of the society is obtained.

34. Except as permitted herein, M.S. shall not be permitted to have overnight access with the mother unless the prior approval of the society is obtained.

35. M.S. shall not be permitted to be left unsupervised with his siblings.

36. The Mother's holiday access with the children, which overrides the parents' regular access schedule, and which may occur at the mother's residence is as follows:

a. The mother shall have the children in her care from Christmas Eve at noon until Christmas Day at 3:30 p.m. at which time the children will be with the father until Boxing Day at 8:30 p.m.

b. In even numbered years, the mother shall have the children in her care during the March Break from after school on the Friday to Wednesday at 7:30 p.m.

c. In odd numbered years, the mother shall have the children in her care during March Break from Wednesday at 7:30 p.m. to the following Sunday, the mother shall return M.S. to the father by 5:00 p.m., and L.S.1 and L.S.2 shall remain in her care.

d. The mother shall have the children in her care on Mother's Day (Sunday) from 11:30 a.m. to 7:30 p.m., at which time she will return M.S. to the father.

e. The mother shall have the children in her care from 11:30 a.m. on the Friday immediately before Canada Day to the Friday immediately after Canada Day at 4:30 p.m., at which time she will return M.S. to the care of the father.

f. The mother shall have the children in her care on the second Friday in August from 11:30 a.m. to the Friday of the following week 4:30 p.m., at which time she will return M.S. to the care of the father.

37. M.S. is permitted to speak to his father by telephone during access visits that is free from interference of the mother.

38. L.S.2 and L.S.1 are permitted to speak to their father by telephone free from the interference of the mother. For clarity, the frequency and duration of such telephone communication will take into account the wishes of the children, particularly L.S.2.

39. Access between L.S.2 and the father shall be at the discretion of the society, and at a minimum shall be as follows:

a. Weekly supervised access at the society's main office located at 1445 Norjohn Court, Units 1 & 2, Burlington, on Tuesday (or another mutually agreeable day) from 4:00 p.m. to 4:30 p.m., subject to the society worker's schedule, and to be increased or decreased in accordance with L.S.2's wishes, reaction to these visits and if possible, in consultation with L.S.2's counsellors. The mother shall be responsible for making arrangements for L.S.2 to be transported to and from access visits at the Society's office. The mother shall follow all directions from the society worker as to where the mother shall be during the access visit, including waiting in her car or at a nearby location.

40. The regular access schedule between the father and L.S.1 shall be as follows:

a. Every weekend from after school on Friday to Saturday at 4:00 p.m. In the event that the child is not in school on the Friday, access will still commence at 4:00 p.m.

b. Each Wednesday from after school until 7:00 p.m. In the event that the child is not in school on the Wednesday, access will commence at 11:30 a.m.

41. The father's holiday access with M.S. and L.S.1, which overrides the parents' regular access schedule, is as follows:

a. The father will have the children from Christmas Day at 3:30 p.m. until Boxing Day at 8:30 p.m. (the mother having the children from Christmas Eve at noon to Christmas Day at 3:30 p.m.)

b. In odd numbered years, the father shall have M.S. and L.S.1 in his care during the March Break from after school on Friday to Wednesday at 7:30 p.m.

c. In even numbered years, the father shall have M.S. and L.S.1 in his care during the March Break from Wednesday at 7:30 p.m. On the following Sunday, the mother shall return M.S. to the father by 5:00 p.m., and L.S.1 and L.S.2 shall remain in her care.

d. The father shall have M.S. and L.S.1 in his care on Father's Day (Sunday) from 11:30 a.m. to 7:30 p.m., at which time he will return L.S.1 to the mother.

e. The father shall have M.S. and L.S.1 in his care commencing on the second Friday in July from 11:30 a.m., to the Friday of the following week at 4:30 p.m., at which time he will return L.S.1 to the care of the mother.

f. The father shall have M.S. and L.S.1 in his care commencing on the Monday immediately preceding the Labour Day weekend to the following Monday at 12:00 p.m., at which time he will return L.S.1 to the care of the mother.

42. Unless the father's access commences after school, in which the father will pick-up L.S.1 at L.S.1's school, pick-up and drop-off for the access between the parties for L.S.1 to be at the Society's main office located at 1114 Norjohn Court, Units 1 & 2, Burlington, when the offices are open. If the Society's main offices are not open (for example, after 4:20 p.m. on the weekend, on Christmas Day and on New Year's Day) pick-up and drop-off will be at the Tim Horton's at the corner of Walker's Line and Mainway in Burlington.

43. L.S.1 shall not be with M.S. unless the children are supervised by the father or by another adult person approved in advance by the Society.

44. L.S.1 and M.S. shall not be permitted to sleep in the same bedroom unless the father obtains the society's approval of such sleeping arrangements in advance.

45. L.S.1 is permitted to speak to his mother by telephone during access visits that is free from interference of the father.

46. M.S. is permitted to speak to his mother by telephone free from interference of the father.

47. Neither parent is permitted to travel during the time that the children or any one of them is to be in the care of the other parent unless a make-up visit is arranged for the next available weekend after the missed visit.

48. Neither parent is permitted to discuss any travel plans with the children, unless such travel plans are approved by the society in advance, in consultation with the other parent, as set out below.

49. Neither parent is permitted to travel with the children outside of Canada for over four days without the express approval of the society and the other parent. Such approval shall not be provided in the event that the requesting parent fails to provide the particulars of the travel arrangements, including all flights and hotel/boarding information, at least two weeks prior to the proposed travel to the society and to the other parent. In the event that such approval is obtained, the other parent shall sign any travel documents which may be necessary and, if applicable, shall provide the other parent with the children's passports. In the event that the approval is not obtained, the requesting parent shall incur any financial losses resulting from him/her paying for travel arrangements that he/she made. Furthermore, in the event that the requesting parent has not complied with the terms set out herein at paragraphs 30, 31, and/or 48, the parent who requested the approval of the travel arrangements shall also explain to the children that the travel plans were not approved and the requesting parent will support the non-approval in his/her discussions with the children.

50. Neither party is permitted to videotape, audiotape or otherwise record the access pick-ups and drop-offs or any other interactions with the children except for taping of the children's participation at a school event or in an extracurricular activity.

51. The parties will only attend any extra-curricular activities, including camp, school or social activities for any of the children on their own parenting time (that is, only when the children are in their respective care) unless with the prior approval of the society.

52. Neither parent shall enrol the children in any activities that occur during the other parent's access time without the prior consent of the other parent. When a request to enrol a child in an activity that will occur during the other parent's access time, the other parent shall respond to such request within 48 hours. If no response is received within 48 hours, the requesting parent shall contact the society worker.

53. Each parent shall encourage the children to have a positive and active relationship with the other parent.

54. Each parent shall speak positively about the other parent and the other parent's family in the presence of the children.

55. The mother shall absolutely refrain from speaking ill of and/or making derogatory remarks regarding the father and/or the father's family to the children or to any one of the children. Furthermore, the mother shall absolutely refrain from speaking ill of and/or making derogatory remarks regarding the father and/or the father's family to any person when the children or any one of the children will hear the mother.

56. The father shall absolutely refrain from speaking ill and/or making derogatory remarks regarding the mother and/or the mother's family to the children or to any one of the children. Furthermore, the father shall absolutely refrain from speaking ill and/or making derogatory remarks regarding the mother and/or the mother's family to any person when the children or any one of the children will hear the mother.

57. The mother shall absolutely refrain from speaking to the children, or to any one of the children, regarding her relationship with the father and/or the father's family, including but not limited to any legal proceedings involving the parents or either one of them. The mother shall absolutely refrain from discussing her relationship with the father and/or the father's family to any person when the children or any one of the children will hear the mother.

58. The father shall absolutely refrain from speaking to the children, or to any one of the children, regarding his relationship with the mother and/or the mother's family, including but not limited to any legal proceedings involving the parents or either one of them. The father shall absolutely refrain from discussing his relationship with the mother and/or the mother's family to any person when the children or any one of the children will hear the mother.

59. The mother shall absolutely refrain from discussing with the children, or any one of the children the father's personal relationship and/or the father's partner.

60. The father shall absolutely refrain from discussing with the children, or any one of the children the mother's personal relationship and/or the mother's partner.

61. Each parent shall not allow any person to speak ill of and/or make derogatory remarks regarding the other parent in the presence of the children or any one of the children. Furthermore, each parent shall not allow any person to discuss legal proceedings involving the parents, either one of the parents, or the family in the presence of the children or any one of the children. In the event that the person does not comply, the mother or the father, as the case may be, shall immediately separate the children and the person.

62. Each parent shall absolutely refrain from discussing the society's involvement with the family to the children or to any one of the children or any non-party. Furthermore, each parent shall absolutely refrain from discussing the society's involvement with the family when the children or any one of the children will hear the parent.

63. Each parent shall not allow any person to discuss the society's involvement with the family in the presence of the children or any one of the children. In the event that the person does not comply, the mother or the father, as the case may be, shall immediately separate the children and the person.

64. Each parent shall support the decisions made by the other parent when communicating with the children or any one of the children. Furthermore, any concerns regarding decisions made by the other parent are to be directly discussed with the society worker.

65. Each parent shall support the decisions made by the society when communicating with the children or any of one of the children. Furthermore, any concerns regarding decisions made by the society are to be directly discussed with the Society worker and not with the children.

Released: November 1, 2013

Signed: "Justice Roselyn Zisman"

Footnotes

[1] Fortowsky v. Roman Catholic Children's Aid Society, [1960] O.J. No. 600 (C.A.)

[2] As the parties separated in October 2011 it is not clear if there was a prior separation or this incident took place on another date.

[3] Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.)

[4] L.D. v. Durham Children's Aid Society and R.L. and M.L., [2005] O.J. No. 5050 (Ont. Div. Ct.)