WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(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:

[1] . . .

[2] (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 File and Parties

Court File No.: C70582/14

Date: 2014-05-01

ONTARIO COURT OF JUSTICE

BETWEEN:

JEWISH FAMILY AND CHILD SERVICES OF GREATER TORONTO

LORNE GLASS, for the APPLICANT

APPLICANT

- and -

A.K. and I.K.

RESPONDENTS

ELI KARP, for the RESPONDENT, A.K. JARET N. MOLDAVER and LINDSAY KONKOL, for the RESPONDENT, I.K.

HEATHER HANSEN, ON BEHALF OF THE OFFICE OF THE CHILDREN'S LAWYER, for the CHILDREN, L.B.K. and S.K.

HEARD: APRIL 18 AND 28-29, 2014

JUSTICE S.B. SHERR

ENDORSEMENT

Part One – Introduction

[1] The Jewish Family and Child Service of Greater Toronto (the society) seeks an order that the subject children of this protection application, L.B.K., age 12, and S.K., age 9, (the children) be placed in the temporary care and custody of the society, with access to their parents, A.K. (the father) and I.K. (the mother) to be in the discretion of the society. The society also seeks a payment order from the parents pursuant to subsection 60(1) of the Child and Family Services Act (the Act).

[2] The father opposes the society's motion and seeks an order that the children be placed in his temporary care and custody, subject to society supervision. He proposes that the mother have access to the children as agreed upon by the parties. In the alternative, if the children are placed in society care, he seeks extended unsupervised access. He did not oppose contributing to a payment order if the children are placed in society care.

[3] The mother supports the society's motion.

[4] The Office of the Children's Lawyer recently appointed counsel for the children. Counsel has not yet been able to meet with them. Given the complexity of this case, she will be seeking a social work assist. It is not disputed that the expressed views of the children are that they wish to live with the father. There is disagreement as to the independence of those wishes. Practically, it will take the Office of the Children's Lawyer a significant period of time to assess the independence of the children's views and preferences. A decision needs to be made right away to protect the children. The parties all asked the court to hear this motion and make a temporary decision.

[5] This matter first came before the court on April 18, 2014. It was adjourned, without terms, to permit the mother to file responding material. An order was made on that date pursuant to section 38 of the Act, appointing counsel for the children. The motion was adjourned again on April 28, 2014 to permit the father to file an additional affidavit. The hearing of the motion was completed on April 29, 2014.

[6] The court reviewed the multiple affidavits filed by the parties, including two affidavits from the society's Family Service Worker (the Family Service Worker), an affidavit and financial statement from the mother, an affidavit from the President of a social agency (L.H.) who had met with the father and three affidavits from the father. The parents also filed affidavits that they had filed in support of their positions in their ongoing case in the Ontario Superior Court of Justice.

[7] The society's material relied heavily on hearsay statements from the children's psychologist, school principal, doctor and Child and Youth Workers working with the family, as well as a social worker retained to conduct an assessment in the parents' case in the Ontario Superior Court of Justice. I found this evidence to be credible and trustworthy. The evidence from these witnesses was generally consistent with respect to material facts, which mitigated the inherent risks of hearsay evidence. The evidence was provided from persons with a professional responsibility to provide accurate information, to another professional (the Family Service Worker) who is required to accurately record it. Much of the evidence was supported by notes from society workers dealing with the family.

Part Two – Background Facts

[8] The parents have four children. Two of the children, ages 15 and 16 (the older children), are not the subject of this application.

[9] The parties were married on January 30, 1996. They separated within their home in May of 2013 and physically separated in December of 2013.

[10] The mother subsequently commenced a court application for custody and support in the Ontario Superior Court of Justice. On January 30, 2014, Justice Emile R. Kruzick made a temporary without prejudice order that the children reside with the mother. The father was granted alternate weekend access plus Wednesday overnights. No custody order was made. On February 11, 2014, Justice J. Patrick Moore continued the temporary parenting order and ordered an assessment to be conducted pursuant to section 30 of the Children's Law Reform Act.

[11] The parties subsequently retained a social worker, Marcie Goldhar, to conduct the assessment. This assessment was underway when this protection application began. It is now on hold.

[12] The older children are now living with the father.

[13] The society issued this protection application on April 7, 2014.

Part Three - Legal Considerations on a Temporary Care and Custody Motion

[14] The legal test for the court to apply on this motion is set out in subsections 51(2), (3), (3.1) and (3.2) of the Act which read as follows:

Custody During Adjournment

51(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.

Terms and Conditions in Order

(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's 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.

[15] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test (the two-part test) that the society has to meet.

[16] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act). See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[17] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.

[18] Subsection 51(7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Family and Children's Service v. R.O., 2006 O.J. No. 969 (Ont.C.J.).

[19] The father submitted that to establish risk of emotional harm to the children, expert evidence must be tendered, relying on Children's Aid Society of Owen Sound and Grey (County) v. T. (J.), 2003 CarswellOnt 6268 (Ont. C.J.) and Family and Children's Services County of Renfrew and City of Pembroke v. P. (S.), 2005 CarswellOnt 1863 (Ont. C.J.). These cases are distinguishable from the case before the court. They relate to the finding phase of a protection application. At a temporary care hearing, the threshold is lower. The society only needs to show it has reasonable grounds to believe that there is an emotional risk of harm to the children. The court, at this stage can rely on evidence it finds credible and trustworthy to determine if this threshold has been met. Secondly, these cases stand for the proposition that expert evidence will usually have to be produced to establish this protection ground. It is not a mandatory requirement and there are many cases where the emotional harm or risk of emotional harm to children will be evident to the court, without the need for expert evidence.

[20] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children. See: Children's Aid Society of Toronto v. M.S., 2010 O.J. No. 2876 (SCJ).

[21] The Act gives priority to the person who had charge of the children prior to society intervention under Part III of the Act (subsection 51(2) of the Act). There can be more than one person in charge of the children. See: Children's Aid Society of Toronto v. A.(S.) and R. (M.), 2008 ONCJ 348. Here, the parties agreed that both parents had charge of the children at the relevant time as they were both actively caring for them and there was no custody order in place. Accordingly, in the circumstances of this case, I will apply the two-part test separately to both parents.

[22] The first part of the two-part test under subsection 51(3) of the Act only has to be met against one of two parents who had charge of the child. Either will do. It is a low threshold. See: Children's Aid Society of Algoma v. S.M.M., 2014 ONCJ 12.

Part Four - The First Part of the Two-Part Test

[23] The society easily met their onus of establishing that they had reasonable grounds to believe that if the children are returned to either of the parents, it is more likely than not that they will suffer harm. The evidence was clear that the children have already suffered significant emotional harm in the care of their parents.

[24] The many professionals dealing with this family have described it as a high-conflict situation. The children's doctor advised the society worker in 2013 that the parents would argue in front of the children. He felt that he could no longer have them in his office at the same time. The society has been intensively involved with the family since July of 2013 and the Family Service Worker described the family dynamic as high-conflict. The children saw a psychologist, Dr. Raymond Morris, who described the high-conflict nature of the family to the Family Service Worker. L.B.K. informed the Family Service worker that her parents "go at it like crazy". The police have been involved with the family.

[25] The parents blame each other for the conflict. The mother deposed that the father was abusive and controlling and would belittle and demean her in front of the children. She deposed that he stripped her of her parenting authority and actively encouraged the children to treat her badly, both before and after the separation.

[26] The father claims that the children's behaviours with the mother are her own fault – he has no responsibility for them. He deposed that the children behave well with him. He said that the mother will scream at the children, verbally abuse them and call them names. He said that she embarrasses the children by discussing their private affairs with members of the community. He said that the mother's agenda is to take the children away with her to New York (Dr. Morris told the Family Service Worker that he felt this was a secret agenda of the mother).

[27] The children's behaviour toward the mother is alarming. This behaviour has been observed by the many professionals dealing with the family. The children spit, kick, hit and attack the mother. The mother describes how they sometimes smile when they do this. They verbally abuse her calling her, "ugly", "a clown", "a pig", "a freak", "an embarrassment to the world". They refuse at times to eat her meals. They locked her out of her home. L.B.K. barged into her shower and took a picture of her. She also blew her nose in a tissue and then tossed the dirty tissue in the mother's food. She punched the mother in the back and hit her with a wire. She once tried to push the mother down the stairs. The children would create messes and tell the mother to clean them up. On one occasion, the eldest child (age 16) threw food on the floor and ordered the mother to "lick it up like the dog you are". They scream and yell at her, often in the presence of professionals. They have defecated on her floor.[1]

[28] The children have made allegations of neglect and physical abuse by the mother, which the society has subsequently investigated and found to be unsubstantiated.

[29] The mother deposed that, when she lived with the father, she would often ask for assistance from him to deal with the children's behaviours. She said that he would typically respond, "it is what it is" and not offer any help. In fact, she said that he often encouraged the children to act in this manner towards her.

[30] The children's behaviour has deteriorated since the mother started her Superior Court application. The assessor, Marcie Goldhar, has advised the society that she is frightened to leave the children in the mother's home. She is afraid for their safety and the mother's safety.[2] She described to the Family Service Worker that she had seen the children call the mother a dog, hit her, throw food on the ground and demand that the mother pick it up. The children appear to show no inhibition in acting this way in front of strangers.

[31] The society has funded Child and Youth Workers to assist the mother with the children in her home, to no avail. These workers have also expressed safety concerns and describe the children as out of control. On April 18, 2014, S.K. threatened one of the workers, who considered calling the police.

[32] The evidence from the Family Service Worker, Dr. Morris and Marcie Goldhar is that there is nothing in the mother's parenting that justifies such a reaction by the children. They have observed that she appropriately cares for them. The children's behaviour is severe, disproportionate and frightening to these professionals.

[33] S.K. has undergone a significant change in her behaviour towards the mother. In the fall of 2013, she was the mother's lone defender. When the other children treated the mother poorly, she would tell the Family Service Worker and Dr. Morris that they were being unfair and mean to her. She revealed that she was under pressure from her siblings to treat her mother poorly. She reported to Dr. Morris that her siblings would hit her for sticking up for her mother. Sadly, she too, is now treating the mother in an atrocious matter.

[34] L.B.K. has a significant weight issue which places her at physical risk of harm. She now weighs over 200 lbs. She has been putting on more weight since her parents separated. Her doctor describes her condition as critical and said that she is pre-diabetic. The parents have not dealt appropriately with this health concern. It was recommended that L.B.K. attend an intensive weight program at the Hospital for Sick Children, but the father has maintained that such an intensive program is not required. He blames the mother for the child's weight gain.

[35] By March of 2014, the mother was having difficulty getting the children to school. They were often refusing to attend. Dr. Morris advised the society that he had been in touch with the children's school and was advised that the children need help and that the school had considered calling the police due to trauma.

[36] The professionals involved with the family describe the children as being under significant stress due to the family situation.

[37] The mother has acknowledged that she can no longer effectively parent the children and seeks the society's intervention. She acknowledges that the children have suffered emotional harm and are at significant risk of suffering further emotional harm.

[38] The court was presented with two narratives as to why the children are behaving in this matter. The mother and the society state that the father is actively recruiting the children to live with him and undermining the mother's relationship with them. They allege that he has modelled and fostered the children's behaviour. The father denies acting in this manner. He said that it is the mother's fault that she has a poor relationship with the children. He argues it is a product of how she treats them.

[39] Whichever narrative I accept (and I will deal with which narrative I find is more likely in the next part of this decision), the first part of the two-part test is met with respect to both parents. The children are in a state of emotional crisis and acting out in a highly disturbing manner. This emotional distress is reflected in L.B.K.'s weight gain, which the parents appear to be unable or unwilling to adequately address, the children's worsening school performance and the dysfunctional behaviour of both children at home and with service providers. The mother has lost the ability to parent the children. At best, the father, despite actively caring for the children, has been unable or unwilling to change their behaviours and emotionally support them in a responsible manner. This is sufficient to meet the first part of the two-part test with respect to him. At worst, he is directly responsible for much of the children's emotional distress.

Part Five – The Second Part of the Two-Part Test

[40] The next issue is whether the children can be adequately cared for by either parent with terms of supervision.

[41] The mother wisely acknowledged that the situation in her home has escalated to the point where the children cannot be safely placed there.

[42] In assessing this part of the test with respect to the father, the court considered that:

a) The children have expressed a clear wish to live with the father.

b) It is likely that the children will be very distressed in the short-term by being placed in foster care and having their contact with the father limited. This could very well cause them emotional harm. The father filed a letter from the children's doctor expressing a view that L.B.K. would not function well in foster care.

c) There is the possibility that the placement of the children in foster care will be unsuccessful. They may be unable to make therapeutic gains if they believe that their placement in care is a punishment and part of an unjustifiable campaign to keep them from their father. There is a risk that the father and older siblings will reinforce this belief.

d) An order placing the children with the father would mean that the siblings would live together.

e) The father loves the children and they love him.

f) The evidence from the professionals dealing with the family was provided through the Family Service Worker and not directly, which to some extent, affects its weight.

g) The evidence has not been tested in cross-examination. The court is very aware that this can often provide greater clarity of what is actually happening with a family.

h) The court does not have the benefit of information, evidence and the perspective that the Office of the Children's Lawyer can provide.

[43] Taking into consideration the factors set out in paragraph 42 above, the evidence provided on this motion still informs the court that the children cannot be adequately protected by terms of supervision in the father's home. It shows that the father has likely been hugely responsible for the children's emotional turmoil, has actively undermined their relationship with the mother and lacks insight into how his behaviour is adversely affecting them.

[44] The father also appears to lack insight into how serious the children's behaviour is. It is highly concerning that he appears indifferent to it. He has told society workers, "they do not have behavioural issues, they are reacting like anyone would if they were being forced to be somewhere they don't want to be at". He feels that the Child and Youth Workers in the mother's home are provoking the children. He appears unable to see that the children's behaviour is highly disproportionate to any frustration they would have with the mother and that it is indicative of serious emotional issues. Dr. Morris and Marcie Goldhar have both told the society worker that the father minimizes the children's behaviour and takes no responsibility for it. This is consistent with his affidavit evidence.

[45] There is significant evidence indicating that the father is controlling the children's behaviour, and that he is well aware of this. At a meeting at the society office on March 25, 2014, he announced to everyone present that if he was given 50/50 parenting time, he could stop the children's poor behaviour with the mother. He told L.H. that the children were not eating the mother's food because they do not like her. He said that the children feel their food is contaminated. He told her that he had convinced the children to eat the mother's food twice each week. He told her that the mother was not thankful for his assistance. He said, "if she were thankful, I could get them to do it like this" and he snapped his fingers. This raises the question of why he does not stop this behaviour if he believes he has the power to do it. The logical inference is that he chooses not to stop it. Combined with other evidence, it also supports an inference that he is actively supporting this behaviour.

[46] The mother's evidence that the children are constantly phoning the father and reporting what is going on in her home was corroborated by the Child and Youth Workers in the home. The father is asking the children to write things down that are happening in the mother's home and report back to him.

[47] The mother deposed that after the separation, the father would cancel the children's appointments with Dr. Morris that were supposed to take place on her time and rescheduled them to take place on his own time. The logical inference is that he wanted to control what the children said to Dr. Morris.

[48] This inference was supported by the evidence from Dr. Morris. He advised the Family Service Worker that:

a) The father actively tried to get the children to tell him what was wrong with the mother.

b) The father is only interested in people who agree with him.

c) The father is not facilitating the mother's relationship with the children.

d) The father told him that if the mother had accepted a 50/50 time-sharing arrangement, the children's behaviours would not have occurred.

e) He felt that S.K. was the most balanced child in the family, but now she too has turned against the mother.

f) S.K. and L.B.K. tell him that they cannot change their behaviour toward the mother.

g) The children are over-empowered and totally out-of-control.

h) The mother's parenting authority has been completely stripped from her.

i) Broader society intervention would be helpful if the situation did not improve.

j) In the absence of any other explanation, the alienation framework is applicable.

[49] The children often parrot what the father says to the society, leading to an inference that he is coaching them. For example, S.K. has often said to society workers, "you only believe her" (a comment the father often makes to them). The eldest child (age 16) told Dr. Morris that Marcie Goldhar had poor training and was not capable. Child and Youth Workers in the home are quizzed by S.K. about who sent them. She will then call her father to report who is present in the mother's home.

[50] The father has demonstrated controlling behaviour by taping both the mother and the children. He told a society worker that he kept recordings of the children calling him, screaming for help and acknowledged that the children were aware that they were being recorded. He was cautioned by the worker against doing this. It appears that he was using the children to gather evidence against the mother.

[51] The evidence shows that the father has a forceful personality and will become aggressive when he doesn't get his own way. On March 25, 2014, he had to be removed from a meeting at the society office when he lost his temper. When upset with society workers, he calls the Director of the society to complain. He is described as often being hostile to society workers.

[52] This independent evidence lends support to the mother's narrative that the father was controlling and emotionally abusive to her during their marriage. At this point in the case, the evidence of the mother is preferable to the father's. The mother provided evidence that the father would frequently demean her in front of the children, calling her names and telling the children that she was worthless.[3] She described how he would tell the children that they didn't have to listen to her. She describes one humiliating incident where the father disciplined both her and the children by sending them to their respective rooms. She said that the father completely controlled finances and the family passports. She described how he would audio and video-tape her. In the fall of 2013, she found a recording device under her bed.

[53] The mother deposed that this controlling behaviour has continued since the separation. She said that the father did not comply with the Superior Court orders regarding parenting time. He would attend at the home when he wasn't supposed to, over-held the children contrary to the order, and would instruct the children to take items to him from her home. She said that he would tell the children to ask her if they could spend more time with him and if she said no, they would get hysterical and act out. She said that the father continues to exercise financial control over her. Despite a significant discrepancy in their incomes, he has paid her little support since the separation. She has had to borrow money to pay for basic necessities.

[54] The mother deposed that the children's behaviour becomes worse after visits with the father. The Child and Youth Workers have confirmed this and have noted that the children's behaviour also becomes worse after phone calls with the father.

[55] The evidence presented leads to a preliminary finding that the children have learned much of their abusive behaviour from the father. Sadly, the older children have adopted their father's attitudes and are estranged from the mother. The evidence indicates that they actively recruit the two younger children to their point of view and reinforce their bad behaviour.

[56] The evidence also leads to a preliminary finding that the father's behaviour towards the mother has been emotionally abusive and is a form of domestic violence. The evidence indicates that he has likely involved the children in this abusive behaviour and has condoned, if not encouraged it. The more the children are with the father at this time, the more likely it is that they will internalize this behaviour as acceptable. They are already well along this path.[4]

[57] The father appears to be unable to give the children's needs priority over his own needs. He told the Family Service Worker that the "children cannot survive without him – he is their oxygen". He described how he cries with them at night. He has told society workers that he is the only one who cares about the children. This evidence indicates that he is escalating the children's behaviours. He is communicating to them that they are unsafe and only he is to be trusted. This is highly disruptive to the children's sense of safety and security.

[58] The evidence is clear that the father has not changed his behaviour since the society became involved with the family in July of 2013. He has gained no insight into the risk concerns and accepts no responsibility for the dysfunction of the children. He is oblivious to the emotional harm that the children have suffered. He has not addressed L.B.K.'s weight issues. He has not consistently supported their counseling. He has undermined the children's relationship with the mother and destabilized their emotional welfare. His lack of insight makes him a poor candidate to change in the future and take the necessary steps to adequately protect the children from emotional harm.

[59] Supervision orders should not be made if the parent is ungovernable. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196, [2004] O.J. No. 3889 (OCJ). The evidence indicates that the father does what he wants, irrespective of directions and orders. He appears to feel that he is right and everyone else is wrong. The court has no confidence, at this time, that he would comply in good faith with a supervision order.

[60] The evidence indicates that if the court placed the children with the father, the children's relationship with the mother would likely be permanently impaired and that both their short-term and long-term emotional welfare would be seriously compromised.

[61] The court is not faced with attractive alternatives. It does not want to place the children in care. The children may suffer emotional harm by doing so. They will certainly be unhappy about this decision. There is a very real issue as to whether therapeutic intervention will be successful, given the family dynamics. However, for the reasons set out above, the evidence informs the court that the children will likely be at greater risk of emotional harm if placed at this time with the father.

[62] The court finds that the society has met the second part of the two-part test against both parents. Unfortunately, the least intrusive alternative, consistent with the safety and protection of the children, is to place them in the temporary care of the society.

Part Six – Access

[63] Subsection 51(5) of the Act provides that where an order is made under clause 51(2)(b) or (c), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of the children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1(1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 37(3) of the Act. I have done this.

[64] The society's plan is to remove the children from this intense conflict by placing them in a neutral setting. Once the children are settled in their foster home, the society plans to take a therapeutic approach to repair the damage to the children and attempt to restore a healthy relationship with their parents. This might take time and could result in the parents and family members having limited access to the children for now.[5] The children and both parents clearly require intensive therapy. This is a reasonable plan.

[65] I find that due to the profound protection concerns set out above, that access should be in the discretion of the society, including the level of supervision, or whether access should take place at all.[6] This discretion shall include control over contact with family members by telephone, text messaging or through social media. The children need to be removed from the toxic influences that have been causing them such turmoil. They need to have a stable and safe environment.

Part Seven – Payment Order

[66] The society seeks a payment order from the parents pursuant to subsection 60(1) of the Act. Subsection 60(2) of the Act sets out that in determining this issue, the court should consider those of the following circumstances of the case that the court considers relevant:

Criteria

60(2) In making an order under subsection (1), the court shall consider those of the following circumstances of the case that the court considers relevant:

1. The assets and means of the child and of the parent or the parent's estate.

2. The child's capacity to provide for his or her own support.

3. The capacity of the parent or the parent's estate to provide support.

4. The child's and the parent's age and physical and mental health.

5. The child's mental, emotional and physical needs.

6. Any legal obligation of the parent or the parent's estate to provide support for another person.

7. The child's aptitude for and reasonable prospects of obtaining an education.

8. Any legal right of the child to support from another source, other than out of public money.

[67] The power to order payment is discretionary and not governed by the Child Support Guidelines (the guidelines). The Act provides the code for dealing with payment orders. See: Children's Aid Society of the District of Muskoka v. B.W., [1994] O.J. No 2954 (Ont. Prov. Ct.).

[68] In Children's Aid Society of the County of Dufferin v. G.B., 2004 ONCJ 163, the court wrote at paragraph 21:

Section 60 of the Act does not require the payment by the parent to be in accordance with the table amount under Child Support Guidelines, O. Reg. 391/97, as amended. However, if this child support guideline were to be applied, the monthly child support payment would be $674.00.

The court imputed income to the payor, applied the guidelines and reduced support by one-third, based on a contribution it felt the other parent should be responsible for.

[69] The society seeks an order that the parents pay total support of $1,000 per month, divided in proportion to their incomes.

[70] The parties were directed to file financial statements for this motion. The mother complied with this direction. The father did not.

[71] The court accepts that the mother's income is about $16,500 per annum. The mother has nominal assets and owes third persons $4,280. She has had to borrow these monies to meet basic necessities for both her and the children.

[72] The father represented to the court that he earns $75,000 per annum. On a temporary basis, this figure will be accepted, subject to adjustment once proper financial disclosure has been received. This court has no evidence of the father's means and circumstances.

[73] The children are too young to contribute to their own support.

[74] The parties have no other sources of support.

[75] The children have significant emotional needs. The society has incurred substantial expense servicing this family, including placing Child and Youth Workers in the home. The children will require intensive therapy and possibly a specialized placement to meet their needs. This will be expensive.

[76] It is appropriate that the parents each contribute a proportionate amount of their income to help support the children.

[77] While not bound by the guidelines, they do provide the court with some guidance on the amounts that parents pay for children, based on their incomes.

[78] This guidance is subject to the reality that the parents will incur additional legal expenses due to the protection application. This situation is different from a domestic case, which is essentially a private dispute. In child protection cases, the parents are dealing with state intervention and the court must be careful about financially discouraging parents from asserting legitimate positions. The court should recognize the importance and necessity of legal counsel to guide parents through this emotional and expensive process against a well-funded institutional litigant.

[79] The court also recognizes that a parent's ability to earn income can be compromised when they are in a child protection case. Aside from the time taken to meet with lawyers, prepare for court and attend at court, parents are expected to take part in Plan of Care meetings with the society. These meetings take place during work days. Access often has to be coordinated during work days. Meetings might need to be set up with professionals dealing with the family. These would also likely take place during work days. This means that many parents have to miss work, and possibly pass up on available overtime hours or career opportunities in order to maximize their relationship with their children and give themselves the best opportunity to have them returned to their care.

[80] If the guidelines were applied, the father would pay $1,105 per month and the mother would pay $241 per month as a payment order, for a total of $1,346 per month. The society seeks $1,000 per month. Balancing the relevant factors set out in subsection 60(2) of the Act and recognizing the special nature of a child protection case as set out above, the court finds that a payment order of $800 per month is appropriate in this case.

[81] The mother asked for a disproportionate adjustment of the payment obligation since the father has not met his support obligations to date. The appropriate forum to deal with the father's failure to pay adequate support to date is the Ontario Superior Court of Justice. That court is better suited to deal with any child support adjustments up until the time of the children coming into care, as well as any obligations related to spousal support or maintaining property.

[82] The parents shall contribute to the payment order in proportion to their incomes. For the father, this will be $656 per month and for the mother $144 per month, starting on June 1, 2014.

Part Eight – Conclusion

[83] A temporary order will go on the following terms:

a) The children shall be immediately placed in the temporary care and custody of the society.

b) The parents' access to the children (and the access of any family member to the children) shall be in the discretion of the society, including the frequency of the access, the level of supervision, or whether access should take place at all. The society's authority over access includes determining contact with the children by telephone, text messaging, or social media.

c) To be clear, the society will have sole authority to make all decisions for the children, including, but not limited to, medical, schooling and therapeutic decisions.

d) There shall be a payment order that the father pay the society the sum of $656 per month, starting on June 1, 2014 and that the mother pay the society the sum of $144 per month, starting on June 1, 2014.

e) The father shall serve and file a sworn financial statement, together with his 2013 Income Tax Return and documentary proof of his 2014 income, by June 3, 2014.

[84] The parties should give consideration as to whether an assessment pursuant to section 54 of the Act is warranted.

[85] Everyone's goal in this case should be to have the children reunify with the parents. How long this will take will probably depend on how long it takes for the parents and the children to positively engage in a therapeutic process.

[86] This decision should be a clear message to the father that all is not well with his children and it is incumbent on him to take steps to gain insight about his responsibility for this. It should also be a clear message to him that his approach of deflecting blame on others and involving the children in the dispute will likely result in a severe reduction of his time with them. It is hoped that he will engage in the therapeutic process and support the children through this difficult time. His ability to do so will likely inform the court about how much involvement he should have with the children in the future. His roadmap should be clear.

[87] The mother also has a lot of therapeutic work to do. The evidence indicates that she would benefit from work with a therapist who has an expertise with victims of abuse. In conjunction with her therapeutic work, the mother should also engage in specialized parenting instruction to learn strategies of parenting adolescent and pre-adolescent children.

[88] The case shall be adjourned for a case conference on June 19, 2014 at 10:00 a.m. If any counsel is unavailable on that date, a new date (on consent) can be coordinated with the trial coordinator.

[89] Lastly, the court appreciates the thorough presentations by counsel on this motion.

Justice S.B. Sherr

Released: May 1, 2014

Footnotes

[1] There are many other examples of the types of behaviour set out in this paragraph in the affidavits of the mother and the Family Service Worker.

[2] Dr. Morris expressed the same fear to the Family Service Worker.

[3] Numerous examples of this conduct are set out in the mother's affidavit.

[4] These are additional reasons to find that the children were emotionally harmed in the father's care and would likely suffer emotional harm if placed in his care (the first part of the two-part test).

[5] The therapists may advise the society that there be limited contact with family members during the therapeutic process. This is sometimes recommended by therapists in cases of this nature.

[6] The society requires flexibility around access to address a fluid situation and to appropriately address the children's therapeutic needs.