Court File and Parties

COURT FILE NO.: FS-20-14971 DATE: 20200716 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.R. Appellant – and – Children’s Aid Society Respondent – and – T.H. Respondent – and – OFFICE OF THE CHILDREN’S LAWYER Respondent

COUNSEL: Jessica Gagné and Andrew Burgess, for the Appellant Chithika Withanage, for the Respondent Children’s Aid Society Self-represented, for the Respondent T.H. Jane Long and Gary Gottlieb, for the Office of the Children’s Lawyer

HEARD at Toronto: June 30 2020

On appeal from the decision of Justice R. Zisman dated January 13, 2020.

C. Horkins J.

Introduction

[1] The Appellant, L.R. is the mother of the child G.R. who is now 11 years old ("the child"). She appeals the final order of Justice Zisman dated January 13, 2020, made after a 15-day trial pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 ("CYFSA").

[2] The trial judge found the child in need of protection. In brief, the mother convinced the child that the Respondent father, T.H., had sexually abused him. The overwhelming evidence confirmed that this was false and yet the mother continued to prompt and coach the child to make repeated false allegations of physical and sexual abuse against his father. The mother unjustifiably alienated the child from the father, influenced the child’s views and preferences and poisoned the child’s mind against his father. The mother was found incapable of meeting the child’s mental and emotional needs. She completely sabotaged the child’s relationship with his father and the extended family. When the respondent, Children’s Aid Society (“Society”), arranged reunification therapy for the child, the mother tried to sabotage this process.

[3] The trial judge ordered that the child be placed in the interim care of the Society for a period of 4 months and then placed in the care of the father for a period of 6 months, subject to the supervision of the Society with detailed terms.

Grounds of Appeal

[4] The mother asserts the following grounds of appeal:

(1) The trial judge erred in law in her application of the best interests of the child test under the CYFSA, specifically:

(a) The trial judge failed to accord due weight to the child’s views and wishes pursuant to s. 74(3)(a); and

(b) The trial judge failed to consider the following relevant factors:

s. 74(3)(c)(x) - the risk that the child may suffer harm through being kept away from a parent;

s. 74(3)(c)(xi) - the degree of risk, if any, that justified the finding that the child is in need of protection; and

s. 74(3)(c)(vi) - the child’s relationships and emotional ties to a sibling.

(2) The trial judge erred in law in delegating all future access decisions to the Society; and

(3) The trial judge erred in law in making the no recording order.

Standard of Review

[5] The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.

[6] On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[7] With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4). The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”

[8] In child protection cases, appellate courts owe a high degree of deference to the trial judge’s decision. As the court stated in P. (D.) v. S. (C.), [1993] 4 S.C.R. 141 at p. 192: “On issues of credibility, a trial judge is uniquely well placed to make the necessary findings. An appellate court should, apart from exceptional situations, refrain from interfering with those findings” (see also Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 at para. 33; Children's Aid Society of Toronto v. S.A.C., [2005] O.J. No. 4718 (S.C.) at paras. 10 and 12; aff’d 2007 ONCA 474).

[9] Finally, as the court stated in Children's Aid Society of Toronto v. V. L., 2012 ONCA 890 at para. 15; leave to appeal refused [2013] S.C.C.A. No. 1112: “the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.”

Summary of Decision Under Appeal

[10] This summary provides an overview of the trial judge’s Reasons for Judgment (“Reasons”). The Reasons are considered further as the grounds of appeal are addressed.

The History of Conflict

[11] The trial judge reviewed the history of the conflict and the mother’s involvement with the Society.

[12] The child has been exposed to conflict between his parents and their volatile off and on relationship since he was about 2 years old. The child has been the subject of custody and access proceedings, the Society’s investigation and various investigations by the Toronto Police Services as a result of false sexual abuse allegations against the father. The fact that the abuse allegations were false was revealed to the Society over time.

[13] The parents were in an off and on relationship from 2003 until January 2017. At the time of their final separation, the child was 8 years old. Their relationship was tumultuous. There were allegations of domestic violence by both parties and both were at different times charged criminally. All the charges were subsequently withdrawn. As a result of the allegations of domestic violence, the Society became involved with the family in 2010 and 2011. After initial investigations, the Society closed their file at intake.

[14] When the parties separated in 2011, a February 24, 2011 consent order gave the mother custody. The father was given reasonable access on reasonable notice and was required to pay child support.

[15] Members of the extended family all testified that the father was a loving and involved parent and that he enjoyed a good relationship with his son before the alienation process started.

[16] In 2016, the parents reconciled, and the father asked the mother to marry him. They were to be married in February 2017, but the father called off the wedding.

[17] On January 21, 2017 the mother had accused the father of being sexually inappropriate with the child. The mother called the police, who interviewed the child that evening. The child did not disclose any abuse. Subsequent investigations by the police and the Society did not verify any sexual abuse by the father.

[18] As of January 2017, the child refused to have any contact with his father. The mother alleged that she was unable to force him to have contact.

[19] The Society commenced a Protection Application on July 13, 2018 after a failed attempt to work with the mother voluntarily. The Society sought orders placing the child and the mother’s new baby with the mother, subject to the Society’s supervision. The Society was concerned with the mother’s lack of understanding and acknowledgment that the conflict and her ongoing false abuse allegations against the father had an impact on the child.

[20] On January 9, 2019, Justice Paulseth heard the contested Protection Application. The child was found in need of protection due to the risk of emotional harm. The court-ordered access between the child and father failed because the child refused to attend and the Society’s attempts to arrange reintegration therapy failed primarily because the mother would not cooperate.

[21] The Society then brought a motion on July 23 and 25, 2019 before Justice Paulseth to place the child with the maternal grandmother. The court ordered the child to be placed in a neutral environment in the care of the Society, with access to the parents and extended family, at the Society’s discretion.

[22] On August 13, 2019 the Society amended its Protection Application seeking an order that the child remain in the Society’s care for four months and then be placed in the father’s care.

[23] The father had no access to the child from January 21, 2017, when the false allegations began, until October 19, 2019, when reunification therapy began with Diana Polak.

Trial Judge’s Review of the Evidence and Findings of Fact

[24] The evidence at trial was extensive. The Society called 11 witnesses. The father testified and he called two witnesses. The mother testified and called witnesses. The child’s teacher, therapists and psychiatrist testified. The exhibits were extensive. The trial judge ruled on several evidentiary issues.

[25] In a detailed and well-organized 47-page decision, the trial judge assessed the credibility of the parties and witnesses. She made clear findings of fact based on a thorough analysis of the evidence. On this appeal, the mother does not challenge any of the findings of fact.

[26] The trial judge found that the evidence of the Society workers was “clear factual and child focused” and the father was “honest and forthright”. The judge found that the mother was “evasive dishonest and inconsistent in her evidence” and her evidence “in general is simply not credible”.

[27] The trial judge reviewed the false allegations of sexual abuse that started in 2017. It is not necessary to review the details on this appeal. A few of the judge’s findings about the false allegations are worth noting. The trial judge found that the mother’s 2017 text messages and Facebook posts are “evidence of someone who is emotionally unhinged, irrational and emotionally dysregulated”. After a thorough consideration of the evidence, the trial judge concluded at paras. 185-186:

…there is overwhelming evidence that the allegations of sexual and physical abuse against the father, the maternal family and the father’s friend are without any substance. As soon as the mother was given reasons why the allegations of abuse were not verified the mother made new allegations of abuse to address those reasons.

I find that the mother has systemically and over time convinced the child that these allegations happened.

[28] The trial judge reviewed the mother’s long-standing pattern of non-cooperation with court-ordered access and the child protection proceedings. The trial judge found that the mother’s excuses for not cooperating were not credible and that the mother “had no intention of permitting the father’s relationship with [the child] to resume.”

[29] The mother’s conduct toward the father in the presence of the child was documented in a video taken by the maternal grandmother during a court-ordered access exchange. As the father stood by the mother’s car and tried to tell the child that he loved him, the mother’s boyfriend “screamed and yelled” at the father and the mother stood by watching. The trial judge found that it was “chilling and shocking to watch the mother simply standing by while her child is subjected to this scene”. The mother did nothing to diffuse the situation and did not encourage the child to see his father. The judge found it was “heartbreaking” to see the father pleading with his son. The video showed the mother’s attitude toward the father’s access to the child. It was so bad that the trial judge stated “[i[t is disturbing to watch and hard to understand how any mother would subject her child to such a scene”.

[30] In June 2018, the court ordered that the father’s access be supervised by Brayden Supervision Services. However, even the Brayden supervisors could not convince the child to see his father. In August, the court ordered that the access take place in the Society’s office and, this too failed. Society workers testified that the mother drove the child to the visits, but the visits did not take place because the child would not leave the mother’s car. The mother stood by and did nothing to encourage the child to cooperate and the Society workers were not prepared to physically force the child out of the car.

[31] In August 2018, the Society began to explore options for reunification therapy. The trial judge’s reasons show that the mother’s conduct interfered with the clear need for this therapy. It was a pattern of behaviour that started with cooperation and then the mother would withdraw or thwart the process.

[32] The first attempt to start reunification went nowhere. The second attempt was with Ms. Mills-Minster at Millan & Associates. The trial judge set out, in detail, the meetings held with the mother, her boyfriend, the child and father. The mother’s lack of cooperation and Ms. Mills-Minster’s concerns are set out in the reasons at paras. 327 -328 and 333-334 as follows:

[327] It was the view of Ms. Mills-Minster that the mother was manipulating the system by having [the child] seen by professionals who only had information from the mother. This was very harmful to [the child] and would continue to affect him long term.

[328] It was Ms. Mills-Minster recommendation that in view of the entrenched position of the mother and the inability to distinguish her voice from the child’s voice that [the child] needed to be removed from the mother’s care and then be allowed to engage in therapy without the influence of the mother.

[333] In cross-examination by father’s counsel, Ms. Mills-Minster stated that this was an alienation case, the issue was why the child did not want to see his father, what messaging was the child receiving and what were the underlying factors. In explaining her recommendation to remove the child from the mother, she stated that the mother was interrupting the process and other times she was not bringing the child. In her view, if the conflict impacts the child then a professional is doing harm by permitting the conflict to continue.

[334] Ms. Mills-Minster stated that the mother sabotaged the process. She heard and saw it.

[33] The mother took the child to therapists or counsellors who were sympathetic to her position, and uniformed about the full scope of the child’s alienation, and her own conduct. The trial judge explained how one of the mother’s choices caused more damage to the child. The mother took the child to see Mr. Patterson, a “traditional healer” who had no training as a therapist or counselor and no experience with verification of sexual abuse allegations. Mr. Patterson testified at trial. He told the child about his own history of abuse. The trial judge found that he “assisted in reinforcing and supporting the false memories of the child regarding being abused by his father”. He also “encouraged the mother in continuing to believe those allegations without having all of the information or without having the experience or training to determine the truth of those allegations”.

[34] After the child was apprehended on July 25, 2018, the Society searched for another therapist to begin reunification therapy. Dianne Polak was retained. By this point, the child was in foster care. The parents signed an Informed Consent for Intake Consultation Agreement, stating that Ms. Polak was retained to determine if reintegration therapy was suitable for the family. This initial phase and Ms. Polak’s assessment is reviewed in the Reasons. Sadly, Ms. Polak determined that the therapy was not suitable for the family. Although the child had been removed from the mother’s care, the mother attempted to control the therapist’s process and was unwilling or unable to work cooperatively with Ms. Polak in reunification therapy. Contrary to Ms. Polak’s recommendation, the mother refused to tell the child that the abuse allegations never happened and continued to support the child’s wish not to see the father.

[35] After the child was removed from the mother’s care, the Society arranged for access visits between the mother and child in consultation with Ms. Polak. The Society told the mother that she had to comply with the Society guidelines and if she did not, the visit would terminate. The guidelines directed the mother not to question the child about his visits with the father or the extended family and not engage in any discussions with the child about the father or the allegations. The mother did not follow the Society guidelines, causing her visits to be terminated.

[36] The trial judge found that even after the child was removed from the mother’s care and had not seen him for 3 months, the mother “was unwilling to abide by the Society’s expectations …the mother chose to follow her own agenda rather than comply” with the guidelines (para. 425).

[37] The trial judge considered the child’s views and preferences, and this will be addressed below, as it is a ground of appeal.

Fresh Evidence

[38] Section 121(6) of the CYFSA provides that the court may receive further evidence relating to events after the appealed decision.

[39] On consent, all respondents filed fresh evidence. The fresh evidence serves two purposes. It updates the Court on the child’s circumstances and his views and preferences. Second, the fresh evidence is relevant to the orders that the mother is seeking, if successful on her appeal. On this appeal, the mother seeks a joint custodial/shared parenting arrangement. It is the position of the Society and the OCL that if the appeal succeeds, the mother’s arrangement is not in the best interests of the child because of the mother’s conduct.

[40] The mother filed a responding affidavit that primarily catalogues her disagreement with the affidavits that the respondents filed. It does assist in updating the court on the child’s circumstances and his views and preferences.

[41] The OCL filed two affidavits, one from Allison Bernatt, a clinician/social worker assigned by the OCL, and one affidavit from Ian Ross, in-house counsel and regional supervisor at the OCL. Mr. Ross’ affidavit simply confirms that Ms. Bernatt is a member of the OCL clinical panel, and her role is to ensure that the child’s views are before the Court.

[42] Ms. Bernatt has been involved with the case since March 2019 and has continued her regular contact with the child since the trial. Her affidavits describe the child’s remarkable progress through reintegration therapy. He is now residing with his father and expressed his views and preferences to Ms. Bernatt as follows:

50. When asked what [the child] would wish the judge to know, he said that he is “happy” that his relationship with his father has improved. [The child] said that he wishes to have contact with both parents. [The child] says that he wants to give living with dad a good “shot”. He wishes to visit with his mother.

51. When asked about his preference regarding access to his mother, [the child] said that he is “okay” with having supervised visitation. [The child] said that if a supervisor were present for visits with mom, they would intervene if she said something that made him feel anxious about his father.

52. Overall, [the child] appears happy to be residing with his father. [The child] had no concerns or worries about his safety while in his father’s care. [The child’s] attitude and feelings about his father are very positive.

53. [The child’s] views and preferences were clearly articulated during this interview. He appeared calm and comfortable during our meeting. He did not show any signs of distress or agitation and provided his answers without hesitation. He made it very clear that he was content with the existing arrangement as ordered after the trial. While he expressed to us that he wanted his mother and father in his life, he saw no reason to make any changes to the trial judgment at this stage. He was happy living with his father and having supervised telephone access with his mother. When we explored this with him, asking him to think about alternatives to the existing living arrangements and access schedules, with and without supervision, he again explained very clearly that he wanted to “focus on his relationship with his father” and wanted no changes to the current judgment of the Court.

54. We reviewed with [the child] what Ms. Long should be telling the appeal judge and he confirmed that he did not want any changes to the order; he wants to continue to live with his father and to be able to have contact with his mother.

[43] The Society filed an affidavit from Marcia Duncan. She is the child protection worker at the Society who has been responsible for the case since June 8, 2019. Ms. Duncan’s affidavit describes the mother’s access to the child since trial and how this access has progressed.

[44] Ms. Duncan explains that since the trial, the mother’s behaviour has “frequently been inappropriate and designed to jeopardize the ongoing reunification process between father and child”. Ms. Duncan describes the mother’s conduct with the Society as confrontational.

[45] The affidavit provides several examples of the mother’s behaviour, including her refusal to follow the Society’s guidelines during access. One guideline requires the mother to tell the child that the abuse had never been verified. It was important for the child’s therapeutic process to hear this from his mother. It was the mother’s evidence at trial that the allegations/abuse were never verified and that she would encourage the child to see his father. However, after the trial, the mother would not agree to follow this guideline as requested.

[46] Access was limited to telephone calls between the mother and child. While two calls went well, the mother then reverted to breaching the guidelines and inserting negative messages about the father during the call.

[47] Ms. Duncan explains that the Society is concerned about the mother’s conduct toward Ms. Polak, the reunification therapist that the Society retained in 2019. The mother has denigrated Ms. Polak on social media and accused Ms. Polak of bribery and extortion. The mother has also denigrated the case management judge on social media. Finally, Ms. Duncan’s affidavit states that the mother has not complied with the publication ban. She has posted pictures of herself under her own name, has posted the child’s picture and has stated that her child is in the Society’s care.

[48] The affidavit of Kalpa Patel, a child protection worker at the Society, reviews his contact with the child and mother. Mr. Patel describes the mother’s inappropriate conduct. His observations are consistent with what Ms. Duncan described. Mr. Patel met with the child as he was being reunified with his father. Mr. Patel’s affidavit sets out the positive progress that the child and father made, leading to the child and father now living together.

[49] Finally, the maternal grandmother’s affidavits describe her concerns about the mother’s behaviour, and her support for the child and the father being together. The father’s affidavit explains his reunification with the child and that they are happy living together.

Analysis – Grounds of Appeal

[50] Grounds of appeal #1a and #1b deal with the best interests of the child and what the trial judge was required to consider under s. 74(3) of the CYFSA.

Ground #1a - Failure to Give Due Weight to the Child’s Views and Wishes

[51] This ground of appeal focuses on s.74(3)(a) of the CYFSA that states:

(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,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

[Emphasis added]

[52] The mother argues that the trial judge erred in law because the judge assigned no weight to the child’s views and preferences. In doing so, she says the judge created an exception to s. 74(3)(a) of the CYFSA for alienation cases - an exception that does not exist in the CYFSA. The mother submits that the CYFSA does not provide an “escape route” from considering the child’s views and preferences where the child’s views and preferences are determined to be “not independent”. In essence, the mother is saying that some weight must be attached to the child’s views, even if the views are not those of the child.

[53] This ground of appeal fails.

[54] The trial judge carefully reviewed and considered the child’s views and preferences. The child was “clear and unwavering” in his wish to be returned to the care of his mother. However, there was overwhelming evidence that the child’s views and preferences were not independent. The mother had brainwashed the child and as a result, the views expressed were not his own. At para. 615 the judge found:

…I find that the views of the child are not independent. It is not possible to separate the child’s views about his father from the negative influence of his mother. The mother has brainwashed the child with respect to his views about his father and his extended family. I put no weight on those views.

[55] On this appeal, the mother does not challenge the extensive findings of fact that led the trial judge to place no weight on the child’s views. In particular, there is no challenge to following findings of fact. The mother had an unhealthy influence over the child. The child's narrative had become influenced by the mother. The mother had systematically convinced the child that the sexual abuse allegations had happened. The child's expressed statements about his father and maternal grandmother were not consistent with his behaviour during visits. There was pressure placed on the child to lie with repeated false allegations against his father of physical and sexual abuse. The mother prompted the child to continue making disclosures that were clearly false. The child was extremely aligned with the mother’s point of view, which was false, leading to the child carrying an enormous emotional burden. The child could not freely express his views about his father because of the mother’s influence. The mother poisoned the child's mind about his father and coached the child into adopting false allegations.

[56] The essence of the mother’s argument is that the trial judge had to assign some weight to the child’s views and preferences, even though the trial judge could not ascertain the child’s own views.

[57] S.74(3)(a) does not support the mother’s argument. The trial judge is to “consider” the child’s “views and wishes” … “unless they cannot be ascertained”. This is exactly what the trial judge did. This was a case where the alienation was so entrenched that the views and preferences of the child could not be ascertained. As a result, the trial judge placed no weight on the child’s views. Given the findings of fact, the trial judge was not required to assign some weight to the child’s views.

[58] The trial judge did not create an exception or an “escape route” from the obligation to follow s. 74(3) of the CYFSA. To the contrary, the trial judge carefully considered the child’s views and preferences. Based on the facts, the judge found that the child’s views could not be ascertained because the mother had “brainwashed the child”.

[59] There are degrees of parental alienation. In some cases where it is not as severe, the judge may be able to ascertain the child’s views and preferences and assign some weight to those views. Sadly, this was not such a case.

Ground #1b - Failure to Consider Relevant Factors

[60] S. 74(3)(c) of the CYFSA required the trial judge to “consider any other circumstance of the case” that the judge considered “relevant”.

[61] The mother argues that the trial judge made three errors of law because she did not consider three relevant factors: s. 74(3)(c)(x), (xi) and (vi). For the following reasons these grounds of appeal fail.

S.74(3)(c)(x)

[62] S.74(3)(c)(x) states:

(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,

(c) consider any other circumstance of the case that the person considers relevant, including,

(x) 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

[63] The mother submits that the trial judge did not analyze or weigh the risk of emotional harm in not allowing the child to return to his mother, as opposed to being placed with his father.

[64] There is no merit to this ground of appeal. The trial judge thoroughly considered s.74(3)(c)(x) along with the other factors in s.74(3)(c), particularly the following:

(i) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family;

(ii) 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;

(iii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity; and

(iv) 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.

[65] The risk of emotional harm to the child if left with the mother was overwhelming. The mother does not contest the findings of fact that document the risk. In addition to the facts already reviewed, the judge considered the following:

(i) After the child was placed in Society's care, the mother’s behavior continued to pose a risk of emotional harm to the child;

(ii) The mother continued to maintain a false narrative of the child being sexually and physically abused, had no insight or introspection to consider that she herself may have overreacted, and therefore continued to cause confusion for the child;

(iii) The mother is untrustworthy, not credible, and without insight into the damage she has caused the child;

(iv) Multiple witnesses at trial, including the mother, testified that the father is a loving and involved parent and that he had enjoyed a good relationship with the child;

(v) The father is honest, forthright and insightful;

(vi) The mother was not cooperative with the Society and difficult to work with;

(vii) The mother did not cooperate in scheduling the father’s access. She had a pattern of non-cooperation with court-ordered access for the father, and she failed to obey existing court orders;

(viii) The mother consistently made no effort to encourage the child to see his father;

(ix) The mother continuously thwarted the various counselling processes that the Society initiated to reunify father and child;

(x) The mother’s proposed Plan of Care did not support a relationship between father and child;

(xi) The mother's propensity to change her evidence multiple times made it almost impossible to understand her plan or position;

(xii) The mother's lack of credibility made her claim that she would encourage a relationship between child and father and extended family implausible; and

(xiii) The father's patience, insight, cooperation with the Society and therapist made for a more viable plan that did not place the child at further risk.

[66] It is abundantly clear from the trial judge’s reasons that if the child remained in the mother’s care, the risk of emotional harm would continue. If the child remained in the mother’s care, there was no hope of remediating the damage the mother caused through alienating and brainwashing the child against the father.

S.74(3)(c)(xi)

[67] S.74(3)(c)(xi) states:

(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,

(c) consider any other circumstance of the case that the person considers relevant, including,

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[68] This ground of appeal fails for three reasons.

[69] First, on January 9, 2019, Justice Paulseth found the child in need of protection due to risk of emotional harm. The mother did not appeal this decision. She now seeks to indirectly attack an order that she did not appeal. This is a collateral attack that is not allowed (see Kenora-Patricia Child and Family Services v. A.M., [2004] O.J. No. 673).

[70] Second, the mother argues that the trial judge’s reasons contain “no” analysis of this factor. It is hard to imagine a clearer case of a child at risk of suffering emotional harm. To say that the trial judge’s Reasons contain “no” analysis of the degree of risk, ignores the numerous detailed findings of fact and the judge’s careful and thorough consideration of this factor.

[71] In her Reasons, at paras. 568-570 the trial judge quoted and adopted Justice Paulseth’s findings of fact. These findings of fact supported Justice Paulseth’s finding that the child was in need of protection due to risk of emotional harm.

[72] The trial judge then found that after the child was removed from the mother’s care, the child continued to be at risk of emotional harm because of the mother’s behaviour. The trial judge made the following findings of fact at para. 571 to support the ongoing risk:

(a) Despite the child being removed from her care, the mother has continued her pattern of non-cooperation with the society. Since the child was removed, she has refused to permit any home visits;

(b) The mother sabotaged the reunification intake appointment with Ms. Polak by threatening her and destroyed any ongoing relationship by secretly taping the session;

(c) Although the mother spoke about how difficult it was for her to not see her son for 3 months after he was removed from her care, she showed no insight into how difficult it was for the father to have not seen his son for almost 2 years;

(d) In her first visit with her son, after he was removed from her care, the mother did not follow the expectations for the visit that were provided to her prior to the visit by the family service worker. She spent time speaking to [the child] about his rights, given him presents and making comments that could be interpreted as undermining the foster placement and his relationship with the society and inappropriately talking about the trial. As a result, the mother needed to be removed from the visit;

(e) Despite [the child] asking to see his baby brother and the mother being asked to bring him to the visit, the mother disappointed [the child] and did not bring him. Even if the mother’s explanation is accepted that she wanted her first visit to be only with [the child], she had no credible excuse for not agreeing to bring the baby for the second scheduled visit. The mother testified that she thought it was just a “suggestion.” She also testified that she could not arrange for anyone to return the baby to her home after the visit, but she did not explain why her partner JM or the godmother could not have done so. She did not explain why she could not have asked for time off from her employer to arrange the visit as she stated in her Answer that her work schedule was very flexible. As a direct result of her actions, her visit with [the child] was cancelled and [the child] did not get an opportunity to see his baby brother;

(f) The mother has continued to maintain that [the child] was sexually and physically abused despite the evidence that he made no disclosures after two police investigations and despite the fact that his subsequent allegations mirror the mother’s allegations and Mr. Carpenter’s own background of abuse. Despite the inconsistencies and the improbabilities of the allegations, the mother has not had the insight or introspection to consider that perhaps she overreacted to the child’s statements and drew inferences that were not probable. The mother has therefore continued to cause confusion to the child who trusts his mother but is being shown in counselling and in the actual visits with his grandmother and his father that perhaps everything that he has come to believe may not to accurate.

[73] The trial judge concluded at para. 572 that “there is an ongoing risk to the child’s short term and long-term emotional well-being due to the mother’s unrelenting behaviour in interfering with access and failing to co-operate with any counselling that she does not agree with and that has as its objective that the child resume his relationship with the father.”

[74] Third, I reject the mother’s argument that the absence of an expert opinion to document the risk somehow supports her ground of appeal. In some cases, the parental alienation is subtle, and an expert opinion may be required to prove the risk to the child. This is a clear case of ongoing systemic parental alienation, supported by numerous unchallenged findings of fact. The trial judge did not need an expert opinion to document the obvious. The trial judge correctly relied on A.M. v. C.H., 2019 ONCA 764 at paras. 31-32 as follows:

In finding that the mother alienated the child from the father, the trial judge was not purporting to make a psychiatric diagnosis of any syndrome or condition. Rather, he was making factual findings about what happened in this family. This is the stuff of which custody trials are made, and as conceded, no expert opinion was required to enable him to do so.

Those factual findings logically led to certain remedies being appropriate or not. The trial judge did not need expert evidence before choosing the remedy that was in the best interests of the child.

S.74(3)(c)(vi)

[75] S.74(3)(c)(vi) states:

(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,

(c) consider any other circumstance of the case that the person considers relevant, including,

(vi) 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.

[76] Once again, the mother argues that there was “no” analysis of this factor. The child has a half-sibling and it is argued that the judge did not consider the relationship and emotional ties to this half-sibling.

[77] This ground of appeal fails. The trial judge recognized the relationship between the siblings. After the child was removed from the mother’s care, the trial judge found that the Society encouraged the mother to bring the half-sibling to her access visits. The trial judge acknowledged the importance of the relationship and the mother’s behaviour that interfered with the relationship. As the trial judge noted at para. 571, the child asked, “to see his baby brother and the mother being asked to bring him to the visit, the mother disappointed [the child] and did not bring him.”

Ground #2 - Erred in Law in Delegating All Future Access Decisions to the Society

[78] The mother argues that the trial judge erred in law because the trial judge did not decide the mother’s access to the child. Instead, the mother argues that the judge delegated all future access decisions to the Society. This ground of appeal fails.

[79] The trial judge made detailed orders to facilitate counselling between the child and father to repair their relationship and help the child accept that his father did not abuse him. The orders allowed for a brief period of Society care and transition of the child’s care to the father full time. During this time, the trial judge explained that the mother’s access was dependent on her own actions as follows:

It is hoped that the mother will use the time to begin counselling to address the issues that resulted in her perpetuating false allegations and mending the damage she has done to her son and to her own relationship with her family. Any access to the other will be dependent on her ability to make progress with her own therapy and based on the recommendations of the child’s therapist.

[80] The trial judge’s detailed order reflects the fact that the family situation was in a state of flux and the Society had to respond to the changing dynamics, so the best interests of the child were protected.

[81] The mother argues that because the trial judge did not grant her a minimum amount of access, her access rights were affected, as were the child’s rights under s.10 of the CYFSA. I reject this argument.

[82] The right to have access in s.10 of the CYFSA is a general right that is limited by the specific powers of the court found in s.104(1) and s.105 of the CYFSA, which state:

Access order

104 (1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Access: where child removed from person in charge

105 (1) Where an order is made under paragraph 1 or 2 of subsection 101 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child's best interests.

Access after custody order under s. 102

(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child's best interests.

Access after supervision order or custody order under s. 116 (1)

(3) If an order is made for supervision under clause 116 (1) (a) or for custody under clause 116 (1) (b), the court shall make an order for access by every person who had access before the application for the order was made under section 115, unless the court is satisfied that continued contact will not be in the child's best interests.

[83] Under the CYFSA, courts have the specific authority to vary, make, or even terminate an access order and this rises above the general right conferred to a child in s.10 of the CYFSA. There is no infringement of a child's right under s.10 by the absence of a minimum access order, or indeed, by the absence of access at all.

[84] The CYFSA has a clearly defined mechanism where matters, other than the status of a child, can be reviewed by the court on application, during a supervision order or interim care order. Such an application can be brought after 6 months following a final order, which in this case, would have been after July 13, 2020 (absent the appeal).

[85] Further, ss.113(4) and (6) of the CYFSA allow a parent to commence a Status Review Application 6 months after a final order and s.113(7) allows a parent to bring such an application before the 6-month period with leave of the court.

[86] Under the predecessor Child and Family Services Act, the Divisional Court in H. (C.) v. Children's Aid Society of Durham (County), [2003] O.J. No. 879 held that this Act gave the court authority to make an access order in the discretion of the Society. As the court stated at para. 19:

The parent-child relationship is dynamic, always changing. Where an application for protection has been commenced, the relationship may also be difficult. Maximum flexibility is required to respond to the family's ongoing needs on a day-to-day basis. The parties should not have to return to court for every day-to-day access issue. That would not be in the children's best interest.

[87] Although the CYFSA has replaced the Child and Family Services Act, there is no reason to depart from the logic and direction of the Divisional Court.

[88] Accordingly, an access order in the discretion of the Society does not infringe upon the right of the mother or child, because there is a clear and established statutory pathway available to have the Society’s discretionary authority reviewed by a court. There is no carte blanche granted to the Society in the face of clear statutory safeguards.

[89] The trial judge was faced with a fluid situation. It was impossible for her to predict how the child and father would progress during counselling. It was also unknown if the mother would seek counselling and if so, how she would respond.

[90] When the dynamics are fluid and sometimes unpredictable, the Society and therapists need the ability to increase and restrict access based on the circumstances and actions of the parties.

[91] The order made at trial gives the mother access with the child, but the type of access (in person or using telephone or videoconferencing, the frequency and duration) are largely dependent on the mother’s actions.

[92] If the mother can demonstrate that she will support the child’s relationship with his father, it may be in the child’s best interests to allow the mother more frequent in-person access. If, the mother continues to undermine or attempts to undermine the father relationship, the Society must able to take the necessary steps to restrict her contact with the child.

[93] In summary the trial judge had the authority under the CYFSA to make an access order in the discretion of the Society. The trial judge’s order addresses the best interests of the child that in this case, required a discretionary access order.

Ground #3 - Erred in Law in Making the No Recording Order

[94] During the trial, on motion by the Society, the trial judge issued the following order:

The Respondent mother shall not audio or video record that child, the [father], any [Society] worker or third-party professional working with the family without the express prior consent of that party.

[95] The mother argues that the trial judge had no jurisdiction to make this order under the CYFSA because the Ontario Court of Justice is a statutory court without inherent jurisdiction. Alternatively, if the trial judge did have jurisdiction, the mother argues that “strong policy reasons” militate against making the order and the judge erred in law.

[96] This ground of appeal fails.

[97] The trial judge had jurisdiction to make the order under s. 104(1) of the CYFSA, which states that the court may impose such terms and conditions as the court considers appropriate. Additionally, s. 101(7) of the CYFSA allows the court to impose reasonable terms and conditions on the child's parent, when a supervision order is made.

[98] There is no dispute that the mother surreptitiously recorded the child, father, Society workers, and third-party professionals. Following a voir dire on the admissibility of recordings the mother made at a meeting with the reunification therapist, Diana Polak, the court ruled that: "The systemic harm to the administration of justice and to the family law system in general of permitting a party to secretly record a third party professional who is attempting to help a child and parents far outweighs any probative value that the admission of such evidence could possibly provide."

[99] The mother relies on R v. Zarafonitis, 2013 ONCJ 570 at para. 26 to support her position that she should be free to record any interactions with the Society workers. She frames the issue as a right that should be protected. I disagree. This argument does not reflect the purpose of a child protection proceeding. A child protection proceeding is about the child, whether that child needs protection and if so, the orders necessary to protect the child. As the Supreme Court of Canada stated in Syl Apps Secure Treatment Centre v. B.D, 2007 SCC 38 at paras. 43 and 45: “…it is not the family's satisfaction in the long term to which the statute gives primacy, it is the child's best interests… that pursuing and protecting the best interests of the child must take precedence over the wishes of a parent”.

[100] As Justice Sherr stated in Hameed v. Hameed, 2006 ONCJ 274 at para. 11, surreptitious recordings in family law matters should be strongly discouraged:

Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[101] Child protection workers discuss highly sensitive and personal information with parents, children and involved professionals. Having recordings that could be shared publicly, on purpose or inadvertently, could result in a significant breach of privacy.

[102] In this case, the Society workers and third-party professionals objected to the mother recording their conversations, because she used or threatened to use them to make complaints to their professional bodies and workplaces.

[103] The fresh evidence on this appeal shows that the mother has posted complaints and comments about Society workers, the reunification counsellors and judges on social media, even though she has been cautioned not to post anything that identifies that the child who is in care.

[104] As the trial judge noted, if the mother wants to make recordings to verify the contents of a conversation, she can advise the person she wishes to record and obtain consent to do so. The trial judge’s order is clear that the prohibition does not apply if the other person gives their express consent to have the interaction recorded.

Conclusion

[105] In summary, the Appellant’s appeal is dismissed.

[106] The respondents on this appeal are not seeking costs. There is no costs order.

C. Horkins J.

Released: July 16, 2020