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 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,

(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.

(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.

(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.

ONTARIO COURT OF JUSTICE

Date: 2018-01-09

Court File No.: Toronto C91950/16C-A5

BETWEEN:

Children's Aid Society of Toronto

Applicant,

— AND —

M.S.

Respondent (father)

Before: Justice Robert J. Spence

Heard on: November 7 and December 21, 2017

Reasons for Judgment released on: January 9, 2018

Counsel

Ms. Justine Sherman — counsel for the applicant society

Ms. Nadia Campion and Mr. Jeffrey Haylock — counsel for the moving parties on the motion F.S. and I.S., paternal grandparents

Ms. Jean DeMarco — counsel for A.F. and J.F., maternal grandparents participating in the motion, although not parties to the main application

Ms. Mary Kodric and Ms. Catherine Bellinger — counsel for the Office of the Children's Lawyer, legal representative for the children Y. and F.

No appearance by or on behalf of the Respondent, father

Robert J. Spence J.:

Introduction

[1] This is an amended notice of motion brought by the paternal grandparents of the three children who are the subjects of an amended Child Protection Application ("Application") brought by the Children's Aid Society of Toronto ("society") pursuant to the Child and Family Services Act ("Act"). The three children are Y., age 13 years, F., age 10 years and M., age 4 years (collectively, "children" or "grandchildren").

[2] In the paternal grandparents' amended notice of motion ("motion") dated October 18, 2017, they seek the following relief:

(1) An order that the paternal grandparents be added as parties to the proceeding;

(2) An interim order granting the paternal grandparents access to the grandchildren, on the following terms:

(a) Access visits are to be biweekly;

(b) Access visits are to be supervised by a representative of the society or a party or organization, including a private access supervision service that the society considers appropriate;

(c) Access visits to be conducted at such locations and for such lengths of time as the court considers appropriate;

(d) The paternal uncle be permitted to accompany the paternal grandparents during access visits or to call into access visits by telephone, FaceTime, Skype or other electronic means;

(e) No discussion regarding the father's ongoing criminal proceedings and no transmission of communications from the father to the children are to be permitted during access visits; and

(f) The order regarding access is subject to review and expansion or amendment by the court within three months of the order being granted, or on such other reasonable notice as counsel for the parties may advise and the court may permit.

(3) An order directing the society and the Office of the Children's Lawyer ("OCL") to disclose and provide to the paternal grandparents any and all information in their possession related to the care and wellbeing of the children, including, but not limited to, all materials filed in these proceedings and all communications between the OCL or the society and the maternal grandparents that relate to the care and wellbeing of the children.

(4) Directions from the court regarding the filing of the transcript of the evidence of Y. given on September 22, 2017 at the preliminary inquiry presided over by Justice Leslie Pringle in the Ontario Court of Justice in the matter of Her Majesty the Queen v. M.S., in light of Justice Pringle's order excluding witnesses and her order under section 539(1) of the Criminal Code regarding the publication, broadcasting and transmission of the evidence given at the preliminary inquiry.

[3] The motion is opposed in all respects by the society and the OCL which represents the interests of the two older children. And although they are not parties to this proceeding, the motion is also opposed by the maternal grandparents.

Litigation Background

[4] On the night of December 2, 2016, the police arrested the father and charged him with the first degree murder of the mother. The police then contacted the society to advise that the children no longer had a parent available to care for them. On the same day, the police attended at the children's school and apprehended them and placed them in the society's care.

[5] The initial missing person's report pertaining to the mother, had been made by the maternal grandparents, who subsequently identified the body of their daughter, the mother of the children. The society met with the maternal grandparents and concluded that, at least on a temporary basis, the children could be safely placed in their care.

[6] On December 5, 2016 the society worker met with the children, who expressed their wish to remain with the maternal grandparents.

[7] On December 7, 2016, the society issued its Protection Application, in which it sought a finding that the children were in need of protection pursuant to:

(1) Section 37(2)(b) of the Child and Family Services Act ("Act"), namely that the children were at risk of physical harm;

(2) Section 37(2)(g) of the Act, namely, that the children were at risk of emotional harm; and

(3) Section 37(2)(i) of the Act, namely, that the parent has died or is unavailable to care for the children without having made adequate provision for the children's care.

[8] In its Application, the society sought a temporary order placing the children in the care of the maternal grandparents, subject to society supervision for a period of six months.

[9] The matter came before me on December 7, 2016, at which time the society and the maternal grandparents were in attendance. At that time I made a temporary without prejudice supervision order in favour of the maternal grandparents, with access, if any, to the father to be entirely within the discretion of the society. I adjourned the matter to January 30, 2017.

[10] The society subsequently requested, and I granted, an adjournment of that date to February 15, 2017.

[11] On February 2, 2017, the paternal grandparents filed with the court a chamber's motion seeking to be added as parties to the Application and, as well, seeking other substantive relief, including leave to bring a motion at the next court date for access to the children. I adjourned the motion to be addressed in court, noting that the paternal grandparents would be required to file further and better evidence of their past relationship between themselves and the children. In any event, I was not prepared to deal with the relief sought by a 14B form as the motion was neither "procedural" nor "uncomplicated", per Rule 14(10) of the Family Law Rules ("Rules").

[12] The matter next returned to court before me on February 15, 2017. Each of the paternal grandparents, the maternal grandparents and the father were represented by counsel. At that appearance I appointed the OCL to represent the two older children. I cautioned all persons present in court that no one was to engage in any discussions with the children about what access, if any, the children should have with the father, the paternal grandparents or anyone else.

[13] I also endorsed the record as follows:

I have expressed the view that any motion for party status by either the maternal grandparents or the paternal grandparents must await meaningful engagement from the OCL and a therapeutic report from the children's therapist, as both of these considerations directly impact on the determination of best interests, and without that determination, the court cannot consider the issue of party status.

[14] I adjourned the matter to April 10, 2017 to permit the OCL to be appointed and to become familiar with the proceedings. The parties subsequently agreed to adjourn to May 8, 2017 to better convenience the OCL.

[15] On May 8, 2017 the OCL attended and advised the court that the children had had their fifth counselling session. The OCL advised that the children were generally doing well socially and academically. There was some discussion in court about the parties working toward a supervision order, with a consent finding that the children were in need of protection. The matter was then adjourned to June 28, 2017.

[16] On June 28, 2017, the society advised the court that it would be amending its Application to seek a section 57.1 custody order with the maternal grandparents as it had no protection concerns with the maternal grandparents and, accordingly, in the society's view, a supervision order would not be necessary. At that appearance, the father was represented by counsel and the paternal grandparents attended on their own. The matter was then adjourned to permit the amended Application to be prepared, issued and then served on the parties. I adjourned to August 22, 2017.

[17] The society issued its amended Application on July 20, 2017 in which it seeks a section 57.1 custody order in favour of the maternal grandparents.

[18] On the next date, the paternal grandparents were represented for the first time in court by Ms. Campion. I was advised that the Application had been served. I was also advised that the children were living in Windsor with the maternal grandparents, and that they were connected to a psychologist in Windsor. The OCL continued to express the children's wishes to live with the maternal grandparents and to have no contact with the paternal grandparents. On behalf of the paternal grandparents, Ms. Campion advised that she would be bringing a motion for her clients to be added as parties. At the same court appearance, I gave the father leave to late file his Answer and Plan of Care to September 8, 2017. I set November 7, 2017 for the hearing of the motion, allowing a half-day for argument, on the advice of counsel.

[19] The argument commenced on November 7th, as scheduled. However, on that date, there were six lawyers in attendance, all of whom indicated they would be making arguments on various issues then before the court. Furthermore, the motion to add the paternal grandparents as parties had expanded to include the additional issues which I set out earlier in these reasons. Argument was commenced, but only partially completed by the end of the court day. I adjourned the matter for further argument to December 21, 2017, allowing the better part of that day for full argument.

[20] As at the date of argument on this motion, the only party to the Application, apart from the society, is the father. He filed his Answer and Plan of Care on September 8, 2017.

[21] In that pleading, the father accurately states that due to his incarceration he is not able to care for the children. However, he is proposing that the children be placed in the care and custody of his parents, the paternal grandparents, who are living in Ottawa.

The Issues

[22] There are essentially four issues before the court:

(1) Should the paternal grandparents be added as parties?

(2) Ought the paternal grandparents be afforded access to the children and, if so, what should that access be?

(3) Ought the society and the OCL be required to make the "information" and documentary disclosure to the paternal grandparents which is in the possession of those parties? and

(4) What order, if any, ought the court to make with respect to the transcript of Y.'s evidence, given at the preliminary murder trial of her father?

[23] The following section of these reasons will address these issues.

Issue #1 – Adding the Paternal Grandparents as Parties

A. Introduction

[24] The paternal grandparents desire an outcome to the Application which is different than the outcome sought by the society and by the other parties. Whereas all the other parties seek a final custody order with the maternal grandparents, the order sought by the paternal grandparents can best be summed up in the paternal grandfather's affidavit sworn January 20, 2017, at paragraphs 47 and 48:

47. The children have been placed in the temporary custody of the maternal grandparents who reside in Tecumseh. . . . Prior to the tragedy all three children attended the Toronto French School. . . . it would be in the children's best interests if they were to move back to Toronto as soon as possible, either back into their old home or into a new one, and that they resume their school year at TFS . . . [We] are willing to drop everything we have going on in Ottawa in order to move to Toronto so that we can take care of the children. The fact is [we] have spent a significantly greater amount of time looking after the children than have [the maternal grandparents]. The children are more accustomed to spending extended periods of time in our care. We have a better understanding of what the children require on a day-to-day basis and on an emotional level, not because we are in any way better parents than [the maternal grandparents], it is simply the reality that we have had the children in our care so much more often than they have.

48. Alternatively, we feel that the children would do very well residing with us in Ottawa. The girls are familiar and comfortable with the city and with our neighbourhood. All three children would have their own rooms in our home.

[25] Subsection 39(1) of the Act provides:

39 (1) The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child's parent.

4. Where the child is an Indian or a native person, a representative chosen by the child's band or native community.

[26] Subrule 7(5) of the Rules provides:

7(5) The court may order that any person who should be a party shall be added as a party . . . .

[27] Accordingly, because the paternal grandparents are not statutory parties under the Act, the court must decide whether they should be added as parties pursuant to the Rules.

[28] The leading case on adding parties is Children's Aid Society of London and Middlesex v. H.(S.). In that case, Justice Grant Campbell stated, at paragraph 22:

[22] Since the court's discretion remains the same under the current rule, I am satisfied that the principles used to add grandparents under the former rules continue to apply. In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:

(i) whether the addition of the party is in the best interests of the child,

(ii) whether the addition of the party will delay or prolong proceedings unduly,

(iii) whether the addition of the party is necessary to determine the issues, and

(iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.

[29] In addition to these four factors, Justice Campbell stated, at paragraph 24:

[24] Consequently, in addition to the foregoing list of principles, I must also consider whether the person seeking to be added as a party has a legal interest in the proceedings.

[30] At paragraph 25, Justice Campbell went on to state:

[25] "Legal interest" is defined in Black's Law Dictionary, 7th ed., (St. Paul, Minn.: West Group, 1999) as "[a]n interest recognized by law, such as legal title." In child protection proceedings, an interest recognized by law occurs when a court has the opportunity to make an order for or against a person in relation to the child. For example, subsection 57(1) of the Child and Family Services Act enumerates the types of orders that a court must make where a child is found to be in need of protection. Each of the possible orders creates a legal interest in so far as the placement of the child is concerned. Paragraph 1 of subsection 57(1) creates a legal interest for "a parent or other person", paragraph 2 of subsection 57(1) creates a legal interest for the "society" and paragraph 3 of subsection 57(1) creates a legal interest for "the Crown". The parent or other person, the society and the Crown all have a legal interest in the proceedings because an order for the placement of the child can be made for or against them.

[31] In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, the Court of Appeal stated, at paragraph 24:

[24] It is not necessary for all factors [in H.(S.), supra] to favour the person seeking party status for the court to add him or her.

[32] Accordingly, what this court takes from all of the foregoing is that these are the five considerations the court must examine in deciding, on balance, whether it would be appropriate to add the paternal grandparents as parties.

B. Do the Paternal Grandparents Have a "Legal Interest"

[33] I begin with this consideration as it would appear to be the least contentious. In the society's Application, it seeks a final order placing the children in the custody of the maternal grandparents pursuant to section 57.1 of the Act. The society also seeks an order that access to the children by "extended family members shall be at the discretion" of the maternal grandparents.

[34] The paternal grandparents are extended family members and, accordingly, their access to the children would be affected by such an order. As such, it would appear that they have a legal interest that would be impacted were the court to make the order the society is seeking.

[35] I note as well, that none of the other parties in this motion argued that the paternal grandparents do not have a legal interest in the Application.

C. Best Interests of the Children/Paternal Grandparents' Ability to Advance a Plan Which is in the Best Interests of the Children

[36] I have chosen to combine factors (i) and (iv) of paragraph 22 of the decision in H.(S.), supra, because in my view there is overlap between them. Both criteria are about the best interests of the children.

[37] On the facts of this case, I find that at the present time the plan of the paternal grandparents is without merit and is not in the best interests of the children. In this section of my reasons I will discuss the merits of that plan based on the considerations which go directly to the children's best interests.

[38] In order to fully address this part of my reasons, I will take a step back to first discuss the nature of the relationship between the children and the paternal grandparents.

(i) Evidence and Perspective of Paternal Grandparents

[39] The paternal grandparents have lived in Ottawa since 1983. The paternal grandfather is a thoracic surgeon at the Ottawa Hospital. The paternal grandmother was, until she retired in 2004, a psychiatrist with a sub-specialty in the field of child psychiatry.

[40] The paternal grandparents have two adult children of their own – the father, who is currently incarcerated having been charged with the first degree murder of the mother, and a second male son who is currently attending Harvard medical school.

[41] The paternal grandparents describe the birth of their first grandchild, Y., in 2005 and the frequent visits by the paternal grandparents to the home of the parents afterwards, before the parents moved to North Carolina in 2006 for the purpose of advanced schooling for both parents.

[42] The paternal grandparents state that they visited the parents often while the parents were living in North Carolina, and they were actively involved in the care of their granddaughter.

[43] In or around 2009 the parents returned to Ottawa. By the time of this return, the parents' second child, F. had been born. Both grandchildren continued to spend considerable time with the paternal grandparents.

[44] The father moved to Calgary in 2011 in order to acquire his specialty in spinal surgery. The mother and the children remained behind in Ottawa. During this period, the paternal grandparents continued to remain actively involved in the children's lives. This involvement included sleep-overs, taking the children on vacation and, generally, being very involved grandparents.

[45] In 2013 the parents and the children moved to Toronto so that the father could pursue his spinal surgery specialty at Toronto Western Hospital. The third child, M. was born in 2013 in Toronto.

[46] Notwithstanding this move to Toronto, the paternal grandparents would visit with their grandchildren in Toronto; and the grandchildren themselves visited with the paternal grandparents in Ottawa. The paternal grandparents continued to remain actively involved in the children's lives even while the two families were living in different cities.

[47] The paternal grandparents state that in addition to their emotional support of the children, they contributed financially as well to the children. For example, they contributed approximately $90,000 to the children's Registered Education Savings Plan (RESP), into a plan jointly held by the mother and the father.

[48] The paternal grandparents state that not only was the children's relationship with them a positive and beneficial one, but the children also had a positive relationship with extended members of the paternal family, including their paternal uncle, A., as well as other extended family members.

[49] As I noted earlier, only about 5 days following the murder of the mother, and the incarceration of the father, I made a temporary without prejudice custody order in favour of the maternal grandparents, to be supervised by the society.

[50] The paternal grandparents state they were unaware of the court proceedings in Toronto until around mid-December 2016.

[51] The paternal grandparents state that they were anxious to ascertain the whereabouts and the wellbeing of the children. However, they state that the maternal grandparents refused to communicate with them. They depose that they were advised by a third party that the maternal grandparents did not want them to attend at the funeral of the mother.

[52] The affidavit evidence filed by the paternal grandparents, and on behalf of the paternal grandparents, refers to some very negative statements made by the maternal grandmother following the tragic death of the mother.

[53] These statements included:

• Referring to the paternal grandparents as "animals" and expressing the desire that they should "go back to Africa, to Tanzania to be with all those other animals";

• A statement to the neighbour that the maternal grandmother did not want the paternal grandparents to email or call the children and if the maternal grandmother found the paternal grandparents coming to her house, she would have them handcuffed and arrested; and

• The maternal grandmother wanted nothing to do with the paternal family and when the paternal grandmother gave birth to the father, she should have strangled him with the umbilical cord, and that the maternal grandmother had tried to stop the mother from marrying the father because she "didn't like the way he looked and he was Muslim".

[54] Subsequently, beginning in January 2017, the paternal grandparents attempted to communicate directly with the children by email. In response to one email, the eldest child, Y. wrote back on January 8, 2017, stating:

All I want is my mom back and if you raised my dad right I would still have her.

[55] It appears that the relationship between the children and the paternal grandparents continued to deteriorate with the passage of time. The society's child protection worker, Ms. Pemberton, filed an affidavit sworn February 9, 2017. Included in that affidavit was the following:

• A statement that the worker had spoken with the officer in charge in the murder investigation and had been told that the two older children would be witnesses in the murder trial. For that reason, and in order to avoid any risk of influence, any contact between the children and the paternal family should be fully supervised;

• On February 6th, Ms. Pemberton and Craig Gostyn (the society's kinship worker) met with the children in the home of the maternal grandparents. They first met with F. who provided the workers with the following information:

  • Her relationship with the paternal grandparents was okay and that she and Y. had been on a cruise with the paternal grandparents the previous summer;

  • When the child protection worker asked if she would like to speak with the paternal grandparents, she stated that she was not allowed to speak with them and also she did not want to speak with them because of the incident that had occurred;

  • In response to the question whether she would feel comfortable having access to the paternal grandparents if someone else was around, F. stated that she would feel a bit uncomfortable, explaining that the paternal grandparents were nice to her but they could also be a bit mean, and yell at her when she did something wrong.

• On the same day, the two society workers also met privately with Y. During the course of that meeting, Y. provided the workers with the following information:

  • She had been told by the maternal grandparents to avoid contact with the paternal grandparents as they would put thoughts into her head;

  • She might want to see the paternal grandparents but also she does not care;

  • She felt bad about making the paternal grandparents feel sad because she had been ignoring them;

  • She is not really sure if the paternal grandparents care about her and her siblings;

  • She described her relationship with the paternal grandparents as okay but that they would sometimes get into arguments, describing the paternal grandparents as "bossy";

  • In response to whether she would want to see the paternal grandparents, she said she would feel uncomfortable, even if someone else was there;

  • On a scale of 0 to 10, with 0 being no desire to see the paternal grandparents, and 10 being a strong desire to see them, Y. scaled herself at a 2;

  • She scaled herself this way because she does not want to be around people who stress her out.

[56] The paternal grandparents, as well as their uncle A. sent emails to the children telling them they would like to see the children.

[57] On March 11, 2017, A. received a reply from Y.'s email address stating:

I know you tried to take my money from my bank account. So much for caring for me, huh?

[58] The paternal grandparents state this must have been a response to the paternal grandfather's attendance at the bank where the RESP was being held in the joint names of both parents, and his attempt to add himself as a co-owner of the account. The paternal grandparents state that Y.'s comment must have come about as a result of information given to her by the maternal grandmother, as no one else would have been privy to what the paternal grandparents were trying to do which, according to them, was to secure the RESP funds, rather than trying to steal them.

[59] Thereafter, and for the next several months, the paternal grandparents attempted to make conciliatory overtures to the maternal grandparents to work together for the joint benefit of the children. They state that their efforts were consistently rebuffed by the maternal grandparents.

[60] A review of the evidence filed by and on behalf of the paternal grandparents reveals more detail and more history than what I have recounted here. However, the intent in this section of my reasons is to provide a representative flavour of the evidence and perspective from the paternal grandparents, pertaining both to their relationship with the children, as well as their views and feelings about the maternal grandparents.

[61] In my view, the thrust of the foregoing can be fairly summed up as follows. It is the perspective of the paternal grandparents that whereas they once had a positive relationship with the children, since the date the father was charged with the first degree murder of the mother, they are of the opinion that the maternal grandparents have gone out of their way to alienate the children from the paternal side of the family.

(ii) Evidence and Perspective of the Maternal Grandparents

[62] The maternal grandparents do not accept as accurate the overwhelmingly positive picture which is portrayed by the paternal grandparents. The affidavit filed by the maternal grandmother contains a number of negative comments about the paternal grandparents, not all of which needs to be reviewed here. Again, as with the paternal grandparents, I intend merely to provide a flavour of the evidence which reveals the perspective of the maternal grandparents.

[63] In order to put the evidence from the maternal grandparents into context, it is useful to extract from their affidavit evidence filed October 19, 2017, the following two paragraphs:

[paragraph 12] In the period immediately following [mother's] death, when I was paralyzed with grief and anger, I was sharing information with the children, suffering from angry outbursts, or not taking proper care to ensure that the children would not overhear certain conversations, that I recognize in retrospect was not appropriate given their ages. I have been receiving assistance in this regard from many professionals, as well as relatives and I am taking care to ensure that this conduct does not reoccur.

[paragraph 18] I admit that there has been conflict with [paternal grandparents], particularly between [the paternal grandmother] and myself almost from the start of our relationship. I feel I am completely justified in my feelings, given the upset and injury they have inflicted on my daughter [the mother] including the [paternal grandmother's] attempts to kidnap my granddaughter, as well as [paternal grandmother's] statements on numerous times when [mother] was pregnant with Y., that [mother's] pregnancy "will ruin [father's] career". They condoned [father's] violence towards [mother], which eventually ended in her death. . . . After [mother's] death, I considered [paternal grandfather's] conduct in quickly paying $640,000 to [father's] criminal lawyers, and surreptitiously trying to transfer the RESP into his own name, as inappropriate.

[64] The "grief and anger" which the maternal grandmother experienced obviously came from the senseless murder of her daughter, a murder which left the children without a mother and, effectively, without any parents at all.

[65] Whatever highly negative feelings which the maternal grandmother experienced and which she also expressed in outbursts of anger and rage cannot easily be understood by others who have not experienced the horror the comes from the murder of a child.

[66] It comes as no surprise that the anger and hostility felt by the maternal grandmother toward the father spilled over onto the father's parents and onto the paternal side of the family.

[67] And doubtless those negative feelings and expressions are exacerbated by the history of the Children's Aid Society of Ottawa's ("Ottawa society") involvement in the lives of the mother and the father. The Ottawa society was involved with the parents and the children on three occasions between 2005 and 2010.

[68] Ms. Pemberton, the society's child protection worker, obtained the records of the Ottawa society. I extract certain portions of the Ottawa society's records regarding its involvement with the family arising from domestic conflict during the years in question:

On February 3, 2005, Ottawa Police Services attended the family home due to reports of a spousal dispute. [The mother had dropped some pots and pans while the father was feeding Y., who reacted to the noise]. The father got up from the couch and walked towards the mother yelling and swearing at her for startling the baby. As he continued to yell, the infant became more agitated. There was no physical altercation . . . and the father threatened to smash an i-Pod. [mgm] moved in with the family for a few weeks and then mother will take Y. and stay for a while with her parents in Windsor. Mother did report to this worker that [father] "did not take the news" of her pregnancy well. He grabbed a knife and threated to harm himself and she had to call 911 and have him taken to the Queensway-Carlton Hospital.

On May 14, 2005 the Ottawa society received a call from a concerned friend of [mother], as she had disclosed to this caller that [the father] had physically assaulted her. [the Ottawa society concluded] based on reports from the mother, police and the father that there was indeed an incident of physical and verbal violence by the father towards the child and the mother. . . . although the father denied threatening to harm the child, the mother has stated that he did make such statements. The mother is seen to be credible at this time. The father has been following the conditions of his release and his father has been facilitating and supervising two access visits between the child and father a week . . . . The mother has no intention of reconciling with the father at this time. The mother has the support of her own parents who are staying with her at this time.

The society received a call on October 1, 2010 from a concerned neighbour [who] has lived across from the family for about ten years. [The neighbour reported] this is the first time she has observed the child to be present during conflict. She reports that the mother appeared to want to leave the home with the child, and the father did not want her to. She witnessed the father yell/call the mother profane names with the child present. She also witnessed the father back up his car and almost hit the child, who was running after the vehicle crying "daddy don't go".

[another caller also called the society to report the incident which the caller stated had awakened her at 3:30 a.m.], reporting the child's crying sounded like a wounded cat. [Caller] witnessed mother trying to get in the car and dad trying to stop her from leaving . . . . The child was yelling and crying for her mother: "Mommy, Mommy…" The father turned around and angrily told the child to "get the fuck back in the house . . . your mother doesn't want you".

Caller is aware that maternal grandparents often visit from Windsor. Caller has spoken to them and is aware that they do not think highly of their son-in-law. They have shared that their daughter is like a single parent.

[69] I have extracted some of the Ottawa society's history of involvement in order to provide a flavour of the background, and of the spousal conflict between the mother and the father. I recognize that much of this is historical. However, the maternal grandparents were obviously very much involved as support persons for their daughter, the mother of the children, during these periods of conflict. And that history has helped to shape their feelings today.

[70] What is clear from the perspective of the maternal grandparents is that the murder of their daughter, allegedly at the hands of the father, did not come without context.

[71] One might suggest – as the paternal grandparents do – that whatever horrific act the father is now accused of having done, that should be about the father alone, not about the rest of the paternal family. That would certainly be a rational, logical way to look at this, and the way in which the paternal grandparents argue ought to be taken by the maternal grandparents. In an affidavit sworn September 19, 2017, the paternal grandparents specifically state:

[We] understand the pain and suffering that [maternal grandparents] are experiencing. The loss of a child is unimaginable. We have done everything we can to be patient and understanding of the outrage they express towards us because we are the parents of the person who is charged with murdering their daughter. However, we cannot be blamed for this terrible tragedy and it is not fair for anyone to point fingers at us. We too are grieving and suffering.

[72] On a purely logical, rational level, it is difficult to argue with these comments and observations expressed by the paternal grandparents.

[73] However, the pain and suffering which the maternal grandparents are experiencing may last for many years, perhaps forever. And no one – certainly not any court – can change this.

[74] In a more perfect world, wouldn't it be in the best interests of the children to have all four of their grandparents involved in the children's lives, especially in the face of the trauma which they must be experiencing? To ask this question is to answer it. But that more perfect world ceased to exist on December 2, 2016. It came to a crashing halt for the paternal grandparents, the maternal grandparents and the children. It will never return.

[75] I have taken the opportunity to explore these differing perspectives for a reason. That reason is to reveal the very real conflict which exists between the maternal grandparents and the paternal grandparents. Regardless of whether the court accepts the explanation given by the paternal grandparents – namely, that no conflict existed prior to the murder of the mother – or the explanation given by the maternal grandparents – namely, that at least some conflict predated the murder and has its roots in the parents' own conflict – the present conflict is real and palpable.

[76] And the very existence of that conflict can only lead to harmful results for the children.

(iii) The Children's Views and Wishes

[77] The discussion of best interests, and the merits of any plan of care advanced by the paternal grandparents cannot be complete without an understanding of what the children are feeling and what their wishes are.

[78] Subsection 37(3) of the Act provides:

Best interests of child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[79] While all the factors in subsection 37(3) are relevant to the determination of best interests, I intend to focus primarily on views and wishes in this section of my reasons.

[80] The children's views and preferences come from three sources. The first source is the society, through Ms. Pemberton, the society's child support worker and Craig Gostyn, the society's kinship worker, including statements made to the society by the children's school principal. The second source is Tania Marie DaSilva, a child and youth counsellor employed by Behaviour Matters. The third source is Dr. Catherine Lee, the children's therapist.

[81] All the children's views and preferences as expressed through these persons are clearly hearsay. However, there is a wide latitude for the court to admit hearsay evidence at this stage of the proceedings. At the adjournment stage of child protection proceedings, prior to trial, subsection 51(7) of the Act provides:

The court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[82] It is important for the children's voices to be heard in all of this. All of the deponents who are providing the court with the children's express views and wishes are charged with the protection and therapeutic wellbeing of the children. None of the deponents has a vested interest in the outcome of the Application. In the context of this proceeding there cannot be a more reliable way for their voices to be heard.

[83] I consider the evidence from these sources to be credible and trustworthy in the circumstances of this case, for the purpose of the motion brought by the paternal grandparents.

[84] I turn first to the society's evidence. I have earlier in these reasons referred to some of the children's views and preferences in the context of the interview Ms. Pemberton had with the children on February 6, 2017.

[85] Ms. Pemberton filed a second affidavit on October 20, 2017. Mr. Gostyn filed an affidavit on the same date. The society's sworn evidence attached the summary of events from the Ottawa society, to which I referred earlier in these reasons. By the date of that affidavit, the children had been in the care of the maternal grandparents, living in Tecumseh, for over 10 months.

[86] On April 4, 2017, Ms. Pemberton together with Ms. Malik (the society's kinship assessment worker) and Mr. Gostyn, met with the maternal family in their home in Tecumseh.

[87] Based on the society workers' discussions with the maternal grandparents, they ascertained that the children had been seeing a grief counsellor, and that the maternal grandmother had increased the counselling time from 30 minutes per session to one hour to allow the children more time with the counsellor. She told the workers that the children had built a relationship with the counsellor and that they enjoyed meeting with her.

[88] The maternal grandmother spoke about F.'s anger which would occur when she would think about her mother being in heaven.

[89] Mr. Gostyn and Ms. Pemberton met with Y. and F., who both reported they were doing well. Y. did state she thought she had social anxiety and said that she was having trouble sleeping at night. Mr. Gostyn told Y. that he would try to find a doctor for her to address those feelings.

[90] The next meeting between Ms. Pemberton and the maternal grandmother occurred on August 22, 2017. By then, the children had been registered to begin school in Windsor in September. Grandmother said both older children were excited about this as they already had some friends who would be attending the same school.

[91] Grandmother did report that she had noticed two months prior that Y. had been cutting her arm. Y. tried to explain it away as a cat scratch, which grandmother did not believe. Grandmother took Y. to see a doctor, locked away the sharp objects, and reported to Ms. Pemberton that there had been no recurrence.

[92] On August 18, 2017, grandmother arranged for the first scheduled meeting between Y. and F. and Dr. Lee, a psychologist specializing in children.

[93] On September 26, 2017, grandmother reported to Ms. Pemberton that the children had settled into school and that they were seeing Dr. Lee for two-hour sessions on Saturdays.

[94] On the same day, Ms. Pemberton spoke with Mme. Brule, the principal at the children's school. Mme. Brule said that considering all that the children have been through, they have settled well into school and they have friends.

[95] She advised that the children have access to supports if their moods are low or at such times as they might disclose feelings about the incident.

[96] She said that the staff have planned ahead and will celebrate days like Mother's Day and Father's Day as Family Days, so as not to single the children out, given that they have neither parent at this time.

[97] Finally, the principal said she did not have any real concerns about the children and she said if concerns arise, she would contact Ms. Pemberton.

[98] I turn next to Tania Marie DaSilva.

[99] Ms. DaSilva obtained an Honours Advanced Diploma in Child and Youth Counselling from Humber College in 2015. Also in 2015 she obtained her Certification in Cognitive Behaviour Therapy from the University of Toronto. She is employed as the Director/Lead Therapist at Behaviour Matters, where she provides private counselling and interventions addressing individual needs, such as emotional, behavioural, and developmental.

[100] I extract the following from her affidavit sworn October 19, 2017:

Y. and F. were referred to Behaviour Matters through Victim Services to create a safe and comfortable space where the girls could discuss and work towards processing and coping with the murder of their mother. Our first meeting was March 2017 and we continued to meet until August, at which time they moved to Windsor and started working with a therapist there.

I can only report what the children said and what I saw, reinforcing the voice of the children without making interpretations.

On April 8, 2017 during a body scan activity the girls disclosed that F. has a hard time controlling her anger and Y. had a hard time managing her anxiety. F. stated she didn't understand how her father could get to mad to do that. Y. disclosed feeling bad about not doing anything that night as she heard the fighting.

In a discussion around change and control of outcomes on April 29th the children disclosed they preferred to live with their maternal grandparents and requested I advocate for them as they were tired of being asked the same questions repeatedly by strangers. When asked if they would want to see their paternal grandparents both girls stated they did not want to see their paternal grandparents because they were strict and mean. Y. stated she knows this might change in the future but for now would rather not have contact.

On April 29th the girls also stated they would chat amongst themselves about their desire to live with mom and their younger brother without their father. Both girls stated they disclosed this desire to their mother on a car ride.

On May 6th, the girls disclosed that they witnessed a lot of fighting at home. The two girls also joked about how they would have to find secret hiding spots to outsmart their father and keep their ipads in their rooms as their father would take them away from them if in sight. They stated their father was strict and only wanted them to work on homework.

On June 10th the girls disclosed excitement and some sadness and anxiety about moving to Windsor. The girls were excited about starting fresh with grandparents and aunt in Windsor. F. expressed some sadness about leaving her friends and F. about fitting in at school.

[101] I turn next to Dr. Catherine Lee.

[102] Dr. Lee is a clinical psychologist who specializes in children, adolescents, families and school psychology. She obtained her Ph.D. from the University of Windsor in 2005. She currently works as a consultant at the London Family Court Clinic where her responsibilities include providing specialized assessments, such as Parenting Capacity Assessments and Custody and Access Assessments.

[103] The maternal grandparents arranged for the children to begin counselling sessions with Dr. Lee, beginning in or around August 2017. On September 26, 2017, Ms. Pemberton spoke with Dr. Lee by telephone. Dr. Lee advised that she has been having regularly scheduled contact with the girls (not 4-year-old M.), as well as with the maternal grandparents and the maternal aunt. Ms. Pemberton requested that Dr. Lee provide the society with a written report, summarizing her involvement with the children. That report, dated October 16, 2017 was filed in this proceeding, as an exhibit to Ms. Pemberton's affidavit sworn October 20, 2017.

[104] I extract certain portions from Dr. Lee's report, as follows:

This letter is in response to a request that I advise as to the views and preferences of the [two siblings] with regard to their relationship with their paternal grandparents and the grandparents' desire for access visits. The provision of information regarding a child or youth's perspectives regarding a matter of family law before the court is commonly referred to as a "View of the Child Report". . . . The siblings have given permission for me to provide the information contained in this letter.

To date, the focus of therapy was to assist these siblings to adjust to the changes in living circumstances and to cope with the events of the past year, and included the influence of the events of the past year, a history of domestic violence within the family home, the loss of their mother and incarceration of their father, and the siblings' adjustment to living in a new community, attending a new school, and making new friends . . . [and] the challenge of having to testify at court and the associated emotional sequelae.

Until asked, the girls did not make reference to their paternal grandparents or their father's side of the family within therapy sessions. I met with each girl individually, and asked about their thoughts and memories regarding interactions with their grandparents in the future. Both girls indicated that they have not spoken with the paternal grandparents since their mother died. In addition, both reported that their grandmother had contacted them by email. According to Y., she responded once, angrily, in March 2017 to her grandmother's numerous email messages, because she thought her grandmother would not stop sending messages unless she replied. Otherwise, both girls report that they have chosen not to respond to her messages and have blocked her efforts to contact them.

Y. recalled visiting her [paternal grandparents] every Friday after school when her family lived in Ottawa, until the family moved to Toronto when Y. was between grades one and two. In addition, she recalled spending time with [them], including a number of weeks in the summer of 2016, but did not view those interactions with pleasure. Y. recalled spending much of her time, while staying at [their] home, in solitary activities or at day camp. In contrast, F. recalls travelling with [them], and recalled those occasions as fun, and thinks of her [paternal grandparents] as "nice". Further, the girls reported that their paternal grandparents are very much like their father, in that the paternal grandparents have high standards for academic success and the girls report feeling pressured to succeed academically. Both sisters reported preferring to spend time with their maternal grandparents and their mother's extended family, and indicated that they feel closer to their mother's side of the family. Neither girl indicated that they felt comfort or solace from their paternal grandparents.

In the short time that I have known the girls, they have impressed me as being thoughtful, intelligent, and resilient. Y. tends to be introspective and anxious with lots of fears and worries, but most of her anxiety is related to social interactions. In contrast, F. presents as extroverted and humorous, but she has struggled with anger and sleep disturbances. . . . Y. would prefer not to see her [paternal grandparents] for the foreseeable future, and reported feeling anxious at the thought of seeing them. F. reported that she doesn't want to talk to or think about her paternal grandparents, and she viewed the possibility of seeing them with trepidation.

(iv) Alienation and Remediation

[105] The paternal grandparents have presented much evidence that the once positive relationship they say they had with the children has now gone by the wayside. The paternal grandparents argue that it is reasonable to infer that this has occurred as a result of the influence which the maternal grandparents have exerted on them.

[106] Counsel for the paternal grandparents relied heavily on the notion that the children have been alienated by the maternal grandparents, against the paternal grandparents, and that the children are now suffering from something called parental alienation syndrome ("PAS").

[107] And because of this alienation, it would be in the best interests of the children that they be provided with therapy to remediate the alienation and restore the bond between the children and the paternal grandparents.

[108] When children suffer from PAS, the courts will sometimes find the remedy to be a change in custody from the alienating parent to the alienated parent. This is what the paternal grandparents are ultimately seeking if they are added as parties to the proceeding, namely, a change in custody from the maternal grandparents to the paternal grandparents.

[109] By way of example, I refer to one of those cases, a case upon which counsel for the paternal grandparents relied. In W.C. v. C.E., 2010 ONSC 3575, Justice W.L. MacPherson found there to be "overwhelming evidence" that the mother had alienated the 12-year-old child against the father. Her Honour made that finding on the basis of considerable evidence led during the course of a 10-day trial, which included evidence from Dr. Barbara Jo Fidler, who was qualified as an expert in alienation on the consent of all counsel at trial.

[110] The court noted Dr. Fidler's evidence, that of the various options available once the court finds that PAS exists, one option to address PAS is to transfer custody from the alienating parent to the alienated parent. (paragraph 159) A second option which Dr. Fidler provided to the court – the option proposed by the father who was the alienated parent – was a transitional placement of the child with the paternal grandmother, with reunification therapy. (paragraph 160)

[111] There were four options placed before the court. Here is the essence of what the court had to say, beginning at paragraph 166:

The final plan to consider is Option #3 which would leave the child in the mother's care and require the parties to participate in reunification therapy. On a short term basis, this is of benefit to the child as she will remain where she had been and where she wishes to be. However, it is clearly recognized that on both the short and long-term basis, the alienating environment in the mother's home is emotionally harmful for the child. What is crucial to this plan is that the parties and the child must participate in intensive reunification therapy to address the alienating behaviours and to work toward a reunification between the father and the child. If they do not do that, there will be a removal of the child from the mother's care.

[at paragraph 169] As confirmed by Dr. Fidler, each case of alienation must be considered on its own particular facts. In determining the appropriate remedy there must be a balancing of both the short term and long term risks and benefits which take into consideration the needs of this child.

[112] This case is one of a number of such cases relied upon by counsel for the paternal grandparents. There is a common thread which runs through these cases.

[113] First, the courts have accepted the construct of PAS.

[114] Second, the "alienating" behaviour complained of was inflicted by one parent, either as against the other parent or, a grandparent. See, for example, Giansante v. Di Chiara.

[115] Third, decisions by the court concluding that a parent had in fact alienated a child came typically following a trial, with testimony, with evidence that could be tested by cross-examination.

[116] Fourth, the court's decision about how to remedy that alienating behaviour typically considered evidence from knowledgeable professionals or experts in the field.

[117] What is significant about all of these cases is that the courts will typically take the approach taken in W.C., supra, concluding that "alienation must be considered on its own particular facts".

[118] As I noted at the outset of this section of my reasons, the paternal grandparents assert that the maternal grandparents have engaged in alienating behaviour.

[119] Perhaps. Or perhaps much of the negative feeling the children have toward the paternal side of the family predated their mother's murder. This could well be inferred from the evidence of those persons who presented the children's voices to this court, the evidence to which I earlier referred.

[120] The entire construct of alienation is something which is a matter of considerable debate. Dr. Lee testified in the case of A.F. v. J.W., 2011 ONSC 1868, a decision of Harper, J. At paragraph 129 of that decision, Harper, J. stated:

[Dr. Lee said] there were a number of psychologists who did not agree with the construct of PAS and that she was one of those psychologists. She was of the view that there were many other factors that may be the cause of children's estrangement.

[121] During the course of trial, Harper, J. heard considerable evidence, and he concluded at paragraph 168:

I find that it is not necessary or helpful to engage in the controversy within the clinical profession about the merits of concepts of parental alienation, realistic estrangement, or family systems based "alienated child" approach. I do find that the focus on the concept of parental alienation creates an environment that could lead to narrow and limiting analysis of very complicated dynamics of family interaction that must be understood in order to find a solution that has the best chance of success. In this case, the pursuit of the label of PAS, diverted many of the professionals.

[122] There is considerable merit to the approach taken by Harper, J., in focusing less on the label, on more on the family dynamics. To do otherwise, the risk in this case is becoming lost in the weeds of concepts like PAS, or therapeutic reintegration, and forgetting what this motion is really about.

[123] Leaving aside for the moment that there is no evidence of what form that therapy would take and how any such therapy would work in the best interests of the children, the court must ask what evidence is there that the children would be open to such therapeutic intervention?

[124] I recognize that case law, such as W.C., supra, states that children don't always get to do whatever they want; nor do they always get to refuse to do things that they are otherwise required to do. Many of these kinds of decisions – for example, whether a child should go to school – are made by the parents, irrespective of the wishes of their children.

[125] However, when the issue becomes one of therapy, and imposing therapy on children, this inevitably gives rise to the question whether children of a certain age are entitled to simply refuse therapy, even if a court otherwise concludes that this may be in the best interests of the child.

[126] There are two lines of cases dealing with the court's authority to order reunification therapy. One line of cases stands for the authority to make such orders in appropriate circumstances. The second line of cases considers whether the child in question has the right to refuse such therapy.

[127] As I noted earlier, the court in W.C., supra, ordered the child to participate in reunification therapy without consideration of whether the child might refuse to participate.

[128] In E.T. v. L.D., 2017 ONSC 4870, the court considered whether the children might have the right to refuse a form of reunification counselling in something called Families Program. The father had objected to the court making such an order on the basis that the children would have to provide their consent pursuant to the Health Care Consent Act. Section 10 of that Act provides:

No treatment without consent

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) [not applicable]

[129] The court in E.T., supra, found that there was no reason to believe that the children would refuse to consent. The court also found at paragraph 60 that the Families Program

I am not satisfied that the Families Program whose purpose is to prevent strained family relationships constitutes "treatment" within the meaning of s. 2 of the Health Care Consent Act, given its focus on treatments that have a "health related purpose".

[130] In other words, the court was not prepared to conclude that there was a "health related purpose" to a program designed to ameliorate strained family relationships.

[131] In Testani v. Haughton, 2016 ONSC 5827 was a decision of Jarvis, J. The court in Testani was faced with an almost 13 year-old child who, the court found, had been alienated by the mother against her father. The father proposed reunification counselling for the child. The mother objected and challenged the court's jurisdiction to make such an order. Following a review of the case law, which questioned whether the court does have such jurisdiction, Jarvis, J. concluded at paragraph 18:

In summary then,

1. The court may order reunification therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28 (1) (b) and (c) (viii) of the Children's Law Reform Act.

2. Such orders are to be made sparingly.

3. There must be compelling evidence that the therapy will be beneficial.

4. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.

5. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.

6. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.

7. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

[132] It is important to note that the court did not consider whether the 13-year-old child was willing to participate in such therapy and, if she was not, whether she had the right to refuse to participate in any such therapy. However, by stating that "resistance to therapy is an important but it is not the determining factor", the court seems to have concluded that the child did not have an absolute right to refuse therapy.

[133] In the present case, the Children's Law Reform Act, does not apply and, hence, the authority of this court to make such an order, cannot arise from that Act.

[134] More significantly, section 28 of the Child and Family Services Act provides:

Counselling service: child twelve or older

28. A service provider may provide a counselling service to a child who is twelve years of age or older with the child's consent, and no other person's consent is required, but if the child is less than sixteen years of age the service provider shall discuss with the child at the earliest appropriate opportunity the desirability of involving the child's parent.

[135] Black's Law Dictionary (10th Edition), defines "counselling" to include:

Guidance by a knowledgeable person such as a psychologist, or a psychotherapist . . . through established psychological methods.

[136] I conclude that "counselling" as referred to in section 28 of the Act, is broad enough to include "therapy" as that word is typically used in cases such as Testani, supra.

[137] The second line of cases is reflected in L. (N.) v. M. (R.R.), 2016 ONSC 809, a decision of Justice Craig Perkins. Beginning at paragraph 113, Justice Perkins had the following to say:

[113] Perhaps the broadest degree of personal autonomy accorded to minors is the right under the Health Care Consent Act, 1996 to consent to or to refuse "treatment", which is defined in section 2(1) as:

"treatment" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include,

(a) the assessment for the purpose of this Act of a person's capacity with respect to a treatment, admission to a care facility or a personal assistance service, the assessment for the purpose of the Substitute Decisions Act, 1992 of a person's capacity to manage property or a person's capacity for personal care, or the assessment of a person's capacity for any other purpose,

(b) the assessment or examination of a person to determine the general nature of the person's condition,

(c) the taking of a person's health history,

(d) the communication of an assessment or diagnosis,

(e) the admission of a person to a hospital or other facility,

(f) a personal assistance service,

(g) a treatment that in the circumstances poses little or no risk of harm to the person,

(h) anything prescribed by the regulations as not constituting treatment.

There are no regulations prescribing what does not constitute treatment. In this case, the father argues that the meaning of "treatment" does not include the residential program he wants the younger son to attend. This will be discussed below.

[114] The right to consent or to refuse consent to treatment is found in sections 4 and 10(1):

Capacity

4. (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

No treatment without consent

10. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act.

[115] It is interesting that the Health Care Consent Act, 1996 does not prescribe any minimum age at which a minor's consent or refusal to consent is to be acted on. Section 4(2) presumes capacity, regardless of age, and section 4(1) articulates a flexible test of capacity that looks for understanding of information and appreciation of foreseeable consequences.

[138] With respect, I prefer the reasoning in the second line of cases. In my view, Justice Perkins' consideration of what constitutes "treatment" under the Health Care Consent Act falls within the definition of the kind of therapy to which a child would likely be subjected to as part of any reunification therapy program. In my opinion, the "flexible test of capacity" is an appropriate approach to take before the court decides to order a child to participate in any such therapy against her/his will.

[139] Y. is 13 years old. Dr. Lee described her as "thoughtful and intelligent". Her consent to treatment would be required. On the evidence before the court I conclude on a balance of probabilities that Y. would be unlikely to consent. Accordingly, the court would be precluded from making an order for reunification therapy.

[140] Even though F. is only 10 years old, given her level of intelligence, a therapist might well refuse to offer counselling if F. were to refuse, possibly even more so in the face of her sister's refusal. And, in any event, the court might well have strong reservations about treating the children differently, in the absence of compelling evidence that it would be in their best interests to do so.

[141] Furthermore more there is little or no evidence – certainly no "compelling" evidence that any such therapy would be beneficial.

[142] And, finally, there is no "detailed proposal identifying the proposed counselor and what is expected".

[143] On the basis of all the foregoing I conclude:

(1) It is doubtful whether on the facts of this case the maternal grandparents have engaged in the kind of alienating behavior which attracts the courts' attention in those cases where there has been a finding of parental alienation;

(2) Even if the court were to conclude that this type of alienation has occurred, the court has no jurisdiction to order reunification therapy on the facts of this case;

(3) Even if the court does have jurisdiction to make such an order, it is doubtful on the evidence that the children would consent; and

(4) Even if the court does have jurisdiction to make such an order, there is a lack of compelling evidence that any such therapy would be beneficial, especially given the lack of a detailed proposal identifying the proposed counsellor and what it expected.

(v) Plan of the Paternal Grandparents Not in the Children's Best Interests

[144] It is important to not lose sight of exactly what the paternal grandparents are seeking, namely, to be added as parties for the sole purpose of ultimately changing the children's custody and living arrangements from the maternal grandparents in Windsor, to themselves in either Ottawa or Toronto.

[145] In coming to the conclusion that this plan is not in the children's best interests, I rely not only on the earlier discussion in this section of my reasons but, as well, on a number of other factors listed in section 37(3) of the Act, set out earlier in these reasons.

[146] I recognize that the enumerated list of considerations in subsection 37(3) of the Act is more expansive than what I am about to set out. However, I am mindful of the direction to the court which is contained in the following words prior to the listing of those enumerated paragraphs:

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant.

[147] With all of that in mind, I direct myself to the following paragraphs in subsection 37(3) of the Act, as well as the court's analysis as to how those paragraphs are of particular relevance to the facts of this case:

[paragraph 1] Children's mental and emotional needs and the appropriate care or treatment to meet those needs – The children have a strong emotional attachment to their maternal grandparents. Their exposure to the paternal side of the family would cause them to be anxious and to feel trepidation. There is no evidence before the court of a specific type of therapy that would enable these children to address their specific needs. Any possible treatment would be based purely on speculation or on scant evidence that has not been tested in the court, and not subject to cross-examination.

[paragraph 6] Children's relationships and emotional ties to a parent, sibling, relative, or other member of the child's extended family – The children clearly have a strong attachment to the maternal side of their family. There is some evidence of a prior attachment to the paternal side of the family as well. While not minimizing what may have been the positive aspects of that relationship, all of that was prior to the traumatic events of December 2, 2016. However, since that date, and according to the most recent evidence from the society, Ms. DaSilva and Dr. Lee, the children's ties to the paternal side of the family are far more tenuous and characterized by at least some degree of ambivalence and negativity. Simply put, the children's emotional ties to the maternal family are far stronger than they are to the paternal family.

[paragraph 7] The importance of continuity in the children's care and the possible effect on the children of disruption of that continuity – The children have been living with the maternal grandparents for more than one year. They attend school in Windsor and they have made friends at that school. Their school principal, teachers and support staff are all aware of the children's particular situation and have implemented supports to address the sensitivity of that situation and the impact this has had on the children.

Recall the children's very pointed statements to Ms. DaSilva that they had some real "sadness and anxiety about moving to Windsor" because they were leaving friends and would have to fit in at a new school. Is it even conceivable that the best interests of these children require an order which would force them to leave their maternal grandparents, to leave their school and to leave their new friends, after everything they have been through? The court very much doubts that, certainly in the absence of very compelling evidence to the contrary.

The children are regularly attending Dr. Lee and have developed a positive relationship with her, a relationship which allows the children to be open, comfortable and to express their feelings in a therapeutic environment. The children have experienced a very traumatic event, an event from which they likely will never fully recover. In such circumstances, the court is of the view that the continuity of care, the maintenance of the current support system and their day-to-day routine is something which cannot be disturbed in the absence of cogent evidence to the contrary, as well as evidence that such disruption would not expose the children to emotional harm.

[paragraph 9] Children's views and wishes - These have been discussed at length earlier in these reasons.

[paragraph 10] The effects on the children of delay in the disposition of this case - Were the paternal grandparents to be added as parties, this case would undoubtedly be delayed very substantially. There were six lawyers arguing the motion before me - the society lawyer, two lawyers for the paternal grandparents, two lawyers for OCL and one lawyer for the maternal grandparents. All parties conceded that if the paternal grandparents were added as parties, the trial would then involve a contest between the paternal grandparents and the maternal grandparents over the custody of the children; and in such circumstances, all parties agree that the maternal grandparents would have to be added as parties as well, in order to place them on an equal footing with the paternal grandparents. In addition, the father has at least one lawyer, although the suggestion was that his lawyer would likely have an associate involved in the case as well. This would result in a 7 or 8-lawyer case, with consequent pleadings, possible motions, documentary disclosure and examinations and cross-examinations at a trial that could potentially last for a very long time. As Justice Ellen B. Murray said in Children's Aid Society of Toronto v. K.A., 2014 ONCJ 304, when she refused to add the grandfather as a party:

[23] The only result of adding grandfather as a party at this time would be that there would be three lawyers instead of two seeking discovery, examining and cross-examining, and making submissions in any trial which is to take place. That would prolong this proceeding unduly.

The children are obviously very much aware of the existing litigation. As they made clear to Ms. DaSilva, they are being poked and prodded by their own lawyers, who understandably must do what they need to do in order to properly represent their child clients. But from the perspective of the children this is just one added layer of stress for them, including the knowledge and uncertainty that their present placement with the maternal grandparents and the school they are attending, and the friends they have made, could come apart at some point in the future.

The very nature of the Act is remedial. It is designed to achieve litigation certainty for children sooner rather than later. The opposite, namely, litigation drift, is something which courts presiding over child protection cases have long abhorred, acting as it does contrary to children's interests. See, for example, Catholic Children's Aid Society of Toronto v. C.(B.) and H.(J.C.), 2004 ONCJ 27. By not adding the paternal grandparents as parties, not only do the children escape from the negative implications of litigation drift, but the opposite may well occur. The society indicated in its submissions that it intends to proceed by summary judgment if the paternal grandparents are not added as parties. This litigation could well be over in its entirety in a matter of several weeks following the parties' next scheduled appearance on January 31, 2018.

[paragraph 4] The religious faith, if any, in which the child is being raised – The maternal grandparents are Catholic. The paternal grandparents are Ismaili Muslim. It appears from the evidence that the parents had decided to expose the children to both religions. The paternal grandparents have an understandable concern that if the children lose contact with the paternal family, they may also lose their connection to their Muslim religion and heritage. The court does not minimize the importance of religion and cultural heritage. However, while the court refers to this paragraph as a relevant consideration, it is the court's view that the cumulative impact of the other relevant paragraphs in subsection 37(3) far outweighs this consideration in determining what is in the best interests of the children.

(vi) Four-Year-Old M. - No Differential Treatment by the Court

[148] While a number of the best interests considerations in subsection 37(3) pertain to all three children, some are more relevant to Y. and F. In particular, as I noted earlier in these reasons the evidence about the children's views and preferences, their counselling and therapeutic intervention, their mental health and emotional wellbeing pertain almost exclusively to Y. and F.

[149] The question then arises for this court, what about M.? If there is no evidence of negative views by M. toward the paternal family, if there is no evidence about emotional fragility, if there is no evidence that M. suffered trauma as a result of the murder of his mother, then why shouldn't M. be afforded the immediate opportunity to begin visits with the paternal family. And, furthermore, why shouldn't the merits of the plan of care of the paternal grandparents be considered in a more favourable light for M., even if the court concludes otherwise for Y. and F.?

[150] These are all questions which the paternal grandparents might have asked.

[151] Is it in M.'s best interests that he be treated differently than Y. and F.? In my view, the answer is no.

[152] In a perfect world, of course, M. should have a relationship with the paternal family. But the world of these children, including M. is unfortunately far from perfect.

[153] The court can draw certain inferences from the evidence about what could well occur if the court made one order for M., and a different order for the other two children.

[154] On the issue of changing custody from the maternal grandparents to the paternal grandparents, the separation of the siblings could prove to be emotionally harmful for any one of the children, or all three of them.

[155] It would appear from the evidence that all three children have a playful and engaging relationship with one another. It is difficult to imagine how anyone could explain to M. why he is ordered to live with his paternal grandparents, while his siblings are living with the maternal grandparents.

[156] And how would Y. and F. react to the separation of the siblings? They are already somewhat emotionally fragile. Both of them have suffered an unimaginable trauma as a result of their mother's death and the incarceration of their father. It is reasonable to conclude that if M. were removed from them, this would only add to their trauma.

[157] What would the paternal grandparents say to M. if M. were living with them and the other siblings were living with the maternal grandparents? How could the paternal grandparents explain this in a way that would be acceptable to M.? And how could the maternal grandparents explain to Y. and F. that M. is no longer living with them?

[158] Access, too, would present similar problems; perhaps not right away for M., but eventually. M. would undoubtedly ask both sets of grandparents, why am I seeing my paternal family and Y. and F. are not? How could this be explained to M. in a way that he could process and understand, and in a way that would not upset him? How could a beneficial and meaningful relationship exist between M. and the paternal grandparents in a way that automatically excludes Y. and F.? It is reasonable to conclude that M. would always be questioning the rationale behind such a court order.

[159] And what about Y. and F.; how would the maternal grandparents be able to explain to them that somehow M. must visit with his paternal family but the siblings aren't? Would that result in negative feelings for Y. and F.?

[160] The court can reasonably infer from all of the evidence that the older siblings have suffered such an indescribable trauma, that anything done to change their present status quo in a negative or detrimental way could make their emotional stability even more precarious.

[161] A review of the evidence before the court does not permit the court to answer any of the foregoing questions with any degree of certainty whatsoever. All the court can do at this stage is to draw some reasonable inferences. Does that mean that M., for all purposes, must always be treated the same as his older siblings? Not necessarily. But, in my opinion, in order to carve out M. from his sisters, there would have to be evidence which goes well beyond what is presently before the court.

[162] The court appreciates that there is no onus on one party or the other to establish what is in the best interests of a particular child in any case where there are competing claims for custody or access. But it seems to me that before the court should even consider the separation of the siblings, either for the purpose of access or changing custody, there ought to be cogent evidence to support such an order.

[163] Accordingly, on the basis of all the foregoing, the court concludes that for all three children, the proposed plan by the paternal grandparents to seek custody of the children is without merit and not in the best interests of the children.

D. Is the Addition of the Paternal Grandparents Necessary to Determine the Issues?

[164] Following the filing of the society's amended Application on July 20, 2017, the father filed his amended Answer and Plan of Care on September 8, 2017.

[165] In that pleading the father states:

It is in my children's best interests to be placed in the permanent and temporary care and custody of my parents [paternal grandparents]. I understand that my parents will have the children reside in Ottawa, Ontario. My children are presently residing with their maternal grandparents . . . in Windsor.

Once the father is no longer being held in custody and also once his ongoing criminal proceedings are finally resolved [the father seeks] a final Order returning [the children] to the father's sole care and custody.

[166] In their comprehensive written arguments on behalf of the paternal grandparents, filed prior to the oral argument on the motion, counsel state:

[father] is incarcerated and waiting to be tried for first degree murder. He is not reasonably in a position to fully and effectively address custody and access issues. Nor is he in a reasonable position to advance and advocate for the issues and concerns that the [paternal grandparents] have raised. His time and mental capacity are consumed by the criminal proceedings, including the preliminary inquiry which is currently underway. Although he has filed a plan of care that includes the [paternal grandparents], it is not reasonable to suggest that he has the ability or energy to represent their interests effectively.

[167] At first blush, this may all sound reasonable. However, when the court begins to peel back the layers, the court is left with questions. Why hasn't the father filed his own affidavit evidence to describe his circumstances and explain fully what is preventing him from advancing the plan of the paternal grandparents?

[168] The paternal grandparents argue:

[father] has not filed any affidavit evidence in this proceeding. Nor can he. In light of his ongoing criminal proceeding he is not in a position at this time to file affidavit evidence or undergo cross-examination on it. He cannot participate effectively in this proceeding.

[169] I disagree.

[170] First, I note that prior to this motion being argued, the parties, including the father, were involved in another set of legal proceedings in civil court. The court has no real details about that case, other than to note that somehow the father was able to participate sufficiently so that the case could be brought to resolution.

[171] Second, it is not sufficient for the father to simply make the bare statement that due to his incarceration he is prevented from effectively advocating his parents' position. He ought to have filed an affidavit setting out why his imprisonment creates disabilities which interfere with his ability to advance that position.

[172] Third, the argument that because the father is facing criminal charges, he cannot expose himself to cross-examination on his affidavit, does not hold up under scrutiny. His affidavit would not be about whether or not he had committed the offence of murder, but only about his alleged disabilities, and how any such disabilities prevent him from effectively advancing his parents' claim for custody of the children, such that the paternal grandparents require an order adding them as parties. It is difficult to understand why an affidavit containing that subject matter would prejudice the father's criminal proceeding.

[173] The father has hired a very experienced lawyer who is a certified specialist in family law proceedings, to represent him in the society's Application. To suggest that such an experienced lawyer of high standing and repute would be unable to represent the father's case for the proposed plan by the paternal grandparents, does not accord either with reason or the evidence which is before the court.

[174] Not only would the father be able to participate in writing in this proceeding with the assistance of skilled counsel but, additionally, he would even be able to obtain an order from this court, to attend in person, to be brought to the various scheduled proceedings, if he so requested.

[175] The case of Children's Aid Society of Toronto v. G.M., 2014 ONCJ 209, is a decision of Justice Stanley B. Sherr. In that case, the "stepmother" of two children sought to be added as a party to the child protection proceeding. The father was in jail at the time of the child protection proceeding. At paragraph 15 of his decision, Justice Sherr stated:

[15] Based on the evidence in front of me, she has an aligned plan with the father. Her intention is to live with the father when he is released from jail, to be married to him, to raise the children together. The father is a party to this case, the father does have a lawyer, the father is perfectly capable, at this point in time, with presenting a plan either for himself, as he has, or with Ms. S.T. in the alternative. He has the ability, if he wishes, to propose her as an alternative to himself with her alone. So she has the ability, through his plan, to be able to get her plan to the court and to provide evidence to the court. So that can be done through the father. So that is the first factor that I have to consider.

[176] I find Justice Sherr's comments in that case to be apt to the present case.

[177] Accordingly, on the father's bare statement alone that he is unable to effectively advance the claims of the paternal grandparents, such that the paternal grandparents require an order adding them as parties to the proceeding, the court does not find this to be the case.

E. Undue Delay of the Proceedings

[178] In my view, this consideration requires no discussion beyond that which I previously set out at paragraph [147] of these reasons, in my bullet point referencing paragraph 37(3)10 of the Act. On the basis of that discussion I necessarily conclude that the addition of the paternal grandparents as parties to this proceeding would excessively delay and unduly prolong the proceedings, to the detriment of the welfare and best interests of the children.

F. Summary

[179] I return to the factors which the court must consider in deciding whether to add parties, according to H.(S.), supra:

(1) Is the addition of the paternal grandparents in the best interests of the children? The answer to this question is no.

(2) Are the paternal grandparents capable of putting forward a plan that is in the best interests of the children? The answer to this question is no.

(3) Is the addition of the paternal grandparents necessary to determine the issues? The answer to this question is no.

(4) Would the addition of the paternal grandparents delay or prolong the proceedings unduly? The answer to this question is yes.

(5) Do the paternal grandparents have a legal interest in the proceedings? The answer to this question is yes.

[180] Having regard to the foregoing, it follows that the request by the paternal grandparents to be added as parties to the proceedings must be dismissed.

Issue #2 – Should the Paternal Grandparents Be Afforded Some Form of Access

[181] The claim for access by the paternal grandparents is in no way dependent upon whether they are added as parties to the Application. They have an independent right to request access pursuant to section 58 of the Act.

[182] Counsel for the paternal grandparents relied on the decision of the Court of Appeal in Chapman v. Chapman.

[183] In Chapman, supra, the Court of Appeal stated, at paragraph 19:

[19] A relationship with a grandparent can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship (Shendroff v. Bruhand, a judgment of the Ontario Superior Court of Justice, released September 8, 1999 (unreported); Chabot v. Halladay, [1992] O.J. No. 2636 (Ont. Gen. Div.); Padbury v. Lee, [1994] O.J. No. 1075 (Ont. Gen. Div.); Peck v. Peck, [1996] O.J. No. 755 (Ont. Prov. Div.); McLellan v. Glidden (1996), 23 R.F.L. (4th) 106 (N.B.Q.B.); Young v. Young, supra).

[184] While the court agrees with this proposition, it is not clear that Chapman is relevant to the considerations before the court in the present case. I state that for two reasons.

[185] First, Chapman, and the grandparent cases generally, are about grandparents who are seeking access to their grandchildren following the separation of the parents, or the death of one of the parents. The dynamics in the present case are entirely different.

[186] This is not a case where parental conflict has arisen and one parent has decided that the children's paternal or maternal grandparents should be excluded from the lives of the children, for arbitrary reasons, or to punish that other parent. The facts, as discussed earlier in these reasons, portray a very different dynamic.

[187] Second, it is important to note that the Court of Appeal talks about judicial intervention in circumstances where the otherwise positive relationship has been imperiled "arbitrarily".

[188] As the Court of Appeal noted, at paragraph 17:

[17] The essence of the grandmother's submission is that, in general, it is in the best interests of children to maintain contact with members of their extended family. The test, however, is not what, in theory, is best for children in general, but what is in the best interests of the particular children before the court.

[189] It is not the view of this court that any positive relationship which existed between the children and the paternal family prior to the murder of the mother, has been imperiled arbitrarily by the maternal grandparents.

[190] "Arbitrarily/Arbitrary" is defined in Black's Law Dictionary (Revised Fourth Edition) as:

Fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone

[191] I have reviewed at some length the actions of the maternal grandparents. And based on that review I do not conclude that whatever she may have said to the children, whatever less-than-perfect judgment she may have exercised, her behaviour can be characterized as either arbitrary or capricious.

[192] There exists an overlap between custody considerations and access considerations. Obviously, whatever court orders might flow in respect to either of these two matters comes down to the same thing, namely, what is in the best interests of the children.

[193] At some point in the future, the children may reach the point in their development and in their ability to cope with the trauma they have experienced, such that they will show an interest in some form of very controlled access with their grandparents. However, that time is not now.

[194] For many of the same reasons that I concluded the paternal grandparents will not be added as parties and, more particularly, because of what is in the best interests of the children, I must also conclude that the paternal grandparents' claim for interim access, either to themselves, or to any extended paternal family members should be dismissed. Their access at this time will be limited to the exercise of the discretion of the maternal grandparents.

Issue #3 – Should the Society and the OCL Be Required to Make Documentary Disclosure to the Paternal Grandparents?

[195] Prior to the commencement of argument, the paternal grandparents were seeking a very broad disclosure order from both the society as well as the OCL.

[196] However, on the second day of oral argument, counsel for the paternal grandparents stated that their request for disclosure was now limited to the following:

(1) Copies of all materials filed in the court record, and

(2) Counselling plans or reports, progress and plan for future counselling, as provided to the OCL, and nothing which would infringe on solicitor and client privilege as between the children and the OCL.

[197] It follows that because I have declined to add the paternal grandparents as parties, they are not entitled to any materials in the court record, a record which is open only to those who are parties in child protection proceedings.

[198] This pertains not only to documents filed in the court record but, as well, the counselling plans referred to immediately above.

[199] That said, at the outset of argument on this issue, counsel for the maternal grandparents stated that they were willing to provide the paternal grandparents with updates about the children every six months, for so long as the status quo continues. They would provide such updates through counsel, rather than directly grandparent-to-grandparent.

[200] In my view that willingness demonstrates a degree of sensitivity and understanding on the part of the maternal grandparents.

[201] However, I am not prepared to turn the expressed willingness of the maternal grandparents to voluntarily proceed in this way, into a court order. There is no legal basis for such an order given the findings and conclusions I have arrived at in these reasons. Moreover, there may be circumstances – including the express wishes of the children, or any of them, that such status reports not be provided to the paternal grandparents. And in such a situation it may not be appropriate to force the maternal grandparents to provide information contrary to the children's wishes.

Issue #4 – The Transcript Evidence Given by Y. at the Criminal Preliminary Hearing

[202] The paternal grandparents seek to introduce this transcript pursuant to subsection 50(1) of the Act which provides:

50 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1999, c. 2, s. 12.

[203] The intent of this section was to provide an exception to the hearsay rule regarding admissibility of evidence.

[204] Counsel for the paternal grandparents argue that Y.'s evidence is not for the purpose of showing what the maternal grandmother may have said but, rather, to reveal Y.'s state of mind.

[205] Counsel rely on the case of D.D. v. Children's Aid Society of Toronto, 2015 ONCA 903, which dealt in part with the admissibility of children's hearsay statements through subsection 50(1) of the Act. At paragraph 39, the court stated:

Statements that show the child's state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.

[206] In making that statement, the court was giving wide latitude to the admissibility of hearsay statements pursuant to subsection 50(1) of the Act.

[207] However, the court went on to say at paragraph 40:

In some cases, admission of hearsay might be unfair.

[208] In my view that is the problem which arises in this case. I do not find it necessary to decide whether the transcript falls within the ambit of subsection 50(1) of the Act, as my decision to refuse to allow it into evidence is based on another consideration, namely, the issue of fairness.

[209] It is important to note the wording in paragraph 50(1)(a) – the court "may" consider. In other words, there is a discretion conferred on the court to refuse to admit a document – in this case the transcript – where, for instance, it would be unfair to do so. That was one of the reasons why this court concluded that it would be inappropriate to admit the transcript of a prior court hearing in the case of Children's Aid Society of Toronto v. R.(A.) (paragraph 19).

[210] The unfairness of admitting the transcript in this case, would be significant. The criminal court issued a publication ban on the preliminary hearing. The front page of the transcript states:

Information contained herein cannot be published, broadcast or transmitted pursuant to section 539(1) of the Criminal Code of Canada, by Order of Justice L. Pringle, Ontario Court of Justice, Dated September 5, 2017

[211] During the course of argument I asked counsel for the paternal grandparents how it would be possible for this court to engage in an evidentiary analysis of the content of that transcript and then articulate reasons why, or why not, the court arrived at its decision regarding admissibility. My reasons for judgment would be available to all counsel and to the parties in this motion. The decision would also likely find its way onto legal judgment websites such as and Quicklaw. Wouldn't all of that violate the publication ban?

[212] The answer I was given was that I could make "general comments" about the contents of the transcript without speaking to the specifics of Y.'s testimony.

[213] On a strictly principled basis, this court would not be prepared to engage in an analysis regarding the admissibility of evidence with its hands tied behind its back. Either the court is free to engage in a full-out analysis which, by necessity, would involve reference to Y.'s testimony, and why that testimony is both relevant and admissible, or in my view, the court should avoid the analysis altogether. In this latter case, were I to admit the transcript into evidence the maternal grandparents would not have a full understanding of my reasons for arriving at my conclusion.

[214] If I were to admit the transcript into evidence as requested by the paternal grandparents, the maternal grandparents would be prevented from responding to that evidence because they couldn't be shown the transcript itself, due to the publication ban in the criminal court proceedings.

[215] I have read the transcript. The contents of that transcript may have marginal relevance. The transcript itself may be the kind of document which is contemplated by subsection 50(1). However, the overwhelming unfairness of admitting that transcript into evidence compels me to exercise my discretion by refusing to admit it into evidence in this proceeding.

Conclusion

[216] At the outset of argument, counsel for the paternal grandparents submitted that nothing in the criminal case is relevant to this proceeding. I find that proposition difficult to accept. First, counsel themselves sought to introduce into evidence the transcript of testimony given in that very proceeding. They sought to make the criminal proceeding relevant.

[217] Second, the reality for the children is that their mother was murdered. Of that there can be no doubt.

[218] Third, the children are well aware that their father is in prison, and has been so for more than a year, having been charged with that murder.

[219] Fourth, not only are the children aware of this, but it cannot be doubted that all their school friends and teachers and acquaintances are equally aware of the allegations and those of the circumstances which may be published on the internet – whether factual or speculative. In our current society, just about everyone has access to the internet, and the natural curiosity of most people would take them to the World Wide Web to find out whatever is there. This keeps the children, at least indirectly, in the public eye. That, combined with the trauma the children have suffered, can only continue to threaten their emotional stability. The sooner the criminal court case and this child protection case are done with, the sooner the children may have at least a chance of starting to develop a semblance of normalcy in their lives.

[220] Fifth, the evidence tells the court that the children have suffered a real and palpable trauma as a result of the death of their mother and the loss of their father as well. And this is not "limited" to trauma resulting from their mother's murder but, also guilt for not doing anything to prevent that murder.

[221] The reality in this case is that there can be no winners. There are only losers. The maternal grandparents have suffered the trauma resulting from the murder of their daughter.

[222] The paternal grandparents have no current relationship with the children; nor are they likely to have a meaningful relationship in the near future.

[223] And, most important, the children themselves have suffered a loss of the most unimaginable kind possible. It doesn't take a psychologist to realize that this is something from which they can never fully recover.

[224] In the result, the court dismisses the motion of the paternal grandparents in its entirety.

[225] My final word is for all counsel who argued in this case. They did so with effectiveness, compassion and understanding. Their preparation showed in both their written as well as oral advocacy. And for all of that, I am most grateful.

Released: January 9, 2018

Signed: Justice Robert J. Spence